Background

– Nigerian singer, Azeez Adeshina Fashola, better known as Naira Marley, has been in the news lately, not for the beauty of his talents, but all for the wrong reasons.

– It was reported that on the 10th of May, 2019, the Economic and Financial Crimes Commission (“EFCC” or “the Commission”) in an early morning raid, arrested Naira Marley, Zlatan Ibile and three others over their alleged connection to cybercrimes.

– Subsequent to the arrest, the EFCC tabled a Charge of 11 counts filed at the Federal High Court, Lagos against Naira Marley. On Monday 20th May, 2019 Naira Marley was arraigned. He pleaded not guilty to the charges. The presiding Judge, Hon. Justice Nicholas Oweibo, thereafter ordered that the Singer be remanded in prison until 30th May, 2019 when his bail application will be heard.

– The eleven-count Charge levelled against Naira Marley borders on offences relating to cybercrimes as provided for under the Cyber Crimes (Prohibition, Prevention, Etc) Act, 2015 (“Cybercrimes Act” or “the Act”). The Preamble to the Act clearly states the purpose of the Act which is “to provide for the prohibition, prevention, detection, response, investigation and prosecution of cybercrimes; and for other related matters. 

– The gist of the Charge is that Naira Marley and one Yad Isril (said to be at large) were alleged to have conspired and attempted to use some access cards issued to other persons in a bid to obtain gain. Also, that Naira Marley and the said Yad Isril possessed some counterfeit cards issued to some other persons (including one Nicole Louise Malyon and Timea Fedorne Tatar) with an intent to defraud. It was further alleged that Naira Marley attempted to retain (and did actually retain) possession of more than two cards issues in the name of different cardholders and which cards were retained under circumstances which constitute card theft.

4 things the EFCC must prove

Under the Nigerian Criminal Law, every offence for which a person may be charged under a particular written law must contain certain elements called the ingredients of the offence. Once these ingredients are established, i.e., proved, the accused person may then be consequently found guilty, convicted and accordingly sentenced in line with the prescriptions of the particular law governing the offence.

These ingredients generally must show the commission of the physical act by the accused person (i.e., the physical element called the actus reus) and the mental element such as the intention to commit the act or knowledge (called the mens rea). Most times, while the physical element may be easier to prove, the mental element may be difficult. No one, not even the devil, knows the heart of man. Oftentimes, the courts would rely on the entire evidence led against the accused person and if convinced, would stick the accused person with the requisite intention. For instance, in a case of murder, a man beat his neighbour to the extent that the neighbour could barely walk and hear with his ears, he was held to have intended to cause grievous bodily harm on the neighbour, making him liable for murder of the neighbour who eventually died two days after the incident.

In the instant case, from the eleven-count Charge levelled against Naira Marley, the EFCC must established the following ingredients:

1) In the case of conspiracy, prior agreement is necessary. The EFCC must prove that Naira Marley and the said Yad Isril actually had a prior agreement. Now, it is not enough that Naira Marley and Yad Isril had an agreement, the agreement must relate to the commission of the alleged offences of cybercrime, that is, to use some access cards issued to other persons in a bid to obtain gain. The interesting thing about the offence of criminal conspiracy is that once the agreement is proved, the offence is proved. It is immaterial that the offence was not actually committed. The law simply punishes the agreement to commit same.

2) In the case of attempt, the EFCC must prove the actual taking of a substantial step towards committing the alleged cybercrimes, that is, the attempt to use some access cards issued to other persons in a bid to obtain gain. The EFCC must also prove the actual attempt to retain possession of more than two cards (issued in the name of different cardholders) under circumstances which constitute card theft. Attempt is one of the types of inchoate offences. Once the attempt alone is proved, the offence is proved. The EFCC need not prove the actual commission. It is immaterial that the offence was not actually committed. The law punishes the attempt to commit same.

• The EFCC currently charged Naira Marley under Section 27(1) (a) and (b) of the Cybercrimes Act for conspiracy and attempt. The Section provides that “Any person who – (a) attempts to commit any offence under this Act; or (b) aids, abets, conspires, counsels or procures another person(s) to commit any offence under this Act: commits an offence and shall be liable on conviction to the punishment provided for the principal offence under this Act.” 
• From the Charge before the Court, EFCC alleges that Naira Marley and Yad Isril conspired and attempted to use some access cards issued to other persons in a bid to obtain gain contrary to Section 27(1) (a) and (b) of the Cybercrimes Act and punishable under Section 32 thereof. Section 32 creates and punishes the offence of phishing, spamming and spread of computer virus and prescribes the punishment of 3 years imprisonment or a fine of N1,000,000.00 or both. It appears from the wordings of the Charge that the offence of phishing was the target against Naira Marley. The trial will reveal more, if any. Phishing is a method of trying to gather personal information using deceptive e-mails, websites and other related means. 

3) Naira Marley is also being charged for possession of some counterfeit cards issued to some other persons (including one Nicole Louise Malyon and Timea Fedorne Tatar) with an intent to defraud. The offence is contrary to and punishable under Section 33 (9) of the Cybercrimes Act. Section 33 generally deals with electronic cards related fraud. The ingredients the EFCC must prove here is that Naira Marley was in actual possession of some counterfeit cards issued to some other persons. It does not end there. The Commission must also show that Naira Marley’s possession of same was with the intention to defraud. 

If found guilty, Naira Marley shall be liable on conviction to imprisonment for a term of not more than 5 years or to a fine of not more than N3,000,000.00 or to both such fine and imprisonment.

4) The EFCC must prove that Naira Marley retained possession of more than two cards issued in the name of different cardholders and which cards were retained under circumstances which constitute card theft (Section 34 of the Act). Now, it is not enough to show that Naira Marley retained possession of the said cards. The EFCC must prove that Naira Marley retained same in circumstances constituting card theft. Although intention to commit card theft was not expressly stated in the Act, yet, the clause, retention of the cards under “circumstances constituting card theft” can only reasonably mean retention of the card with the intention to commit card theft. The EFCC must prove this.

If found guilty, Naira Marley shall be liable on conviction to 3 years imprisonment or to a fine of one N1,000,000.00 and shall further be liable to repayment in monetary terms the value of loss sustained by the cardholder or forfeiture of the assets or goods acquired with the funds from the account of the cardholder.

Further Remarks

It is to be noted that in criminal cases, the allegation levelled against the accused person such as Naira Marley must be proved beyond reasonable doubt. This of course, does not mean proof beyond every shadow of doubt.

It was reported that Naira Marley, sometime ago, called on Nigerians to pray for *“Yahoo” boys rather than condemning them. He was quoted as allegedly saying that, “All you guys, all the money in your pockets, all the money you spend, you think it’s the government that is making the money go round?” While this comment can be reasonably said to be unacceptable given its apparent support for internet fraud, it must be noted that Naira Marley cannot be convicted based on this reckless and thoughtless comment alone.

In his popular music video, he had asked, “Am I a Yahoo Boy?” EFCC now seeks to answer that question in the affirmative and to urge the Court to confirm the answer. The EFCC can only successfully cook the conviction and sentencing of Naira Marley with the ingredients identified above. Otherwise, the action must fail.

*A “Yahoo” person is commonly known in Nigeria as a person involved in internet fraud. The writer wishes to use this opportunity to reiterate that it is sad that the name of a reputable firm like Yahoo is now used to connote such vice. The origin of this can be traced to the fact that many years ago, Yahoomail was the most popular email service provider in Nigeria. These internet fraudsters used Yahoomail a lot in executing their plans until Yahoo stepped in to check the development. Today, it is almost difficult for any internet fraudster to operate using Yahoomail.

Featured Image Credit: The Nation.