ELECTRONIC SIGNATURES IN NIGERIA1
- The Nigerian Cybercrimes (Prohibition, Prevention, etc.) Act 2015 ("the Act") provides an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria.2 While the Act is often referenced in respect of its Part III which makes copious provisions on Offences and Penalties, mention must be made of the innovative introduction of Electronic Signature for commercial transactions in Nigeria, contained in Section 17 (1) (a) of the Act.
- WHAT IS AN ELECTRONIC SIGNATURE IN NIGERIA? The Act does not provide a definition for electronic signature; however, the Court of Appeal recently defined a signature in INEMIEBI V. STATE (2022) LPELR-57020 (CA) as "simply someone's name or writing expressed in a unique manner consistently to identify the person and signify his consent to a document." In other instances, the Nigerian Courts have defined it in accordance with the Black's Law Dictionary to mean a person's name or mark written by that person or at the person's direction.3 It is therefore relatively clear, that an electronic signature may be defined as the electronic version of a person's name, mark, unique identification etc. written or initialed by the person or at its direction to consent to the content of a document and or data.
- ELECTRONIC SIGNATURE IN THE EUROPEAN UNION: The European Union has defined electronic signature as an electronic indication of a person's intent to agree to the content of a document or a set of data to which the signature relates. Like its handwritten counterpart in the offline world, an electronic signature is a legal concept capturing the signatory's intent to be bound by the terms of the signed document.4
- ELECTRONIC SIGNATURE UNDER THE NIGERIAN CYBERCRIMES (PROHIBITION, PREVENTION, ETC.) ACT? Under Nigerian Law, electronic signatures in commercial transactions are generally binding5, and forging an electronic signature with the intent to defraud and or misrepresent is a criminal offence punishable on conviction to imprisonment or a fine6. It is important to note that if there is a dispute about the validity of an electronic signature, the burden of proof is not on the author of the electronic signature but on the person disputing the authenticity of the electronic signature7. While electronic signatures are generally binding in commercial transactions in Nigeria, they are not acceptable as binding for such documents as wills, codicils, and other testamentary documents; death and birth certificates, matters of family law such as divorce, adoption; issuance of Court orders8; legal requirement in affixing a signature, etc9.
- It is therefore important to note that, electronic signatures are widely used for commercial transactions in Nigeria and has been embraced by the Judiciary (electronic filing is being daily embraced by the Courts) and more recently key institution of Government like the Corporate Affairs Commission (electronic filling under the Companies and Allies Matters Act 2020)10, filings at the Ministry of Trade and Investments11 amongst several other; but it must not be confused with digital signatures.
- ELECTRONIC SIGNATURE vs DIGITAL SIGNATURES: While electronic signature can broadly be defined as the signature of an individual/persons in an electronic format, usually reflective of the handwritten mark or signature of the author and an agreement to be bound by the terms of a document or as evidence that the content of document originated from an individual, a digital signature on the other hand often has no bearing or similarity between the handwritten mark or signature of the author; it is usually created by algorithms and software. It is more like a "tamper-proof" seal and are often used by certification authorities or trust service providers to authenticate a document. These are two very different terms which must not be confused and or used interchangeably.
- CONCLUSION: In conclusion, electronic signature is largely utilized and recognized in Nigeria. The Nigerian Evidence Act and the Companies and Allied Matters Act are other Nigerian legislations that recognize and make provisions for electronic signatures.
1. Mokesioluwa Seun-Adedamola (Partner, Convergence Law Practice) can be reached on firstname.lastname@example.org and O. A. Idehen, Esq (Associate, Convergence Law Practice) can be reached on email@example.com
2. Explanatory Memorandum to the Act
3. See the case of MOHAMMED VS. MARTINS ELECTRONICS COMPANY LTD (2009) LPELR - 3708 (CA); AKINSANYA & ANOR VS. FMFL (2010) LPELR - 3687 (CA).
4. What is eSignature, accessed at https://ec.europa.eu/digital-building-blocks/wikis/display/DIGITAL/What+is+eSignature on 15th April 2023, at 6.55am WAT
5. Sec 17(1)(a) of the Act
6. Sec 17(1)(c) of the Act
7. Sec 17(1)(b) of the Act
8. There are some exceptions in that regard.
9. Section 17 (2) of the Act
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