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

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]

 

 

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]

 

 

 

 

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 outweighsthe 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 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.

 

 

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;

 

 

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;

 

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…

 

 

(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;

 

 

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;

 

 

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

 

 

 

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;

 

 

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;

 

 

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

  

 

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;

 

 

 

 

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].

 

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.

 

 

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.

 

 

 

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]

 

 

(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]

 

 

(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]

 

 

(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]

 

 

 

 

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.

 

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