WHETHER A LEGAL PRACTITIONER IS REQUIRED TO INVESTIGATE THE SOURCE OF MONEY PAID TO HIM AS PROFESSIONAL FEES IS NOT FROM AN ILLICIT ACT OR PROCEEDS OF UNLAWFUL ACTIVITIES

CASE TITLE:                           FEDERAL REPUBLIC OF NIGERIA v. CHIEF MIKE OZEKHOME (SAN) (2021) LPELR-54666 (CA)

JUDGMENT DATE:               14TH MAY, 2021

JUSTICES:                              CHIDI NWAOMA UWA JCA

TUNDE OYEBANJI AWOTOYE JCA

JAMES GAMBO ABUNDAGA JCA

PRACTICE AREA:                  Legal Practitioner – Payment of Fees

FACTS:

The Appellant had obtained from the Federal High Court, Lagos, an ex – parte order of interim attachment and an order freezing for a period of one hundred and twenty (120) days, an account belonging to and operated by Mike Ozekhome’s Chamber (Respondent’s chambers). The order had been granted on the basis of the ex – parte application and evidence tendered solely by the Appellant.

Subsequently, Mike Ozekhome filed a motion before the trial Court praying the Court to vacate the interim order freezing his Chambers account based on the grounds of suppressed facts, non-compliance with the rules of the trial Court and judicial authorities regulating the grant of ex – parte applications which were breached by the Appellant. In its considered ruling, the trial Court granted Mike Ozekhome ‘s prayers by setting aside the interim order freezing the account belonging to and operated by his Chambers.

Aggrieved, the Appellant appealed to the Court of Appeal.

ISSUE(S) FOR DETERMINATION:

The appeal was determined upon consideration of the following issues:

I) “Whether having regards to the facts and circumstances of this case, the Court below has the requisite jurisdiction to set aside its own order of interim attachment before the expiration of 120 days granted to the Appellant to conclude its investigation.

(ii) Whether having regards to the facts and circumstances of this case, the learned trial Judge was not in error when in setting aside its own order relied on the evidence that the sum of N75,000,000.00 (Seventy-Five million naira) received by the Respondent was for services rendered but failed to rely on the evidence of the Appellant showing that the said sum was proceeds of the unlawful activities of the Respondent’s client and his cronies.

(iii) Whether the lower Court was not in error when it held that Legal Practitioners are excluded from the definition of Designated Non – Financial Institution contained (sic) Section 25 of the Money Laundering Prohibition Act, 2011 as amended and not under obliged (sic) to comply with the provision of Section 10 of the said Act.”

COUNSEL SUBMISSIONS

Appellant’s Counsel submitted that the jurisdiction of the Court to set aside its own order or that of a Court of co-ordinate jurisdiction is not only rare but, special and that the trial Court erred when it set aside an order it made with requisite jurisdiction, without any evidence, misrepresentation or suppression of facts before it. It was contended that the application of the Respondent to set aside the interim order was premature in that the interim order was for a specific number of days which had not lapsed.

It was argued that the Respondent knew the source of the money he received and that the fact that the account which housed the proceeds of the alleged unlawful act was not under the interim order of attachment could not be a ground for the Respondent to receive, retain, use and or take possession of funds which he ought to have known, resulted from unlawful activities.

Appellant’s Counsel also contended that the trial Court erred in law when it held that legal practitioners are excluded from the statutory list of Designated Non-Financial Institutions, contrary to the provisions of Section 25 of the Money Laundering Prohibition Act, 2011, as amended and that the role of the Court is to interpret the law and not to amend same.

On the other and, Respondent’s Counsel submitted that a Court of Law has the inherent power to set aside its decision or that of a Court of co-ordinate jurisdiction in certain circumstances and that there was copious evidence attached to the motion to vacate the ex-parte order, to show that the professional fee was paid to the Respondent from a Court ordered de-frozen account including a withdrawal by the account holder.

It was contended that the order was made without jurisdiction ab initio and ought to have been set aside with or without application by the Respondent. It was finally submitted that the law does not require a legal practitioner to enquire about the source of the money from which he is paid his legal services, especially from a State Governor and that the provisions of Section 25 of the Money Laundering Prohibition Act, 2011, (as amended) does not apply to Legal Practitioners.

RATIOS:

1. LEGISLATION – MONEY LAUNDERING (PROHIBITION) ACT: Whether legal practitioners are excluded from the definition of “Designated Non–Financial Institutions” contained in the Money Laundering Prohibition Act, 2011 –

“Whether legal practitioners are excluded from the definition of “designated non-financial institutions” contained in the Money Laundering Prohibition Act, 2011? The learned counsel to the Respondent had argued that the Legal Practitioners are excluded from the definition of designated non-financial institutions as contained in the Act, while the learned counsel to the Appellant submitted otherwise. There is no dispute that in a decision of the Federal High Court in Suit No. FHC/CS/173/2015, REGISTERED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION VS. A.G. FEDERATION & CBN, his lordship Kolawole, J. (as he then was) held that legal practitioners are excluded from the definition of designated non-financial institutions as contained in the Money Laundering Prohibition Act, 2011 (hereafter referred to as the Act) as far as it applies to legal practitioners invalid, null and void, Section 25 of the Act which was held to be inconsistent with Section 192 of the Evidence Act, therefore Section 25 of the Act would give way to Section 192 of the Evidence Act, it cannot override or amend the Evidence Act. The decision of Kolawole, J. has not been set aside but, rather upheld by this Court, in Appeal No. CA/A/202/2015, CBN VS. REGISTERED TRUSTEES OF THE NBA (unreported). The above decision has defined the law until it is set aside. The learned counsel to the Appellant has neither argued nor shown that it has been set aside by the Supreme Court, his argument seems to challenge the decision of Kolawole, J. (as he then was) which is not on appeal before this Court. See AKINTOKUN VS. LPDC (2014) LPELR-22941 (SC) PP. 64-66 PARAS. F-B. The GOVERNOR OF KADUNA STATE VS. LAWAL KAGANA (1982) LPELR-3176 (SC) PP. 41-43, PARAS. B-C, UWAIFO VS. A-G BENDEL STATE & ORS (1982) LPELR-3445 (SC) P. 51, PARAS. D-F, ONYEMA & ORS VS. OPUTA & ANOR (1987) LPELR-2736 (SC) PP. 83-84, PARA. B, IBIDAPO VS. LUFTHANSA AIRLINES (1997) LPELR-1397 (SC) P. 59, PARAS. A-B and IKINE & ORS VS. EDJERODE & ORS (2001) LPELR-1479 (SC) PP. 26-27, PARAS. E-C. The lower Court was right to have followed the decision in CBN VS. REGISTERED TRUSTEES OF THE NBA (supra) which reaffirmed the position of the law to the effect that Legal Practitioners are excluded from those tagged “Designated Non-Financial Institutions” under Section 25 of the Money Laundering Act, 2011.” Per CHIDI NWAOMA UWA, J.C.A.

• LEGAL PRACTITIONER – PAYMENT OF LEGAL FEES: Whether it is a requirement of the law that a legal practitioner must find out the source of the fund from which he would be paid –

“The learned counsel to the Appellant had argued that the Respondent ought to have known that the source of money paid to him as professional fees was from an illicit act or “proceeds of unlawful activities.” No doubt a Legal Practitioner is entitled to his fees for professional services rendered and such fees cannot be rightly labeled as proceeds of crime. Further, it is not a requirement of the law that a legal practitioner would go into inquiry before receiving his fees from his client, to find out the source of the fund from which he would be paid. There was nothing on record at the time the money was paid to the Respondent’s Chambers to show that the money was from the proceeds of unlawful activities and the lower Court was right not to have agreed that the money was from unlawful activities.” Per CHIDI NWAOMA UWA, J.C.A.

• JUDGMENT AND ORDER – EX-PARTE ORDER: Whether a party affected by an ex–parte order can apply to have the issuing Court set it aside; life span of an ex–parte order – “the entire proceeding was conducted in accordance with the Rules of the lower Court which allows a party affected by an ex-parte order to apply to have the issuing Court to set it aside within Seven (7) days as set out in Order 26 Rule 9 (1) of the Federal High Court Rules. See, TITILAYO PLASTIC INDUSTRIES LTD & ORS VS. FAGBOLA (2019) LPELR-47606 (SC) and GODDY OKEKE & ORS VS. CHIEF MICHAEL OZO OKOLI & ORS (1999) LPELR-6638 (CA), both decisions are to the effect that the life span of an ex-parte order is short lived and there is nothing wrong in discharging same in less than 120 days as earlier granted but, when the trial Court found out that some facts had not been disclosed before the grant was right to have discharged same having found that material facts had been suppressed and not brought to his Notice before the grant.” Per CHIDI NWAOMA UWA, J.C.A.