Covid- 19: Dealing With the Challenge of Definition and Proof of Electronic Signature Under Nigeria Law – Elvis Asia

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Introduction

E-commerce and electronic communication have made the electronic execution of contracts a common occurrence. In the future, this will be the rule rather than the exception. Today in the face of the Coronavirus global pandemic and the lockdowns and restriction of movements it has occasioned, people are compelled to communicate remotely and execute agreements electronically using electronic signatures.

 Under the Nigerian law, there is no doubt that electronic signatures are binding[1] and admissible in court[2], however what can be considered an ‘electronic signature’ and its due execution raises peculiar  problems that parties entering into contracts electronically should be aware of. Whilst there has been much judicial authorities and academic discourse on admissibility of electronic evidence, little or no attention has been paid to the nature of electronic signature itself and the challenges posed by the proof of its execution. This article examines these issues and advocates practices that should make electronic execution of contracts easier to prove.

What is electronic signature?

In the traditional sense, a signature is simply someone’s name or writing expressed in a unique manner consistently to identify the person and signify his consent to a document. It has been defined as name written by oneself, always in the same way, usually to show that something has been written or agreed by the writer[3]. The court has 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[4].  The element of a valid paper-based signature therefore is that it is written in the hand of a person which distinguishes the person and indicates that he/she has consented to a document.

Electronic signature on the other hand is different. Unfortunately, it is not defined under any statute and the courts have not had the opportunity to define it.  Section 17 of the Cybercrime (Prohibition, Prevention, etc) Act 2015 (Cybercrime Act) provides that electronic signature is binding subject to exceptions in section 17 (2)[5] but made  no attempt to give guidance on what it means or the forms in which it can be expressed. What would appear to be a guide is in section 93 (3) of the Evidence Act, 2011 which provides that electronic signature may be proved by showing that a procedure existed which requires a person to execute a symbol or security procedure in order to proceed with the transaction. This provision, though dealing with proof of electronic signatures, embraces what I would refer to as ‘wrap signature’ and other means of consent like personal identification number, use of third-party authentication like email, phones, codes etc. Wrap signature is embedded generally in terms such as clickwrap, browsewrap, scroll-wrap, hybridwrap etc. These terms have been defined elsewhere[6] but it will suffice to say that the wraps are what we typically ‘click’ to indicate consent with the terms of online and software agreements. There is currently no widely held consensus as to which of the wraps creates an effective binding contract[7]. Also section 93(3) does not give a definite indication of what electronic signature is.

What is considered an acceptable electronic signature therefore under Nigerian law will depend on the fact and circumstances of each case. Generally, electronic signature is an electronic process which signifies consent to a transaction or record. DocuSign, a popular electronic signature services provider defines it as a symbol or other data in digital format that is attached to an electronic document and applied or adopted by a person with intent to sign[8]. However, electronic signature goes beyond this definition. Electronic signature can take various forms. It can be a scan of an original signature, the click of ‘I consent’ or ‘I accept’ button, personal identification number (PIN), a typed name at the end of an email or signature generated using an app like DocuSign or digital signature.

In identifying and defining an electronic signature, what is important is that it provides an electronic evidence of the signatory’s identity, intention to execute an agreement and be bound by it. This flexibility is important in view of the fact that technology is still evolving but it also creates uncertainty as to what the court would accept to be a valid electronic signature. It is therefore important for parties executing agreements electronically to indicate in correspondences relating to the agreement the mode of electronic signature to be adopted. Even in paper-based agreements, a clause defining electronic signature for the purpose of amendment or modification of the agreement is important to avoid lengthy litigation or arbitration on whether an electronic communication has modified an agreement.

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Proof of electronic signature

 In the traditional paper- based contractual arrangement, when a person denies executing a document, the easy way to prove that he indeed signed it, is simply to compare it with his other signatures or call in a hand writing expert to analyze the signature[9]. This mode of proof is irrelevant to proof of electronic signature. One major reason is the ease with which electronic signature can be reproduced and forged. With modern technology, the signature on a paper-based document can easily be scanned and inserted in an electronic document. In that circumstance, it will be useless to compare it with other signatures or call in a handwriting expert as the signature will be the same. A different approach to proof must therefore be adopted.

Again, there is no sufficient guide on proof of electronic signatures under the Nigerian law. Section 17 (1) (b) of the Cybercrime Act provides in effect that when the authenticity or otherwise of electronic signature is in question, the burden of proof, that the signature does not belong to the purported originator of such electronic signatures shall be on the contender. In the first place, this provision is only concerned with who should prove and not how it should be done. Secondly, it would appear that the provision attempts to place a strict burden of proof on the person who denies executing an electronic transaction. The section is predicated on the erroneous presumption that it is easy to determine the originator of electronic signature and equates electronic signature to paper-based signature. This unrealistic presumption may have unwittingly misled the makers of the law to fix the burden of proof. Electronic signature takes different forms and it is not necessarily unique to any person. Whereas in a paper based transaction, a person who disputes a signature  has the simple duty of producing his/her authentic signature for the purpose of comparing it with the one on the document but this is not so with an electronic signature[10]. There is generally no fixed electronic signature with a unique identity as obtainable in the case of traditionally executed contracts except where digital signature[11] has been adopted and in many cases; it is just a matter of going through a process of which the person doing so may not have records. The initial burden of proof should therefore be on the person who seeks to rely on the document. This is in line with the established principle codified in the Evidence Act that the initial burden of proof lays on the claimant[12]. The Evidence Act is the specific legislation on evidence in Nigeria and the law is trite that in the interpretation of enactment, a statute with specific provision on a subject supersedes the one with general provisions[13]. Of course, the burden will shift once the claimant is able to establish, prima facie, that there was an electronic transaction consented to by the defendant.

A critical review of the Evidence Act shows that no detailed guideline is provided on proof of electronic signatures.  Section 93- 101 of the Evidence Act deals with proof of execution of documents. Only section 93 (2) and (3) are relevant to electronic signature, other sections applies and are material to proof of paper-based signature.  Section 93(2) provides that an electronic signature satisfies any rule of law requiring signature and avoids any consequences of unsigned document[14].  Section 93(3) provides that electronic signature can be proved in any manner without stating how except generally in limited circumstances where the execution of a security protocol is a condition precedent to consummation of a transaction.  Under the section, the signature is proved by evidence showing that a certain mandatory process or security protocol existed in order to proceed further with the transaction. The effect of this is that a person enjoying the benefit of a service cannot deny electronic signature if without doing so the service will not be available to him. The provision however does not answer other due execution formalities like the capacity of the person executing the agreement for a corporate entity or where a third party intervened. How does the other party determine that the person giving the consent through a wrap signature has the authority to do so on behalf of a corporate entity? Does electronic contract dispenses with legal capacity for a company? These questions are not answered expressly by the law and would be left to general principles of law.

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There are general principles of law that may be stretched in the attempt to prove electronic documents. For example, a contract exchanged by means of telex and other means of communication need not be signed[15] and the court cannot shut its eyes to their existence[16]. The Evidence Act also recognizes electronic transactions and provides for their presumption and admissibility[17]. This means that in many cases, the court is likely to validate the electronic transaction but that is when the issue of authorship and execution is not in dispute and the main issue is simply the technical requirement of signature[18]. Also, recognition, presumption and admissibility do not amount to proof.

Given the unanswered challenges thrown up by proof of electronic signature, parties to an electronic transaction should adopt methods, systems and conduct that would make the proof of electronic signature easier. Electronic signature means not more than electronic consent. Every electronic agreement should provide that the parties agree to execute the agreement electronically and for additional assurances, the acceptable form of electronic signature. The process of obtaining the consent and identifying the person giving the consent as well as his/her capacity should be clearly stated in the terms of the agreement. The process should also be documented independent of the agreement for the purpose of providing a digital audit trail. This may include keeping the record of communication relating to the transaction, the use of authentication process to verify the identity of the person signing and for corporate entities, a prior email correspondence stating the name and capacity of the authorized representative executing on its behalf.

Electronic contracting is very easy and convenient but difficulties arise when their execution is denied. In that circumstance, admissibility of the document in evidence is insufficient to prove its authenticity and trustworthiness. To succeed in a potential litigation or arbitration, the entire process of the transaction, including the negotiation, review, signatories and the mode of electronic signature should be documented so that witnesses and experts[19] can testify to it.  By this process there will be evidence of how an electronic contract was negotiated, presented, reviewed, signed and completed. It is also important to have records showing that the signer was given or had access to a copy of the contract.  This will come in handy in demonstrating the accuracy and reliability of the process for the creation of the document and generally establishing that the electronic signature is attributable to the signer and the process for the obtaining the signature was authentic.

Conclusion

Nigerian law recognizes electronic signatures as binding and admissible in court but not much attention has been paid to what qualifies as electronic signature and the mode of proof in the event of a dispute.  Considering there is no sufficient guide in Nigerian law on these two important issues, it is necessary for parties contracting electronically to take precaution in executing these contracts. Electronic signature refers simply to electronic consent.  To prove electronic consent, attribution and authenticity must be established. Parties can prove attribution and authenticity by indicating the mode of electronic signature that has been adopted in the terms of a contract, by stating their authorized representatives and ensuring there is a backup system for the negotiation and authentication processes.

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Nigeria needs to urgently come up with a more certain statutory mechanism for electronic signature. This is expedient because the future of electronic contracting is here.

Elvis E. Asia is a Senior Counsel in Nigeria. Elvis can be contacted on: 09072546246, elvis.easia@gmail.com

Footnotes

[1] See section 17 of the Cybercrime (Prohibition, Prevention, etc) Act 2015.

[2] See sections 41, 51, 84 and 93(2) of the Evidence Act, 2011

[3] https://dictionary.cambridge.org/dictionary/english/signature

[4] See MOHAMMED V. MARTINS ELECTRONICS COMPANY LTD. (2009) LPELR-3708(CA) AKINSANYA & ANOR. V. FMFL (2010) LPELR-3687(CA)

[5][5] The exceptions are testamentary documents; Death certificate; Birth certificate;  matters of family law 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, chemicals and any other material either on the ground that such items are fake, dangerous to the people.

[6] see Elvis E. Asia, ‘Enforceability of arbitration clauses in online agreements under the Nigerian law’, at https://lawfuturepartners.com/?p=918.

[7] ibid

[8] https://www.docusign.com/learn/how-electronically-sign-document.

[9] See section 101 of the Evidence Act. See also the cases of ATUCHUKWU v. ADINDU (2011) LPELR-3821(CA); COL. NICHOLAS AYANRU (RTD) V.MANDILAS LIMITED (2007) LPELR-670(SC)

[10] In a paper based transaction, a person who disputes signing a document has the simple onus of producing his authentic signature so that it can be compared with that in dispute but this will not assist much in resolution of disputed electronic signature. See Mabogunje v. Adewunmi (2007) All FWLR (Pt. 347) 770 at 790 – 792 Paras. A – B (CA)

[11] Digital signature is a personalized electronic signature used to secure documents and is authorized by a recognized certification authority. There must be an appropriate statutory backing for digital signature and certification of authorities to issue digital certificates. There is none in Nigeria at the moment.

[12] See Sections 131, 132 and 133(1) and (2) of the Evidence Act. See also (2018) LPELR-44669(CA) MOJEED SUARA YUSUF V. MADAM IDIATU ADEGOKE & ANOR (2007) LPELR-3534(SC); AGBAKOBA v. INEC & ORS (2008) LPELR-232(SC); INTERCONTINENTAL BANK LTD v. BRIFINA LTD (2012) LPELR-9717(SC); AGI v. PDP & ORS (2016) LPELR-42578(SC); AKANDE V. ADISA & ANOR. (2012) LPELR-7807(SC)

[13] CHAIRMAN MORO LOCAL GOVERNMENT & ORS v. ADELODUN LAWAL & ORS (2007) LPELR-CA/IL/49/2005;KRAUS THOMPSON ORGANISATION V. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR-1714(SC); MARTIN SCHROEDER & COMPANY v. MAJOR AND COMPANY (NIGERIA) LTD. (1989) LPELR-1843(SC)

[14] Generally a document that is required to be signed by law but not signed is inadmissible and worthless. See COAST OIL LTD v. TUBOSCOPE VETCO INTERNATIONAL & ANOR (2019) LPELR-46450(CA) and OMEGA BANK (NIG) PLC v. OBC LTD (2005) 8 NWLR (PT 928) 547 at 541 (SC). However, it must noted that the courts have created various exceptions including that an email acknowledged by the recipient or sender need not be signed to be admissible and relied upon. See ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC).

[15] Dangote Farms Limited v. Plexus Cotton Limited (2018) LPELR-46581(CA)

[16] See Anyeabosi V. R.T. Briscoe (Nig) Ltd (1987) 3 NWLR (pt. 59) 84 and Esso West Africa Inc. V. T. Oyegbola (1969) NMLR 194, Trade Bank Plc v. Chami (2003) 13 NWLR Pt. 836 Pg. 158 at 216-217 and CONTINENTAL SALES LTD v. R. SHIPPING INC (2012) LPELR-7905(CA)

[17] See sections 41, 51, 84, 153 (2) of the Evidence Act. See also the cases of ROWAYE JUBRIL v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43993(CA), BRILA ENERGY LIMITED v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR-43926(CA), Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167 at 203 JUBRIL v. FRN (2018) LPELR-43993(CA), SDV (NIG) LTD v. OJO & ANOR (2016) LPELR-40323(CA)

[18] ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (supra) and AWOLAJA & ORS. V. SEATRADE G.B.V (2002) LPELR-651(SC)

[19] Electronic signature is one of the matters in respect of which experts can be called under section 68 of the Evidence Act.

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