Introduction

The Evidence (Amendment) Act 2023 was passed by the National Assembly and assented to by President Bola Tinubu in June 2023. The Principal Act which it amends i.e. the Evidence Act was enacted into law in 2011. The explanatory memorandum to the 2023 Amendment Act states that the amendment of the Evidence Act is intended to bring its provisions in accordance with global technological advancements in evidence taking which will be applicable to all judicial proceedings in or before courts in Nigeria. The text of the Amendment Act does justice to this intention by making provisions which ensure that evidence may be submitted in an electronic form without the need for a printout of the electronic record or the submission of an electronic record through a physical device. The innovations in the Amendment Act are commendable and will be highlighted below. There are, however, some issues with the Amendment Act in the area of its drafting. These will also be discussed below.

Innovations in the Evidence (Amendment) Act 2023

  1. Admissibility of electronic records in electronic form

Section 2 of the Amendment Act amends section 84 of the Principal Act (which deals with admissibility of statement in documents produced by computers) by providing for the insertion of the words “or electronic record” after the word “document” in several subsections under section 84. This amendment signifies that electronic records may be tendered directly as evidence. Before the amendment, the Principal Act provided for documents produced by computers to be tendered either in printed form or in a physical device such as a disc or tape. What the amendment does in effect is to reduce the need for submission of hard copy documents or submission of electronic evidence in a device and allow for the electronic record to be tendered in an electronic form, for example by sending through email or by uploading onto a database or the internet.

  1. Admissibility of electronic forms of information that ought to be submitted in typewritten or printed form

Section 3 of the Amendment Act inserts a new section that states that where a law provides that an information or any other matter shall be in writing or typewritten or printed form, then notwithstanding anything contained in that law, such requirement shall be deemed to have been satisfied if the information is made available in electronic form and accessible when required. This amendment in effect means that electronic copies of documents, information or any other matter are admissible in place of hard copies notwithstanding that a law specifically states that such information must be submitted in printed form.

 Admissibility of printout of electronic records without production of the original

Section 3 of the Amendment Act inserts a new section that provides that printouts or copies of an electronic record are admissible without further proof or production of the original as long as the other conditions in the Act are satisfied.

  1. Use of digital signatures

Section 3 of the Amendment Act inserts a new section that states that digital signatures may be affixed on an electronic record as a means of authenticating the electronic record. A digital signature is defined in the Amendment Act to mean “an electronically generated signature which is attached to an electronically transmitted document to verify its contents and the sender’s identity”. Section 93 of the Principal Act (which provides for proof of execution of documents) is also amended by the insertion of the words “or digital signature” after the words “electronic signature”.

  1. Use of electronic means to depose to an affidavit

Section 5 of the Amendment Act makes it possible for a person to depose an affidavit electronically using audio-visual means. This means that a person deposing an affidavit does not have to be physically present but may do so through a live audio-visual session which is to be recorded.

  1. Publication of Gazettes in electronic form

Section 9 of the Amendment Act states that where a law provides that a rule, regulation, notification, or any other matter be published in the Federal Government Gazette, the requirement shall be deemed to have been satisfied if the rule, regulation, notification, or any other matter is published in the Federal Government Gazette or electronic Gazette. This provision, in effect, supports the publication of the Federal Government Gazette in electronic form and the submission of electronic copies of such Gazettes as evidence.

 Definition of the word “computer” to include “mobile phones”

Section 10 of the Amendment Act specifically includes “mobile phones” in a new definition of the word “computer”. Although the definition of the word “computer” that was contained in the Principal Act can be interpreted to cover mobile phones, a new definition may have been necessary for the avoidance of doubt.

Drafting Issues with the Evidence (Amendment) Act 2023

  1. Section 2 of the Amendment Act amends section 84 of the Principal Act by skipping the amendment of section 84 (1) and providing for the amendment of section 84 (2) and other subsections that follow it. This amendment referred to here is the insertion of “electronic records” as a type of documentary evidence that may be admitted by the court. The insertion of “electronic records” by the Amendment Act ought to have started by first amending section 84 (1). This is because section 84 (1) is the foundation for the provisions on the admissibility of statements in documents produced by computers.
  2. Section 4 of the Amendment Act amends section 93 (1) – (3) of the Principal Act by inserting the words “or digital signature” after the words “electronic signature”. Section 93 (1) of the Principal Act does not have the words “electronic signature” but uses the phrase “signature or the handwriting” in its provision. A reading of section 93 (1) shows that it is outside the purview of the amendment intended by section 4 of the Amendment Act. The Amendment Act should have provided for the amendment of only section 93 (2) – (3).
  3. Section 10 of the Amendment Act amends section 258 of the Principal Act by inserting the definition of some terms, one of which is “audio-visual communication”. The Amendment Act does not use “audio-visual communication” as a term in its text. It only uses “audio-visual” in certain places and does not use the word “communication” The words that ought to have been defined are “audio-visual” or “audio-visual means”.
  4. Section 10 of the Amendment Act defines “electronic signature” to mean “authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature”. Neither the Amendment Act nor the Principal Act contains a Second Schedule so it is uncertain what Second Schedule is being referred to.

Conclusion

The enactment of the Evidence (Amendment) Act 2023 is commendable. The Act amends the Evidence Act by making provisions that allow the submission of information, documents and evidence in electronic form. The innovations introduced by the Amendment Act, if implemented, will aid the Judiciary in efficient adjudication of matters before it, especially in the areas of easy and fast receipt, storage and retrieval of information, data and evidence. There are, however, errors in the drafting of the Amendment Act. A law that is poorly drafted impedes a clear understanding of the provisions of the law and also has the potential of enabling needless litigation on the interpretation of its provisions. It is imperative that laws are drafted in a clear and correct manner for the easy understanding and interpretation of their content.

 

 

NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

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