Ishaya P. Amaza, Esq.

08064817798, 08023567462

Q1. Discuss in detail with the aid of decided cases, when and when no
leave is required before an appellant could appeal to an appellate
court, including circumstances that could warrant the use of tripod
prayers.

An appeal is an invitation to a higher court to review the decision of a

lower court; to find out whether on the proper consideration of the facts placed
before it and the applicable law that the court arrived at a correct decision. A
right of appeal against a court’s decision is a matter of law which is given or
conferred by statute or law. Consequently, an appeal from decisions of High
Courts and Federal High Courts to the Court of Appeal is governed by the 1999
Constitution of the Federal Republic of Nigeria.
For an applicant to appeal as a person having an interest in a matter, he
must show not only that he is a person interested but also that the order or
decision of the court prejudicially affects his interest.1 In other words a right of
appeal is exercisable at the instance of any party to the proceedings in the High
Courts or Federal High Courts or at the instance of any person having an interest
in the matter. The right of appeal as conferred by the Constitution is given to an
aggrieved person upon whom a determination or decision has been pronounced,
and the high point of such pronouncements is that it has wrongfully refused an
aggrieved person of something or wrongfully affected him of something.2
However, before a right of appeal can be exercised, such appeal must lie
as of right or with leave of court.
A. Appeal as of right- When appeal lies as of right, the appellant is not
required to seek leave of court before filing an appeal against a court’s order or
decision. Appeals lie as of right from the High Courts and Federal High Courts to
the Court of Appeal in the following case;3
1
Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria; Denton-West V Muoma (2008) 6 NWLR (part 1083)
at 418, page 447
2
Onayemi v Idowu (2008) 9 NWLR (Part 1092) at 306, page 326, paragraph G-H
3
Section 241 (1) of the 1999 Constitution
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

(a) Final decisions in any proceedings before the High Court sitting at first
instance.
There is a right of appeal here whether the appeal is on grounds of law or
fact or mixed law and fact. Where an appeal is against the final decisions of the
High Court or Federal High Court sitting at first instance, the appellant can
appeal as of right by virtue of Section 241(1) of the 1999 Constitution without
leave of court.
In Ohajunwa v Obelle4 the Court of Appeal stated that the test for
deciding whether a decision is final or interlocutory depends on its results. If the
decision finally disposes of the rights of the parties, it is a final decision and not
an interlocutory decision and such a decision can only be reviewed or reversed
by an appellate court and not by the trial court which gave it. The Court of
Appeal further stated in the case that refusal of trial court to set aside its default
judgement was a final decision.5 A decision on an issue can be final even when
the substantive suit has not been decided provided the court cannot legitimately
re-open, vary or set aside the issue especially when a valid plea of res judicata
can be founded on it.6 Thus no matter the words or phrases used to conclude a
judgement, whether the words ‘struck out’ or ‘dismissed’ are used, the test of
whether a decision is final is if it is one that cannot be varied, re-opened or set
aside by the court that delivered it or any court of coordinate jurisdiction
although it may be subject to a court of higher jurisdiction. Consequently, a
decision of a court that it has or does not have jurisdiction to entertain a suit is a
final decision, and does not require leave as was held by the Supreme Court in
the case of UBA v Akinsanya7
(b) Where grounds of appeal involves questions of law alone.8

4
(2008) 3 NWLR (Part 1073) at 52
5
Ibid. page 73, paragraphs A-B
6
Kasandubu v Ultimate Petroleum Ltd. (2008) 7 NWLR part 1086 at 274, page 291-292, paras G - A
7
(1986) 4 NWLR Part 35 page 273
8
Section 241(1)(b) of the 1999 Constitution
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

Even where an appeal is interlocutory but involves questions of law alone,

no leave is required as provided for by Section 241(1)(b) of the 1999
Constitution. On the other hand, an interlocutory order involving mixed law and
facts can only be appealed against with leave.9
The other circumstances where appeals lie as of right without need to seek
leave of court as enumerated in Sections 241(1) are
(c) decisions in any civil or criminal proceedings on questions as to the
interpretation or application of the Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether
any of the provisions of Chapter IV of the Constitution has been, is being
or is likely to be, contravened in relation to any person
(e) decisions in any criminal proceedings in which the Federal High Court or
a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court
(i) Where the liberty of a person or custody of an infant is concerned;
(ii) Where an injunction or the appointment of a receiver is granted or
refused;
(iii) In the case of a decision determining the case of a creditor or the
liability of a contributor or any other officer under any enactment
relating to companies in respect of a misfeance or otherwise;
(iv) In the case of a decree nisi in a matrimonial cause or a decision in
an admiralty action determining liability; and
(v) In such other cases as may be prescribed by any law in force in
Nigeria.
In all these situations, leave of court is not required before filing an appeal
against an order, ruling or decision of the Federal High Court or a High Court.10

9
See Kasandubu v Ultimate Petroleum ltd (supra)
10
With the exceptions of situations stated in paragraphs (a) and (f), leave of court is also not required when appealing against the
decision of the Court of Appeal to the Supreme Court by virtue of Section 233 of the Constitution
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

(B) Appeals with leave- In all other circumstances not falling within Section
241(1) of the 1999 Constitution, leave of court must be obtained before an
appellant can appeal against a High Court’s or Federal High Court’s decision.
However, in Uniform Ind. Ltd v Oceanic Bank International (Nig) ltd11, it
was held that leave of court is required to appeal from a decision of a High Court
made with the consent of the parties or as to cost only, even though it is a final
decision. Similarly, appeal at the instance of a person having an interest in the
matter and who is not a party to the proceedings shall be with leave of the
Federal High Court or the High Court or the Court of Appeal.12 This provision was
affirmed by the court in Igbokwe v Kehinde13
An appellant appealing against a decision of the Federal High Court or a High
Court must file his notice of appeal or notice of application for leave to appeal
within 14 days where appeal is against an interlocutory judgement and within 3
months where appeal is against a final decision. 14 If the appellant fails to do so,
he will be out of time and then has to bring an application for extension of time
within which to appeal. Only the Court of Appeal is vested with the power to
enlarge time within which to appeal.15 The application is by way of motion on
notice supported by an affidavit setting forth substantial reasons for failing to
appeal within time.
Where the appellant requires leave to apply and he is out of time, the
application shall contain three prayers commonly referred to as the trinity or
tripod prayers. They are
a) Extension of time to seek leave of court to appeal;
b) Leave to appeal; and
c) Extension of time to file notice of appeal.

11
(2005) 3 NWLR (Part 911) at 83
12
Section 243(a) of the 1999 Constitution.
13
(2008) 2 NWLR (Part 1072) at 441; See also Omotesho v Abdullahi (2008) 2 NWLR (Part 1072) at 526, page 542 paras F-H
14
Section 25(2)(a) of the 1999 Constitution.
15
Court of Appeal rules 2007; see also Akpan v Ekpo (2001) 9 NWLR (Part 707) at 502
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

The application must contain these 3 prayers otherwise it will be incompetent

and will be struck out.16 The principle that there must be a union of three
prayers for the validity of an application for enlargement of time within which to
appeal is applicable only when such application is combined with application for
leave to appeal. So where an appeal requires leave of court and time within
which to lodge the appeal has expired, the intending applicant must, in seeking
leave, also ask for a prayer for extension of time within which to apply for leave
and leave to appeal. In Ogbogoro v Omenuwoma,17 the Court of Appeal
stated that;
“If any of the prayers is absent, where required, then the application
would be fundamentally defective. This is because the leave to appeal
is an integral part of the application before the court and is
indispensable to the application of the rule.”
However, the tripod prayers are not necessary where leave to appeal is not
required.

16
Registered Trustees, Christ Apostolic Church v Uffiem (1998) 10 NWLR (Part 569) at 312
17
(2005) 1 NWLR (Part 906) at 1
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

Q2. Make a case for the admissibility of electronic evidence in courts

in Nigeria.
Introduction
Electronic evidence (also known as digital evidence) has been simply defined
as “any probative information stored or transmitted in a digital form that a
party to a court case may use at a trial" 18

It has also been more comprehensively defined to mean “data that is

recorded or stored on any medium in or by a computer system or other
similar device and that can be read or perceived by a person or a computer
system. It includes a display, printout or other output of that data”19
Electronic evidence can be broadly categorised into three;
(a) Records of activities that contain content written or recorded by one or
more people. Examples include emails messages, word processing files,
instant messages, audio files and video files;
(b) Records generated by a computer that have not had any input from a
human. Examples of such records are data logs, connections made by
telephones, ATM transactions, GPS tracks and logs from hotel’s electronic
door locks; and
(c)
(d) Records comprising a mix of human input and calculations generated and
stored by a computer. These include financial spreadsheets, bank
statements, web browsing history and computer printouts.

Importance of Electronic Evidence

Advances in the field of information technology in the last few decades,
especially in relation to the means of recording/ storage and retrieval of
information, has greatly impacted on the law of evidence and the proof of facts.
There are a variety of electronic evidence designed for storage and transmission

18
Wikipedia, the online encyclopedia
19
Section 2, Electronic Evidence Model Law 2002, Commonwealth Secretariat, Marlborough House, London.
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

of information that have been taken into cognizance in proving facts before the
courts. An English scholar20 stated that;
‘It is almost self-evident that as our society makes increasing use of
electronic devices, such as computers and mobile phones, so the
evidence we rely on in litigation, both civil and criminal, will be
increasingly electronic in nature’21
Despite the challenges of admissibility and probative value of electronic
evidence, it has gotten wide acceptance in the United Kingdom (the legal
system of which we have adopted in Nigeria) and the United States of America.
As courts, like society, became more familiar with digital documents, they
backed away from higher standards of admissibility of evidence. An American
court stated as far back as 1982 that;
‘Computer data compilations should be treated as any other record’22
Similarly, in Aguimatang v California State Lottery23 the court gave near
treatment to the admissibility of electronic evidence stating, ‘the computer
printout is considered an original’.
In England and Wales, a plethora of cases exist in which digital or
electronic evidence were admitted by the courts; email correspondence was
admitted in a case if defamation;24 evidence from a Global Positioning System
(GPS) device placed on a vehicle was admitted into the trial of the murder of
Scott Peterson’s wife and unborn son;25 the trial of a Kurdish youth was
dismissed when he played a recording of the comments made by the arresting
officer, PC Yates of the Metropolitan Police who had used abusive and racist
language to allege that the youth was a robber and a rapist; 26 electronic

20
Deidre M. Dwyer of Pembroke College, Oxford
21
International Commentary on Evidence, Volume 5, Issue 2, (2007) Article 3
22
US v Vela, 673 F.2d 86, 90 (5th Cir. 1982)
23
234 Cal. App. 3d 769, 798
24
Takenaka (UK) Ltd and Corfe v Frankl (2001) EWCA Civ. 348, (2001) EBLR 40. Also Exoteric Gas Solutions Ltd and
Andrew Duffield v BG Plc (1999) LTL, 24th September 1999.
25
‘Peterson trial- Judge allows in GPS Technology evidence’ 2004, www.foxreno.com/news/2853360/detail.html
26
‘Officer suspended in racism probe’ (2003) BBC News 19 May, online at
http://news.bbc.co.uk/1/hi/uk/4561131.stm
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

evidence from a variety of sources demonstrated how Dhiren Barot planned to

initiate a number of terrorist attacks in London and the United States- the
evidence was so overwhelming that he entered pleas of guilty to the charges;27
and in the divorce action of White v White,28 the husband failed in his
application to have email correspondence adduced by his wife to be suppressed.
To underscore the increasing importance of electronic evidence, Law
Ministers and Attorney- Generals of Small Commonwealth jurisdictions at their
2000 meeting recognised that common law rules of evidence were not adequate
to deal with technological advances and needed to be modernized. They
welcomed the convening of an expert group to develop model legislation on
electronic evidence to address the needs of small Commonwealth jurisdictions.
The Expert Group examined the admissibility of electronic evidence and the
question whether the rules that apply to other forms of documentary evidence
can be applied in a like manner to electronic evidence. The Expert Group came
out with a draft model law on electronic evidence which they recommended
member countries to adopt to ensure the admissibility of such evidence.29 The
model law, cited as ‘Electronic Evidence Act, 2002’ was to make provision for
the legal recognition of electronic records and to facilitate the admission of such
records into evidence in legal proceedings. The Act has 12 sections and contains
provisions on general admissibility, scope of the law, authentication, application
of best evidence rule, presumption of integrity, standards, proof by affidavit,
cross examination, agreement on admissibility of electronic records, and
admissibility of electronic signature.

Problems of Electronic Evidence

Naturally, computer technology has brought with it its own peculiar
problems such as the issue of authenticity. Courts have noted that electronic
evidence tends to be more voluminous, more difficult to destroy, easily
27
‘Dirty bomber’s plot to hit stations and hotels’ (2006) The Times, November 1, pp 1 and 6
28
344 N.J. Super 211, 781 A.2d 85 (N. J. Super. Ch. 2001)
29
Commonwealth Secretariat, Marlbrough House, London, September 2002
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

modified, easily duplicated and always fall short of the common law provisions
on hearsay, the best evidence rule and privilege. Central to the increasing use of
electronic evidence are fundamental technical and legal questions about the
quality of that evidence, and the circumstances under which it can be obtained
and then admitted into court.30
Consequently, electronic evidence can be challenged in a variety of ways;
1. it may be claimed that the records were altered, manipulated, or damaged
between the time they were created and the time they appear in court as
evidence;
2. the reliability of the computer programme that generated the record may
be questioned; and
3. the identity of the author may be in dispute.
It has been advocated31 that to support the reliability and admissibility of such
evidence, it will be necessary to demonstrate that the content of the document
is a reliable record of the human statement that can be trusted, or that the
computer programme that generated the record was functioning properly at the
material time.
The proponent of the electronic evidence must also lay proper foundation for its
admissibility. Early court decisions required authentication that called for a more
comprehensive foundation.32 The American Law Reports33 lists a number of ways
to establish the comprehensive foundation. It suggests that the proponent
demonstrate the reliability of the computer equipments, the manner in which
the basic data was initially entered, the measures taken to ensure the accuracy
of the data as entered, method of storing the data and the measures taken to
verify the accuracy of the programme. The Expert Group of the Commonwealth
that drafted the model law on electronic evidence noted that most jurisdictions
30
Stephen Mason, Electronic Evidence: Disclosure, Discovery and Admissibility (LexisNexis Butterworths) 2007
31
International Commentary on Evidence (supra)
32
US v Scholle. 553 F2d 1109 (8th Cir. 1976)
33
7 American Law Reports. See also Section 5 of the Electronic Evidence Act 2002 (model law) which states that ‘ the person
seeking to introduce electronic record in any legal proceeding has the burden of proving its authenticity by evidence capable of
supporting a finding that the electronic record is what the person claims it to be’
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

seeking to impose a minimum level of reliability for admissibility of electronic

documents do so by focusing not on the document itself but rather the system
or method by which the document was produced. The Group agreed that system
reliability is the most sensible measurement for the admissibility of electronic
documents.
Also the Federal Rules on Evidence34 states ‘if data are stored in a computer…
any printout or other output readable by sight, shown to reflect data accurately
is an original’. In other words, it qualifies as original under the best evidence
rule. Similarly, the Electronic Evidence Act, 2002 published by the
Commonwealth Secretariat provides in Section 6 as follows;
6(1) In any legal proceedings, subject to subsection (2), where the
best evidence rule is applicable in respect of electronic record, the rule
is satisfied on proof of the integrity of the electronic records system in
or by which the data was recorded or stored.
(2) In any legal proceeding, where an electronic record in the form of
a printout has been manifestly or consistently acted on, relied upon or
used as the record of the information recorded or stored on the
printout, the printout is the record for the purposes of the best
evidence rule.35
In view of the foregoing, it is clear that electronic evidence has received wide
acceptance in courts in a number of jurisdictions and the importance of its
admissibility cannot be over emphasized.

Admissibility of Electronic Evidence in Nigeria

The law which provides for the law of evidence to be applied in all judicial
proceedings in or before courts in Nigeria is the Evidence Act.36 The Act which
came into force on 1st June 1945 does not specifically recognise or make any

34
Applicable in the United States of America- Rule 1001(3)
35
See generally Sections 7, 8, 9 and 10 of the Electronic Evidence Model Law
36
Cap E14, Laws of the Federation of Nigeria 2004
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

provision for any electronic records or other forms of records produced by more
advanced technology that have emerged since the enactment of that law.
Section 2 of the Evidence Act defines documents ‘to include books, maps,
plans, drawings and anything inscribed on any substance by means of words,
letters, figures or by more than one of these means intended to be used or
which may be used for the purposes of recording that matter’.
There are a variety of electronic devices designed for storage of
information, which have made the definition of ‘documents’ under the Nigerian
Evidence Act to be grossly inadequate. For example, data recorded or stored in
electronic modems is not visible as letters or figures as envisaged in Section
2(a) of the Act. Rather, it contains encryptions hardly visible to normal sense of
sight; or even if so visible, they would hardly be comprehendible without the aid
of some device that would make them readable in the normal way.
The challenges posed by the inadequacy of this definition resonate in
many significant ways throughout the study of evidence law and practice in
Nigeria, especially documentary evidence. Courts have been irregular and often
contradictory when faced with the problems of admissibility of electronic
evidence in proceedings before them, specifically with regards to computer
printouts of bank statements.
In Anyeabosi v R T Briscoe Nig. Ltd,37 the Supreme Court held that a
computer printout of a bank statement of the plaintiff’s account kept in a
computer and certified to be a true copy was rightly admitted by the trial court
under the provisions of Section 96(1) and (2) (now Section 97(1) and (2)) of the
Evidence Act.
Similarly in the latter case of Ogolo v IMB (Nig.) Ltd,38 Onalaja, JCA (as he
then was) stated that;
‘The commercial and banking operation in the keeping of accounts by
the old system has been changed to computer which makes Nigerian

37
(1987) 2 NSCC at 805
38
(1995) 9 NWLR (Part 419) at 315
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business to be modernized and in keeping with the computer age

which system is so notorious that judicial notice of it can be taken
under Section 74 of the Evidence Act’39
Sadly, recent court decisions have refused to follow this trend.
In Nuba Farms Ltd & Anor v NAL Merchant Bank,40 the Court of Appeal in
interpreting Section 97(1)(h) of the Evidence Act stated that;
‘In the proper interpretation of the statute, the words in the Evidence
Act do not contemplate in their ambit the information stored by a
banker to be other than in a book and the customer cannot be said to
have in his possession copies of its contents. The contents of the
information stored in a computer have never been in the possession of
the person against whom it is used. It is therefore right to conclude
that the information retrieved from a computer being made by a
banker for its own use is wrong to be used in a trial against its
customer’41
Consequently, the Court held that a computer printout is inadmissible as
secondary evidence of a banker’s books.
Also in UBA Plc v SAFPU,42 the appellant tendered a computer printout of
statement of account produced through the appellant’s computer network
system which was admitted. The respondents appealed on the admissibility of
the computer printout and the Court of Appeal upheld their contention that it
was inadmissible. It stated;
‘Generally, Section 97(1)(h) of the Evidence Act permits that
secondary evidence may be given of the existence, condition or
contents of a document when it is an entry in a banker’s book as
defined by Section 2 of the Act … but the provisions do not extend the
phrase ‘banker’s books’ to mean a statement of account contained in
39
Ibid. pp324, para. B
40
(2001) 16 NWLR (Part 740) at 510
41
Ibid. Pages 522- 523, paras. H - C
42
(2004) 3 NWLR (Part 861) at 516
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

a document produced by a computer. And since it is the duty of the

court to apply the law as it is, Section 97(1)(h) of the Evidence Act will
continue to be applied to exclude the admissibility of statement of
account contained in a computer printout unless and until it is
amended by an Act of the National Assembly’43
Perhaps, the greatest blow to the admissibility of electronic or computer
generated evidence in Nigerian courts was in the very recent case of former
Minister of Aviation, Femi Fani-Kayode who is standing a 47-count charge of
alleged money laundering involving about N250 million.44 The Economic and
Financial Crimes Commission (EFCC) had sought to tender a computer printout
of a statement of account produced in court by the manager of a bank.
However, Justice Ramat Mohammed of the Federal High Court, Abuja on 26th
March 2009 rejected the evidence. The learned judge relied on the case of UBA
Plc v SAFPU45 to hold that the printout was inadmissible under Section 97(1)(h)
and (2)(e) of the Evidence Act, a decision the EFCC has appealed against.46
From the foregoing, it is of no doubt that until the Evidence Act is amended
and updated, the problem of the admissibility of electronic evidence will
continue to persist and will keep calling for some measure of judicial activism or
purposive approach in the courts’ interpretative jurisdiction. The resultant effect
of the inadmissibility of electronic evidence is the lampooning of our legal and
judicial system as being inept and incapable of dealing with contemporary
issues especially as both criminal and commercial transactions have taken a
highly technological dimension. This is more indispensable in Nigeria where we
are battling with problems of bank frauds, money laundering, advance fee fraud
and other financial crimes.
It is this line of reasoning that has propelled the Senate in Nigeria to take
steps to amend the Evidence Act, describing it as anachronistic, obsolete and
43
Ibid. Pages 541 – 542, paras. H - G
44
Reported in The Guardian newspaper, Wednesday, 01 April, 2009
45
Supra
46
www.efccnigeria.org/index.php
 Ishaya P. Amaza, Esq. 08064817798, 08023567462

out of touch with global reality.47 A bill tagged ‘A Bill for an Act to Amend the
Evidence Act Cap E14 Laws of Nigeria 2004 (SB291) To Permit
Admissibility of Electronic and Computer Generated Evidence’ has been
passed for second reading in the Senate and the Senate Committee on Judiciary,
Human Rights and Legal Matters has been given four weeks effective from 29th
September, 2009 to process the bill and submit its report. The Bill was
sponsored by Senator Sola Akinyede, Chairman of the Senate Committee on
Drugs, Narcotics, Financial Crimes and Anti-Corruption. The Bill when passed
into law will allow the use of electronic and computer generated evidence in the
prosecution of fraud-related cases and it is aimed at improving the current legal
system in which such evidence have been disallowed in court, making the
prosecution of fraud suspects very difficult since many of the materials that
could ordinarily be tendered in court are not admissible under the current
Evidence Act.
The amendment shall also expand the meaning of the word ‘document’ as
defined by Section 2 to include electronic records; expand the meaning of the
phrase ‘banker’s books’ and expand the meaning of the word ‘original’.
It is hoped that the amendment will bring our Evidence law in conformity with
modernity and global best practices.

47
The Guardian newspaper, Wednesday, 30 September, 2009