Full assessment of the efcc directive to Nigeria banks and bankers on assets declaration:

In discussing this topic, can we refer to 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.”

Nigeria has the Bank Employees, etc. (Declaration of Assets) Act (“BEDA Act”) which was made since 26 September 1986 (thirty-five years ago), it is lawful, valid and operational in all parts of Nigeria. The “BEDA Act” does not need an “EFCC Order” before any person can be investigated or prosecuted under the “BEDA Act”. Hence, the “EFCC Order” is a mere friendly “NOTICE” (reminder) of the existence of the “BEDA Act”. However, such reminder is unknown to law and the “BEDA Act”, it lacks the force of law, it is of no legal effect and a mere Noise.

The “BEDA Act” mandates all employees and former employees of the Nigeria Customs Service, the Central Bank of Nigeria, Banks, Bureau de Change, Cryptocurrencies operators and all other financial institutions in Nigeria or in foreign branches to declare their assets annually and to continue to do so even 2 years after termination of the employment. It also, allows the President of Nigeria to add more persons to the list of persons to be bound by the law to declare their assets.

Generally, Government orders are to be made by instruments published on the Federal Gazette. Specifically, sections 12 (2) and 13 of the “BEDA Act” permits only the President of Nigeria to make directions and regulations for the “BEDA Act”. Obviously, the 1986 “BEDA Act” never mentioned the office of the Chairman of the EFCC as the person to make any such directions. It is a power given to the President of Nigeria alone and there is no room for such powers to be delegated to another person.

In exercise of delegated law-making powers (quasi-legislative powers), the executive arms of government (like, the President, Federal Ministers, Heads of Federal Parastatals, Governors, State Commissioners and Heads of State Parastatals) make Executive Orders, Regulations and Rules for effective and efficient implementation of existing laws. Consequently, written Executive Orders, Regulations or Rules legally made by an executive government are binding Law.

It must be mentioned that mere television/radio comments, policy documents/broadcasts, social media posts or public threats and pleas of President, Governor or their agents is not law or regulation. At best, such threats/pleas are policy guidelines/directions and in Nigeria, policy guidelines of government are not laws. Unlike Executive Orders, Regulations or Rules which are law and having the force of law, policy documents/guidelines of government and other comments of government are not Law”. Consequently, the “EFCC Order” is not an executive order, regulation or law.

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 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 analyzed. 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 be curbed nor prosecuted. They are 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”.

Under 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. (Underline supplied for emphasis).

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.” (Underline supplied for emphasis).

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.

Conclusion:
The “EFCC Order” aforementioned is a mere “Notice” to the extent that it is a reminder of the existence of the “BEDA Act”, however, it is has no effect since it is not a binding regulation/directive of Federal Government and has no force of law. The grace period from 16 March 2021 to 1st June 2021 purportedly created by the “EFCC Order” is unknown to law, it is rather a violation of the “BEDA Act” and as such unlawful and illegal.
We refer to all cases above and authorities in butressing our point, thank you.

Authorities and contributory research:
1. Chief mike ozekhome papers on legality of efcc directive on bankers

Credits:ONYEKACHI UMAH papers and article on effc directive to bankers on assets declaration.

By :Samuel ihensekhien jnr(legal scholar)

D writer opined d truth yet went ahead tryin to turn logic on its head