Introduction

It appears remote working will be around for a long time; this also comes with its peculiar challenges. In recent times, we would have received requests in our personal orprofessional capacities to initiate or complete an existing transaction. Personally, I have received calls from my clients' bankers to sign/stamp documents (in my capacity as company secretary); others have documents that should go to Regulators- these documents need to be co-signed by the company secretary. In the course of the lockdown, a need may have arisen for businesses and individuals to engage the services of advisors; tenancies/leases may have expired and requiring renewals; businesses would have issued banking/payment mandates (to avoid falling in breach of their contractual obligations)- the list is endless. It has become imperative for individuals and businesses to seek alternative methods of getting things done, mostly by leveraging on technology- the benefits are enormous and can last beyond the lock down.

An unsigned written contract/agreement is not binding on any of the parties and by implication, may not be legally enforceable. By law and business custom, parties would usually not commit to a contract/honour an instruction if it has not been finalised, usually by signing-the most common being wet ink signatures. Based on 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.

Requirement for validity of e-signatures

There is no specific legislation prescribing the technical requirements on electronic signature. The Evidence Act 2011 provides that an electronic signature may be proven

by any means, including 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- this is typical for the security steps involved in authenticating online payments.

In designing a framework for a organisation's use of electronic signatures, organisations can use the minimum standard contained in the Regulations for Public Key Infrastructure (the Regulation) issued by the National Information Technology Development Agency. The Regulation recommends that to secure a digital signature, the signature should:

  1. Ensure that the name or other unique identifiable notation of the person to whom the signature correlates be incorporated as part of the signature and cannot be replaced or forged; and
  2. Readily present such indicia of identity to a person intending to rely on the signature.

Limitations on the use of electronic signatures

Section 17(2) of the Act excludes certain transactions from electronic signatures. Some of the exempted transactions include Wills and testamentary documents, birth and death certificates and matters generally relating to family law.

Some Government Agencies (for example the Corporate Affairs Commission) would only accept documents signed in wet ink for filing.

Consequences of for forging electronic signatures

There are different categories of offences under the Act. For the crime of  forgery of electronic signatures (any person who with the intent to defraud and or misrepresent, forges through electronic devices another person's signature or company mandate) the

punishment is an imprisonment of not more than seven years or a fine of not more than N10 Million or to both fine and imprisonment.

Conclusion

Electronic signatures can 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.

We understand that Regulators restrict the use of electronic signatures to reduce the incidence of forgery. This can be mitigated by adopting any or a combination of the following practices/methods.

  1. Educate the public on the consequences of forging an electronic signature.
  2. Where a suspicious document is presented for filing, the Regulator should request the presenter to confirm authenticity in writing. Where the presenter of a document is different from the company secretary on official records, another level of confirmation should be required (from the company secretary or director on official records).
  3. All statutory forms should be modified to include an attestation on oath where the presenter confirms authenticity of documents.
  4. Where fraudulent or forged documents inadvertently slip through b or c above, disciplinary proceedings should be taken against the presenters/ accredited persons through their professional bodies/ and the Courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.