Electronic Public Records And The Evidence (Amendment) Act 2023

Further Reflections on the Admissibility of Electronic Public Documents in Nigeria

By Solomon Mbadiwe, Esq.

1. Introduction

A recent article published on The Nigerian Lawyer, authored by Hon. Justice (Professor) Alaba Omolaye-Ajileye (Rtd) and titled “Resolving the Jurisprudential Intricacies of Admissibility of Electronic Bank Statements and Electronically-Generated Public Documents in Nigeria,” provides a thoughtful and scholarly discussion of the legal principles governing the admissibility of electronic records in Nigerian courts. The article carefully examines the interaction between the provisions of the Evidence Act governing computer-generated evidence, public documents, and bankers’ books, and highlights the continuing influence of the Supreme Court’s decision in Kubor & Anor v Dickson & Ors (2012) LPELR-9817(SC).

The analysis offered in that article represents a valuable contribution to the ongoing discourse on electronic evidence in Nigeria. It may, however, be useful to complement that discussion by drawing attention to a more recent statutory development – namely the Evidence (Amendment) Act 2023, which introduced Sections 84A–84D into the Evidence Act 2011. In particular, Section 84B of the amendment raises important questions as to whether the cumulative certification approach associated with Kubor v Dickson continues to apply without qualification.

This commentary therefore seeks to highlight that development and its possible implications for the admissibility of electronic public records.

2. The Kubor v Dickson Orthodoxy

The starting point of modern Nigerian jurisprudence on computer-generated evidence remains the Supreme Court’s decision in Kubor v Dickson. In that case, the Court held that computer-generated documents are admissible only upon compliance with the conditions set out in Section 84(2) of the Evidence Act 2011, which require proof that the computer system that produced the document was operating properly and that the information contained in the document was supplied in the ordinary course of its use.

The Court further reasoned that where the document sought to be tendered also qualifies as a public document, compliance with Section 84 alone would not suffice. The certification requirement under Section 104 of the Evidence Act must also be satisfied.

The practical consequence of this interpretation was the emergence of a dual requirement for electronically generated public documents: compliance with the computer-generated document provisions of Section 84 together with certification of the public document under Section 104.

While doctrinally consistent with the structure of the Evidence Act as it stood at the time, this approach has sometimes presented practical difficulties in relation to electronic records maintained by public institutions. Litigants seeking to rely on electronic public records – such as regulatory filings, electoral records, or government database extracts – frequently encounter difficulty obtaining certified copies from the relevant public authorities, even where the records are publicly accessible online.

3. A Pre-Existing Doctrinal Debate

It is worth noting that even prior to the recent amendment, some senior practitioners had expressed reservations about whether Section 84 of the Evidence Act 2011 was ever intended to regulate the admissibility of public documents in the first place.

The argument advanced in some quarters was that Section 84 was designed primarily to address the admissibility of computer-generated private documents within the framework of the best-evidence rule. Public documents, by contrast, are governed by a separate statutory regime under Sections 102–104 of the Evidence Act, which provides its own mechanism for authentication through certification.

On that view, the two regimes perform distinct evidentiary functions. The certification mechanism confirms the authenticity of official records maintained by public authorities, while Section 84 addresses the reliability of computer-generated outputs where no traditional original document exists.

Whether that structural interpretation ultimately prevails remains a matter for judicial clarification. Nonetheless, the existence of this debate illustrates that the legal treatment of electronic public documents has long attracted differing views within the profession.

4. The Evidence (Amendment) Act 2023

The Evidence (Amendment) Act 2023 introduces a further dimension to this discussion. Among the provisions inserted into the Evidence Act is Section 84B, Evidence (Amendment) Act 2023, which provides in substance that:

Notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on paper, stored, recorded or copied from a computer system or electronic storage medium shall be admissible in any proceedings without further proof or production of the original, provided the conditions specified in the section are satisfied.

Three features of this provision deserve particular attention.

1. The Overriding Language of the Provision

First, the section begins with a broad overriding provision stating that it applies “notwithstanding anything contained in this Act.” Nigerian appellate courts have consistently held that when the term “notwithstanding” is used in a section of 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 said section may fulfill itself. See, for example, NDIC v Okem Enterprises Ltd (2004) LPELR-1999(SC) P. 55, paras. D-F.

In practical terms, a statutory provision expressed in such language is ordinarily understood to prevail over other provisions of the same statute. By implication, therefore, the operation of Section 84B would appear to override any conflicting requirements contained elsewhere in the Evidence Act, including those governing the proof of public documents under Sections 102–104, where such provisions impose additional conditions inconsistent with the simplified admissibility regime contemplated by Section 84B.

1. The Breadth of the Phrase “Any Information Contained in an Electronic Record”

Second, the provision applies to “any information contained in an electronic record.” The breadth of this formulation is notable. The amendment does not refer merely to “private electronic documents” or to “computer-generated private records.” Instead, it adopts language that is both technology-neutral and document-neutral.

Read in its ordinary sense, the phrase “any information contained in an electronic record” would appear capable of encompassing a wide range of materials, including private electronic documents, electronic registry records, government databases, and electronically stored public records. The provision therefore does not expressly distinguish between private and public documents.

Had the legislature intended to exclude electronic public records from the scope of the provision, it would have been open to it to do so in clear terms. The absence of such limiting language may therefore suggest that the provision was intended to apply broadly to electronic records irrespective of their source.

iii. The Elimination of the Requirement of “Further Proof”

Third, the section provides that such information shall be admissible “without further proof or production of the original.” This language appears directed at reducing the procedural obstacles traditionally associated with documentary proof.

In the context of public documents, certification under Section 104 of the Evidence Act operates precisely as a mechanism of further proof. A certified true copy serves as proof that the copy corresponds with the original public document held in official custody. However, where Section 84B provides that information contained in an electronic record shall be admissible without further proof, the continued necessity of additional certification requirements may become open to reconsideration.

This aspect of the amendment appears consistent with the broader objective of simplifying the treatment of electronic records in modern litigation.

5. Practical Context: Modern Regulatory Disclosures

The practical significance of this development becomes clearer when viewed against the backdrop of contemporary regulatory practice. Public companies listed on the Nigerian Exchange routinely publish their audited financial statements and other statutory disclosures on their corporate websites and on the disclosure portal of Nigerian Exchange Limited (NGX) in compliance with applicable capital-market disclosure requirements issued by the Securities and Exchange Commission (SEC) and the Exchange. These disclosures are typically made available in electronic form and are widely relied upon by regulators, investors and market participants.

In practice, regulators may decline requests to certify such filings, on the basis that the documents are already publicly available online as mandated by statute. Where a litigant seeks to rely on such materials in judicial proceedings the requirement of obtaining certified copies may therefore prove difficult.

Section 84B appears designed to address precisely this type of scenario by recognising the admissibility of information contained in electronic records, subject to the statutory conditions governing computer-generated documents.

In such circumstances, the recognition of information contained in electronic records reflects the practical realities of modern record-keeping and information dissemination.

6. Implications for the Kubor Doctrine

When these elements are read together, Section 84B arguably introduces a distinct admissibility regime for electronic records.

If the section is interpreted according to its plain wording, the provision may significantly reduce the need for additional procedural requirements beyond compliance with the statutory conditions governing electronic records. In practical terms, this raises the question whether the cumulative requirement of Section 84 compliance and Section 104 certification, as suggested in Kubor v Dickson, should continue to apply in cases involving electronic public records.

The point is not that Kubor v Dickson has been expressly overruled. The decision remains an authoritative interpretation of the Evidence Act as it stood prior to the 2023 amendment. However, the introduction of Section 84B necessarily invites fresh consideration of how the statutory scheme should now operate in cases involving electronic public records.

More broadly, the amendment reflects an evolving approach to documentary proof in the digital era. Put simply, the law is gradually shifting from paper authenticity to system reliability. Instead of focusing exclusively on verifying physical originals, greater emphasis is now placed on the integrity of the electronic systems that generate and store information.

Section 84B appears designed to facilitate that transition.

7. Conclusion

The discussion surrounding the admissibility of electronic public documents in Nigeria is therefore likely to continue evolving. While Kubor v Dickson remains an important reference point, the Evidence (Amendment) Act 2023 introduces statutory language that may reshape the analytical framework within which courts approach electronic records.

Ultimately, it will fall to the appellate courts to clarify the precise interaction between Section 84B and the traditional certification regime governing public documents. In the meantime, the amendment invites the legal profession to revisit the issue in the light of the realities of modern information systems, where official records are increasingly created, stored and disseminated electronically. As documentary practices continue to evolve in the digital age, the law must inevitably adapt to ensure that the rules of proof remain aligned with the manner in which information is actually generated and maintained.

Solomon Mbadiwe, Esq., Legal Practitioner, Lagos.

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