Category: Law

In a unanimous decision, the three-man panel of justices on the Lagos State Governorship Election Petitions Tribunal on September 25 affirmed the victory of Mr. Babajide Sanwo-Olu of the All Progressives Congress (APC) as the winner of the March 18 governorship election. ROBERT EGBE examines why and how the tribunal processed the issues of the winners’ eligibility to contest and nationality, among others raised by the defeated candidates of the Labour Party (LP), and Peoples Democratic Party (PDP); Gbadebo Rhodes-Vivour and Olajide Adediran

Five months after it began sitting, the Lagos State Governorship Election Petitions Tribunal on September 25 upheld the victory of Mr. Babajide Sanwo-Olu as the validly elected winner of the March 18 election for the Office of the Governor of Lagos State. The three-man panel of justices unanimously rejected the challenge to Sanwo-Olu and his Deputy Obafemi Hamzat’s eligibility to contest, the issues of certificate forgery, nationality and oath declaration, among others alleged by the defeated candidates of the Peoples Democratic Party (PDP) Mr. Olajide Adediran, and the Labour Party (LP), Mr. Gbadebo Rhodes-Vivour.

The election

The Independent National Electoral Commission (INEC) on Saturday, March 18, 2023 conducted an election for the Office of the Governor of Lagos State.

The frontrunners were Sanwo-Olu, Rhodes Vivour and Adediran popularly known as Jandor. Other political parties also sponsored candidates.

At the conclusion of the poll, the electoral umpire on March 20, 2023 announced the results. It declared and returned the incumbent Sanwo-Olu as winner, having scored 762,134 votes to beat his closest rival, Rhodes Vivour who polled 312,329 votes. Adediran was a distant third with 62,499 votes.

Dissatisfied, Rhodes Vivour and Adediran filed separate petitions challenging the election result and INEC’s declaration. 

Adediran’s petition

Adediran and the PDP listed INEC, Sanwo-Olu and Lagos State Deputy Governor Obafemi Hamzat as the 1st, 2nd and 3rd respondents in the petition. He further joined Rhodes-Vivour as the fourth.

They asked the tribunal to annul Sanwo-Olu’s election and Rhodes-Vivour’s votes.

The petitioners hinged their prayers on the APC’s alleged substantial non-compliance with the Electoral Law as well as the guidelines of INEC, when nominating Sanwo-Olu and Lagos State Deputy Governor Obafemi Hamzat.

In the petition marked EPT/LAG/GOV/01/2023, Adediran and the PDP claimed that at the time of the election, Sanwo-Olu, Hamzat, and LP candidate, Gbadebo Rhodes-Vivour were not qualified to contest the election.

They also claimed that Sanwo-Olu failed to attach a copy of the GCE O/Level result he claimed to have sat for in 1981 along with his form EC9 as required by the Electoral Act 2022.

Adediran said after applying for the Certified True Copy (CTC) of Sanwo-Olu’s 2019 form CF001, it was discovered that a Statement of Result issued by Ijebu Ife Community Grammar School, Ijebu-Ife for the May/June 1981 GCE O Level Examination with examination number 17624/118, that Sanwo-Olu submitted for his first term election as governor of the state was not confirmed by WAEC.

He also accused Hamzat of not including his oath declaration in the INEC Nomination Form EC9.                

He added that “The disqualification of the governorship candidate of LP was also hinged on non-compliance of the LP with the requirement of the Electoral Law in the conduct of the primary election that produced the candidate.

“The notice of the primary election was issued by the state chapter of the party as against the provision that it must be issued and signed by the National Chairman and Secretary of the party.”

He, therefore, prayed that all votes cast for them in the election be declared wasted and that he be declared the winner.

Rhodes-Vivour’s petition

In his petition filed on April 9, Rhodes-Vivour LP listed INEC, Sanwo-Olu, Hamzat and the APC as 1st, 2nd, 3rd, and 4th, respondents.

The petition was predicated on three broad grounds.                        

The grounds are that Sanwo-Olu “was, at the time of the Election, not qualified to contest the election.”  The election of Sanwo-Olu was “invalid by reasons of corrupt practices or non-compliance with the provisions of the Electoral Act 2022) and Constitution of the Federal Republic of Nigeria, 1999.”

Thirdly that Sanwo-Olu was not duly elected by majority of the lawful votes cast at the election. The petitioner segmented his pleadings into three parts.

They include allegations that the governorship election in Lagos was fraught with irregularities; that Sanwo-Olu did not score the majority of lawful votes at the election and that INEC failed to be guided by the Electoral Act, 2022 as well as the Manual and Guidelines for the regulations of the election.

They also include a claim that Hamzat, nominated by Sanwo-Olu, failed to sign an affidavit in support of his nomination credentials submitted to the INEC contrary to the Electoral Act, 2022.

He also alleged that Hamzat naturalised as an American citizen and “renounced and abjured his Nigerian Citizenship and had duly sworn to an Oath of Allegiance to the United States of America (USA)”, thus Hamzat was constitutionally unqualified to contest the said election and had thus disqualified Sanwo-Olu because both men ran on a joint ticket.

The Petitioner contended that as “a consequence of the disqualifying factors of the 2nd and 3rd Respondents, he is entitled to be declared winner of the election being the candidate with the second highest number of lawful votes (312,339) cast in the election.”

Sanwo-Olu and Hamzat’s replies

But Sanwo-Olu and Hamzat in their replies objected to the Petitioners’ assertions of their lack of qualification to contest the election, saying that argument was false and baseless.

They also noted that they polled a minimum of 63 percent of the valid votes cast, while their nearest challenger Rhodes-Vivour scored less than 30 percent of the valid votes cast at the election.

The 2nd and 3rd Respondents also contended that their nomination forms, contrary to the allegations of the petitioners, were submitted within the time prescribed by INEC pursuant to section 29 (7) of the Electoral Act, 2022.

They also denied the petitioner’s allegations that Hamzat renounced and abjured his Nigerian Citizenship.

They vehemently denied Rhodes-Vivour’s numerous allegations “of involvement or engagement via agents, thugs, hoodlums, diabolic or directly in any acts or form of voter’s oppression, suppression, threats to life or bodily harm, deployment of weapons of any kind to assault or disenfranchisement of voters of any ethnic group or groups in Lagos State.

Read Also: LASPAGA congratulates Sanwo-Olu on tribunal victory

They also vehemently denied being involved by any means whatsoever in any conduct by whatsoever means that was inconsistent or inimical with due processes of the Governorship Elections conducted in Lagos State on the 18 March 2023. They both put the Petitioner to the strictest proof of his allegations.

They sought several reliefs including praying the tribunal to strike out and/or dismiss the petitions “for being incompetent, fundamentally defective, and vesting no jurisdiction on this Tribunal to adjudicate thereon.”

Adediran’s petition dead on arrival – Tribunal

In a unanimous judgment read by Justice Mikail Abdullahi on behalf of the three-man panel, the tribunal described the PDP and Adediran’s petition as “dead on arrival” and “deserving of a befitting burial”.

It held that the petition lacked merit and was accordingly dismissed.

In reaching the verdict, the tribunal first dwelt on the preliminary objections raised by the respondents before considering the issues raised for determination.

The tribunal entertained the question of whether it had the competence and jurisdiction to hear the petition.

Justice Abdullahi answered this question in the affirmative and held that this issue had already been resolved at the preliminary objection stage.

The second issue for the tribunal’s determination was whether  Sanwo-Olu and Hamzat were validly nominated by their party – APC – to contest the polls.

The tribunal cited relevant provisions of the Constitution and the Electoral Act and a plethora of decided cases to the effect that this was a pre-election issue that did not relate to the conduct of the polls being challenged.

The tribunal also held that the petitioners were not members of the APC, and therefore had no locus to challenge the primaries of the party that produced both men.

On the issue of the allegedly forged certificate of Community Grammar School, Ijebu-Ife, the tribunal noted amongst others that Adeniran testified that the principal of the school was still alive. The tribunal wondered why he didn’t call as a witness, the principal of the school, or any of the staff to testify about the certificate.

The judge further noted that Sanwo-Olu and Hamzat were members of political parties and educated up to school certificate level.

“In view of evidence adduced before the court, the grounds on which the petitioners are seeking disqualification of 2nd and 3rd respondents lack merit.

In the final analysis, the tribunal held that “the petition lacks merit and is accordingly dismissed.

“I affirm the election and return of Babajide Olusola Sanwo-Olu as the duly elected governor of Lagos State. Parties are to bear their cost,”  said Justice Abdullahi.

Other members of the tribunal, Arum Ashom and Igho Braimoh, agreed with him.

 Why Rhodes-Vivour’s petition failed, by Tribunal

Just like it did with the PDP, the tribunal dismissed Rhodes-Vivour’s petition.

Justice Arum Ashom, who read the unanimous judgment, held that the petition was devoid of merit. The tribunal first dwelt on the preliminary objections filed by the parties. It reiterated its earlier judgment that the issue of nomination of candidates was a pre-election issue with jurisdiction on same vested in only the Federal High Court.

The tribunal, therefore, dismissed this ground of Rhodes-Vivour’s petition.

It also held that there were no sufficient facts put forward by the petitioner to support his ground that Sanwo-Olu’s election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.

Relying on the judgment of the Presidential Election Petition Court (PEPC) in the petition of Peter Obi & 3 others, the court discountenanced the oral evidence of four subpoenaed witnesses called by Rhodes-Vivour in the instant case.

The tribunal noted that like the 10 subpoenaed witnesses of Obi before the presidential election court, these four witnesses also had no witness statements and were never listed at the time the petition was filed contrary to the provisions of the Electoral Act.

The tribunal, however, ruled in favour of Rhodes-Vivour when it held that he had the locus to file the petition but noted that the petition survived on only one ground.

“Whether the 2nd & 3rd respondents were not jointly disqualified, when contrary to the provisions of the Electoral Act, the 3rd respondent while still being a citizen of the United States of America and voluntarily renouncing his allegiance to the Federal Republic of Nigeria allowed himself to be nominated as the deputy governorship candidate to the 2nd Respondent on the platform of the 4th Respondent, the APC…”

In its judgment on this issue, the tribunal held that there are a plethora of authorities that dual nationality by a Nigerian citizen by birth does not disentitle him from holding elective office and, this is a point that has been consistently echoed by appellate courts in Nigeria.

The tribunal particularly took note of Section 182 (1) (a) of the Constitution which was the foundation laid by the petitioners for the disqualification of the 3rd Respondent.

The said Section 182 (1) (a) reads thus: “182.-(1) No person shall be qualified for election to the Governor of a State if-

“Subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such country.”

The tribunal rejected the witness statement and evidence of a US Immigration lawyer, Mrs. Olubusayo Fasidi, on the ground that her testimony was misconceived.

“Since he is a Nigerian by birth, his becoming American citizen does not extinguish his citizen of Nigeria.

“Declaration of oath of allegiance does not tantamount to taking citizenship. It is merely a condition precedent”, the tribunal held.

The tribunal added: “It has been argued that aside from taking the citizenship of the United States, the 3rd Respondent has also declared allegiance to the United States as admitted by him in Exhibits PE393 – PE404.

“Declaration or Oath of allegiance to the United States is not different from taking United States citizenship; rather, it is a – precursor to it. AS a matter of fact, the United States Oath of Allegiance is a sworn declaration that all United States applicants for citizenship by naturalisation must solemnly swear to during a formal naturalisation ceremony in order to formally complete the naturalisation process.

“That is to say, declaration of allegiance is a condition precedent to acquiring the United States’ citizenship. An applicant for US citizenship must subscribe to the oath of allegiance before he is conferred with the citizenship.

“The Petitioner seems to assume that making a declaration or swearing to an oath of allegiance is distinct and carries a higher obligation and more binding than acquiring United States’ citizenship.

“He assumes that by swearing to an oath of allegiance to the United States, the 3rd Respondent has forfeited, mortgaged, compromised and renounced his allegiance to the Federal Republic of Nigeria. That is far from the law. The United States Constitution and the Constitution of the Federal Republic of Nigeria, 1999, all recognised and permitted dual citizenship.

“Whether one was born an American citizen or he naturalised, if he has dual citizenship, he will be considered as owing allegiance both to the United States and the other country.

“In the case of the 3rd respondent, a Nigerian by birth, his subscription to an oath or declaration of allegiance to the United States cannot and does not strip him of his Nigerian citizenship, attaining and or holding public offices. Subscribing to an Oath of Allegiance to a foreign country is not as specifically listed as one of the inhibiting factors with a disqualifying effect.

“Having so resolved the issue for determination, this Petition with No: EPT/LAG/GOV/04/2023 is clearly devoid of merit and consequently dismissed. I affirm the declaration and return of Babajide Olusola Sanwo-Olu by the Independent National Electoral Commission (INEC) as the duly elected Governor of Lagos State of Nigeria.

“Parties to bear their cost.”

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 June 12, 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, 2023, while, shockingly, the House of Representatives was said to have passed it on  December 22, 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.

2.            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  was repealed in 1995, that is, 16 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.  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.  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 and Indian  legal regimes.

3.            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” or, more simply, “despite”.  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.”  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.  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.”  (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.

4.            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.

5.            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.  the Court of Appeal, as far back as 2012 (the case was decided on 26th 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.”

In a similar vein, the Supreme Court, in Compact Manifold & Energy Services Limited v Pazan Service Nig. Ltd  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.

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.

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,  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.

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6.            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.

7.            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.  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. 

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) , 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,  (b) typing a name in a document electronically,  (c) using a personal identification number (PIN),  (d) using a password,  (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,  (f) biodynamic measurement  – 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”   (h) alphanumeric string or asterisk  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 , 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.

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

8.            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  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.