Is EFCC Legally Empowered to Assess Persons’ Declaration of Assets? (Part 1)

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Introduction

The question has gained currency as to whether or not the EFCC possesses the mandate to investigate assets of Nigerians; including Bankers. A mandate, is the authority to do something. It is also the authorisation to direct or require someone, to act in a certain manner. The mandate of statutory bodies can be deciphered, by examining the Acts or Laws establishing them. Sometimes, case law provides the scope of the powers of these statutory bodies

Most times, the mandates of statutory bodies are couched as “functions” or “special powers”. For example, under Section 5(c) of the Economic and Financial Crimes Commission Act, 2004, “the EFCC “(Act)”, the Commission (“EFCC”, “Commission”) has several functions, ranging from adopting of measures to eradicate the commission of economic and financial crimes, to the coordination and enforcement of all economic and financial crime laws, and enforcement functions conferred on any other person or authority.

By virtue of Section 6 of the Act, the Commission has powers to:

a) cause investigations to be conducted as to whether any person, corporate body or organisation has committed any offence under this Act or other law relating to economic and financial crimes;

b) cause investigations to be conducted into the properties of any person, if it appears to the Commission that the person’s lifestyle and extent of the properties are not justified by his source of income;

In addition to the above stated powers conferred on the Commission, the Commission is the coordinating agency for the enforcement of the provisions of-

a) the Money Laundering Act of 2004; 2003 No. 7; 1995 No. 13;

b) the Advance Fee Fraud and Other Related Offences Act, 1995;

c) the Failed Banks (Recovery of Debt and Financial Mal-practices in Banks) Act, as amended;

d) the Banks and Other Financial Institutions Act, 1991, as amended;

e) the Miscellaneous Offences Act; and

f) Any other law or regulation relating to economic and financial crimes.

On a cursory examination of the powers conferred on the Commission pursuant to Sections 5 and 6 of the EFCC Act, it can be inferred that the Commission has many mandates. Notwithstanding the fact that the EFCC Act did not mention bank employees, etc, (Declaration of Assets in the Act expressly), the Commission has the power under Section 5(c) of the Act to co-ordinate and enforce the functions conferred on any other person or authority saddled with the responsibility of enforcing the Bank Employees Act. A careful examination of this mandate shall be the focus of this write-up.

Specific Powers of the Commission to Order Assets Declaration

Under Section 27 of the EFCC Act, the anti-graft Commission has the mandate to direct certain individuals to make full disclosure of their assets and properties, by completing the Declaration of Assets Form as specified in Form A of the Schedule to the Act. Section 27 of the Act provides that:

27 (1)”Where a person is arrested for committing an offence under this Act, it shall be obligatory for such person to make a full disclosure of all his assets and properties by completing the Declaration of Assets Form as specified in Form A of the Schedule to this Act.

(2) The Declaration of Assets Form shall be forwarded to the Commission for full investigation by the General and Assets Investigation Unit of the Commission…”

In the case of MUSTAPHA v FRN (2017) LPELR-43131(CA), the Court of Appeal had cause to interpret Section 27 of the EFCC ACT. In this case, MOHAMMED LAWAL GARBA, JCA, stated at pages 76 – 80, that:

“… Section 27 (1) of the EFCC Act, which is the subject of the complaint by the Appellant under the issue, provides that:- “Where a person is arrested for committing an offence under this Act, such person shall make a full disclosure of all his assets and properties by completing the Declaration of Assets Form as specified in Form A of the Schedule to this Act.” These provisions are in simple, plain and clear words and language such that they require no glosses in the ascertainment of what they make provisions for. Simply and plainly, they require a person arrested for the commission of an offence under the EFCC Act, to make a full disclose of all his assets by completing the asset declaration from; the pro-forma of which is in the schedule to the Act. Undoubtedly, these provisions have nothing to do with compulsion on such a person to make a statement upon arrest for an offence under the Act, in respect of the offence he was arrested for. The section merely orders, commands and requires that a person arrested for an offence under the Act, declare his assets by completing the designated assets declaration form, whether or not he makes a statement in respect of the offence he was alleged to have committed under the Act. The moment a person is arrested for the commission of an offence under the Act, the provisions of the Section 27(1), as a matter of law and fact, become applicable to him, independent of his making a statement in respect of the offence(s) for which he was arrested and distinct from his right to remain silent and not to incriminate himself of such offence(s) since by the provisions of the Section, the declaration of the assets is to be made upon, where or when a person is arrested for the offence(s) under the Act, the duty or obligation to declare assets arises when the arresting authority presents the asset declaration form to the person arrested and requires him to complete it in compliance with the provisions of the section. The requirement by the section for the completion of the asset declaration by a person arrested for offence(s) under the Act, is not one which requires or says that the person must make a statement in respect of the offence(s) he was arrested for and so it cannot seriously be said to be inconsistent with the right of the person to remain silent and avoid answering any question until after consultation with a legal practitioner or other person of his choice, provided for in Section 35(2) of the Constitution. The requirement to declare asset does not involve asking the person arrested to speak or answer any questions in respect of the offence he was arrested for and in no reasonable way, connected with the right to remain silent and avoid answering any question on the said offence(s). As to what stage upon or after the arrest of a person the provisions require him to declare the assets, would depend on the peculiar facts and circumstances of each case which would determine when the arresting authority would present the assets declaration form and require him to complete it. Once a Person is arrested for an offence or offences under the Act, the obligation to declare assets is placed on him by the provisions of the section, at anytime the declaration of assets form was presented to him for completion by the arresting authority. The provision of Section 27(1) do not provide for the stage or time after or where a person is arrested for an offence or offences under the Act, should be required by the arresting authority to declare his assets or that it must be done before the person was charged to Court for the offence(s) he was arrested. It must be noted that, declaration of assets provided for in Section 27(1) is for the purpose of investigations of the offences a person is arrested for, which may continue even after he is charged to Court for trial, depending on the circumstances of a case. Investigation by the prosecution is different in law, from the trial for the offence(s), a person is charged with. The fact that a person is charged to Court for an offence or offences, is no bar to continuing or further investigations of the said offences by the prosecution in order to unearth more facts and evidence to be presented to the Court during the trial in proof of the offence(s), the person is charged for. After all, it is the prosecution that bears the legal and evidential burden of proving the offences beyond reasonable doubt before the trial Court. The question of the principle of lis pen dens argued in the Appellant’s brief under the issue, is misconceived, since further investigations by the prosecution of offence(s) charged to Court does not interfere with a trial of the offences charged”.

There is nothing more to add to this incisive pronouncement.

In the light of the Section 27 of the EFCC Act cited above, we can say with certainty that asset declaration is part of the mandate of the Commission. This mandate is however, circumscribed to circumstances where a person is arrested for committing any offence under the EFCC Act. (To be continued next week.)

THOUGHT FOR THE WEEK

“It is a governing principle of nature, that the agency which can produce most good, when perverted from its proper aim, is most productive of evil.” (James Fenimore Cooper)