What is Evidence?
Black’s Law Dictionary defines “evidence” as something, including testimony, documents and tangible objects that tends to prove the existence or non- existence of an alleged fact.
This article seeks to examine the mode of admissibility of electronically generated evidence in Nigeria.
Types of Evidence?
These classification according to legal writers and classification in compliance with the provisions of the Act. These are; Primary and Secondary Evidence, Direct or Testimonial Evidence, Circumstantial Evidence, Real Evidence, Documentary Evidence and Electronic Evidence.
What is Electronic and Digital Evidence?
In discussing electronically generated evidence, first, one must establish that the basis of admissibility of this type of evidence is contained in Sections 4-13 of the Evidence Act, 2011 which elaborate on details of fact, popularly referred to as “relevancy of facts”.
Prior to the Evidence Act 2011, the various laws on evidence from 1958 to 2011, were silent on the admissibility of electronic evidence. Admissibility of such evidence depended on fulfilling the requirements that governed the admissibility of documents generally.
Therefore, there is paucity of reported Nigerian cases touching on the admissibility of electronic evidence in the Nigerian legal proceedings.
A case had been decided by the Supreme Court on the admissibility of electronic evidence. That is the case of Dr Imoro Kubor v Hon. Seriake Henry Dickson 2013) 4 NWLR (Pt.1345), 534.
Also, Section 84 of the Evidence Act makes elaborate provisions for the admissibility of electronically generated evidence. From the wordings of section 84(1), it is clear that the admissibility of the computer generated evidence can only sail through only and if the conditions spelt out in section 84(2) of the Act is fulfilled.
The conditions referred to in subsection (i) of this section are;
a) that the documents containing the statement was produced by a computer during a period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
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 of the kind contained in the statement of the kind from which the information so contained is derived;
c) that throughout the material part of that period, the computer was operating properly or if not, that in any respect in which it was not operating properly, or was out of operation, during that part of that period, was not such as to affect the production of the document or the accuracy of its contents and
d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
What is Electronic-Signature and What Is the position of the law on E-signature?
An electronic signature is not defined in any Nigerian statute, but the U.S Electronic Signatures in Global and National Commerce Act, defines it as “ an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign a record.”
According to Section 17 of the Cybercrimes (Prohibition and Prevention etc) Act, 2015 provides that “ electronic signature in respect of purchases of goods, and any other transactions shall be binding.” Section 93(2) of the Evidence Act, 2011 acknowledges that an electronic signature satisfies the rule of law as to signature. The joint provision of these laws grants legitimacy to an online transaction that requires a signature and effectively made it binding on parties to it as well as satisfying the requirement of the law.
Section 93(3) of the Evidence Act, 2011 provides that “a 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.” The provision covers the procedure for authentication, proving the execution and verifying the authenticity which is more apposite in the context of Digital Signature.
Digital/E-signature is binding in Nigeria and admissible in Nigerian Courts as long as the requirement of the law is satisfied. Section 84 of the Evidence Act, 2011 provides the procedure for tendering of electronic evidence.
What are the limits, burden and Opportunity of Electronic-Signature in Nigeria?
According to Section 93 of the Evidence Act 2011, electronic signatures are accepted as satisfactory evidence that a document was properly signed. This is further affirmed by section 17 (1) (a) of the Cybercrimes (Prohibition, Prevention, Etc) Act, 2015 (the Act) which provides that electronic signatures relating to purchase of goods and any other transactions are binding. Any other transactions would include transactions to provide services.
However, Section 17(2) (a)-(h) of the Cybercrimes Act provides certain transactions to be excluded from contractual transactions that are valid by virtue of electronic signatures, such as:
Creation and execution of wills, codicils, and or other testamentary documents; Death certificate; Birth Certificate; matters of family law such as marriage, divorce, adoption and other related issues; Issuance of court orders, notices, official court documents such as affidavit, pleadings, motions and other related judicial documents and instruments; Any cancellation or termination of utility services; and others listed in the Act.
The Supreme Court in the case of Esso West Africa Inc. V. T. Oyegbola (1969) NMLR 19, decided almost five decades ago said that “the law cannot be and is not ignorant of the modern business methods and must not shut its eyes to the mysteries of computer.”
Hence, the law cannot be blind to the reality of our daily living in modern life. The internet has reduced the traditional idea and necessitated the law to stay abreast and relevant. The use of digital/e-signature has no doubt ease doing of transactions and it is hoped the scope can be expanded to accommodate other transactions currently restricted under Section 17(2)(a) – (h) of the Cybercrimes Act, 2015. It is hoped that filing of court processes can be fully automated soon and even service of processes can be done in the same way to ease the stress of legal practitioners and everyone concerned.
It is pertinent to state that the Council of Legal Education and the National Universities Commission should find a way to introduce the teaching of electronic evidence in Nigerian universities as a core course; this should encourage or compel law students (as potential lawyers) to acquire knowledge of computers skills.
In conclusion, Electronic signatures can also provide a means of progressing transactions at this time as they are valid and enforceable. To prevent future disputes, contracting parties can amend existing contracts to include an addendum stating electronic signatures would be binding on the parties and where relevant, agree on procedures for confirming/authenticating electronic signatures. The addendum may also include a clause on sufficiency of documents signed in counterparts.