BY ABDULLAHI GHALI IDIRU

The growth of digital commerce has changed how agreements are made, moving from handwritten documents to electronic communications and digital verification methods.

Earlier, the mode that contractual parties preferred in entering into contracts was the face-to-face contract. Parties can now form binding contracts electronically using tools like emails, website clicks, or even WhatsApp messages, depending on the situation. However, for such contracts to be valid, they must comply with the law regulating the contract.

Thus, an electronic contract under Nigerian law is simply an agreement created and executed in digital form that is legally recognized as binding on the parties. This recognition also covers electronic and digital signatures, which act as the technological equivalent of handwritten ones.

The word “contract” refers to an agreement between contractual parties that has a binding force upon its breach. For a contract to be valid, it must have all the necessary elements, which are offer, acceptance, consideration, intention to enter a legal relation, and capacity sometimes. For a contract to be valid and recognized under the law, it must possess all the elements; the consensus ad idem (meeting of minds) must be obtained without duress, misrepresentation, undue influence, or other vitiating elements of the contract.

Therefore, the law permits whatever mode the offeror used to make an offer; the offeree can adopt the same mode to accept the offer. In other words, if the offer is made by electronic means, acceptance can be made electronically.

The main laws that regulate electronic/digital transactions in Nigeria include the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015, and the Companies and Allied Matters Act (CAMA), 2020. Other relevant regulations are the NITDA Act, 2007, and the proposed National Digital Economy and E-Governance Bill, 2025, which is still pending before the legislature.

An electronic contract is recognized under section 17(1) of the Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (as amended); in this section, parties are allowed to adopt electronic signatures when they engage with each other in the purchasing of goods, and such an agreement is binding on both parties.

The section provides thus: “Electronic signature in respect of purchases of goods and any other transactions shall be binding.”

Subsection (1) above explicitly states that an electronic signature “shall be binding” in transactions involving the purchase of goods and other commercial dealings, affirming that such contracts cannot be denied validity solely because they are electronic. Furthermore, the Act shifts the burden of proof in disputes; under Section 17(2), if a signature is alleged to be forged, the burden lies with the party disputing the signature, not the purported signer.

If anyone intentionally engaged in a digital contract with the aim to defraud the other party, he shall be punished under section 17 (3) of the same act. That is to say, the contract must be free from the element of fraud, and such a contract should not cause loss to the other party.

In the technology age we found ourselves in, there are several online vendors that are displaying their goods and advertising their goods to the public through the digital space. In this instance, people who are willing to buy the goods can approach the vendor and make a digital contract with the vendor without even seeing the vendor physically.

The law accepts that an offer can be made through a company’s website, and acceptance can be shown by clicking an “I Agree” to the terms and conditions of the contract button, sending a confirmation email, replying via SMS, or appending your signature electronically. An example of a digital agreement made with an online vendor is the agreement made with Jumia or AliExpress, or among others.

Therefore, the Evidence Act 2011 (as amended) provides the foundational rules for recognizing electronic contracts in court. Section 84 is the primary provision governing the admissibility of electronic evidence, including agreements formed digitally. For a computer-generated document (like an online contract) to be admissible, the party seeking to tender it must prove the computer was operating properly and that the information is accurate.

Crucially, Section 93(2) directly addresses signatures, stating that where a rule of evidence requires a signature, “an electronic signature satisfies that rule of law.” This provision bridges the gap between physical and digital execution, formally recognizing that a typed name or unique identifier carries the same legal weight as a handwritten signature, provided it identifies the signatory and indicates their approval of the document’s content.

Thus, digital contracts have taken judicial blessing in MTN Nigeria Communications Ltd. v. Barr. Achunulo Godwin Jnr. (CA/OW/456/2019). The Court of Appeal held that contracts can be made via SMS, describing the argument against such contracts as holding “no water.” However, if the contract is affected by fraud, forgery of an electronic signature, or lack of authenticity, the court may intervene. In FRN v. Godwin Ifeanyi Emefiele (FCT/HC/CR/577/2023), the court admitted WhatsApp chat logs as evidence, showing its readiness to examine digital agreements closely.

Although traditional common law required physical signatures for enforcement, Nigerian courts and statutes have adapted to the reality that a signature is essentially a form of identification and consent. In Inemiebi v. State (2022) LPELR-57020 (CA), the Court of Appeal broadly defined a signature as “simply someone’s name or writing expressed in a unique manner… to identify the person and signify his consent.”

Disputes arising from electronic contracts and digital signatures, especially those involving data privacy or cyber issues, fall under the jurisdiction of the National Industrial Court (for labor-related digital contracts) and the Federal High Court (for cybercrime and general e-commerce disputes under the Cybercrimes Act). Where no dispute resolution clause exists, matters relating to breach or repudiation of an electronic contract can be heard by these courts.

In conclusion, a court cannot set aside an electronic contract simply because it was formed digitally, provided the contract complies with the Evidence Act and the Cybercrimes Act. The courts have the authority to enforce these digital agreements just as strictly as physical contracts, recognizing that while the method of signing has evolved, the core legal principle remains the validation of consent.

• Abdullahi Ghali Idiru is of the Faculty of Law, Usmanu Danfodiyo University, Sokoto. He can be reached at abdullahighali1234@gmail.com

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