By Lynda Osagie Ogiegbaen
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.com5 Sep 2020}
{culled from definition.uslegal.com5 Sep, 2020}.
(culled from viafirma.com5 Sep 2020).
(culled from viafirma.com5 Sep 2020).
(Culled from blog.pandadoc.com 8 Sept 2020)
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