Tentacles of Wire Fraud in Nigeria: A Review of The Advance Fee Fraud and other Related Offences Act

In the sphere of crime detection and prevention, Nigeria has no doubt had a running battle with criminal activities bothering on false pretences designed to induce the advancement of funds by innocent and unsuspecting victims. While some of these victims are within the physical jurisdiction of Nigeria, a host of others are in foreign climes searching for one opportunity or the other relative to the vast and abundant resources dotting the Nigerian landscape. Most victims of wire fraud are induced by unscrupulous elements into conferring trust on them through the copious supply of persuasive claims, materials and data completely disguised as authentic. The insignia and other official paraphernalia of a host of public institutions, public officials and even of the organized private sector have practically been cloned by unscrupulous elements as a means of mesmerizing their victims. 

Also not in short supply has been a paucity of rigour on the part of a host of victims in verifying certain claims being made by these criminal elements as to their authenticity. Some of these claims are plain outlandish and too fantastic that they ought to trigger a double check before engagement. These activities have no doubt caused national institutions and legitimate businesses in the country a very severe haemorrhage of trust especially in the international business space in the context of the information age when technology has simplified communication. Nigeria finds itself lagging far behind countries far higher on the credibility index with regards to this social malady popularly code named “419” or “yahoo yahoo” in our clime. To say the least, this situation has impacted the national economy negatively, stifled new opportunities for legitimate business concerns and limited economic access for a host of foreign direct and portfolio investors seeking opportunities in Nigeria. 

It is however not a narrative surrendered to adverse circumstances especially when considering the measures taken in the sphere of law reform to tackle this menace. In 2006, the National Assembly enacted the Advance  
Fee Fraud and Other Related Offences Act which law repealed both the Advance Fee Fraud and Other Fraud Related Offences Act, 1996 and Advance Fee Fraud and Other Fraud Related Offences (Amendment) Act, 2005. Stiffer penalties have been imposed, new obligations have been created and stricter checks have been placed on the use of modern communication tools. In this law, law enforcement institutions especially the Economic and Financial Crimes Commission has one of its most lethal instruments to track down this obnoxious trade. 

The law defines “false pretence” as a representation, whether deliberate or reckless, made by word, in or by conduct, of a matter of fact or law, either past or present which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true (Section 20). Hence the intent to defraud another through falsehoods is an important element to be proved in establishing this crime. The actual fact of obtaining, receiving or delivery of property as well as the conferment of benefits by a victim on a person who has prosecuted the aforesaid intention constitutes a completed criminal act whose penalty has been prescribed by law upon conviction as imprisonment for not more than 20 years and not less than 7 years (Section 1). Where the perpetrator has succeeded in luring his victim into Nigeria still in furtherance of this unlawful purpose, a similar term of imprisonment are prescribed (Section 4).  

Persons who with the intent to defraud, represent themselves as having the means to produce currency notes or double money even while not having such authority from the Central Bank of Nigeria are upon conviction liable to imprisonment for not more than 15 years and not less than 5 years (Section 2). The difference between prosecution under Section 1 and Section 2 is that while under section 1 the proceeds of the acts of false pretence have been received to make the suspect culpable under Section 2 such representations are sufficient to render the suspect culpable.  

There is also criminal liability for property owners and property managers who knowingly permit their premises to be used for the prosecution of such illegal activities to defraud and as have been criminalized by the Act. Upon conviction such persons are liable to imprisonment for a term of not more than 15 years and not less than 5 years (Section 3). 

The Act also criminalises attempts at perpetrating false pretence offences. This is especially so where such attempts have been composed into written communications and shown to have been received by the victim or through such acts set up in facilitation of such offences (Sections 5 & 6). Possession of pecuniary or proprietary resources whose source cannot be properly explained by a suspect is also considered corroborative of false pretence and fraud related offences at trial (Section 15). The law additionally vests in the High Court, the power to forestall the disbursement of proceeds of such unlawful activities where a prima facie case has be made out so as to preserve the subject matter until the determination of the case (Section 16). Failure to comply with order by any individual or financial institution shall result upon conviction in a penalty of N500,000.00 or twice the value of the subject matter unlawfully disposed of. Unclaimed property in the possession of EFCC or any financial institutions can also be made the subject of an interim forfeiture order by the High Court upon the application of the EFCC. Upon the expiration of 14 days of notice in a manner or such other length of time directed by the High Court without any adverse superior claim to the property, same shall be forfeited to the Federal Government through a motion on notice for final forfeiture of assets brought by the Commission.  

It is also within the target scope of the law to penalize persons involved in financial transactions that are derived from unlawful activities with a view to promoting such activities, concealing or disguising such transactions or their prevent their passage through the due process of legal checks in place. Banks and other financial institutions involved in this sort of enterprise are liable upon conviction to a fine of N1,000,000.00 or a forfeiture of its assets to the Federal Government where such institutions are unable to pay the fine. Individual directors, secretaries or staffers involved in the furtherance of such unlawful activity are upon conviction liable to imprisonment for a term of not more than 10 years and not less than 5 years. Where such activities have been aided due to negligence or lack of due diligence on the part of such financial institutions, the said institution will be liable to a fine of Five Hundred Thousand Naira, the refund of the funds involved and any director, secretary or employee involved will be liable to an imprisonment of not less than three years. A winding up proceeding and a forfeiture of assets to the Federal Government can also be ordered by the High Court for corporate persons engaged in such unlawful activity (Section 10). For individuals involved with the physical transportation of such proceeds of unlawful activity with a view to promoting such activities, concealing or disguising such transactions or their conduct through the due process of law, such persons shall on conviction be liable to pay a fine of N500,000.00 or twice the value of the proceeds of the unlawful activity whichever is higher or to imprisonment for a term of not less than 10 years (See Section 7 of the Act). 

The law also prescribes stiff penalties for persons that may aid, abet, and attempt to commit the offence, operate as an accessory, incite, procure or induce the commission of the offences criminalized under the Act. Such persons shall be liable upon conviction for the same penalty prescribed for the actual offence. (See Section 8) 

Restitution can also be ordered by the High Court upon conviction of a suspect of the offences criminalized in this Act and such orders of restitution are enforceable against the convict as a judgment in a civil matter (Section 11). Hence, the victim of such unscrupulous activity does not need to commence a separate civil action for the recovery of funds unlawfully obtained by the convict.  

The Act also mandates the collection of personal customer data by electronic communication service providers in Nigeria. Customers providing false information with the intent to deceive are liable upon conviction to imprisonment for a term of not less than 3 years or a fine of N100,000.00. Service providers failing to collect such data are also liable to fine of N100,000.00 and a forfeiture of their operational equipment. There is also a mandatory registration with the Economic and Financial Crimes Commission (EFCC) of telecoms and internet service providers who shall maintain a register of all fixed line customers. For GSM (General System of Mobile Communications) operators, they are to make such information available to the EFCC as will aid the performance of the latter’s functions. Where such organisations and their operatives have failed to facilitate such access to information or data as are required by law with a view to concealing or disguising unlawful activities shall be liable upon conviction to an imprisonment for a term of not less than 3 years without option of fine and in the case of a continuing offence, a fine of N50,000.00 per day (Section 13).    

Suffice it to say that even though the tentacles of wire fraud and false pretence offences are far reaching, there is adequate legal mechanism for both the prevention and the apprehension of such crimes. How proactive institutions charged with enforcing the law can be bothers on the human factor. Curtailing overzealousness on the part of law enforcement is also vital with a view to avoiding the stifling of legitimate business activities and the abuse of the fundamental rights of citizens particularly in the sphere of private communication. 

By: Okechukwu Ebirim Esq.  

Helig Mor Attorneys