NIGERIAN JUSTICES: MOVING WITH THE TIMES

In the case of Mrs Betty Darego v. A.G. Leventis (Nigeria) Ltd & 3 Ors, LER[2015] CA/L/481/2011, the Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word "PREPONDERATE" thus:

“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore mean greater weight, a sense of greater importance.”

Comments

In the above quote, it can be seen that the court used a dictionary available on the web: dictionary.com, to define the word "preponderate." It is good to note that our Lordships are utilizing the Internet to research and cite same as sources of information in their judgments. This is a welcome development and it's hereby suggested that such practice should be emulated and maintained.

Before now many a lawyer thought that judges, especially justices of  the Court of Appeal and Supreme Court were old men and women who were Luddites (one who is opposed to especially technological change) or technophobes (a person who fears, dislikes, or avoids new technology) but it appears the justices are now taking steps to change that perception and that is commendable.

This is hoping that lawyers too will take up the cue by His Lordship Nimpar J.C.A by carrying out research using the web and also citing web references or hyperlinks in their written briefs. I read some briefs filed by lawyers in the US and judgments from there as well and I see hyperlinks cited in support of arguments and submissions.

Difficulties

Citing web references in legal documents has its down side because of link rot. Link rot is created when a Web page is moved, taken down or reorganized. Clicking on a rotten link usually results in a 404 error, which includes a message that the page cannot be found. According to Tom Venetis:

"Link rot commonly refers to a situation in which a hyperlink that links to a document or an online site no longer leads to the site or content. Another related problem is reference rot where the hyperlink continues to work, but the content of the site the link refers to has changed, but does not tell a person where that site or document is now located. The problem in the same in both cases. Information that one is looking for is now not easily found, or cannot be found at all."

A study titled “Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010)", published in the Yale Journal of Law and Technology in 2013, found that nearly one-third of the websites cited by the U.S. Supreme Court were non-functioning, many of which linked to government or education domains.

Solutions

In the US, Michigan's Supreme Court archives all its cited links through Perma.cc, a crowd sourced link preservation site launched by the Harvard Library Innovation Lab. While anyone can put links on the Perma.cc server, they have to be renewed every two years in order to not expire. But links posted by universities, courts and journal editors stay permanently in the database.

There is also Webcite (http://www.webcitation.org/) which according to Wikipedia is: 

"an on-demand archiving service, designed to digitally preserve scientific and educationally important material on the web by making snapshots of Internet contents as they existed at the time when a blogger, or a scholar or a Wikipedia editor cited or quoted from it. The preservation service enables verifiability of claims supported by the cited sources even when the original web pages are being revised, removed, or disappear for other reasons, an effect known as link rot." 

WebCite is a non-profit consortium supported by publishers and editors, and it can be used by individuals without charge.

FAILED ATM TRANSACTION CASE: UBA WITNESS TESTIFIES, CASE ADJOURNED FOR ADOPTION OF FINAL WRITTEN ADDRESS

The Defence specifically, the 2^nd Defendant (UBA Plc.), closed their case today in the very important test case of KUME BRIDGET ASHIEMAR v GT BANK PLC. &UBA PLC. (SUIT No. MHC/198/14). The case involves a claim of failed ATM transaction as alleged by the plaintiff  and it is probably the first Nigerian case to seek to address the failure of ATM to dispense cash as other ATM cases had dealt with unauthorized ATM withdrawals.

The Plaintiff sometimes in October, 2013 attempted severally to withdraw money from the ATM of 2^nd Defendant but according to the plaintiff the ATM failed to dispense cash nevertheless her account was debited. According to the defendants the withdrawal attempts were successful. Plaintiff disagreed and sued the Defendants.

The Plaintiff opened her case, testified and was cross-examined, while the 1^st Defendant opened their case on Thursday, 22^nd June, 2017 calling their sole witness who testified and was cross-examined. The case was then adjourned to 20^th July, 2017 for 2^nd defendant to call their own witness to testify. On 20^th July, 2017 the court did not sit. The case then suffered several adjournments between 20^th July, 2017 and 9^th November, 2017 owing the court going on its annual vacation and strike action by the Benue State civil servants.

However, today, 9^th November, 2017, the 2^nd Defendant proceeded to call her sole witness who testified and was cross-examined, after which the case for the Defence was closed. The case has now been adjourned to 21^st December, 2017 for adoption of final written address. After the adoption of final written address the case would be slated for judgment. Whatever the court decides will go a long way in developing Nigerian law with regards to failed ATM transactions.

UPDATE IN ATM DISPENSE ERROR CASE OF BARR. TIMOTHY TION v. FCMB LTD & UBA PLC

It would be recalled that FCMB Ltd and UBA Plc were sued in May, 2016 by Barrister Timothy Tion; customer of FCMB Ltd, over non-dispense of cash when he attempted to withdraw money at the ATM of UBA Plc in February, 2016.

The 1^st defendant (FCMB Ltd) filed a preliminary objection which was overruled by the court. After close of pre-trial conference as required by the rules of court, the case was set for hearing. On the 18^th of October, 2017 the plaintiff opened and closed his case. The plaintiff testified and was cross examined by both defendants. The case was then adjourned to 13^th November, 2017 for both defendants to present their case with the calling of their own witnesses to testify and be cross examined by the plaintiff.

Keep a date with this blog for progress report of the case.

LEGAL ADVICE, PRISON VISITS AND INCARCERATION

In Attorney General of Lagos State v Keita (CA/L/477/2012)[2016] NGCA 87 (24 March 2016), the accused/respondent (a Nigerien) was arrested by the Police and arraigned before a magistrate court for the offence of manslaughter. He was remanded in prison custody following the order of the magistrate. He remained in prison custody for over 10 years without trial following which he sued the Commissioner of Police and Attorney General of Lagos State (appellant) for breach of his fundamental rights as provided by the constitution. The Commissioner of Police and the appellant did not file affidavit evidence countering the case of the respondent that he was detained in prison without trial for over 10 years for the offence of manslaughter. The High Court found in favour of accused/respondent and awarded N7m damages against the Commissioner of Police and the appellant jointly and severally. The N7 million award was enforced by garnishee proceedings against only the appellant. Thus appellant appealed against the decision arguing that:

“although the office of the Attorney-General occupies a very special position in the scheme of governance, cases brought to Court by the Police without forwarding duplicate case files with respect to them for the purpose of issuance of legal advice cannot be said to be within the constructive knowledge and control of the office of the Attorney-General.”

The appellant therefore called upon the Court of Appeal to overturn “the judgement of the high court holding it jointly responsible for the incarceration of the respondent as no duplicate case regarding the respondent’s case was forwarded to it by the commissioner of police.”

The respondent on the other hand argued that:

“…the provisions of the Administration of Criminal Justice Law of the Lagos State 2007 (ACJL 2007) and its successor, the Administration of Criminal Justice Law 2011 (ACJL 2011) which provide procedural rules for pending and fresh criminal prosecution in the Magistrate Courts and the High Courts of Lagos State place a burden on the appellant with certain ministerial responsibilities not only to undertake and take over criminal prosecution and/or discontinue such criminal prosecutions with respect to offences the Attorney-General of the State is authorised by law to prosecute, the appellant is further charged with the responsibility to monitor and control any remand proceedings for indictable offences in a Magistrate Court thus placing on the appellant the ministerial responsibility to intervene and discontinue remand proceedings in a Magistrate Court.”

The respondent submitted, that the appellant having failed to carry out its  duty as stated above, it was right for the trial court to have held appellant jointly liable for the incarceration of the respondent.

The court in deciding the appeal considered the following provisions of the relevant laws which are reproduced herein below:

Section 72(1) of ACJL 2011 (which is the same as Section 72 of ACJL 2007) provides that:

"(1) In any remand proceedings with respect to any indictable offence against a law before a Magistrate, the Attorney-General of the State may indicate to the Court either personally by himself, or through any of the officers in his chambers in writing, informing the Magistrate by way of legal advice through the prosecuting Police Officer or a Law Officer that the State intends that the proceedings shall be discontinued and thereupon the suspect shall immediately be discharged in respect of the offence."

Section 74 (1), (2) and (3) thereof states thus-

“(1) The Commissioner of Police shall forward all duplicate case files with respect to indictable offences to the office of the Attorney-General for the purpose of issuance of legal advice.

(2) The legal advice issued by the office of the Attorney-General with respect to such indictable offences or any person shall be conclusive.

(3) Notwithstanding the provisions of Subsections (1) and (2) of this section, the Attorney-General may request for duplicate files relating to any offence for the purpose of issuance of legal advice."

Section 264(1), (6) and (7) of ACJL 2011 (formerly Section 268(1), (6) and (7) of ACJL 2007) provides that:

"(1) Any person arrested for any offence triable on Information shall within a reasonable time of arrest be brought before a Magistrate for remand and the Magistrate shall have powers to remand such a person after examining the reasons for the arrests exhibited in the request form filed by the Police, and if satisfied that there is probable cause to remand such person pending legal advice of the Director of Public Prosecution or the arraignment of such person before the appropriate Court or Tribunal.

(6) At the expiration of the further order made pursuant to Subsection (5) above, the Magistrate shall issue a hearing notice to the Commissioner of Police and/or Director of Public Prosecutions and adjourn the matter in order to inquire as to the position of the case and for the Commissioner of Police and for Director of Public Prosecution to show cause why the person remanded should not be released.

(7) The Magistrate shall extend the order to remand only if satisfied that there is a good cause and that necessary steps have been taken to arraign the person before an appropriate Court of Tribunal.”

Having considered the above provisions the court held that:

“Section 74(3) of ACJL 2011 would not serve as the platform to impute constructive knowledge of the remand proceedings on the appellant on the footing that it is intended to empower the appellant, regardless of the nature of the offence, whether triable on information as stated in Section 72(1) of ACJL 2011, or not triable on information, to unlimited powers to call for the duplicate case file for legal advice; and, which ministerial power is, in my considered opinion, expected to be exercised only in cases the appellant is aware of the remand proceedings.”

The court further held that:

“…because there is no indication in the record that the Commissioner of Police or the person(s) acting under him forwarded the case diary or duplicate case file to the appellant for legal advice. It is also not indicated in the record that the appellant was in any way aware of the remand proceedings at the material time. Nor did the remanding Magistrate inform the appellant through the DPP of the remand proceedings as required by Section 264(6) of ACJL 2011. It follows logically and factually that the appellant was not cognizant of the pending remand proceedings.”

The court therefore concluded per Joseph Shagbaor Ikyegh, J.C.A. (delivering the Leading Judgment) that: “It is on the premise (supra) that I am of the modest opinion that the appellant should not have been found liable for the infringement of the respondents right to personal liberty in the circumstances of the case.”

COMMENTS
Chinwe Eugenia Iyizoba, J.C.A who concurred with the leading judgement, made a remark which may be considered as a subtle indictment on the system of criminal justice administration in Lagos State as at the relevant period (the over 10 years period during which the respondent was incarcerated without trial) when she stated that: “I thought prison visits by Chief Judges were supposed to fish out and take action in cases such as this. For these cases to have escaped their attention there might be need to review their procedure.” 

RE EMPLOYEES OF NIGERIAN BANKS AND THEFT OF CUSTOMERS' MONIES

In an earlier article: EMPLOYEES OF NIGERIAN BANKS AND THEFT OF CUSTOMERS' MONIES, I quoted a New York Times report thus:

"As concerns over identity theft and foreign cyber attacks rise, customers are largely in the dark about a growing threat just around the corner: bank tellers and managers with instant access not only to their critical personal information, but also to their cash.

Though much of the focus on bank fraud has been on sophisticated hackers, it is the more prosaic figure of the teller behind the window who should worry depositors, according to prosecutors, government officials and security experts."

The report further stated that the Manhattan District Attorney's office approximately files at least a case a month against a bank teller. This indicates that such cases of theft are now common place in Manhattan.

In the article, I also wondered about the scale or extent of theft of customer's monies by bank employees in Nigeria and concluded that the scale is unclear or unknown. I also cited in the article, two instances of bank employees in Nigeria pilfering customers’ funds. However, it appears there are more of such cases occurring and it seems the employees of Nigerian banks are trying to catch up with their colleagues in Manhattan. This seems so because of a report in the Punch. According to the spokesperson of the Special Fraud Unit of the Nigeria Police, ASP Lawal Audu as quoted in the report:

“The work of the network provider suspects was to assist the bankers to swap the SIM cards of the targeted bank customers so that they were unable to receive alerts of any transactions on their accounts within the period that money was stolen from their accounts.

The suspects, after successful withdrawals of the money, transferred the money into about 40 different accounts to avoid being detected. They carried out their operations at weekends and public holidays so as to evade being detected by the bank monitoring mechanisms or the owners of the accounts. They defrauded their victims to the tune of over N150m.”

This fraud story by the Punch is somewhat similar to the one reported in the Times of India. In that story a bank employee stole personal details of customers, got a police report indicating that the customers’ SIM cards were lost and then requested for a SIM cards from the network providers. He then transferred from those customers accounts and they could not get debit alerts sent to their phone numbers.

For more on bank employees in Nigeria stealing from customers’ account see the following:

Banker jailed 39 years for stealing N30m from dead customer-

http://punchng.com/court-jails-banker-39-years-stealing-n30m-dead-customer/

Banker arrested for withdrawing N50m from customers’ accounts- http://www.informationng.com/2013/12/police-arrest-banker-for-stealing-n50m.html

Banker accused of stealing customers’ N8.4m-

http://www.vanguardngr.com/2017/05/banker-accussed-stealing-customers-n8-4m/

Rogue bankers steal customers’ funds online-

http://www.businesstodayng.com/rogue-bankers-steal-customers-funds-online/

In view of the foregoing, it might not to be out of place to make a freedom of information request to the Nigeria Police and other relevant authorities for information on the number of bank employees standing trial and those convicted for theft of customers' funds or hacking into customers' accounts. This would enable one to have a better idea of the scale of such thefts or hacking of customers' accounts by bank employees in Nigeria.

Senator Ali Ndume, Computer Generated Evidence & Law Reporting

The case of Federal Republic of Nigeria v. Senator Mohammed Ali Ndume  is among the pioneer criminal cases that dealt with admissibility or otherwise of e-evidence or computer generated evidence e.g. call logs, SMS etc. under section 84 of the Evidence Act, 2011. In that case the trial court admitted some computer generated items in evidence but on appeal the evidence was ruled inadmissible. Therefore, the Court of Appeal judgements in Senator Mohammed Ali Ndume v. FRN delivered on 17/12/13 in Appeal No. CA/A/78/CR/2013 and CA/A/78A/CR/2013, are watershed cases with regards to interpretation or application of section 84 of the Evidence Act in CRIMINAL trials yet it seems that no law report in Nigeria has reported them.

The appellate court decisions ought to be reported so as to make them more readily or easily available to many lawyers and thus contribute to the development of our evidence law. The importance of many a lawyer having access to the appellate court judgement has become critical as many criminal trials, especially those involving highly placed persons, to a large extent is hinged on the admissibility or otherwise of text messages, call data records, bank statements and other forms of computer generated evidence. For instance one of the reasons for the court in upholding the no case submission in Ndume's case was the expulsion from evidence, certain computer generated evidence by the Court of Appeal, which pieces of evidence were vital to the prosecution’s case.

Also in the trial of Rickey Tarfa SAN on a two-count charge of obstruction of justice and attempting to pervert the course of justice, the prosecution tendered in evidence details of alleged telephone conversations and text messages between the accused and a High Court judge in an ongoing bribery case.

Furthermore, in the ongoing trial of Nwobike SAN by the EFCC on 11 counts bordering on perverting the course of justice and offering gratification to public officials, the accused was confronted with various text messages he was alleged to have sent to court officials to illegally influence court cases he was handling.

UPDATE ON FAILED ATM TRANSACTION CASE

The very important test case of KUME BRIDGET ASHIEMAR v. GT BANK PLC. and UBA PLC. (SUIT No. MHC/198/14) is steadily making progress at the High Court of Justice of Benue State of Nigeria specifically High Court No. 7, sitting in Makurdi. The case seeks to address a trend which has bothered many bank customers in Nigeria. The case involves a failed ATM transaction or ATM non-dispense error as alleged by the plaintiff  and it is probably the first Nigerian case to seek to address failure of ATM to dispense cash as other ATM cases had dealt with unauthorized ATM withdrawals.

The plaintiff sometimes in October, 2013 attempted severally to withdraw money from the ATM of 2^nd defendant but according to the plaintiff the ATM failed to dispense cash nevertheless her account was debited. According to the defendants the withdrawal transaction was successful. Plaintiff disagreed and sued the defendants.

The plaintiff opened her case and testified while the 1^st defendant opened their case on Thursday, 22^nd June, 2017 calling their sole witness who testified and was cross-examined. The case has been adjourned to 20^th July, 2017 for 2^nd defendant to call their own witness to testify.

ANOTHER METHOD OF STEALING CASH FROM ATMs

My article: ANOTHER METHOD OF STEALING CASH FROM ATMs has been published in the Digital Evidence and Electronic Signature Law Review. The article as the title suggests, deals with a method of stealing cash from ATMs, which is not widely known. I implore you to read it and get informed. 

EPHRAIM v. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR-22363(CA): A CASE OF POOR INVESTIGATION

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.

EMPLOYEES OF NIGERIAN BANKS AND THEFT OF CUSTOMERS' MONIES

It has been reported in the US that bank tellers (i.e. an employee of a bank, whose job includes the responsibilities of helping the bank customers with their banking needs, such as depositing a check or making a withdrawal, etc) pose a rising security risk. According to the report in the New York Times:

"As concerns over identity theft and foreign cyber attacks rise, customers are largely in the dark about a growing threat just around the corner: bank tellers and managers with instant access not only to their critical personal information, but also to their cash.

Though much of the focus on bank fraud has been on sophisticated hackers, it is the more prosaic figure of the teller behind the window who should worry depositors, according to prosecutors, government officials and security experts."

The report further states that the Manhattan District Attorney's office approximately files at least a case a month against a bank teller. This indicates that such cases of theft are now common place in Manhattan. In view of the foregoing, the report by Sahara Reporters highlighted below should be a cause for worry to many Nigerians, although in Nigeria the scale of theft of customer's monies by bank employees is unclear or unknown.

According to Sahara Reporters “The management of United Bank for Africa (UBA) Plc has ordered nine of the bank's employees to refund N1, 551, 000 before March 30, 2017; these were monies they stole via Automated Teller Machine (ATM) transactions.”

Furthermore, the report states that the order to refund the said monies was allegedly conveyed through the bank’s internal email which is quoted thus:

"Sequel to the huge ATM shortage of N1,551,000 (One Million, five hundred and fifty-one thousand naira only) in your BO, which was as a result of your negligence to assigned tasks, you are hereby required by Executive Management to pay the amount listed against your name to recoup this loss."

It is not really clear from the Sahara report if the said loss of money was as a result of theft or negligence. Whether it is negligence or theft by the employees, the report did not state how the money was lost but just that they stole the monies via ATM. How did they steal it via ATM?

In other climes this would have spurred the banks’ regulator, in Nigeria, the Central Bank of Nigeria to issue a statement on this report. The bank itself, UBA several days after the report has neither come out to deny or confirm the story or clarify any issue reported in the story. Since the report did not say how the money was stolen through the ATM by the employees we are left to speculate on how they reportedly stole the monies via ATM.

One way through which bank employees, especially the ATM custodian who is a bank staff that maintains an ATM, is responsible for loading cash into the ATM and also checking that the notes are not torn, damaged or dirty, etc., can steal money via ATM is to take from cash meant to be loaded into the ATM or excess cash left in the ATM as a result of ATM partial or non-dispense error.

In the case of AJIBOYE vs. FEDERAL REPUBLIC OF NIGERIA ((2014) LPELR-24325(CA), the appellant as ATM custodian and employee of GT Bank Plc, GRA, Ilorin branch, was convicted and sentenced for theft and criminal breach of trust of the sum of N25,000,000.00 belonging to his employers, entrusted to him and meant for loading and dispense at ATMs in the bank. He appealed against the conviction and sentence but his appeal was found to be lacking in merit and consequently dismissed. In his confessional statement he stated how he carried out his criminal acts and same is reproduced at page 47 of the judgement thus:

"My modus operandi. During weekends I will go to office with the pretext to load cash into ATM and at this point I will take money into the cash bag that contain (sic) the keys of the ATM. I will take the cash into my car parked outside the branch. Also during weekdays I took part of the cash unload, from the machine and deposit (sic) them into my sister (sic) account and wife (sic) account." (underlining for emphasis)

What did Ajiboye mean when he said: “…Also during weekdays I took part of the cash unload, from the machine…?” Was he referring to cash that failed to dispense or “unload” as a result of ATM non-dispense or partial dispense error?

The ATM custodian as part of his duties verifies cash in the ATM by checking the available cash balance against ATM Electronic Journal records. Electronic Journal is usually an accurate historical data of transactions that are executed on the ATM as it is programmed to capture every aspect of withdrawal transaction from the beginning to the close thereof. If there are discrepancies between the physical cash in the machine, the physical cash would be removed and kept in a separate account. Discrepancies do occur when the ATM fails to dispense cash due to a system failure, glitch or error but the ATM Electronic Journal records that cash was dispensed during a withdrawal transaction. For instance if 10 million Naira was loaded into the ATM and at the end of the day when reconciling and verifying the physical cash in the ATM it is observed in the Electronic Journal that 9 million Naira was dispensed which should leave the balance of 1 million Naira, however physical cash verification shows that 1.2 million Naira is left in the ATM. This discrepancy means that certain withdrawals failed but the Electronic Journal failed to record them as failed or unsuccessful or non-dispense of cash but instead captured them as successful withdrawal transactions. The question then is would the ATM custodian be honest enough to report such discrepancy or will he take such excess cash in the ATM cassette knowing that the electronic journal which is the evidence to be used by the bank in case of a demand by a customer who suffers ATM non-dispense error, is showing that all withdrawal transactions were successful and cash was dispensed?

It appears from the records in the case of Ajiboye earlier cited that he was not honest and regularly took the excess cash (I think this is what Ajiboye meant by “unload cash”) in the ATM cassette and deposited same in his sister’s and wife’s account. In Ajiboye’s words he said: “during weekdays I took part of the cash unload, from the machine and deposit (sic) them into my sister (sic) account and wife (sic) account."

Could this be the method through which these UBA Plc employees allegedly stole moneys from ATM as reported by Sahara Reporters?

In ideal situations when cash does not get dispensed due to mechanical failure of the ATM, the cash gets collected in a separate cassette or tray in the ATM which after periodical physical balancing by the ATM custodian is kept in a sundry account of the acquiring bank (bank whose ATM has been used). Once a chargeback is raised by the issuing bank (customer’s bank) on receipt of complaint from the customer, the amount is reversed and the customer gets back the credit. Simply put, a chargeback in this instance is a reversal of an ATM transaction which is usually initiated by the bank who issued the ATM card as requested by the cardholder (customer of the issuing bank).

However, this ideal situation does not occur all the times. For this reason many Nigerians have suffered from ATM non-dispense or partial dispense error when they tried to withdraw money from the ATM. ATM non-dispense error is a situation where a customer performs an ATM withdrawal and his account is debited but cash is not dispensed and in the case of partial dispense error cash is dispensed but not all of the cash the ATM user requested to withdraw. Although in majority of cases these errors are auto reversed or reversed within a few days after occurrence. In fact, according to paragraphs 1.3(v and w) of the CBN’s Guidelines on Operations of Electronic Payment Channels in Nigeria, 2016, acquiring banks  are to  reconcile  and  refund  all  funds  in  their  possession, belonging  to  customers  as  a  result  of  ATM’s  non-dispense  and  partial dispense errors and to also install appropriate mechanism to immediately initiate refunds without the prompting of the issuing bank or the customer.

There are also instances where no reversal is made as occurred in the case of KUME BRIDGET ASHIEMAR vs. GUARANTYTRUST BANK PLC (GTB) & UNITED BANK FOR AFRICA (UBA) PLC, Suit No: MHC/198/14. The plaintiff attempted several times to withdraw money via ATM, the ATM did not dispense cash nevertheless her account was debited and all efforts to get the defendants to reverse the debits and refund her monies proved unsuccessful. The case is currently being tried at the High Court of Justice of Benue State sitting in Makurdi.

As earlier stated a lot of Nigerians have suffered from non-dispense or partial dispense error and this caught the attention of the Central Bank of Nigeria (CBN) hence in 2014 the apex bank issued a circular with ref no. BPS/DIR/CIR/01/008 dated 11/6/2014 entitled: Non-Refund of Monies to Customers Short-changed by ATMs’ Non-Dispense or Partial Dispense Error; directing all deposit money banks to refund to customers all monies trapped in ATMs due to non-dispense or partial dispense error.

Another method through which bank employees can steal customer’s money is to gain access to customer personal information, create a fake ATM card in the name of a customer and use it to withdraw money from the customer’s account. Thus it was reported by the Bangkok Post that: “Mr Direk (who) had worked for the TMB for more than 10 years…would use financial and personal information of bank customers to make ATM cards and then withdraw money from their accounts. The suspect carried out his crime spree for four years, causing the TMB more than 40 million baht in losses.”

In another reported method, the ATM custodian can load half of the cash and keep the rest for himself‚ replacing the other half with fake bank notes.

In conclusion it is submitted that UBA explains to Nigerians what exactly happened (theft or negligence) and what measures have been put in place to forestall future occurrences of theft of customers’ money by their employees through ATM or loss of customers’ money through ATM due to negligence of their employees to assigned tasks. This is a delicate matter that affects the confidence of bank customers in the banking sector and should not be allowed to go into oblivion without proper explanations.

On the Issue of the Man Jailed for Insulting, Defaming Katsina Governor on Social Media

In a previous blog post last year, I stated that:

“As can be read from above provisions, apart from section 24 of the Cybercrimes Act 2015, sections 391 and 393 of the Penal Code and sections 59 and 373 of the Criminal Code could be used to clamp down on a blogger or any person who posts contents online considered to be defamatory or constitutes injurious falsehood under the Penal Code or Criminal Code.”

The aforementioned provisions of the law now appear to be one ready tool employed by political office holders to silence or clamp down on anyone who criticizes them or their policies. Instances of such use abound as indicated in the Freedom on the Net 2016 report.

It never occurred to me that sections 114 and 399 of the Penal Code could also be used to achieve the same purpose; which appears to be to stifle public censure or criticism of the government or conduct of political office holders as indicated by the news that one Gambo Saeed has been sentenced to nine months imprisonment for insulting and defaming the character of Gov. Aminu Masari of Katsina State on social media.

Section 114 of the Penal Code provides that whoever does any act with intent to cause or which is likely to cause a breach of the peace or disturb the public peace shall be punished with imprisonment which may extend to two years or with fine or with both.

Furthermore, section 399 of the Penal code provides that whoever intentionally insults and thereby gives provocation to any person intending or knowing it to be likely that such provocation will cause him break the public peace or commit any other offence shall be punished with imprisonment for a term which may extend to two years or with fine or with both.

Whether the aforementioned laws as contained in the Penal and Criminal Code handed down to us by our colonial masters are still relevant today or whether they are constitutional is up for debate. However it is worth noting that about 34 years ago in Arthur Nwankwo vs The State, the Court of Appeal, while declaring the law of sedition inconsistent with the 1979 Constitution per Olatawura JCA held that:

“Those who occupy sensitive posts must be prepared to face public criticisms in respect of their office so as to ensure that they are accountable to the electorate ... They are within their constitutional rights to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponents as the freedom of speech guaranteed by our constitution will be meaningless. As long as the constitution is not suspended, and this is not done in democratic society, freedom of expression should be protected ... It should not be misunderstood that the freedom under this constitution is a license for defamation as it is equally guaranteed that those who run foul of the law of defamation cannot call in aid this freedom…It is my view that the law of sedition ... is inconsistent with the 1979 Constitution more so when this cannot lead to a public disorder as envisaged under s.41(a) of the 1979 Constitution. We are no longer the illiterates or the mob society our colonial masters had in mind when the law was promulgated ... The decision of the founding fathers of this present constitution to guarantee freedom of speech, which must include the freedom to criticize, should be praised, and any attempt to derogate from it except as provided by the constitution must be resisted ...Criticism is indispensable in a free society.”

The court from the above holding appears not to be in support of criminal defamation laws provided for under our penal laws and thus stated that “…they are within their constitutional rights to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponents as the freedom of speech guaranteed by our constitution will be meaningless." Be that as it may, criminal defamation is nevertheless still being used across the country by occupiers of "sensitive posts" to gag those who criticize them.

It is worthy to note that whereas many social media and legalcommentators have often condemned the provisions of section 24 of the Cybercrimes Act, 2015 as being unconstitutional and a tool to be used to impair freedom of expression, they ignore the other potent laws earlier mentioned which have the effect of restricting the freedom of expression and can as well be used to gag political opponents or public criticism of government.

It is curious that many civil society groups or organisations/individuals who claim to be human rights advocates have not found it worthy to challenge the constitutionality of criminal defamation in Nigeria. However, some civil society organisations (Paradigm Initiative Nigeria, Enough is Enough Nigeria and Media Rights Agenda) seem to have woken up to their responsibility and they challenged the constitutionality of section 24 of the Cybercrimes Act, 2015 which can and is being used as a machinery of government to invoke criminal proceedings to gag opponents and severely limit public censure of government or those occupying "sensitive posts" as highlighted in the Freedom on the Net report earlier cited.

In The Incorporated Trustees of Paradigm Initiative for Information Technology Development & 2 Ors vs Attorney General of The Federation & 2 Ors, a case filed by the civil society organisations aforementioned, the applicants sought a declaration that section 24 of the Cybercrimes Act is in violation of section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which protects the right to freedom of expression and information. However, the court held that section 24 is not unconstitutional as by section 45 of the Constitution, the right to freedom of expression and information is not absolute and same can be curtailed by a law that is reasonably justifiable in democratic society for the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting rights and freedom of other persons. According to the court, section 24 been one of such laws reasonably justifiable in a democratic society, is not unconstitutional.

Specifically in the words of the court, it held at pages 13 through 15 of the judgement that:

“...it is pertinent to ask, what rights the Applicant (sic) is seeking to protect and how have sections 24 and 38 of the Cybercrimes Act violated these rights? The Applicant (sic) is seeking a declaration that section 24 of the Cybercrimes Act is in violation of section 39 of the Constitution which protects the right to freedom of expression and information. It is my firm view that the wordings of section 24(1)(a) of the Cybercrimes Act is clear, straightforward and unambiguous. In simpler terms, all that section 24 is saying is that if anyone who causes to be sent or is found sending an offensive message or a message with pornographic or obscene content which is of a menacing character, such a person shall be liable to a term of not more than 3 years and a fine not more than N7,000,000.00. Section 24 (1) (b) of the Cybercrimes Act provides that any person who knowingly transmit or causes transmission of any communication in order to bully, threaten or harass another person or places the person in fear of death, violence or bodily harm commits an offence under the Act... According to section 45 of the Constitution and from the authorities cited above, I presume Counsel understands that the fundamental rights of citizens as guaranteed and protected under the Part IV of the Constitution are not ultimate. They suffer certain derogations, restrictions and limitations. Therefore, the question I find myself asking is whether the provisions of sections 24…of the Cybercrimes Act fall within the said exceptions? The answer to the foregoing has to be a resounding YES!...one of the protection that section 45 of the constitution aims to provide is public safety, public order, public morality or public health and for the purpose of protecting rights and freedom of other persons. It seems to me that the provisions of the section 24 of the Cybercrimes Act seek to protect the society at large regardless of the fundamental rights of the citizens.”

The applicants have appealed against the above judgement. I await the judgement of the Court of Appeal.

CONCLUSION

It is instructive to note that even if section 24 of the Cybercrimes Act, 2015 is declared unconstitutional on appeal it would not yet be Uhuru for freedom of expression advocates as criminal defamation and insult laws would still be available for use to gag or silence those critical of the government or occupiers of sensitive posts or elected public office holders.