SOME CHALLENGES FACING ELECTRONIC CONTRACT IN NIGERIA AND SOME OF THE WAYS FORWARD.

SOME CHALLENGES FACING ELECTRONIC CONTRACT IN NIGERIA AND SOME OF THE WAYS FORWARD.

Electronic contract has been defined as “any type of contract formed in the course of e-commerce by (i) the interaction of two or more individual using electronic means such as email (ii) the interaction of an individual with an electronic agent such as a computer program.’’

   It can  also be defined as the agreement entered into in electronic form with the use of electronic devices which all the elements of a valid contracts are present and the subject being contracted upon not being prohibited by any law.

Challenges of Electronic Contract in Nigeria

            There is no gain saying that Nigeria is ripe for the Information and Communication Technology revolution especially in the area of e-commerce and e-contract. By its nature, mode, transmissions and usage, electronic contracts poses a number of legal uncertainties that have tried the wit and wisdom of legislator and commentators. It creates legal muddle in the ascertainment of the actual time a contract is formed as such impinges on issues of withdrawal of offer, jurisdictional issues as to where the contract is formed. Other challenges associated therein relates to authentication and identity of the parties as well as signature. While the challenges impinge more on the form of the contract, the impact are more in evidentiary concern as to proof and weight to be attached therein. some of the challenges are discussed below:

            Fear and Fraud

            There is no argument to the fact that element of contract: offer, acceptance, intention to create legal relationship and considerations are grounds for electronic contract formation. But major challenges that Nigeria is facing is the fear of people putting up fake identity to defraud others. The issues of insecurity of web server used as the medium of electronic exchange of sensitive security data is an issue that calls for attention. In some jurisdictions, it has been sorted out with the use of third parties to verify an individual’s public key aimed at eliminating fraud. The certification authority confirms that each detail is in fact who it says it is. There is no such infrastructure yet in Nigeria like in some jurisdiction, where several companies serve in this capacity for individuals and organizations for a nominal fee. This non-availability of certification authority which has occasioned fear of fraud in the mind of the Nigerian public is attributed to inadequate legal framework in Nigeria jurisdiction.

            Legal Challenges

 The UNCITRAL Model law on electronic commerce and the United Nation model law on electronic signatures, provided the general framework for the validity and enforcement of electronic contract. There are plethora of legal challenges faced by contracting parties some of the major issues are choice of law, jurisdiction, and consent, time of offer and acceptance ,non-negotiable terms and conditions.

            It is trite that elements of contracts are ground for electronic contract formation with regard to offer, it has been asked often whether an advertisement on the website is an offer or invitation to treat?  In many other jurisdictions where there is adequate legal framework, it has been held an invitation to treat.

            Another challenge is to determine the precise moment a contract is formed. It is important because until a contract is accepted, it can be withdrawn or altered, but once accepted it becomes binding and enforceable. Identifying the precise moment a contract is formed is great challenge, incidentally both the model law on electronic transaction and all statutes designed to facilitates electronic transaction and all statutes designed to facilitate electronic contract do not contain substantive rules governing the time a contract is formed, rather focused on the dispatch and receipt.

            Due to the inadequacy of the legal framework in Nigeria jurisdiction, it is difficult to determine when there is offer and acceptance, consideration and intention to enter into legal relations. It is my suggestion that the laws applicable in other jurisdiction should be adopted in Nigeria with regard to elements of a valid contract to enhance it efficiency.

            Infrastructural Challenges

            These challenges posed to Nigeria are majorly infrastructural inadequacy. At height of these challenges is the inadequate or lack of electricity supply. Without power, electronic gadgets cannot work. Take for instance when a transaction is carried out through email, one of the contracting parties may not even be able to read his mail, in order to respond appropriately.

            Another factor is poor telecommunication to connect the internet in most developing nations including Nigeria. Some areas of electronic contract require high internet service providers. But in Nigeria internet access is hardly available and when it is available, it is very slow. As a result people rarely place reliance on internet service to carry out their business transactions.

            High Rate of Illiteracy

            Most Nigerian  are not exposed to the use of modern Technology. Some are not even disposed to learn how to use it. Due to illiteracy, people will tell you that whatever that is displayed in the internet for sale is not real, rather it is a medium people defraud others. Many average Nigerians cannot on and off a computer system not to talk of connecting the internet and browsing up items displayed for sale. This is a great challenge, because it will hamper the growth of electronic contract in any nation.

    In the wake of the expansion in the various fields of human endeavours extant in the Nigeria society, especially with hype development of information and communication technology activities, it goes without saying that ICT is the basic infrastructure for the conduct of electronic contract and has greatly improved the relationship of all members of society.

SOME OF THE SUGGESTED WAYS FORWARD .

            All the developed countries have reappraised and repealed some of the laws guiding electronic contract and transactions in order to conform to modern computer and communication system, and the global nature of the internet and electronic devices. Therefore, to ensure proper and active electronic contract activities and its enforcement in Nigeria, the following if carried out can greatly improve the nature of electronic contract in Nigeria:

1.      Streamline and Harmonise the evolving laws: in Nigeria today, not minding the inadequacy of the laws regulating electronic transactions, it is necessary to stream line and harmonise these existing laws on electronic transactions like Cyber crime (prohibition, prevention etc) Act, 2015, The National Information Technology Development Act, 2010, Electronic Transactions Protection Bill 2010, recently passed into law. In this regard, lessons may be learned from other jurisdictions which seem to favour a more unified and holistic legislative approach, unlike the highly fragmented emerging ICT laws in Nigeria. This will also make the location of the law easier and prevent making provision for conflicting sections of the law. In harmonizing the laws it should be looked into and more additions made to already existing laws. The law should make provision for the mode of it formation, validity and enforcement procedures.

2.      Ratification and Implementation of the United Nations Convention on the Use of Electronic Communication on International Contracts: Issues relating to e-contract are virtually global in nature and require execution of international treaties between countries and formations of model laws. Any treaty emanating from the U.N.O is usually referred to as universal because, virtually every country is a member of United Nations Organizations. It is one of the recommendations of this research work that Nigeria as a member state of United Nations Organization, should implement the United Nations Convention on the use of Electronic Communications in International Contracts to enhance effectiveness of electronic contract both in Nigeria and in the world.

3.      Awareness Creation: The need for awareness creation about electronic contract through an established government agency charged with such responsibility or anybody touched cannot be over-emphasized. In Nigeria, the value of reliability placed on electronic correspondence in Nigeria is very low, as many users of electronic platform including some lawyers are either not aware that, electronic contracts can be implied or made from mere electronic correspondence without signatures or are wary of entering into contract without a direct face to face communication. There is need to create awareness educating people of different segments of the population, laymen, and professionals on the importance of e-contract and its need in the economy.

4.      Creation of Certification Authority: In e-contract verifying the parties’ identity before making commitments is very important. In some jurisdictions, they are established certification authority which is referred to as a third party charged to verify an individual public key and act as a middleman that both parties and computers can trust. In Nigeria there is no such infrastructure as some other jurisdictions where several national companies serve in this capacity for individuals and organizations for nominal fee. It is the recommendation of this work that Nigeria Government should establish one or give private enterprises the power to do such business in Nigeria through enactment of law.

5.      Harmonize the Administration and Enforcement Agencies: Electronic contract is not without cyber crimes in existence. The existing laws have different agencies charged with the responsibility of its enforcement and administration, i.e the implementation of the information technology policy is the responsibility of the National Information Technology Development Agency (NITDA), enforcement and administration of cyber crime is the duty of cyber security agency and cyber Crime Advisory Council is charged with wide powers to investigate cyber crimes. The need to harmonize the agencies arises due to the fact that they may be conflict between the agencies in carrying out their different functions. Also putting the resources and the country’s economic situation, the government’s scarce resources might not be better off being deployed to strengthen and training operators within the existing institution. This is so, given the fact that there will be considerable overlapping between the functions of the agencies, which might further complicate the legal and institutional landscape. i.e In United Stated of  America it is the duty of Federal Bureau of Investigation to  fight against cybercrimes in the jurisdiction.