Under Nigerian law, fraud is both a crime and a tort. Facts of a transaction leading to economic loss can also give rise to criminal prosecution by the law enforcement agencies for the offence of fraud. Both the tortuous claim and the criminal prosecution can be pursued against an individual simultaneously. The tort of fraud in Nigeria follows the common law fashion and may be founded on three heads, namely, conflict of interest, Fraud and deceit, and unjust enrichment. The crime of fraud may take the following forms:
- Obtaining property (i.e. goods or credit) under false pretence prohibited and punishable by Sections 419 and 419A of the Criminal Code, Laws of the Federation of Nigeria 2004 (“CC 2004”) with three (3) years of imprisonment. Where the value of thing obtained by false pretence is higher than N1,000.00 (One Thousand Nairan), the offender will be liable to seven (7) years of imprisonment;
- Forgery prohibited and punishable under Section 467 of the CC with three (3) years of imprisonment. Please note that certain categories of forgery attract higher terms of imprisonment under the CC.
- Personation which is punishable under Section 484 of the CC with three (3) year term of imprisonment or fourteen (14) year term if the personation relates to a Will or administration of a deceased’s estate.
- Secrete commission by an agent, employee or government officials prohibited and punishable by Section 494 of the CC with two (2) years of imprisonment or N1,000.00 (One Thousand Naira) fine or both. This law also punishes any person who gives or agrees to give or offers a gift to an agent as a consideration to do or forebear to do an act as favour or disfavour in relation to the principal or employer’s business.
Under law, an employee or agent is obliged to avoid or refrain from engaging in a transaction that will put him in conflicting situation with the interest of his employer or principal as the case may be. Secrete profit by an agent in the course of his principal’s employment, whether in cash or kind, would lead to conflict of interest unless same is fully disclosed to the principal. Where a case of conflict of interest is proved, the employer or principal is entitled to reliefs against the employee or agent accordingly. The available reliefs against an agent who is found liable are; Rescission of the agreement; Action for damages; Order to account; Cost of the suit.
Under Nigerian law, the process of recovering any sum of money being defrauded in Nigeria is to institute an action in tort against the individuals for breach of duty or unjust enrichment. The likelihood of recovering any sum of money alleged to have been defrauded in Nigeria will depend on the plaintiff’s claims and the quality of evidence that can be adduced in proof of the civil suit brought against the fraudulent individuals for the recovery of the money. The standard of proof is based on the preponderance of evidence adduced. There are three law enforcement agencies in Nigeria saddled with the responsibility of prosecuting fraud, they are;
- The Economic and Financial Crimes Commission (“EFCC”)
Head Office: No. 5, Fomella Street, Off Adetokunbo Ademola Crescent, Wuse II, Abuja, Nigeria.
Lagos Office: No. 15A, Awolowo Road, Ikoyi, Lagos, Nigeria.
Port Harcourt: No 6A Olufemi Street, Old GRA, Port Harcourt, Rivers State, Nigeria.
E-mail: E-mail: email@example.com.
- The Nigeria Police: Contact the Special Fraud Unit, Alagbon, Lagos, Nigeria or police station across the federation.
- The Independent Corrupt Practices (and Related Offences) Commission (“ICPC”): Contact Address is Plot 802 Constitution Avenue, Central District, PMB 535, Garki Abuja Nigeria. Email: firstname.lastname@example.org.
A formal complaint of the alleged fraudulent malpractices may be made to the EFCC, the ICPC or the Police with all the material facts and evidence that will assist the law enforcement agency in the investigation, arrest, bail, seizure of property and prosecution or release of an offender as the case may be. Complaint can be sent to the agency directly by the complainant or through his lawyer. It is important to mention that the decision to arrest and prosecute, upon investigation of the suspects, is entirely at the discretion of the law enforcement agency. The State controls the machinery for the prosecution of any person alleged to have committed a crime and neither the victim of a crime nor the lawyer can control the action or influence the authority’s decision to prosecute an offender or not.
Kayode Omosehin Esq.
Associate, Ajumogobia & Okeke