The Validity And Limitation Of Electronic Signatures Under The Nigerian Law -By Oyetola Muyiwa Atoyebi & Jamilu Samaila

INTRODUCTION:

The continuous increase in electronic transactions and document exchange has raised novel issues in the areas of contract and business transactions between individuals, public authorities, and private enterprises in Nigeria. One of the vital questions often raised amongst other issues is the validity or otherwise of the use of electronic signatures in contracts, authorizations, and other business transactions in Nigeria.

Similarly, circumstances have arisen where parties need to conclude existing transactions, initiate new transactions, and file documents with government agencies or regulators, all of which require the signing of various types of documents by parties to the transaction.

Meaning of Electronic Signatures:

The term Electronic Signature is otherwise known as an E-signature or digital signature. The term can be generally defined as the distinct mark of a person affixed to a document with the aid of an electronic device such as a computer.[1]

It is noteworthy that the terms“electronic signatures” or “E-Signatures” has not been defined by any statute or in the judgment of any superior courts in Nigeria. However, the United Nations’ UNCITRAL Model Law on (the “UN Model Law”) defines E-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. ”The UN Model Law further defines a signatory as “a person, that holds signature creation data and acts either on its own behalf or on behalf of the person it represents.”[2]

Format of E-Signatures/Digital Signatures:

There is no specified format for e-signatures under Nigerian law. However, under section 93(3) of the Evidence Act, an e-signature is defined as being used when the person has executed a symbol or security procedure to verify the authorship of an electronic record.[3]

In light of the above, E-Signatures come in various forms however, their association with a message or document should identify the signatory and indicate the signatory’s approval of the contents of the signed message or document. The definition indicated in the USA’s Electronic Signatures in Global and National Commerce (“ESign”) Act (2000) S. 106(5) also reiterates the emphasis as follows:

“Electronic sound, symbol, or process, attached to or logically associated with a record created, generated, sent, communicated, received or stored electronically and adopted by a person with the intent to sign that record.”

The distinguishing feature of an electronic signature is that it is used to execute a contract. In a contract, for example, two people usually agree to perform certain obligations. If both parties sign the agreement, it becomes legally binding.[4]

The form of E-Signatures includes copying and pasting an electronic image of the signature on the signature block, signing an electronic document on a computer touchscreen with a stylus or finger, emailing a scanned copy of the signed executed page of the document, typing out the name of the signatory on the signature block, or using web-based platforms like DocuSign.[5]

Validity of E-Signature in Nigeria:

Under section 93 of the Evidence Act 2011, where a rule of evidence requires a signature or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law or avoids those consequences.[6] Evidence that a person has complied with the procedure to verify their acceptance of an agreement (such as clicking on the “I accept” button) would satisfy any signature requirement.

In addition, under section 17(1) of the Cybercrime Act 2015, electronic signatures are binding in purchases of goods and other commercial transactions.

Furthermore, section 101 of the Companies and Allied Matters Act 202,0 provides that an Electronic signature satisfies the requirements for the signing of documents requiring authentication by a company.[7]

Although there is an absence of a statutory definition for E-signature in the Nigerian legal orbit, its validity is not in doubt. In Nigeria, E-signatures are just as valid as wet-ink signatures with respect to all transactions, unless otherwise expressly excluded by law. The authenticity of an E-signature and confirmation of approval by the person purporting to sign the document can be proved by evidence that such a person (with the same name, address, business, or occupation) exists. Indeed, whenever the authenticity of an E-signature is contested in any legal proceedings, the burden is on the contender to prove the E-signature is inauthentic. It should also be noted that forging the E-signature of another person is punishable by a term of imprisonment of not more than 7 years or a fine of not more than N10 million or both.

With respect to the proof of electronic signature, Section 17 (1) (b) of the Cybercrimes (Prohibition, Prevention, etc) Act, 2015 (the “Cybercrimes Act”) provides in effect that when the authenticity or otherwise of electronic signature is in question, the burden of proof is that the signature does not belong to the purported originator of such electronic signatures but shall be on the contender. In the first place, this provision is only concerned with who should prove it. Secondly, the provision attempts to place a strict burden of proof on the person who denies the execution of an electronic transaction.[8]

Limitations on the use of electronic signatures In Nigeria:

Under Nigerian Law, some of thecontracts cannot be concluded electronically because they cannot be executed by e-signature.

Section 17(2) of the Cybercrime Act 2015 excludes the following categories of transactions or declarations from being validated by electronic signatures[9]:

1. The creation and execution of wills, codicils, and othertestamentary documents.
2. Death certificates.
3. Birth certificates.
4. Matters of family law such as marriage, divorce, adoption, and other related issues.
5. Issuance of court orders, notices, and official court documents such as affidavits, pleadings, motions, and other related judicial documents and instruments.
6. Any cancellation or termination of utility services.
7. Any instrument required to accompany any transportation or handling of solid or liquid dangerous materials.

CONCLUSION

Electronic signatures are for all intents and purposes, lawful under Nigerian law. E-Signatures are adequate proof of execution of any agreements or documents, subject to the exclusions highlighted above. Due to the fact that E-Signatures cannot and should not be done away with, regulators, government agencies, and contracting parties may stipulate terms, rules, and regulations defining the form of acceptable electronic signatures, and the manner in which they should be used to ensure the authenticity and approval of executed documents.

SNIPPET

Although there is an absence of a statutory definition for E-signature in the Nigerian legal orbit, its validity is not in doubt. In Nigeria, E-signatures are just as valid as wet-ink signatures in respect of all transactions, unless otherwise expressly excluded by law.

Key terms: E-signatures, Law and e-signature. Validity of e-signature

AUTHOR

Mr.Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Corporate Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Jamilu Samaila

Jamilu is a member of the Corporate Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Corporate Law Practice

He can be reached at jamilu.samaila@omaplex.com.ng

[1]https://www.gelias.com/images/Newsletter/Electronic_Signatures_in_Capital_Market_Transactions_-_Moving_Forward.pdf< accessed on 15^th February 2023>

[2]Ibid

[3]Section 93(3) Evidence Act 2011.

[4]https://www.agrello.io/digital-signing/electronic-signing-of-documents< accessed on 17^th February 2023>

[5]https://www.gelias.com/images/Newsletter/Electronic_Signatures_in_Capital_Market_Transactions_-_Moving_Forward.pdf< accessed on 15^th February 2023>

[6]Section 93 Evidence Act 2011

[7]Section 101 CAMA 2020

[8]https://www.gelias.com/images/Newsletter/Electronic_Signatures_in_Capital_Market_Transactions_-_Moving_Forward.pdf< accessed on 18^th February 2023>

[9]https://uk.practicallaw.thomsonreuters.com/w-020-0579?transitionType=Default&contextData=(sc.Default)&firstPage=true< accessed on 21^st February 2023>