EVIDENCE (AMENDMENT) ACT 2023: A Contemporary Approach to Admissibility of Computer Generated Evidence
The President on the Federal Republic of Nigeria on the 12th June, 2023 assented to the Bill for the amendment of the Evidence Act No. 18 2011(“Principal Act”). The assent by the President birthed the Evidence (Amendment) Act 2023 as it is to be now cited.
The amendment focusses majorly on streamlining computer generated evidence which was introduced under the principal Act with global standards of admissibility of computer-generated evidence. The totality of the eight (8) amendments spread over several sections focus attention largely on widening the door for admissibility of evidence stored in electronic/digital format. The Amendment under Section 285 also provided the definition to the new terminologies introduced by the amendment.
The majority of the amendment centred on Section 84 of the principal Act which provided for admissibility of computer-generated evidence.
Under Sections 84 (2) (a), (c), (d), and 84 (4)(a) and (b) the words “electronic records” was inserted after the word document. The words “electronic records” under Section 258 was defined to mean “data, record or data generated, image or sound stored, received, or sent in an electronic form or microfilm.” Prior to the amendment, the only sort of computer-generated evidence admissible under the Evidence Act were documents. The amendment by the addition of the words “electronic records” has now expanded admissibility of computer- generated evidence to include the items set out in Section 258, namely “data, record or data generated, image or sound stored, received, or sent in an electronic form or microfilm”
The Amendment also inserted Sections 84A-84D to Section 84 of the principal Act. The insertion of Section 84A emphasises the supremacy of the Evidence Act when it comes to the admissibility of electronic records and computer generated evidence.
Section 84B makes electronic record as explained in the preceding paragraph admissible in evidence in its ordinary form without need for any further proof or production of the document in its original form. The inclusion of Section 84B will resolve the controversy in the admissibility of photocopy of certified true copy (ctc). Despite the decision of the apex court in Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338” where it was held that “photocopy of ctc is admissible with or without any need of recertification”, some courts have shown reluctance in accepting in evidence photocopy of ctc on the ground that it can be subjected to manipulation and consequently ordered that it be recertified to be admissible. The provision of Section 84(2) and 84B, which makes admissible in evidence electronic records generated electronically settles the controversy. Section 84B however raises a question of duplication when the provision of Section 84(1) of the Principal Act is considered, it seems both provisions are same as they deal with admissibility of computer generated evidence.
Section 84C provides for modes of authenticating electronic record; by digital signature or electronic authentication technique. It is however important to distinguish what a digital signature is from an electronic signature (e-signature) as both terms were used interchangeably. Digital Signature is a technical term which means a mathematical technique used to validate the authenticity and integrity of a digital document, message or software, an e-signature on the other hand is simply the replacement of a handwritten signature with an electronic one which is made by electronic means.
Section 84C provides for modes of authenticating electronic record; by digital signature or electronic authentication technique. It is however important to distinguish what a digital signature is from an electronic signature (e-signature) as both terms were used interchangeably. Digital Signature is a technical term which means a mathematical technique used to validate the authenticity and integrity of a digital document, message or software, an e-signature on the other hand is simply the replacement of a handwritten signature with an electronic one which is made by electronic means.
It will therefore be advised that to prevent confusion in the use of digital signation, the drafters revisit the definition of e-signature by excluding digital signature from it as soon as possible.
Section 84C (3) provides for what the Act consider as reliable modes of authenticating an electronic record, while Section 84(D) provided for the proof digital signature.
The Amendment inserted under Section 93, the words “digital signature”. With the insertion of digital
signature under Section 93, it brings Section 93 into conformity with Sections 84A-84D. Another important amendment is the substitution of Section 108 of the Principal Act. The new Section 108 introduces electronic oath taking, in essence the section allows for affidavits to be deposed to electronically. This means the requirement for a deponent to physically appear before a Commissioner of Oath can happily now be dispensed with.. This means a deponent can depose to an affidavit remotely through audio-visual means and the affidavit will be admissible in evidence before a court of law. Prior to this amendment, the requirement of a deponent having to be physically present before the Commissioner for Oaths greatly hampered the objectives of making of making court registries becoming digital. e-filing possible With the introduction of electronic oath taking a party to a suit is now able to remotely file and conduct a matter without being physically present at any stage.
In addition, the amendment in line with the new Section 108 included the words “whether in person or through audio-visual means” under Sections 109 and 110. Although the amendment under Section 258, the definition section did not define the words “Audio-Visual”, “Audio -Visual Communication” was defined to mean being able to see, hear and communicate with another individual in real time using electronic means.
The amendment under Section 119 (2) (b) inserted another sub-paragraph (ba) 3 which relates to affidavits sworn to by audio-visual means for an illiterate or blind person, it further provided the electronic means used and date of the jurat must be stated.
Lastly, the amendment under Section 255, introduced a new Section, Section 255 (2) which provides for Electronic Gazette for the Federal Government. Electronic Gazette according to Section 258 means “official gazette published in electronic form.”
It is noteworthy to state that Section 255 (2) should not have limited Electronic Gazette to gazettes published by the Federal Government, rather it should have used the words Federal or State government to make sure the provision for Electronic Gazette is all encompassing.
Another question worth asking with respect to Section 255 (2) is when is an Electronic Gazette primary or secondary evidence under the provisions of Sections 86 and 87 of the principal Act. From the provision of Section 86 on primary evidence, it will appear that an Electronic Gazette cannot be tendered in evidence in its primary form, it therefore means that an Electronic Gazette once printed out can only be tendered in evidence as secondary evidence in compliance with Section 104 of the principal Act.
Overall, the amendment to the Evidence Act is an important development in our jurisprudence, most importantly in area of litigation. The emerging trends of Artificial Intelligence and Blockchain technology are affecting every sphere of the society, law which is an instrument of social engineering must therefore not be left behind in catching up with the trends. Also, the drafter must as a matter importance revisit the Act in other to repeal Section 84(1) of the Principal Act which is of the same effect with Section 84B of the Amendment Act.
It is also noteworthy to advise that an error which was contained in the Schedule of the Amendment Act must be corrected so that the legality of the Amended Act will not be questioned. The date the bill which led to the Amendment Act was passed by the House of Representative was stated as 22nd December, 2023 a date in the future. It is advised that this error be corrected in the gazetted copy of the Amended Act
Moyosola Oso
M J Onigbanjo & Co.
www.mjonigbanjo.com
info@mjonigbanjo.com
