The Innovations Introduced by the Evidence Act (Amendment) Act, 2023
By ATER, Solomon Vendaga
1.0. Introduction
On the 12th Day of June, 2023, the President of Nigeria, His Excellency Bola Ahmed Tinubu signed into law the Evidence Act (Amendment) Act, 2023 which amended the Evidence Act. No. 18, 2011 (Herein referred to as the Principal Act). The Act seeks to bring its provisions in accordance with global technological advancements in evidence taking and shall apply to all judicial proceedings in or before courts in Nigeria. The introduced changes are expected to ease challenges in Nigerian court proceedings, benefit national and international businesses, and remove administrative hurdles. This will lead to less stress on judges, faster justice dispensation, and reduced delays. The Act has a total of 10 amendments.
2.0. Amendments/Innovations
The Act amends several provisions in the Principal Act, introduces electronic oath taking and electronic gazettes (s. 255 of Principal Act amended to accommodate electronic gazette), and expands the scope of computer-generated evidence and authentication of electronic records. This is done by amending s. 258 of the Principal Act to include the above words and many others which are needed for the fulfillment of the intendment of the Act.
2.1. Amendment of s.84
S. 84 of the Principal Act that deals with Electronically generated Evidence is variously amended by first inserting immediately after document the word ‘or electronic records”. The section now has an extension from s. 84A-84D
2.2. Information in Electronic Form
By the provisions of s. 84A of the Evidence Act, 2023 where any law provides that a document should be in written form, typewritten and printed, such weight given to the document shall also be accorded to an electronic document in so far as it (a) rendered or made available in an electronic form, and (b) accessible so as to be usable for a subsequent reference.
2.3. Records in Computer are admissible
By s. 84B electronic records that are stored, recorded or copied in optical or magnetic media or cloud computing database produced by a computer, are now generally considered to be documents and will be admissible in any judicial proceeding before Nigerian courts, without further proof or production of the original, in so far as the conditions that are stated in the Act are satisfied.
2.4. Authentication of Electronic Records
By the provisions of section 84C of the Evidence (Amendment) Act, 2023, an electronic record can be authenticated by affixing a digital signature or using an electronic authentication technique that is considered reliable or specified by the Act. For a digital signature or electronic authentication technique to be considered reliable, it must meet certain conditions, including: (a) linking the signature creation data or authentication data to the signatory or authenticator and no other person; (b) making any alteration to the digital signature or information after authentication detectable; and (c) fulfilling any other conditions that may be prescribed. Essentially, this means that the digital signature or authentication technique used must be able to verify the identity of the signatory or authenticator and ensure the integrity of the information being authenticated. An example of an electronic authentication technique is a one-time password sent to a registered mobile number for verification purposes.
2.5. Proof of Digital Signature
According to section 84 D (2) of the Evidence (Amendment) Act, 2023, a digital signature shall be deemed secure if the signature creation data: (a) at the time of affixing the signature, was under the exclusive control of the signatory and no other person; and (b) was stored and affixed in such an exclusive manner as may be prescribed. This means that for a digital signature to be considered secure, it must be created and controlled solely by the signatory and stored in a way that ensures its authenticity and integrity. An example of a secure digital signature is one that is created using a private key known only to the signatory and is stored in a secure hardware device. To bring this in conformity with other provisions, s. 93 of the Principal Act is amended by inserting after the words electronic signature ‘or digital signature’. According to the Evidence (Amendment) Act 2023, a digital signature is defined as a signature that is generated electronically and attached to a document that is electronically transmitted in order to verify the contents or authenticity of the document and the identity of the sender. This means that instead of physically signing a document, a person can use an electronic signature to sign and transmit it. For example, a lawyer can use a digital signature to sign and file court documents faster and more efficiently.
2.6. Electronic Oath-taking
The Evidence (Amendment) Act 2023 allows for electronic oath taking in judicial proceedings. This means that affidavits and other documents that require oath taking can now be deposed to electronically, which will save time and expedite courtroom proceedings.
2.7. Electronic Affidavit
The Act allows for affidavits to be deposed to electronically through audio-visual means but only through persons that are authorized to take affidavits, and a copy of the affidavit is to be filed at the court’s registry. For example, a witness can now take an oath electronically via video conferencing instead of physically appearing in court, which can save time and resources. Accordingly, section 108 of the Principal Act is substituted with a new section that requires the original affidavit to be filed in court before it can be used for any purpose. However, if the affidavit is deposed electronically before a duly authorized person, a copy may be filed at the court registry and recognized for any purpose in court. This means that electronic affidavits are now recognized as valid evidence in court, provided they are properly filed and authenticated. An example of an electronic affidavit is one that is signed using a digital signature and filed online through a secure portal.
3.0. Conclusion
The Evidence Act (Amendment) Act, 2023, marks a progressive stride towards harmonizing Nigeria’s legal framework with contemporary technological advancements. Through the introduction of provisions pertaining to electronic documents, digital signatures, authentication techniques, and electronic oath-taking, the Act addresses the evolving nature of evidence and communication in today’s digital age. These amendments promise to not only expedite court proceedings but also enhance the credibility, efficiency, and accessibility of the Nigerian legal system. This aligns the nation with international best practices, fostering an environment conducive to effective dispute resolution and justice administration.
References
1. Evidence (Amendment) Act, 2011
2. Summary of Evidence (Amendment) Act, 2023 by Strictly Legal Precedent
About the Author
Ater Solomon Vendaga is a final year Law Undergraduate at University of Abuja Nigeria and the Associate, Programs at Sabilaw Foundation. He can be reached via soloater12@gmail.com or 08025263078
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