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LEGALITY ON THE USE OF ELECTRONIC SIGNATURES

The COVID – 19 pandemic has made it necessary to work remotely using e-channels. This has resulted in transactions/contracts being executed using e-signatures, as businesses must go on. Many businesses are hesitant to embrace this option, but it is an option that is here to stay with business transactions. In Nigeria, Section 93 (2) and (3) of the Nigerian Evidence Act recognizes the use of electronic signatures. It provides that where a rule of evidence requires a signature or provides for certain consequences if a document is not signed, an electronic signature is permissible. A person signing electronically need only show that a procedure exists to verify that an electronic record is that of the person.

An electronic signature can be a symbol or a security procedure evidencing signatory identity, such as a scanned image of a handwritten signature, a biometric hand- signature, a typed name at the bottom of your email, a ‘click’ to indicate consent of online policies/agreements, a symbol in digital format generated using an application, etc so long as it creates an intention to enter legal relation and be bound by it whilst evidencing signatory identity.

It is therefore advisable for parties to first agree on the mode of electronic signatures to be adopted to avoid future disputes. 

Section 17 of the Cybercrimes (Prohibition and Prevention) Act, 2015 also recognizes the use of electronic signatures in Nigeria, they are court admissible and safe for general business use. It provides that electronic signature in respect of purchase of goods, and any other transactions shall be binding. It however excludes certain transactions from the categories of valid contractual transactions using electronic signatures such as creation and execution of wills, codicils and other testamentary documents, death and birth certificates, matters of family law such as marriage, divorce, adoption and other related issues etc.

In addition, where there are explicit legal requirements in affixing a signature, it is advisable to fulfil such legal requirements. For example, documents required to be under seal may need to be affixed in that manner in order to become legally enforceable.

Some examples of electronic signature in respect of purchase of goods, and any other transactions, which do not fall under the excluded transaction of Section 17 of the Cybercrimes (Prohibition and Prevention) Act, 2015 and are binding include (a)Employment contracts (b)Non-disclosure agreements (c)Privacy notices (d)Commercial agreements required not to be under seal e.g. purchase orders, invoices, sales agreements, distribution agreements etc, (e)Consumer agreements such as account opening documents, service agreements etc Electronic signatures are therefore enforceable in Nigeria, parties are however advised to agree on modes suitable to their use, in line with the provisions of the law.

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