On 12 June 2023, the Evidence (Amendment) Bill 2023 was signed
into law. The amendement introduced some innovations to bring the evidence act in line with technological advancements.
The following are the key reviews made by the amendement:
1. Amendment of the Computer-Generated Evidence provisions:
a) Introduction of “Electronic Records”
In line with global technological advancements, the Act has made provision for electronic record and its admissibility in courtroom proceedings. Under the Act, electronic record is defined to include “data, record or data generated, image or sound stored, received, or sent in an electronic form or microfilm” Section 10 of the Act (Amendment of Section 258 of the Principal Act being the Interpretation Section). The term “electronic record” has been specifically inserted after the word “document” throughout the section on computer-generated evidence in the Principal Act. Accordingly, by the introduction of electronic record in the Act, documents or electronic record (as defined by the Act) are now directly admissible as evidence where such document or electronic record satisfies the conditions in the Act.
b) Admissibility of records in a computer
Electronic records that are printed on paper, 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, if the conditions that are stated in the Act are satisfied Section 3 (1) of the Act (Insertion of Section 84A – 84D in the Principal Act).
c) Introduction of “Digital Signature”
The Act also recognizes the use of digital signatures in court documents or legal processes. Digital Signature is defined under the Act 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. Section 10 of the Act (Amendment of Section 258 of the Principal Act being the Interpretation Section).
d) Reliability and Proof of an Electronic Record/ Digital Signature
In addition to the above, authentication of an electronic record can now be done electronically by affixing the digital signature of the maker on the record. Section 3(1) of the Act. However, such digital signature will only be considered reliable where, the signature creation data can be linked to the signatory and no other person; any alteration to the digital signature after affixing is detectable; and, any alteration to the information made after its authentication by the digital signature is detectable. Section 3(1) of the Act. However, if the digital signature of any person is alleged to have been affixed to an electronic record, the fact that such digital signature is the digital signature of the signatory must be proved. Section 3 (1) of the Act (insertion of 84D (1) to the Principal Act) And to prove the authenticity of the digital signature, it is sufficient to show that at the time of affixing the signature, the signature creation data was under the exclusive control of only the signatory. Section 3(1) of the Act
- Introduction of Electronic Oath Taking
With respect to Affidavits and other documents that require oath taking, (Such as written depositions of witnesses in judicial proceedings) the Act has made provision for electronic oath taking. Affidavits can now be deposed to electronically and this will be helpful in saving judicial time and generally expedite courtroom proceedings. Section 5 of the Act (Substitution of section 108 of the Principal Act) Additionally, 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. Section 6 & 7 of the Act.
- Introduction of Electronic Gazette
The Act further provides for an “Electronic Gazette” which is simply an electronic official gazette of rules, regulations or notifications that have been officially published by the Federal Government. Section 9 of the Act (substitution of section 255 of the Principal Act). It is stated in the Act that where it is required for any rule, regulation, or notification to be published in a Federal Government Gazette, it will be sufficient if the Federal Government of Nigeria publishes such rules or regulations in an electronic gazette.
- Definitions and interpretations
Finally, the Act amends the Principal Act by inserting definitions for audio visual communications, cloud computing, computer, digital signature, electronic gazette, electronic record, electronic signature, magnetic media and optical media.