THE EFCC CHAIRMAN AND CRYPTO

Abdulrasheed Bawa, chairman of the Economic and Financial Crimes Commission (EFCC), said that cryptocurrencies have become a preference for persons engaged in illegal financial transactions.

Meanwhile, El Salvador has become the first country to adopt Bitcoin as official currency. Also, Ukraine has legalized #bitcoin and #cryptocurrencies. Does it mean that Ecuador and Ukraine are accepting or encouraging illegal transactions by adopting and legalizing crypto currency?

The battle between privacy and security is an age-old battle. Law enforcement and intelligence agencies around the world are always looking for opportunities to do away with privacy or technologies that enhance privacy. See the FBI–Apple encryption dispute. They argue that privacy enhancing technologies, such as encryption, impede or make their work of securing lives and property difficult or impossible. So does it mean that the death of privacy will make us more secure?

In the US, the FBI has severally claimed that they are "going dark", that is to say that crime busting and investigation is being hampered by the increasing use or adoption of encryption by tech consumers. In other words, the FBI and other law enforcement and intelligence agencies have been claiming for years that the increased use of encryption by consumers is making surveillance and lawful interception much more difficult and impeding investigations.

However, recent events have shown that the claim of going dark is over exaggerated. On May 22, 2018, the Washington Post reported that the FBI repeatedly cited inflated statistics about the number of cellphones whose data it could not access because of encryption.

Also in June, 2021, it was reported that for three years, the Federal Bureau of Investigation and the Australian Federal Police owned and operated a commercial encrypted phone app, called AN0M, that was used by organized crime around the world. In other words, instead of the FBI trying to break encryption or hack into devices, they created an encrypted phone app and put it out there and some criminals felt the phone app was secure and their communications were end to end encrypted, whereas, law enforcement agents had access to all their communications which were supposed to be encrypted and unreadable or inaccessible to third parties. With this, can you say the law enforcement and intelligence agencies are really going dark? See: The FBI's Anom Stunt Rattles the Encryption Debate.

In view of the above, the Chairman's claim might just be another ploy by a law enforcement agency to try chirp away at privacy and anonymity as law enforcements are wont to do, while hiding under the guise of fighting crime.

Further reading:

(1) Going Dark, Going Forward: A Primer On The Encryption Debate 

(2) US: FBI’s Encryption Statistics Inflated

(3) Rethinking Encryption

(4) Harvard Study Questions ‘Going Dark’ Cryptoproblem-

ABBA KYARI - LEARNING INTELLIGENCE/TECH INVESTIGATION

Deputy Commissioner of Police (DCP) Abba Kyari is an acclaimed “super cop” and the head of the Inspector General of Police (IGP) Intelligence Response Unit (IRT). As the “top dog” of the Nigeria Police Force intelligence unit, one would have expected Kyari to be more circumspect or cybersecurity cautious while dealing with Ramon Olorunwa Abbas aka Huspuppi who is now a self-confessed cybercriminal. Kyari did not bother to ensure that his conversations with Huspuppi were done via encrypted channels or platforms using Whatsapp or Signal calls. A Whatsapp or Signal call to another user of Whatsapp or Signal is end-to-end encrypted, meaning that the call cannot be accessed either by Whatsapp, Signal or a third party. If Kyari and Huspuppi had communicated via Whatsapp or Signal calls, the FBI would not have found the damning evidence linking Kyari with Huspuppi’s scams, even after the arrest and search of Huspuppi’s phones. At the best, call logs from either Whatsapp or Signal, would have shown that the two communicated but the contents of the communication would not have been known.

This lack of basic cybersecurity practice or seemingly tech incompetence might be a pointer to the fact the IRT is not so intelligent when it comes to the application of ICT for the investigation of crimes. If this is not so, how then can one explain this “slip” or “falling of hand” by the “top dog” of the IGP IRT? Or could it be that Kyari thought that Hushpuppi would never be caught and his devices accessed thus revealing his (Kyari’s) alleged criminal links with Huspuppi?

To be fair to Kyari, he is not the first top security official to exhibit a lack of basic cybersecurity knowledge or to fall from the top, due to tech goofs. David Howell Petraeus is a retired US Army General and public official. He served as Director of Central Intelligence Agency (CIA) from September 6, 2011, until his resignation on November 9, 2012. Before he assumed the directorship of the CIA, Petraeus served 37 years in the US Army.

The retired four-star General was forced to resign as CIA Director when an extramarital affair with his biographer; Broadwell, was revealed by their incriminating Gmail exchanges.

 According to Bianca Bosker:

“The extramarital affair between former CIA Director David Petraeus and his biographer, Paula Broadwell, which was revealed by their incriminating Gmail exchanges, could easily have gone undetected had Petraeus and his paramour followed two simple spy tricks that date back millenia: Write in code and destroy the message after you read it. It sounds simple, and it is. That's why it's disturbing and worth noting that the man in charge of all covert intelligence operations for the United States couldn't manage to keep a secret about his personal life.”

The Wall Street Journal, reported that Petraeus and Broadwell used pseudonyms to set up separate Gmail accounts which they used to communicate in secret. Their trove of "sexually explicit emails" was discovered only by accident after Jill Kelley, an acquaintance of Petraeus, complained that she was receiving threatening emails, which led FBI investigators to Broadwell's account and, in turn, to her X-rated messages detailing the affair.

The Journal explains:

“FBI agents and federal prosecutors used the information as probable cause to seek a warrant to monitor Ms Broadwell's email accounts. They learned that Ms Broadwell and Mr Petraeus had set up private Gmail accounts to use for their communications, which included explicit details of a sexual nature, according to U.S. officials. But because Mr Petraeus used a pseudonym, agents doing the monitoring didn't immediately uncover that he was the one communicating with Ms Broadwell.”

Creating separate accounts dedicated to illicit communication was a good move, noted Graham Cluley, a senior technology consultant at Sophos, a provider of security software.

Petraeus and Broadwell made the mistake of saving their emails, rather than erasing them right away. And Cluley said they also should have communicated in code using freely available online encryption services.

As the head of the CIA, Petraeus ought to have known better that the method of communication with Broadwell was not secure. In this age of ICT, the head of an intelligence agency must also be cybersecurity intelligent.

Also read: Here's How The FBI Nailed Paula Broadwell For Harassing Jill Kelley In The Petraeus Sex Scandal  

POSTSCRIPT: The FBI says that they are investigating the Hushpuppi case as part of “Operation Top Dog.” Top dog means a "person who is successful or dominant in their field." For example; “Hushpuppi was a top dog in the cybercrime world.”

Below is an excerpt from the Criminal Complaint filed in the United States District Court for the Central District of California in the case of the United States of America v. RAMON OLORUNWA ABBAS, ABBA KYARI & Ors which discloses the allegations against Abba Kyari

AFTER CONSULTING WITH JUMA, ABBAS ARRANGED TO HAVE ABBA KYARI IMPRISON CHIBUZO IN NIGERIA IN RETALIATION FOR, AND TO PREVENT HIM FROM, TRYING TO CO-OPT THE VICTIM BUSINESSPERSON

 129. As discussed in paragraph 120, JUMA and ABBAS had a falling out with CHIBUZO after CHIBUZO felt that he was being underpaid (or had not been paid) for work on the fake Wells Fargo website, and then contacted the Victim Business person directly. ABBAS then arranged to have KYARI arrest and imprison CHIBUZO in Nigeria for attempting to redirect fraudulent proceeds intended for ABBAS and JUMA to himself, to keep CHIBUZO from interfering with the scheme. This section discusses those events and KYARI’s involvement in the conspiracy.

 

130. On January l3, 2020, the Victim Businessperson contacted JUMA about a person who had contacted the Victim Businessperson about the loan, stating “This number is calling me but I didn’t answer.” The Victim Businessperson also provided JUMA a screenshot of and forwarded additional conversations between the Victim Businessperson and CHIBUZO, who was using the U.S. phone number 3054405586. That phone number was the same phone number used by CHIBUZO to send ABBAS information about the fake Wells Fargo website described earlier. In the messages, CHIBUZO sent the Victim Businessperson’s passport, and claimed to be “trying to help” the Victim Businessperson.

 

131. JUMA forwarded these messages from the Victim Businessperson to

ABBAS, who responded, “I will deal with him.” At approximately the same time, ABBAS asked CHIBUZO for a phone number on which to call him. Two minutes later, ABBAS sent the phone number on which he contacted CHIBUZO (which CHIBUZO had previously also sent to ABBAS) to KYARI without providing any additional context. Just before forwarding the phone number to KYARI, ABBAS placed a nearly five-minute call to KYARI, using the phone number described in paragraph 136.

 

132. A short time later, ABBAS told JUMA, “setting him up already [1]] He will learn.” JUMA replied, “He almost messed it up bro,” to which ABBAS responded, “They are working on it already.”

 

133. Approximately an hour later, CHIBUZO responded to ABBAS’ message requesting his phone number by providing another phone number. ABBAS also sent this number to KYARI without providing any additional context in the message.

 

134. On January l5, 2020, this time using WhatsApp, ABBAS sent an audio recording to KYARI, stating, essentially, that he wanted to remind KYARI about what they discussed earlier.

 

135. On January 16, 2020, ABBAS sent the following threats to CHIBUZO: I dey always tell people to think well before they offend me and make them make sure they fit stand the consequences when the time comes. I won’t say more than that but very soon, very very soon, the wrath of my hands shall find you and when it does, it will damage you forever At this point I no get discussion with you, u have committed a crime that won’t be forgiven, that is punishable and you shall receive die punishment in due time I swear with my life you will regret messing with me, you will even wish you died before my hands will touch you.

 

136. Also on January 16, 2020, ABBAS sent a message to KYARI on WhatsApp, and then placed five calls to another phone number (+2348060733588) that was listed as “ABBA KYARI.” Call records show that the last three of the calls were answered and that one ofthe calls lasted more than two minutes. Shortly after that, ABBAS received a message from KYARI, confirming “We would pick him today or tomorrow.” ABBAS wrote, “I will take care of the team also after they pick him up.” KYARI confirmed “Yes ooo.”

 

a. Based on the conversation described in paragraphs 143 to 145, ABBAS planned to pay the Nigeria Police Force officers who arrested CHIBUZO for that service.

b. This was not the only time that ABBAS arranged payments with KYARI. On May 20, 2020, ABBAS sent KYARI transaction receipts for two transactions from accounts at Nigerian banks (GTBank and Zenith Bank) of a person ABBAS knew in the U.A.E.—a person also arrested with ABBAS in ABBAS’ apartment in the U.A.E. by Dubai Police on June 9, 2020—to the Nigerian bank accounts of another person in Nigeria. The amounts on the transaction receipts totalled 8 million Nigerian Naira, which was approximately $20,600 based on publicly available exchange rate information.

 

137. Attempting to reason with ABBAS, on January 18, 2020, CHIBUZO recounted for ABBAS all the assistance he had provided in the scheme to victimize the Victim Businessperson, including creating the “power of attorney” document (paragraphs 67-68), devising a story to tell the Victim Businessperson (paragraph 117), and facilitating the creation of the “telephone banking” number (paragraphs 109-116) and fake Wells Fargo website (paragraph 117).

 

138. As discussed in paragraph 32.b, on January 20, 2020, KYARI sent to ABBAS biographical, identifying information for CHIBUZO, along with a photograph of him. In a conversation immediately following, ABBAS confirmed “that is him sir.” KYARI stated, “We have arrested the guy . . . He is in my Cell now [II] This is his picture after we arrested him today.” (The below image is a cropped version of the photograph that KYARI sent to ABBAS.)

 

139. KYARI sent the biographical information about, and photograph of, CHIBUZO to ABBAS using two different WhatsApp numbers—the second of which KYARI said was his “private number.” From that point on, KYARI and ABBAS primarily discussed the arrest and detention of KYARI through WhatsApp on this “private number.”

 

140. After receiving the photograph of CHIBUZO, ABBAS stated, “I want him to go through serious beating of his life.” KYARI responded, “Hahahaha,” and ABBAS replied, “Seriously sir.” KYARI then asked for details about what CHIBUZO did “on audio,” which KYARI said was “So that we will know what to do.”

 

141. In response to KYARI’s question about what CHIBUZO had done to ABBAS, ABBAS sent KYARI an audio message, which is transcribed here, describing how CHIBUZO had tried to steal away a fraud victim (i.e., “the job”) from him:

What he did is, I have one job. The job want to pay me 500, umm, 75,000 dollars [i.e., $575,000]. He went to message the job behind me because I told him to help me make one document for me to give the job. Then he went—he has a—I gave him the details. Then he went to message the job behind my back and try to divert the money and in this process he tell the job because of the documents he gave me that I gave the job, he tell the job, “These document they sent to you before. These people are fake. This money—is me who can help you to get it. Come to me le—bring this money you want to pay these people to me. I’m the only one who can help you,” and all these things to divert the job for himself.

 

142. After listening to the message, KYARI wrote, “Ok I understand [1]]

But he has not succeeded.” ABBAS claimed CHIBUZO had taken some money, and provided KYARI with two screenshots, one of which contained the phone number 3054405586 (the phone number CHIBUZO used to contact the Victim Businessperson). The screenshots showed a person contacting the Victim Businessperson and stating that he was providing information to try to “help[]” the Victim Businessperson. KYARI responded, “Yeah I understand.” KYARI did not request other information or evidence relating to CHIBUZO’s role in the scheme, ask questions about the nature of the transaction, or ask about why CHIBUZO told the Victim Businessperson that ABBAS was “fake.”

 

143. ABBAS then told KYARI, “Now the [Victim Businessperson] was skeptic to pay me the money cos he keep attacking the [Victim Businessperson] from his end. Now I can handle the [Victim Businessperson] correctly.” ABBAS further told KYARI that he wanted to pay money to send CHIBUZO to jail for a long time, stating “Please sir I want to spend money to send this boy to jail, let him go for a very long time.” KYARI responded, “Ok bro [1]] I understand [1]] I will discuss with my team who arrested him . . . And handling the case [1]] We will do something about it.”

 

144. ABBAS responded, “Let me know how I can send money to the team sir[.] let them deal with him like armed robber.” KYARI responded, “OK I will send their account details to u.” ABBAS further wrote, “He betray me and try to take food out my mouth, this is great punishable sin,” and KYARI responded, “Yeah bro.” ABBAS then continued, “I want him to suffer for many years.” KYARI responded, “Hahahaha [1]] Hahahaha.”

 

145. Approximately six minutes later, KYARI provided the account information for a bank account at a Nigerian bank, Zenith Bank, in the name of a person other than KYARI himself. ABBAS responded “Ok sir, tomorrow by noon,” indicating that he would make the payment to KYARI’s team by the next day.

 

146. On the same day, ABBAS sent JUMA the photograph of CHIBUZO in custody, which KYARI had sent.

 

147. Approximately a month later, on February 19, 2020, KYARI sent a message to ABBAS, saying, “Hello hush with [sic] need to talk about the subject under detention with me.” ABBAS asked “Should I call u on this number sir?” to which KYARI replied “Yes call me.”

 

148. The following day, KYARI sent ABBAS multiple photographs of CHIBUZO to ABBAS, including close-up photographs showing a rash or skin disease on CHIBUZO’s torso and arms. ABBAS responded, “I don pity am, make them leave am from Tuesday.” KYARI wrote, “Ok bro, they just brought him from hospital. The fever and the rashes is giving him serious Wahala [1]] He got the disease from other suspects in the cell.” ABBAS responded, “I see am, I no too pity am [1]] That’s what people like him deserve but I go forgive am for God sake.” In other words, based on my training and experience with Nigerian Pidgin, ABBAS was essentially stating, in part, “I don’t pity him. That’s what people like him deserve, but I will forgive him for God’s sake.”

 

a. Based on the date of the messages and later discussion described in paragraph 150, ABBAS was—on Thursday, February 20, 2020— requesting that KYARI not to release CHIBUZO until Tuesday, February 25, 2020.

 

149. ABBAS then told KYARI that CHIBUZO’s girlfriend messaged him, trying to raise one million Naira to secure CHIBUZO’s release, and said ABBAS promised to contribute 100,000 Naira. KYARI stated “They were thinking it’s normal arrest that is why they think money can remove him . . . No money can remove him here [1]] Hahahaha.” ABBAS added, “But it’s better for them to think that way, I like it like that,” and KYARI responded, “Yeah.”

 

150. ABBAS then said, “No problem sir from Tuesday he can go,” apparently giving KYARI his blessing to release CHIBUZO from custody. KYARI responded, “Ok bro [1]] We will also keep his phone and other gadgets for some weeks.” ABBAS responded, “Yes those ones they should not give him again, those ones are gone . . . Make he no see those ones again for life,” instructing KYARI not to return CHIBUZO’s electronic devices. KYARI responded, “Yes he will not see it [1]] Again,” indicating that he would accede to ABBAS’ request.

THIRD ALTERATION TO THE 1999 CFRN: THE GAME CHANGER IN NIGERIAN LABOUR LAW

1.   INTRODUCTION

It appears that many lawyers in Nigeria are  yet to come to terms with the new  reality of the game changing status of the Third Alteration to the 1999 Constitution of the Federal Republic of Nigeria (CRFN(as amended)). The aim of this article therefore, is to demonstrate to such lawyers, how the Third Alteration to 1999 CFRN has displaced hitherto established common law principles applicable to labour law in Nigeria.

The article will use the cases of SAHARA ENERGY RESOURCES LIMITED v. MRS OLAWUNMI OYEBOLA (2020) LPELR-51806(CA) leading judgement delivered by UGOCHUKWU ANTHONY OGAKWU, JCA on 3rd December, 2020 and AERO CONTRACTORS CO. OF NIGERIA LIMITED V. NATIONAL ASSOCIATION OF AIRCRAFTS PILOTS AND ENGINEERS (NAAPE) & ORS (unreported) Suit No. NICN/LA/120/2013, judgement delivered by HON. JUSTICE B. B. KANYIP on February 4, 2014 to lucidly demonstrate how the Third Alteration has changed the game.

2.   SAHARA ENERGY RESOURCES LIMITED v. MRS OLAWUNMI OYEBOLA

In Sahara’s case one of the issues for determination was whether the National Industrial Court (NIC) correctly assessed the quantum of damages by awarding two years’ salary as damages and compensation for the unlawful dismissal of the respondent. Ogakwu JCA at pp29-30 and pp35-36 had this to say on the issue of quantum of damages:

“By all odds, the law has become ensconced that in employment relationships without statutory flavour, where there has been wrongful/unlawful termination or dismissal, the measure of damages is payment of what the employee would have earned over the period of notice.  The Appellant  has  referred  to  some  of  the authorities in this regard. But as ensconced as the legal position may have become, has it become like the Rock of Gibraltar which cannot be moved? While the doctrine of  stare  decisis  or  binding  judicial  precedent  enjoins  the  courts  to  follow  the decisions  of  superior  courts,  it  has  to  be  remembered  that  what  the  earlier decisions establish is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand: FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558 at 650. It is in this wise that it becomes necessary to interrogate whether, in the light of the Third Alteration to the 1999 Constitution, wherein the National Industrial Court was fully structured into the Nigerian Judiciary as a superior court of record and a new labour jurisprudence emanated; the principle established in the cases prior to the said Third Alteration on the measure or quantum of damages to be awarded in cases of wrongful/unlawful termination or dismissal still remains the regnant law in  the  diacritical  circumstances,  or  whether  indeed  a  new  legal  regime  that demands a departure from the principle as it existed has been introduced in our corpus juris in employment and labour related litigations.”

“…in circumstances  where  the  employee  is  unlawfully  dismissed,  it  should  attract substantial damages, where claimed, in line with international best practices and not  based  on  the  hitherto  existing  principles  that  pre-date  the  advent  of  the innovative provisions of the Third Alteration to the 1999 Constitution. Section 254C (1) (f) and (h) and (2) of the 1999 Constitution empowers the lower  court  to  apply  international  best  practices  in  labour,  and  conventions, treaties, recommendations and protocols ratified by Nigeria. The High Courts were not so empowered in exercise of jurisdiction in labour matters which culminated in the principle of the superior courts on the measure of damages… the innovative provisions necessarily demand a rethink of the principle in the light of changed  circumstances  in  law.  Accordingly,  I  will  be  deferential  to  the  general damages  awarded  by  the  lower  court  in  exercise  of  its  jurisdiction  to  apply international best practices… I therefore uphold  the  award  by  the  lower  court  of  the  equivalent of  two  years’  salary  as general  damages  for  the  unlawful  dismissal  of  the  Respondent” 

3.  AERO CONTRACTORS CO. OF NIGERIA LIMITED V. NATIONAL ASSOCIATION OF AIRCRAFTS PILOTS AND ENGINEERS (NAAPE) & ORS

In Aero Contractors’ case, Kanyip J. in deciding on the issue of the applicability of ILO Conventions and treaties which Nigeria has ratified but not yet domesticated held at pp13-15 thus:

“…I need resolve an issue raised by the claimant as to the application of ILO Conventions and jurisprudence in this Court. The defendants, making submissions in that regard, had called on this Court to take cognisance of the relevant ILO Conventions 87 and 98 and their accompanying jurisprudence. In its reply on points of law, therefore, the claimant submitted that this Court cannot apply the said ILO Conventions and jurisprudence to this case. To the claimant, Nigeria may be a signatory to ILO Conventions, the law in Nigeria on the applicability of international treaties is that such treaties cannot have the force of law unless they have been enacted into law by the National Assembly, citing Nnaji v. NFA [2010] 11 NWLR (Pt. 1206) 438 at 454 H – A and Abacha v. Fawehinmi [2000] 6 NWLR (Pt. 660) 228 at 247.

I must first of all state that the causes of action in Nnaji v. NFA and Abacha v. Fawehinmi all arose before the coming into effect of the Third Alteration to the 1999 Constitution. So the cases do not cover the issues raised by the Third Alteration to the 1999 Constitution. It is section 12 of the 1999 Constitution, as amended, dealing with implementation of treaties that Nnaji v. NFA and Abacha v. Fawehinmi interpreted and applied. The said section 12 provides –

(1)  No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

(2)  The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.

(3)  A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation.

The thing with section 12 of the 1999 Constitution, as amended, is that a treaty as such shall not have the force of law in Nigeria unless such treaty has been enacted into law by the National Assembly and that law has been ratified by a majority of all Houses of Assembly in the country.

Now section 254C of the 1999 Constitution, as inserted by the Constitution (Third Alteration) Act 2010, deals with the jurisdiction of this Court. Its relevant provisions for present purposes are subsections (1)(f) and (h), and (2), which provide as follows –

(1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction  as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:–

(f) relating to or connected with unfair labour practice or international best practices in labour, employment  and industrial relation matters;

(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;

(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified to labour, employment, workplace, industrial relations or matters connected therewith.

There are two ways of approaching the issue at hand. The first is the question whether the Constitution (Third Alteration) Act 2010, which inserted section 254C(1)(f) and (h) and especially (2) is not the domestication demanded by 12 of the 1999 Constitution itself. I think it is. The Constitution (Third Alteration) Act 2010 amended the 1999 Constitution. Before it was passed and assented to by the Preisident of the country, it was sent to all the “Houses of Assembly in the Federation” and was ratified by majority of the Houses of Assembly, hence the alteration of the 1999 Constitution itself. This effectively means that the requirements of section 12 of the 1999 Constitution were and have been met when section 254C(1)(f) and (h) and (2) was enacted as per the Constitution (Third Alteration) Act 2010.

Even if the first approach were not to be the case, the second approach at treating the issue is that both subsections (1) and (2) of section 254C of the 1999 Constitution, as amended, commence with the word “Notwithstanding”. In subsection (1) it is “Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution…” and in subsection (2), it is “Notwithstanding anything to the contrary in this Constitution….” Section 12 qualifies as both “anything contained in this Constitution” in subsection (1) and “anything to the contrary in this Constitution” of subsection (2). The use of the word ‘notwithstanding’ in any statutory instrument has been judicially considered by the Supreme Court. In Peter Obi v. INEC & ors [2007] 11 NWLR (Pt. 1046) 565 at 636 – 634 per Aderemi, JSC, the Supreme Court cited NDIC v. Okem Ltd and anor [2004] 10 NWLR (Pt. 880) 107 at 182/182 with approval where it held as follows –

When the term “notwithstanding” is used in a section of a statute it is meant to exclude an impinging or impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself.

In like manner the use of the word ‘notwithstanding’ in section 254C(1)(f) and (h) and (2) of the 1999 Constitution, as amended, is meant to exclude the impending effect of section 12 or any other section of the 1999 Constitution. It follows that as used in section 254C(1)(f) and (h) and (2) of the 1999 Constitution, as amended, no provision of the Constitution shall be capable of undermining the said section 254C(1)(f) and (h) and (2); and I so find and hold.

So, whichever of the two approaches is adopted (or even if both approaches are adopted), I have no hesitation whatsoever in finding and holding that this Court has the jurisdiction and power to apply “any international convention, treaty or protocol of which Nigeria has ratified”; and ILO Conventions 87 and 98 and the ILO jurisprudence that goes with them can be so applied in view of their ratification by Nigeria.”

4.     CONCLUSION

From the above it is crystal clear that the Third Alteration to the 1999 Constitution is a huge game changer when it comes to labour issues in Nigeria. The hitherto entrenched common law position in labour jurisprudence may no longer be applicable in Nigeria most especially because of the Third Alteration to the 1999 Constitution and sections 7(6), 12, 13, 14 and 15 of the National Industrial Court Act, 2006.

The Court of Appeal in Sahara’s case applied international best practices to uphold the quantum of damages awarded by the NIC. It is therefore not out of place to conclude that the Court of Appeal will also uphold the decision in BELLO IBRAHIM v. ECOBANK PLC (unreported) Suit No. NICN/ABJ/144/2018 judgement delivered December 17, 2019, where the NIC also applied international best practices and ILO conventions to hold that an employer of labour cannot fire at will without giving reasons. Kado J, noted in Bello’s case thus:

"The law, for long, has been that an employer needs not give reason to terminate a contract of  employment;  he  only  needs  to  comply  with  the  terms  and  conditions  of  employment. Employers are at liberty to terminate for good, bad reason or no reason at all. This general trite position of the common law rule is however considered not be in tune with modern day global labour law best practices… From the evidence and circumstances of this case, there was nothing to cast doubt on the claimant's capacity in terms of performance of his job. To my mind, in view of Article 4 of convention No. 158 of ILO and recommendation 166 of the said convention, it will not be fair to terminate contract of employment for no reason whether good or bad"

In view of the Court of Appeal’s decision in Sahara’s case, it appears that it may not be right to contend, as one of my learned friends did, that “Until the Superior courts pronounce on this judgement (in Bello Ibrahim v. Ecobank Plc), anyone who carries the judgement to town to celebrate is standing on a banana peel with the tendency to slip any moment”.

It is interesting to note that although the author of the article: “Bello v. Ecobank: A New Sherriff is in Town,” hailed the judgement in Bello’s case as a landmark, “which turned the tides and completely changed the tenure of determining employments at will, or servant holding an office at pleasure, or master servant relationship type of employments in Nigeria”,  the real landmark is the decision of the NIC delivered over a decade ago in PENGASSAN v. SCHLUMBERGER ANADRILL NIGERIA LIMITED [2008] 11 Nigeria Labour Law Reports (NLLR) (Pt. 29) 164, that, irrespective of the employer’s right to hire and fire for any or no reason, it is no longer globally fashionable in industrial relations law and practice to terminate an employment relationship without adducing any valid reason for such a termination.

Freedom of Expression and the Hate Speech/Social Media Bills in Nigeria

 Sometimes in November of 2019, Daniel Penda Esq. and I were hosted on Radio Benue’s “You and the Law” programme, were we bared our thoughts on freedom of expression in Nigeria and the Hate Speech/Social Media bill. You can listen to the interview or discussion divided into 2 parts: part 1 and part 2

 

Below are some powerful quotes about freedom of expression and hate speech laws:

"Those who occupy sensitive posts must be prepared to face public criticisms in respect of their offices so as to ensure that they are accountable to the electorate. They should not be made to feel they live in an Ivory Tower and thereafter belong to a different class. They must develop thick skin and where possible plug their ears with cotton wool if they feel too sensitive or irascible. They are within their constitutional right to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponents, for if it is otherwise, the freedom of speech guaranteed by our Constitution will be meaningless”- Olatuwura JCA in Arthur Nwankwo v. The State

 

“Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interests.  Criminal  law  exists  to  ensure  retribution  and  protection  of  the  public,  by  detaining offenders  and  deterring  others  from  offending.  For assault, imposing imprisonment or supervision  is essential to protect the victims and the public at large. For damaging speech, however, the civil law is as effective, if not more so, in providing the public with proportionate protection from offenders. Crucially,  freedom  of  expression  is  constitutionally  enshrined  and  encouraged,  as  the  lifeblood  of democracy. The freedom to wield fists and firearms enjoys no similar status in our supreme law. Thus the analogy  between  assault  and  defamation  breaks  down. It is an unreliable  guide  to  finding  an appropriate balance between the rights to dignity and free speech. It is also disputable that civil and criminal defamation impose equivalent limitations, and that the harsher consequences of criminal liability are  neatly  offset  by  the  heavier  burden  of  proof.  There are important  differences  in  practice  and  in principle.

 

First, a prosecution targets the journalist rather than the journal. A civil suit is aimed primarily at the defendant with the deepest pockets, Furthermore, while civil liability may be discharged within days, through payment or some other performance, criminal liability endures long after the sentence has been served, or even if the sentence has been suspended. Criminal liability is permanent and pervasive. It brands the accused with a mark so deep and indelible, it can be expunged only by presidential pardon. It stains every sphere of that person’s life. He becomes a criminal, and must disclose that every time he applies for a job, a visa or even a bank account.

 

Even if the state does not discharge its onerous burden of proof, the very existence of the crime creates the risk of wrongful accusation, investigation, prosecution and even conviction, with all the associated inconvenience  and  scandal.  These  ills  can  barely  be  corrected  on  appeal,  and  thus  the  crime  could easily  be  used  to  cow  courageous  journalists.  It  is  this  brand  of  public  disapproval  that  criminal  law rightly casts on murderers, rapists and thieves, precisely for its deterrent potency. The same objective could not and should not apply to injurious speech, the borders of which are elusive and essentially subjective.”

Vinayak Bhardwaj and Ben Winks 

“Prohibitions that censor offensive viewpoints or hate speech are often counter-productive to the aim of promoting equality, as they fail to address the underlying social roots of the kinds of prejudice that drive ‘hate speech’. In most instances, equality is better-promoted through positive measures which increase understanding and tolerance, rather than through censorship by way of anti-hate speech laws.”

Article 19

CONFESSIONAL STATEMENT FROM A SUSPECT DOES NOT GUARANTEE CONVICTION IN COURT

 

Investigating Police Officer (IPO): Oga, you remember that case of stealing of two goats wey I been dey brief you some time ago? During investigation the suspect freely volunteered his statement and confessed to stealing the two goats.  Yesterday the police prosecutor was telling me that, that magistrate discharged and acquitted him o. Haba Oga! That magistrate no dey help our work o. Even with a confessional statement him discharge and acquit that boy fa!

Divisional Police Officer (DPO): ahnn ahhn! I remember the case very well. Is it not that case of stealing of two goats and which one of the goats was pregnant? Let the prosecutor come and brief me later. Let me hear from him exactly why the accused person was discharged and acquitted.

Flowing from the above short conversation between the IPO and the DPO it can be seen that many IPOs and I dare say, even some lawyers/prosecutors, often think that once there is a confessional statement from a suspect and the suspect is eventually arraigned in court for the offence which he has allegedly confessed to, conviction is automatic or guaranteed. However, such thinking is not in tune with the law regarding confessional statements under Nigerian law.

A court is expected to test the trustfulness and veracity a confessional statement by examining the said statement in the light of other credible available evidence. The court will do this by looking into whether:

(a) there is anything outside the confessional statement to show that it is true;

(b) the confessional statement is corroborated;

(c)the facts stated in the confessional statement are true as far as can be tested;

(d)the accused person had opportunity of committing the offence;

(e) an accused person's confession is possible; and

(f) the confession is consistent with other facts as contained and proved at the trial court.

If the answers to the questions posed above are in the negative then such a confessional statement may be of no evidential value to the court in arriving at a decision and the accused person may be discharged and acquitted despite the confessional statement.

The above represents the position of the law as held in AKPAN v. STATE (2001)15 NWLR (pt. 737) 745 and a multitude of other cases

Furthermore, the prosecution must also prove that the confessional statement was voluntarily obtained if its voluntariness is objected to by the accused person.

DUTY TO REPORT TO POLICE UNAUTHORIZED/FRAUDULENT TRANSFERS ON CUSTOMERS' ACCOUNTS

INTRODUCTION

Sometimes when bank customers in Nigeria suffer from fraudulent or unauthorized withdrawal of funds from their bank accounts, they are told by their banks to report the incident to the Police. For instance, in the case of IORPUU KELVIN MSUGHTER v. UNITED BANK FOR AFRICA (UBA) PLC, Suit No. MHC/302/18, decided by the Benue State High Court of Justice, Makurdi, Mr. Iorpuu, while at home received several debit alerts on his phone. He rushed to make a complaint to the bank the following day and after about a month the bank informed him that it was someone that transferred funds from his account and that he should make a complaint to the Police.

Is it really the duty of the customer to report such cases of fraudulent withdrawals to the Police or that of the bank? In order to answer this question, it is crucial to briefly examine the nature of the banker/customer relationship.

THE NATURE OF THE BANKER/CUSTOMER RELATIONSHIP

The account balance on your bank account is known as a demand deposit in banking parlance. The deposits are used by the banks to leverage lending. Many people mistakenly believe that their account balance shows how much they own. This is not so. Instead, it shows what the bank owes you. You merely hold a claim on cash. Therefore, bank deposits are actually loans.

Your cash forms the foundation for a banking system that loans out your account balance with the promise that they will keep some of it on hand and return all of it if you ask for it. This is called fractional reserve lending and this is what all banks do.

The old English case of FOLEY v. HILL (1848) established the legal precedent, for fractional reserve banking. In that case the court held that:

"Money, when paid into a bank, ceases altogether to be the money of the principal; it is then the money of the banker, who is bound to an equivalent by paying a similar sum to that deposited with him when he is asked for it…The money placed in the custody of a banker is, to all intents and purposes, the money of the banker, to do with it as he pleases; he is guilty of no breach of trust in employing it; he is not answerable to the principal if he puts it into jeopardy, if he engages in a hazardous speculation; he is not bound to keep it or deal with it as the property of his principal; but he is, of course, answerable for the amount, because he has contracted, having received that money, to repay to the principal, when demanded, a sum equivalent to that paid into his hands."

In the Nigerian case of WEMA BANK PLC v. ALHAJI IDOWU FASASI SOLARIN OSILARU (2007) 5 iLAW/CA/I/168/2004 it was held Per OKORO, J.C.A. (Pp. 16-17, paras. F-F) that:

“It is now settled that the relationship between a banker and customer where a bank accepts money either in current or deposit account from its customer, is a relationship of debtor and creditor. The relationship is essentially contractual. See Balogun v. National Bank of Nigeria Ltd (1978) 11 NSCC,35, Afribank Nig Plc v. A.I. Investment Ltd (2002) 7 NWLR (pt 765), 40. Now, in view of the nature of relationship between the banker and its customer and of the contract that exists between them, the customer has neither the “custody” nor “the control” of monies standing in his credit in an account with the bank. What the customer has is a contractual right to demand repayment of such monies. See Purification Tech. Nig. Ltd. v. A.G. Lagos State & 31 0rs (2004) 9 NWLR (pt 879), 665; Yusuf v. A.C.B. (1981) 1 SC 74, (1981) 12 NSCC 36. It seems to me therefore that the customer’s monies in the hands of the banker are not in the custody or under the control of the customer. Such monies remain the property in the custody and control of the banker, and payable to the customer when a demand is made. This is so because if anything happens to the money thereafter e.g. theft of the money, it is the banker and not the customer that bears the loss. Where the customer makes a demand e.g. by issuing a cheque and the banker refuses to pay, it is my view that the customer’s cause of action is in damages under their contractual relationship. See Afribank (Nig) Plc v. A.I. investment Ltd (supra).”

In a nutshell, when you deposit funds in a bank account, those funds are no longer yours!

CONCLUSION

Having briefly examined the nature of the relationship between the bank and the customer it is submitted in conclusion that money in the bank remains the property of the bank and when there is a case of its theft through fraudulent withdrawals or unauthorized withdrawals or transfers, the duty falls on the bank and not the customer, to report such theft or unauthorized withdrawal/transfer to the Police. More so, that the bank, has more information and facts regarding the movement of such funds and would therefore be in a better position to make a complaint to the Police or law enforcement agencies.

COVID 19 PANDEMIC, ICT, THE NIGERIAN COURTS AND LAWYERS

The COVID 19 pandemic has led to the shutdown of many offices/businesses and lock down of many cities across the world. Nigeria is not left out of the shut down/lockdown and as a result, the courts in Nigeria are rendering skeletal services and only attending to matters that are time bound, essential or urgent pursuant to the directive of the National Judicial Council.

In Australia, the Supreme Court of New South Wales stated that it would take steps to minimize the need for parties to come to the Court through the use of online courts and telephone and video conferencing. Also in Australia, the Chief Justice of the State of Victoria announced that all new jury trials will be suspended, and the Federal Court of Australia announced that it will limit face-to-face hearings to essential matters only.

On 23^rd March, 2020 the North Dakota Supreme Court heard three oral arguments using an online meeting application permitting seamless audio and video participation.

Three cases were discussed allowing the justices and attorneys, each physically in different locations, to appear together on the same computer screen and conduct business. The cases were broadcast live on the Internet. The lawyers presented their cases and the Justices questioned counsel, all in real-time and just as if the session was occurring live in the courtroom.

After the oral arguments, the Court met using another secure videoconferencing application to discuss the cases among themselves. The Court’s decision will be written by one of the Justices and released in the future.

In Kenya it was reported that Justice Hannah Okwengu of the Court of Appeal will deliver over 20 judgments and rulings of appeals and applications heard in Nairobi, Kisumu, Mombasa and Eldoret through video link and transmit others by email on Friday 3rd April, 2020. It was also reported that seven cases certified as urgent will be argued sometimes in April, 2020 through written submissions digitally transmitted to the Court. The decisions will likewise be so transmitted to parties/counsel.

The question that flows therefrom is whether the Nigerian courts can take advantage of the existing ICT tools or infrastructure; for example, video conferencing, email, SMS, etc., to enhance service delivery namely; hearing of cases, in this times of lockdown and even thereafter?

Considering the lack of stable electricity supply and lack of technology competence on the part of some judicial staff and lawyers alike, it would be doubly difficult leveraging on ICT to drive service delivery by the Nigerian courts. Nevertheless, the Nigerian Judiciary must start from somewhere. The Judiciary cannot afford to wait till all conditions are perfect before starting.

As far back as 2012, the then Chief Justice of the Nigeria, Justice Dahiru Musdapher, launched the Nigerian Judiciary Information Technology Policy (JITPO) at the National Judicial Council Complex in Abuja. He stated that that implementing the policy will assist the judiciary to meet the changing needs of the nation’s judicial officers, court employers, key stakeholders and the general public as according to him the policy will provide the needed foundation for the implementation of any Information Technology (IT) project in the judiciary.

Justice Musdapher charged the Nigerian Judiciary to embrace IT as a means of improving access to courts and increase transparency of the court process by providing information about court cases, court procedures, facilities and most importantly expedite the judicial process.

The Judicial Information Technology Policy (JITPO) has not only endorsed the use of Video Conferencing, but has clearly laid down guidelines for its application to the Nigerian Courts. It provides as follows:

“The use of video-conferencing technology is greatly encouraged in the Judiciary. Video-conferencing can be used to connect people in different physical locations especially for critical meetings and discussions. Video conferencing systems can also be used to enable testifying witnesses appear in court without having to travel to the courtroom. Expert witnesses, prisoners, and various other witnesses can provide the same testimonies from remote locations. From the prison, prisoners will see and hear everything that takes place in the courtroom and will be able to answer questions posed to them by the judges and lawyers…Videoconferencing in the court system offers significant cost savings and improved security by reducing the need for high-security prisoner transport. The entire courtroom experience will be made shorter, safer and more cost-effective.”

Thus in 2016, in the case of FLORENCE ORIM vs. EDWARD ORIM, a Benue State High Court, sitting in Makurdi,  took the testimony of a witness who was in Japan via Skype.

As can be seen from the JITPO document, the Judiciary in Nigeria is acutely aware of the benefits of using technology to enhance and improve service delivery and access to justice. The JITPO policy document is about 8 years old now. The corona virus pandemic should spur the current head of the Judiciary and other stakeholders into fully putting into effect the laudable policies contained in the JITPO and if necessary even amending the policy to bring it up to date with current realities.

If the policy is fully implemented and the rules of some courts are tweaked, there is no reason why certain matters cannot be completely held online using ICT tools or infrastructure. For example oral arguments in appeals at the Supreme Court and Court of Appeal can be held virtually or online after briefs have been filed and exchanged by parties. Briefs can even be filed and served electronically obviating the need for parties to visit the court’s registry for filing purposes.

Fundamental rights enforcement cases which do not necessarily need the physical appearance of parties and is usually dealt with by affidavit evidence and documents can be held online. Parties can electronically file their papers and they would be served electronically while adoption of written addresses and oral adumbration can be done via video conferencing.

Although there exist electronic filing system in the Lagos State Judiciary it is said to be fraught with so much inefficiency that it has been reduced to scanning of paper documents.

According to Funmilayo Odude, who I totally agree with:

“A more efficient technology-driven system would enable litigants and their lawyers enter their information and state their cases by filling relevant forms on the courts' website. The litigants would also be able to make payment of filing fees and other incidental expenses online. The final document bearing the suit number, stamp of the court and receipt for payment can, thereafter, be printed by the litigant or his or her legal practitioner and reproduced in the number of copies required. To further deepen the automation of court processes, the Legal Practitioners Act and the Evidence Act would need to be amended to allow for electronic stamps and electronic signatures, respectively. The process can, however, begin with the legal community lobbying the National Assembly for these amendments. In an automated environment, subsequent filing in a suit will be done online and a copy of what is filed can be sent to the email addresses of all the parties. The system of electronic filing described above is not impossible to implement in the federal courts or high courts of states in Nigeria. The Corporate Affairs Commission has successfully implemented an automated system.”

Many lawyers remain largely incompetent, or at least untrained, in technology. I meet these lawyers all the time — some who are proudly resistant to learning technology, others who simply have not taken the time. Such lawyers must become computer literate in order for them to function effectively and deliver their services in this changing world of legal practice.

In the United States, following a 2012 modification to the American Bar Association’s Model Rules of Professional Conduct, lawyers in America are required to stay abreast of changes in the law and its practice, including the benefits and the risks associated with relevant technology. The duty of competence of lawyers in the United States includes both substantive knowledge of law and competent use of the technology that lawyers use to practice law. Lawyers in America are expected to take reasonable steps to understand how technology may affect their legal representation.

Commenting on the 2012 modification to the American Bar Association’s Model Rules of Professional Conduct, Andrew Perlman said:

“The seemingly minor change to a Comment to Rule 1.1 of the American Bar Association’s Model Rules of Professional Conduct captures an important shift in thinking about competent twenty-first century lawyering. Technology is playing an ever more important role, and lawyers who fail to keep abreast of new developments face a heightened risk of discipline or malpractice as well as formidable new challenges in an increasingly crowded and competitive legal marketplace.”

Maybe it is time for the Rules of Professional Conduct for Legal Practitioners in Nigeria to be amended in that regard. Also the time has come for the Judiciary in Nigeria to upgrade its use of ICT tools in service delivery as envisioned in the JITPO.