Notwithstanding the inadequacies of cyber law in Nigeria, the crimes have been on increase. And when any one is caught in the act, it becomes a problem on how to resolve some procedural problems. The issues that may arise in the prosecution kind of offence would be looked at under this heading.
Jurisdictional Issues:
Computer crime often has
extraterritorial aspect to it that can give rise to complex jurisdictional
issues. For instance the acts constituting the offence(s) may be carried out in
a member of different nation such issues are addressed explicitly in the
governing legislations or are left to the general principle of international
criminal law.
The general principle of law in this
regard is that a crime committed within a state’s territory may be tried there
(except in respect to a person covered by diplomatic immunity).17
Under the English Common law, the
general principle for determining jurisdiction has been recently stated by the
courts to be when. The last act took place in England or a substantial part of
the crime was committee here”.18
Previously the general principle was
drawn narrowly as being where the actus-reus is computed,19 also referred to as the “result
crimes” or terminator theory.”
The convention on cyber crime
addresses the question of establishing jurisdiction. The convention at article
22 states that jurisdiction should exist when committed.
a. In its territory or
b. On board a ship flying the flag of that
party; or
c. On board an air craft registered under
the laws of that party; or
d. By one of its nationals.
Secondly, the convention required a
member state to establish jurisdiction over its nationals and to prosecute them
where as a matter of national law, such persons may not be extradited to a
requesting state where the crime was committed.
The draft Nigeria cyber crime act
does not discuss in detail the issue of jurisdiction in respect to cyber crime.
It is advised that the draft bill incorporate the provisions of the convention
on jurisdiction.
Evidential Issues
The evidential issue to be discussed is to find out
whether evidence gotten through the internet and computer hard disk or software
of an accused person or any centre can be admissible in court to aid in the
prosecution of cyber crime.
The Evidence Act of Nigeria as of
today is still silent on electronic – generated evidence and admissibility of
same.20
In the United States, some courts
were against the use of computer evidence due to the incorrect nature of it. No
opinion represents this adverse belief better than St. Clair v. Johnny’s Oyster
and Shrimp.21 Where the court stated
that this so called web provided no way of verifying the authenticity of the
alleged contentions. According to the court, any one can put anything in the
internet, and no website is monitored for accuracy, and nothing contained
therein is under an oath or even subject to independent verification absent
underlying documentation. For these reasons, any evidence procured off the
internet is adequate for almost nothing is hearsay, prejudicial irrelevant and
in capable of authentication.22
More recently in Tolliver v. Federal
Republic of Nigeria, [23] the
court held that internet and computer derived evidence was inadmissible. In
this case, an engineering company brought charges of fraud and breach of
contract claims against Nigeria. The company in support of the claims attached
news postings printed off the internet and other evidence found in the computer
money hard disk of receiving center and attempted to offer them as exhibits to
its motion. The court held that the news postings in the internet are rife with
hearsay and was not properly authenticated by persons with personal knowledge.
This earlier position of the courts
in turning a cold shoulder to internet evidence and rebuking the security and
reliability of the internet lead to ineffectiveness and inefficiency in the
prosecution of cyber crinmes,24 though
this is no longer the position in the United States as computer derived
evidence are now admissible as reliable evidence.25
The Nigerian Court in Esso West Africa Inc. v. T. Oyegbola has
also held that a computer print-out of a statement of account was admissible.26
Extradition Issues
Article 23 of the convention on cyber crime states that:
Parties shall cooperate
with each other in accordance with the relevant provisions of this chapter, and
through the application of relevant international instruments on international
cooperation in criminal matters, arrangement agreed on the basis of uniform
reciprocal legislation and domestic laws, to the widest extent possible for the
purpose of investigations or proceedings concerning criminal offences related
to computer systems and data, or for the collection of evidence in electronic form of
criminal offence.27
It is clear that parties to this
convention has to maintain International cooperation with regards to rapid flow
of information and evidence internationally, evidence in electronic form in
criminal offence and on reciprocal legislation and domestic laws.28
Nigeria as a sovereign state can
consider the convention where issues of extradition come to play, and also at
request of its local authorities, prosecute such case after due investigation
and deliver a report to the other party in due course.
17 Art. 31. Vienna Convention on diplomatic
Relation 196.
18 R.V. Smith (2004) 1 QB P. 57
19 R.V. Manning (1990) 2 G App R 461.
20 See Sections 77, 76, 78, 90 – 98, 100, 101
of the Evidence.
21 76
F. Supp. 2d. 733 775 (S.D. Tex 1999).
22 United State v. Johnson 208 F. 3d 633 (7th
Cir. 2000)
23 265 F. Supp. 2d 873 (W.D. Mich 2003)
24 San Luis v. Badgley 136 F. Supp. 2d 139 2000
25 Florida
Conference Association of Seventh Day Adventists v. Kyriakides 151 F. Supp 2d. 2002
26
1969 1 NWLR 194 Sc. See also Oguma Associated Coy. Nig. Ltd. V. IBWA
Ltd (1998) 1 NSCC vol. 19 395.
27 Art. 23 Council of Europe’s
Convention on Cyber crime, op. cit.
28 Art. 24 also provides for extradition where
a nation deems that it has no jurisdiction over the matter.
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