EFCC and Other Regulatory Agencies’ Powers to Enforce Declaration of Assets (Part 5)

Introduction

Last week, we dealt with the legal organogram and regime of Asset Declaration. We also explored the legal organogram and regime of Asset declaration, in other countries. Today, we shall conclude our discourse by posing one question: Are bankers or staff members of corporate Nigeria under any constitutional or legal obligation to disclose or declare their assets to the EFCC?

This question will be answered by examining the statement made by the EFCC Chairman, Abdulrasheed Bawa as reported by The Cable on the 16th of March, 2021. According to the Cable, Mr. Bawa said, inter alia:

“And we have discussed, but we hope that all financial institutions, particularly the bankers, will declare their assets as provided for by the law, in accordance with the Bank Employees Declaration of Assets Act. And the EFCC, come the 1st of June, 2021, will be demanding for these assets declaration forms, filled by the bankers so that the line that we have drawn from the 1st of June is really complied with by the bankers in particular…”

Section 1(1) of the Bank Employees, etc. (Declaration of Assets), Act LFN, 2004, provides that:

“Every employee of a Bank shall, within fourteen days of the commencement of this Act, make a full disclosure of all his assets.”

By Section 2(2) of the Act, for a new employee, this statutory requirement must be complied with within 14 days of his assuming duty with the bank. By virtue of Section 3 of the Bank Employees Act, bank employees are mandated to submit their executed Declaration of Assets Forms to the Chief Executive of the Bank who will thereafter, submit the said Forms to the appropriate authority.

Section 2 (1) of the Act makes it mandatory for the Declaration of Assets to be done as prescribed in the Declaration of Assets Form, Form A attached to the Act and it shall be executed before a Registrar of a Superior Court of Record. By Law, failure to execute the prescribed Assets Declaration Forms and submit same, carries imprisonment of ten years upon conviction.

Section 3 (1) of the Act stipulates that Bank employees shall submit their assets declaration forms to the Chief Executive of their banks, within the said 14 Days of making the Declaration.

Section 3 (2) of the Act provides that the Chief Executive of the Bank shall within 7 Days after the expiration of the 14 Days, submit the assets declaration to the Appropriate Authority

The apposite question to ask is who is the appropriate authority referred to in Section 3 (2) of the Act, is it the EFCC?

To start with, the EFCC was not in existence in 1986 when the Act was enacted. The interpretation section of the Act in Section 13, defines the appropriate authority to be the Secretary to the Federal Government, or any person designated by him through an instrument published in a Federal Government Gazette.

We are not aware of any instrument published in a Federal Government Gazette issued by the Secretary to the Federal Government, designating the Economic and Financial Crimes Commission as an appropriate authority to enforce/implement the provisions of the law hereinbefore analysed. They are therefore, not the appropriate Authority, but meddlesome interlopers.

The EFCC should concentrate on its core mandate, and stop chasing shadows. There are a lot of economic crimes that have not been curbed, nor prosecuted. The EFCC is looking for soft targets to convict, to increase their conviction ratio. You cannot put something on anything, and expect it to stand. UAC v Macfoy (1962) All ELR.

The EFCC should know that Nigeria is governed by laws, and not brute force. If a law does not provide for an action, no manner of advocacy, no matter how laudable, can change the position of the law.

The law under Section 7 (1) stipulates that “It shall be an offence for an employee of a bank to own assets in excess of his legitimate known and provable income”.

Section 7(2) states: “Any employee guilty of an offence under subsection (1) of this Section shall on conviction be liable to imprisonment for 10 years and shall, in addition, forfeit the excess assets or its equivalent in money to the Federal Government”.

By virtue of Section 14 of the Bank Employees Act, the appropriate authority that the Chief Executive of the Bank will submit the executed Forms to, is the Secretary to the Federal Government or any person he may designate in that behalf by an instrument published in the Federal Gazette.

It is clear that the Commission is not the appropriate agency specified by the Bankers Employees Act, to receive the Declaration of Asset Forms of Bankers. However, pursuant to Section 5 (c) of the EFCC Act, the Commission has the responsibility for-

“The co-ordination and enforcement of all economic and financial crimes laws, and enforcement functions conferred on any person or authority”.

Thus, the Commission has the mandate to co-ordinate and enforce the functions conferred on the Secretary to the Federal Government, or this designated officer.

In the case of MUDIAGA-ODJE v YOUNES POWER SYSTEM NIG. LTD (2013) LPELR-20306(CA), the Court of Appeal, Per SIDI DAUDA BAGE, JCA (as he then was) stated at page 27 that:

“… It is trite that, in constructing a statute or instrument, every word or clause in an enactment must be read and construed together, not in isolation, but with reference to the context and other clauses in the statute in order, as much as possible, not only to reach a proper legislative intention, but also to make a consistent meaning of the whole statute. See Oyeyemi v Commissioner for Local Government Kwara State (1992) 2 SCNJ 266 at 280; Artra Ind. Nig. Ltd. v NBCI (1998) 3 SCNJ 97 at 115; Bakare v NRC (2007) 17 NWLR (Pt. 1064) 606 at 639; Odutola Holdings Ltd v Ladejobi (2006) 12 NWLR (Pt. 994) 321 at 358; Unipetrol v E.S.B.I.R. (2006) 8 NWLR (Pt. 983) 624 at 647; Rivers State Government v Specialist Konsult (2005) 7 NWLR (pt. 923) 145 at 179”.

This position of the law was upheld in the case of DANSTARCHER TURNKEY CONTRACTORS LTD v UBN PLC (2015) LPELR-24631(CA), where the Court of Appeal, Per SIDI DAUDA BAGE, JCA held at page 21 that:

“… It is settled law, that, the rule of interpretation of statutory provisions should always be construed as a whole, and should be given an interpretation consistent with the object of the entire statute. See BAKARE v NRC (2007) NWLR (Pt. 1064) 606 at 639; ODUTOLA HOLDINGS LTD v LADEJOBI (2006) 12 NWLR (Pt. 994) 321 at 358; UNIPETROL v E.S.B.I.R. (2006) 8 NWLR (Pt.624) 641; RIVERS STATE GOVERNMENT v SPECIALIST KONSULT (2005) 7 NWLR (Pt. 923) 145 at 179.”

The Bank Employees Act, 1981 in Sections 7, 8, 9, 10 and 11, provide for certain offences pertaining to asset declaration. The Act is therefore, a law or an Act relating to Economic and Financial Crimes. Pursuant to Section 6(2)(f) of the EFCC Act, the Commission has the responsibility of enforcing the provisions of “any other law or regulation relating to economic and financial crimes”. Consequently, it can be argued that the Commission has the mandate to direct bankers, to declare their assets under the Bank Employees Act.

Further, Section 8(2) of the Bankers Employees Act provides that any asset found not to have been disclosed shall, in addition to any or other penalties stated in Section 8 of the Bank Employees Act, be forfeited to the Federal Government. This Act is not unconstitutional. Any agency or institution enforcing it will not be held or declared to have acted unconstitutionally, because the Constitution of the Federal Republic of Nigeria 1999 (as amended) lends credence to this Act.

Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999 provides for the manner of acquiring property compulsorily. Under Section 44(2) (b) and (k) of the Constitution, it is stipulated that noting in subsection 1 of this Section (i.e, Section 44(1)) shall be construed as affecting any general law –

(b) “For the imposition of penalties or forfeitures for the breach of any law, whether under civil process or after conviction for an offence.

(k) Relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry”.

Who are ‘Contract Staff’ as Used by Most Banks?

The Bank Employees Declaration of Assets Act, 1981, requires all bank employees to declare their assets. But, according to the April, 2020 National Bureau of Statistics (NBS) Banking Sector Report, 46,263 out of 104,364 staff (or 44.3%) of most bank staff are, ‘contract staff’, not employees of the banks wherein they work.

However, it appears from the letter of Section 1 of the Bank Employees, ETC. (Declaration of Assets) Act 1986, that contract staff have no loophole to exploit in not legally declaring their assets.

The report showed that contract staff across banks rose by 6% from 43,955 in June 2018 to 46,263 in June 2019; a very sad commentary on workers’ rights.

Conclusion

Bank employees are under statutory obligation to declare their assets, under the Bank Employees Act. These employees include the Governor, the Chairman and Members of the Board, Managing Director, Director, General Manager, Manager, Examiner, Inspector, Controller, Agent, Supervisor, Officer, Clerk, Cashier, Messenger, Cleaner, Driver, and any other categories of workers of the Central Bank, any bank or other financial institution of whatever title or designation, whether general or peculiar to the Bank. For the avoidance of doubt, these include a person engaged as a part-time, casual or temporary worker, and also any worker deployed to work in any branch or office of the Bank in or outside Nigeria. The Commission has the mandate to enforce and co-ordinate this exercise, under the EFCC Act.

Thus, bankers or staff members of corporate Nigeria are under constitutional and legal obligation to disclose or declare their assets to the EFCC. Bank employees who are arrested in respect of any crime under the EFCC Act, are clearly under statutory obligations to declare their asset to the EFCC. Those who are not so arrested, are also under obligation to declare their assets as provided for the Bank Employees Act. (The End).

THOUGHT FOR THE WEEK

“The best defence against mafia business, is full declaration of assets and incomes.” (Milos Zeman)