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.