By Lynda Osagie Ogiegbaen
![image](/2020/10/lawreport.jpg")
1. OVERVIEW
![image](/2020/10/NWLRland.jpg")
Electronic contract (E contract shall be used interchangeably in
this topic) in Nigeria, prior this season, was at snail speed; not
popular and was of minimal use. Paperwork document(s) i.e hard copy
was the astute and conventional method of record keeping, face to
face (onsite) appearance at office(s), business outlet(s), court
hearing, arbitration/mediation hearing (Lagos Multi-Door Court) and
tribunal hearing (Code of Conduct Tribunal and Election Petition
Tribunal) were the usual norm.
It is no gainsaying that E contract was almost foreign to
Nigeria in the above listed institutions and other places such as
multinational corporation, public and private partnership as well
as public and private sectors of the economy. However, in
continents such as Europe (EU), Asia, North America, the United
Kingdom (UK) have been having a bite at this ‘sweet cherry’ of E
contract. It cuts across the administration of government,
judiciary, legal practice, cross border business activities, and
the public at large. Usually, parties contract for their home use
telecommunication otherwise called house wifi, electricity, gas
energy and business transaction by E contract from the comfort of
their homes.
In this wake of CoronaVirus 19, [COVID 19] pandemic in
Nigeria and other nations of the earth sometime in February/March
2020 that resulted in shutting down the economy to curb its wide
devastating spread and mortality rate amongst the workforce and the
populace; leading to lockdown of all work places i.e Federal and
State government parastatals including schools. In this kind of
confusion and how best to tackle the situation so that the economy
will not be crippled, and the spread of COVID 19 can be nipped in
the bud was now (still is) the general concern. In the light of the
foregoing, E contract being the immediate solution in workplaces,
schools business outlets and other parastatals. Such that software
developers and programmers quickly intervene by rolling out new
apps such as Zoom, Loom, Microsoft and Google meeting apps that can
take many people at once to do their work, business, teach or
lecture students and court hearing without face to face (onsite)
contact.
The beauty of this topic is, whether COVID 19 pandemic ends
today by (vaccine) or natural fades off earth, the benefits of E
contract have impacted our lives positively and at the same time
ensures our health safety. Then, it cannot become obsolete.
2. GROUNDS OF ELECTRONIC
CONTRACT
Under this sub head, we shall first take a look at definitions
of contract generally and electronic contract before x raying the
grounds of electronic contract in perspective.
Black’s Law Dictionary defines contract as “an agreement between
two or more parties creating obligations that are enforceable or
otherwise recognisable at law”.1 This definition is too general,
shallow and myopic it does not encompass electronic contract.
In light of the topic, E contract is a contract that is
formed electronically such as over the internet or by email2.
Another writer said E contract is any kind of contract formed in
the course of e-commerce by interaction of two or more individuals
using electronic means, such as email the interaction of an
individual with an electronic agent, such as a computer program, or
the interaction of at least two electronic agents that are
programmed to recognise the existence of a contract.3
Simply put, an electronic contract is an agreement between two
or more parties to contract on any electronic means such as
computer, tablet and smart telephone using email, sms message, chat
in apps and programme software enforceable by law in favour of
either party. With this definition in mind, it is important to note
that until recently, electronic contract was almost neuvo and
unpopular in usage among the populace and in the eyes of our law.
But going by the season we are in, E contract is one of the best
innovations in software programmes today. In Europe, EU made a
regulation that regulates electronic identification and contract
this is known as Electronic Identification Authentication and trust
Services EU regulation 910/2014 of 23 July, 2014 on electronic
identification (hereafter elDAS Regulation).4
One writer’s view on E contract stated that “E government in
Spain elDAS Regulation has completely changed the way citizens and
administration relate to each other increasing their fluidity,
especially when we talk about cross border activities. The elDAS
Regulation is an essential part of the digital transformation
process of Spanish Administration. The index of digital economy and
society of 2019 brings to light interesting conclusions on this
topic – The proportion for public electronic service users reaches
up to 76%.5 By this statistics it shows the rapid growth in usage
of E contract in this nation.
elDAS Regulation is applicable to all EU countries including the
UK and has set a pace for stabilizing, regulating and
enforceability of electronic contracts since it came into force in
2016. E contract in Europe is premised on administration, public
and private business and citizen lifestyle. For instance in Spain,
E contract is used by residents and citizens to source for
electricity, gas and telecommunication data plan house wifi for a
period of a year or more. The pattern is as follows:
Precontract deliberation on type of preferred contract billing
plan payment plan full data exchange
means of identification i.e the resident permit or international
passport or DNI no. For ease in verifying the data of the
customer.
The E signature is taken
Then Password or code is released to the customer to enable
access to the programmed software or app of the contracting company
granting the customer access to further information on contract
type, updates, or registering complaint if any arises in the course
of the contract.
The above validates the commencement of the contract. It is
important for us to note that the ongoing contract automatically
renews. Except where the customer indicates otherwise prior few
weeks to the eve of the anniversary. This procedure is the same
where the contract is for gas or telecommunication house wifi. This
pattern is elastic and goodl if the same is applicable in our
economy and society generally.
E contract takes place every now and then (made between product
manufacturers and celebrities) during endorsement deals contracted
with entertainment celebrities among football stars,
actors/actresses and public figures to endorse, advertise and
market products online or render online sales services. These types
of E contracts are usually seen on Instagram, Facebook, Skype,
Twitter, Tiktok and Youtube etc.
Similarly, political parties embraced the use of Zoom meeting,
and other apps listed in the preceding paragraph to campaign to
voters and diaspora audiences for their support to win election.
For example Edo state gubernatorial election of 19 September, 2020
is fresh in mind.
Recently, Nigerian Bar Association (NBA) hosted lawyers and
several guests online at the 60th Annual General Conference themed
‘Step Forward’ held in August, 2020. Participants registered online
to enable them participate and were digitally signed in through the
authorised email available to NBA. This is laudable and a precedent
of E contract which took the Nigerian legal space to the next
level. Lawyers who were online live, electronically contracted to
be part of the conference alongside others such as panelists,
moderators and special guests of the break out sessions of business
law and public law were at the conference and all hosted
online.
Likewise, the Nigerian Law School (NLS) and the Nigerian
Institute of Advanced Legal Studies (NIALS) can and could be able
to host their lectures and other classes online by organising
electronic contract between the institution and new students in any
batch of new intake of an academic session. Further, lectures could
be taken online inclusive of group class work, group assignment,
moot court and mock trial and group discussion can be achieved by E
contract. In this way, lecturers, students and non academic staff
are protected from diverse communicable disease and suitable
lecture venues will no longer be an issue.
Our places of worship are not exempted, worshippers far and near
can worship from any part of the world.
3. BENEFITS OF ELECTRONIC
CONTRACT
There are numerous benefits of E contract to wit: 1. It
eliminates the reliance on paper documents.
- All negotiations for contract by parties are online and pre
contract disagreement sorted. - Physical friction, quarrel and other bottlenecks among parties
are avoided. - E contract eliminates crowds at venues or better still a
strategic tactic for crowd control. - When parties are not face to face or onsite it avoids the
spread of communicable diseases such as COVID 19, flu and
cough. - It saves time for all the parties.
- Parties to E contract can hold meetings at any time during the
day or night.
8.Parties to E contract may opt to use both audio and video or
either connection for meeting.
- Apps such as Zoom, Microsoft, Google meeting, Skype, Instagram
Messenger, WhatsApp
e.t.c. can accommodate many persons at a go for live
conferences, seminal (webinar) letures, political campaign,
presidential address, governor’s address, business meeting etc.
- Parties can contract from the comfort of their home or anywhere
convenient to them. - Irrespective of the difference in world time zone, parties can
electronically contract from anywhere in the world. Whether in
Africa with any other country in these continents like Asia,
Australia, Europe, Middle East, North America and the United
Kingdom making the world a global community in reality. - It saves the expensive cost of hiring a venue.
- Application Program Interface (API) Allow you to integrate
electronic contracts from your Customer Relations Management (CRM),
as well as electronic contract improve customer service.6
4. CONCLUSION AND
RECOMMENDATION
In Nigeria, our law of contract not much can be said of
application and regulating electronic contract in comparison
with what is obtainable in the EU going by elDAS Regulation, where
all electronic contract and electronic identification is regulated
in business and interpreted by court criminal cases not exempted.
What then can we say here in Nigeria? How can parties’ interest be
protected during contract and in the event that issue(s) for
determination is before the court? In the absence of specific laws
and regulation, (pending when the legislature can pass a law in
this area) we have to recourse to using the Evidence Act 2011 in
that the courts can boldly interprete section 84 of the said Act
that allows email in the course of business transaction as
electronic evidence by an aggrieved party provided what is tendered
before the court forms facts in issue and same could be used in
establishing electronic contract.
Conclusively, E contract has reduced face to face (onsite)
meeting, paper documentation to electronic meeting in the cloud
(virtual meeting). Although there are network fluctuations to
contend with on one hand (e.g a moderator and a panelist at the NBA
break out session of the was logged out of the (last concluded)
virtual conference resulting in a slight hitch. On the other hand,
parties need not be afraid to contract electronically by virtue of
the fact that it maximizes the use of our time, while equally
protecting us from any communicable disease(s). Essentially,
benefits of Econtract listed here cannot be overemphasized. Rather
it is twined with all facets of life rendering lockdown
unnecessary, ease legal hurdles of the job of an attorney, grows
ever going business transactions in the economy, keeping us safe
and ensuring our health is hazard free.
Going forward, when we eventually overcome COVID 19, E contract
gives us options as against the stereotype of face to face meeting.
A NLS student could opt for electronic online classes. An
arbitration hearing, tribunal court, judge, or panel of justices
could opt to hear cases by electronic virtual hearing, a lawyer
could attend NBA conference by virtual means. Indeed this is a
definite impact on our adjudicatory system. In addition, federal
and state government ministries, by making them accessible through
online “timed appointment” the practise in
government establishments in Spain and EU countries.
Essentially, E contract is the ‘sweet cherry for every Nigerian
lawyer’ ; it’s the new big thing.
Finally, in commending the Corporate Affairs Commision (CAC),
this parastatal has taken the lead in electronic contract among
government establishments it has set a beautiful pace in all that
has to do with company formation, regulations, search, compliance
and company virtual board meeting. National Identity Management
Commission (NIMC) should borrow a leaf and make registration
painless online considering the aged citizenry, pregnant women and
nursing mothers. I will not fail to mention the Supreme Court
Practice Direction 2020, recently approved by the Chief Justice
Hon. Justice Ibrahim Tanko Mohammed enabled the apex court to hear
case(s) by virtual hearing. This is commendable and a plus. I urge
solicitors and advocates of the Supreme Court of Nigeria to upgrade
from archaic paperwork record keeping, face to face meeting to
subscribe to use of electronic contract and be up to date by
training on how best to optimise the use of programmes and
softwares with ease and swift optimum conclusion in legal services.
Whether the field of law practice is specialized or general
practice, this will enhance robust consultancy services, ease
practice, service of letters and court processes, and hitch free
virtual case presentation before the court. Other sectors are not
left out of this sweeping wave of electronic contract bail out from
lockdown. It is worthy to note that this is fundamental because it
helps us to keep abreast with the love vibe for our personality.
Knowing that government offices, civil services, business/contract
transactions, endorsement deal(s) are accessed effortlessly with
use of virtual software programmes. This upgrade correlates with
individual, public agencies, corporate bodies, network service
providers and the nation at large if over 60% of public electronic
users can be achieved in Nigeria.
LYNDA OSAGIE OGIEGBAEN
(Mrs), LL.B Hons. (Benin)
B.L Hons. (Abuja) Barrister Solicitor &
Advocate
- Black’s Law Dictionary 9th ed
2.{citation www.irmi.com[1]5 Sep 2020}
- {culled from definition.uslegal.com[2]5 Sep, 2020}.
- (culled from viafirma.com[3]5 Sep 2020).
- (culled from viafirma.com[4]5 Sep 2020).
- (Culled from blog.pandadoc.com 8 Sept 2020)
By Lynda Osagie Ogiegbaen
1. OVERVIEW
Electronic contract (E contract shall be used interchangeably in
this topic) in Nigeria, prior this season, was at snail speed; not
popular and was of minimal use. Paperwork document(s) i.e hard copy
was the astute and conventional method of record keeping, face to
face (onsite) appearance at office(s), business outlet(s), court
hearing, arbitration/mediation hearing (Lagos Multi-Door Court) and
tribunal hearing (Code of Conduct Tribunal and Election Petition
Tribunal) were the usual norm.
It is no gainsaying that E contract was almost foreign to
Nigeria in the above listed institutions and other places such as
multinational corporation, public and private partnership as well
as public and private sectors of the economy. However, in
continents such as Europe (EU), Asia, North America, the United
Kingdom (UK) have been having a bite at this ‘sweet cherry’ of E
contract. It cuts across the administration of government,
judiciary, legal practice, cross border business activities, and
the public at large. Usually, parties contract for their home use
telecommunication otherwise called house wifi, electricity, gas
energy and business transaction by E contract from the comfort of
their homes.
In this wake of CoronaVirus 19, [COVID 19] pandemic in
Nigeria and other nations of the earth sometime in February/March
2020 that resulted in shutting down the economy to curb its wide
devastating spread and mortality rate amongst the workforce and the
populace; leading to lockdown of all work places i.e Federal and
State government parastatals including schools. In this kind of
confusion and how best to tackle the situation so that the economy
will not be crippled, and the spread of COVID 19 can be nipped in
the bud was now (still is) the general concern. In the light of the
foregoing, E contract being the immediate solution in workplaces,
schools business outlets and other parastatals. Such that software
developers and programmers quickly intervene by rolling out new
apps such as Zoom, Loom, Microsoft and Google meeting apps that can
take many people at once to do their work, business, teach or
lecture students and court hearing without face to face (onsite)
contact.
The beauty of this topic is, whether COVID 19 pandemic ends
today by (vaccine) or natural fades off earth, the benefits of E
contract have impacted our lives positively and at the same time
ensures our health safety. Then, it cannot become obsolete.
2. GROUNDS OF ELECTRONIC
CONTRACT
Under this sub head, we shall first take a look at definitions
of contract generally and electronic contract before x raying the
grounds of electronic contract in perspective.
Black’s Law Dictionary defines contract as “an agreement between
two or more parties creating obligations that are enforceable or
otherwise recognisable at law”.1 This definition is too general,
shallow and myopic it does not encompass electronic contract.
In light of the topic, E contract is a contract that is
formed electronically such as over the internet or by email2.
Another writer said E contract is any kind of contract formed in
the course of e-commerce by interaction of two or more individuals
using electronic means, such as email the interaction of an
individual with an electronic agent, such as a computer program, or
the interaction of at least two electronic agents that are
programmed to recognise the existence of a contract.3
Simply put, an electronic contract is an agreement between two
or more parties to contract on any electronic means such as
computer, tablet and smart telephone using email, sms message, chat
in apps and programme software enforceable by law in favour of
either party. With this definition in mind, it is important to note
that until recently, electronic contract was almost neuvo and
unpopular in usage among the populace and in the eyes of our law.
But going by the season we are in, E contract is one of the best
innovations in software programmes today. In Europe, EU made a
regulation that regulates electronic identification and contract
this is known as Electronic Identification Authentication and trust
Services EU regulation 910/2014 of 23 July, 2014 on electronic
identification (hereafter elDAS Regulation).4
One writer’s view on E contract stated that “E government in
Spain elDAS Regulation has completely changed the way citizens and
administration relate to each other increasing their fluidity,
especially when we talk about cross border activities. The elDAS
Regulation is an essential part of the digital transformation
process of Spanish Administration. The index of digital economy and
society of 2019 brings to light interesting conclusions on this
topic – The proportion for public electronic service users reaches
up to 76%.5 By this statistics it shows the rapid growth in usage
of E contract in this nation.
elDAS Regulation is applicable to all EU countries including the
UK and has set a pace for stabilizing, regulating and
enforceability of electronic contracts since it came into force in
2016. E contract in Europe is premised on administration, public
and private business and citizen lifestyle. For instance in Spain,
E contract is used by residents and citizens to source for
electricity, gas and telecommunication data plan house wifi for a
period of a year or more. The pattern is as follows:
Precontract deliberation on type of preferred contract billing
plan payment plan full data exchange
means of identification i.e the resident permit or international
passport or DNI no. For ease in verifying the data of the
customer.
The E signature is taken
Then Password or code is released to the customer to enable
access to the programmed software or app of the contracting company
granting the customer access to further information on contract
type, updates, or registering complaint if any arises in the course
of the contract.
The above validates the commencement of the contract. It is
important for us to note that the ongoing contract automatically
renews. Except where the customer indicates otherwise prior few
weeks to the eve of the anniversary. This procedure is the same
where the contract is for gas or telecommunication house wifi. This
pattern is elastic and goodl if the same is applicable in our
economy and society generally.
E contract takes place every now and then (made between product
manufacturers and celebrities) during endorsement deals contracted
with entertainment celebrities among football stars,
actors/actresses and public figures to endorse, advertise and
market products online or render online sales services. These types
of E contracts are usually seen on Instagram, Facebook, Skype,
Twitter, Tiktok and Youtube etc.
Similarly, political parties embraced the use of Zoom meeting,
and other apps listed in the preceding paragraph to campaign to
voters and diaspora audiences for their support to win election.
For example Edo state gubernatorial election of 19 September, 2020
is fresh in mind.
Recently, Nigerian Bar Association (NBA) hosted lawyers and
several guests online at the 60th Annual General Conference themed
‘Step Forward’ held in August, 2020. Participants registered online
to enable them participate and were digitally signed in through the
authorised email available to NBA. This is laudable and a precedent
of E contract which took the Nigerian legal space to the next
level. Lawyers who were online live, electronically contracted to
be part of the conference alongside others such as panelists,
moderators and special guests of the break out sessions of business
law and public law were at the conference and all hosted
online.
Likewise, the Nigerian Law School (NLS) and the Nigerian
Institute of Advanced Legal Studies (NIALS) can and could be able
to host their lectures and other classes online by organising
electronic contract between the institution and new students in any
batch of new intake of an academic session. Further, lectures could
be taken online inclusive of group class work, group assignment,
moot court and mock trial and group discussion can be achieved by E
contract. In this way, lecturers, students and non academic staff
are protected from diverse communicable disease and suitable
lecture venues will no longer be an issue.
Our places of worship are not exempted, worshippers far and near
can worship from any part of the world.
3. BENEFITS OF ELECTRONIC
CONTRACT
There are numerous benefits of E contract to wit: 1. It
eliminates the reliance on paper documents.
- All negotiations for contract by parties are online and pre
contract disagreement sorted. - Physical friction, quarrel and other bottlenecks among parties
are avoided. - E contract eliminates crowds at venues or better still a
strategic tactic for crowd control. - When parties are not face to face or onsite it avoids the
spread of communicable diseases such as COVID 19, flu and
cough. - It saves time for all the parties.
- Parties to E contract can hold meetings at any time during the
day or night.
8.Parties to E contract may opt to use both audio and video or
either connection for meeting.
- Apps such as Zoom, Microsoft, Google meeting, Skype, Instagram
Messenger, WhatsApp
e.t.c. can accommodate many persons at a go for live
conferences, seminal (webinar) letures, political campaign,
presidential address, governor’s address, business meeting etc.
- Parties can contract from the comfort of their home or anywhere
convenient to them. - Irrespective of the difference in world time zone, parties can
electronically contract from anywhere in the world. Whether in
Africa with any other country in these continents like Asia,
Australia, Europe, Middle East, North America and the United
Kingdom making the world a global community in reality. - It saves the expensive cost of hiring a venue.
- Application Program Interface (API) Allow you to integrate
electronic contracts from your Customer Relations Management (CRM),
as well as electronic contract improve customer service.6
4. CONCLUSION AND
RECOMMENDATION
In Nigeria, our law of contract not much can be said of
application and regulating electronic contract in comparison
with what is obtainable in the EU going by elDAS Regulation, where
all electronic contract and electronic identification is regulated
in business and interpreted by court criminal cases not exempted.
What then can we say here in Nigeria? How can parties’ interest be
protected during contract and in the event that issue(s) for
determination is before the court? In the absence of specific laws
and regulation, (pending when the legislature can pass a law in
this area) we have to recourse to using the Evidence Act 2011 in
that the courts can boldly interprete section 84 of the said Act
that allows email in the course of business transaction as
electronic evidence by an aggrieved party provided what is tendered
before the court forms facts in issue and same could be used in
establishing electronic contract.
Conclusively, E contract has reduced face to face (onsite)
meeting, paper documentation to electronic meeting in the cloud
(virtual meeting). Although there are network fluctuations to
contend with on one hand (e.g a moderator and a panelist at the NBA
break out session of the was logged out of the (last concluded)
virtual conference resulting in a slight hitch. On the other hand,
parties need not be afraid to contract electronically by virtue of
the fact that it maximizes the use of our time, while equally
protecting us from any communicable disease(s). Essentially,
benefits of Econtract listed here cannot be overemphasized. Rather
it is twined with all facets of life rendering lockdown
unnecessary, ease legal hurdles of the job of an attorney, grows
ever going business transactions in the economy, keeping us safe
and ensuring our health is hazard free.
Going forward, when we eventually overcome COVID 19, E contract
gives us options as against the stereotype of face to face meeting.
A NLS student could opt for electronic online classes. An
arbitration hearing, tribunal court, judge, or panel of justices
could opt to hear cases by electronic virtual hearing, a lawyer
could attend NBA conference by virtual means. Indeed this is a
definite impact on our adjudicatory system. In addition, federal
and state government ministries, by making them accessible through
online “timed appointment” the practise in
government establishments in Spain and EU countries.
Essentially, E contract is the ‘sweet cherry for every Nigerian
lawyer’ ; it’s the new big thing.
Finally, in commending the Corporate Affairs Commision (CAC),
this parastatal has taken the lead in electronic contract among
government establishments it has set a beautiful pace in all that
has to do with company formation, regulations, search, compliance
and company virtual board meeting. National Identity Management
Commission (NIMC) should borrow a leaf and make registration
painless online considering the aged citizenry, pregnant women and
nursing mothers. I will not fail to mention the Supreme Court
Practice Direction 2020, recently approved by the Chief Justice
Hon. Justice Ibrahim Tanko Mohammed enabled the apex court to hear
case(s) by virtual hearing. This is commendable and a plus. I urge
solicitors and advocates of the Supreme Court of Nigeria to upgrade
from archaic paperwork record keeping, face to face meeting to
subscribe to use of electronic contract and be up to date by
training on how best to optimise the use of programmes and
softwares with ease and swift optimum conclusion in legal services.
Whether the field of law practice is specialized or general
practice, this will enhance robust consultancy services, ease
practice, service of letters and court processes, and hitch free
virtual case presentation before the court. Other sectors are not
left out of this sweeping wave of electronic contract bail out from
lockdown. It is worthy to note that this is fundamental because it
helps us to keep abreast with the love vibe for our personality.
Knowing that government offices, civil services, business/contract
transactions, endorsement deal(s) are accessed effortlessly with
use of virtual software programmes. This upgrade correlates with
individual, public agencies, corporate bodies, network service
providers and the nation at large if over 60% of public electronic
users can be achieved in Nigeria.
LYNDA OSAGIE OGIEGBAEN
(Mrs), LL.B Hons. (Benin)
B.L Hons. (Abuja) Barrister Solicitor &
Advocate
- Black’s Law Dictionary 9th ed
2.{citation www.irmi.com[1]5 Sep 2020}
- {culled from definition.uslegal.com[2]5 Sep, 2020}.
- (culled from viafirma.com[3]5 Sep 2020).
- (culled from viafirma.com[4]5 Sep 2020).
- (Culled from blog.pandadoc.com 8 Sept 2020)