A review of The Evidence Act (Amendment) Act, 2023.

Review of The Evidence Act (Amendment) Act, 2023.

Introduction

On 12^th June 2023, the Evidence Act (Amendment) Act (the “Act”) was passed into law by the President of the Federal Republic of Nigeria. The Act primarily amends the Evidence Act 2011 (the “Principal Act”) to bring the provisions of the Principal Act in accordance with global technological advancements, which shall apply to all judicial proceedings and courts in Nigeria.

The innovations introduced by the Act aim to ease the administration and dispensation of justice and reduce the unnecessary delays in judicial proceedings that typically occurred before the amendments. Notable innovations in the amendment entail the inclusion of electronic records, digital signatures, admissibility of electronic records, and more. These amendments are discussed below.

Electronic Documents

The Act expands the applicability of admissibility of statements in documents to include ‘electronic records’ by the amendment of Section 84(2) (a), (c), (d); (4) (a), (b) and (5) (c) and substitution of Section 84 (2) (b) of the Principal Act.[1]

Furthermore, the Act expands the scope of admissibility and authentication of electronic documents and electronic and/or digital signatures by inserting Section 84A-84D, which are novel provisions.[2] By the tenor of the Act, where any information is required to be in writing, such requirement shall be satisfied if the information is made available or rendered in electronic form which is accessible for future reference.[3] By virtue of the provisions of the Act, ‘document’ now includes the electronic record of information stored, recorded, or copied in optical, magnetic media, cloud computing, or a database produced by a computer.[4]

Notably, the Act dispenses with the requirement of producing the original of a document in proof of any fact, as the said documents are admissible without further proof or production of the original, provided that the other conditions of the Act are satisfied.[5]

Digital Signatures

Another notable amendment under the Act is the recognition of digital signatures by amendment of Section 93 (1)-(3) of the Principal Act. Under the Principal Act, provision was only made for electronic signatures, but ‘digital signatures’ are now recognized under the Act. However the same requirements for proving an electronic signature would be the same for proving a digital signature. The Act allows for the authentication of digital records by affixing a digital signature or by an electronic authentication technique[6], which is considered reliable. By the provisions of the Act, an electronic authentication technique would be considered reliable if the signature or authentication data are linked to the signatory/authenticator and if any alteration to the information (after it is authenticated) and the digital signature (after it is affixed) are detectable.

It is noteworthy that while the Act defines what a digital signature is,[7] the Act does not define or explain what constitutes a ‘reliable electronic authentication technique,’ and as such, the same will likely be subject to judicial interpretation in the operation and application of the Act. The burden of proving ownership of a digital signature affixed to an electronic record is on the person who alleges such digital signature.[8] Notably, this requirement does not apply to secure digital signatures[9] which is one under the exclusive control of the signatory and was stored and affixed in an exclusive manner at the time the signature was affixed.[10]

Electronic Affidavits

The amendment of Section 108 of the Principal Act is geared towards accommodating affidavits that are deposed to electronically or electronically generated. The Act provides that where an affidavit is deposed to electronically before any person duly authorized to take affidavits, a copy shall be filed at the court registry and may be recognized for any purpose in court.[11] Similarly, Sections 109, 110, and 119(2) of the Principal Act were amended to allow for oath-taking through audio-visual means.[12] Thus, it is deductible that the physical presence of a deponent is no longer required for the swearing of an affidavit. The affidavit can be deposed to virtually, provided it is done in real time.[13]

Furthermore, the Act provides that where a jurat is sworn to via audio-visual means, such jurat shall state the audio-visual method used and the date on which it was used.[14]

Electronic Gazettes

Finally, the Act amends Section 255 of the Principal Act by making provision for Electronic Gazettes. It provides that where any rule, regulation, notification is published in the Electronic Gazette, the publication shall be deemed to have been published in the Federal Government Gazette.[15] Accordingly, and by the definition of electronic gazettes in the Act, it now suffices if the gazette officially reports official acts and records of public bodies without the need for substantial compliance with form.

Conclusion

Prior to the enactment of the Act, the Principal Act did not expressly provide for electronic records, digital signatures, and oath-taking by audio-visual means, which created unnecessary delays in the filing of affidavits and, by extension, the administration of justice. The enactment of the Act is a welcome development and a step in the right direction towards the advancement of the Nigerian legal system, as some of the previous lacunae that existed in the Principal Act have been cured by the enactment of this Act. Furthermore, the Act recognizes the need for technological advancements to improve efficiency, eliminate administrative bottlenecks, and facilitate quick dispensation of justice.

Footnotes

[1] Section 2 of the Act

[2] Section 3 of the Act

[3] Section 3 of the Act

[4] Section 3 of the Act

[5] Pursuant to Section 3 of the Act, the requisite conditions for computer generated evidence are also to be satisfied in admissibility of electronic records.

[6] Section 3 and Section 4 of the Act

[7] A digital signature means an electronically generated signature which is attached to an electronically transmitted document to verify its content and the sender’s identity.

[8] Section 3 of the Act

[9] Section 3 of the Act, which incorporates a new Section 84D of the Principal Act.

[10] Secured digital signature entails that the digital signature was under the exclusive control of the signatory, and same was stored and affixed in an exclusive manner at the time the signature was affixed. See Section 3 of the Act.

[11] Section 5 of the Act

[12] Sections 6 and 7 of the Act.

[13] Section 10 of the Act.

[14] Section 8 of the Act.

[15] Section 9 of the Act.