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On 12 June 2023, the President of the Federal Republic of Nigeria signed the Evidence (Amendment) Act 2023 (the Act/Amendment) into law. It is important to note that the Amendment does not repeal the Evidence Act 2011 (the 2011 Act) and is intended to reflect technological advancements in evidence-taking, particularly in court proceedings.
This document highlights notable changes introduced by the Act and its significance for the conduct of trial proceedings in Nigerian courts.
Notable Changes Introduced by the Act
Prior to the Amendment, documents produced by computers were regarded as computer generated evidence and are admissible as evidence of facts stated in them, provided that certain conditions are met. A party seeking to rely on such documents is required to show that the computer was generally in good order, and that the document was produced from information regularly supplied to the computer, as provided in Section 84(2) of the 2011 Act. The Amendment, however, introduces a new element – the admissibility of statements in “electronic records”.
Section 10 of the Amendment defines an electronic record as “data, record or data generated, image or sound stored, received, or sent in an electronic form or microfilm”. It is admissible under similar conditions as are applicable to computer generated documents. Interestingly, practical realities dictate that if an electronic record is to be admitted as evidence, it must be tendered in the form of a document. Under the 2011 Act, a “document” includes discs, tapes, films and negatives. Data generated or received electronically cannot be presented in court as evidence, unless presented in a tangible, readable form.
In effect, an electronic record must be printed, taped, etc. Per the provisions of the newly inserted Section 84B of the 2011 Act, such printed, recorded or copied electronic record is also a document, and without proof of the original, the document is admissible as evidence of facts stated in it, provided the conditions specified in the Act are satisfied.
The Amendment also recognises digital signatures as a means of authenticating electronic records. A digital signature is an electronically generated signature attached to an electronically transmitted document in order to verify its contents and the sender’s identity. The intention of the statute is that digital signatures now have the same effect as a signature appended physically on a hardcopy document. An electronic record may also be authenticated by other means.
The Amendment further creates specific provisions to ensure the integrity of digital signatures by providing that such digital signature or other form of authentication must be reliable or fulfil other conditions specified in the statute. An authentication in this sense is considered reliable if it is linked to the authenticator or signatory alone and any alteration of the information after the authentication or of the signature itself can be detected. In addition, where it is alleged that a person’s digital signature has been affixed to an electronic record, it must be proven that it is the digital signature of that person.
Should you have any questions regarding this legal alert do not hesitate to contact Oluwatosin Iyayi.
Amarachi Nickabugu – Associate