Chelsea Ifeyinwa Obianwu
This intervention attempts to situate the challenges being faced by lawyers in their practice vis-a-vis attempts by the Economic and Financial Crimes Commission (EFCC) at emasculating the profession.
Without prejudice to the ongoing trial of the president of Nigeria Bar Association, NBA, Mr Paul Usoro, one cannot go into the merits of the case because it is sub judice, l am looking beyond the case but speaking in generic terms on the danger posed to the legal practice by the EFCC.
According to the EFCC, the allegations against Mr. Paul Usoro (SAN) relate to converting to personal use, concealing the source of, disguising the origin of and retaining in his account, sums of money to the tune of billions of Naira belonging to the Akwa-Ibom State Government. It alleged that Mr. Usoro (SAN) committed the offences in 2015 and 2016 and named Governor Emmanuel Udom of Akwa-Ibom State and others as Mr. Usoro’s accomplices.
In the charge marked FHC/418C/18, the EFCC alleged that Mr. Usoro (SAN) converted and laundered the sum of N1.4billion in connivance with Governor Udom Emmanuel of Akwa-Ibom state and some other persons.
The offence allegedly committed by Mr. Paul Usoro (SAN) was alleged to be contrary to Section 18(A) of the Money Laundering (Prohibition) Act, 2011 and punishable under section 15(3) of the same Act.
However, under interrogation, Mr. Usoro (SAN) explained that the various sums of money paid to his law firm by the Akwa-Ibom State Government, under the Administration of Governor Udom Emmanuel, were payments for legal fees to him and other eminent members of the Inner Bar and a host of other members of the Outer Bar that he had engaged to work with him in respect of the Election Petition matter involving the Governor Emmanuel Udom. He also stated that the payments were Independent transactions and that the Akwa-Ibom State Government’s payments-on-account were in respect of his firm’s professional services to the state, while payments to the Senior Counsel were made by him for and on behalf of Governor Emmanuel Udom, at the Governor’s request.
Mr. Usoro (SAN) also raised the issue of “client-lawyer privilege” stating that both judicially and historically, the issue of fees, as between a lawyer and his client, is a matter of privileged.
In response, the acting spokesman of the anti-graft agency, Tony Orilade, Stated that what is at stake in the matter is the legitimacy of the source of the money used for the various payments.
From a careful perusal of the charge sheet, as preferred by the anti-graft agency, and in juxtaposition with the facts that gave rise to this matter, it becomes very clear that notwithstanding the manner in which the charges were couched, the case of the EFCC against Mr. Usoro (SAN) borders on the issue of professional fees paid to the law firm of Mr. Usoro (SAN) by the Governor of Akwa-Ibom State, Governor Udom Emmanuel for various legal services rendered to him by the chambers of the Learned Silk. And as has already been decided by the courts, even in recent times, such issues of payment of professional fees, as between a lawyer and his client, remains a matter of privilege.
The court has also decided that the client/lawyer relationship is a contractual one and that non-parties to that contract cannot meddle in it. The courts have opined that non-parties to that contract are complete strangers thereto and lack the locus standi to question and/or determine the propriety of such contract(s). The recent decision of the court of Appeal, delivered on the 14th day of June, 2017 in the case of Registered Trustees of Nba vs Attorney General of the Federation and Central Bank of Nigeria. Where the court held that the EFCC stands in that position of a total stranger in matters of such nature and so lacks the locus standi to question the basis for the fees paid to a lawyer by his client, for the lawyers professional services rendered to the client.
In that case, the Nigerian Bar Association (NBA) instituted an action against the Attorney General of the Federation and the Central Bank of Nigeria (CBN), seeking to bar the defendants from enforcing the provisions of the Money Laundering (Prohibition) Act, 2011 against legal practitioners.
In a judgment delivered by Justice Gabriel Kolawale of the Federal High Court in Abuja, the court held that the provisions of the Money Laundering (Prohibition) Act, 2011 as it applies to Legal Practitioners are null and void. It also adjudged the inclusion of Legal Practitioners in the definition of Designated Non-Financial Institutions (DNFIS) as inapplicable.
Justice Kolawale also granted an order of perpetual injunction restraining the Federal Government the Central Bank of Nigeria, and the Special Control Unit against Money Laundering (SCUML) from seeking to enforce Section 5 of the Money Laundering Act, 2011 against legal practitioners.
In an originating summons dated the 15th day of March, 2013, taken out on behalf of the Registered Trustees of the NBA by Chief Wole Olanipekun (San) Mrs. Babajide Ogundipe, Emeka Nwadike, and Davidson Oturu, the NBA asked the court to declare that the provisions of Section 5 Money Laundering Act (MLA), in so far as they purport to apply to legal Practitioners, are invalid, null and void. And also, for an order of court deleting Legal Practitioners from the definitions of Designated Non-Financial Institutions (DNFIs) as contained in Section 25 of the Money Laundering Act (MLA) 2011, an order of Perpetual Injunction restraining the Federal Government, acting through the Special Financial Intelligence Unit (NFIU), the Economic and Financial Crimes Commission (EFCC) or howsoever from seeking to enforce the provisions of Section 5 of the MLA in relation to Legal Practitioners, among other reliefs.
Justice Kolawole raised 3 issues for determination thus:
1. Whether Section 5 of the Money Laundering (Prohibition) Act, 2011 is unconstitutional.
2. Whether the Special Control Unit against Money Laundering (scuml) is the body authorised to regulate the conduct of legal practitioners and whether it is a juristic body; and
3. Whether in view of the Legal Practitioners Act (lpa) the evidence act, 2011 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the legal profession is not already well-regulated?
Justice Kolawole resolved all the 3 Issues in favour of the plaintiff. In resolving the first issue, the court held that in so far as Sections 5 and 25 of the Money Laundering Act (MLA) 2011 seeks to impose sanctions on the Legal Practitioner they run contrary to the provision of the Legal Practitioners Act (LPA), the Rules of Professional Conduct for Legal Practitioners, and Section 192 of the Evidence Act,2011.
On issue 2, the court held that the Special Control Unit against Money Laundering (SCUML) is not a juristic person being a creation of the Ministry of Trade and Commerce; which is also not a body known to law. The court further held that the Federal Executive Council could not, by a resolution, confer on SCUML, juristic personality. His Lordship also noted that there is no nexus between SCUML and Legal practitioners and that it was improper for SCUML to seek to exercise oversight powers over the plaintiff. He further held that even if any oversight powers were to be conferred on any ministry, it ought to have been the Ministry of Justice.
Justice Kolawole observed that the sanctions for non-compliance with Section 5 of the MLA include banning the Legal Practitioner from engaging in legal practice. He held that the legal practitioners Act has already made provisions for the manner in which a Legal Practitioner can be disciplined where his conduct falls bellow prescribed standards of rules guiding the profession. According to His Lordship, since the Minister of Trade and Commerce neither issued the Call to Bar certificate nor entered the name of any Legal Practitioner in the Roll, he had no right to disqualify any Legal Practitioner.
Issue three was also resolved in favour of the plaintiff as the court, per Justice Kolawole, held that the Legal Profession is already well-regulated by the respective provisions of the Legal Practitioners Act, the Rules of Professional Conduct for legal practitioners, and the Evidence Act; which all deal specifically with the practice of law. He opined that these laws already have a well-defined mechanism for ensuring accountability and discipline among Legal Practitioners.
The court further held that no other body can sanction a legal practitioner without violating the provisions of the Legal Practitioners Act which is an act promulgated principally for regulating the legal profession.
Also, the case of Chief Mike Ozekhome vs EFCC is quite instructive on this issue. In that case, the issue bordered on the sum of N75million paid into Chief Ozekhome’s account by the Governor of Ekiti State, Mr. Ayodele Fayose, as professional fees for legal services rendered to him by the Learned Silk. The EFCC via a court order froze Chief Ozekhome’s account on the allegation that it suspected that the money deposited into the lawyer’s account on the 15th of December, 2016, was proceeds of crime.
On the 2nd of March, 2017, Chief Mike Ozekhome, by an application brought before the Federal High Court in Lagos, successfully challenged the order and his account was unfrozen by the court.
Now, the pertinent questions should be: why is the EFCC adamantly opposition the decisions of a court of competent jurisdiction by charging the President of the Nigerian Bar Association, Mr. Paul Usor (SAN) on a law (the MLA) which the court has clearly decided, does not apply to Legal Practitioners in the course of their legal practice? What exactly is the anti-graft agency going after and how willing are they to transgress our laws in order to achieve that? What exactly is the EFCC trying to prove by this trial? Is the anti-graft agency now wittingly and glaringly pushing to desecrate a valid decision of a court of competent jurisdiction? Is the EFCC now above the law that it does not respect the sanctity of our laws?
The facts that gave rise to the case against Mr. Usoro (SAN) by the EFCC brings a lot of questions to the mind and one begins to wonder how a Legal Practitioner, whose sacred responsibility it is to advocate on behalf of his client, to the best of his abilities and convictions, is supposed to carry out such an enormous responsibility when his independence and courage as a Legal Practitioner is now being threatened by the anti-graft agency. Does it now mean that lawyers have to constantly look over their shoulders as they do their job; trying to determine whether the EFCC would be coming after them too, solely on account of their courage and advocacy? If that becomes the norm, then legal practice and indeed the legal profession is doomed!
Obviously, it is for this same reason that the Nigeria Bar Association (NBA), the Umbrella body of legal practitioners in Nigeria, during her National Executive Committee (NEC) meeting in December, 2018 issued a warning against the EFCC on the 9th day of December, 2018, against meddling into client-lawyer contractual relationship.
As observed by the NBA NEC in December, 2018: “The EFCC appeared to be straining hard to criminalize the fees that were earned by lawyers for their legitimate work. The danger is that if this is allowed to continue unchecked, the Bar and the practice of our profession are doomed”.
Also, in the recent decision of the Court of Appeal delivered on the 14th day of June, 2017 in the case of Registered Trustees of the Nba vs A.G Federation and the Central Bank of Nigeria., the Court stated that:
“By questioning lawyers on the legitimate fees that they have earned from clients, the EFCC is breaching the lawyer-client privilege and showing complete disregard for the judgments of courts in this regard’.
The court, in that case, also opined thus:
“…As we all know, non-parties to a contract are complete strangers thereto and lack the locus standi to question and/or determine the propriety of such contract(s). The EFCC stands in that position in this and other matters of this nature. It lacks the locus standi to question the basis for the fees”.
The foregoing notwithstanding, the EFCC has and still is showing total disrespect for the rule of law and that shouldn’t be acceptable on any level.
Other serious questions begging for answers are: why should Mr. Usoro (SAN), or any other professional, have to worry his head about the source of the money paid to him as professional fee, after he has diligently rendered professional services to a client? What exactly did Mr. Usoro (SAN) do wrong in this scenario? Is the EFCC expecting him to play detective as to the legitimacy or otherwise of the source of the money paid to him as professional fees by Governor Emmanuel Udom? What exactly are the parameters for determining these issues of conspiracy, concealment, conversion etc, as alleged by the Anti-graft agency against Mr. Paul Usoro? Mr. Usoro being paid his duely earned professional fees, how does that breach anybody’s trust? Is the EFCC now undertaking to play the role of auditor and regulator of legal fees; which the courts and the extant laws applicable to legal practitioners clearly states that it can’t do?
He who comes to equity must come with clean hands. This is not just a saying.
The reality derivable from this incident is that every professional, and indeed, professional body, needs to show serious concern over this unfortunate development which is gradually turning out to be a modus operandi of some sort for the EFCC. Imagine as a professional, with an enormous responsibility to your clients, you now have to also, constantly look over your shoulders; fearing unreasonable and unwarranted harassment, as you try so hard to render quality services to your clients amidst harsh and very unpleasant situations that you already have to deal with.
It is the legal profession and legal practice that is under attack today, Yes! but it may be another profession or professional tomorrow.
We all need to be very careful about what we condone today, because it may come calling back tomorrow. However, it is left for the presiding judge in this matter to decide, one way or the other.
• Obianwu, a legal practitioner wrote from Awka