AN OVERVIEW OF THE EVIDENCE (AMENDMENT) ACT, 2023

By O.M. ATOYEBI S.A.N, FCIArb. (UK)

INTRODUCTION

There is no gainsaying the fact that technology remains the principal revolutionary agent of the human society.^[1] Its impact has been felt in every sector of human interactions and interrelations. Technology has permeated human affairs from medicine to agriculture, communications, aviation, sports, arts, law, etc. Hence nations across the world are fast yielding to the legal demands necessitated by the evolution of technology. This is imperative as a result of the fact that law is the foundation of a modern society^[2] and as such must be in tune with the demands of modern society.

On the 12^th of June 2023, President Bola Ahmed Tinubu, the President of the Federal Republic of Nigeria, signed the Evidence Act (Amendment Act) 2023 into law. The law aimed to make provisions in relation to the admission of evidence, which is in tune with international best practices. Hence, several adjustments were made to the provisions of the Evidence Act 2011 (the Principal Act) which took cognisance of the growing impact of technology even on the matters of evidence. This article will therefore give an overview of the provisions of the 2023 Amendment Act.

KEYNOTE PROVISIONS OF THE EVIDENCE (AMENDMENT) ACT 2023

The Act, in order to bring the provisions of the Evidence Act 2011 up-to-date in accordance with global technological advancements in evidence-taking,^[3] made the following amendments:

1. Inclusion of Electronic records.

The Act amends the provisions of Section 84 of the principal Act relating to the admissibility of electronically generated evidence,^[4] particularly subsection 2 of the section which provides for the conditions for their admissibility. More specifically, Subsection 2 (a) was amended to the words ‘electronic records’ implying that a statement contained in a document or an electronic record must satisfy the conditions stated therein for its admissibility. Thus, where an electronic record is sought to be tendered, it must be contained in the certificate of compliance that the computer which produced same was in regular use during that period. Also, a new condition was substituted for Section 84(2)(b) of the Act providing to the effect that information contained in the electronic record, or such information forming a part of a larger body of information must be shown to be regularly fed into the computer in the ordinary course of activities during that period.^[5] Furthermore, the conditions stipulated under Section 84 (2) (c) and (d) were amended to apply to electronic records. Thus, the provisions of 84 (2) now apply not only to documents generated from computers in paper forms but also to electronic records.

1. Information in Electronic Form^[6]

New sections (Sections 84A – 84D) have been inserted after the provisions of Section 84 of the principal Act recognising the existence, validity and admissibility of any information produced and tendered in electronic form. Hence, where any law in Nigeria provides for information to be hand or typewritten or printed, such law will be deemed to be complied with where the information is produced in electronic form and accessible for subsequent reference.^[7]

1. Admissibility of Computer Records^[8]

The Act further expands the meaning of a document to include information contained in an electronic record provided the conditions stipulated by the Act are met, and same shall be admissible in evidence without the necessity of producing the original of such document.^[9]

1. Introduction of Digital Signature^[10]

In line with the requirement of the law that for a document to be admissible in evidence, same must be duly executed or authenticated, the Act has provided for the authentication of electronic records through the use of digital signatures in such manner or by such technique as may be stipulated by the Act or such other technique as the Court may consider reliable.^[11] The Conditions for reliability as provided by the Act include:

1. The data for creating the signature or the authentication data, within the context of usage, can only be linked to the signatory or authenticator and none other,
2. Where an alteration is made to the digital signature, after affixing it to the electronic record for authentication, such alteration must be detectable,
3. Where the information contained in the electronic record is altered after same has been authenticated by the digital signature, such alteration must be detectable, and such other conditions as may be prescribed by law.

Additionally, for a duly authenticated electronic record to be admissible, a digital signature alleged to have been affixed by a person must be proven to belong to such person. This however does not apply to a secure digital signature and a digital signature will be deemed to be secure if:

1. The creation date of the signature was under the exclusive control of the signatory alone, and
2. Same was stored or affixed exclusively as may be prescribed.

Besides, the provisions of Section 93 of the Evidence Act 2011 relating to the proof of signature, handwriting or electronic signature were amended to include a digital signature.^[12]

1. Electronically Generated Affidavits^[13]

The Act amends the provisions of Sections 108, 109, 110 and 119 of the principal Act relating to the deposition of affidavits. In line with the new provisions, affidavits can now be deposed to electronically before such persons as may be duly authorised to take same but a copy of such must be filed in the registry and may be recognised for any purpose for which it is intended to be used in the court. Hence affidavits deposed to whether in Nigeria^[14] or, subject to the provisions of Section 110, outside Nigeria,^[15] in person or through audio-visual means, are admissible before any court in Nigeria. Furthermore, the requirement of a jurat to accompany an affidavit under Section 119 of the Principal Act also applies to an electronically generated affidavit. Hence where an affidavit is taken via audio-visual means, the electronic record must state which audio-visual method was made use of and the date on which it was used.^[16]

1. Recognition of an Electronic Gazette^[17]

The Amendment Act now recognises an electronic gazette and provides to the effect that any regulation, rule or such other matters required to be published in the Federal Government Gazette will be deemed to have been validly published if same is published in an electronic Gazette.

Finally, the Act amended the interpretation Section of the Principal Act by providing interpretations of technological terms used in the Act.

CONCLUSION

Technology continues to shape human society in more ways than man is conscious of. However, there is a need to establish a legal basis for the interaction of man with technology in the different spheres of human interconnection, as the law gives validity to human actions in general. Thus, the amendment of the Evidence Act 2011 can be regarded as a step in the right direction, in alignment with international best practices, aimed at providing relative ease to the system of justice administration, curbing administrative bottlenecks in the system and generally changing the face of litigation practice in Nigeria.

1. Mishra, Sriya Shubhalaxmi, “The Advent of Technology and its Impact on the Society” (2019). Available at SSRN: https://ssrn.com/abstract=3598962 or http://dx.doi.org/10.2139/ssrn.3598962 accessed on the 23rd of September, 2023. ↑
2. See Jason Neidleman, “The Social Contract Theory in a Global Context” (2012) E-International Relations; accessed at https://www.e-ir.info/2012/10/09/the-social-contract-theory-in-a-global-context/ on the 23^rd of September, 2023. ↑
3. See the long title to the Evidence Act (Amendment) Act 2023 ↑
4. Section 2 of the Evidence Act (Amendment) Act 2023. ↑
5. Section 2 (b) EA(A)A 2023. ↑
6. Section 3 EA(A)A 2023. ↑
7. See Section 3 EA(A)A 2023. ↑
8. Section 3 EA(A)A 2023. ↑
9. Section 84B of the Evidence Act. ↑
10. Section 3 EA(A)A 2023. ↑
11. Section 84C of the EA. ↑
12. Section 4 EA(A)A 2023. ↑
13. Section 5 EA(A)A 2023. ↑
14. Section 6 EA(A)A 2023. ↑
15. Section 7 EA(A)A 2023. ↑
16. Section 8 EA(A)A 2023. ↑
17. Section 9 EA(A)A 2023. ↑