WHY WE SHOULD REJECT THE N10,000 WITHDRAWAL LIMIT PROPOSAL

It has been reported in the papers that “a proposal to limit the over the counter cash withdrawal by bank customers to N10,000 has been tabled before the Central Bank of Nigeria (CBN). The Sub-committee on Payments Systems and Infrastructure of the Bankers Committee last week sent the proposal to the CBN. The proposal was presented at the committee’s meeting but it is not clear whether it was considered. The CBN is expected to “give feedback on the request”.

The banks by the proposal want to further compel bank customers to use e-banking channels, e.g. ATMs, internet banking etc. However when there is a dispute involving transactions on any of those channels it takes a long time before they are resolved and customers often go through harrowing experiences before a resolution is reached. For instance in cases of ATM dispense errors (i.e. ATM fails to dispense cash but customer account is debited) involving the ATMs of two different banks, it takes sometimes over a month before there is a reversal of the debit and in some instances there is no reversal at all and the banks will go to court insisting that there was a withdrawal without providing conclusive evidence of such withdrawals like ATM camera footages as required by CBN guidelines. See for e.g. the cases of KUME BRIDGET ASHIEMAR vs. GUARANTYTRUST BANK PLC (GTB) & UNITED BANK FOR AFRICA (UBA) PLC, Suit No: MHC/198/14 and  BARR. TIMOTHY TION vs.FCMB LTD & UBA PLC. (Suit No. MHC/161/16), pending before the Benue State High Court of Justice, Makurdi.

Further evidence of how it takes long for ebanking disputes between banks and customers to be resolved can be found in my own case where I sent an email to the Central Bank of Nigeria’s (CBN's) Consumer Protection Department (cpd@cbn.gov.ng) over a disputed ATM withdrawal since December, 2015 and I did not get any response whatsoever from the Consumer Protection Department till date.

It is even doubtful if there are enough ATMs to service customers who will have to resort to ATM withdrawals if across the counter cash withdrawal is limited to N10,000.

I therefore, call on the CBN and bank customers to reject the proposal by Deposit Money Banks to limit over the counter cash withdrawal by bank customers to N10,000.

The following stories illustrate the suffering bank customers in Nigeria go through using e-banking channels especially ATMs:

·        ATM fraud: Customer threatens to sue GT Bank, demands

N100m damages

·        ATM Fraud … 13 Lagos Residents Lose N.7m in Two Months

·        How Kaduna residents lose huge sums to ATM fraudsters

·        Poor Handling Of ATM Fraud Cases Worries Customers

ATM NON-DISPENSE ERROR: CUSTOMER SUES GTB & UBA, CLAIMS N10M DAMAGES

A typical ATM dispense error is a situation where the machine debits a customer’s account without actually physically dispensing cash. In KUME BRIDGET ASHIEMAR vs. GUARANTY TRUST BANK PLC (GTB) & UNITED BANK FOR AFRICA (UBA) PLC, Suit No: MHC/198/14 being tried at the Benue State High Court, sitting in Makurdi, the plaintiff, Kume Bridget Ashiemar, in October 2013, attempted a total of five times(N20,000.00 thrice on 3/10/2013, N20,000.00 and N10,000.00 once on 4/10/2013) to withdraw money over two days totalling N90,000.00 at the ATM of UBA Plc. in North Bank, Makurdi. However, the ATM did not dispense cash on each attempt and displayed a message of insufficient funds yet her account was debited. She laid a complaint at her bank, GTB and requested for camera and video recordings of the transactions but none was provided and neither was she refunded the N90,000.00 In January 2014, three months later, she contacted a lawyer who wrote GTB but nothing came of the lawyer’s later.

Eventually she sued the banks and the banks in their defence are claiming that the ATM dispensed cash which was taken by her on each occasion she attempted to withdraw money on the dates mentioned above. UBA has provided ATM journal prints and transaction logs of the disputed transactions without providing visual evidence of cash dispense and pick up by Kume Bridget, to prove that the transactions were successful. The case is being tried at High Court No. 7 in the High Court of Justice of Benue State, Makurdi. The next adjourned date for the case is 27^th June, 2016.

It would be interesting to see how the court will decide the case as the same High Court No. 7 had in the case of VICTOR EJE V. UBA PLC Suit No. MHC/323/2010, awarded N500,000.00 general damages against UBA Plc in favour of the plaintiff, Victor Eje and also ordered the bank to refund the sum of N80,000.00 withdrawn from his account without his authority or mandate. The brief facts of the case are that Mr. Eje went to the bank on 30/10/2009 to withdraw N20,000.00 and he discovered he had only N1,639.00 in his account. He inquired as to why he had only N1,639.00 and he was informed that N80,000.00 was withdrawn from his account via ATM card on the ATM of Spring Bank, Ogiri Road, Enugu. Mr. Eje contended that he did not make the withdrawal neither did he authorize any person to do so with his ATM card. The bank on the other hand contended that the withdrawal was done by Mr. Eje or he was negligent and/or divulged his PIN to a third party which allowed such a third party to use the ATM card to make withdrawals. However the bank failed to prove its assertions or contentions and the court therefore held it liable for the withdrawal of the N80,000.00 since it could not prove that the withdrawal was authorized by Mr. Eje.

The Central Bank of Nigeria (CBN) in trying to check the hardship meted on bank customers due to non-dispense or partial dispense errors in 2014 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. It was also reported in 2014 that several billions of Naira remained caught up in failed ATM transactions across the branches of Nigeria’s 25 deposit money banks nationwide, thus causing pain and frustration to many of the country’s 25 million bank customers.

The apex bank also in a circular dated 7^th February, 2011 with ref. no. BPS/DIR/CIR/GEN/02/003 decried the continued non-compliance by banks with CBN circulars and guidelines on ATM operations in Nigeria and also stipulated some penalties for non-compliance. Some of the penalties stipulated by the CBN include:

•  An ATM without a camera installed will attract a fine of N50,000 and deactivation of the ATM until the camera is installed.
• An ATM deployer will be made to refund the full amount Involved in any fraud perpetrated on its ATM for failure to provide footages on the disputed transactions when required.
• Failure to resolve any ATM dispute with evidence of resolution within 14 days, the deployer will refund the total amount involved in the fraud.

Furthermore, the CBN through its Banking and Payment System Department in May, 2014, released the Guidelines for Card Issuance and Usage in Nigeria; which provides that: 

“All debit entries arising from failed transactions attributable to system-related issues must be auto-reversed. Where auto reversal is not feasible, manual reversal must be carried out within 24 hours.”

LAWYER SUES FCMB & UBA OVER N8, 000.00 WRONGFULLY DEBITED FROM HIS ACCOUNT, CLAIMS N10M DAMAGES

It appears that the cases of non-dispense or partial dispense error by ATMs in Nigeria still persists in spite of the efforts of the banks’ regulator; the Central Bank of Nigeria (CBN).

The case of Barrister Timothy Tion vs. FCMB Ltd. & UBA Plc. is a classic case of ATM dispense error. The facts of the case are that Barrister Tion tried to withdraw the sum of N8, 000.00 only at the ATM of UBA on the night of February 5^th 2016. He entered the amount of N8, 000.00 and the ATM partially released cash but before he could pick it up, the cash was retracted by the ATM. Barrister Tion sent emails to FCMB Ltd and UBA Plc. intimating them of the failed transaction and demanding for a refund. He also visited FCMB Ltd and made a complaint by filing an ATM dispense error.

However, after much toing and froing over a period of 4 weeks he was informed by FCMB Ltd that UBA Plc. declined his complaint and that the ATM paid him. However, they did not provide any evidence to prove their claim. Barrister Tion rejected their claim and demanded for evidence of the ATM dispensing cash and him picking it up but the banks failed to provide any and he has subsequently sued the banks.

In the case filed before the Benue State High Court on Friday 13^th May, 2016 with case number MHC/161/16, the barrister (plaintiff) is claiming the following reliefs as contained in the statement of claim thus:

(i)                        A declaration that the debit of the Plaintiff’s account to the tune of N8,000.00 only (Eight Thousand Naira) even as he got no value for the transaction amounts to a breach of contract by the Defendant’s jointly and severally.

(ii)                     A declaration that the debit of the Plaintiff’s account to the tune of N8,000.00 only (Eight Thousand Naira) when he got no value for the transaction amounts to negligence by the Defendant’s jointly and severally.

(iii)                       An order directing the Defendants jointly and severally to forthwith refund the sum of N8, 000.00 only (Eight Thousand Naira) debited from the Plaintiff’s account in spite of the fact that the ATM which the Plaintiff carried out the transaction partially dispensed cash but retracted the cash before the Plaintiff could take it.

(iv)                       An order awarding to the Plaintiff against the Defendants jointly and severally damages of N10, 000.00 (Ten Million Naira) for the untold hardship and inconveniences suffered by the Plaintiff as a result of the unlawful conduct of the Defendants.

(v)                          10% Per Annum as allowed by the High Court of Benue State (Civil Procedure) Rules 2007 on the entire judgement sum from the date of judgement till the entire judgement sum is finally liquidated.

Research revealed that bank customers suffer similar fate as Barrister Tion and in some instances the amount is rather higher than the N8, 000.00 involved in Barrister Tion’s case but most of the customers give up on following up the matter to its logical conclusion as they get frustrated by the banks telling them to check back or go and come back after 7 days and so forth on several occasions.

It is instructive to note that the banks’ regulator; the Central Bank of Nigeria (CBN) is in the know of this issue of non-dispense or partial dispense errors and as recently as 2014 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. It was also reported in 2014 that several billions of Naira remained caught up in failed ATM transactions across the branches of Nigeria’s 25 deposit money banks nationwide, thus causing pain and frustration to many of the country’s 25 million bank customers.

Furthermore, the Guidelines for Card Issuance and Usage in Nigeria; released by the CBN Banking and Payment System Department in May, 2014, provides that “All debit entries arising from failed transactions attributable to system-related issues must be auto-reversed. Where auto reversal is not feasible, manual reversal must be carried out within 24 hours,”

Also the CBN Standards and Guidelines on Automated Teller Machine (ATM) Operationsin Nigeria, 2010 and the Guidelines on Operations of Electronic Payment Channels in Nigeria, 2016 all provide that:

Every ATM shall have cameras which shall view and record all persons using the  machines  and  every  activity  at  the  ATM  including  but  not  limited  to:  card insertion,  PIN  entry,  transaction  selection,  cash  withdrawal,  card  taking,  etc. However,  such  cameras  should  not  be  able  to  record  the  key  strokes  of customers using the ATM

The CBN in a circular dated 7^th February, 2011 with ref. no. BPS/DIR/CIR/GEN/02/003 decried the continued non-compliance by banks with CBN circulars and guidelines on ATM operations in Nigeria and also stipulated some penalties for non-compliance. Some of the penalties stipulated by the CBN include:

•  An ATM without a camera installed will attract a fine of N50,000 and deactivation of the ATM until the camera is installed.
• An ATM deployer will be made to refund the full amount Involved in any fraud perpetrated on its ATM for failure to provide footages on the disputed transactions when required.
•        Failure to resolve any ATM dispute with evidence of resolution within 14 days, the deployer will refund the total amount involved in the fraud.

(c)         It appears that despite the penalties stipulated by the CBN some banks’ ATMs do not have cameras installed or else how can one explain a situation where a bank claims a customer withdrew money or ATM dispensed cash which was taken by the customer yet fail to provide visual proof or evidence(video recordings and pictures) to support their claim. What then is the essence of the CBN demanding that ATMs should have cameras installed on them? Could it be that the CBN is not monitoring and enforcing the provisions of the guidelines mentioned above? Or could it be that the penalties are not grave enough to deter the banks from non-compliance?

Further research also revealed that UBA Plc. seems to be involved in most cases of non-dispense or partial dispense errors or withdrawals made without the authorization or knowledge of the bank customer as demonstrated by a number of cases in law courts decided against UBA Plc. For instance see the following cases; (1) BARR. GEOFFREY AMANO v. UBAPLC SUIT NO: PHC/257/2011, which is a judgement of the High Court of Rivers State of Nigeria, Holden at Port Harcourt, delivered by Sir Hon. Justice B. A. Georgewill, sitting in High Court 11 (2) VICTOR EJE V. UBA PLC SUIT NO. MHC/323/2010 which is a judgement of the High Court of Benue State of Nigeria, Holden at Makurdi, delivered by Hon. Justice T. A. Igoche, sitting in High Court 7 and (3) UBA PLC v. YAHUZA (2014) LPELR-23976 (CA) which is a judgement of the Court of Appeal(Kaduna Judicial Division).

THE PLIGHT OF BUSINESS OWNERS WISHING TO ADVERTISE THEIR PRODUCTS AND SERVICES UNDER THE LAW

The 2016 Doing Business report ranks Nigeria at 181 in the ranking of 189 economies on the ease of paying taxes. Advertisement tax or levies differs from state to state in Nigeria. Advertisement simply put may refer to any act done to promote a product or service. Advertisement is therefore a key ingredient for the success of any commercial venture. However, advertisement needs some form of regulation and therefore the government has made laws in that regard.

The Fourth Schedule to the 1999 Constitution of the Federal Republic of Nigeria as Amended, at paragraph 1(k)(i) provides for the main functions of a Local Government Council to include control and regulation of out-door advertising and hoarding.

Also, the Taxes and Levies (Approved List for Collection) Decree No 21 of 1998 Laws of the Federation of Nigeria under Schedule 1 Part II provides that Signboard and Advertisement permit fees are to be collected by the Local Government. See page A35 of the State Internal Revenue AdministrationLaw of Benue State, 2015 which also list the signboard and advertisement permit fees to be collected by local governments in the state. On page A115 of the same law; Establishment of Led Electronic Billboard and Annual Subscription on Led Electronic Bill Board is also listed as fees/taxes to be collected by the state Ministry of Science and Technology.

Furthermore, the State Internal Revenue Administration Law, 2015 on page A114 provides for the collection of Advertisement Location Approval Fees by the Benue State Urban Development Board.

The Nigerian Urban and Regional Planning Act No. 88 of 1999(which is encapsulated under CAP N138 of the Laws of the Federation of Nigeria, 2004 under section 73(1) also provides that the “control department” shall regulate the dimensions, appearance, display, siting and manner in which an advertisement board shall be affixed to land. Subsection 2 of the same Act further provides that no person shall display an advertisement without the written consent of the control department. By the above provisions it is the control department established by section 27 of the National Urban and Regional Planning Act that is empowered to grant approval or regulate outdoor advertisements affixed to land.

Section 91 which is the interpretation section of the Act defines “control department” to mean any agency performing the duties of urban and regional planning and development control at the Federal, State and local government level. The section further states that “development” means the carrying out of any building, engineering, mining or other operations in, on, over or under any land, or the making of any environmentally significant change in use of any land or demolition of buildings including the felling of trees and the placing of free-standing erections used for the display of advertisements on the land and the expression “develop” with its grammatical variations shall be considered accordingly.

Flowing from the foregoing provisions of the Nigerian Urban and Regional Planning Act the Benue State Urban Development Board (BSUDB) is the control department referred to in section 91 above since at the state level it is the agency that performs the duties of urban and regional planning and development control. See section 6 of the Benue State Urban Development Board Law.

The question then is to whom should the business owner wishing to advertise his products or services on signboards or signage pay signboard and advertisement permit fees to? Is it to the Local Government Council, BSUDB or Ministry for Science & Technology? If he is to pay the fees to all these government bodies would it not amount to double or multiple taxation or levies? What is the difference between advertisement location approval fee and signboard and advertisement permit fees?

 

In view of the above it is therefore suggested that the authorities concerned and stakeholders should work together to see how these levies and fees can be consolidated in order to avert or minimise the hardships these scattered and multiple levies and fees are imposing on business owners who wish to advertise their products and services on signboards, signage, etc. and improve on the appalling rank of 181 out of 189 occupied by Nigeria in the ranking of 189 economies on the ease of paying taxes.

If the above suggestion is put in place it would no doubt be of benefit to the economy as the 2016 Doing Business report earlier mentioned also states thus:

“Economies around the world have made paying taxes faster, easier and less costly for businesses—such as by consolidating payments and filings of taxes,   offering electronic systems for filing and payment, establishing taxpayer service centers or allowing for more deductions and exemptions. Many have lowered tax rates. Changes have   brought   concrete   results.   Some   economies simplifying tax payment and reducing rates have seen tax revenue rise.”

PROPER CUSTODY AND DOCUMENTS POSTED ON THE CBN WEBSITE

The Central Bank of Nigeria (CBN) routinely issues guidelines and circulars which are usually posted to its website: cenbank.org. Which officer of the CBN is by the ordinary course of official duty, authorized to deliver copies of documents posted on the CBN website? In whose "proper custody" are documents (i.e. guidelines and circulars issued by CBN) posted on CBN's website? Is it a particular CBN department or head/director of a department from which the document originated from? Since the documents are posted on the CBN’s website can’t they be deemed to be from proper custody if they are delivered by any officer of a CBN branch office other than the headquarters in Abuja? 

In KEYSTONE BANK LIMITED v. A. O. S. PRACTICE (2013) LPELR-20357(CA) the Court of Appeal per Ibrahim Mohammed Musa Saulawa (JCA) held thus:

“Regarding certification of public document, section 104 of the Evidence Act is very much instructive. And by virtue of the said section 104:-

(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees thereof, together with a certificate written at the foot of such copy that it is a true copy of such document or pact thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.

(2) Any officer who, by the ordinary course of official duty, is authorized to deliver such copies shall be deemed to have custody of such documents within the meaning of this section. The term 'proper custody', as couched in section 104 of the Evidence Act, denotes the custody of any official who in the ordinary course of the official duties or functions thereof is authorized to deliver certified copies of the public document to any member of the public. Thus, the legal appointment of the official certifying the copy of the public document is needless or immaterial. It's sufficient to merely show that the official is defecto the custodian of the document. See R. VS. PARSONS (1866) L.R.I. CCR 24; 10 COX 243.””

Mr. A, in Bama, Borno State, intending to rely on such documents in legal proceedings approaches CBN branch office in Maiduguri for certification but he is referred to CBN headquarters in Abuja. Why should Mr. A apply to Abuja for certification? Can't an officer of CBN in the CBN's branch in Borno State or any neighbouring state for that matter be able to download the documents posted on CBN's website and certify same for Mr. A?

I think that the purpose of certification is to verify that the documents intended to be relied upon by a party is genuine and same as the original in the custody of the officer. If so the CBN branch should be able to download the documents and verify from the particular department which originated or made the documents that what is on the website is what was actually issued by the said department and then certify accordingly. The bureaucratic delays of either going to Abuja to apply or sending in an application and asking someone to help follow up the application in Abuja constitute a clog in the quick dispensation of justice. 

The Dangers of the Internet of Things (IoT)

Are you ready for a future where not just your smartphone,  desktop, laptop computer or tablet is connected to the Internet but also your cars, electronic appliances(home theatre, TV etc.), lights in household and commercial environments, alarm clocks, speaker systems, washing machines, microwaves, sandwich makers/toasters, blenders etc. are connected to the Internet? 

In the near future, you may no longer need to remember to turn the oven off when the cake is done or switch on lights when you enter a room. Your home will do it for you. These products are part of the Internet of Things (IoT), aimed at automating our lives by connecting mobile devices to appliances, lights, and just about everything.

The Internet of Things (IoT) refers to the ever-growing network of physical objects that feature an IP address for internet connectivity, and the communication that occurs between these objects and other Internet-enabled devices and systems. IoT extends internet connectivity beyond traditional devices like desktop and laptop computers, smartphones and tablets to a diverse range of devices and everyday things that utilize embedded technology to communicate and interact with the external environment, all via the Internet.

Simply put, IoT is a computing concept that describes a future where every day physical objects will be connected to the Internet and be able to identify themselves to other devices. Most of us think about being connected in terms of computers, tablets and smartphones. IoT describes a world where just about anything can be connected and communicate in an intelligent fashion. In other words, with the IoT, the physical world will become one big information system.

It describes a situation where everything in our surrounding environment is made capable of automatically communicating with each other without any inter-human or human-to-machine interaction. Apart from the fact that it is a path-breaking discovery, it can also prove to be extremely beneficial in facilitating our lives to manifolds.

Despite the enormous benefits, IoT might raise some privacy and security concerns. The risks inherent in our Internet-connected lives and IoT are brought into sharp focus by the movie: Ratter. Ratter is an acronym for a type of malware known as a Remote Access Trojan, an unwittingly downloaded program that provides a hacker with undetected access to a user’s Internet-enabled devices. The ratter can then manipulate programs and files, as well as operate camera and microphone functions, enabling video and audio access to the victim’s activities.

In the movie; Ratter, Emma is determined to make a fresh start as she moves from the Midwest of America to rent a spacious apartment in Brooklyn, New York and begin grad school, Emma never suspects that everything she does within view of her laptop, phone or webcam is being watched and recorded by an unknown stalker who has electronically hijacked her devices. Whether she’s prepping meals in her kitchen, settling into bed at night or showering with her laptop playing music in the background, Emma’s always-online lifestyle is fully revealed to the ratter.

At the same time, she begins receiving random blocked calls and text messages, which her friend Nicole dismisses as typical misdialed numbers and tech glitches. When her laptop starts acting up, Emma takes it to a repair shop but apparently there’s nothing amiss, although she does change her passwords as a precaution. An unexpected call from a blocked number turns out to be her jilted, bitter ex-boyfriend Alex, leading Emma to wonder if he’s the one who’s been anonymously harassing her.

She dismisses the thought however, since things are going so well with Michael, the new guy she’s been dating, until an online chat session becomes way too creepy and Emma breaks things off, concerned that even he might be targeting her. It’s all part of the ratter’s escalating plan to isolate her from friends and family, even as he becomes more aggressive, breaking into her apartment and observing her while she sleeps. As his threatening behavior escalates and Emma’s stress level spikes, her parents urge her to move to a new apartment, but with the ratter monitoring her every move, message and phone call, a change of location isn’t likely to provide much respite or increased security.

In a selfie-obsessed culture motivated by the urge to document everything and perhaps even achieve fleeting viral celebrity, the unpleasant possibilities articulated by the movie, Ratter, are alarmingly immediate and unnervingly reinforced by news accounts of hijacked webcams and hacked cellphones betraying unsuspecting users.

RICKY TARFA (SAN): THE RIGHT TO REMAIN SILENT AND PASSWORD-PROTECTED MOBILE PHONES

 On the 24^th of February, 2016 a Senior Advocate of Nigeria, Mr. Rickey Tarfa withdrew an N5billion fundamental rights violation suit he filed against the Economic and Financial Crimes Commission (EFCC) and four other respondents. The senior lawyer had filed the suit, alleging violation of his right to privacy by the respondents

Mr. Tarfa in the suit sought a court declaration that his right to privacy was violated when the call records/log on his phone with mobile number 08034600000 was allegedly accessed without his authority and made available to Sahara Reporters and other online news media without any reasonable cause or a lawful court order.

He also urged the court to hold that it was unlawful for his iPhone 6 with mobile number 08034600000 to have been used in calling one Alhaji Ado in Kaduna on mobile number 08061272929 on February 9, 2016 while the said phone was with Magu and the EFCC without any reasonable cause or any court order.

Furthermore, Mr. Tarfa also urged the court to hold that it was unlawful for the EFCC to access his bank details, clients’ information, private and confidential information contained in his iPhone 6 with number 08034600000 and Samsung 6 phone with number 08077341616 without any reasonable cause or any court order.

The writer cannot tell if Mr. Tarfa’s mobile phones were password-protected but assuming he had pass-worded/locked his mobile phones (just like Syed Rizwan Farook, one of the two killers (who were later killed in a shootout with the police) in the December 2, 2015 San Bernardino, California mass shootings, who left behind a pass-worded/locked iPhone 5c whose data the FBI has not been able to get access to) and the EFCC were unable to access the mobile phones either through hacking or guessing his passwords, would it have been lawful for the EFCC to demand from Mr. Tarfa or compel him to provide the passwords to his mobile phones?

The Position of the Law in Nigeria

According to Section 35(2) 1999 Constitution as amended:

“Any  person  who  is  arrested  or  detained  shall  have  right  to  remain silent  or  avoid  answering  any  question  until  after  consultation  with  a legal practitioner or any other person of his own choice”

Section 36(11) further provides that “No person who is tried for a criminal offence shall be compelled to give evidence”. However, section 35(2) is more germane to the issue at hand so this discourse will be limited to the said section.

The import of the section 35(2) is that whenever a suspect is in police custody, his constitutional right to remain silent begins, and this right is to the effect that he cannot be forced or coerced to say a word unless he volunteers to do so as it is the duty of the prosecution to prove its case beyond reasonable doubt. The above position of the law has been upheld by the Supreme Court of Nigeria in the case of Sugh v. State (1988) NWLR (Pt. 77)475. See also Ajudua v. FRN (2014) LPELR-24126(CA) where it was held that an  accused  has the  right  to  remain  silent  as  he  cannot  be forced to make a statement during investigation.

The Position of the Law in the United States

In the United States the general position of the law regarding the right to remain silent or right against compelled self-incrimination is provided for in the Fifth Amendment to the United States Constitution which provides that “No person shall…be compelled in any criminal case to be a witness against himself.”

In the case of Securities and Exchange Commission (SEC) v. Bonan Huang et al (Case 2:15-cv-00269-MAK), the SEC were investigating the defendants who allegedly used insider information associated with their jobs to trade stocks. The SEC suspected the mobile devices were holding evidence of insider trading and demanded (via a motion filed in court) that the defendants turn over their passcodes. The defendants declined supplying their passcodes contending that the Fifth Amendment protected them.  The issue was therefore, whether the defendants could be forced to give up passcodes to devices that were provided by their employer, but secured by passcodes chosen by the employees themselves. The Federal District Court (the Supreme Court has never ruled on the constitutionality of the issue) in Eastern Pennsylvania ruled that the defendants cannot be compelled to give up the passcode to their cell phones as doing so would be equal to giving self-incriminating  testimony.

The Position of the Law in the United Kingdom

The privilege against compelled self-incrimination or the right to remain silent is deeply rooted in the common law. Goddard LJ in Blunt v Park Lane Hotel [1942] 2 KB 53 at 257 stated thus;

"No one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose (him) to any criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred …" 

In Saunders v UK [1996] 23 EHRR 313 it was held that Article 6 of the European Convention of Human Rights guarantees the protection against self-incrimination.

"The right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under article 6….the right not to incriminate oneself, in particular, presupposes that the prosecution in the criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in article 6(2)".

However, the right is subject to numerous statutory exceptions which limit, amend, or abrogate the privilege in specified circumstances. Therefore, despite the privilege, individuals may sometimes be required to answer questions or provide information or documents which may incriminate them. For instance the Regulation of Investigatory Powers Act 2000 (RIPA), Part III, activated by ministerial order in October 2007, requires persons to supply decrypted information and/or keys/passwords to government representatives or law enforcement agents with a court order. Failure to disclose carries a maximum penalty of two years in jail. Thus, under the provisions of the RIPA Syed Hussain was convicted of failing to provide police with the password to the USB memory stick seized in a counter-terrorism operation. When Hussain was arrested in April 2012, police seized a USB memory stick from his home - but they discovered the information on the device was protected by sophisticated encryption technology. Hussain told detectives that he could not remember the password because he was suffering from stress – which meant they could not access its contents. Police called in experts from GCHQ, the government's secret eavesdropping and communications agency, but even they were unable to crack the device.

Oliver Drage, a 19-year old was arrested as part of an investigation into child sexual abuse images. His computer was seized by police who were unable to access some material on it thanks to a 50-character encryption password. Police formally requested the password from Drage, he refused to co-operate, an offence under the RIPA. He was accordingly sentenced to 16 weeks in a young offenders’ institution for refusing to give police the password to an encrypted file on his computer. See-

Conclusion

Considering the position or state of the law in Nigeria it may be safe to conclude that if Mr. Tarfa’s mobile phones were locked or pass-worded, the EFCC would have acted outside the law or illegally if they compelled Mr. Tarfa to disclose the passwords to his mobile phones which they seized. This is so as to the best of the writer’s knowledge there is no exception to the right to remain silent under Nigerian law; unlike the position in the UK, during interrogation in the custody of law enforcement agents.

However, as one writer observed:

“Realistically, the right to silence has a low value and not really exercised by most suspects. Only a suspect who knows the law and the right well would exercise the right as most people would not be able to withstand the mental pressures during the interrogation. False evidences, lies, isolation and many other psychological tactics are practiced to make the suspect confess the crime. As a result of this, many false confessions happen due to unbearable psychological pressures.”

It may therefore, not be out of place to suggest that it would take an extraordinarily strong-willed suspect undergoing interrogation during detention by any of the law enforcement agencies in Nigeria, especially the Nigerian Police who are notorious for torturing suspects in detention, to exercise his right to remain silent as guaranteed by section 35(2) of the 1999 Constitution as amended!