Introduction
On 12 June 2023, President Bola Ahmed Tinubu signed the Evidence (Amendment) Act 2023 into law (“Amendment Act”). [1] The Amendment Act had a clear objective: to bring Nigerian evidence laws up to date with the global technological advancements in the field of evidence. It achieved this by implementing several important changes.
Firstly, it revised the provisions related to computer-generated evidence, adapting them to the digital age by introducing a new form of computer-generated evidence called “electronic records”. Secondly, it addressed the process of oath-taking by allowing for electronic oaths, particularly in cases like Affidavits and similar documents. Additionally, it ushered in the era of the Electronic Gazette, permitting the electronic publication of government rules, regulations, and notifications in the official gazette. Lastly, it modernized Nigerian evidence laws on signatures by introducing digital signatures as a new form of signature in addition to existing types of signatures such as electronic signatures and signatures of non-technical means. These changes collectively modernized and adapted Nigerian evidence laws to the evolving technological landscape.
This (short) paper provides an overview of the 2023 Evidence (Amendment) Act, specifically focusing on its provisions concerning electronic and digital signatures to examine the changes in the law.
Provisions of the Law with respect to Electronic Signature on the Evidence Act 2011
Section 93 of Evidence Act 2011 ( “Principal Act”) titled ‘Proof of signature and handwriting and electronic signature‘ under Part V (DOCUMENTARY EVIDENCE) of the Act deals with electronic signatures generally. The purports of the section are herein examined briefly.
(1) Recognition of electronic evidence as admissible in Nigeria.
Section 93 (2) of the Principal Act provides that an “electronic signature” satisfies that rule of law where any rule of evidence requires a signature, or provides for certain consequences if a document is not signed.
(2) Burden of proving the authenticity or reliability of electronic signature
The burden of proof falls on the party making the claim that the digital signature in question belongs to the signatory. S. 93 (1)
(3) How to prove the authenticity or reliability of electronic signature
An electronic signature may be proved in any manner, including by showing that a procedure existed by which it is necessary for a person, in order to proceed further with a transaction, to have executed a symbol or security procedure for the purpose of verifying that an electronic record is that of the person. (93) 3
Provisions of the Law with respect to Electronic Signature on the Evidence (Amendment) Act 2023
The 2023 Amendment Act did not change the existing legal principles about electronic signatures in the 2011 Evidence Act. Instead, it introduced a new type of signature called “digital signature” and outlined how to prove its authenticity, which person bears the burden of proof and its application in evidence generally.
(1) Introduction of “Digital Signature” as distinct from electronic signature.
The Evidence Amendment Act made two key changes. First, it amended s.93 of the Principal Act by adding “digital signature” after “electronic signature”. [2] Second, it replaced section 255 of the Principal Act 2011 with a new section (s.255) that now provides definitions for both electronic signatures and digital signatures. It’s important to highlight that the Principal Act did not previously define the term “electronic signature.[3] We shall proceed to reproduce the two definitions to see the intended difference.
“Electronic signature” means authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature.
“Digital signature” means an electronically generated signature which is attached to an electronically transmitted document to verify its contents and the sender’s identity.
A definition analysis of the two definitions suggests the following:
(a) An electronic signature is a broader term that encompasses encompassing various electronic authentication techniques. Importantly, this definition explicitly states that “electronic signature” includes “digital signature,” suggesting that a digital signature is a subset or a specific type of electronic signature. The implication of this is that a digital signature can be used to authenticate all forms of documents that can be authenticated with electronic signatures.
(b) A digital signature is a more specific form of electronic signature with distinct characteristics.
(c) It is electronically generated, which implies that it is created using cryptographic techniques, often involving a unique key pair (private and public keys).
(d) The purpose of a digital signature is to verify two important aspects: the contents of the electronically transmitted document (integrity) and the identity of the sender (authentication).
(2) Application of digital signature.
The Amendment Act amended s.84 of the Principal Act by inserting new sections namely s. 84A – 84D. The sections introduced a new form of computed generated evidence and referred to them broadly as “Electronic Records”.
The Amendment Act provided that the authenticity and reliability of “electronic records” may be proved with “digital signature” by affixing the digital signature of the maker on the record. [4]
(3) How to prove the authenticity or reliability of a digital signature
However, such digital signature will only be relied upon for the purpose of authenticating electronic records only if:
(a) The signature creation data can be linked to the signatory and no other person;
(b) Any alteration to the digital signature after affixing is detectable;
(c) Any alteration to the information made after its authentication by the digital signature is detectable.[5]
(4) The burden of proving the authenticity or reliability of a digital signature
Section 84D provides that Except in the case of a secured digital signature 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.” So, the burden of proof falls on the party making the claim that the digital signature in question belongs to the signatory. By implication, the Amendment Act 2023 recognized a sub-category of digital signature (secured digital signature) which does not require proof subject to the condition set out in s.84D
See also: Exploring the Key Sources of Nigerian Law: A Comprehensive Guide
Conclusion – The Evidence (Amendment) Act 2023
The review shows that the existing rules for electronic signatures remain unchanged. The Evidence (Amendment) Act, 2023 primarily introduced a new type of signature called a digital signature, which includes a sub-category known as secured digital signature. Importantly, the burden of proving the authenticity of both types of signatures rests on the party making the claim, meaning that they must prove that the digital signature belongs to the signatory.
References:
- Godwin Omoaka & Munachi Michael, “TEMPLARS Legislative Watch: Evidence (Amendment) Act 2023: Nigerian Evidence Law Accommodates Technological Advancements”, (Templars, 16 August 2023) <https://www.templars-law.com/app/uploads/2023/08/Evidence-Amendment Act-2023-2.pdf> Accessed 1 September 2023
- s. 4 of the Evidence (Amendment) Act, 2023
- s. 9 of the Evidence (Amendment) Act, 2023
- . 3 of the Evidence (Amendment) Act, 2023
- s. 3 of the Evidence (Amendment) Act, 2023
