Legislation Review - The Evidence (Amendment) Act 2023 – Repositioning Dispute Resolution and Corporate Law Practices in Nigeria

I.       Introduction

The rules of evidence are those rules that govern how facts are established in any legal or judicial proceedings. The extant law on evidence in Nigeria is the Evidence Act, 2011 that was enacted to apply to all legal proceedings in or before courts in Nigeria and for related evidential matters and purposes.

On 12th June 2023, the President of the Federal Republic of Nigeria signed the Evidence (Amendment) Act 2023 (“the Act”) into law. The amendment is aimed at bringing our evidence law to be in conformity with global technological advancement. The innovative provisions brought about by this amendment include authentication of electronic records, digital signatures, electronic depositions, electronic gazette etc.

This Business Legislative Review highlights salient provisions of the Evidence (Amendment) Act, 2023. Further, it discusses case law authorities on some of these new provisions and the legal effect of this statutory amendment and its implications for dispute resolution and corporate law practices in Nigeria.

II.    Salient Provisions of the Evidence (Amendment) Act, 2023

1.                 Electronic Records and Information in Electronic form

Section 84 of the Evidence Act, 2011 (“Principal Act”) deals with the admissibility of statement in a document produced by a computer. This section is popularly referred to as the section on computer-generated evidence -see Kubor v. Dickson (2013) 4 NWLR (Pt 1345) 534 p. 425 paras. E-F.

Section 2 of the Evidence Amendment Act, 2023 amends section 84 of the Principal Act by inserting “electronic records” after the word “document” in subsections (2)(a), (2)(c), (4)(a) and (b); and (5)(c). In subsection (2)(d) “electronic records” is to be inserted after the word “statement”. Subsection (2)(b) is substituted with a new paragraph – “(b) that 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 10 of the Evidence Amendment Act, 2023 amends Section 258 of the Principal Act to define ‘electronic record’ to mean data, record or data generated, image or sound stored, received, or sent in an electronic form or microfilm.

In terms of information in electronic form, Section 3(1) of the Act amends Section 84A, to states that “where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, them 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.”

The new Section 84(b) provides for the admissibility of records in a computer by stating that 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 in it of which direct evidence would be admissible.

2.              Digital Signature

The new Act recognises the validity of digital signature. The new Section 84(c) states that an electronic record can be authenticated by the affixing of a digital signature on it. Section 84(D)of the Act places an obligation to prove that a digital signature is that of a person, except in the case of a secure digital signature. Accordingly, a digital signature shall be deemed to be secure if the signature creation data - (a) at the time of affixing the signature, was under the exclusive control of the signatory and no other person; and (b) was stored and affixed in such exclusive manner as may be prescribed.

Section 10 of the Evidence Amendment Act, 2023 which amends the Principal Act defines a “digital signature” to mean an electronically generated signature which is attached to an electronically transmitted document to verify its contents and the sender’s identity.” Further, an “electronic signature” is defined as an authentication of any electronic record by a subscriber by means of the electronic technique specified in the second schedule and includes digital signature.

In Inemiebi V. State (2022) LPELR–57020 (CA) the Court defines a signature as "simply someone's name or writing expressed in a unique manner consistently to identify the person and signify his consent to a document." Informal e-mail signature has been held by the Court to satisfy the Statute of Fraud - see Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd (2012) EWCA Civ 265. Further, the Courts have held that informal e-mail sign-off plus auto-appended name and contact details satisfy the statutory requirement for a signature - Neocleous v Rees (2019) EWHC 2462.

3.                 Administration of Deposition Electronically

Section 108 of the Principal Act which makes it mandatory for the original copy of an affidavit to be filed in court and its recognition for any purpose in court was amended by Section 5 of the Act.

Section 5 (2) of the new Act, recognises that an affidavit can be deposed to electronically before any person duly authorised to take affidavits, and that a copy of such affidavit shall be filed at the court registry and may be recognised for any purpose in the court. Sections 109 and 110 of the Principal Act on swearing of an Affidavit in Nigeria or sworn in any country other than Nigeria, has now been amended to include whether “in person or through audio-visual means”.

Section 8 of the Act also amends Section 119(2) of the Principal Act by stating that if the affidavit is taken through audio-visual means, then the electronic records shall state which audio-visual method was used and the date on which it was used.

4.                 Electronic Gazette

Section 255 of the Principal Act is amended by Section 10 of the Act by the inclusion of a subsection (2) – “where a law provides that rule, regulation, or any other matter be published in the Federal Government Gazette, the requirement shall be deemed to have satisfied if the rule, regulation, notification, or any other matter is published in the Federal Government Gazette or Electronic Gazette.

Section 10 of the Act amends Section 258 of the Principal Act to define “Electronic Gazette” to mean official Gazette published in the electronic form.

III.            The Legal Effect of the Amendment

Section 22 (1) of the Interpretation Act Cap I23 Laws of the Federation of Nigeria 2004  states that where an enactment is amended by the insertion or omission of words or by the substitution of words for other words, then on printing the enactment at any time after the amendment takes effect the person authorised to print the enactment shall, if so, directed by the attorney-general of the Federation, print the enactment as so amended. 

On the effect of the Amendment of a statute, the Court in the case of Williams v. Akintunde (1995) 3 NWLR (Pt.381) 101 stated that “the effect of an amendment of a statute is to write the amended section into the Act and once the statute has taken place and the Amendment effected the inserted provisions become part of the Act”. In the instant case, notwithstanding that the Amendment was made to the Legal Practitioners Act by a Decree, the effect of Decree No. 21 is to write the amended paragraph into the Act and once the Decree, has taken effect and the Amendment has been affected, the inserted provisions become part of the Act and their validity has to be determined as provision of an Act.

Further, questions might often arise regarding when an Amendment takes effect, in the case of House of Representatives v. S.P.D.C.N (2010) 11 NWLR (PT. 1205) 213, the Court held that an Amendment takes effect not from the date when the Amendment is made, but from the date of the original document, which it amends.

IV.    The Statutory Amendment complements new and extant Corporate Law Practices.

The enactment of the Companies and Allied Matters Act 2020 has brought about new corporate law practices in Nigeria, especially with the introduction and use of technology in several facets of corporate business.

Notably, the CAMA 2020 contains several electronic and technological innovations. Some of these innovations are –

i)                  Company records can be maintained in electronic format.

ii)               All companies will accept electronic share transfer forms.

iii)             a private company may hold its general meeting electronically provided that such meeting is conducted in accordance with the articles of the company.

iv)             Notices may be given by electronic mail to any member who has provided the company an electronic mail address.

v)                Any document required to be annexed to the annual return may be delivered to the Corporate Affairs Commission either in hard or soft copy.

In addition to the above, most corporate processes and regulatory interface with the Corporate Affairs Commission (CAC) are now done electronically irrespective of the corporate entity or the nature of the transaction. These innovations have led to digitalisation and the processing/authentication of document electronically using scanning process and electronic signature. It is certain that the Evidence (Amendment) Act, 2023 has now obviated any concerns about the legality of these corporate law practices, especially in the light of the Relation Back Doctrine that back dates the validity of these acts to the date of the initial enactment.

V.         CONCLUSION

This new legislation upgrades and aligns evidential admissibility requirements that have far-reaching implications for litigation and corporate law practices in Nigeria with global standards, especially on the use of modern technology in the administration of justice in Nigeria. The Act recognising the need for the use of technological advancements to improve efficiency, eliminate administrative bottlenecks, and facilitate quick dispensation of justice is a game-changer and one capable of improving the country’s standing in the ease of doing business.

Qualifications and Disclaimers: This Publication is prepared strictly for informational purposes. It should not be relied upon or serve as a substitute for proper legal advice. Counsel will not be held liable for any action or inaction that is premised strictly on this paper.

For Further Information, Please Contact –

1.   Mr. Ikemefuna Stephen Nwoye – Founder/Managing Counsel - ikemefunaSnwoye@nigerianbar.ng / +2349033053175

2.  Miss Favour Enam Jideofor - Associate    

3.  Miss Anita Ewere Usiagwu - Paralegal