Prior to the enactment of the Evidence Act, the English Common Law of Evidence was applied in Nigerian courts, reflecting a shift towards adopting established principles from English law.
The transition to a federal structure altered the treatment of evidence, initially allowing concurrent evidence laws at the regional and federal levels. However, the 1979 Constitution granted exclusive authority over evidence to the National Assembly, rendering regional laws ineffective. Despite this, there was an argument in favor of states enacting evidence rules within their legislative competence, (the argument can rage on) and the Act recognizes this by allowing other legislation in force in Nigeria to govern the inclusion and exclusion of evidence, provided it conforms to the Act’s conditions.
The Evidence Act of 2011, derived from the earlier Evidence Ordinance of 1943, was a significant development in Nigeria’s legal system. It drew inspiration from Sir James Fitzgerald Stephen’s Digest of the Law of Evidence, aiming to codify the English Common Law of Evidence. Initially applicable nationwide, the Act was preserved under the 1960 Constitution after independence.
While the Act represents progress, it remained largely unchanged for many years, hindering the admissibility of electronically generated evidence. The enactment of the Evidence Act in 2011 introduced forward-looking provisions to assist litigants and courts in pursuing justice.
However, further improvements was needed to address the shortcomings in the act to reflect technological realities of this century.
The Evidence Act of 2023 therefore has heralded a significant advancement in Nigeria’s legal system. It builds upon historical foundations, addresses the evolving needs of the legal system, and aims to improve the admissibility of evidence, electronically generated evidence as contained in preceding act, to digital and electronic execution of documents and admissibility of storage mediums as evidence.
In broad terms, evidence can be understood as information or a set of information that forms the basis for accepting or rejecting a proposition. In this context, evidence is defined as information that provides compelling grounds for belief or serves to establish the truth of something.
However, Late Justice Akinola Aguda, a foremost jurist defined evidence as the means by which facts are proved, but excluding inferences and argument. It is common knowledge that a fact can be proved by oral testimony of persons who perceived the fact, or by the production of documents, or by the inspection of things or places –all these will come within the meaning of judicial evidence.
The notion of evidence therefore pertains to the understanding and utilization of information and materials within a legal framework to establish facts, substantiate claims, or arrive at conclusions.
Looking at the world over, the recognition of electronic or digital signatures is common. The United States has the Electronic Signatures in Global and National Commerce Act (ESIGN Act) and the Uniform Electronic Transactions Act (UETA) at the state level. These laws establish the legal validity of electronic signatures and contracts and the signatures are admissible in such form as may have been produced as evidence. Ditto for The United Kingdom’s Electronic Communications Act 2000 and the Electronic Signatures Regulations 2002, South Africa, Singapore, Canada, Rwanda, India, China, just to mention a few.
The key changes to the Evidence Act 2023 amongst others below, is that the existing Section 84 on (Information in electronic form) of the Principal Act has been substantially amended. Some of these changes are reproduced as follows:
Sections 84 sub-2, 4, insertion of new sections 84A-84D, section 110- administering oaths or digital signatures through audio-visual means
84A. Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is:
(a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference.
Records in a computer to be admissible.
84B. Notwithstanding anything contained in this Bill, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media or cloud computing or database produced by a computer shall be deemed to also be a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceeding, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
Authentication of electronic record.
84C. (1) Subject to the provisions of this section any person may authenticate an electronic record by affixing his digital signature on same.
(2) A person may authenticate any electronic record by such digital signature or electronic authentication technique which is: (a) considered reliable; or (b) as may be specified by this Bill.
(3) For the purpose of this subsection (2), any digital signature or electronic authentication technique will be considered reliable if: (a) the signature creation data or the authentication data are, within the context in which they are used, linked to the signatory or, as the case may be, the authenticator and of no other person; (b) any alteration to the digital signature made after affixing such signature is detectable; (a) in subsection (2) (a), by inserting after the word “document”, the words “or electronic records”;
(b) in subsection (2) (b), by substituting for paragraph (b), a new paragraph “(b)”- “(b)” during the period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the activities”; Section 109 of the Principal Act is amended by inserting after the word, “Nigeria”, the words, “whether in person or through audio-visual means”.
Affidavit in audio-visuals
Section 110 of the Principal Act is amended by inserting after the word, “before”, the words, “whether in person or through audio-visual means.”
Section 119 (2) of the Principal Act is amended by inserting after paragraph (b), a new paragraph
“if the affidavit is taken via audio-visual means, then the electronic record shall state which audio-visual method was used and the date on which it was used”.
Advantageously, digital and electronic signatures offer several advantages over traditional handwritten signatures. First is Security: Digital and electronic signatures provide a higher level of security compared to handwritten signatures. They use encryption technology to ensure the integrity and authenticity of the signed document. This helps prevent tampering, forgery, and unauthorized alterations.
Secondly is Efficiency and Speed- Digital and electronic signatures enable faster and more efficient signing processes. There is no need for physical paperwork, printing, or mailing. This cost is eliminated and contributes to the environmental sustainability. Documents can be signed and exchanged electronically, reducing delays and streamlining workflows even for the Court Registries.
Thirdly, with digital and electronic signatures, signing documents becomes convenient and accessible from anywhere, at any time. Signatories can sign documents remotely, eliminating the need for in-person meetings or travel. This is particularly beneficial for businesses with geographically dispersed teams or clients
Another advantage is Legal Validity of the process. Given the technology of trust behind it, digital and electronic signatures are legally recognized in many jurisdictions around the world and this ensures the digital signature is enforceable and admissible as evidence in legal proceedings.
Again, there is an audit trail and accountability System. Court Registries do not have records of documents authenticated over the years. Digital and electronic signatures often include features that create an audit trail. This means that the signing process is recorded and timestamped, providing a comprehensive record of who signed the document, when it was signed, and other relevant details. This enhances accountability and helps resolve disputes or discrepancies.
Indeed, the Evidence Act, 2023 will offer an advancement to our litigation process, afford the advantages of digitization to increasingly find expression in various industries and sectors, ranging from business contracts and financial transactions to government documents and healthcare records.
The embers of technology are further fanned into flame by this new amendment as it affords leading tech platforms like ToNote to deploy internationally acclaimed trust processes in support of actualizing not only this law for the judiciary, but also extend same to the private sector.
The oath taking and document authenticating handlers like the Notaries Public will have an efficient way of notarizing documents in real time and for more value-add to their services and project them as best practice practitioners as their counterparts in other climes.
There is the need also, to consider the recognition of a regulation on electronic identification, authentication and trust Services in the Africa region that would recognize the legal validity of digital signatures and their admissibility as evidence across member states.
This Article Was Written by: Muyiwa Ayojimi, a legal practitioner and Convener- Society for Notary Public in Nigeria, writes from Lagos-Nigeria.
