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.

ATM DISPENSE ERROR: COURT RULES THAT THERE IS CAUSE OF ACTION AGAINST FCMB ALTHOUGH ATM USED WAS THAT OF ANOTHER BANK

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 defendant banks filed their respective statements of defence in response to the suit by Barrister Tion. The 1^st defendant (FCMB Ltd) also filed a preliminary objection urging the court to strike off its name from the case as the plaintiff has not disclosed any cause of action against her on the ground that the ATM where the disputed transaction occurred belongs to 2^nd defendant (UBA Plc.) and not FCMB Ltd. Specifically, the 1^st defendant in her P.O. contended:

1.That  the  transaction  that  gave  rise  to  this  suit  took  place  at  the ATM  Stand  of  the  2^nd  defendant  and  not  the  1st  defendant’s  as clearly  stated  in  paragraph  5  of  the  statement  of  claim.

2.  That  the  1^st  defendant  has  its  ATM Stand  for  the  use  of  its  various customers  including  the  plaintiff  and  the  plaintiff  wilfully  decided  to  use  the  2nd  defendant’s  ATM.

3.  That  the  report  from  the  2^nd defendant  showed  that  the  2^nd defendant’s  ATM  paid the plaintiff the  said  N8,000  and the  1^st defendant  passed  same  information  to  the plaintiff.

4.  That  there  is  no  paragraph  of  the  statement  of  claim  that  disclosed a cause  of  action  against  the  1^st defendant  in  this  suit.  This  can  be clearly shown from Paragraphs  5  to  46  of  the  statement  of  claim particularly  paragraphs  30  and  32  of  it.

The plaintiff also filed a reply in response to the P.O. filed by 1^st defendant. Hearing of arguments of parties on the P.O. took place on the 17^th October, 2016. The court on 27^th October, 2016 dismissed the preliminary objection. Itodo J. on page 3 of the ruling stated thus:

The plaintiff, see paragraph 6’and 7 of his statement of claim, said that even though the 2nd defendants ATM. produced the sum of N8 ,000.00, which he viewed, before he could reach out to collect same, the machine retracted the money into its bowels, but nonetheless the 1^st defendant debited his account with it upon report to that effect from 2^nd defendant.        It is clear that the plaintiff is saying that he was not paid the sum and that the 1^st defendant ought not to have debited his account as the report to that effect from the 2^nd defendant to it was incorrect. It, of course stands to reason that if the plaintiff was indeed not paid his account should not be debited. This in my view appears to be the basis for suing the 1st defendant. On the other hand, if the plaintiff was paid, then he has no case against either of the defendants. It may be added that it was immaterial where the plaintiff chose to carry out his transaction.

The Plaintiff is to file his replies to the statements of defence filed by the defendants and his additional statement on oath after which a date would be fixed for pre-trial conference.

A CALL FOR AMENDMENT OF NIGERIA’S CONSTITUTION SO AS TO ENABLE THE SUCCESS OF PRESIDENT BUHARI’S CORRUPTION FIGHT

This whole episode of the arrest of alleged corrupt judges to me boils down to the thinking to the President that the Judiciary and lawyers who represent persons being tried for corruption related offences are frustrating his fight against corruption. Thus as recent as July, 2016 the President speaking on the role of the Judiciary in the fight against corruption at an international workshop at the National Judicial Institute (NJI), Abuja said:

“It (the Judiciary) does have a role to play in the fight against corruption by enforcing the applicable laws. Critically important also, is the sacred duty of the judiciary to ensure that criminal justice administration is not delayed. I am worried that the expectation of the public is yet to be met by the Judiciary with regard to the removal of delay and the toleration of delay tactics by lawyers. When cases are not concluded the negative impression is given that crime pays.

So far, the corruption cases filed by government are not progressing as speedily as they should in spite of the Administration of Criminal Justice Act of 2015 essentially because the courts allow some lawyers to frustrate the reforms introduced by law. This certainly needs to change if we are to make success in our collective effort in the fight against corruption…the Judiciary is under a duty to keep its house in order and to ensure that the public, which it serves, sees this. Thus, we cannot expect to make any gains in the war against corruption in our society when the Judiciary is seen as being distant from the crusade…The Judiciary must fight delay of cases in court as well as it fights corruption in its own ranks, perceived or otherwise. We expect to see less tolerance to delay tactics used by defense lawyers or even the prosecution in taking cases to conclusion”. (underlining mine)

This thinking of the President appears to be in accord with the thoughts of the former chairman of the EFCC, Nuhu Ribadu. Ribadu  in a paper titled; Obstacles To Effective Prosecution Of Corrupt Practices And FinancialCrime Cases In Nigeria, presented at the  1st  Stakeholders  Summit  On  Corrupt  Practices And  Financial  Crimes  In  Nigeria  organized  by  the House  Of  Representatives  Committee  On  Anti-Corruption,  National  Ethics  And  Values,  at  the International Conference Centre, Trade Fair Complex, Kaduna, 23rd – 25th November, 2004, said:

“It  is  important  to  state  here  that  the  fundamental  rights  of citizens  guaranteed  by  the  Constitution  are  meant  to  protect those  citizens  who  themselves  are  law  abiding  and  have  not infracted  the  provisions  of  the  Constitution  itself.  It  is  indeed inequitable to violate the fundamental law and turn around to seek  its  protection  of  your  own  right  without  simultaneously atoning for your wrongs.  On  the  other  hand,  there  are  some  provisions  of  the Constitution which seem to have over protected the accused against  the  state.  Section  35(2)  gives  a  right  to  any  person arrested  or  detained  to  remain silent or avoid answering any question  until  after  consultation  with  his/her  lawyers.  Section 36(11) also provides that any person tried for a criminal offence shall not be compelled to give evidence at the trial. When  these  rights  are  claimed,  they,  many  a  times,  lead  to over  protection  of  the  accused  person  while  restricting  the means  of  protecting  the  rest  of  the  society  in  the  sense  of making it difficult to prove a case against them”. (underlining mine)

With due respect to Ribadu, how many arrested persons are aware of or where aware of are allowed to enjoy the right in section 35(2) referred to when it is public knowledge that the law enforcement agencies in Nigeria use torture to extract statements or confessional statements from accused persons. Insisting on the enjoyment of that right may be an invitation for torture by law enforcement agencies.

Ibrahim Magu, acting Chairman of the EFCC also shares the same view with that of the President quoted above. According to Magu:

“We must tell ourselves the truth: there are lawyers within the fold of the NBA who ought not to be among your noble ranks. Those people are not fit to be called ministers; rather, they are vandals of the temple of justice…One of the big challenges we have in the effective prosecution of the war on corruption is that of very senior lawyers who Nigeria has been very kind to; those who went to good schools here when Nigeria was good, many of them on government scholarship; those who Nigeria has given so much opportunity. When we have corruption cases, cases of people who have stolen food from the mouths of our children; when we have cases of people who have stolen money meant to build hospitals and buy drugs; when we have cases of people who have stolen all the money meant to buy guns for our soldiers to fight Boko Haram, when we have all these cases of wicked people who have stolen Nigeria’s money, they run to these same senior lawyers, give them part of the stolen money and mobilise them to fight us, to delay us in court and to deny Nigerians of justice. These are the people who do not want justice for the common man.”(underlining mine)

It is clear from Magu's comments that he expects that once the EFCC charges an alleged looter to court, such a person should NOT be entitled to legal representation and the courts should find the person automatically guilty.

It is worthy to note here that the President was also a beneficiary of this delay tactics which he, Ibrahim Magu and others have now suddenly realized is an impediment to trial of government cases against alleged looters. No less a personality than that of Wole Olanipekun SAN, who represented the President and APC pro bono in the run up to general elections of 2015 disclosed this in a recent interview he granted to Gbenro Adeoye of the Punch Newspaper, published on its website on 8^th October, 2016. Olanipekun described how the legal team “employed all the tactics available, employable and allowable in the legal profession” and concluded that but for those tactics the election which produced the President won’t have held. It is poignant to quote Olanikepun thus:

“Would Buhari have been President if we had not done that (employed all the tactics available, employable and allowable in the legal profession)? What could be more technical than that? They filed action against Buhari, we looked at it; we raised objections and we were dragging that. Is that not technicality? And some people will now accuse me when I do it for other people that I’m defending looters. But when you do it for them, it is right; that is double standard. And what baffles me is that some high lawyers, who should know better, also accuse some lawyers of defending looters?”(underlining mine)

Chief Godwin Obla SAN, who disagrees with the President’s remarks at an international workshop at the National Judicial Institute (NJI), Abuja quoted above said:

“I do not think that his (the President’s) opinion as to whether time is wasted or time is not wasted reflects the true position of the law. The truth of the matter is that there are procedural challenges in our laws and some of us have repeatedly spoken about it…The fact that someone is facing trial does not mean that we’d abridge their right to actually defend themselves. They have the right to defend themselves; and at times in the course of doing so they rely on unorthodox techniques of delaying trial, but it is within their right and it is within the confines of the law…Mr. President cannot indict the judiciary, just as he is complaining that it is actually taking long for criminal cases to be decided, Nigerians are also saying that it is taking too long for the promises that he made to be fulfilled. It is not a one-way traffic. The law does not work in the way it works in the military. This is a democracy. The courts have tried, they’ve brought out certain practice directions, they are making certain levels of progress but it is not overnight. If we want to make substantial progress we must invest in practical amendment to our procedural rule of the court.” (underlining mine)

It must be noted that I am not ignorant of the fact that there are certain corrupt elements in the legal profession and the Judiciary; both of which are situated within the larger corrupt Nigerian society. To that extent I agree with the thinking of the President and Ibrahim Magu but it is the  suggestion and insistence by the President and Ibrahim Magu through their utterances that any person defending within the boundaries of the law, a person accused of looting our commonwealth is corrupt or a beneficiary of the corrupt wealth or that such accused persons should not be entitled to legal representation and when the Judiciary insists on the enforcement of the rights of accused looters, they(the Judiciary) are frustrating the corruption fight, that irks me. We are not in a military administration for goodness sake.

In view of the foregoing I have concluded that it is the opinion of the President and his anti-corruption czars, Ibrahim Magu of EFCC, the DSS, majority of Nigerians including many lawyers through their utterances in the media and elsewhere that corruption (economic and financial crimes) especially by politically exposed persons and high ranking government officials or appointees cannot be fought in Nigeria within the limits of the law or by following the rule of law or principles of democracy as provided by Nigeria’s Constitution.

Therefore, it is my suggestion that the President having received such overwhelming support by the majority of Nigerians for his corruption fight as it seems, should without delay initiate the process of amending section 36(5) of the 1999 Constitution (as amended) which provides that EVERY PERSON WHO IS CHARGED WITH A CRIMINAL OFFENCE SHALL BE PRESUMED TO BE INNOCENT UNTIL HE IS PROVED GUILTY. The section should be amended to the effect that any person accused of corruption should be PRESUMED GUILTY UNTIL HE IS PROVED INNOCENT BY MILITARY TRIBUNAL. Military tribunals set up by the President and not the courts should try corruption cases!

The President may also wish to amend Section 36(6)(c) which provides that every person who is charged with a criminal offence shall be entitled to defend himself in person or by legal practitioners of his own choice. In this regard the section will be amended to the effect that every person charged with a corruption related offence SHALL NOT BE ENTITLED TO BE DEFENDED BY A LEGAL PRACTITIONER BUT SHALL DEFEND HIMSELF IN PERSON BEFORE A MILITARY TRIBUNAL SET UP BY THE PRESIDENT.

I have earlier quoted the President as saying “… (the Judiciary) does have a role to play in the fight against corruption by enforcing the applicable laws.” Sections 36(5) and 36(6)(c) of the Constitution are applicable laws in Nigeria which the Judiciary and lawyers insist that they should be applied even in trial of alleged looters but since such insistence is inferred as frustrating the corruption fight and such has been sold to Nigerians who have bought it hook, line and sinker, I do not think it would be difficult for the President to achieve the amendment of the Constitution to do away with those sections of the Constitution.

Although the process for amending the 1999 Constitution (as amended) may seem cumbersome but having received the support of teeming Nigerians for his corruption fight methinks even the legislature who are supposedly representing the people will not waste time in doing the necessary that will ensure the amendment since it is now the wish of the majority of Nigerians who they claim to represent.

However, until these amendments are done, the President and his DSS, EFCC and other law enforcement agencies should comply with the existing APPLICABLE laws and should not see anybody (e.g. judges who berate the DSS or EFCC for disobeying court orders, lawyers representing persons accused of corruption related offences etc.) who insist that the existing applicable laws be obeyed as supporting corruption or frustrating the acclaimed fight against corruption.

HISTORICAL CELL SITE LOCATION INFORMATION AND TELCOS IN NIGERIA

According to Wikipedia.com, a telco i.e. telephone company, telephone service provider or telecommunications operator:

is a kind of communications service provider (CSP) (more precisely a telecommunications service provider or TSP) that provides telecommunications services such as telephony and data communications access…With the advent of mobile telephony, telephone companies now include wireless carriers, or mobile network operators. Most telephone companies now also function as internet service providers (ISPs), and the distinction between a telephone company and an ISP may disappear completely over time, as the current trend for supplier convergence in the industry continues.

Historical cell site location information or mobile/cell phone location data is a collection of past connections between a mobile phone and cell towers or telecommunications masts. A cell site is mobile phone base station or antenna where radio signals are sent and received. In  the United States case of State v. Earls, it was stated that “Cell or (mobile) phones register or identify themselves with nearby cell towers every seven seconds. Cell providers (like MTN, Glo, Etisalat and Airtel in Nigeria) collect data from those contacts, which allow carriers to locate cell phones on a real-time basis and to reconstruct a phone’s movement from recorded data.”

Most times when you call the call centre of your GSM network provider or telco in Nigeria such MTN, Glo, Etisalat or Airtel, to make a complaint or inquiry, the customer care representative will ask you what town or city and local government you are calling from. I am usually taken aback by this question because they (telcos) already know or at least can approximate my location so why bother to ask me.

Whenever a mobile telephone makes a call, the call is routed through a cell site located at a fixed geographic location. Mobile telephone companies keep records of which cell site processes a call, and through this information law enforcement agents can locate the position of the SIM card, and therefore infer the location of the telephone user. This was used by the Nigerian Police to obtain the location of Timothy Dung, an armed robbery suspect in the case of The State v. Timothy Dung. On page three of the judgement it was stated thus:

According to the PW2 on the 20/8/2010 a case of armed robbery was transferred from the ‘E’ Division Police Station to the State Criminal Investigation Department (CID). PW1 volunteered a statement before the police.

According to the PW2 they swung into action by applying their detective mechanism to arrest the person because the line snatched was still going. Police applied to court to obtain a court order to serve Airtel/Zain who was the service provider of the line (Zain) snatched from the PW1. Airtel/Zain complied with the court order and released the coordinate to the Police. The coordinate enabled the Police to set a security trapping system that showed them the exact direction and position where the accused (that) was using that particular line at that time was standing. The system gave the latitude and longitude on google earth. lt shows(sic) that the accused person who was with the stolen line was at Abuja and the call history of the line after the robbery was within Abuja town and a town in Plateau State.  However, about three' days back, the line was showing that it, was in Abuja. The Police went to Abuja and the system directed them to Federal Fire Service in Abuja town and they went there. When the PW2 and his team called the number/line, it rang and the accused received the call. The PW2 then arrested the accused and interviewed him.

The case of United States v. Allums, also shows that telcos know or can estimate the location of their subscribers or customers at any given time using historical cell site location information (CSLI) or cell site analysis. James Edward Allums on 30^th November, 2007, robbed a bank in Salt Lake City, Utah, United States. A bank employee dropped a chair from the second floor balcony onto Allums’ head as he stood brandishing a knife at a teller on the first floor.  In anger Allums removed his ski mask to look up and curse at the chair-dropper and in the process glowered directly into the surveillance camera. Allums had a mobile phone on him on 30th November.

Prosecutors introduced evidence that cell site tracking records showed that Allums’ phone, and presumably Allums, was located in close proximity to the bank and to two other locations also robbed by Allums. Thus, Allums was convicted on three counts of armed robbery.

Apart from historical CSLI mobile phone location can also be determined through GPS and mobile phone triangulation. At this juncture it is appropriate to state how mobile phone communications work as captured or explained in Re: Application for Telephone Information Needed for a Criminal Investigation:

Cell (mobile) phones operate through the use of radio waves.  To facilitate cell phone use, cellular service providers maintain a network of radio base stations—also known as cell towers (popularly referred to in Nigeria as mast)—throughout their coverage areas.

Whenever a cell phone makes or receives a call, sends or receives a text message, or otherwise sends or receives data, the phone connects via radio waves to an antenna on the closest cell tower, generating cell site location information (CSLI).  The resulting CSLI includes the precise location of the cell tower and cell site serving the subject cell phone during each voice call, text message, or data connection.  If a cell phone moves away from the cell tower with which it started a call and closer to another cell tower, the phone connects seamlessly to that next tower.

CSLI may be generated in the absence of user interaction with the cell phone. For example, CSLI may still be generated during an incoming phone call that is not answered.  Additionally, most modern smartphones have applications that continually run in the background, sending and receiving data without a user having to interact with the cell phone.

Indeed, cell phones, when turned on and not in airplane mode, are always scanning their network’s cellular environment. In so doing, cell phones periodically identify themselves to the closest cell tower—i.e., the one with the strongest radio signal—as they move throughout their network’s coverage area.  This process, known as “registration” or “pinging,” facilitates the making and receiving of calls, the sending and receiving of text messages, and the sending and receiving of cell phone data. Pinging is automatic and occurs whenever the phone is on, without the user’s input or control. A cell phone that is switched on will ping the nearest tower every seven to nine minutes. (Emphasis mine)

From the above it is crystal clear that CSLI can be used to estimate the location of an individual by identifying the nearest cell tower or mast and sector used when a call is made. It therefore presents circumstantial evidence of a person’s location.  This ability to locate a cell phone presents obvious benefits to law enforcement and intelligence authorities  as seen in the two cases referred to above. CSLI also poses a significant threat to privacy. Thus in State v. Earls (supra) the court observed that:

Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights. This case highlights both principles as we consider recent strides in cell-phone technology. New improvements not only expand our ability to communicate with one another and access the Internet, but the cell phones we carry can also serve as powerful tracking devices able to pinpoint our movements with remarkable precision and accuracy.

ATM DISPENSE ERROR: FCMB DENIES LIABILITY ON THE GROUND THAT ATM USED DOESN'T BELONG TO THEM

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 defendant banks have filed processes in response to the suit by Barrister Tion. Both defendants filed an application for extension of time to enable them file their memoranda of appearance and statements of defence out of time. The 1^st defendant (FCMB Ltd) also filed a preliminary objection (P.O.) urging the court to strike off its name from the case as the plaintiff has not disclosed any cause of action against her on the ground that the ATM where the disputed transaction occurred belongs to UBA Plc and not FCMB Ltd. Specifically, the 1^st defendant in her P.O. contends:

1.That  the  transaction  that  gave  rise  to  this  suit  took  place  at  the ATM  Stand  of  the  2^nd  defendant  and  not  the  1st  defendant’s  as clearly  stated  in  paragraph  5  of  the  statement  of  claim.

2.  That  the  1^st  defendant  has  its  ATM Stand  for  the  use  of  its  various customers  including  the  plaintiff  and  the  plaintiff  wilfully  decided  to  use  the  2nd  defendant’s  ATM.

3.  That  the  report  from  the  2^nd defendant  showed  that  the  2^nd defendant’s  ATM  paid the plaintiff the  said  N8,000  and the  1^st defendant  passed  same  information  to  the plaintiff.

4.  That  there  is  no  paragraph  of  the  statement  of  claim  that  disclosed a cause  of  action  against  the  1^st defendant  in  this  suit.  This  can  be clearly shown from Paragraphs  5  to  46  of  the  statement  of  claim particularly  paragraphs  30  and  32  of  it.

The plaintiff has filed a reply in response to the P.O. filed by 1^st defendant and the 1^st defendant has also filed a reply on points of law to the plaintiff’s reply.

Hearing of the applications and the P.O filed will take place on the 27^th September, 2016.

This case appears to be a test case with regards to ATM transactions or electronic banking in general in Nigeria as it deals with a novel situation which appears not to have been dealt with in other cases of disputed transactions by the courts in Nigeria.

Whereas, other cases of disputed ATM transactions decided by the courts in Nigeria, namely; UBA Plc v Yahuza (2014) LPELR-23976 (CA), Archibong v First Bank of Nigeria Plc (2014) LPELR-22649(CA), Benjamin Agi v. Access Bank Plc (2014) 7 BNLR 23 CA, Victor Ejeh v UBA Plc (unreported) Suit No MHC/323/2010, judgment delivered on 3^rd of February, 2012 by Igoche, J. at the High Court of Justice of Benue State of Nigeria, Barrister Geoffrey Amano v UBA Plc (Suit No PHC/257/2011), judgment delivered on 22^nd April, 2013 by Georgewill, J. at the High Court of Justice of Rivers State of Nigeria, and Joseph v Unity Bank Plc (unreported) Suit No MHC/412/2013, judgment delivered on 22^nd of December, 2015 by Kakaan, A. at the High Court of Justice of Benue State of Nigeria, involved unauthorized withdrawals which the plaintiff customers only became aware when they attempted to make withdrawals, the case of Barrister Tion and that of Kume Bridget Ashiemar v GTB Plc & UBA Plc, Suit No: MHC/198/14, currently being tried before High Court No. 7 of the High Court of Justice of Benue State, involves non-dispense of cash by the ATM.  

In unauthorized withdrawals the customer goes to the bank or ATM to make withdrawals and then learns that certain amount has been debited from his account or he is in possession of his ATM card and suddenly receives debit alerts on his account while in non-dispense of cash, the customer has sufficient funds in his account, attempts to make a withdrawal and the ATM does not dispense cash but his account is debited.

In Barrister Tion's case the court will also have to decide on the very important issues as to whether there is any law, rule or regulation in Nigeria which prohibits a customer of a particular bank from using the bank’s ATM card to withdraw money or perform ATM transactions at another bank’s ATM and  whether if a customer of a bank uses the ATM card issued to him by his bank to withdraw money on the ATM belonging to another bank and the ATM fails to dispense money because of ATM dispense error, yet the customer’s account is debited, which of the banks should be held liable or are both banks to be jointly held liable?

For all the updates involving these two very important and epoch making cases i.e. the case  of Barrister Tion and the case of Kume Bridget Ashiermar, keep a date with this blog.