Whether Non-Declaration of Assets Under Section 27 of the EFCC (Establishment) Act, 2004 is a Strict Liability Offence

CASE TITLE: FRN v. YABO (2023) LPELR-60730(CA

JUDGMENT DATE: JULY 17, 2023

JUSTICES : MUHAMMED LAWAL SHUAIBU, JCA
RIDWAN MAIWADA ABDULLAHI, JCA
EBIOWEI TOBI, JCAA

DIVISION: CRIMINAL LAW AND PROCEDURE

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

FACT:

This is an appeal against the judgment of the High Court of Sokoto State (trial Court).

The defendant now the respondent on appeal was charged before the trial Court with the offence of failure, neglect and refusal to declare his assets punishable under Section 27 (3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004. The respondent was investigated by the Economic and Financial Crimes Commission for the offence of criminal breach of trust and in the course of investigation he failed, neglected and refused to declare his bank account number 0501003917 allegedly used in perpetrating the offence for which he was being investigated.

The respondent pleaded not guilty to the charge and at the trial, the prosecution called three witnesses and tendered his extrajudicial statements, the E.F.C.C. Asset Declaration Form and the written statement of Pw3, marked Exhibits A, B, C and D respectively. The respondent as Dw1 testified for himself and he did not tender any Exhibit at the trial. At the end of the trial and in a reserved but considered judgment delivered on 31/03/2020, the trial Court found that the prosecution has failed to prove all the ingredients of the offence for which the defendant was charged and therefore discharged and acquitted him.

Dissatisfied with the judgment of the trial Court, the Appellant (Prosecution) appealed.

ISSUE(S):

The appeal was determined on the following issue:
“Whether the appellant has proved the allegation against the respondent.”

COUNSEL SUBMISSION(S):

The appellant argues that the respondent was aware of the requirement to fill out an assets declaration form but intentionally omitted certain information, leading to the accusation of non-compliance. They believe that the prosecution has provided enough evidence to demonstrate this, and therefore, the trial judge’s decision to acquit the respondent was incorrect.

On the other hand, the respondent’s counsel contends that the prosecution must establish a clear connection between the alleged offense and the evidence presented to prove it beyond reasonable doubt. They argue that the charge does not specifically mention the failure to declare a particular bank account, only the failure to declare all assets. They assert that the evidence presented by the prosecution does not align with the facts constituting the offense. They refer to a previous legal case to support their argument.

Regarding the appellant’s claim that the offense of failing to declare assets is a strict liability offense, the respondent’s counsel argues that the charge itself suggests a need to prove knowledge on the part of the accused regarding the alleged act. They conclude that, based on the charge and the evidence presented, the prosecution failed to meet the burden of proving the allegation against the respondent beyond reasonable doubt.

DECISION/HELD:

In the final analysis, the appeal was allowed. The judgment of the trial Court was set aside, and in its place, the respondent was found guilty of the offence charged.

RATIO:

CRIMINAL LAW AND PROCEDURE – STRICT LIABILITY OFFENCE(S): “Whether the offence of failure, negligence, or refusal to disclose assets under Section 27 of the EFCC (Establishment) Act, 2004 is a strict liability offence; burden and standard of proof required”

“The question then is: is the offence with which the respondent was tried in the Lower Court a strict liability offence?

The pertinent provisions of Sections 27(1) and (3) of the E.F.C.C. (Establishment) Act, 2004 emphatically state as follows:

“27(1): Where a person is arrested for committing an offence under this Act, such a person shall make 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.
(3) any person who
(a) knowingly fails to make full disclosure of his assets and liabilities, or
(b) knowingly makes a declaration that is false, or
(c) fails, neglects, or refuses to make a declaration or furnishes any information required in the Declaration of Assets Form, commits an offense under this act, and is liable on conviction to imprisonment for five years.”

It is settled that the prosecution is to prove beyond reasonable doubt the ingredient of a charge by established facts. However, if there is anything to remove from the case of the accused person from any of the already established facts, the evidential burden is on him to adduce such facts and to establish them to the satisfaction of the Court before the eventual burden could again shift to the prosecution. See OJOKWU v. F.R.N. (2020) 5 NWLR (PT.1717) 356. In the instant case, the evidence of Pw1 and Pw2 explicitly shows that the respondent was fully aware of his responsibility to declare his assets on the Assets Declaration Form. It is also apparent in Exhibit C that the respondent did not state anything regarding account No. 0501004317, domiciled with Yabo Micro Finance Bank. In his evidence, PW2 stated on page 83 of the record thus:

“On the issue of non-declaration of account No:0501004317 in respect of Aliyu Mal. Yabo domiciled in Yabo Micro Finance Bank, we ask him to clarify why he did not declare it. He said he forgot.”

It is thus my view that, having adduced evidence of the respondent`s failure to make a declaration in respect of the said account no. 0501004317, the evidential burden is on the respondent to adduce such facts to justify the failure, neglect, or refusal. In other words, the prosecution, in my view, had established actus reus, and being a strict liability offense, they were not required to prove mens rea. The requirement of the presence means rea is thus presumed for such an offense.” Per Shuaibu, J.C.A.

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