FACTS
By a criminal charge dated the 25th June 2008, the Appellant was arraigned
before the Federal High Court sitting at Kaduna in the following terms:
"That you Nnachi
Ephraim on or about the 4th day of April, 2008 at Prime Gate Cybercafe, 1
Okpara Street, Abakaliki, Ebonyi State within the jurisdiction of the Federal
High Court, being the Manager of Prime Gate Cybercafe failed to register the
Cybercafe with the Economic Financial Crimes Commission and thereby committed
an office contrary to Section 13(1)(a) and punishable under Section 13(5) (c)
of the Advance Fee Fraud And other Fraud Related Offences Act, 2006."
A
trial was conducted as a result and, one witness each, testified on behalf of
the Appellant and Respondent respectively. At the conclusion of the trial, the
trial Court found the Appellant guilty.
DECISION
Upon
appeal, the Court of Appeal Per ORJI-ABADUA, J.C.A. on Pp. 44-46, paras.
G-F of the judgement held that:
"For a person to
be guilty under Section 13(1)(a), the person must in the normal course of
business, provide telecommunications or internet services, or must be the owner
or the person in the management of any premises being used as a telephone or
internet cafe or by whatever name called. I must observe that the fact that the
signboard of primegate cyber cafe is posted at No. 1 Okpara Street, Abakaliki
notwithstanding, there must be some overt act on the part of the owner of the
cybercafe to prove that he actually provides telecommunications or internet
services to the public. There was no shred of evidence adduced by the
prosecution establishing that Primegate Cybercafe was indeed providing
telecommunications and internet services at No. 1 Okpara Street Abakaliki. The fact
that the signboard of Primegate is hanging thereat does not constitute any
proof that the said cybercafe was providing any internet services at the said
address. I think, the saying; 'the hood does not make the monk' suits
appropriately here. All the documents tendered before the lower Court
profoundly showed that it was Artifice Colony cybercafe that was indeed
providing both the telecommunication and internet services at No. 1 Okpara
Street, Abakaliki and not Primegate. P.W.1 admitted that no investigation was
carried out by the EFCC to decipher whether Primegate Cybercafe was indeed
taken over by Artifice Colony Cybercafe or not. They did not obtain the tickets
and receipts normally issued to customers to strongly establish that it was
Prime gate Cybercafe that was running the said business. The question is; 'if
there was no proof that Prime gate was indeed offering any internet or
telecommunication services, where then lies the offence?' It is only when the
cyber cafe or a person is offering the services enumerated in Section 13(1)(a)
of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 that the
person or the entity is required in law to register the same. A moribund or
defunct company, whose signboard is still hanging out on its former business
address without any iota of proof of it running any business thereat, cannot be
said to be carrying out the same services it had wound up, merely because of
the continued display or affixation of its signboard at its former business
address. It is not an offence to display a signboard, but, it is an offence to
carry out such internet or telecommunication services or being the owner or
person in the management of any premises being used as a telephone or internet
cafe without registration of the cyber cafe. There must be proof of usage of
the place as a telephone or internet cafe. This was lacking in the evidence
proffered by the prosecution in the instant case. It is glaring that the
judgment of the lower Court was not properly guided in line with principles of
law. The Court terribly erred. Accordingly, I find the decision of the lower
Court as being perverse."
COMMENTS
This
case is from a period when majority of Nigerians could only have cheap access
to the Internet via cybercafes. During that period some cybercriminals also
used the cybercafes to perpetrate cybercrimes and it was perhaps thought that
requiring cybercafe owners or operators to register their cybercafes with the Economic
and Financial Crimes Commission (EFCC), would help in fighting or curbing the
menace of cybercrime particularly "4I9" or "Yahoo Yahoo"
boys.
However,
with the crash in the cost of obtaining access to the Internet via subscription
to any of the popular telecom provider's data plan, cybercafes have slowly gone out
of business. Only a handful remain in business as many Nigerians now have
smartphones and tablets and access the Internet on such devices.
The
case, however, illustrates the effect of poor or shoddy investigation in a criminal case. The EFCC did not carry out
thorough and proper investigations in the case and then charged the accused to
court. According to the Court of Appeal:
"P.W.1 (prosecution
i.e. EFCC witness) admitted that no investigation was carried out by the EFCC
to decipher whether Primegate Cybercafe was indeed taken over by Artifice
Colony Cybercafe or not. They did not obtain the tickets and receipts normally
issued to customers to strongly establish that it was Prime gate Cybercafe that
was running the said business."
This
instance of poor performance by the prosecution is not limited to the EFCC only
but also crops up sometimes in cases where very poor or little investigation is
conducted by the Police thereby putting the prosecution lawyer in a fix when he is preparing charges or conducting trials.
It
is hereby suggested that law enforcement agencies should sit up and do proper and
thorough investigations before filing charges as without cogent evidence the
court cannot manufacture evidence upon which to find an accused person guilty
of the offence for which he has been charged with.
It must be noted that the performance of the EFCC demonstrated in this case is a one off as the EFCC has secured many convictions which are too numerous to mention here.
