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Legal Regime of Electronic Banking in Nigeria and The Evidence Act 2011: An Examination of the Intersection Between Technology and Law
Subject area: Arts, Social Sciences and Humanities · Area of research: LAW
Abstract
The article examines the origin of electronic banking from a historical perspective and analyses the principles of the law of evidence applicable to electronic banking disputes and litigations in Nigeria. The article relies on primary and secondary sources of information. The primary source includes the Constitution of the Federal Republic of Nigeria 1999 (as altered), the Evidence Act 2011, the Evidence (Amendment) Act 2023, the Central Bank of Nigeria (CBN) Act 2007, Cyber Crimes (Prohibition, Prevention, Etc.) Act 2015, National Information Technology Development Agency (NITDA) Act, 2007, Nigerian Communications Act 2003, Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004 and Case Laws. The secondary source includes books, journal articles, and the Internet. This article reveals that the emergence of electronic banking has transformed the financial environment, providing unmatched convenience, rapidity, and accessibility. It further shows that the paradigm change has also brought about new challenges in the areas of e-banking disputes and litigations. It also reveals that the Evidence Act has not adequately addressed electronic records' vulnerabilities in banking disputes, litigations, and other challenges associated with modern technological usage. Furthermore, the article reveals that although the Evidence Act has made progress in dealing with the admissibility of electronic evidence, numerous unresolved issues still need to be addressed.
Keywords
Electronic Banking, Evidence Act 2011, Electronic Evidence, Admissibility, Nigeria
References
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[2] Section 84 of the Evidence Act, 2011.
[3] https://www.runlawjournals.com/index.php/runlawj/article/viewFile/76/60?form=MG0AV3 accessed 6th November 2024.
[4] https://oer.biu.edu.ng/wp-content/uploads/2020/02/ADMISSIBILITY_OF_ELECTRONIC_EVIDENCE_IN_NIGERIA_-_-1.pdf?form=MG0AV3 accessed 6th November 2024.
[5] https://thenigerialawyer.com/electronic-banking-and-the-rights-of-the-customer-in-nigeria/?form=MG0AV3 accessed 6th November 2024.
[6] Charles C.A, “An Examination of the Concept of Electronic Funds Transfer System in Electronic Banking and the Law” cited by Muhammed A. D. and Tijjani M. B. “Appraisal of the e Admissibility of Electronic Evidence in Nigeria and the Possibility of Its Application Under Sharia” https://www.academia.edu/37209893/Appraisal_of_the_Admissibilty_of _Electronic_of_Possibility_of_its_Application_Under_Sharia accessed 16th November 2024.
[7] https://www.cbn.gov.ng/OUT/CIRCULARS/BSD/2007/GUIDELINES%20ON%20ELECTRONIC%20BANKING %20IN%20NIGERIA.PDF?form=MG0AV3.
[8] S.J. Apochi, ‘Admissibility of Electronically Generated Evidence Under The Nigerian Evidence Act, 2011: Challenges And Prospects’, JETIR March 2021, Vol. 8, Issue 3 https://www.jetir.org/papers/JETIR2103337.pdf?form=MG0AV3 accessed 16th November 2024.
[9] Cap. E14 LFN 2004
[10] (1969) NMLR 194
[11] (2013) 4 NWLR (Pt. 1345) P. 534
[12] G. Arishe and D.O Oriakhogba, The Evidence Act, 2011: Closing the Window for the Application of Common Law Rules of Evidence. https://Www.Researchgate.Net/Publication/329681796_The_Evidence_Act_2011_Closing_The_Window_For_The _Application_Of_Common_Law_Rules_Of_Evidence <Accessed On 11th November, 2022 accessed 6th October 2024.
[13] T. A. Aguda, Law and Practice Relating to Evidence in Nigeria, (2nd ed. Lagos: MIJ Professional Publishers, 1998).
[14] F. Nwadialo, Modern Nigerian Law of Evidence, (2nd ed., Lagos: University of Lagos Press, 1999).
[15] No. 27 of 1943.
[16] The 1945 Ordinance appears to have been heavily influenced by both the English and Indian Evidence Acts, as evidenced by the similarities between them. This connection is further supported by the fact that the Indian Evidence Act of 1892 was instrumental in shaping the 1945 Ordinance.
[17] G. Arishe and D.O Oriakhogba, (n 4).
[18] C.E. Adah, The Nigerian Law of Evidence, (Malthouse Press 2000) 3.
[19] Cap. 112.
[20] Cap. E14 LFN 2004.
[21] See (n 9) supra.
[22] (1969) NMLR 19.
[23] Wigmore J.H., Wigmore on Evidence, (5th ed. USA: Aspen Publishers, 2012).
[24] Best W.M., Principles of The Law of Evidence, (14th ed. London: Sweet & Maxwell, 2018).
[25] Bryan A. Garner, Black’s Law Dictionary, (8th ed. USA: West Publishing Co., 2004).
[26] Evidence Act, 2011 Cap E. 14.
[27] Morgan E., Introduction to The American Law Institute; Model Code of Evidence, (Philadelphia: The American Law Institute,1942).
[28] Phipson R., Phipson on Evidence, (13th Edn, Sweet & Maxwell 1982).
[29] Cross R., Cross on Evidence, (9th ed. London: Butterworths, 2017).
[30] Dr. Amusa K. O., Department of Public Law, University of Lagos. “Lecture Note on Definition of Evidence” given on the 2nd of August, 2004https://www.academia.edu/49239896/A_CRITICAL_APPRAISAL_OF_THE_RELEVANCE_AND_ADMISSIBI LITY_OF_ELECTRONICALLY_GENERATED_EVIDENCE accessed 4 September 2024.
[31] C. Tapper, Cross and Tapper on Evidence, (London: Butterworths, 1999).
[32] F. O. Osadolor, Source Book on the Law and Practice of Evidence in Nigeria, (Benin: Daveprint Associate, 2004).
[33] Nokes G., An Introduction to Evidence, (4th ed. London: Sweet & Maxwell, 1967).
[34] See (n5) supra.
[35] See (n6) supra.
[36] Ibid.
[37] Ibid.
[38] Onyeanwusi v Okpukpara (1953) 14 WACA 311.
[39] R. v Itule (1961) 1 All NLR 462.
[40] J. Amupitan Lecture Note on Law of Evidence. A University of Jos Lecturer.
[41] Yemi Osinbajo; “Admissibility of Computer-Generated Evidence under Nigeria Law”, (1990) jus, vol .1 no 1. p.260
[42] Ibid at pages 253 – 255.
[43] Sanni O., ‘The Complete Guide to Sources of Evidence Law’, https://djetlawyer.com/sources-of-evidence/?form=MG0AV3 accessed 13th November 2024.
[44] (1953) 14 WACA
[45] Fidelis Nwadialo, (n6) Supra p. 10.
[46] (1862) 3F & F.731.
[47] Section 127 Evidence Act 2011.
[48] See Section 86 (1-4) Evidence Act 2011.
[49] (1744) Willes 534, 550.
[50] (1968) NMLR 453.
[51] Section 87 Evidence Act 2011.
[52] (1992) 4 NWLR (pt.233)91.
[53] (2001) FWLR pt. 57, pg. 809.
[54] (2001) FWLR pt. 49, pg. 1457.
[55] See Subramanian v Public Prosecutor (1956) I WLR 965.
[56] Ibid.
[57] Tukur v UBA & Ors. (2012) LPELR - 9337 (SC).
[58] Simon Cooper et al, Cases and Materials on Evidence, (4th Edn, Blackstone Press Limited 1997) 1.
[59] The Nigerian Evidence Act 2011 follows the model of the Evidence Act of 1872 as amended.
[60] Oral evidence is testimony given verbally in court, typically by a witness. Documentary evidence, as the name suggests, encompasses all documents and electronic records presented in court for examination (as per section 3 of the Indian Evidence Act, 1872, as amended). Real evidence, on the other hand, includes any physical object or material brought into court to establish or refute a pertinent fact in question (S258, Evidence Act, 2011).
[61] See (n20) supra.
[62] Ibid.
[63] Scientific Working Groups on Digital Evidence and Imaging Technology, ‘Best Practices for Digital Evidence Laboratory Programs Glossary: version 2.7’
[64] International Organization on Computer Evidence, G8 proposed principles for the procedures relating to digital evidence (IOCE 2000). This definition has been adopted by the US Department of Justice Office of Justice Programs, National Institute of Justice, in Electronic Crime Scene Investigation: A Guide for First Responders (US Department of Justice 2001) and Forensic Examination of Digital Evidence: A Guide for law enforcement (US Department of Justice 2004).
[65] Schafer and Mason, ‘The Characteristic of Electronic Evidence’ in Mason and Seng (eds), Electronic Evidence (4th Edn, University of London, 2017) 19.
[66] Evidence Act 2011 recognises a “statement contained in a document produced by a computer” in s.84 (1). The phrase covers all the categorisations: electronic evidence, computer evidence, or digital evidence.
[67] See Alaba Omolaye-Ajileye, Electronic Evidence, (Jurist Publications Series, Lokoja, 2019) 74.
[68] See (n55) supra.
[69] See Chapter 1, Article 3 (1), Albanian Law No.9880 on Electronic Signature.
[70] https://www.adobe.com/sign/electronic-signatures.html
[71] See Part 11, Title 21 Code of Federal Regulations (CFR) that establishes the United States Food and Drug Administration (FDA) regulations on electronic records and electronic signatures (ERES).
[72] Jonathan Katz and Yehuda Lindell, Introduction to Modern Cryptography, (CRC Press, 2007) 399.
[73] Section 10 (Amendment of section 258 of the 2011 Principal Act), Evidence (Amendment Act) 2023.
[74] See Section 93 (2) Evidence Act, 2011 (amended by section 4 of the Amendment Act).
[75] C.J. Michaels, MLIS, Electronic Records: Definition, Principles, and Applications, https://www.ewsolutions.com/electronic-records-definition-principles-and-applications/ accessed 5th October 2024.
[76] See n28.
[77] Philip Ukata, Electronic Records Management and National Development: A Case of Nigeria, < https://www.researchgate.net/publication/342720651_Electronic_Records_Management_and_National_Developme nt_A_Case_of_Nigeria#:~:text=means%20any%20information%20that%20is,a%20computer%20or%20electronic% 20machine accessed 5th October 2024.
[78] Section 10 Evidence (Amendment) Act, 2023.
[79] Part 11, Title 21 Code of Federal Regulations (CFR).
[80] Section 30, Supreme Courts Ordinance, 1943.
[81] Babalola, A., Law and Practice of Evidence in Nigeria, (Ibadan: Sibon Books Ltd, 2001), p. 242 – 273.
[82] See s.84 of the Evidence Act, 2011.
[83] See s.84 (2) of the Evidence Act, 2011.
[84] Faramoye v The State (2017) LPELR – 42031(SC).
[85] Collins Dictionary of Law<https://legal-dictionary.thefreedictionary.com/admissibility>accessed 23 April 2024.
[86] (1984) LPELR-3259 (SC)
[87] See Pius v The State (2015) LPELR – 24446 (SC)
[88] (2017) 11 NWLR (Pt. 1575) 92
[89] See Raimi v Akintoye (1986) 3. NWLR (Pt.26) 97
[90] See (n6) supra.
[91] See (n74) supra.
[92] Section 1 of the Evidence Act 2011, sets out the exclusionary rules, which state that any evidence that is not permitted by law is considered inadmissible. This means that if such evidence is admitted, the appellate court is obligated to expunge it. This applies even if the evidence has been admitted with the consent of both parties or without objection. This principle was upheld in the court case of Agagu v. Mimiko (2009) ALL FWLR (pt. 462) 1122.
[93] Udoro v Governor of Akwa Ibom State (2016) 11 NWLR (pt. 1205) 322 at 328.
[94] See Faramoye v The State, (n74) supra.
[95] R v Ellis, (1910) 2 K.B 746, Stirland v DPP (1944) AC 315.
[96] See Omidokun Owoniyi v Omotosho (1961) 1 ALL NLR 304, (1962) WNLR 1; Aminu v Hassan (2014) 5 NWLR (pt. 1400) 287.
[97] See Section 251 (1) Evidence Act, 2011.
[98] https://dictionary.cambridge.org/dictionary/english/computer accessed on 23 April 2024.
[99] Ibid.
[100] Schafer and Mason, (n55) 20.
[101] Alaba Omolaiye-Ajileye, (n57) 99.
[102] Oxford Advance Learners Dictionary, (9th Edn, Oxford University Press 2015) 527.
[103] R v. Daye (Arthur John) (1908) KB 333 (KBD) 340.
[104] Ibid.
[105] Darling J. in R v. Daye (Arthur John), Ibid.
[106] Cap. E14, LFN.
[107] Ibid.
[108] (2003) FWLR (Pt. 145) 661.
[109] (2010) 1 NWLR (Pt. 1205) 322.
[110] Section 258 (1) Evidence Act, 2011;
[111] Ports and Cargo Handling Services Company Ltd. & Ors. v Migfo Nigeria Ltd. & Anor. (2012) LPELR – 9725 (SC).
[112] Holdent International Ltd v Petersville Nigeria Ltd. (2013) LPELR – 21474 (CA).
[113] See Section 258 (1)
[114] https://byjus.com/commerce/e-banking/#:~:text=Electronic%20banking%20has%20many%20names,different%20financial%20services%20and%20products.accessed 25 Novemebr 2024.
[115] Central Bank of Nigeria (Establishment Act) Cap. C4., 2007.
[116] Section 1 (3).
[117] Section 2.
[118] CBN Regulatory Framework for Bank Verification Number (BVN) Operations and Watch-List for The Nigerian Banking Industry, 2017.
[119] See Sections 1 & 2.
[120] See Section 5 to 36.
[121] See Section 37
[122] See Section 38
[123] See Section 39
[124] Section 6 of the Act
[125] Bank and Other Financial Institutions Act, Cap. B3. Laws of Federation, 2004.
[126] Aguda O.O., “An Appraisal of the Legal Framework for Online Banking in Nigeria and South Africa” Chukwuemeka Odumegwu Ojukwu University Journal of Commercial and Property Law, (2021) Vol. 3(1), 11-17.
[127] See Sections 58, 59 and 60 of BOFIA.
[128] See Section 1.
[129] Section 3.
[130] Sections 31-52.
[131] Section 44 Sub-Section 1.
[132] Section 1.
[133] Section 6.
[134] See section 34
[135] See Guaranty Trust Bank v Akinsiku Ademola (2019) 5 NWLR (Pt. 1664) @ p. 30 (particularly at p. 43), Paras. E-H.
[136] See sections 16 and 17 Electronic Transactions Act 2011
[137] Ibid section 20.
[138] See Section 84
[139] See Section 85
[140] G. Omoaka and others, ‘Evidence (Amendment) Act 2023: Nigerian Evidence Law Accommodates Technological Advancements’,https://www.templars-law.com/app/uploads/2023/08/Evidence-Amendment-Act-2023-pdf?form=MG0AV3 accessed 8th November 2024.
[141] Section 10 of the Act (Amendment of Section 258 of the Principal Act being the Interpretation Section)
[142] Section 3 (1) of the Act (Insertion of Section 84A – 84D in the Principal Act).
[143] Section 10 of the Act (Amendment of Section 258 of the Principal Act being the Interpretation Section)
[144] Section 3(1) of the Act.
[145] Section 3(1) of the Act.
[146] Section 3 (1) of the Act (insertion of 84D (1) to the Principal Act).
[147] Section 3(1) of the Act.
[148] Such as written depositions of witnesses in judicial proceedings.
[149] A literature review of theoretical models of Internet banking adoption at the individual level | Journal of Financial Services Marketing (springer.com) accessed 6th October 2024.
[150] Ibid.
[151] Understanding customers’ usage behavior towards online banking services: an integrated risk–benefit framework | Journal of Financial Services Marketing (springer.com) accessed 6th October 2024.
[152] Al Nahian Riyadh and Md. Shahriar Akter and Nayeema Islam, ‘The Adoption of E-banking in Developing Countries: A Theoretical Model for SMEs’, International Review of Business Research Papers Vol. 5 No. 6 November 2009,Pp.212-230< https://www.researchgate.net/profile/Shahriar-Akter/publication/263848973_The_Adoption_of_E-banking_in_Developing_Countries_A_Theoretical_Model_for_SMEs/links/59dacfeea6fdcc2aad12abcf/The-Adoption-of-E-banking-in-Developing-Countries-A-Theoretical-Model-for-SMEs.pdf?form=MG0AV3>accessed 8th November 2024.
[153] A literature review of theoretical models of Internet banking adoption at the individual level | Journal of Financial Services Marketing (springer.com) accessed 6th October 2024.
[154] Ibid.
[155] Yousafzai S., ‘A Literature Review of Theoretical Models of Internet Banking Adoption at the Individual Level’, J Financ Serv Mark 17, 215–226 (2012). https://doi.org/10.1057/fsm.2012.19 accessed 16th November 2024.
[156] Ibid.
[157] Hiep, T.T.T., Thang, N.N., Thuy, P.T., Nhi, D.T.A. (2024). Exploring Determinants of E-Banking Non-adoption Among Customers: A Case Study in Export Import Commercial Joint-Stock Bank, Vietnam. In: Nguyen, N.T., Huynh, CP., Nguyen, T.T., Le-Khac, NA., Nguyen, QV. (eds) The 13th Conference on Information Technology and Its Applications . CITA 2024. Lecture Notes in Networks and Systems, vol 882. Springer, Cham. https://doi.org/10.1007/978-3-031-74127-2_35 accessed 8th November 2024.
[158] Kaur S., Arora S., Understanding Customers’ Usage Behavior Towards Online Banking Services: An Integrated Risk–Benefit Framework. J Financ Serv Mark 28, 74–98 (2023). https://doi.org/10.1057/s41264-022-00140-5 accessed 1st November 2024.
[159] See (n153) supra.
How to cite this paper
@article{1706776,
author = {DR. Majebi Samuel Amune},
title = {Legal Regime of Electronic Banking in Nigeria and The Evidence Act 2011: An Examination of the Intersection Between Technology and Law},
journal = {Iconic Research And Engineering Journals},
year = {2024},
volume = {8},
number = {6},
pages = {824-850},
issn = {2456-8880},
url = {https://www.irejournals.com/formatedpaper/1706776.pdf},
abstract = {The article examines the origin of electronic banking from a historical perspective and analyses the principles of the law of evidence applicable to electronic banking disputes and litigations in Nigeria. The article relies on primary and secondary sources of information. The primary source includes the Constitution of the Federal Republic of Nigeria 1999 (as altered), the Evidence Act 2011, the Evidence (Amendment) Act 2023, the Central Bank of Nigeria (CBN) Act 2007, Cyber Crimes (Prohibition, Prevention, Etc.) Act 2015, National Information Technology Development Agency (NITDA) Act, 2007, Nigerian Communications Act 2003, Economic and Financial Crimes Commission (Establishment, Etc.) Act, 2004 and Case Laws. The secondary source includes books, journal articles, and the Internet. This article reveals that the emergence of electronic banking has transformed the financial environment, providing unmatched convenience, rapidity, and accessibility. It further shows that the paradigm change has also brought about new challenges in the areas of e-banking disputes and litigations. It also reveals that the Evidence Act has not adequately addressed electronic records' vulnerabilities in banking disputes, litigations, and other challenges associated with modern technological usage. Furthermore, the article reveals that although the Evidence Act has made progress in dealing with the admissibility of electronic evidence, numerous unresolved issues still need to be addressed.},
keywords = {Electronic Banking, Evidence Act 2011, Electronic Evidence, Admissibility, Nigeria},
month = {December},
}