Like a thunderbolt, the Evidence (Amendment) Act of 2023 emerged, streaking through the legal firmament in Nigeria with awe. The Evidence (Amendment) Act shall, where the context so admits, be referred to as the Amended Act.

There must be very few lawyers who were aware of the process leading to its enactment, given the surprise that attended its publication in legal circles. It is also doubtful if there was ever any public hearing conducted by any of the chambers of the National Assembly to assemble and articulate the views of the general public and stakeholders over the bill before its enactment into law. If this is correct, a critical legislative stage must have been omitted.

JUSTICE ALABA OMOLAYE-AJILEYE interrogates the new law.

AN OVERVIEW OF THE PROVISIONS OF THE EVIDENCE (AMENDMENT) ACT, 2023

                                                          BY

HON. JUSTICE ALABA OMOLAYE-AJILEYE, (rtd) PhD

1. Introduction

Like a thunderbolt, the Evidence (Amendment) Act of 2023 emerged, streaking through the legal firmament in Nigeria with awe. The Evidence (Amendment) Act shall, where the context so admits, be referred to as the Amended Act. There must be very few lawyers who were aware of the process leading to its enactment, given the surprise that attended its publication in legal circles. It is also doubtful if there was ever any public hearing conducted by any of the chambers of the National Assembly to assemble and articulate the views of the general public and stakeholders over the bill before its enactment into law. If this is correct, a critical legislative stage must have been omitted.

The importance of a public hearing as a legislative process cannot be over-emphasised. Public hearings play a crucial role in the process of enacting laws by providing an avenue for citizens and stakeholders to express their views and concerns about the proposed legislation. This helps in ensuring transparency, accountability, and inclusivity in the legislative process. Public hearings also allow lawmakers to gather diverse perspectives, identify potential flaws, and make informed decisions that better reflect the needs and interests of the public. It also fosters public engagement, enhances the legitimacy of laws, and contributes to a more democratic and well-rounded legislative process.

From the endorsement of the Act, President Bola Ahmed Tinubu, GCFR., assented to the bill on the 12^th day of June 2023. It is embodied in the certification of the Act by the Clerk to the National Assembly, Sani Magaji Tambawal, that the bill was passed by the Senate on 17^th May 2023, while, shockingly, the House of Representatives was said to have passed it on 22^nd December 2023!   Surely, there is something incongruous here.

The amendment affects eight sections of the Evidence Act, 2011 (hereinafter called the Principal Act). The affected sections are Sections 84, 93, 108, 109, 110, 119, 255, and 258 of the Principal Act. The said sections directly relate to electronic evidence in one way or another.

It is stated in the Explanatory Memorandum of the Amended Act that the amendment is intended to bring the Evidence Act, 2011 in tandem with global technological advancements. It is also made applicable to all judicial proceedings in or before courts in Nigeria.  In this modern age, it is a laudable effort to attempt to bring the provisions of any law to be in harmony with modern technology. What should be of more considerable importance, however, is how to facilitate the admissibility of the evidence generated by electronic devices.

Should anyone request my views on the subject of this amendment, I would share two thoughts. First, the National Assembly stands to be commended for considering the necessity to amend Section 84 of the Evidence Act. Since 2011, when the old Evidence Act was repealed and replaced with the Evidence Act, 2011, there has been a clamour for the amendment of Section 84, arising from the complexities encountered in its application. Indeed, one major challenge to the admissibility of electronic evidence in Nigeria is the inadequacy of the provisions of Section 84 of the Evidence Act, 2011. Despite the boldness and assertiveness of the section, its provisions do not adequately address some fundamental admissibility issues. A careful study of the Amendment Act, however, shows that what the National Assembly has done in respect of Section  84 is no more than tinkering with the said section. What is required of Section 84 is not a peripheral or cursory amendment but a deep-seated legislative effort that addresses the basic underlying challenges posed by the said section to the admissibility of electronically-generated evidence. One’s excitement also dwindles against the backdrop of the discovery that the provision of Section 84(1) of the Principal Act is reframed in Section 84B of the Amended Act,  without repealing Section 84(1) of the Principal Act. This has a high prospect of aggravating the intractable state of the law and its application, as it appears we now have two sets of provisions covering the same subject, one from the United Kingdom (i.e., Section 84(1) of the Principal Act), and the other from India (i.e., Section 84B of the Amended Act).    

Second, I would also commend the lawmakers over the introduction of the provisions relating to electronic authentication techniques, digital signature, e-Affidavit, and e-Gazette, but would quickly add that what we have so far in the Amendment Act, is nothing but an exercise in tokenism, in the absence of e-Commerce legislation that holistically addresses electronic transaction issues once and for all.

• Amendment of Section 84 (1) and Introduction of Non-obstante Clause.

Section 84(1) in its original form stipulates that a statement contained in a document produced by a computer shall be admissible in evidence if it is shown that the conditions in subsection (2) of the section are satisfied concerning the statement and the computer in question. It reads:

84(1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.

As a way of historical background, it is to be recalled that the whole of Section 84 of the Principal Act was a reproduction of Section 5 of the UK Civil Evidence Act, 1968, and Section 69 of the Police and Criminal Evidence Act, 1984 of the United Kingdom (UK), PACE Act, 1984. Section 5 of the UK Civil Evidence Act[1] was repealed in 1995, that is, sixteen years before the enactment of the Evidence Act, 2011. Section 69 of the PACE Act was also repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. That was twelve years before the enactment of the Evidence Act, 2011.  It follows, therefore, that when Section 84 was incorporated into the Evidence Act, 2011, Nigeria simply adopted a provision that had already been repealed in the UK. Section 5 of the UK Civil Evidence Act was repealed following the recommendation of the UK Law Commission that the framework under which Section 5 was enacted had become outdated following developments in computer technology and that there was no need for having a different regime for computer-generated documents.[2] The UK Law Commission, therefore, recommended a presumption for admitting electronically-generated evidence, stipulating that in the absence of evidence to the contrary, the court will presume that mechanical instruments or electronic devices were working in order at the material time when they were used.[3] This has remained the law in the United Kingdom to date.

While Section 84(1) remains in force, the Amended Act introduces a similar provision with a non-obstante clause in Section 84B in the following words:

Notwithstanding anything contained in this Act, any information contained in an electronic record, which is printed on a paper, stored, or recorded on 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. (The words highlighted mine).

The above provision is a re-enactment of Section 65B(1) of the Indian Evidence Act 1875 (as amended). This implies that the legal framework for admissibility of electronically-generated evidence in Nigeria now, interestingly, encompasses both the repealed UK[4]  and Indian[5] legal regimes.

• The Scope of the Non-obstante Clause in Section 84B of the Amended Act.  

What is significant in the adoption of Section 65B of the Indian Evidence Act (as amended), which is now Section 84B of the Amended Act, is the introduction of the non-obstante clause: “Notwithstanding anything contained in this Act.”  My first task here is to attempt to determine the scope of the clause in the new Section 84(B).

 The word “notwithstanding” is defined as “without prevention or obstruction from or by”, “in spite of”[6] or, more simply, “despite”.[7] The statutory phrase ‘notwithstanding any other law’ has been explained in many cases in Nigeria, one of which is N.D.I.C. v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880)107 paras. E-F), where the Supreme Court stated that when the term “notwithstanding” is used in a statute, it is meant “to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the section may fulfill itself.”[8] Generally, when the Legislature incorporates a non-obstante clause in a statute, it intends such a statute or section to prevail over or override any contrary law.[9] The Amended Act in Section 84B typically signals this intent but to a limited extent. Special note must be taken of the fact that the non-obstante clause in Section 84B, affects only “information contained in an electronic record which is printed…or copied…” In clear terms, the non-obstante clause enables 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 be ALSO  a document.”[10] (Capitalised word mine).This means, it simply provides additional items such as “copies” and “printouts in optical or magnetic media or cloud computing “ to be included in the definition and proof of “document.” In short, the non-obstante clause in Section 84B of the Amended Act does not override any portion of Section 84 of the Principal Act but simply expands the scope of the meaning of “document.” And, more relevant to the admissibility issue is that the four conditions stipulated under Section 84 (2)(a-d) of the Principal Act, remain applicable to “a statement contained in a document produced by a computer”  (Section 84(1) of the Principal Act) as it is to the admissibility of electronic records under Section 84B of the Amended Act with equal force. It follows that with the limited scope of the non-obstante clause in Section 84B, admissibility or proof of electronic records must follow the script of Section 84(2) of the Principal Act.  In other words, a proponent of an electronic record is still required to fulfill all the conditions prescribed under Section 84(2)(a-d) of the Principal Act. For the avoidance of doubt, the phrase, “if the conditions mentioned in this section are satisfied in relation to the information and computer in question” in Section 84B of the Amended Act, refers to the conditions under Section 84(2)(a-d) of the Principal Act. The direct effect of this is that our courts may still have to continue to contend with all the challenges associated with the admissibility of electronically-generated evidence under Section 84. Put more succinctly, as far as the issue of admissibility of electronically-generated evidence is concerned, Section 84B has altered nothing.

• Amendment of Section 84(2) (a), (b), (c), and (d)

Section 84(2)(a) is amended by inserting the word “electronic records” after the word “document.” The amended  Section 84(2)(a) now  reads:

“That the document or electronic records containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not by anybody, whether corporate or not, or by any individual.

A new Section 84(2)(b) now exists as the Amended Act substitutes Section 84(2)(b) with another one. What we have as new Section 84(2)(b), however, is no more than a redraft of Section 84(2)(b) of the Principal Act with the removal of the words “information of the kind contained in the statement” and replacement of same with the words “information of the kind contained in the electronic records.”  The new Section 84(2)(b) now reads:

“(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or electronic records of the kind from which the information so contained is derived.

 The words “electronic records” are also inserted after the words “document” and “statement” in Section 84(2)(c) and Section 84(2)(d) respectively.  The same insertion of the words “electronic records” is effected in Section 84(4)(a) and (b) along with Section 84(5) after the words “document” in the two subsections.

The amendment of Section 84(2)(a),(b),(c ), and (d) by mere insertion or substitution of the words “electronic records” in the subsections may be said to be cosmetic. This is because Section 84(1) of the Principal Act already provides for the admissibility of “a statement contained in a document produced by a computer.” Section 258 defines ‘Statement’ as including “any representation of fact whether made in words or otherwise.”  ‘Document’ is also widely defined under the same section as it includes amongst other things, “any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter.” “Computer” is defined as any device for storing and processing information. Undoubtedly, the combined effect of the definitions of “computer,” “document,” and “statement” under Section 258 of the Principal Act supports the assertion that the concept of “statement contained in a document produced by a computer,” in Section 84(1) of the Principal Act is wide enough to cover “electronic record” since electronic record must necessarily be a product of a computer. Any attempt to draw a line between “a statement contained in a document produced by a computer” and  “electronic record” is a distinction without a difference.

One argument that can be advanced in favour of the inclusion of “electronic record” as an amendment to Section 84 of the Principal Act, nevertheless, is  that the inclusion serves the useful purpose of simplifying the law regarding the status of electronic records, especially, with the clear definition of the term  “electronic record” in Section 258 of the Amended Act  as “data, record or data generated, image or sound stored, received, or sent in an electronic form or microfilm.”

Secondly, it is well-known that computerised operating systems and support systems cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard discs). Electronic record produced therefrom has to be taken in the form of a printout. S.84B of the Amended Act, therefore, renders admissible, without further proof or production of the original in evidence, the printout of an electronic record contained on a magnetic media, subject to the satisfaction of the conditions mentioned in sub-section 84(2) of the Principal Act.

• Information in Electronic Form – Section 84A

One of the innovations introduced by the Evidence Amendment Act, 2023 provides for recognition of electronic records. Under Section 84A, it is stated that any document which is required by law to be in writing, typewritten, or in printed form, will be considered to be valid if it is rendered or made available in electronic form and accessible for subsequent reference in the future. It is reproduced hereunder:

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.

The fact that the provision of Section 84A(a) is just finding its way into the pages of our statute book in 2023 is a reflection of how the law in this country lags behind technology. In this regard, our courts, commendably, have been proactive enough to acknowledge and recognise records in electronic format long before now, without waiting for any amendment. For instance, in Continental Sales Limited v R. Shipping Inc.[11] the Court of Appeal, as far back as 2012 (the case was decided on 26^th April, 2012), accepted service of a notice of hearing through email as proper service. His Lordship Ogunwumiju, JCA, (as she then was), in respect of a computer-generated mail  held thus:

“The spurious argument that the service of notice was not in writing cannot fly. Email is a form of communication that is set down in writing. It is not oral. The fact that it is electronic is immaterial. It is not in the air. It can be downloaded and as real as a hard copy of the letter or mail in your hand.”[12]

In a similar vein, the Supreme Court, in Compact Manifold & Energy Services Limited v Pazan Service Nig. Ltd[13] accepted the service of a hearing notice by the use of a short message service (SMS) as a proper service. In his lead judgment, Galinje, JSC held:

I agree with the lower court that at this age of information technology super highway, it will be foolhardy for any litigant to insist on being served with a hard copy hearing notice. Once a notice is sent to the GSM numbers supplied by the litigants, that is sufficient.[14]

In concurring with the lead judgment, Okoro, JSC., also stated: …at this age of information technology, the service of hearing notice through text message by the registrar of a court is good and sufficient notice.[15]

It is hoped that our courts will leverage Section 84A and continue with this dynamic approach to interpreting the provision of the said section by extending the magnanimity of the section to cover online transactions that dominate this current age, in the absence of e-commerce legislation. Today, contracts are formed in cyberspace and not just on papers and documents. They are also signed electronically. Where the offer and acceptance of such a contract are expressed in electronic form or through an electronic record, such contract ought, in the language of Section 84A(a), “be deemed to have satisfied the requirement” of writing. In order words, such a contract shall not be deemed to be unenforceable solely on the ground that electronic form or means was used to execute it. This is expedient, taking into account the growing reliance on electronic means for commercial transactions.  In the Indian case of Trimex International FZE Ltd. Dubai v. Vedanta Aluminium,[16] the Supreme Court of India held that where the offer and acceptance had been made by the parties through e-mail the same shall not affect the implementation of such a contract.

• Section 84A(b) – accessible so as to be usable for a subsequent reference.

 The second requirement of accessibility under Section 84A(b) is desirable because of the peculiar nature of electronic evidence. It is known that electronic data is intangible, and by its very nature, transient. Thus, it is expedient to require it to be secured and be available for future reference.

• Electronic and Digital Signatures

The word ‘signature’ is not a modern invention. Its meaning predates the advent of the computer age. It has always been understood as a person’s distinctive name or mark that he uses on a document.[17] Electronic signature, is, however, a product of advancement in technology. Without necessarily defining an electronic signature, Section 93(2) of the Principal Act merely acknowledges and approves the legal effect of an electronic signature as equivalent to a hand-written one. The said Section 93 is now amended by adding the words “or digital signature” after “electronic signature” in subsections 1-3 thereof. Under the Principal Act, only electronic signature is mentioned. The new Section 93(2) of the Amended Act now mentions “digital signature.” It reads:

93(2). Where a rule of evidence requires a signature or provides for certain consequences if a document is not signed; an electronic signature or digital signature satisfies that rule of law and avoids those consequences.

One significant feature of the Amended Act is the legislative attempt at defining both electronic and digital signatures. The Principal Act conspicuously omits the definition of electronic signature. In a way, this gap has been filled. Section 258 of the Amended Act defines “electronic signature” as: “authentication of any electronic record by a subscriber by means of the electronic techniques specified in the Second Schedule and includes digital signature”, while “digital signature” means an “electronically generated signature which is attached to an electronically transmitted document to verify its contents and the sender’s identity.”

Some observations can be made here. First, going by the two definitions of “electronic signature” and “digital signature” in Section 258 of the Amended Act, it may be difficult to distinguish between the two, as it is stated, that “electronic signature includes digital signature.” This also suggests that a digital signature is a form of electronic signature. Electronic signature encompasses digital signature. Second, a digital signature is further described as an “electronically generated signature”. This also tends to blur the distinction between the two terms.

There is a reference in the definition of digital signature to “electronic techniques specified in the Second Schedule.”  This is curious, as neither the Principal Act nor the Amended Act exhibits any schedule to be referred to. I dare say, this is yet another evidence of a casual approach adopted in the enactment of the Evidence (Amendment) Act, 2023.

Be that as it may, The United Nations Commission on International Law (UNCITRAL) Model Law on Electronic Signatures provides a good guide in ascribing meaning to the concept of electronic signature. Nigeria, however, is yet to give favourable consideration to or adopt the Model Law which was established in 2001 for countries of the world as a model legislation to facilitate the use of electronic signatures. Article 2(a) of the UNCITRAL Model Law defines electronic signature as:

“data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message. [18]

In simple language, an electronic signature is a way of representing a signature on an electronic document. The term refers to several different methods of capturing a signature on an electronic document or device. There is no specific way or form electronic signature takes. Indeed, section 93(3) of the Principal Act, 2011 broadly states that electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, to proceed further with a transaction to have executed a symbol or security procedure to verify that the electronic signature is that of the person. 

The above points are well adumbrated in my book, Electronic Evidence, (2018. updated, 2019)[19], where it is further stated thus:

At a basic level, therefore, any mark or method that captures a person’s intent to approve or accept the contents of an electronic document constitutes an electronic signature of that individual. The nature of the mark or how it was created is not important. What is important is proving who made the mark and the fact that the document was not changed subsequently. Section 17(2) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 places the burden of proving that the electronic signature does not belong to a purported originator of such electronic signature on the contender.

The following are some of the simple ways of affixing an electronic signature: (a) a manual signature transmitted by facsimile. This is where a handwritten signature on paper is scanned to an image and the image is placed on a document electronically,[20] (b) typing a name in a document electronically,[21] (c) using a personal identification number (PIN),[22] (d) using a password,[23] (e) biometric measurements, such as measuring a person’s physical characteristics e.g. height, weight, voice recognition, retinal scan, facial recognition, and even DNA patterns,[24] (f) biodynamic measurement[25] – series of measurements which record the behaviour of the person as he performs that action: the speed, rhythm, pattern, etc., and (g) clicking “I agree”, “I accept” [26] (h) alphanumeric string or asterisk[27] to confirm an intention to enter into online transactions, amongst other means.

In respect of digital signatures, this is more complex than the different forms of electronic signatures listed above. In a well-articulated work published in Richmond Journal of Law and Technology, Stephen E. Blythe[28], explains the various steps involved in digital signature thus:

Many laymen erroneously assume that the digital signature is merely a digitized version of a handwritten signature. This is not the case, however; the digital signature refers to the entire document. The technology used with digital signatures is known as Public Key Infrastructure, or “PKI.” The first step in utilizing this technology is to create a public-private key pair; the private key will be kept in confidence by the sender, but the public key will be available online. The second step is for the sender to digitally “sign” the message by creating a unique digest of the message and encrypting it. The third step is to attach the digital signature to the message and to send both to the recipient. The fourth step is for the recipient to decrypt the digital signature by using the sender’s public key. If decryption is possible, the recipient knows the message is authentic, i.e., that it came from the purported sender. Finally, the recipient will create a second message digest of the communication and compare it to the decrypted message digest; if they match, the recipient knows the message has not been altered. Because PKI verifies the source of a message and its contents, digital signatures are the most advantageous type of e-signature.[29]

From the foregoing, it is clear, a distinction can be drawn between electronic signature and digital signature.

• Authentication of Electronic Records and Proof of Digital Signature

The Amended Act has not adopted any particular mode of digital signature for authenticating electronic records. By the combined effect of the provisions of Section 84C(1) and 2 (a) of the Amended Act, any person may authenticate an electronic record by affixing his digital signature on it or through an authentication technique that is considered reliable. A digital signature or an authentication technique will, however, only be considered reliable in any of the situations specified in Section 84C(3) (a), (b), and (c). The first situation is where the signature creation data can be linked to the signatory or the authenticator and no other person. (Section 84(c)(a) refers). A digital signature will also be considered reliable if any alteration to it after affixing such signature is detectable, and, thirdly, if any alteration to the information made after its authentication by the digital signature is detectable (Section 84C (b) and (c).

Under Section 84D of the Amended Act, 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. 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 and no other person and stored in such an exclusive manner as may be prescribed.

e-Affidavit and e-Gazette

Sections 108 and 109 of the Principal Act are amended. Section 108 (2) acknowledges affidavits electronically deposed to. A copy of such an affidavit is required to be filed in the court registry and “may” be recognised for any purpose in court.  This is against section 108(1) which stipulates that an original affidavit filed “shall” be recognised for any purpose in court. It may be said that while a court must accord recognition to an original affidavit, the recognition to be accorded an e-affidavit is discretionary. Section 109 of the Amended Act also recognises affidavits deposed to through audio-visual means.

In a significant initiative, the Amended Act introduces the e-publishing of Government Gazettes. According to Section 255(2) of the Act:

Where a law provides that a rule, regulation, notification, or any other matter be published in the Federal Government Gazette, the requirement shall be deemed to have been satisfied if the rule, regulation, notification, or any other matter is published in the Federal Government Gazette or Electronic Gazette.”

Electronic Gazette is defined under Section 258 of the Evidence (Amendment) Act, 2023 as an “official Gazette published in electronic form.” Government Gazettes reflect official publications of all enactments, rules, regulations, notices, and acts of Government. Gazettes validate and authenticate various kinds of Acts, Laws, Rules, Orders, and Government decisions. With e-Gazettes, accessibility to government activities and publications will be highly enhanced.

Power of the Minister of Justice to Make Rules

Section 255(1) of the Amendment Act confers a discretionary power on the Minister of Justice, who is also currently, the Attorney-General of the Federation to “make regulations generally prescribing further conditions with respect to admissibility of any class of evidence that may be relevant under this Act.” Reference to “any class of evidence” in this subsection will undoubtedly include electronic evidence which, in recent times, has emerged as a genre of evidence in a class of its own. The extent to which the exercise of this power can go in filling the legislative gap of making the laws of the country keep pace with technological advancement is debatable. This leads me to the conclusion of the matter and why I consider the Amended Act an exercise in tokenism.

Conclusion

As of today, there is a total absence of a comprehensive legislative framework for electronic commerce in Nigeria. The National Assembly has a noble duty to perform here to urgently do something to arrest this unpleasant situation. All over the world, due to the growing use of technology, laws are being enacted to protect customers and consumers who engage in e-commerce or online transactions. Sadly, there is none in existence in Nigeria. This is despite the deliberate efforts of international organizations to assist member nations in drafting model laws for them to domesticate. Incidentally, Nigeria belongs to quite a number of these international organisations.

For instance, as far back as 1996, the United Nations Organization (UNO) drafted the United Nations Commission on International Trade Law (UNCITRAL) Model Law[30] on Commerce to assist member nations in framing legislation that would enable and facilitate e-transactions. The Model Law also covers a wide range of subjects, such as legal recognition of data messages, admissibility and evidential weight of data messages, retention of data messages, recognition of data messages etc. In the year 2000, Law Ministers and Attorney-Generals of Commonwealth jurisdictions at their meeting for the year recognized that common law rules of evidence were not adequate to deal with technological advancement in the world and felt the need to modernise same. An Expert Group was constituted which, ultimately, came up with a draft of the Commonwealth Model Law on Electronic Evidence which member countries were encouraged to adopt to meet new technological possibilities. Virtually all nations around Nigeria have taken advantage of the existence of the Model Laws to enact their domestic legislation to take care of electronic transactions.

For instance, following the availability of these Model Laws, South Africa, in 2002, enacted Electronic Communication and Transactions Act, in conformity with the UNCITRAL Model Law on Commerce. In 2008, Ghana enacted the Electronic Transactions Act (722), 2008, which is an adaptation of the UNCITRAL Model Law. Kenya enacted the Electronic Transactions Act in 2007 and the Information and Communication Act in 2008. Zambia enacted her Electronic and Communications and Transactions Act in 2009.  Tanzania enacted the Tanzania Electronic Transactions Act in 2015. Regrettably, Nigeria, as of the time of writing, has yet to enact its law on electronic transactions.

Nigeria should not be satisfied with the Evidence (Amendment) Act, 2023 whose provisions are a far cry from the UNCITRAL Model Law and its Commonwealth counterpart. It is hoped that the National Assembly will urgently address this issue to place Nigeria on the same pedestal as other nations of the world that are evolving their laws in line with technological advancements.

---

[1] Section 84 is also substantially the same as the repealed Section 69 of the Police and Criminal Evidence Act, 1984 of the United Kingdom, otherwise known as PACE Act, 1984.The said section was repealed by Section 60 of the Youth Justice and Criminal Evidence Act 1999.

[2] (See The Law Commission: The Hearsay Rule in Civil Proceedings. (Law Com. No 216, 1993) Pars. 3.14-3.21. Retrieved from: http://www.lawcom.gov.uk/app/uploads/2016/02/LC.-216-THE-HEARSAY-RULE-IN-CIVIL-PROCEEDINGS.pdf on Sunday, 20th August 2023).

[3] Stephen Mason Electronic evidence: A proposal to reform the presumption of reliability and hearsay. Retrieved from:https://daneshyari.com/article/preview/466753.pdf Monday, 20/08/2023

[4] Section 69(1) of the PACE Act, 1984 and Section 5 of the UK Civil Evidence Act.

[5] Section 65B(1) of the Evidence Act, 1875 of India as amended. 

[6] (Webster’s 3rd New Internet. Dict. (2002) p. 1545)

[7] (Merriam‑Webster’s Collegiate Dict. (11th ed. 2004) p. 848.

[8] N.D.I.C. v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107 P. 320

[9] Tarun Jain†. Circumscribing Non Obstante Clauses: Tracing the New Jurisprudence by Tarun Jain† Cited as: 2023 SCC OnLine Blog Exp 52. Retrieved from: https://www.scconline.com/blog/post/2023/06/16/circumscribing-non-obstante-clauses-tracing-the-new-jurisprudence/ 0n 7^th September 2023

[10] Section 84B of the AmendedAct refers.

[11] (2013) 4 NWLR (PT. 1343) P. 67

[12] Ibid. P. 85

[13] (2012-2O19) Vol. 1 ACCEE 111. Also reported in (2020) 1NWLR (Pt. 1704) 73 

[14] Ibid. P. 117

[15] Ibid. P. 121

[16] (2010) 3 SCC 1

[17] Black’s Law Dictionary, 9^th Edition, P. 1507

[18] See UNTRICAL Model Law on Electronic Signatures with Guide to Enactment, 2001. Retrieved from: www.uncitral.org/pdf/english/texts/electcom/ml-elecsig-e-pdf on Tuesday, 5/9/2023

 [20] A Omolaye Ajileye, Electronic Evidence, Revised ed. (Jurist Publications Series, Lokoja, 2019) 95

[21] Ibid. P. 95

[22] Ibid. P. 95

[23] Ibid. P. 96

[24] Ibid.P.  96

[25] Ibid. P. 97

[26] Ibid. P. 97

[27] Ibid. P. 98

[28] Security,” Richmond Journal of Law & Technology Volume XI, Issue 2. Retrieved from: https://scholarship.richmond.edu/jolt/vol11/iss2/3/ on Tuesday, 5/09/2023

[29] Ibid. Pp. 4-5. Retrieved from: https://scholarship.richmond.edu/jolt/vol11/iss2/3/ on Tuesday, 5/09/2023

[30] The UNCITRAL Model Law on Electronic Commerce was adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1996 in furtherance of its mandate to promote the harmonization and unification of international trade law, so as to remove unnecessary obstacles to international trade.

• Justice Omolaye-Ajileye is a retired judge of the Kogi State High Court. He is affiliated to Baze University, Abuja

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