A witness in the ongoing trial of Azeez Fashola a.k.a Naira Marley today, July 15, 2022 revealed to Justice Nicholas Oweibo of the Federal High Court sitting in Ikoyi, Lagos how electronic tools used for accessing compromised credit card information was found on the laptop of the defendant.
Naira Marley is standing trial on an 11-count charge bordering on Credit Card Fraud brought against him by the Economic and Financial Crimes Commission, EFCC.
The defendant allegedly committed the offence between November 2018 and May 2019. Investigation revealed that he had in his possession credit cards bearing fictitious names which he used in perpetrating internet fraud.
During the previous sitting, the defense counsel, Olalekan Ojo SAN objected to the witness’s opinion on the forensic evidence pointing to the defendant as being involved in Credit card fraud. He submitted that it was the ultimate power of the Judge to declare that the defendant had been involved in the crime and not the job of the investigator.
However at the resumed proceedings Friday, Justice Oweibo in a short ruling dismissed the objection of the defendant.
“It is the duty of the law enforcement agencies or police charging a person to court to investigate if the defendant committed the crime or not. The investigator must be able to link the defendant to the commission of the crime. The prosecutor must have made up his mind as to the involvement of the defendant before bringing the case to court. I do not agree the prosecution has declared the defendant guilty”, the Judge ruled.
The prosecution witness, PW3, Dein Whyte, an operative with the EFCC, who was led in evidence by the EFCC Counsel, Rotimi Oyedepo, in his continued testimony said “From my findings, it was clearly established that the defendant through his phone had in his possession credit card details that did not belong to him. That he shared this credit card information with another person and it was also discovered that a fraud report had been generated for the same credit card stating that it had been used fraudulently.
‘Investigation also revealed that the defendant had on his laptop which is registered to him, and recovered from him, electronic tools that are specifically used for accessing compromised credit card information as well as other electronic tools that are used to disguise both the identity and location of anybody accessing compromised credit cards in real time on the internet. Those were my findings”.
When he was asked by Oyedepo the role played by him and his team before Exhibit E (forensic analysis) was produced, he answered saying, “As is procedural in investigation, where recovered digital evidences are of direct importance and value evidentially to a case, the procedure demands of an investigator or investigating team, where such evidences are recovered, to make a request to the Digital Forensic and Crime Laboratory Services Department to carry out forensic analysis of the content of these devices.
“In doing so, the investigator or investigating team, will include specifics to guide the forensic as to what is of utmost importance to the investigation. These specifics guide the Forensic examiner in narrowing down the analysis and search, extraction in these devices to areas of utmost importance as specified by the investigator or investigating team. On the request form, there is a section where the investigator may state these specifics. Examples might be SMS, Mails, pictures and websites”, Whyte said.
While analyzing the forensics report, PW3 revealed that the defendant has running on his computer, a VPN called IP Varnish (a tool used to disguise identity and location of the user).
According to him, “In relation to the contents found on the NOTES (a software application) on the devices of the defendant, wherein counterfeit card number was found alongside the details of the cardholder and an IP address, It would suggest that the only reason the possessor of this information will need an IP address attached to it, would be to satisfy the location specifics for consumption of transaction for merchants who require cards to be used only within countries and locations recognized by them.
“If these cards were to be used on the internet from Nigeria, the browser that is stated here will attribute in real time the location of the user to the IP address. And If Nigeria is not the compliant location of the card issuer, the transaction will be blocked. But if this card when being used passes through a VPN and assigned with the IP address to conform with the compliant location of the card issuer, the Nigerian Location will be disguised and substituted to be Cardiff, thereby giving the merchant the impression that the card is being used from Cardiff or otherwise the compliant location” he opined.
Counsel to the defendant, Olalekan Ojo SAN objected to the evidence of PW3. In his words “PW3 is attempting to give evidence on what must have operated on the mind of the user, as to why certain things were saved on the NOTE. The basis of my humble suggestion is that this witness is not competent to give evidence of the state of mind of the user of laptop without the existence of evidence before your lordship that the particular state of mind exists.
Ojo SAN continued saying, “I wish to rely on the Provisions of S11(2) of evidence act in support of my objection. An investigating officer is not competent to ascribe a state of mind to any defendant. Whether the state of mind exists or not is a matter for judicial determination. PW3, though an investigator is not a psychologist but a forensic officer who cannot give evidence on the state of mind of a defendant”, he submitted.
Responding to the objection raised by the defence, Oyedepo retorted that the objection raised by the SAN missed its target. He said “Firstly, the question being answered by the witness is to connect if any the relationship between Pages 8 & 27 of Exhibit E (The forensic analysis). The witness is not only competent to give that evidence, but rather in the circumstance of this case, is in the best position to bring life in the best way by explaining the relevance of the report of the forensic analysis that he sought for and obtained.
Oyedepo further argued saying “PW3 is to show the connection between the report and analysis and allegation that has been made before the court. If the evidence proofs the intention of the defendant to commit the alleged offence, he cannot be said to have given it outside the provision of Section 11 of the Evidence Act. S11 has no role to play in the context of the question he is answering right now.
“I agree that the state of mind of the defendant is for the court to determine, however it is also the power of the court to rely on the facts and evidence supplied which is what PW3 is doing.
“Finally, the witness has not used the word intention. The SAN is mainly imputing that the word “suggests” as used by PW3 is him interpreting that there was an intention by the defendant. He misconstrued the choice of words of the witness; I hereby urge the court to discountenance the submissions of the defense.
In a short ruling, the Judge overruled the objection, saying that “the witness can give evidence on the reason he believes the defendant had those documents in his possession”.
Justice Oweibo adjourned the matter to September 26 & 30, 2022 for continuation of trial.
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