THE EXPECTED OF THE EVIDENCE (AMENDMENT) ACT 2023.
The Evidence (Amendment) Act 2023 (“the Act”) was signed on 12 June 2023 by the Nigerian President Bola Ahmed Tinubu. The Act amended the Evidence Act No. 18 of 2011 (“the Principal Act”), to bring its provisions in line with global technological advancements in evidence-taking. The Act shall apply to all judicial proceedings in or before Courts in Nigeria.
In its 11 sections, the Act introduced changes to Sections 84, 93, 108, 109, 110, 119, 255, and 258 of the Principal Act which directly relate to electronic evidence in one way or another.
The following are some of the implications of the Act:-
- The Act does not apply to Arbitral Tribunals or arbitral proceedings.
- By its Section 2, Section 84 of the Principal Act widened the admissibility of statements in documents produced by computers by the insertion after the word, “document”, of the words “electronic records” in subsections (2) (a) (c), (d); subsection (4) (a), (b) and subsection (5) (c); while subsection (2) (b) of the Principal Act was substituted.
- Its Section 3 inserted new sections 84A to 84D to introduce information in electronic form, records in a computer to be accessible, authentication of electronic records, and proof of digital signature.
- Its Section 4 amended section 93 of the Principal Act by inserting the word “digital signature” after the word “electronic signature”.
- Its section 5 amended Section 108 of the Principal Act to provide that affidavits can be deposed to electronically before any person duly authorized to take affidavits, (a copy of which can be filed at the court registry and may be recognized for any purpose in court), or can be electronically generated. Consequent to this, a deponent no longer needs to depose to an affidavit in person by presenting himself before the Commissioner for Oaths or a Notary Public before his affidavit can be authentic, reliable, filed at Court’s Registry and admissible in evidence in court’s proceedings. It is enough for a deponent to connect remotely (from his office or bedroom outside the Court or the State or Country) to a Commissioner for Oaths or Notary Public (who is a person authorized to take affidavits), through an online platform such as ‘Zoom’ or ‘Teams’, to swear to an affidavit to be used in a suit. This makes for convenience, saving of costs and efforts of travelling to and from the Court’s Registry in traffic for in-person oath-taking and speedy dispensation of justice. However, it is only in Courts’ Registries where such platforms have been provided and are functioning that this innovation will be useful and effective.
- Its sections 6,7 and 8 amended sections 109, 110, and 119(2) of the Principal Act to allow for oath-taking through audio-visual means. This will have the same implication as the amendment of Section 108 of the Principal Act under Section 5 of the Act stated above. Also, having seen the deponent audio-visually during the oath-taking, it should no longer be necessary for the Commissioner for Oaths or the Court to insist on the deponent affixing his passport photograph to his affidavit in judicial proceedings as is the practice in the Federal High Court, as that will no longer serve any useful purpose.
- Its section 9 substituted section 255 of the Principal Act to provide for the Electronic Gazette and that where any rule, regulation, or notification is published in the Electronic Gazette, the publication shall be deemed to have been published in the Federal Government Gazette. So, Federal Government Gazettes need not be only physical anymore but can equally be electronic to be authentic and admissible in evidence in suits.
- Section 10 of the Act amended section 258 of the Principal Act by inserting in alphabetical order, the interpretations of the following expressions and words: – “audio-visual communication”, “cloud computing”, “computer”, “digital signature”, “Electronic Gazette”, “electronic record”, “electronic signature”, ”magnetic media”, and “optical media”.
- Electronic records that are stored, recorded, and 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.
- The statements above are some innovations in judicial proceedings in Nigeria introduced by the Act. However, the innovations will compel lawyers to be ‘technology competent’ as they will now be required to learn, understand the use, how to use and the implications of using, and use, optical or magnetic media or cloud computing databases produced by a computer etc in such a way as not to adversely affect the interests of their clients or expose the confidences and affairs of their clients to third parties. Mishandling this technology may cause a breach of the lawyer’s duty of confidentiality owed to the clients and could amount to a violation of the Rules of Professional Conduct of Legal Practitioners.
- Commendable and noteworthy is that before section 84A(a) of the Act, the judiciary has blazed the trail and had been proactive in recognising documents and court processes in electronic format without waiting for the National Assembly to make this amendment. In Trade Bank Plc v. Chami (2003) 13 NWLR Pt. 836 Pg. 158 at 216-217 Salami JCA (as he then was) held as follows: “Although the law does not talk of “computer” and “computer prints out”, it is not oblivious to or ignorant of modern business world and the technological advancement of the modern jet age. As far back as 1969, the Supreme Court in the case of Esso West Africa Inc. V. T. Oyegbola (1969) NMLR 194, 198 envisaged the need to extend the horizon of the section to include or cover computer which was virtually not in existence or at a very rudimentary stage at that time when the court said- “The Law cannot be and is not ignorant of modern business methods and must not shut its eyes to the mysteries of the computer…” The Supreme Court, in Compact Manifold & Energy Services Limited v. Pazan Service Nig. Ltd (2020) 1NWLR (Pt. 1704) 73, adopted the Short Message Service (SMS) of a Notice of Hearing in an appeal before it, as a good and sufficient service.
- In the absence of an E-commerce legislation in Nigeria despite the growth of e-commerce and e-contracts in Nigeria, our courts should in continuation of their pro-activity, take advantage of Section 84A of the Act and continue this dynamic approach to construing the provisions of the said Section by extending the liberality of the section to cover the online transactions that dominate our times. Today, contracts are prepared in cyberspace, not just on paper and documents. They are also electronically signed. Where the offer and acceptance of such a contract that is electronically signed, is in or can be gathered from electronic form or by means of an electronic record, and are accessible for future reference, the contract must, in the language of section 84A(a) & (b), be deemed to have met the requirements of being in writing and of due execution. Accordingly, it should be enforced.
- In conclusion, the Act will significantly impact for good, judicial proceedings before Nigerian courts. The innovations introduced by the Act, will make it easier and faster for lawyers, litigants, and deponents to file documents and present evidence in court. This will improve the efficiency and timeliness of courtroom proceedings and eliminate administrative bottlenecks. The Act brings the Nigerian legal system closer to global technological advancements and international best evidence-taking and digital storage practices which will positively impact lawyers, courts, individuals and businesses on a national and international scale. It is a welcome development though long overdue!