With the advent of technology, electronic and digital signatures have become increasingly common in both legal and business transactions. But what does Nigerian law say about their use? This article examines the statutory framework governing electronic and digital signatures in Nigeria, their legal recognition, and the extent to which they are enforceable.
What Constitutes an Electronic Signature?
An electronic signature, as defined by the European Commission, “is 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.”
An electronic signature can range from a handwritten signature, name, or initials appended to an electronic document, to more modern actions such as ticking a box or clicking an “I agree” or “Proceed” icon to show agreement.
Digital Signatures: A More Secure Alternative
According to the Cyber Defence Agency of the United States, a digital signature is an increasingly secure electronic signature which can “validate the authenticity and integrity of a message” and “identify users and protect information in digital messages or documents.”
In recognition of the need for increased security, Section 84C of the Evidence (Amendment) Act, 2023 permits any person to authenticate an electronic record by affixing their digital signature.
Legal Recognition of Electronic and Digital Signatures
The law in Nigeria recognises both electronic and digital signatures as valid for many purposes. For instance, Section 93(2) of the Evidence Act, 2011 states that an electronic signature satisfies the rule of law when a signature is required to avoid certain consequences if a document is not signed. Section 93(3) further clarifies that an electronic signature “may be proved in any manner, including by showing that a procedure existed by which it was 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.”
Section 26(7) of the Nigeria Data Protection Act, 2023 defines consent for data collection as an “affirmative” action, which “may be provided in writing, orally, or through electronic means”, which, consequently, includes both electronic and digital signatures.
This demonstrates that electronic and digital signatures are recognised and valid methods for showing approval, consent, or agreement to the contents of a document, transaction, policy, or other legal agreements.
Limits on the Use of Electronic Signatures
While electronic signatures are widely accepted, they are not permissible in all situations. While Section 17(1)(a) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 specifies that electronic signatures shall be binding in respect of purchases of goods and other transactions, Section 17(2) excludes the use of electronic signatures in the following circumstances:
– Creation and execution of wills, codicils, and other testamentary documents;
– Death certificates;
– Birth certificates;
– Matters of family law, such as marriage, divorce, and adoption;
– Issuance of court orders, notices, and judicial documents (including affidavits, pleadings, motions);
– Cancellation or termination of utility services;
– Documents related to the transportation or handling of dangerous materials;
– Orders for the withdrawal of unsafe or expired drugs, chemicals, or materials.
These categories are exempt from the use of electronic signatures. However, Section 108 of the Evidence (Amendment) Act, 2023 introduces an exception for affidavits. The section allows for affidavits to be electronically deposed before an authorised person, and in such cases, a copy of the affidavit shall be filed at the court registry and may be recognised for all legal purposes. This validates the introduction of the e-affidavit system by the Federal High Court.
Electronic Signatures in Company Documentation
Section 101 of the Companies and Allied Matters Act (CAMA), 2020 further states that an electronic signature is deemed to satisfy the requirement for signing any document or proceeding requiring authentication by a company. This provision affirms that electronic signatures can be used by companies for official matters, including the execution of contracts, corporate filings, and other company-related documentation.
Burden of Proof for Electronic Signatures
In cases involving the validity of electronic or digital signatures, the burden of proof lies with the party challenging the signature. Section 17(1)(b) of the Cybercrimes Act places the burden of proof on the “contender” to show that an electronic signature is not valid.
However, Section 84D (1) of the Evidence (Amendment) Act places this burden of proof on the party asserting the validity of the digital signature, except where the signature is a secure digital signature, which has additional authentication measures. Similar to these provisions, Section 26(1) of the Nigeria Data Protection Act, 2023 places the burden of proving consent on the data controller — the individual or entity responsible for collecting and, in many cases, asserting the validity of the consent or signature.
In conclusion, electronic and digital signatures are integral to modern legal and business practices, and Nigerian law has provided a clear framework for their use. These signatures are valid in many contexts, though certain exceptions exist. As Nigeria continues to embrace digital solutions, it is crucial for individuals and businesses to understand the legal landscape to ensure their use of electronic and digital signatures complies with the law.
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