Admissibility Of Evidence As It Relates To Electronic Devises, Social Media And Forensic Science By Prof. Amuda-Kannike (SAN).

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INTRODUCTION

This topic is important because it has to do with admissibility
of evidence but not just any type of evidence but specialized type
of evidence as they are all science oriented. Therefore, this type
of evidence requires specialized way of appreciating same both by
the legal practitioners, the judges, the magistrates and members of
the public.

It is also not out of place to define the term “evidence”. The
term evidence has several meanings depending on each given
circumstance but as it is usually said, it is a relative concept,
as most authors, scholars and jurist at various times have
attempted to have a generally acceptable definition but no
one has been able to do that till date. However, there have
been some useful definitions such as Cross[1] who defines evidence as an act which tends to
prove something which may satisfy an inquirer of the facts in
evidence.

Furthermore, Black’s Law Dictionary[2] defines “evidence” as something, including
testimony, documents and tangible objects that tends to prove or
disprove the existence of an alleged fact. Phipson[3] in his own case, defines evidence as the testimony
whether oral, documentary or real, which may be legally received in
order to prove or disprove some facts in dispute.

Under our Law, section 258(i) of the evidence Act, describes
what evidence entails but did not define it in line with the
position of Prof. Lawrence Atsegbua[4] who said, it was only fact in issue that was
defined.

However, it is to be noted that as far as the topic has to do
with admissibility of evidence, we are not too concerned with
evidence generally but we are more interested in the term “Judicial
evidence”.

The court in Awuse Vs Odili, [5] adopted the judicial definition of evidence, when
it stated that it is

“Any species of proof, or probable matter legally, presented at
the trial of an issue by the act of the parties and through the
medium of witness, records, documents, exhibits, concrete objects,
etc for the purpose of inducing belief in the minds of the court or
jury as to their contention. Taylor V Howard III RI 527, 204, A2d
891 891”

Also in Eze Vs Okoloagu [6] the court further stated while defining evidence
that;

“As it is known, the term evidence is defined as, the facts;
signs or objects that make you believe that something is true; or
the information that is used in a court of law to try to prove
something see Oxford Advance Learner’ Dictionary P. 398 while in
Black’s Law Dictionary, 7^th Edition, page 76 the term
evidence is defined to mean something including testimony,
documents and tangible objects) that tends to prove or disprove the
existence of an alleged fact. Case Law authorities defined
“evidence” as to the means whereby the court is informed as to the
issues of facts as ascertained by the pleadings; it is the
testimony, whether oral or documentary or real which is produced
before a court or tribunal to some facts in dispute. See Fed. Milt
Governor V Sani (No. 2) (1989) 4 NWLR (Pt 117) 624, Lawal V Union
Bank of Nigeria Plc (1995) 2 NWLR (Pt 378) 407”.

Electronic devises are component for controlling the flow of
electrical currents for the purpose of information processing and
system control. Prominent examples include transistors and diodes.
Electronic devises are usually small and can be group together into
packages called integrated circuits.

Modern computers are electronic because they use active
semiconductors (transistors) mostly in the form of integrated
circuits. That is what distinguished them from mere electric
device. For example, one that used electricity like conventional
light bulb.

Examples of electronic devises are television, remote control,
computers, keyboards, mice, and anything that plugs into USB, DVR,
electrically powered alarm clocks, smart and dumb watches, stereo
system, automobile engine, computers, etc[7]

Digital devise is defined as a physical unit of equipment that
contains a computer or micro controller. Today a lot of devises are
digital such as Smartphone, tablets and smart watches. There are
non-digital devises (analogue) also in existence, such as
thermometer, electric fan and bicycle[8]

Social media has been defined as a form of electronic
communication system (such as websites for social networking and
micro blogging) through which users create online communities to
share information, ideas, personal messages, and other content
including videos.[9]

The examples of social media websites are; Badoo, Facebook,
Messenger, Google, Google + my Space, Instagram, Linkedin, Twitter
Whatsapp, etc.[10]

Forensic science is defined as the application of science to
criminal and civil laws, particularly investigation in line with
the legal standards of admissible evidence vis-à-vis criminal
procedure.[11]

Furthermore, Oxford dictionary defines forensic science as the
application of scientific methods and techniques to matters under
investigation by a court of law.

There exist lots of fields of forensic science categories among
which are as follows; [12]

Trace evidence Analysis
Forensic Toxicology
Forensic Psychology
Forensic Podiatry
Forensic Pathology
Forensic Optometry
Forensic Odontology
Forensic Linguistic
Forensic Botany
Forensic DNA Analysis
Forensic engineering
Forensic geology

The field of forensic science draws a number of scientific
branches including physics, Chemistry and biology with its focus
being on the recognition, identification and evaluation of physical
evidence.[13] It has become an essential part of judicial
system as it involves a wide spectrum of sciences being utilized in
order to succeed in having relevant information useful for both
criminal and legal evidence. This could happen in the following
ways;[14]

The examination of physical evidence in the administration of
tests
The administration of tests
The interpretation of data
The clear and concise reporting
The truthful testimony of a forensic scientist

ADMISSIBILITY OF ELECTRONIC DEVISES
EVIDENCE

We have seen that by definition, electronic devises covers a lot
of items but the most important aspect of electronic devises is
that, which has to do with computer generated evidence because as
at today, most electronic devises are computer driven, and more so,
when Section 2 of the evidence Act 2011 states that “for the
avoidance of doubt, all evidence given in accordance with section 1
shall unless excluded in accordance with this or any other Act, or
any other legislation validly in force in Nigeria, be admissible in
judicial proceedings in which this Act applies, provided that
admissibility of such evidence shall be subject to all such
conditions as may be specified in each case by or under this
Act”.

Now what is section 1 of the Evidence Act 2011 talking about?
The section states that: evidence may be given in any suit or
proceedings, of the existence or non-existence of every fact in
issue and of such other facts as are hereafter declared to be
relevant and of no other ….”. The provision in this section is that
such evidence shall not be allowed even if relevant but too remote
to be material and also if such person is disentitled to use it to
prove such fact by Law.

Earlier before now, there was no specified provision of the
evidence Act on computer generated evidence but as a result of the
problem generated in course of proceedings, the present Governor of
Bayelsa State, Chief Seriake Dickson, when he was at the House of
Representatives, presented the bill which culminated in the present
Evidence Act 2011.

The admissibility of statements in documents produced by
computers is dealt with under section 84 of the Evidence Act, 2011,
but before going further, it is important to know, the definition
of “document” as recognized under the Evidence Act. By virtue of
the provision of section 258 of the Evidence Act, 2011, document is
defined as including any devise by means of which information is
recorded, stored or retrievable including computer output. This
section which defines document is all encompassing as it mentioned
a lot of things*

The same section now further defines what computer is all about.
It states that it is any devise for storing and processing
information and any reference to information being derived from
other information is a reference to its being derived from it by,
comparison or any other process.[15]

Now, since we are discussing electronically generated evidence
generally, first, the basis of admissibility of this type of
evidence is sections 4-13 of the Evidence Act, 2011 which elaborate
on details of fact, popularly referred to as “relevancy of facts”.
It is important to state here that section 13 of the Act is of
serious relevance, when it states that where there is a question
whether a particular act was done, the existence of any course of
business, according to which it naturally would have been done, is
a relevant fact. Accordingly, cyber-space evidence and evidence of
course of business electronically becomes relevant under this
section.

From the above analysis, we have looked at the issue of
relevance of facts in electronic devise evidence; there is then the
need to move on to the issue of “admissibility”.

It is to be understood that, the Law is not automatic that once
a particular evidence is seen as “relevant” then it must be
admissible immediately. This was what led to the decision of the
court in the case of UBA PLC VS SANNI ABACHA FOUNDATION FOR PEACE
& UNITY & ORS where it was decided that in prosecution
dealing with section 14 of the Evidence Act 2011 evidence
improperly obtained or in contravention of law, or in consequence
of an improperly or of a contravention of Law, shall be admissible
unless, the court is of the view that admitting the evidence
outweighs the desirability of admitting it.

Now, this takes us to the question; “what are the criteria to be
used to determine desirability of admitting such electronic devise
evidence?

The answer to the above poser can be seen as answered by virtue
of section 15 of the Evidence Act, 2011 with a list of the criteria
thus;

The probative value of the evidence.
The importance of the evidence in the proceeding
The nature of the relevant offence, cause of action or defence
and the nature of the subject matter of the proceeding.
The gravity of the impropriety or contravention.
Whether the impropriety or contravention was deliberate or
reckless.
Whether any other proceeding (whether or not in a court) has
been or is likely to be taken in relation to the impropriety or
contravention.
The difficulty, if any of obtaining the evidence without
impropriety or contravention of law.

A careful appreciation of the intendment of the draftsmen in the
insertion of section 14 of the Evidence Act 2011 is to make sure
that wrong evidence are not admissible from the internet evidence
vis-à-vis other evidence connected thereto in relation to economic
crimes, the individuals and the economy.

Going further also on the new insertion in section 41 of the
Evidence Act 2011 formerly section 33(1)(b) of the repealed Act,
which added “electronic device” to the issue of “statements made in
the course of business”. The Learned author, Jerry Amadi[16] stated and we do agree with
him that in most places or private business ventures, computer
machines are utilised when you pay for goods and services, and
information are stored therein. These types of statement kept in
this form are admissible in evidence because, it shows
acknowledgement, written and signed receipt of money, goods
security or different sorts of properties.

COMPUTER GENERATED EVIDENCE
SPECIFICALLY

The admissibility of computer generated evidence is governed by
section 84 of the Evidence Act 2011, the word document is defined
as we have seen earlier under section 258 of the said Act and it
includes computer. Therefore section 84 of the Act provides as
follows;

In any proceedings, statement contained in a document produced
by a computer shall be admissible, as evidence of any fact stated
in it, which direct oral evidence would be admissible, if it is
shown that the conditions in subsection (2) of this section are
satisfied in relation to the statement and computer in
question.

From the wordings of section 84(1), it is clear that the
admissibility of the computer generated evidence can only sail
through only and if the conditions spelt out in section 84(2) of
the Act is fulfilled. Therefore, the question is “what are the
conditions section 84(1) of the Act is talking about? The
conditions will be clearer as we look at the said section 84(2)
which states thus;

“(2) The conditions referred to in
subsection (i) of this section are;

that the documents containing the statement was produced by a
computer during a period over which the computer was used regularly
to store or process information for the purpose of any activities
regularly carried on over that period, whether for profit or not,
by anybody, whether corporate or not, or by any individual;
that over that period, there was regularly supplied to the
computer in the ordinary course of those activities information of
the kind contained in the statement or of the kind contained in the
statement of the kind from which the information so contained is
derived;
that throughout the material part of that period, the computer
was operating properly or if not, that in any respect in which it
was not operating properly, or was out of operation, during that
part of that period, was not such as to affect the production of
the document or the accuracy of its contents and
that the information contained in the statement reproduces or
is derived from information supplied to the computer in the
ordinary course of those activities.

The next questions are; what about where the computers have been
changed, or where so many computers are networked together, or
where the networked computers have been changed over time but the
information supplied remains? The simple answer is that such
statements are still admissible. For ease of reference, we hereby
quote subsection 3 of section 84 of the Evidence Act 2011 thus;

(3) Where over a period, the
function of storing or processing information for the
purposes of any activities regularly
carried on over that period as mentioned in subsection (2) of this
section was regularly performed by computers, whether

(a) by a combination of computers operating
over that period;

(b) by different computers operating in
succession over that period

(d) in any other manner involving the
successive operation over that period, in whatever order, of one or
more computers and one or more computers and one or more computers
and one or more combinations of computers, all the computers used
for that purpose during that period shall be treated for the
purposes of this section as constituting a single computer;

and reference in this section to a computer shall be construed
accordingly.

(4) In any proceeding where
it is desired to give a statement in evidence by virtue of this
section, a certificate…

identifying the document containing the statement and
describing the manner in which it was produced.
giving such particulars of any device involved in the
production of that document as may be appropriate for the purpose
of showing that the document was produced by a computer;
dealing with any of the matters to which the conditions
mentioned in subsection (2) above relate, and purporting to be
signed by a person occupying a responsible position in relation to
the operation of the relevant device or the management of the
relevant activities, as the same may be, shall be evidence of the
matters stated in the certificate; and for the purposes of this
subsection it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person stating it.

(5) For the purposes of this
section-

(a) Information shall be
taken to be supplied directly to a computer if it

supplied to it any appropriate form and
whether it is supplied directly (with
or without human
intervention) by means of any appropriate equipment;

(b) where, the course of activities
carried on by any individual or body, information is supplied with
a view to its being stored or processed for the purposes of
activities by a computer operated otherwise than in the course of
those activities, that information, if duly supplied to that
computer, shall be taken to be supplied to it in the course of
those activities;

(c) a document shall be taken to
have been produced by a computer whether it was produced by it
directly or (with or without human intervention) by means of any
appropriate equipment.

It must be understood that going back to historical lane, these
provision of section 84 of the Evidence Act as reproduced was
actually suggested by the Nigerian Law Reform Commission as far
back as 1998 in section 84 of the proposed evidence Decree of that
year (note the retention of section 84 in both the Evidence Act
2011 and the proposed Evidence Decree 1998). This was abandoned for
a long time until the Governor of Bayelsa State decision to present
it, as a bill.

Professor Yemi Osinbajo stated that the stringent conditions
laid down are largely concerned with establishing that the device
from which the document was generated had been in regular, routine
and substantially free use during the period when the document was
produced[17]. The aim is that the stringent conditions are
intended to assist in resolving the difficulty of determining the
accuracy of documents so produced. Ultimately, they will also
assist in determining the weight to be attached to the document in
question. In fact, Professor Osinbajo stated further that the issue
covered by section 84, which are made conditions for admissibility,
should perhaps be more appropriately considered for affecting
“weight”[18]. We have also noted that section 84 also attempts
to take care of the personal knowledge obstacle by providing that
the data fed into the computer could either be by a human agent or
another device. There exist however basic defect, in the absence of
a requirement for verifying the accuracy of the input or data.
Section 84 must be criticized for its unnecessary complex
conditions for admissibility of computer output especially where
such are produced by the use of more than one computer[19].

We are conversant with the primary-secondary documentary
evidence distinction primarily regulated by section 85 of the
Evidence Act 2011. Section 85 allows the contents of a documents to
be proved either by primary or by secondary evidence, while section
88 is definite in providing that documents (as distinct from the
contents) shall be proved by primary evidence except in the cases
mentioned in the Evidence Act as where going by section 89, the
original of the document is in the possession or power of the
person against whom the document is sought to be proved, or the
original has been destroyed or lost, or the original is not easily
moveable, or the original is a public document which cannot
conveniently be examined in court and the fact to be proved is the
general result of the whole collection, or the document is an entry
in a bankers’ book.

Notwithstanding other forms of primary evidence, the Evidence
Act provided in section 89(1)-(3), section 86(4) makes specific
provision on the subject matter under review thus;

Where a number of documents have all been made by one uniform
process, as in the case of printing, lithography, photography,
computer or other electronic or mechanical process, each shall be
primary evidence of the contents of the rest; but where they are
all copies of a common original, they shall not be primary evidence
of the contents of the original.

A close scrutiny of section 87(b) reveals that copies made from
the original by mechanical or electronic processes which in
themselves ensure the accuracy of the copy and copies compared with
such copies shall be secondary evidence. It is our view, that by
the combine effect of sections 86(4) and 87(b), it would appear
that the Supreme Court decision in Anyeabosi v RT Briscoe[20] is no longer tenable.

Looking at the proof of execution of documents, we should look
at section 98 of the Evidence Act which states thus;

if a document is alleged to be signed or to have been written
wholly or in part by a person, the signature or the writing of so
much of the document as is alleged to be that person’s handwriting
must be proved to be his handwriting.
Where a rule of evidence requires a signature, or provides for
certain consequences if a document is not signed, an electronic
signature satisfies that rule of law or avoids those
consequences.
An electronic signature may be proved in any manner, including
by showing that a procedure existed by which it is necessary for a
person, in order to proceed further with a transaction, to have
executed a symbol or security procedure for the purpose of
verifying that an electronic record is that of the person.

It is to be understood also that section 84, in providing that
in any proceeding, a statement contained in a document produced by
a computer shall be admissible as evidence of any fact stated in
it, of which direct oral evidence would be admissible, put the
admissibility of a document produced by a computer under the rules
pertaining to oral evidence from sections 125-130 of the Evidence
Act, 2011. Section 125, for instance, provides that all facts,
except the contents of documents, may be proved by oral evidence;
and by section 126, oral evidence, subject to the rules of
relevancy and admissibility, must be direct if it refers to a fact
that could be been seen or to a fact that could be heard or to a
fact that could be perceived by any other sense or manner or if it
refer to an opinion or the grounds upon which that opinion is held;
but the opinion of an expert expressed in a treatise commonly
offered for sale may be proved by the production of the treatise.
Therefore, on a general note, parole evidence is disallowed in
respect of documentary evidence under section 128, except, where
any of the following is in issue: fraud, intimidation, illegality,
want of due execution, wrong dating, existence or want or failure
of consideration, mistake in fact or law, want of capacity to
contract, the existence of any separate oral agreement, the
applicability of any custom or usage, the proof of the
existence of a legal relationship and where the documentary
memorandum in question was not intended to have legal effect as a
contract, grant or disposition of property. It is correct to say
that evidence (presumably oral or otherwise) under section 129 may
be given to show that the meaning of illegible or unintelligible
characters in a document, to show the relationship of words in
document to acts and to show that the language of the documents
applies equally to more object than one. By the holistic reading of
section 130, the rule as to parole evidence applies only as between
parties to the document in question. It has no application where
third parties are involved.

The burden of proof in all civil matters shall be discharged on
the balance of probabilities (section 134 of the Evidence Act 2011)
while that in criminal proceedings is beyond reasonable doubt
(section 135 of the Evidence Act 2011). It is in the discharge of
the burden of proof, that, courts are minded to evaluate the
evidence before them in terms of the weight to be attached thereto.
Accordingly, as rule, a piece of evidence may be relevant and
admissible but may have little probative value in terms of its
weight. As we have earlier stated, that the stringent conditions
provided for in section 84 of the Evidence Act, 2011 more
appropriately affect the weight to be attached to the evidence than
the question of admissibility. It can be seen that the provision in
section 146(1) on presumptions are meant to assist in determining
authenticity of evidence. We should not forget that section 146 is
(on genuineness of certified copies of documents), section 153 is
on (presumption as to telegraphic and electronic messages), section
156 (on proper custody), etc.

The provision of section 153 is important and provides that;

The court may presume that a message forwarded from a
telegraphic office to the person to whom such message purports to
be addressed corresponds with a message delivered for transmission
at the office from which the message purport to be sent; but the
court shall not make any presumption as to the person by whom such
message was delivered for transmission.
The court may presume that an electronic mail server to the
addressee to whom the message purports to be addressed corresponds
with the message as fed into his computer for transmission; but the
court shall not make any presumption as to the person to whom such
message was sent.

Earlier before the amendment to the Evidence Act, especially in
road traffic offences, offenders could not be convicted on
uncorroborated evidence as to excessive speeding. By section 203,
this rule has been slightly altered. The section in subsection (i)
provides that;

A person charged under any road traffic legislation with driving
at a speed higher than the allowed maximum, shall not be convicted
solely on the evidence of one witness that in the opinion of the
witness he was driving at such speed;

Provided that a duly authorized officer of the (Nigeria Police
Force, Federal Road Safety Commission or any other body charged
with legislation) who was at the time commission of the offence
operating any mechanical, electronic or other device for the
recording of the speed of a moving vehicle, the record of such
device being additionally tendered in evidence against the
defendant, shall not require further corroboration.

Notwithstanding the important provisions of the new Evidence Act
2011, challenges do exist. For instance, the Law of evidence is
generally discussed within the realm of procedural Law as distinct
from substantive law. In this sense, procedural law is meant to
give effect and sustenance to the substantive law. To reform
procedural law without reference to the substantive law, is
strictly speaking, putting the cart before the horse. In the work
of cyberspace transactions, Nigeria is yet to enact the substantive
rules of engagement that should regulate those transactions

ADMISSIBILITY OF SOCIAL MEDIA EVIDENCE

As a result of the general usage of mobile devises and
popularity of social media through mobile devises, it has become
necessary to look at the admissibility of social media evidence. We
have seen that social media, website has to do with, Badoo,
Facebook, Messenger, Google, Goggle +, Instagram, Linkedin,
Twitter, Whatsapp, etc, all these platforms are possibly prone to
be an issue that can lead to a civil or criminal case in court. For
example, businesses/contract in court take place through any of
this platform, bloggers even advertise goods and services for
individuals, government and private organizations through social
media and other economic crimes vis-à-vis related crimes are
committed through the use of social media.

First and foremost, it is important to state that the GSM
(global system for mobile communication) performs various functions
such as;

It can record conversation and store information
received/communications between parties.
It is through it, you can access social media platform
comfortably even though most computers can grant you access to
social media.
It enables you to use it as a computer because in most
instances, what a normal computer does is what it does too. It is
in itself another form of computer.

Therefore, the question arising is; “how will the court admit
social media evidence?” “First and foremost, if we define social
media as a form of electronic communication”, the question further
is; can social media operate without using a form of computer? The
simple answer is that it is not possible as it must go through the
internet and the internet cannot work except through the use of
computer, meanwhile an example of what computer entails is GSM or
mobile devises.

From the above analysis, it is not in doubt that the rule
governing computer generated evidence is what will govern the
admissibility of social media evidence. This social media evidence
may have to do with;

The record of criminal activities posted on a social
media.
A defamatory publication against a person through social
media.
The famous “hate speech” publication through social media
The sealing of contract through social media
The issuance of receipt of payment through social media
The posting of pictures of events/ceremonies through social
media.
The short text messages.

There are lots of unending examples of the use of social media
which may require the admissibility of such evidence in our court
but the question is; how will such evidence be admissible?

We submit that the admissibility of this type of evidence will
come under section 84 of the evidence Act 2011.

For the purpose of tendering this type of evidence, especially
as it is another form of computer generated evidence, there is the
need to print out messages of social media contained in the G.S.M
in order to make sure, it can first of all qualify as primary
evidence of documentary evidence.

Since Section 258(i)(d) of the Evidence Act 2011, defines
document to include, “any devise by means of which information is
recorded, stored or retrievable including computer, computer
output, therefore we strongly say that in the court, the GSM
equipment/gadget or telephone itself can be tendered in evidence
and at the same time, the message or messages, vis-à-vis the
information inside it can equally be tendered in evidence as
documentary evidence.

The question is, what will the person seeking to tender such
evidence do? The simple answer to this is that whoever sought to
tender it ought to read the message to the court or he may have
been taken to have read the same. In the case of R Vs
Neville[21] the print out which
was tendered by the prosecution was the record of a GSM, which was
networked with a computer through which the uses of the GSM was
recorded in the computer. The second computer was also made used
for billing through which printout was made. The court held that
the printout was admissible and oral evidence is allowed to be
given on the effect that the computers were working properly.

The rules applicable to documentary evidence is applicable to
admissibility of GSM devise which is applicable to social media
evidence but in addition, the conditions of admissibility of
computer generated evidence under Section 84 and or Section 153(2)
of the Evidence Act 2011 is applicable

ADMISSIBILITY OF FORENSIC SCIENCE EVIDENCE

Accordingly to Dr. Victor. W. Weedn, forensic science is
generally dated to Hans Gross Handbuch fur Untersuchungstrichter,
Polizeibeante, Gendarmen (Hand book for Magistrates, Police
Officials, Military, Policemen), which was published in 1893, but
it must be understood that forensic medicine and forensic
toxicology are much more older than the said forensic science
[22] which is general. Edmond
Locard was the first to establish crime laboratory in 1940 in lyon,
France. The FBI crime laboratory was established in 1932.[23]

As a general rule in Nigeria, opinions of witnesses are
inadmissible as far as Section 67 of the Evidence Act 2011 is
concerned, but there are exceptions provided for under sections
68-76 of the Evidence Act especially under Section 68 which states
thus;

“when the court has to form an opinion upon a point of
foreign law, customary law, or custom, or of science or art or as
to identity of hand writing or finger impressions, the opinions
upon that point of persons specially skilled in such foreign law,
customary law, or custom or science or art or in questions as to
identity of hand writing or finger impressions are
admissible.”

“Persons specially skilled as mentioned in subsection (1) of
the section are called experts.

Who is then an Expert?

The word “expert” has been defined as a person who is specially
skilled, trained or has acquired particular experience in any of
the fields mentioned in the relevant section of the evidence Act
quoted above. It can be safely said that an expert becomes an
expert witness in a case he is called to give evidence, on the
basis of his qualification or experience as was decided in the case
of Shell Petroleum Development Co (Nig) Ltd v Tiebo (1996) 4 NWLR
(part 445) page 657.

An expert witness called by a party in a case, is a witness of
the party who has called him as a witness but the primary duty of
such an expert witness is how to assist the court to arrive at a
just decision of a case. The expert must satisfy the judge that he
has the required professional qualification or experience and the
kind of job he does, falls within the scope of the area dealing
with such evidence.

The court however has discretion whether or not to accept and be
bound by such expert evidence. This was the decision in the case of
Okoh v The State (1971) NWLR page 140. Where conflicts of opinion
arise in experts’ evidence before the court, the court has a
discretion as to which to the two to rely upon.

Therefore, it is not in doubt that expert evidence must be
direct evidence of the expert, who gives such evidence as provided
for under Section 126 of the Evidence Act 2011 which are thus;

(d) If it refers to an opinion or to the
grounds on which that opinion is held, it must be the evidence of
the person who holds that opinion on those grounds; provided that
the opinions of experts expressed in any treatise commonly offered
for sale and grounds on which such opinions are held, may be proved
by the production of such treatise if the author is dead or cannot
be found, or has become incapable of giving evidence, or cannot be
called as a witness without an amount of delay or expense which the
court regards as unreasonable.

The evidence of forensic science expert was admitted in the case
Dr Kayode Fayemi & Ors v. Engr Segun Oni & ors (2009) 7
NWLR (part 1140) page 223, the election according to the petitioner
was fraught with irregularities, massive rigging and all manner of
electoral malpractices.

Before Dr Kayode Fayemi case, the first time the service of the
Forensic expert (Forty) was used in post-election litigation in
Nigeria was through the case of Olusegun Mimiko & Ors v Chief
Olusegun Agagu & ors (2009) 7 NWLR (part 1140) page 342, the
court used the practice direction made pursuant to the Electoral
Act, 2006, to admit Forty’s report having passed the test of
relevancy and admissibility, notwithstanding the objection of the
Respondents to the admissibility of the report. This admissibility
of the report assisted the petitioner to succeed in proving his
case. The forensic evidence showed that the ballot papers were
subjected to forensic analysis to determine the genuineness of the
thumbprints on them.

It is to be understood that, forensic techniques such as DNA
report, osteology, neuropathology, crime scene photograph,
ballistics, criminal Profiling among other techniques are often
utilized to unravel criminal incidents and the reports including
oral evidence are given on this issue[24].

Judicial Disposition in DNA Evidence

Although some courts initially are said to have refused DNA test
results because of perceived flaws,[25] DNA evidence is now universally admitted by
court. Once the samples are properly collected and analyzed, an
observer may state with a high degree of confidence that that
profiles are correct. DNA testing has been used to exonerate those
convicted of offences while DNA has equally been used to convict
others. The court usually subject DNA evidence to rigorous
evaluation standard Judicial Dispensations of Questions Relating to
drug identification.

There are countless use of forensic science in forensic evidence
Act used to prove drug issue in Nigeria and other countries. Once
the drug is seized, it should be taken to the laboratory for
testing to reveal which type of drug it is and whether it is even
drug or not. Unfortunately, in Nigeria, instead of bringing the
forensic expert to testify, the exhibit keeper is made to use the
UN test kit to test run the drug first, he then send same to Lagos
to be tested and confirmed in Lagos, who now send the result back
to the NDLEA state branch or branches, there are also this expert
evidence usually admitted in the court judicial disposition of
Finger Print impressions.

This is also forensic evidence and it is provided for in the
evidence Act. What it means is that an hand-writing expert can give
such evidence once the evidence is credible and properly analysed.
The combine reading of Sections 68 and 72 of the Evidence Act 2011
will show that both the evidence of experts and Non-Experts
including that of the Judge are admissible. In the case of
Ize-Iyamu V Alonge[26] the court of Appeal held that the opinions of
handwriting experts are admissible to decipher words beneath
obliterations, erasures or alterations, otherwise it is for the
court to determine what the words connote.

JUDICIAL DISPOSITIONS ON MEDICAL EVIDENCE.

This is provided for also under Section 68 of the Evidence Act,
2011 and medicine, being a core aspect of forensic science is
relevant in this regard. One particular area of medicine, often
used in giving evidence is on homicide trials or in magistrate
court, bodily injury causing grievous harm (assault and or
battery)

In the case of Akinfe v The State [27] the Supreme Court case, the Appellant who was
standing trial for murder admitted administering Garmaline 20, an
acclaimed poison on the deceased, The deceased died four days
later. However, in between the time of taking the alleged poisonous
liquid and her death, the deceased had taken other concoctions
prepared by one Ijebu man and she also had undergone treatment in
other hospitals before her death. Autopsy was carried out but not
tendered; the doctor did not also give evidence on the Autopsy
performed. The report of forensic expert was tendered, it did not
say, Gamalin 20 could kill. The Appellant conviction was
quashed.

SUMMARY

We have been able to show that the topic under reference has do
with the admissibility of evidence as it relates to electronic
devise, social media[28] and forensic science under sections 84(1) (b) and
(ii), 84(1)-(3), 84(4), 98-101, 153 and 258(i) (d) among other
provisions of the evidence Act 2011.

We have equally seen that the topic under reference has to do
with documentary evidence especially admissibility of computer
generated evidence, and the issues of expert evidence under the
Law, as provided for in section 57(1) and (2) and section 68. This
we did because of the issue of forensic evidence which may or may
not be computer generated.

We also took time to look at the relationship of sections 85-87
of the Evidence Act, 2011 in relation to electronically generated
evidence especially as it has to do with primary and secondary
evidence.

Under section 84 of the evidence Act, 2011, we have seen that
when leading a witness, in evidence, for the document computer
generated to be admissible, the witness has to state the
followings;[29]

That I know as fact that the document sought to be tendered was
produced by the computer which said computer has been in operation
for about two (2) years and we regularly store the information
retrieved and other information regularly in our said computer for
about two (2) years now.
That over the period of about two years, there was regular
supply of information about the document sought to be tendered,
including other information in our usual way of receiving supply of
information in our computer.[30]

(iii) That within the said period of two years, I earlier
mentioned, my (Lord or Your Worship), up till now, the
computer through which the document sought to be tendered was
operating properly.[31]

(iii) (a) That within the said period of two years, I
earlier mentioned, My (Lord) or Your (Worship), it was not
operating properly as we repaired it several times, but that even
during the repair or when it was not operational, the repair was
properly carried out, the repair/non-operational period did not
affect the production of the document ‘computerly’ generated which
is being sought to be tendered and the accuracy of the contents of
the document sought to be tendered is not affected at all.[32]

(iv) That we usually use the said computer to gather various
information supplied to the internet from various information
worldwide such as Google, Whatsap, text messages, GSM messages,
video-records, companies and institutional records and our staffs
record both input and output, and the document sought to be
tendered is the information reproduces and generated from this
computer of ours, I have mentioned.[33]

In the case of Computer Network[34]

(1v(a) That document sought to be tendered was produced through
the combination of computers operating for about two years[35]

(b) That document sought to
be tendered was produced through different computers changed at
different times but each time information in one is transferred to
the other one used in changing the other[36]

That different computers are use together and are changed at the
same time with other computers but that the same information is
contained in each as at the time they were changed[37]

That all the computers used from one office to the other and all
the departments and officers are net worked together and with the
same information where the document sought to be tendered is
derived from, as all the computers generally are seen and treated
as one single computer and the mention of a particular computer in
this transaction refers to one single computer, as a whole[38]

That there is electronic signature through which there is be a
signature, a symbol or security procedure [39]

For certificate

(v(i) That I have a certificate produced which identifies the
statement and describing the manner in which the document was
produced[40]

(ii) That the particulars of the devise used showing the devise
is computer and appropriate for use and it is;[41]

…Computer Model, with No …… of 2017 model

(iii) That I am personally occupying the (responsible) office of
where the computer was produced and as Chairman/Managing Director
of the company/establishment and my signature is there on the
document[42]

That this information is to the best of my knowledge and belief
.[43]

RECOMMENDATIONS

It is accordingly recommended that our judges, Magistrates, and
other classes of judicial officers who are mandated to apply the
technical rules of evidence including legal-practitioners must be
empowered through training to be able to acquire more ideas on
forensics in this regard.

There should be significant time devoted to identifying issues
in relation to electronic data involved in litigation. This must be
addressed at the earliest stage. This should be at the stage of
information gathering. This is because electronic evidence is
becoming more important in litigation. There may be need for
additional discovery to authenticate the use of electronic
evidence.

There ought to be a definition section in section 84 of the
Evidence Act and not to take the definition of computer generated
evidence to section 258(1) of the Evidence Act. Furthermore, the
word “document” should have also gone to Section 83 to specifically
define what a document is. No wonder, section 258 has 258(1) a-d,
and another a-d, and another a-b. the question is; How do you now
cite the Section properly in Law that will look legalistic and
perfect? Are we going to say; section 258(1) a-d of another a-d and
of a further a-d? it is recommended that the appropriate changes be
effected otherwise, there will certainly be confusion in citing the
appropriate section of the law.

There is the need for the evidence Act to incorporate the issue
of electronic recorded video evidence of confessional statement of
the Defendant (Accused Person) which is recognized in the
administration of Criminal Justice Act of most states of the
Federation. It is suggest that the provision of the evidence Act
dealing with confessional statement ought to be amended to
incorporate the new video electronic record of confessional
statement. There is therefore the need to incorporate this in
Section 29 of the evidence Act. Vis-à-vis Section 31 in order to
make confessional statement more reliable.

The numerous conditions attached to computer generated
evidence/documents as well as its being subjected to the
classification of being private or public document remain
unfortunate to the development of this area of the law as this is
cumbersome in being fulfilled. It is accordingly recommended that
it is better if every internet generated document is made
admissible in evidence. There is every likely hood that a public
authority may refuse to certify documents generated through the
websites and this may cause injustice[44]

The electronically generated evidence should allow a mark or
signature or indication to be accepted as signature.

The issue of admissibility should not be of too much burden.
The court should bother more about the issue of weight to be
attached to the documents.

Lawyers, Judges, Magistrates, Academicians of Law, should
devote more time in writing specific books and articles on this
important topic and more seminars/conferences should be organized
on this issue.

For the purpose of cyber investigations, Nigeria should follow
the example of India, where, its section 79A of the I.T (Amendment
Act) 2008, empowers the Central government to appoint any
department or agency of Central or state government, as examiner of
Electronic Evidence. This agency will play crucial role in
providing expert opinion on electronic form of evidence

CONCLUSION

It is not in doubt that the admissibility of evidence as it
relates to electronic devises, social media and forensic science
has gained tremendous importance in trial of cases both civil and
criminal in our courts, the new evidence Act 2011 having
incorporated same in the Act which was not specifically provided
for in the earlier evidence Act 2004.[45] This has made proceedings in court much better in
terms of admissibility of the same but there are still areas of
deficiency which requires improvements.

BIBLIOGRAPHY

BOOKS/INTERNET MATERIALS

CROSS ON EVIDENCE, 9^TH EDITION (LONDON. BUTTER
WORTH) 1999 AT P1
PHIPSON ON EVIDENCE 17^TH EDITION, 2010, HODGE M.
MALEKED (SWEET MAXWELL P.1
LAWRENCE ATESEGBUA, LAW OF EVIDENCE, (JUSTICE JECOPRINTING
& PUBLISHING GLOBAL) 2012, P.4
JARRY AMADI; CONTEMPORARY LAW OF EVIDENCE IN NIGERIA VOL. 1,
PUBLISHED BY PEARL PUBLISHERS, 2012, PAGES 359-360
HON (SAN) ON LAW OF EVIDENCE IN NIGERIA 2012 VOL. 1, PAGES
468-521
DR VICTOR. W. WEEDN, IS THE SENIOR FORENSIC ADVISOR TO THE
DEPUTY ATTORNEY GENERAL, OFFICE OF THE DEPUTY ATTORNEY GENERAL. THE
ARTICLE IS TITLED; RECENT DEVELOPMENTS IN THE FORENSIC SCIENCE,
UNITED STATES ATTORNEY BULLETIN JANUARY, 2017
COLLINS OBIOMA CHIJOKE; THE LAW AND PRACTICE OF AFFIDAVIT AND
DOCUMENTARY IN NIGERIA; PUBLISHED BY E-KLANBOOKS 2015 PG 88-91
YEMI OSIBANJO (SAN) “ELECTRONICALLY GENERATED EVIDENCE” IN AFE
BABALOLA; LAW & PRACTICE OF EVIDENCE IN NIGERIA. 2011 AT PAGES
243-273 ESPECIALLY AT PAGES 243-244
ELECTRONIC DEVISES HTTPS//WWW.QUORA.COM ACCESSED THROUGH NET ON
22/3/2018
DIGITAL DEVISES: YOUR DICTONARY.COM ACCESSED ON THE NET ON
23/3/2018 AT 5:PM
SOCIAL MEDIA DEFINITION; HTTPS://WWW.MERIAM-WEBSTAR.COM
SOCI…….ACCESSED THROUGH THE NET ON 23/3/2018 AT 6.PM
SOCIAL MEDIA EXAMPLES; HTTPS//DELVALLE.BPHC.ORG ACCESSED
THROUGH THE NET ON 23/3/2018 AT 8PM.
HTTPS://EN.M.WIKIPEDIA.ORG. WIKI FOREN. ACCESSED ON WEDNESDAY
THE 21/3/2018 AT 23.58PM
CRIME SCENE INVESTIGATOR ANALYSIS: 2018, HTTPS://WWW.CRIMESCENEINVESTIGATOREDU.OG Accessed net
at 12:05 on 27/3/2018
BLACKS LAW DICTIONARY, 8^TH EDITION BY BRYAN.A.
GARNER PAGES 595 AND 676
JEAN MARIE MORGAN: PROVING GENOCIDE: FORENSIC ANTHROPOLOGISTS
ROLE IN DEVELOPING EVIDENCE TO CONVICT THOSE
RESPONSIBLE FOR GENOCIDE: HTTP//DIGNOLE.LIB
FSU.EDU/CGI/VIEWCONTENT.CGI?ARTICLE-6617 & CONTEXT ETD ACCESSED
THROUGH NET ON 25/3/2018 at 9pm
KEHINDE ADEGBITE; LAW AND FORENSIC: TECHNIQUES OF EVIDENCE
GATHERING AND CASE PRESENTATION IN COURT: NIGERIAVILLAGESQUARE.COM)
ARTICLES ACCESSED THROUGH THE INTERNET ON 23/3/2018 AT 3.30AM

CASE LAWS

AWUSE VS ODILI (2005) 16 NWLR (PT 952) PG 416
TAYLOR V HOWARD III RI 527, 204, A2D 891 891”
EZE VS OKOLOAGU(2010) 3 NWLR (PT 1180) PG 183
MILT GOVERNOR V SANI (NO. 2) (1989) 4 NWLR (PT 117) 624,
LAWAL V UNION BANK OF NIGERIA PLC 1995) 2 NWLR (PT 378)
407
UBA PLC VS SANNI ABACHA FOUNDATION FOR PEACE & UNITY &
ORS (2004) NLWR (PT 861) PG 516 AT 542-543
SHELL PETROLEUM DEVELOPMENT CO (NIG) LTD V TIEBO (1996) 4 NWLR
(PART 445) PAGE 657
ANYEABOSI V RT BRISCOE (1987) 6 SC 15
DR KAYODE FAYEMI & ORS V. ENGR SEGUN ONI & ORS (2009) 7
NWLR (PART 1140) PAGE 223
OLUSEGUN MIMIKO & ORS V CHIEF OLUSEGUN AGAGU & ORS
(2009) 7 NWLR (PART 1140) PAGE 342,
NZE IYAMU V ALONG (2007) ALL FWLR (PART 371) PAGE 1570
AKINE V THE STATE (1988) 7 SCNJ (PART II) PAGE 226
KUBOR V DICKSON (2013) 4 NWLR (PART 1345) PG 534
CASTRO 545 NYS 2D 985. (N.Y. SUPGT 1989)
NUBA COMMERCIAL FARMS LTD VS NAL MERCHANT BANK & ANOR,
(2001) NWLR (PT 816) PG 516

STATUTES

SECTION 84(2) (A) OF THE EVIDENCE ACT 2011
SECTION 84(2) (B) OF THE EVIDENCE ACT 2011
SECTION 84(2) (C) OF THE EVIDENCE ACT 2011
SECTION 84(2) (C) OF THE EVIDENCE ACT 2011
SECTION 84(2) (D) OF THE EVIDENCE ACT 2011
SECTION 84(3) (A) OF THE EVIDENCE ACT 2011
SECTION 84(3) (B) OF THE EVIDENCE ACT 2011
SECTION 84(3) (C) OF THE EVIDENCE ACT 2011
SECTION 84(3) (D) OF THE EVIDENCE ACT 2011
SECTION 93(1), (2) AND (3) OF THE EVIDENCE ACT 2011
SECTION 84(4) (A) OF THE EVIDENCE ACT 2011
SECTION 84(4) (B) OF THE EVIDENCE ACT 2011
SECTION 84(4) (C) OF THE EVIDENCE ACT 2011
SECTIONS 84(4) (C) LAST TWO LINES OF THE EVIDENCE ACT 2011
SECTION 98-101 OF THE EVIDENCE ACT 2011
SECTION 258 OF THE EVIDENCE ACT 2011
SECTION 57 OF THE EVIDENCE ACT 2011
SECTION 68 OF THE EVIDENCE ACT 2011
SECTIONS 85-87 OF THE EVIDENCE ACT 2011

[1] Cross on evidence,
9^th Edition (London. Butter worth) 1999 at p1

[2] 8^th Edition, Pg
595

[3] Phipson on evidence
17^th edition , 2010, Hodge M. Maleked (sweet Maxwell
p.1

[4] Lawrence Atesegbua, Law of
evidence, (Justice Jecoprinting & Publishing Global) 2012,
P.4

[5] (2005) 16 NWLR (pt 952)
416

[6] (2010) 3 NWLR (pt 1180)
183

[7]Electronic devises
https//www.quora.com accessed on the net on 23/2/2018 at 4pm

[8] Digital devises :
www.yourdictonary.com accessed on the net on 23/2/2018 at 5:pm

[9] Social media Definition;
https://www.meriam-webstar.com soci…….accessed on net 23/3/2018 at
5:15pm

[10] Social media examples;
https//delvalle.bphc.org accessed through the net on 23/3/2018 at
net 6pm.

[11]
https://en.m.wikipedia.org. wiki foren. Accessed on Wednesday the
21/3/2018 at 23.58pm.

[12] Crime scene
Investigator Analysis: 2018, https://www.crimesceneinvestigatoredu.og accessed on
net on 26/3/2018 at 12 noon.

[13] Ibid

[14] Blacks law dictionary,
8^th Edition by Bryan.A. Garner page 676.

[15] (2004) 3 NWLR (pt 861) pg
516 at 542-543

[16] Jerry Amadi; Contemporary
Law of Evidence in Nigeria Vol. 1, Published by pearl publishers,
2012, pages 359-360 see also ST. Hon (SAN) on Law of Evidence in
Nigeria 2012 Vol. 1, pages 468-521

[17] Yemi Osinbajo (2001), op.
cit at p. 269 17 Ibid at p. 272

[18] Ibid at p. 272

[19] Ibid

[20] (1987) 6 SC 15.

[21] (1991) Crim. LR 288

[22] Dr Victor. W. Weedn, is the
Senior Forensic Advisor to the Deputy Attorney General, office of
the Deputy Attorney General. The article is titled; Recent
Developments in the Forensic science, United States Attorney
Bulletin January, 2017

[23] Jean Marie Morgan:
Proving Genocide: Forensic Anthropologists Role in Developing
Evidence to convict those responsible for
Genocide: http//dignole.lib
fsu.edu/cgi/viewcontent.cgi?article-6617&context=etd accessed
through net on 25/3/2018

[24] Kehinde Adegbite; law and
forensic: Techniques of Evidence gathering and case presentation in
court: www.nigeriavillagesquare.com) articles
accessed through the internet on 23/3/2015 at 3.30am

[25] See Castro 545 NYS 2d 985
(N.Y. Sup ct 1989) hearings held over 12 weeks featuring a total;
of 10 expert witnesses in admissibility of DNA evidence.

[26] (2007) All FWLR (part 371)
page 1570

[27] (1988) 7 SCNJ (PART ii) PAGE
226

[28] Dr. Collins Obioma Chijoke;
The Law and Practice of Affidavit and documentary evidence in
Nigeria; Published by E-Klanbooks 2015 pg 88-91

[29] The video evidence of the
notorious Kidnapper Evans confessional statement was played in
court and the channel TV relayed/played same in court at 2.56pm.
the case was subsequently adjourned to the 23^rd and
27^th days of April, 2018 for continuation

[30] Section 84(2)(a)

[31] Section 84(2)(b)

[32] Section 84(2)(c)

[33] Section 84(2)(c)

[34] Section 84(2)(d)

[35] Section 84(3)(a)

[36] Section 84(3)(b)

[37] Section 84(3)(c)

[38] Section 84(3)(d)

[39] Section 93(1),(2) and
(3) where there is the need to prove a person sign a document.

[40] Section 84(4)(a)

[41] Section 84(4)(b)

[42] Section 84(4)(c)

[43] Section 84(4)(c) last
two lines.

[44] See Kubor Vs
Dickson; ()2013 4 NWLR (Part 1345) Pg. 534 at 5778 paras D –E,
where the supreme court said that the only admissible secondary
evidence of a public document is a certified true copy of the same.
That Exhibit D, which was an internet print out of the public
Newspaper was in the nature of secondary evidence of the original
by reason of sections 85 and 87(a) of the evidence Act 2011 and
Sections 90(1)(c) and 102(b) of the Act requires only certified
true copy of the secondary evidence and non other that is
admissible. Therefore, Exhibits D and L are worthless and
inadmissible.

[45] Nuba Commercial Farms Ltd Vs
NAL Merchant Bank Anor (2001) NWLR (Part 861) Pg 516