THE CRIMINAL CODE ACT AND LAWS IN NIGERIA

The Criminal Code Act / Laws
            The Criminal Code Act1 is currently a legislation of general application penalizing criminal acts in Southern Nigeria while the Penal Code Act applies in the North.
            There is no doubt that most of the crimes that are now labeled as cyber crimes are already contained in the Criminal and Penal Code Act respectively. For instance under the Act, advance fee fraud can qualify as a false pretence2, while a successful internet scam would amount to a felony under section 419 which provides as follows:


Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen or induces any person to deliver to another person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for three years. If the thing is of the value of one Thousand Naira or up wards, he is liable to imprisonment for seven years. It is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence…            

The Penal Code also contains a similar provision.3 In a related vein, a suspect on cyber crime could alternatively be charged under sections 421 of the Criminal Code Act which provides as follows:

Any person who by means of any fraudulent trick or device obtained from any other person anything capable of being stolen, or induces any other person to deliver to any person any thing capable of being stolen or to pay or deliver to any person any goods or money or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanor, and is liable to imprisonment for two years. 

            Many Nigerian tourists abroad are reputed to open credit card accounts online with another person’s identity, and shelf up thousands of dollars of charges within days of using the stolen identity4. The closest definition of this type of offense just described is also contained in the Criminal Code 419 on discussed earlier.
            Occurrences on the internet where people give false credit card details in order to access a merchant store to perpetuate fraud can give rise to some interpretation difficulties. For a fraud to be deemed to have occurred. it is necessary that a person must be deceived. Where the machine was deceived to obtain a service no person as such no as deceived section 382 of the Criminal Code requires:
that property (being an inanimate object) which is the properly of any person, and which is moveable is the thing capable of being stolen.
            When information on a computer is manipulated, this may be as well a matter for civil rather than criminal law. The criminal element is perhaps at the stage where the credit card is used to purchase an item on line and the items is ultimately delivered.
            Based on the foregoing, the critical question is how we apply the traditional provisions of the Criminal Code to offenses related to cyber crime, for instance, the offense of theft or stealing requires that tangible properly be taken away with the intention of permanently depriving the victim of it. Applying traditional criminal concepts to acts involving intangible information can only mean that amendments to our criminal statutes are unavoidable. A look at section 484 of the criminal code on personification and section 321 of the Penal Code on cheating will reveal the inadequacy of the existing law on this area to fight cyber crime.  
            Though, as noted earlier, the Criminal Code and Penal Code accommodate certain aspects of cyber crime, one cannot however say that the code is capable of taking care of the sophisticated nature of cyber crimes in Nigeria.
            The Criminal Code is a British legacy which predates the internet era and understandably does not specifically address e-mail scams. However, advance fee fraud methodology as highlighted abore, obviously falls within the remit of the Act, for the following reasons: first, there is a false pretense to the existence of non-existent money; second, a solicitation for financial help to get the fictitious money released; and third, the fraudulent retention of various fees paid to the scammers to release the phony millions of dollars. The scammers’ modus operandi fits snugly the elements of the offense under section 419 of the Criminal Code and section 321 of the Penal Code cited earlier, and have been used for years by the Nigerian law enforcement agencies for prosecuting alleged acquisition of properly by false pretense.
            The Criminal Code Act Provisions on advance fee fraud5 are, however ill-suited for cyberspace criminal governance in light of the following drawbacks: first, although section 419 of the Criminal Code deems fee, fraud a felony, the provision that a suspect cannot be arrested without warrant, unless found committing the offense does not reflect the crime’s presence or penetration in cyberspace. Only in a rare circumstance could a suspect be caught in the act because most of the cyber crimes are done in cyber cafes or at the comfort of the perpetrator’s house.
            The second drawback for the provisions of the Criminal Code is the paucity of the punishments. For instance section 390 of the Criminal Code puts the punishment for stealing at 3 years. In the same vein, if found guilty, an advance fee fraud fraudster is liable to a mere three years imprisonment or seven years if the value of stolen properly exceeds 1000 Naira. Under ... The punishment, to say the least, is paltry relative to the enormity of the crime and unjust rewards that characteristically run into millions of dollars.
            The third drawback, under the Criminal Statutes, is lack of restitution or compensation for victims of crime. In criminal trials, the state is the complainant, and there is hardly any compensation for victims of crime under the Nigerian criminal justice system. The victims could no doubt resort to civil courts for remedies. However, the prospectus for success for the plaintiff in the typical advance fee fraud case scenario is extremely slim. For instance, a contract to assist in the transfer from Nigeria of millions of dollars illegally to a foreign account or to pay bribes to certain government officials to ensure release of such monies or to facilitate advance fee payment for patently illegal activities would be unenforceable. In fact, the plaintiff would be branded as a party to a culpable crime under section 7 of the Criminal Code. That, the Criminal Code is not adequate to fight all cases of cyber crime in Nigeria can be further proved by the development in the United Kingdom where Nigeria copied her criminal code from. In the UK, the English courts concluded that their existing laws did not accommodate nor reflect the changes brought about by computer technology. In R v. Gold (unreported) the defendant was acquitted because there were no laws to prevent unlawful access to a computer, and this led to the enactment of the Computer Misuse Act (CMA) 1990. Even this Act was still found to be ineffective in addressing cyber crime; thus the aging computer Misuse Act was amended and came into force in England and Wales on the 1st October 2008.
            If other countries as noted above are updating their laws to accommodate changes brought about by internet, there is no reason under the sun why the Nigerian Criminal Code Act enacted in 1916 (95 years ago) could not be reviewed to take care of the sophistications brought about be cyber crime. Continuous use of the present Criminal Statutes to fight cyber crime will always provide the culprits with escape routes as a result of some loopholes inherent in the existing law.


1 Cap. C 28 LFN 2004. The Act applies in Southern Nigeria while the Penal Code applies in the North. Save for few difference the provisions are the same.
2 Under section 418
3 Under Section 320 of the Penal Code
4 Timber Craig: Illegal Immigrants Internet Fraud Washington Post Foreign Services(vol. 17,Thursday 15th December,2004.
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