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

Editors Note; Originally published in
Thisday^[1]

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)

Editors Note; Originally published in
Thisday^[1]

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)