By Sunday Agaji
Technology is one of the hallmarks of civilization, and has had a positive impact on all areas of society. In the area of commerce, technology has simplified and amplified activities to a ridiculous extent. Prior to the digital era in which we live in, geography was a significant barrier to commercial transactions. It was difficult to procure goods and services from other regions without a physical presence there, a phenomenon that has since changed with the advent of technology. In the present day and age, one can purchase goods or acquire services anywhere around the world from the comfort of their home using electronic devices such as phones, tablets, laptops etc. The use of electronic devices to carry out commercial transactions over the internet gave birth to the term electronic commerce. Electronic Commerce has grown at an incredible rate since its birth. It has permeated every continent in the world and arguably all countries likewise, thereby essentially making the world a global market.
The continuous rise in electronic commerce has raised novel issues in the areas of contract and business transactions between organizations, firms and individuals in Nigeria. Germane amongst the issues that have arisen is that of validity or otherwise of the use of electronic signatures in contract and other business transactions in Nigeria. This article is aimed at addressing same.
Definition.
An ‘E-signature’ may simply be defined as any mark, symbol or data in digital form which is attached to an electronically transmitted document to serve as verification of the sender’s intent to sign the document and to attest to its validity. It is a distinctive way of identifying the signatory in relation to the data message sent in an electronic form, and to indicate the signatory’s approval of the information contained in the data message.[1] Examples of e-signatures include but are not limited to; a typed name underneath a digital document, a hand signature created on a tablet using your hand or a stylus, a scanned image of a person’s ink signature, a signature signed using a specialized application which is protected using crypto digital software and cannot be easily tampered with, a person agreeing to the terms and conditions by ticking a box on a web form which expressly provides that the person ticking the box agrees to be bound by all the relevant terms etc.
Legal framework for use of e-signatures in Nigeria
In Nigeria, the use of electronic signature is valid and recognized under extant laws.[2] Section 17(1) (a) of the Cybercrimes (Prohibition, Prevention, etc) Act, 2015 (herein after referred to as Cybercrimes Act) provides that;
“Electronic signatures in respect of purchases of goods, and any other transactions shall be binding”.
The implication of the above is that e-signature is a legally acceptable means of attesting to the validity of digitally transferred documents or electronically completed transactions in Nigeria. An e-signature is generally presumed valid unless otherwise proven. Whenever the genuineness or otherwise of an e-signature is in question, the burden of proof that the signature does not belong to the purported originator of such e-signature shall be on the contender who contends its validity.[3]
E-signatures 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.[4]
Exceptional cases where e-signatures shall not be valid.
Where a law provides that a document must be signed for it to be valid or provides for certain consequences if a document is not signed, an e-signature shall satisfy the provision of that law and shall avoid those consequences when used.[5] A contract or a transaction shall not be declared invalid merely because it was conducted and signed electronically except for transactions or contract that have been expressly excluded by the Cybercrimes Act.
Below are the lists of transactions that cannot be concluded using e-signature;[6]
- Creation and execution of wills, codicils and or other testamentary documents
- Death certificate
- Birth certificate
- Matters of family 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
- Any instrument required to accompany any transportation or handling of dangerous materials either solid or liquid in nature.
- Any document ordering withdrawal of drugs, chemical and any other material either on ground that such items are fake, dangerous to the people or the environment or expired by any authority empowered to issue orders for withdrawal of such time.
Practical issues associated with the use of e-signatures in Nigeria.
One of the practical issues associated with the use of e-signatures in Nigeria is security and confidentiality. E-signatures are arguably less secure than the traditional signatures because of the possibility of a third party intercepting electronic documents and extracting same for dubious purposes. Also, contents of documents already signed electronically may be altered when intercepted. E-signatures may be easily forged and used by internet fraudsters unless they are adequately protected. Individuals, firms and organizations are therefore advised to incorporate the use of ‘digital signature’ which is more secure and has sophisticated security measures. Digital signature is a form of e-signature which is more secure and less likely to be intercepted, copied or altered when transferred electronically. It is an advanced form of e-signature and was specifically developed to solve security problems associated with the use of e-signature.
Unauthorized interception, alteration and use of e-signatures
It is a crime for any person to unlawfully intercept, forge or fraudulently alter the e-signature of another with the intent to defraud or misrepresent to another person that he owns the signature.[7] Any person found wanting for engaging in unauthorized interception, alteration and or use of e-signature of another shall upon conviction be sentenced to 7 (seven) years imprisonment.
Conclusion
The use of e-signature is highly essential to the conclusion of transactions or contract entered to over the internet. This is moreso when the parties are resident in different countries or continents. The enactment of a legal framework by the Nigerian parliament to regulate its use and validate same is commendable. Businesses, organizations and individuals who regularly conduct transactions over the internet are advised to use digital signature as against e-signatures for the execution of such transaction. Digital signatures as mentioned above are highly secure and cannot be easily intercepted or altered.
Sunday Agaji is an Associate at Giwa-Osagie & Co., [email protected]
[1]See Article 2 of United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Signature.
[2] See section 93 of the Evidence Act 2011 and section 17 of the Cybercrimes (Prohibition, Prevention etc) Act 2015
[3] See section 17(1) (a) Ibid.
[4] See section 93(3) of the Evidence Act 2011
[5]See section 93(2) Ibid.
[6] See section 17 (2) of the Cybercrimes (Prohibition, Prevention etc) Act 2015
[7] See section 17 (1) (c) ibid.
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