BY

ATOYEBI O.M. SAN and  BIBIANA A. ADENIJI

 

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. From medicine to agriculture, communications, aviation, sports, arts, law, etc., technology has permeated human affairs. 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 the modern society.

On the 12th 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 aim of the law was 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 cognizance of the growing impact of technology even on the matters of evidence. This article will therefore be giving 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 amendment:

a. Inclusion of Electronic

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 form, but also to electronic records.

b. Information in Electronic Form[6]

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

c. Admissibility of Computer Records[8]

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

d. 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 dulyexecuted or authenticated, the Act has provided for the authentication of electronic records through the useof digital signatures in such manner or by such technique as may be stipulated by the Act or such othertechnique 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 belinked 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 bylaw.

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

  1. The creation data of the signature was under the exclusive control of the signatory alone, and
  2. Same was stored or affixed in an exclusive manner 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]

e. Electronically Generated Affidavits[13]

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

 

f. Recognition of an Electronic Gazette[17]

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

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

CONCLUSION

Technology continues to shape the human society in more ways than man is conscious of. There is however, aneed to provide legal basis for the interaction of man with technology in the different spheres of humaninterconnection, as the law gives validity to human actions, generally. Thus, the amendment of the EvidenceAct 2011 can be regarded as a step in the right direction, in alignment with international best practices, aimedat providing relative ease to the system of justice administration, curbing administrative bottlenecks in thesystem 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 atSSRN: https://ssrn.com/abstract=3598962 or http://dx.doi.org/10.2139/ssrn.3598962 man, (https://ssrn.com/abstract=3598962) (https://dx.doi.org/10.2139/ssrn.3598962)

[2] See Jason Neidleman, “The Social Contract Theory in a Global Context” (2012) E-International Relations;https://www.e-ir.info/2012/10/09/the-social-contract-theory-in-a-global-context/ (https://www.e-ir.info/author/jason-neidleman/)

(https://www.e-ir. info/2012/10/09/the-social-contract-theory-in-a-global-context/) (https://omaplex.com.ng)

 

[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.

 

 

 

 

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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