EFCC Directive to Bank Employees on Asset Declaration is Ultra Vires

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Richard Abdulahi

Background

Driven by the zeal to not only stem the tempestuous tide of illicit financial flows, but also stamp his imprimatur as the “new sheriff” in charge of Nigeria’s anti-graft agency, the new Chairman of the EFCC, Mr. Abdulrasheed Bawa, recently directed all employees and operators in the financial sector to declare their assets by June 1, 2021. Interestingly the directive was issued pursuant to the provisions of the Bank Employees, ETC. (Declaration of Assets) Act 1986, a clear indication that the anti-graft agency could not find refuge under any of the provisions of its enabling Act.

This article is meant to examine the provisions of the Act in order to determine whether from the trails of the provisions of the Act and the trajectory of judicial pronouncements, the EFCC has the requite statutory powers to issue the directive.

The Relevant Provisions of the Act

The Bank Employees, etc (Declaration of Assets) Act is one of the military Decrees promulgated in 1986, which subsequently gained sanctuary under Section 315(4) of the Constitution of the Federal Republic of Nigeria 1999 as an existing law. At the time, the Decree was promulgated to combat corrupt practices involving private businesses and employees in the financial sector.

Sections 1 and 4 of the Act make it mandatory for an existing Bank Employee to make full disclosure of all his assets within 14 days of the commencement of the Act, and in the case of a new employee, within 14 days of his resumption of duty. Thereafter, the asset declaration is required annually.

It is further provided under Sections 2 and 3 of the Act that the Declaration of Assets must be done as prescribed in the Declaration of Assets Form attached to the Act, and it shall be executed before a Registrar of a Superior Court of Record and submitted within the prescribed 14 days to the Chief Executive of the Bank, who is required to submit the same to the Appropriate Authority within 7 days of receipt. Sections 7, 8, 9 and 10 of the Act encapsulate variegated and detailed sanctions for failure to comply with the Assets Declaration requirement which includes imprisonment for ten years upon conviction.

It is to be noted that section 2(2) of the Act provides for the powers of the President or an Appropriate Authority to prescribe from time to time other forms necessary for the achievement of the purpose of the Act.

The EFCC is not the Appropriate Authority Under the Act?

It is thus, clear from a combined consideration of the above provisions that the person vested with the requisite power to prescribe the form or mode for the enforcement of the provisions of the Act, is the President or the Appropriate Authority specified under the Act. Section 14 of the Act defines “Appropriate Authority” as follows:

14. In this Act, unless the context otherwise requires “appropriate authority” means the Secretary to the Federal Government or any person he may designate in that behalf by an instrument published in the Federal Gazette.Nowhere in the relevant provisions of the Act is the EFCC or its Chairman mentioned, and could not have been mentioned having regard to the fact that as at the time the Decree was promulgated in 1986, the EFCC was yet to be grafted within the uterine walls of any legislative contemplation. Having not been mentioned, the principle of law now well encrusted in a latin maxim, is that the EFCC or its Chairman is excluded from the provisions.

In BUHARI v YUSUF (2003) 14 N.W.L.R. (Pt. 841) 446 at 499 PARA F-G, the Supreme Court aptly rehashed the law thus:

“The principle is well settled that in the construction of statutory provisions, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. This is the expressio unius est exclusio alterius rule, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication…”.

There is also no instrument published in any Federal Gazette wherein the Secretary to the Federal Government has designated the EFCC or any of its Officers for the purpose of issuing any directives or form for compliance with the Act as the EFCC now seeks to do. The directive of Mr. Bawa is thus, an unbridled arrogation of powers which the Act has clearly not conferred on the President and the Secretary to the Federal Government.

In the case of WILSON v A.-G. BENDEL STATE (1985) 1 N.W.L.R. (Pt. 4) 572 AT 580, the Supreme Court had cause to interpret the meaning of the word “Appropriate Authority” within the meaning of the provision of Section 2(2) of the Tribunal or Inquiries (Validation, etc.) Act No. 18 of 1977. The Apex Court cited with approval the decision of the trial Court thus:

“For any of the Defendants to be entitled to protection under that law, it must be shown that the Public Service Commission that purported to convert the retirement of the Plaintiff into dismissal was invested by law with power to do so. It was not the appropriate authority as defined by law, and clearly had no such powers. There cannot be any suggestion that it had any duty to exercise the powers of the appropriate authority. The person who had power under the law to dismiss the Plaintiff in pursuance of the recommendation made following investigations of his assets, was the Military Governor at that time…Nothing in all the Laws cited shows that …. the Military Government then delegated that power to anybody, not even the Public Service Commission that purported to dismiss the Plaintiff. Nor is there any law or evidence that the Public Service Commission ordinarily can act of its own volition for the appropriate authority”.

The EFCC Cannot Unilaterally Exercise the Powers Vested in the Appropriate Authority Under the Act

Although it could be argued that the EFCC being an agency of the Federal Government, can validly exercise the executive powers of the President vested by statute as in the instant case, it is however, not a potent contention as the kite of that contention sought to be flown in the case of CBN v Nigeria Bar Association unreported in Appeal No. CA/A/202/2015 did not fly. In this case, the Nigerian Bar Association successfully challenged the provision of Sections 5 and 25 of the Money Laundering Act in so far as they purport to apply to Legal Practitioners in Nigeria. The Court of Appeal held:

“By the provision of Section 5(1)(b) of the Money Laundering Act, a designated non-financial institution whose business cash transaction as defined in the Money Laundering Act which involved the one of cash transaction involving sum exceeding US$1000 or its equivalent must make a report and make disclosure of what the transaction entails to the Ministry which under Section 5(2) shall forward the information required and received pursuant to Section 15(1) of MLA to EFCC within 7 days. The Minister of Commerce or Trade and Investment is expected to make regulations to guide the operations of Designated Non-Financial Institutions…There is no evidence on record that any Regulation has been made by the Minister or guidelines…”.

Though, in A-G.FEDERATION v ABUBAKAR (2007) 10 N.W.L.R. (Pt 1041) at PG 85, it was held by the Apex Court that the powers vested in the President are exercisable either directly or through the Vice- President, Ministers or officers in the public service of the Federation, those powers, to be legally exercised, must be expressly or impliedly donated by statute. See: CBN v NIGERIA BAR ASSOCIATION (SUPRA).

The EFCC is not vested with power to issue the Asset Declaration Directive under the EFCC Act

In seeking to justify the powers of the EFCC to issue the directive, there is the prevailing argument that seeks to contend that the powers of the EFCC under Sections 1(2)(C), 6, 7 and 13(2) of the EFCC Act to investigate and prosecute financial crimes, cover the issuance of the asset declaration directive. The argument seems plausible having regard to the decision of the Supreme Court in NIGERIAN ARMY v AMINUN-KANO (2010) 5 N.W.L.R. (Pt. 1188) 429 where it was held thus:

“It is the general practice of the courts, to read statutes on the same subject-matter together. Statutes are said to be of the same subject or matter, where they relate to the same thing or person or they have a common purpose. Such statutes are read, construed or applied together so that the intention of the legislature is discovered from the whole set of enactments on the same subject- matter”.

Inspite of the plausibility of the argument, the question is whether the two legislations cover the same subject-matter, and whether they can be both construed as to confer the power to issue the directives on the Chairman of the EFCC. The answers to those questions, respectfully, will emerge from the negative divide having regard to the provisions of Section 6 of the Bank Employees Etc Assets Declaration Act which provides:

6. Verification, etc., of Assets Declaration. The appropriate authority shall cause to be verified every Declaration of Assets Form and Annual Assets Declaration Form submitted under this Act, and may direct that a thorough investigation should be conducted into the assets and activities of the employee concerned including the assets and activities of his spouse, child, relative, parent, associate or privy.

By the above provision, upon receipt of the Asset Declaration Forms, the Appropriate Authority is required to verify the same and may direct that the assets and activities of an employee or his privies be investigated. It will be seen that the powers of the EFCC to investigate, arrest and prosecute financial crimes, can only be properly countenanced within the province of the directive of the Appropriate Authority to investigate assets of an employee and not to issue the directive.

It has been held in a plethora decisions of the Supreme Court that the provisions of the EFCC Act which generally regulates the investigation of financial crimes, cannot override this more specific provisions of the Bank Employees, etc. (Declaration of Assets) Act, which is the existing law that regulates the declaration of Assets by Bank Employees. See: INAKOJU v ADELEKE (2007) 4 N.W.L.R. (Pt. 1025) 427.

The provisions of the Bank Employees, ETC. (Declaration of Assets) Act are clear and unambiguous, and by the principle of statutory interpretation, they must be construed plainly within the crucibles of their plain and literal meaning. See: CORPORATE IDEAL LIMITED v AJAOKUTA STEEL (2014) 7 N.W.L.R. (Pt. 1405) 165.

In GUARANTY TRUST BANK v ADEDAMOLA (2019) 5 N.W.L.R. at Pg 30, an instruction issued by the EFCC to Guaranty Trust Bank (GTB) to freeze the funds standing to the credit of its customer on the basis of an ongoing investigation in purported exercise of its powers under the EFCC Act, was held to be unconstitutional, null and void. In condemning the brazen resort of the EFCC to illegality in seeking to perform a legal function, it was held:

“…It is in the interest of both Government and citizens that laws are respected, as respect for the rule of law promotes order, peace and decency in all societies, we are not an exception. Our financial institutions must not be complacent, and appear toothless in the face of brazen and reckless violence to the rights of their customers.”

Relying on the admonition in the above decision, financial institutions must not be complacent and appear toothless in the face of brazen and reckless violence to the rights of their employees, and the EFCC’s resort to lawlessness in seeking to solve an illegality by extra-legal and extra-judicial means.

Conclusion

Globally, the hydra-headed monster of cross border illicit financial flows and the increasing link of some of the illicit funds to terrorism, has precipitated the need for ingenious and innovative means by governments to stem the tide of the flows. According to Transparency International in partnership with CISLAC, an estimated sum of $15.7 billion illicitly leaves Nigeria’s financial system annually.

However, the Economic and Financial Crimes Commission cannot in a bid to proffer a panacea for illegality resort to illegality. Perhaps, the admonition of the Supreme Court in the case of ATTORNEY-GENERAL OF LAGOS STATE v ATTORNEY-GENERAL OF THE FEDERATION (2007) 4 N.W.L.R. (Pt. 1025) 427 is instructive:

“In addition, the “executive powers of the Federation”, is vested in the President by Section 5 subsection (1)(a) of the Constitution and such powers extend to the execution and maintenance of the Constitution. This is certainly so, but the question is does such power extend to the President committing an illegality? Certainly the Constitution does not, and could not have intended that.”

Richard Abdulahi, Legal Practitioner, Lagos