87 UNLAWFUL USE OF COMPUTER/INTERNET/ELECTRONIC DEVICES TO AVOID IN NIGERIA

A. Introduction

This edition of Akintunde Esan’s Legal Illumination is focused on drawing attention to the things done on computer networks (whether on the internet or intranet) which in Nigeria are regarded as cybercrimes also referred to as computer crimes or frauds which the offenders are liable on conviction to imprisonment or fine or both and other penalties such as forfeiture of assets, listed below in this Legal Illumination.

B. Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015 

The principal legislation that has majorly penalised acts or activities categorised as computer crimes whether on an intranet or on the internet in Nigeria is known as the Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015 (the Act). 

The Act provides an effective, unified and comprehensive legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria. The Act also ensures the protection of critical national information infrastructure, and promotes cybersecurity and the protection of computer systems and networks, electronic communications, data and computer programs, intellectual property and privacy rights.

C. Definition of Computer, Electronic Device and Network

Basically, an internet is computer network consisting of a worldwide network of computer networks that use the transmission control protocol (TCP) and  Internet protocol  (IP) network protocols to facilitate data transmission and exchange.However, in order to have a proper understanding of computer/electronic/internet crimes under Nigerian law, it is essential to take note of the statutory definition of computer, electronic device and other computer related terminologies in the Cybercrimes Act. 

The Act defines a “computer” for the purpose of computer and electronic crimes as: 

“an electronic, magnetic, optical, electrochemical or other high speed data processing device performing logical, arithmetic, or storage functions and includes any data storage facility. All communication devices that can directly interface with a computer through communication protocols shall form part of this definition. This definition excludes the following; portable hand-held calculator typewriters and typesetters or other similar devices” 

A “computer system” is referred to as:

“any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated or interactive processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media” 

An “electronic device” means: 

“a device which accomplishes its purpose electronically. This includes, computer systems, telecommunication devices, smartphones, access cards, credit cards, debit cards, loyalty cards etc.”

Electronic communication includes: 

“communications in electronic format, instant messages, short message service (SMS), e-mail, video, voice mails, multimedia message service (MMS), Fax, and pager.”

Network means: 

“a collection of hardware components and computers interconnected by communications channels that allow sharing of resources and information.”

D. 87 Computer/Internet/Electronic Crimes/Fraud

The following acts and activities have been penalised as criminal under the Act:

1. Obtaining data vital to national security from a computer without authorised access

2. Obtaining business secrets and classified information from a computer with authorised access

3. Using electronic devices to evade detention of unauthorised access to a computer

4. Trafficking of computer password.

5. Using a Cybercafé computer for electronic or online Fraud.

6. Hindering of the functioning of a computer System.

7. Intercepting electronic messages, emails and electronic money transfers.

8. Tampering with critical infrastructure/emails.

9. Willful misdirection of electronic messages.

10. Unlawful interceptions of the function of a computer system or communications network.

11. Holding back electronic mails or payments received in error/ theft of electronic devices.

12. Manipulating data in  a computer

13. Sending fraudulent electronic messages

14. Fraudulent franking of electronic messages

15. Manipulation of computer or electronic payment devices

16. Diverting of electronic mails by employees of banks or financial institutions.

17. Conspiring to perpetrate fraud using computer network.

18. Theft of electronic devices.

19. Stealing of terminal.

20. Stealing Automated Teller Machine (ATM).

21. Attempts to steal Automated Teller Machine (ATM).

22. Unauthorized modification of computer systems and network data.

23. Unauthorized Modification hindering the functioning of a computer system.

24. Forging of electronic signature.

25. Cyber Terrorism: Using a computer system/network for terrorism.

26. Financial institutions authorising more than one Access

27. Issuance of  false electronic or verbal messages by employees of financial institution

28. Failure to reporting of cyber threats to National Computer Emergency Response Team (NCERT)

29. Identity theft and impersonation

30. Identity theft of employer, staff, service providers and consultants

31. Fraudulent or dishonest use electronic signature, password or unique Identification Feature.

32. False statement on identity for procuring the issuance of a card. 

33. Producing, offering, distributing, procuring or possessing child pornography.

34. Unsolicited electronic distribution of pornographic images.

35. Engaging in sexual activities with a child through a computer network.

36. Recruiting, inducing, coercing, exposing, or causing a child to participate in pornographic performances.

37. Cyberstalking: Sending of offensive electronic images and messages.

38. Electronic Assault: Transmission of communication containing threat to life, kidnap or harm.

 

39. Cybersquatting: Electronic and Online Passing Off and Infringement of Intellectual Property

40. Racist or xenophobic contents

41. Making available, through a computer system or network, to the public, material which denies or approves or justifies acts constituting genocide or crimes against humanity.

42. Attempt to commit any of the offences listed.

43. Conspiracy, aiding and abetting the committing of any of the offences listed.

44. Connivance of employee of a financial institution with anyone to perpetrate fraud using computer system(s) or network

45. Making a computer device or program available to commit an offence under the Act

46. Providing password or access code to access a computer to  commit an Offence under the Act

47. Making available device or program designed to counter security measures in order to commit any of the offences listed or under the Act.

48. Possessing device or program with intent to commit an offence under the Act 

49. Unauthorised disclosure of password for any unlawful purpose or gain.

50. Providing of device, program, password or access code used in committing any of offences listed or under the Act which results into loss or damage.

51. Using electronic tools to retrieve password illegally.

52. Making, forging, altering, or counterfeiting of electronic devices.

53. Forging and  illegal use of consumers security codes  by Service Providers – 

54. Breach of confidence by service providers.

55. Corporate offence occasioned by the commission or omission of a management staff.

56. Manipulation of ATM/POS Terminals.

57. Connivance to defraud using ATM or Point of Sales Device.

58. Failure of employee to relinquish or surrender all codes and access rights.

59. Failure to surrender all codes and access rights.

60. Phishing: This is the criminal and fraudulent process of attempting to acquire sensitive information such as usernames, passwords and credit card details, by masquerading as a trustworthy entity in an electronic communication  through emails or instant messaging either in form of an email from what appears from your bank asking a user to change his or her password or reveal his or her identity so that such information can later be used to defraud the user.

61. Spamming: This is an abuse of electronic messaging systems to indiscriminately send unsolicited bulk messages to individuals and corporate organizations.

62. Spreading of computer virus.

63. Using electronic card to fraudulently obtain cash, credit, goods or service. 

64. Using counterfeit or unauthorised access device or access device of another. 

65. Stealing of an electronic card.

66. Possession of lost electronic card.

67. Using electronic card as a fraudulent security for a debt.

68. Signing for a electronic card.

69. Use of forged or expired electronic card or card obtained fraudulently or used without Consent. 

70. Accepting a forged or expired electronic card or card obtained illegally to pay for goods or services.

71. Failure to furnish good or services paid for with electronic card.

72. Employee/agent of a creditor issuing to an electronic cardholder a card transaction Record of Sale for a sale which was not done or made.

73. Authorising the remitting of an electronic card transaction Record of Sale to a creditor for a sale which was not done or made.

74. Possession of a counterfeit of the electronic card of another person.

75. Involvement in the manufacturing of counterfeit electronic cards

76. To falsely alter any invoice for money, goods or services, obtained by use of an electronic card after the Invoice has been signed by the cardholder.

77. Making available the particulars of an electronic cardholder without the prior written permission of the Cardholder.

78. Possession of stolen electronic card. 

79. Purchase or sale of electronic card of another.

80. Use of fraudulent device or attachment, e-mails or websites to obtain electronic card particulars.

81. Fraudulent redirection of funds transferred electronically.

82. Failure of financial institutions to establish Identity of customers before executing electronic instructions. Unauthorized debit to be reversed within 72 Hours.

83. Committing any of the offences listed or under the Act against any information infrastructure designated as a critical national information infrastructure in Nigeria.

84. Failure to retain traffic data and subscriber information for 2 years by service providers. 

85. Failure of law enforcement agency bound to use released subscriber’s data for legitimate use only.

86. Failure of law enforcement agents/service providers to respect right to privacy under the constitution.

87. Failure of service provider to disclose Information requested by any law enforcement agency. 

E. Penalties for Computer / Internet / Electronic Frauds/Crimes in Nigeria

The penalties for all the computer /internet/ electronic crimes/frauds listed above are as follows:

(1) Generally, offenders are liable on conviction to imprisonment or fine or both; and including:

(a) Forfeiture of Assets to the Federal Government of Nigeria:

(i) Assets traceable to Proceeds of Computer Crime.

(ii) Computers used to commit an offence.

(iii) Assets or Properties in a Foreign Country acquired with Proceeds of Computer Crime.

(b) Winding Up of Convicted Corporate Service Provider. 

(c) Cancellation/Withdrawal of International Passport of any person convicted under the Act.

(d) Payment of Compensation or Restitution to Victim.

i) Refund of the Money obtained by Fraud.

ii) Return of the Property obtained by Fraud.

iii) Pay Monetary Equivalent of the Property where return is impossible.

iv) Enforcement of Order of Restitution in a Civil Action.

F. Conclusion

Employees in charge of computers used for office businesses should beware that employers can get them prosecuted and jailed or fined for the damages caused to their business or company due to their unlawful operations or activities on their office computer network. Ignorance of the law will not excuse an offender from the punishment for engaging in a penalised act. Forewarned is forearmed.

If you or your organisation is in need of further legal illumination on computer/internet/electronic crimes/frauds or on a dispute on an electronic transaction/contract, you may contact Akintunde Esan the author of 86 UNLAWFUL USE OF COMPUTER/INTERNET/ELECTRONIC DEVICES TO AVOID IN NIGERIA and E-COMMERCE: FORMATION, VALIDITY AND ENFORCEMENT OF ONLINE AND ELECTRONIC CONTRACTS IN NIGERIA for further legal illumination.

Akintunde Esan (The Legal Adviser Online) is a Legal Practitioner/Consultant and Chartered Mediator. He is the Managing Partner at Ase Olodumare Chambers a Lagos, Nigeria based Law Firm, providing online and offline legal advice, services and solutions to legal issues.

87 UNLAWFUL USE OF COMPUTER/INTERNET/ELECTRONIC DEVICES TO AVOID IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

Click the link below to view:

E-COMMERCE: FORMATION, VALIDITY AND ENFORCEMENT OF ONLINE AND ELECTRONIC CONTRACTS IN NIGERIA

ILLUMINATION ON RAPE AND OTHER SEXUAL OFFENCES IN NIGERIA

1. Introduction

 

Sexual aggression constitutes a violation of the victim's fundamental human rights, as it often involves detaining, restraining of the movement and physical assault of the victim.

It is a form of assault on the dignity of the victim/survivor by a sociopath who sees women most especially as a sexual territory to be brutally subdued and looted. 

Rape is a sexual aggression and the effect on the victim is very deep. Most of the victims suffer the pain in grave silence, in order not to subject their dignities to further assault by those who in most cases see them as accomplices rather than victims of sexual aggression or violence. 

This edition of Akintunde Esan’s Legal Illuminations focuses on providing illuminations on Nigerian jurisprudence on rape and some relevant provisions of the law on sexual offences, in order to provide a first aid legal assistance to the victims/survivors and prosecutors of rape and sexual violence in Nigeria. 

2. Definition and the Nature of the Offence of Rape[1]

 

"The act of rape is by nature unlawful because the concept involves an aggressive carnal knowledge of a female without her consent. Consent in this context must be devoid of any form of external influence. A child who is under age is not however capable of giving consent. Rape is by nature grave, devastating, traumatic; it also reduces the totality of the victim's personality. 

Several definitions given to rape are all characterized by an absence of consent as a common feature. The Nigerian Supreme Court has defined rape in a number of cases as:

''An unlawful sexual intercourse with a female without her consent. It is an unlawful carnal knowledge of a woman by a man forcibly and against her will. It is the act of sexual intercourse committed by a man with a woman who is not his wife without her consent."

"an unlawful carnal knowledge of a woman or girl without her consent or with her consent if the consent is obtained by force or by means of threat or intimidation of any kind or by fear or harm, or by means of false and Fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband."

In summary therefore, rape can be interpreted as an unlawful carnal knowledge or non-consensual sex; that is, penetration without consent. 

3. The Facts which must be proved to Establish the Offence of Rape[2]

 

"The law is settled and well-grounded that the prosecution has the burden and duty to prove the accused person guilty of the following ingredients in order to sustain the conviction of the offence of rape: 

a) that the accused had sexual intercourse with the victim; 

b) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; 

c) that the victim was not the wife of the accused; 

d) that the accused had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not. 

e) that there was penetration. 

4. The Most Essential Ingredient in the Proof of Rape

 

The most essential ingredient of the offence of rape is penetration, the extent no matter how slight will serve sufficient proof. It is well accepted and settled that penetration, with or without emission, is sufficient even where the hymen is not ruptured. The slightest penetration has served as sufficient to constitute the act of sexual intercourse[3].Hymen is defined as: "the piece of skin partly covering the vagina of a woman who had never has sex[4]". 

5. What amounts to Sufficient Penetration in Proof of Rape

 

Nigerian Case law is replete with authorities that even the slightest penetration will be sufficient to constitute the act of sexual intercourse. Thus, even where penetration was proved but not of such a depth as to injure the hymen, it has been held to be sufficient to constitute the crime of rape[5]. 

Thus, it is settled that, the offence of rape is deemed complete, upon proof of penetration of the penis into the vagina. In the English case of R. U. Marsden[6] it was held that emission is not a necessary requirement to prove penetration. 

It should be noted that, the discharge of "whitish", "greenish", "reddish" or whatever colour of fluid in a rape offence, is not considered credible evidence for establishing the offence of rape[7]. 

6. Does the Law Requires Witnesses to Prove Rape

 

On whether the proof required to establish the offence of rape must be based on an independent credible corroborative evidence. It should be noted that no law in Nigeria, as of now that says that corroboration is necessary. It is however, desirable to get the evidence of the prosecution strengthened by other implicating evidence against the accused.[8]However, whether a particular evidence can be corroborated, is for the trial Judge to decide[9]. 

7. Whether the Sworn Evidence of a Minor requires Corroboration

 

The law is trite and well settled that a minor needed no corroboration of her evidence which was sworn on oath. In the Supreme Court case of Ogunbayo v. the State (supra) it was held that a sworn evidence of a minor requires no corroboration[10]. Thus, it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. 

In Upahar & Anor v. State (2002) LPELR-5937(CA) ;  (2003) 6 NWLR (Pt. 816) 230 that in Nigeria, a person cannot be convicted of rape of a girl under 14 years of age upon the uncorroborated testimony of one witness[11].

 

8. Relevant Statutory Provisions on Rape and Sexual Offences

 

a) The Crime of Rape under the Criminal Code Act

 

The Criminal Code Act applies in the Southern States of Nigeria. Section 357 of the Code defines rape thus:

“Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of false threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act, or in case of a married woman, by impersonating her husband is guilty of an offence called rape”.

b) Carnal knowledge

 

When the term "carnal knowledge" or the term "carnal connection" is used in defining an offence, it is implied that the offence. so far as regards that element of it, is complete upon penetration. "unlawful carnal knowledge" means carnal connection which takes place otherwise than between husband and wife[12]. 

 

c) Immature Age

Under Section 30 of the Criminal Code a person under the age of seven years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act, omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.    

A male person under the age of twelve years is presumed to be incapable of having carnal knowledge, though he may, be convicted of indecent assault[13]. 

d) The Crime of Rape under the Penal Code Act 

 

The Penal Code Act applies in the Northern States of Nigeria. Section 282 and 283 of the Penal Code. No. 18 of 1959, designated as Cap 89 in the Laws of Northern Nigeria, 1963, relate to the offence of rape and its punishment. The Sections provide as follows: 

282 (1) A man is said to commit rape who, save in the case referred to in Sub-Section (2) has sexual intercourse with a woman in any of the following circumstances: 

(a) against her will: 

(b) without her consent; 

(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; 

(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; 

(e) with or without her consent, when she is under fourteen years of age or of unsound mind; 

282 (2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty. 

From the above provisions of the Criminal and Penal Codes, it is glaring that under Nigerian law:

• only a man is capable of committing the crime of rape.
• although a woman cannot commit the offence of rape under the Penal Code Act, she may however be charged by the prosecution with abetting rape under section 83 of the Code.
• the use of the term “carnal knowledge” under the Criminal Code Act suggests that penetration of the vagina could be done by penetration with a foreign object, while the use of the term “sexual intercourse” under the Penal Code Act suggests that only a penis can penetrate a vagina.
• Whereas a male person under 12 years old is presumed incapable of having carnal knowledge under the Criminal Code Act, there is no such provision the Penal Code Act. 
• There is, therefore, nothing to stop the prosecution from charging a child over 7 years of age, for example, for rape if it can be shown that he has attained a sufficient maturity of understanding to judge the nature and consequence of his act.
• Consent is an act of reason and involves a presumption that the person giving a consent has weighed up the pros and cons of the matter which she has consented.

9. Attempt to Commit Rape

Under section 218 of the Criminal Procedure Code Law of Northern Nigeria, it was held that, the learned trial Judge, had power to convict the 1st appellant for attempted rape, in so far as the ingredients of the full offence of rape are not satisfactorily established.[14]

 

10. Punishment of Rape

 

Any person who commits the offence of rape is liable to imprisonment for life, with or without caning. S. 358.Criminal Code Act

 

Whoever commits rape, shall be punished with imprisonment for life or for any less term and shall also be liable to fine. S. 283 Penal Code Act.

 

Any attempt to commit the offence of rape or sexual assault by penetration commits a felony and is liable on conviction to imprisonment for fourteen (14) years 

Any person who attempts to commit the offence of rape is guilty of a felony, and is liable to imprisonment for fourteen years, with or without caning. S. 359. Criminal Code Act.

In Lagos State under S.260 of the Lagos State, Criminal Law, 2011 (Laws of Lagos State, 2015) any man who has unlawful sexual intercourse with a woman or girl without her consent,commits the offence of rape and is liable on conviction to imprisonment for life.

Any person who has sexual intercourse with a child commits a felony and is liable on conviction to imprisonment for life. S.137 of the Lagos State, Criminal Law ,2011.

11. Marital Rape

 

There is no provision for marital rape in Nigerian law in as long as the wife has attained to puberty.

In R. v. Miller[15], it was held that until that valid subsisting marriage is dissolved; the husband cannot be convicted of rape.

12. Whether only a Woman can be Raped

 

The wordings two major criminal codes in Nigeria, the criminal and penal Codes seem to suggest that only a woman or girl may be raped and S.360 of the Criminal Code also suggest that only the female gender can suffer indecent assault from its wordings that: 

“Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour and is liable to imprisonment for two years.” 

 

However, under the Lagos State Criminal Law, 2011 the offences of sexual penetration without consent, sexual assault and harassment are not limited to the male gender alone but include both genders by the use of the phrase “any person” which is unisex. Section 265 criminalised the engagement in sexual activity without the consent of the other person:

“any person who causes another to engage in a sexual activity without that other person’s consent commits a felony and is liable on conviction to imprisonment for five (5) years ” and “where the sexual activity caused involved sexual penetration, the offender commits a felony and is liable on conviction to imprisonment for life”

13. Sexual Assault by Penetration other than Vaginal Penetration

 

It should be noted that while the Criminal and Penal Codes do not recognise the penetration other than vaginal penetration as one of the elements which may constitute the offence of rape, it is a crime under Section 261 of the Criminal Law of Lagos State to sexually penetrate any opening in the body of another without the consent of the person:

“Any person who penetrates sexually, the anus, vaginal, mouth or any in the opening in the body of another person with a part of his body or anything else, without the consent of the person commits a felony and is liable on conviction to imprisonment for life.”

This section seems to include female-male rape, male-male rape, female-female rape.

 

14. Sexual Assault  without Penetration

 

Any person who sexually touches another person with any part of his body or with any object without his consent commits felony and is liable on conviction to imprisonment for three (3) years. S.263

 

15. Sexually Assault by Persons in Positions of Authority

 

Any consent to sexual intercourse purportedly given by a girl under the age of 16 to her teacher, guardian or any person entrusted with her care or education is not valid consent[16]. 

16. Sexually Harassment

 

Sexual harassment is unwelcome sexual advances, request for sexual favours, and other visual, verbal or physical conduct of sexual nature which when submitted to or rejected- 

a) Implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interfere with the person’s work or educational performance; 

b) Implicitly or explicitly suggests that submission to or rejection of conduct will be a factor in academic or employment decisions; or 

c) Creates an intimidating hostile or offence learning or working environment.

Any person who sexually harass another commits a felony and is liable on conviction to imprisonment for three (3) years. 

17. CONCLUSION

 

Obviously, there is the need to review the laws on rape and sexual violence in Nigeria to reflect modern day sexual realities, where either of the genders can be the sex aggressor using the penis, breast, fingers, mouth or any other body parts as well as sex objects such as sex toys. 

Have you been raped or falsely accused of raping and thus confused or feeling humiliated and you need to pour out your mind to an understanding legal mind for guidance in seeking for redress, you may contact Akintunde Esan or Ase Olodumare Chambers for further illumination on your predicament. 

Akintunde Esan is a top-rated leading online legal consultant in Nigeria. He is the Managing Partner, at Ase Olodumare Chambers, a Lagos based  Law Firm.

ILLUMINATION ON  RAPE AND OTHER SEXUAL OFFENCES IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

---

[1] See Per Ogunbiyi, J.S.C. ISA v. Kano State (2016) LPELR-40011(SC), Pp. 10-11, Paras. D-D.

[2] See Ogunbayo V. State (2007) 8 NWLR (Pt 1035) 157; Upahar v. State (2003) 6 NWLR (pt 816) 230; State V. Ojo (1980) 2 NCR 391; Okoyomon V. State (1973) 1 SC 21; State V. Anolue (1983) 1 NCR 71 and Iko V. State (2001) 14 NWLR (Pt.732) 221.

[3] See Iko V. State, Ogunbayo V. State and State V. Ojo (supra) ; Jegede V. State (2001) 14 NWLR (Pt.733) 264.; Per Ogunbiyi, J.S.C. ISA v. KANO STATE (supra) P. 12, Paras. D-F

[4] See Oxford Advanced Leamer's Dictionary, Special Edition at page 585." Per OBADINA, J.C.A. Upahar & Anor v. the State (2002) LPELR-5937(CA) P. 27, Paras. B-C

[5] See: The State v. Ojo (1980) 2 NCR 391 at 395; Jegede V The State (2001) 7 SCNJ 135 at 141.

[6] (1891) 2 QB 149 at 150, per Lord Coleridge, C.J.

[7] Per Muhammad, J.S.C. Isa v. Kano STATE (2016) LPELR-40011(SC), P. 30, Paras. B-E

[8] See: Reekie V. The Queen (1954) 14 COACA 501 at 502; State V. Ojo (1980) 2 NCR 391; Ogunbayo V. State (2007) 8 NWLR (Pt.1035) 157; Per Muhammad, J.S.C. Isa v. Kano State (supra), P. 30-31, Paras. F-A

[9] per Ogbuagu, J.S.C. Ogunbayo V. The State (2007) LPELR-2323(SC) P. 20, paras. B-C.

[10] Per OGUNBIYI, J.S.C. Isa v. Kano State (supra) (P. 16, Paras. C-D)

[11] See section 218 of the Criminal Code

[12] Section 6

[13] See section 176 of the Criminal Procedure

[14] Upahar & Anor v. the State (supra) Per Obadina, J.C.A.(P. 37, Paras. A-B)

[15] (1954) 2 282

[16] Section 283 Penal Code Act

Click to view :

GROUNDS FOR GRANTING DIVORCE IN NIGERIA  

THE RIGHT TO BAIL AS A CONSTITUTIONAL RIGHT IN NIGERIA

Oguntade J.C.A (as he then was) in contributing, his view on the need for the preservation of the freedom or liberty of man in the case of Comptroller of Nigerian Prisons v. Adekanye (1999) 10 NWLR (Pt. 623) 400 held at 426 – 427 paras G-B as follows:


“Freedom is no doubt the greatest gift or heritage of man. Omnipotence created man and accorded him with divine freedom. Men are born free with liberty to think what he will, to say what he will and to go where he likes, all in a lawful manner, without let or hindrance from any other persons, private or governmental authorities. It therefore follows that, generally, detention of a man by a fellow man is a violation of the law of God and man.I am not oblivious of the fact that there are checks and balances to the series of freedom given to man. To the extent to which a man must not do his things in a way calculated to injure or adversely affect the exercise of the freedom of another man, his own freedom is limited. The whole of Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10 laws of the Federation of Nigeria 1990 is in tune with the universal concept of criminal law in a civilised society that upholds the rule of law as a way of life; by it, accessibility to the court and even to the highest court is guaranteed. to the citizen whose fundamental rights are threatened; his right to presumption of innocence until he is proved guilty by a court of competent jurisdiction is assured; his right to defence which includes the right to be defended by a counsel of his choice is offered to him on a platter of gold and his right to be tried within a reasonable time by an impartial court or tribunal remains sacrosanct. That is the continental law Nigeria voluntarily subscribed to. It came into force on the 17th day of March 1983.

In order to preserve the liberty of an accused person especially with the presumption of the law in Nigeria that, an accused person is innocent until he is proved guilty by a court of competent jurisdiction, a legal instrument called bail was evolved in tune with the universal concept of criminal law, in a civilised society that upholds the rule of law as a way of life.


A bail is a security required by a court for the release of a prisoner as a guarantee that the prisoner would appear in court at a set date, it includes security provided for the release of an accused person in the custody of the Police or a law enforcement agency as a guarantee for his or her future appearance. The security is usually in the form of a cash deposit or a bond, while cash bail is applicable in some jurisdictions, it is not applied in Nigeria.


In practice, the accused person is only required to enter into recognisance in the sum fixed by the Court or law enforcement agency. It is not a requirement of law in Nigeria that he should deposit money before bail is granted. A Recognisance is a promise to pay a sum of money by way of security if the accused fails to appear in court. Additionally, instead of Recognisance the accused may be required to provide a surety i.e. a person who undertakes to pay a sum of money if the accused does not appear in court.


(1)                Bail is a Basic Right of Every Citizen of Nigeria


·                     Bail is a basic right of every citizen of Nigeria who is charged with a criminal offence by virtue of section 35(1) of 1999 Constitution and Administration of Criminal Justice Act. Thus, every person is entitled to his personal liberty and no person is to be deprived of his liberty except as stipulated by the Constitution and or statute. Alaya v. State (2007) 16 NWLR (Pt. 1061) 483 at 500, paras. F - G; 501-502, paras. G - B per Agube J.C.A.Onyirioha vs. I.G.P. (2009) 3 NWLR (Pt. 1128) 342 at 362 para. H


·                     Bail to a person accused of an offence other than a capital offence is a basic right and undoubtedly the right to release before trial is much more basic if the trial is going to last more than two months for non-capital offences. Obekpa vs. C. O. P (1981) 2 NCLR 420 at 422 para. 3  Idoko J.


·                     Bail is a constitutional right under Section 35(1) and 36(5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria. It is a right of an accused person, except where the alleged offence is a capital offence accused person is not usually denied bail, except where special circumstances genuinely exist. Bolakale vs. State (2006) 1 NWLR (Pt. 962) 507 at 518 B per Muntaka – Coomassie J.C.A.


·                     A person cannot be detained for more than 24 hours before he is released on bail or taken to court.


·                     Section 35(1) and 36(5) and (6) of the 1999 Constitution of the Federal Republic of Nigeria provides that a person shall not detained without a court order to that effect. This provision guarantees the right not to be arrested and imprisoned arbitrarily.


·                     The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. Suleman vs. C.O.P Plateau State (2008) 8 NWLR (Pt. 1089) 298 at 322 paras D-E. per Tobi, J.S.C.


(2)              Bail Pending Trial


·                     The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. Suleman vs. C.O.P Plateau State (2008) 8 NWLR (Pt. 1089) 298 at 322 paras D-E. per Tobi, J.S.C.


(3)              Suffocating Bail Conditions


·                     It is to be realized that an accused person who jumps bail does so at his own peril. Hence the risk or strong likelihood that an accused person may likely jump bail should not be used as a sole bulwark for denial of bail or basis for imposing suffocating bail conditions against such an accused person, until the occurrence of such an untoward development. Thus, if an offence is readily bailable, it is both legal and logical that the conditions for bail attached thereto, must be such as will engender positive utilization of the grant of the said bail to the fullest extent whenever it is granted.Ibori vs. FRN & Ors (2009) 3 NWLR (Pt. 1127) 94 at 106.


·                     It does not speak or say well of the courts or our justice system, that when bail is granted with one hand it is surreptitiously retrieved, withdrawn or taken away with the other by the imposition of unwieldy and inhibitive bail conditions. Hence, courts must always be conscious and approach the issue of grant of bail with an element of liberalism and circumspection. Eyu v. State (1988) 2 NWLR (Pt.78) 602, Danbaba v. State (2000) 14 NWLR (Pt.687) 396.


·                     Conditions attached to grant of bail must not be suffocating, unbearable, unworkable and unduly burdensome.Danbaba v. State (2000) 14 NWLR (Pt.687) 396.


(4)              Innocent Until Proved Guilty in Court


·                     An accused is presumed innocent until proved guilty in court. This presumption of innocence of an accused person as a constitutionally entrenched provision implies that, no matter how seemingly serious, grave, heinous or unconscionable an alleged offence or offences committed by an accused person might look, he is still entitled to that presumption as an article of faith  and a matter of right guarantee by the Constitution. Eyu v. State (1988) 2 NWLR (Pt.78) 602, Danbaba v. State (2000) 14 NWLR (Pt.687) 396.


·                     In Onyirioha vs. I.G.P. (supra) at 376-377 Court of Appeal per Ogunwunmiju, J.C.A. held as follows: “I am of the fervent view that onerous provisions in S. 18(1) of the Advance Fee Fraud and Other Related Offences Amendment Act is a violation affront to the provisions of S. 35(1), S. 36(5) and (6) of the 1999 Constitution and against Article 7 of the African Charter on Human and Peoples’ Right Enforcement Act, Cap. 10 Laws of the Federation and it should be struck down”.


·                     In the case of Comptroller of Nigerian Prisons v. Adekanye (supra) at 423 paras. D-E it was held that Section 26 of Failed Bank Decree No. 18 of 1994 was in its effect  oppressive and totally destroys the presumption of innocence in favour of an accused. It was too harsh and ensured that a person accused of committing an offence under the Decree does not get bail at all. It was held to bad legislation and clearly offended Article 7, (1)(b) of African Charter on Human Rights Act, Cap 10, Laws of the Federation 1990.


(5)              Bail should not be Withheld  as Punishment


·                     It has been well established that bail is not to be withheld merely as punishment, and furthermore that the requirements as to bail are primarily to secure the attendance of the accused persons at the trial. Dogo vs. C.O.P (1980) 1 NCR 14 at 19 para 10-15

To be continued

THE RIGHT TO BAIL AS A CONSTITUTIONAL RIGHT IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)