JULIUS v. FRN
(2021)LCN/15094(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/MK/03C/2020
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
RAYMOND AKOLO JULIUS APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
PROVISION OF SECTION 13 OF THE CYBERCRIMES (PROHIBITION, PREVENTION ETC.) ACTS, 2015 REGARDING PUNISHMENT FOR THE OFFENCE OF COMPUTER RELATED FORGERY
By the provisions of Section 13 of the Cybercrimes Act supra: 13. A person who knowingly accesses any computer or network and inputs, alters, deletes or suppresses any data resulting in unauthentic data with the intention that such unauthentic data will be considered or acted upon as if it were authentic or genuine, regardless of whether or not such data is directly readable or intelligible, commits an offence and is liable on conviction to imprisonment for a term of not less than 3 years or to a fine of not less than N7,000,000.00 or both. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
PROVISION OF SECTION 14(2) OF THE CYBERCRIMES (PROHIBITION, PREVENTION ETC.) ACT, 2015 REGARDING PUNISHMENT FOR THE OFFENCE OF COMPUTER RELATED FRAUD
The Section is reproduced hereunder for ease of reference and it reads: (2) A person who, with intent to defraud, sends electronic message materially misrepresents any fact or set of facts upon which reliance the recipient or another person is caused to suffer any damage or loss, commits an offence and is liable on conviction to imprisonment for a term of not less than 5 years and to a fine of not less than N10,000,000,00 or both. Regarding the essential ingredients required in proving the said count 4, the prosecution has to satisfy the Court that the defendant (appellant): i. with intent to defraud sent by electronic means, message which ii. materially misrepresents any fact or set of facts; iii. that the recipient of such message or any other person relied on it; and iv. as a result of such reliance, the recipient or that other person suffered any damage or loss. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
PROVISION OF SECTION 24(B) OF THE CYBERCRIMES (PROHIBITION, PREVENTION ETC.) ACT, 2015 REGARDING PUNISHMENT FOR THE OFFENCE OF CYBER STALKING
- (1) A person who knowingly or intentionally sends a message or other matter by means of computer systems or network that- (b) he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent, commits an offence under this Act and is liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or both. The ingredients of this offence include that: i. the defendant knowingly or intentionally sent messages by means of computer which he knows to be false; ii. the defendant sent the false messages for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another person. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
PROVISION OF SECTION 26 (1)(C) AND (D) OF THE CYBERCRIMES (PROHIBITION, PREVENTION ETC.) ACT, 2015 REGARDING PUNISHMENT FOR THE OFFENCE OF RACISM AND XENOPHOBIA
… count 7 deals with the offences of Racism and Xenophobia contrary to Section 26 (1)(c) and (d) of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015 wherein it is provided that: Any person, who with intent (c) Insults publicly through a computer system or network: i. Persons for the reason that they belong to a group distinguished by race, colour, descent, national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or ii. A group of persons which is distinguished by any of these characteristics; or (d) Distributes or otherwise makes available, through a computer system or network, to the public, material which denies or approves or justifies acts constituting genocide or crimes against humanity, commits an offence and shall be liable on conviction to imprisonment for a term of not more than 5 years or to a fine of not more than N10 Million or both such fine and imprisonment. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering The Leading Judgment): This appeal metamorphosed from the judgment of the Federal High Court sitting at Lafia (hereinafter the lower/trial Court) coram Hon. Justice A. A. Okeke, J., wherein the appellant was convicted and sentenced under the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
BRIEF STATEMENT OF FACTS THAT LED TO THE APPEAL
The defendant who herein is the appellant was arraigned before the lower Court on a seven-count charge to wit:
STATEMENT OF OFFENCE
Unlawful access to computer contrary to Section 6 of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
COUNT 1
THAT YOU, RAYMOND AKOLO JULIUS ‘M’ of Kurudu Orozo, Kpeyegy of FCT on 9th day of January, 2018 at Lafia Local Government Area of Nasarawa State within the jurisdiction of this Honourable Court had without authorization used Nasarawa Mirror (@ Mirror1996), an online platform with more than 10,000 followers and with fraudulent purposes accessed and shared an information vital to National Security without verifying its authenticity. You thereby committed the offence of
1
unlawful access to computer punishable under Section 6(1) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
COUNT 2
THAT YOU, RAYMOND AKOLO JULIUS ‘M’ of Kurudu Orozo, Kpeyegy of FCT on or about the 9th day of January, 2018 at Lafia Local Government Area of Nasarawa State, within the jurisdiction of this Honourable Court had, without authorization used Nasarawa Mirror (@Mirror 1996), an online platform with more than 10,000 followers shared an information vital to National Security to avoid and prevent detection of the identity of the said platform. You thereby committed the offence of unlawful access to computer punishable under Section 6(3) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
STATEMENT OF OFFENCE
Computer related forgery contrary to Section 13 of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
COUNT 3
THAT YOU, RAYMOND AKOLO JULIUS ‘M’ of Kurudu Orozo, Kpeyegy of FCT on or about the 9th day of January, 2018 at Lafia Local Government Area of Nasarawa State within the jurisdiction of the Honourable Court, knowingly accessed and used Nasarawa Mirror (@Mirror 1996), an online
2
platform with more than 10,000 followers to input inauthentic information with the intention that it will be considered and acted upon by unsuspecting members of the public as authentic or genuine. You thereby committed the offence of computer related forgery punishable under Section 13 of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015. Computer related fraud contrary to Section 14 of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
COUNT 4
THAT YOU, RAYMOND AKOLO JULIUS ‘M’ of Kurudu Orozo, Kpeyegy of FCT on or about the 9th Day of January, 2018 at Lafia Local Government Area of Nasarawa State, within the jurisdiction of this Honourable Court; with the intent to defraud, posted an electronic message on Nasarawa Mirror (@Mirror 1996), an online platform with more than 10,000 followers to misrepresent facts which caused damages to unsuspecting members of the public. You thereby committed the offence of Computer Related Fraud punishable under Section 14(2) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
STATEMENT OF OFFENCE
Cyber stalking contrary to Section 24 of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
3
COUNT 5
THAT YOU, RAYMOND AKOLO JULIUS ‘M’ of Kurudu Orozo, Kpeyegy of FCT on or about the 9th day of January, 2018 at Lafia Local Government Area of Nasarawa State, within the jurisdiction of this Honourable Court; knowingly sent/shared a message through Nasarawa Mirror (@Mirror 1996), an online platform with more than 10,000 followers to misrepresent facts which you knew to be false for the purpose of causing enmity, hatred and needless anxiety in Nasarawa State and beyond. You thereby committed the offence of Cyber stalking punishable under Section 24(b) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
STATEMENT OF OFFENCE
Cyber squatting contrary to Section 25 of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
COUNT 6
THAT YOU, RAYMOND AKOLO JULIUS ‘M’ of Kurudu Orozo, Kpeyegy of FCT on or about the 9th day of January, 2018 at Lafia Local Government Area of Nasarawa State, within the jurisdiction of this Honourable Court; intentionally used Domain Name; Nasarawa State Mirror (@Mirror 1996) as online platform, as representing Nasarawa State without authority. You thereby
4
committed the offence of Cybersquatting punishable under Section 25(1) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
STATEMENT OF OFFENCE
Racist offence contrary to Section 26 of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
COUNT 7
THAT YOU, RAYMOND AKOLO JULIUS ‘M’ of Kurudu Orozo, Kpeyegy of FCT on or about the 9th day of January, 2018 at Lafia Local Government Areaof Nasarawa State, within the jurisdiction of this Honourable Court; intentionally published and caused to be distributed via Nasarawa Mirror (@Mirror 1996), online platform materials which justify act of crime against humanity. You thereby committed the offence of Cybersquatting punishable under Section 26(1) (C) & (d) of the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015. (See pages 1 – 5 of the record of appeal).
Appellant pleaded not guilty on each of the 7 (seven) counts.
The case proceeded to trial in the course of which the respondent called one witness who testified as the PW1 and tendered Exhibits ‘P1’ and ‘P2’, while the appellant testified in his defence as the DW1 and one
5
Jonathan Alfred Aku as the DW2. At the close of the appellant’s defence, parties filed and exchanged written addresses.
The lower Court after due consideration of the evidence put forward by the parties, convicted and sentenced the defendant on each of counts 1, 2, 3, 4, 5 and 6 but not guilty on count 7 of the charge. The judgment was delivered on 24th January, 2020. (See pages 145 – 154 of the record of appeal).
Aggrieved by the judgment, the appellant appealed against same by filing a Notice of Appeal on 13th March, 2020. (See pages 93 – 99 of the record of appeal).
Parties in line with the practice and rules of this Court filed and exchanged briefs of argument. The appellant’s brief undated but filed 14th July, 2020 and deemed properly filed on 9th September, 2020 was settled by M. A Peter, Esq., while the reply brief dated 16th September, 2020 and filed 17th September, 2020 was settled by A. Christopher, Esq. On the part of the respondent, their brief dated 7th September, 2020, filed 8th September, 2020 but deemed properly filed also on 9th September, 2020 was settled by M. J. Abokee, Esq., Principal State Counsel,
6
Ministry of Justice, Lafia.
From the 9 (nine) grounds of appeal, the appellant crafted the following 3 (three) issues for determination:
1) Whether the prosecution made out any case at the lower Court to sustain the conviction of the Appellant based on the publication in his Facebook page as an offences (sic) charge (sic) under the cybercrime. (Distilled from ground (sic) 1, 2, 5 and 7).
2) Whether the learned trial Judge of the Federal High Court was right in law in holding that the Appellant had committed the offences as charged in count (sic) 1, 2, 3, 4, 5 and 6 (Distilled from grounds 3, 6 and 7).
3) Whether the learned trial Judge of the Federal High Court sitting at Lafia was correct in its findings that as Appellant put up a defence that the criminal burden of proof shifted to him? (Distilled from ground (sic) 4 and 8).
The respondent on its part saw the following lone issue as apt for determination of the appeal:
Whether the Trial Court rightly convicted and sentenced the Appellant under the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015. (Distilled from Grounds I, II, III, IV, V, VI, VII, VIII and IX of the Notice of Appeal).
7
Upon a careful perusal of the issues as proffered by both parties, I think that the lone issue of the respondent is encompassing and captures the essence of the three issues donated by the appellant. I shall therefore in determining this appeal, adopt the lone issue of the respondent and it is so adopted.
LONE ISSUE
Whether the Trial Court rightly convicted and sentenced the Appellant under the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015.
Learned counsel for the appellant commenced argument on this issue by stating the essential elements of each of the offences charged. Relying on the case of Babalola vs. Babalola (1974) 1 NMLR 55, 56 he submitted that Section 1(a), (b) and (c) of Cybercrimes (Prohibition, Prevention etc.) Acts, 2015 is basically to ensure the protection of critical National Information Infrastructure and promote cyber security and protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights. Learned counsel cited the website of the Independent National Electoral Commission (INEC) which has been hacked as an example of access
8
to designated certain computer systems or networks as critical national information infrastructure. Counsel contended that it was hacked by a group that paraded itself as Nigeria Cyber Army. That the tampering or destruction of or interference with such systems and assets would have a debilitating impact on security, National or economic security, national public health and safety or any combination of those matters constitute Critical National Information Infrastructure (CNII). Learned counsel referred to a paper titled: CRITICAL INFORMATION INFCRASTRUCTURE, ENHANCING CYBERSECURITY AND RESILIENCE, by Tope Aladenusi, presented at the 12th International Conference Nigeria Computer Society and wherein Critical National Infrastructure (CNII) was defined as those information computer technology infrastructure upon which core assets that are essential for the functioning of the society and economy is dependent. See the Explanatory memorandum of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015; Okuneye vs. FRN. (1999) 6 NWLR Pt. 457, pg. 749.
Learned counsel for the appellant canvassed that the evidence of the prosecution on record did not fall within
9
the essential ingredients of the offences under Sections 6(1), (3), 14(2), 24(b) and 25(1) of the Cybercrimes (Prohibition, Prevention etc.) Acts, 2015.
Learned counsel went on to submit that the learned trial Judge did not read between lines of both the Act that created the offences charged and the evidence on record thereby putting the cart before the horse. He relied on the case of Osuagwu vs. The State (2013) LPELR-19823 or (2013) 5 NWLR Pt. 1347, pg. 360; and The People of Lagos State vs. Umaru (2014) 7 NWLR Pt. 1407, pg. 584 at 606. Counsel also submitted that the prosecution evidence must state the designated computer systems or networks and possibly the physical or virtual program or traffic data that are vital to Nigeria State, which the appellant unlawfully accessed and caused destruction or interference to. He contended that the prosecution did not establish that the publication was either through the hardware or software or traffic data from the designated computer systems or networks as Critical Information Infrastructure (CNII). He submitted that Sections 6(1), (3), (13); 14(1) and 25(1) are made subject to the provisions of
10
Section 3 of the Cybercrimes (Prohibition, Prevention etc.) Acts, 2015. He canvassed that the legal regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria, is to ensure the protection of Critical National Information Infrastructure.
Relying on the authorities of Alabi vs. The State (1993) 7 NWLR Pt. 307, pg. 511 at 531; and Igbikis vs. The State (2017) LPELR-41667, counsel for the appellant submitted that no onus of proof lies on the appellant. He contended that the primary onus of establishing the case of guilt against an accused is always on the prosecution except in the very special and limited circumstances like cases of insanity.
Appellant finally urged on us to allow this appeal and quash the judgment of the lower Court, discharge and acquit the appellant.
On the converse, the learned counsel for the respondent submitted that a trial Court’s conclusion on the facts is presumed to be correct so that the presumption must be displaced by the appellant seeking to upset the judgment on facts. See Obidike vs. The State (2014) 7 SCM pg. 104, 119, paras. H-I. He submitted
11
that from the gamut of evidence, the respondent had proved with credible and consistent evidence, all the essential ingredients of the offences charged in counts one and two. Counsel contended that the domain name ‘Nasarawa Mirror’ is a pointer to the fact that the appellant with intent to commit an offence used the device for the purpose of avoiding detection or preventing being identified or the offence being attributed to him. See Alo vs. The State (2015) SCM 2, pg. 1, 20-21, paras. H – I, A – C, ratio 8.
Regarding the essential ingredients required in proving the offence in count four (4), counsel contended that the respondent established them, likewise those of counts five (5) and six (6). Learned counsel opined that the lower Court was right to have convicted the appellant on Exhibits ‘P1’ and ‘P11’. See also the cases of Okoh vs. State (2014) 8 NWLR Pt. 1410, pg. 502; Uluebeka vs. State (2000) 7 NWLR Pt. 665, pg. 404; Adamu vs. State (2014) 12 NWLR Pt. 1420, pg. 65; and Galadima vs. State (2012) 18 NWLR Pt. 1333, pg. 610.
Learned counsel for the respondent stated the obvious which is that proof
12
beyond reasonable doubt does not mean proof beyond ‘any shadow of doubt’ and it is not proof beyond all iota of doubt or shred of doubt. See Francis Ezediufu vs. The State (2001) 17 NWLR Pt. 741, pg. 82, 116 – 117, paras. H – B; Ikuepenikan vs. State (2011) 1 NWLR Pt. 1229, pg. 449, 481, paras. B – D, ratio 12; Afolalu vs. The State (2010) 16 NWLR Pt. 1220, pg. 584; Emeka vs. State (2014) LPELR-23020(SC), (2014) 13 NWLR Pt. 1425, pg. 614; Musa Ikaria vs. The State (2012) LPELR- 15533(SC), (2014) 1 NWLR Pt. 1389, pg. 639; and Agugua vs. The State (2017) LPELR- 42021(SC). The respondent argued that the lower Court rightly convicted the appellant under the Cybercrimes Act. See also Sections 1 and 58 and a recent authority of this Court in Okedara vs. A.G., Federation (2019) LPELR- 47298(CA), from which the learned counsel quoted in extenso and upon which the respondent urged on us to dismiss the appeal and affirm the conviction and sentence of the appellant under the Cybercrimes Act.
Although, the appellant filed a reply brief, I shall however be drawing from same where I deem it necessary and useful to the just determination of the appeal.
13
RESOLUTION OF THE LONE ISSUE
The appellant was arraigned, convicted and sentenced for various offences punishable under the Cybercrimes Act of 2015. It will thus be worth the while to first of all look at the objectives of the Cybercrimes Act supra, before deciding whether the appellant was rightly or wrongly convicted under the said Act. In order to achieve this, I shall have recourse to the provisions of Section 1 thereof which deals with the objectives of the Act and same is hereby reproduced:
1. (1) The objectives of this Act are to –
(a) provide an effective and unified legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria;
(b) ensure the protection of critical national information infrastructure; and
(c) promote cyber security and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.
As already noted, the appellant was charged in count 1 with unlawful usage of the Nasarawa Mirror (@Mirror1996), an online platform with 10,000
14
followers, to access and share an information vital to National Security without verifying its authenticity and thereby committed the offence of unlawful access to computer contrary to Section 6(1) of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015.
Further on count 2, the appellant was charged as having, without authorization used Nasarawa Mirror (@Mirror1996), an online platform to share an information vital to National Security to avoid and prevent detection of the identity of the said platform and thereby committed an offence punishable under Section 6(3) of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015. Section 6(1) and (3) provide as follows:
(1) Any person who without authorization, intentionally accesses in whole or in part a computer system or network, for fraudulent purposes and obtain data that are vital to national security, commits an offence and shall be liable on conviction to imprisonment for a term of not more than 5 years or to a fine of not more than N5,000,000.00 or to both fine and imprisonment.
(3) Any person who, with the intent to commit an offence under this Section, uses any device to avoid detection or
15
otherwise prevent identification or attribution with the act or omission, commits an offence and is liable on conviction to imprisonment for a term of not more than 7 years or to a fine of not more than N7,000,000.00 or both such.
For the prosecution to succeed in the foregoing counts 1 and 2, it has to satisfy the Court that the defendant (appellant herein) without authorization intentionally gained access wholly or in part to a computer system or a network; that in gaining access to the computer or network as the case may be, the defendant obtained data that are vital to national security; and that the data so obtained was for fraudulent purposes.
In all of the above, it is obvious that the prosecution shall in addition, show that the defendant in order to commit or carry out his fraudulent intent, used an enabling device to help him avoid detection or otherwise prevent his identification or attribution of the act or commission to himself. Failure to satisfy any or all of the above factors would crash the case of the prosecution.
In their attempt to satisfy the burden of proof as placed on it by law, the prosecution fielded a sole witness,
16
one Mohammed Yusuf (PW1) who is a staff of the State Security Service and he testified that the appellant posted a comment on his (appellant) Facebook page (Nasarawamirror@mirror 1996) and that the comment is entitled “Al-Makura camps herdsmen to decimate voting population, wins senate seat”. The PW1 made a print-out of the comment because it was generating reaction among the people of the State, some of who took the statement to be true. However, on carrying out an investigation, the PW1 found out that no such thing/camp existed in Nasarawa State, consequent upon which they believed that the post was done in bad faith and to cause mayhem in the State. PW1 had a further interview with the appellant wherein the said appellant admitted to not substantiating the authenticity of his publication. The printout of the post was admitted in evidence as Exhibit P1(A) – (L), while a photocopy of the statement obtained from the appellant was admitted as Exhibit P2.
PW1 under cross examination testified that he printed Exhibit P1(A) – (L) from the Facebook page of the appellant. He added that there were conflicts between the Fulani
17
herdsmen and local farmers in Keana Local Government, Awe Local Government and Obi Local Government at the time of the publication and that the publication aggravated the tension.
In the first instance, the respondent in paragraph 4.6, page 6 of their brief of argument had contended that the defendant (appellant) with intent to commit an offence, used the domain name ‘Nasarawa Mirror’ as a device of avoiding detection or the offence being attributed to him. See also Exhibit P1. This allusion by the respondent appears rather at large to me, more so as it failed to show or expatiate on how the name was going to be a shield from detection for the appellant. It is not in doubt that the appellant was the creator of the Facebook Platform, entitled ‘Nasarawa Mirror’. There is nothing on the printed record to show that the appellant was impersonating another person or that the platform belongs to another person or authority. No person or authority was produced before the Court as the rightful claimant of the domain. It is a known fact that millions of Nigerians like the appellant, use various computer systems and gadgets or networks to
18
carry out their daily activities without being accused of cyber criminalities or like offences. It only becomes an offence of cybercrime where the user unlawfully accesses and or hacks into programs or networks designated as vital or critical National Information Infrastructure by the President. Any program(s) outside such designation remains accessible to public usage and for which the user requires no prior authority of the President to access. Under Section 3(1) of the Cybercrimes (Prohibition, Prevention etc.) Acts, 2015:
3. (1) The President may on the recommendation of the National Security Adviser, by Order published in the Federal Gazette, designate certain computer systems or networks, whether physical or virtual, the computer programs, computer data or traffic data vital to this country that the incapacity or destruction of or interference with such systems and assets would have a debilitating impact on security, national or economic security, national public health and safety, or any combination of those matters as constituting Critical National Information Infrastructure.
Going by the evidence of the sole prosecution witness (PW1),
19
together with the documentary evidence admitted in Court as Exhibits P1 and P2, the name or identity of the designated computer system(s) or networks or programs as the case may be, which the appellant unlawfully broke into or hacked was not stated. This is to say that the prosecution failed to mention any so designated computer systems or networks and possibly, the physical or virtual program, data or traffic data that are vital to Nigeria, which the appellant violated by way of hacking.
Granted that the appellant used an online Facebook Platform (Nasarawa Mirror) with over 10,000 followers to disseminate or share his comment, there is no proof that he hacked any computer system to obtain the information he published therein. According to the appellant’s uncontroverted testimony, the information or comment he shared, was sent to his account on Nasarawa Mirror from a Socio-Political group known as Solid Youth Frontier. Even the said information as sent to the appellant, was neither shown by the prosecution to be a vital data to Nigeria or that the same was obtained by hacking or cracking of designated computer systems or networks or programs.
20
Conceding that the appellant upon receipt of the information failed to authenticate same before sharing it on his Facebook Platform, all the same, the only prosecution witness and who functioned as the investigation officer of the State Security Services, in the same vein, failed to investigate the activities of Solid Youth Frontier being the group that sent the information to the appellant. See the PW1’s evidence at page 123 of the record of appeal where he admitted clearly that he did not investigate the activities of Solid Youth Frontier. It is from the provisions of Section 3 of the Cybercrimes (Prohibition, Prevention etc.) Act supra, that hacking of “designated” computer systems or networks as opposed to any computer systems or networks, derive the status of being offensive. The Nasarawa Mirror being the medium through which the appellant disseminated his comment, has not been shown by the respondent to be a designated computer system or network, Critical National Information Infrastructure (CNII) and as such sacred to the Federal Government of Nigeria. Indeed, and as rightly submitted by the learned counsel for the appellant,
21
Section 6(1), (3), 13, 24(1) and 25(1) of the Cybercrimes (Protection, Prevention etc.) Acts, 2015 must be read in conjunction with Section 3(1) and (4) thereof, in order to deduce the computer systems or networks duly designated by the President as Critical National Information Infrastructure and as such an offence punishable under the Act. It is indubitable that the Act is not intent on making access to any computer systems or networks in Nigeria unlawful. In the event, the respondent failed to prove beyond reasonable doubt the essential ingredients of the respective offences as charged on counts 1 and 2.
Now as regards count 3, the appellant is charged to have knowingly accessed and used the Nasarawa Mirror (@Mirror1996), an online platform with more than 10,000 followers and inputs inauthentic information with the intention that it will be considered and acted upon by unsuspecting members of the public as authentic or genuine and thereby committed the offence of computer related forgery punishable under Section 13 of the Cybercrimes (Prohibition, Prevention etc.) Acts, 2015. By the provisions of Section 13 of the Cybercrimes Act supra:
13. A person who knowingly
22
accesses any computer or network and inputs, alters, deletes or suppresses any data resulting in unauthentic data with the intention that such unauthentic data will be considered or acted upon as if it were authentic or genuine, regardless of whether or not such data is directly readable or intelligible, commits an offence and is liable on conviction to imprisonment for a term of not less than 3 years or to a fine of not less than N7,000,000.00 or both.
It is pertinent to point out that, access under the foregoing Section 13 of the Cybercrimes Act, supra is not limited to designated computer systems or networks alone. Rather, any person such as the appellant who accesses any computer or “Access Device” such as the appellant’s smart phone which was used to input and disseminate or share the vexed information/comment, shall be committing an offence where such information or comment is found to be inauthentic or false. Yes, the appellant as noted earlier testified that the published content was sent to his phone by the Solid Youth Frontier group. Infact, he referred to the publication as an allegation which he expressed as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
23
… A youth sociopolitical movement, Solid Youth Frontier (SYF) has allegedly linked the ongoing pogrom in the Benue/Nasarawa border of Tiv communities by herdsmen to a grand plot of Governor Umaru Tanko Al-Makura to achieve his “desperate” senatorial ambition in 2019.
The group disclosed this in a statement issued in Awe, one of the Local Governments in the State, where herdsmen are camped by Governor Al-Makura, in collaboration with the Federal Government following the ban to ‘open grazing’ in Benue State which has resulted to ongoing pogrom.
… See Exhibit P1 as copied on page 47 of the printed record of appeal.
Irrespective of the source or input, the appellant ought to have verified the authenticity or otherwise of an allegation as weighty as the foregoing, before publicizing same in his Facebook Platform. Given the already incensed polity at the time, the much the appellant would have done in the interest of the public was to ascertain the veracity of the allegation before putting it out to the public domain. Because he failed to make the necessary verification of the
24
inputted data, it follows that the appellant disseminated same trusting and intending that his followers in ‘Nasarawa Mirror’ Facebook Platform in particular and the unsuspecting public in general would believe and act on the information as if it was authentic or genuine. The appellant thereby committed the offence as charged under count 3.
On count 4 wherein the appellant was charged with intent to defraud, posted an electronic message on Nasarawa Mirror (@Mirror1996), an online platform with more than 10,000 followers, misrepresents facts which causes damages to unsuspecting members of the public and thus, committed the offence of Computer Related Fraud punishable under Section 14(2) of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015. The Section is reproduced hereunder for ease of reference and it reads:
(2) A person who, with intent to defraud, sends electronic message materially misrepresents any fact or set of facts upon which reliance the recipient or another person is caused to suffer any damage or loss, commits an offence and is liable on conviction to imprisonment for a term of not less than 5 years and to a fine of not less
25
than N10,000,000,00 or both.
Regarding the essential ingredients required in proving the said count 4, the prosecution has to satisfy the Court that the defendant (appellant):
i. with intent to defraud sent by electronic means, message which
ii. materially misrepresents any fact or set of facts;
iii. that the recipient of such message or any other person relied on it; and
iv. as a result of such reliance, the recipient or that other person suffered any damage or loss.
All 3 (three) foregoing conditions must be met for the prosecution to make a head way in the count. By referring to the message sent to him by the Solid Youth Frontier (SYF) as an allegation, it follows that the appellant did not on his part believe in the truth of the same. The message/content was not doctored or diluted in any way, rather he disseminated it as received by him. The content thus remained the message from the Solid Youth Frontier (SYF). This goes to show that the appellant neither intended to defraud nor misrepresent any fact or set of facts.
Much as the sole prosecution witness said that, the post generated reaction among the people of the
26
State because, some of them took the statement to be true, yet not a single recipient of the post was produced in Court to testify as to the effect it had on his or her psyche.
By extension, not one person came forward to say that he believed and/or relied on the information/content and that as a result of such reliance, he or she suffered any form of loss or damage. The cold fact therefore is that, the prosecution/respondent failed in the discharge of their duty to prove the ingredients necessary to ground a conviction on count 4.
On count 5, the appellant was charged with knowingly sharing/sending a message through Nasarawa Mirror (@Mirror1996), an online platform which you knew to be false for the purpose of causing enmity, hatred and needless anxiety in Nasarawa State and beyond and you thereby committed the offence of Cyberstalking punishable under Section 24(b) of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015, which Section is hereby reproduced:
24. (1) A person who knowingly or intentionally sends a message or other matter by means of computer systems or network that-
(b) he knows to be false, for the purpose of
27
causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent, commits an offence under this Act and is liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or both.
The ingredients of this offence include that:
i. the defendant knowingly or intentionally sent messages by means of computer which he knows to be false;
ii. the defendant sent the false messages for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another person.
It was the submission of the learned counsel for the respondent at paragraph 4.10, page 8 of their brief of argument that, no one is left in doubt as to the capability of Exhibit P1 (the message/content) to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to the person against whom the publication was aimed at. It is clear that the content of
28
Exhibit P1 was against the then Governor, Umaru Tanko Al-Makura of Nasarawa State, yet, neither him nor any of his cronies or any other person from the State was produced to give evidence of how he or she suffered any of the specified conditions of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation and/or enmity etc. With the failure of the prosecution to lead evidence in this regard, this charge of Cyberstalking like the preceding count 4, is bound to fail and has indeed failed.
As it relates to Cybersquatting upon which count 6 is preferred, Section 25(1) of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015 being the applicable law provides thus:
Any person who intentionally takes or makes use of a name, business name, trademark, domain name or other word or phrase registered, owned or in use by any individual, body corporate or belonging to either the Federal, State or Local Governments in Nigeria, on the internet or any other computer network, without authority or right, and for the purpose of interfering with their use by the owner, registrant or legitimate prior user, commits an offence under this Act and
29
shall be liable on conviction to imprisonment for a term of not more than 2 years or a fine of not more than N5,000,000 or to both fine and imprisonment.
The prosecution herein is expected to discharge the following burden, in order to succeed on this count:
a) that the defendant intentionally took or made use of a name, business name, trademark, domain name which is registered, owned or in use by an individual, body corporate or belonging to either the Federal, State or Local Government in Nigeria on the internet or any other computer network without authorization or right; and
b) that the defendant did the act described in the foregoing sub-paragraph for the purpose of interfering with their use by the owner or registrant or legitimate prior user as the case may be.
The prosecution neither investigated nor led evidence to disprove the appellant’s claim that the domain name “Nasarawa Mirror” was created and has been in use by him for purposes of sharing information. There is equally nothing on record to suggest the existence of a registrant or legitimate prior user of that name as to call to question
30
the activities of the appellant on the said platform. It is consequent upon this that, count 6 shall fail and has failed.
The last of the counts which is count 7 deals with the offences of Racism and Xenophobia contrary to Section 26 (1)(c) and (d) of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015 wherein it is provided that:
Any person, who with intent
(c) Insults publicly through a computer system or network:
i. Persons for the reason that they belong to a group distinguished by race, colour, descent, national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or
ii. A group of persons which is distinguished by any of these characteristics; or
(d) Distributes or otherwise makes available, through a computer system or network, to the public, material which denies or approves or justifies acts constituting genocide or crimes against humanity, commits an offence and shall be liable on conviction to imprisonment for a term of not more than 5 years or to a fine of not more than N10 Million or both such fine and imprisonment.
The totality of the evidence of the prosecution’s sole
31
witness together with the published Exhibit P1 A-L, has not, to my mind, disclosed any intent on the part of the appellant to insult or ridicule any person or group of persons distinguished by race, colour, descent, national or ethnic origin, as well as religion, neither has he used as a pretext any of these factors. The much the appellant did was to publish the message as contained in Exhibit P1 A-L which when read holistically, does not portray any bad faith on his part. Appellant, for all we know was used as a medium by the Solid Youth Frontier (SYF) to propagate their message. However, and as I already noted, it was incumbent on the appellant upon receipt of the message to confirm or verify the authenticity or otherwise of same before publicizing it and his failure to do so, is a factor that has worked against him. Being a sensitive and critical allegation capable of hitting up the polity and generating further crisis, the appellant ought to have exercised some caution by investigating the truth or otherwise, of the content, more so, as conflicts were rife in such places as Keana, Awe and Obi Local Government Areas respectively. The prosecution once again failed
32
to meet up with the burden placed on it in respect of the offence of racism and xenophobia. As rightly held by the learned trial Court, the prosecution failed to lead evidence to show that the publication was targeted at any group of persons as envisaged by Section 26(1) (c) and (d) of the Cybercrimes supra.
Count 7 being unsustainable by the evidence on record shall fail and has indeed failed.
In sum, while the appellant remains guilty as charged in count 3 for disseminating an unverified information in his Nasarawa Mirror Facebook Platform with the intent that the unsuspecting public would believe and act on same as if it was authentic or genuine, I am afraid that he is not found guilty as charged in the rest of counts 1, 2, 4, 5, 6 and 7. The sentence and conviction of the appellant by the learned trial Judge on counts 1, 2, 4, 5 and 6 respectively are hereby quashed.
Appellant’s conviction on count 3 is affirmed and by the provisions of Section 13 of the Cybercrimes (Prohibition, Prevention etc.) Act, 2015, any person who commits an offence under it, is liable on conviction to imprisonment for a term of not less than 3 years or to a
33
fine of not less than N7,000,000.00 or both. To this end, I shall sentence the appellant and he is so sentenced to a term of 3 years imprisonment or an option of N7,000,000.00 fine, thereby varying the 5 year jail term with no option of fine handed down the appellant by the learned trial Judge. For the avoidance of doubt the 3-year jail term imposed by this Court, takes effect from the date of arrest of the appellant.
Appeal succeeds in part.
IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance of the lead judgment delivered by my learned brother, Hon. Justice C. Jombo-Ofo, JCA, I agree with the reasoning and conclusions.
The Appellant was charged with 7 Counts of Cyber-crimes the Federal High Court, Holden at Lafia, Nasarawa State in Charge NO.FHC/LF/CR/06/2018 under the Cyber-crime (prohibition, Prevent. Etc.) Act, 2015. Count 3 of the charge reads as follows:
“COUNT 3:
THAT you RAYMOND AXOLO JULIUS “M” of Kurudu Orozo, Kpeyegy of FCT on or about the 9th day of January, 2018 at Laffia Local Government Area of Nasarawa State, within the jurisdiction of this Honourable Court knowingly accessed and
34
used Nasarawa Mirror (Mirror1996), an online platform with more than 10,000 followers and inputs inauthentic information with the intention that it will be considered and acted upon by unsuspecting members of the public as authentic or genuine. You thereby committed the offence of computer related forgery punishable under Section 13 of the Cyber-crimes (Prohibition, Prevention, etc.) Act, 2015.
Computer related fraud contrary to Section 14 of the Cyber-Crimes (Prohibition, Prevention, etc.) Act, 2015.” See pages 2-3 Of the Records.
The learned trial Judge delivered the judgment on the 24th day of January, 2020 holding at 153 lines 17-22 and page 154 lines 1-10 of the Records in respect of Count 3 as follows:
“I find you Raymond Akolo Julius guilty of using Nasarawa Mirror (@Mirror1996), an online platform with more than 10,000 followers and inputs inauthentic information with intention that it will be considered and acted upon by unsuspecting members of the public as authentic or genuine in contravention of Section 13 of the Cyber-crimes (Prohibition, Prevention, etc.) Act, 2015. I convict you accordingly….
I took into
35
consideration, the gravity of the offence. I sentence you Raymond Akolo Julius as follows:
5 Years imprisonment on Count 1 of Charge
6 Years imprisonment on Count 2 of Charge
5 Years imprisonment on Count 3 of Charge
5 Years imprisonment on Count 4 of Charge
3 Years imprisonment on Count 5 of Charge
2 Years imprisonment on Count 6 of Charge;
Sentence to run concurrently with effect from the date of arrest.”
The standard of proof where commission of crime is in issue, as well as the burden of proof of guilt of crime alleged to be committed by the Accused person lies in the prosecution. Sections 135(1)-(3) and 136(1)-(2) of the Evidence Act, 2011 proved thus:-
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the
36
commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
136(1) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may, in the course of a case, be shifted from one side to the other.
(2) In considering the amount of evidence necessary to shift the burden of proof, regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.”
The duty of the prosecution in all criminal trials is to produce credible evidence to prove that an offence has been committed by the person charged with its commission, beyond reasonable doubt. The accused has a corresponding duty to adduce credible evidence to contradict, discredit or disparage the evidence of the prosecution witnesses showing that the appellant had no opportunity to have committed the offence with which he was charged, or that even if he had, he did not commit the offence that is the
37
purport of.
The conviction and sentence of the appellant for Cyber-crimes by the learned trial Judge could have been upheld by this Court if there was cogent, sufficient and accepted evidence beyond reasonable doubt that the Appellant has committed the said crime and was apprehended in the course of the commission of the crime. See Njovens vs. The State (1973) 5 SC 17 at 65-67; Esangbedo vs. The State (1989) 7 SCNJ 10 and Odidika vs. The State (1977) 2 SC 21.
It would be recalled that the Appellant was charged before the lower Court in respect of the Computer Related Offences therefore, it is pertinent now to know what is a computer as defined under Section 258 of the Evidence, 2011 thus:- “Computer” means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.”
But if the evidence to be adduced was produced by a computer, Section 84(1)-(3) of the Evidence Act. 2011 provides as follows:
“(1) In any proceedings, a statement contained in a document produced by a computer
38
shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this Section are:
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) That over that period there was regularly supplied to the computer, in the ordinary course of those activities or of the kind from which the information so contained is derived;
(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) That the
39
information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(3) Where, over a period the function of storing or processing information for the purposes of any activities regularly carried on, over that period as mentioned in Subsection (2):
(a) of this Section was regularly performed by computers, whether
(b) by a combination of computers operating over that period; or
(c) by different computers operating in succession over that period, or
(d) by different combinations of computers operating in succession over that period; or
(e) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this Section as constituting a single computer; and references in accordingly. ”
Exhibit “P1(A)-(L)” which is a computer related document was tendered by the Prosecution through PW1 and admitted as Exhibit by the lower Court. Accordingly, the
40
foundation or procedure to be laid for tendering a computer-generated or processed statement in evidence is set out in Section 84(4)-(5) of the Evidence Act (supra) as follows:
“(4) In any proceedings, where it is desired to give a statement in evidence by virtue of this Section, a certificate doing any of the following things, that is to say:
(a) Identifying the document containing the statement and describing the manner in which it was produced;
(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this Subsection, it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5)
41
For the purposes of this Section:
(a) Information shall be taken to be supplied to a computer, if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) Where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
(c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.”
Therefore, “…a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section (Section 84(1)-(5) are satisfied in relation to the Statement and computer in question.”
42
Therefore, a party who seeks to tender documentary evidence in Court to prove or disprove a fact in issue has to plead whether such document was processed or generated by “one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process,” for “each shall be primary evidence of the contents of the rest” of the document. See Section 84(4) of the Act (supra).
In Alonge vs. Inspector-General of Police (1959) 4 FSC 203 Ademola, CJ.F, held at page 204 that to prove a criminal allegation beyond reasonable doubt. “…It is enough if sufficient evidence is called to discharge the onus which the law lays upon the prosecution.” But in my humble view, there is no credible evidence from the prosecution to support the charge in counts 1, 2, 4, 5 and 6 to secure conviction by the prosecution in respect of those counts. The prosecution needs objective evidence to establish the allegations in counts 1, 2, 4, 5 and 6. See Ada vs. The State (2008) 13 NWLR (Pt.1103) 149 at 166 paragraphs G-H and Ishaya vs. The State (2019) 4 NWLR (Pt. 1661) 76 at 95.
It is my candid consideration
43
that the Appellant did not establish credible evidence to contradict, discredit or disparage the evidence of the Prosecution’s Sole Witness that he did not intentionally send a message by means of computer system or network, to be false for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury and hatred. etc, to another or causes such message to be sent as found by the learned trial Judge in Count 3 of the charge to warrant this Court to interfere with the verdict delivered on the 24th day of January, 2020 in favour of the Respondent (Prosecution).
Consequently, I agree with my learned brother that this Appeal partly succeeds. Accordingly, the conviction of the Appellant on counts 1, 2, 4, 5 is hereby quashed. However, the Appellant is hereby sentenced to 3 years imprisonment in respect of count 3 with an option of N7,000,000.00 (Seven Million Naira) fine only and it will run concurrently with effect from the date of arrest
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, C. IFEOMA JOMBO-OFO, JCA and I agree with the
44
reasoning and conclusion arrived at in the lead judgment.
I agree that only count 3 was proved by the Respondent. The law is still potent that suspicion, no matter how strong cannot ground a conviction and where the law has specifically provided for an offence, the prosecution is duty bound to establish by cogent evidence the ingredients of each of the offences named in the charge. The Court below erred in convicting the Appellant in cases where no evidence was adduced by the prosecution. The prosecution listed motley of offences under the Cybercrimes (Prohibition, Prevention, etc) Act, 2015 particularly count 1 where fraudulent intention is a major feature in the ingredient and sharing of information vital to National security illegally accessed from a computer. The evidence before the Court did not indicate that the information was fraudulently accessed and shared and the computer of the appellant was unlawfully accessed. The word fraudulent in criminal law was defined in the case of NTUKS V. NPA. (2007) 13 NWLR (PT.1051) 392 AT 427 — 428 where Muhammad, JSC, succinctly explained fraud thus:
“It is said that, fraud is an intentional perversion of truth for the purpose
45
of inducing another in reliance upon it, to part with some valuable thing to him or to surrender a legal right. It is a false representation of a matter of fact, whether by word or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Fraud is a cankerworm and indeed insidious disease. It is a strong vitiating factor.”
I had to use the definition given by the apex Court so as to reinforce or fortify the meaning of the word which the Court below failed to appreciate its import, there was no deceitful act of the appellant which can come within the domain of fraud and fraudulent act to warrant the conviction.
In any prosecution, it is the duty of the prosecution to lay charges that can be supported by evidence gathered during investigation, speculation has no place in criminal jurisprudence.
I join my learned brother to allow the appeal in part and abide by the orders made in the lead judgment.
46
Appearances:
D. Anyuabaga, Esq. with him, M. A. Peter, Esq. For Appellant(s)
J. Abokee, Esq., Principal State Counsel with him, Mrs. M. U. Shekh, Senior State Counsel Ministry of Justice Lafia, Nasarawa State. For Respondent(s)
