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| Prof. A. Amuda-Kannike (SAN) |
A PAPER
PRESENTED BY PROF. AMUDA-KANNIKE ABIDOUN (SAN) AT THE CONFERENCE ORGANIZED BY
THE MAGISTRATE ASSOCIATION OF NIGERIA (MAN), BAYELSA STATE CHAPTER, WHICH WAS
HELD AT THE MULTI-DOOR COURT HOUSE, HIGH COURT COMPLEX, OVOM, YENOGOA ON
THURSDAY 12TH DAY OF APRIL, 2018.
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, 7th 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]
(i)
Trace
evidence Analysis
(ii)
Forensic
Toxicology
(iii)
Forensic
Psychology
(iv)
Forensic
Podiatry
(v)
Forensic
Pathology
(vi)
Forensic
Optometry
(vii)
Forensic
Odontology
(viii)
Forensic
Linguistic
(ix)
Forensic
Botany
(x)
Forensic
DNA Analysis
(xi)
Forensic
engineering
(xii)
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]
(i)
The
examination of physical evidence in the administration of tests
(ii)
The
administration of tests
(iii)
The
interpretation of data
(iv)
The
clear and concise reporting
(v)
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;
(a) The probative
value of the evidence.
(b) The importance
of the evidence in the proceeding
(c) The nature of
the relevant offence, cause of action or defence and the nature of the subject
matter of the proceeding.
(d) The gravity of
the impropriety or contravention.
(e) Whether the
impropriety or contravention was deliberate or reckless.
(f)
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.
(g) 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;
(1) 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;
(a)
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;
(b)
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;
(c)
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
(d)
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
(c) by different combinations of computers
operating in succession over that period; or
(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…
(a)
identifying
the document containing the statement and describing the manner in which it was
produced.
(b)
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;
(c)
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;
(1) 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.
(2) 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.
(3) 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;
(1) 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.
(2) 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;
(i)
It
can record conversation and store information received/communications between
parties.
(ii)
It
is through it, you can access social media platform comfortably even though
most computers can grant you access to social media.
(iii)
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;
(i)
The
record of criminal activities posted on a social media.
(ii)
A
defamatory publication against a person through social media.
(iii)
The
famous “hate speech” publication through social media
(iv)
The
sealing of contract through social media
(v)
The
issuance of receipt of payment through social media
(vi)
The
posting of pictures of events/ceremonies through social media.
(vii)
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]
(i)
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.
(ii) 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]
OR
(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]
(iv)
That this information is to the best of my knowledge
and belief .[43]
RECOMMENDATIONS
1.
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.
2.
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.
3.
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.
4.
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.
5.
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]
6.
The
electronically generated evidence should allow a mark or signature or
indication to be accepted as signature.
7.
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.
8.
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.
9.
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.
PROFESSOR A.
AMUDA-KANNIKE (SAN)
E-mail:
amudakannikeabiodun@gmail.com
Tel
No: 08033256756
BIBLIOGRAPHY
BOOKS/INTERNET
MATERIALS
1.
CROSS
ON EVIDENCE, 9TH EDITION (LONDON. BUTTER WORTH) 1999 AT P1
2.
PHIPSON
ON EVIDENCE 17TH EDITION, 2010, HODGE M. MALEKED (SWEET MAXWELL P.1
3.
LAWRENCE
ATESEGBUA, LAW OF EVIDENCE, (JUSTICE JECOPRINTING & PUBLISHING GLOBAL)
2012, P.4
4.
JARRY
AMADI; CONTEMPORARY LAW OF EVIDENCE IN NIGERIA VOL. 1, PUBLISHED BY PEARL
PUBLISHERS, 2012, PAGES 359-360
5.
ST.
HON (SAN) ON LAW OF EVIDENCE IN NIGERIA 2012 VOL. 1, PAGES 468-521
6.
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
7.
DR.
COLLINS OBIOMA CHIJOKE; THE LAW AND PRACTICE OF AFFIDAVIT AND DOCUMENTARY IN
NIGERIA; PUBLISHED BY E-KLANBOOKS 2015 PG 88-91
8.
PROF.
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
9.
ELECTRONIC
DEVISES HTTPS//WWW.QUORA.COM ACCESSED THROUGH NET ON 22/3/2018
10.
DIGITAL
DEVISES: WWW.YOUR DICTONARY.COM
ACCESSED ON THE NET ON 23/3/2018 AT 5:PM
11.
SOCIAL
MEDIA DEFINITION; HTTPS://WWW.MERIAM-WEBSTAR.COM SOCI…….ACCESSED THROUGH THE
NET ON 23/3/2018 AT 6.PM
12.
SOCIAL
MEDIA EXAMPLES; HTTPS//DELVALLE.BPHC.ORG ACCESSED THROUGH THE NET ON 23/3/2018
AT 8PM.
13.
HTTPS://EN.M.WIKIPEDIA.ORG.
WIKI FOREN. ACCESSED ON WEDNESDAY THE 21/3/2018 AT 23.58PM
14.
CRIME
SCENE INVESTIGATOR ANALYSIS: 2018, HTTPS://WWW.CRIMESCENEINVESTIGATOREDU.OG
Accessed net at 12:05 on 27/3/2018
15.
BLACKS
LAW DICTIONARY, 8TH EDITION BY BRYAN.A. GARNER PAGES 595 AND 676
16.
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
17.
KEHINDE
ADEGBITE; LAW AND FORENSIC: TECHNIQUES OF EVIDENCE GATHERING AND CASE
PRESENTATION IN COURT:
WWW.NIGERIAVILLAGESQUARE.COM) ARTICLES ACCESSED THROUGH THE INTERNET ON
23/3/2018 AT 3.30AM
CASE
LAWS
1.
AWUSE
VS ODILI (2005) 16 NWLR (PT 952) PG 416
2.
TAYLOR
V HOWARD III RI 527, 204, A2D 891 891”
3.
EZE
VS OKOLOAGU(2010) 3 NWLR (PT 1180) PG 183
4.
MILT
GOVERNOR V SANI (NO. 2) (1989) 4 NWLR (PT 117) 624,
5.
LAWAL
V UNION BANK OF NIGERIA PLC 1995) 2 NWLR (PT 378) 407
6.
UBA
PLC VS SANNI ABACHA FOUNDATION FOR PEACE & UNITY & ORS (2004) NLWR (PT
861) PG 516 AT 542-543
7.
SHELL
PETROLEUM DEVELOPMENT CO (NIG) LTD V TIEBO (1996) 4 NWLR (PART 445) PAGE 657
8.
ANYEABOSI
V RT BRISCOE (1987) 6 SC 15
9.
DR
KAYODE FAYEMI & ORS V. ENGR SEGUN ONI & ORS (2009) 7 NWLR (PART 1140)
PAGE 223
10.
OLUSEGUN
MIMIKO & ORS V CHIEF OLUSEGUN AGAGU & ORS (2009) 7 NWLR (PART 1140)
PAGE 342,
11.
NZE
IYAMU V ALONG (2007) ALL FWLR (PART 371) PAGE 1570
12.
AKINE
V THE STATE (1988) 7 SCNJ (PART II) PAGE 226
13.
KUBOR
V DICKSON (2013) 4 NWLR (PART 1345) PG 534
14.
CASTRO
545 NYS 2D 985. (N.Y. SUPGT 1989)
15.
NUBA
COMMERCIAL FARMS LTD VS NAL MERCHANT BANK & ANOR, (2001) NWLR (PT 816) PG
516
STATUTES
1.
SECTION
84(2) (A) OF THE EVIDENCE ACT 2011
2.
SECTION
84(2) (B) OF THE EVIDENCE ACT 2011
3.
SECTION
84(2) (C) OF THE EVIDENCE ACT 2011
4.
SECTION
84(2) (C) OF THE EVIDENCE ACT 2011
5.
SECTION
84(2) (D) OF THE EVIDENCE ACT 2011
6.
SECTION
84(3) (A) OF THE EVIDENCE ACT 2011
7.
SECTION
84(3) (B) OF THE EVIDENCE ACT 2011
8.
SECTION
84(3) (C) OF THE EVIDENCE ACT 2011
9.
SECTION
84(3) (D) OF THE EVIDENCE ACT 2011
10.
SECTION
93(1), (2) AND (3) OF THE EVIDENCE ACT 2011
11.
SECTION
84(4) (A) OF THE EVIDENCE ACT 2011
12.
SECTION
84(4) (B) OF THE EVIDENCE ACT 2011
13.
SECTION
84(4) (C) OF THE EVIDENCE ACT 2011
14.
SECTIONS
84(4) (C) LAST TWO LINES OF THE EVIDENCE ACT 2011
15.
SECTION
98-101 OF THE EVIDENCE ACT 2011
16.
SECTION
258 OF THE EVIDENCE ACT 2011
17.
SECTION
57 OF THE EVIDENCE ACT 2011
18.
SECTION
68 OF THE EVIDENCE ACT 2011
19.
SECTIONS
85-87 OF THE EVIDENCE ACT 2011
[1]
Cross on evidence, 9th Edition (London. Butter worth) 1999 at p1
[2] 8th
Edition, Pg 595
[3]
Phipson on evidence 17th 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, 8th 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 23rd and 27th 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
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