Nigerian Lawyers as an Endangered Species – Olukayode Majekodunmi
In 2015, Justice Gabriel Kolawole of the Federal High Court sitting in Abuja, delivered a judgment in the case of Registered Trustees of Nigeria Bar Association vs. Attorney General of the Federation and Central Bank of Nigeria suit No: FHC/BS/173/2014.
The decision effectively struck out Legal Practitioners as one of the non-financial institutions required to file Cash Transaction Report with Special Control Unit Against Money Laundering “SCUMUL”, an enforcement hitherto under the Economic and Financial Crimes Commission- EFCC pursuant to the provisions of the Money Laundering (prohibition) Act 2011.
The EFCC sometime in 2017 placed a freezing order on the account of Mike Ozekhome, SAN where N75milion was reportedly found or traced to have been paid by the Ekiti State Governor, Mr. Ayo Fayose. The contention of Messrs Ozekhome and Fayose was that the money was the professional fees of the learned silk for his services to the government of Ekiti state in several legal matters.
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The peremptory act of EFCC procuring a freezing order on Ozekhome’s account brought to fore afresh issues relating to relationship between legal practitioners and their client legal practitioners Vis a viz the Money Laundering (Prohibition) Act 2011.
The trial judge, Justice Abdulazeez Hanka found in favour of Ozekhome and described the action of EFCC as illegal, unconstitutional and unorthodox for freezing the senior lawyer’s chambers account into which N75m was paid by Governor Fayose of Ekiti state, as part payment of his professional fees for eight cases the lawyer was handling for the governor and the state.
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In a related case, Fayose then governor of Ekiti State challenged EFCC where the commission had frozen his personal account after they allegedly said they traced N4.7b from the office of the National Security Adviser to his account.
The governor had approached the Federal High Court by an ex parte order seeking a mandatory order defreezing the accounts but after directing that the respondents be placed on notice and taking the response of the EFCC, Justice Taiwo in a considered judgment held that the Commission’s actions breached the governor’s fundamental rights to fair hearing as the Commission did not make him a party to the proceedings for the interim freezing of the accounts.
The focus of this piece is to take another look at cases of Lawyers in Nigeria and their inglorious encounters with EFCC. The criminal matter instituted by the EFCC against the President of NBA, Paul Usoro is very instructive as it manifests the intention of EFCC to harass, intimidate and force the legal practitioners into submission.
This focus will be particularly important in the light of the decision of Justice Kolawole which effectively struck out legal practitioners as one of the non-financial institutions required to file Cash Transaction Report with Special Control Unit Against Money Laundering “SCUMUL”, an enforcement entity under the EFCC pursuant to the provisions of the Money Laundering (prohibition) Act 2011.
In a communique issued at the end of NBA’s National Executive Council, NEC, meeting held in Abuja, the association insisted that the fees that are paid by a client to his lawyer are not only a matter of privilege but also contractual.
The NBA communique spoke against the background of arraignment of Paul Usoro in a Federal High Court in Lagos, over N1.4 billion money laundering allegations levelled against him by the EFCC. The sum was alleged to have been received from the Akwa Ibom State Government. It was noted that Usoro was investigated by the EFCC based on the inflow of the sum of N300m inflow into his law firm’s account on March 14, 2016. It was also further said that he reported that subsequent disbursements from the account went to various Legal Practitioners between March 22 and 23, 2016.The NBA NEC observed that the inflow was payment by Governor Udom Emmanuel of Akwa Ibom State in respect of an Election Petition Appeal that was determined by the Supreme Court, for which Usoro served as the coordinating counsel.
The NBA said it observed that the EFCC appeared to be straining hard to criminalise the fees that were earned by the lawyers for their legitimate work. It said “Usoro’s case was not the first of these intrusions. There was also reference made to the case of Mike Ozekhome, when the EFCC attempted to forfeit his fees on the pretext that the funds came from illegal sources. The NBA also said: “If these EFCC incursions are not checked, the Bar and the practice of our profession are doomed.”According to the NBA, the practice of law is founded on the independence of the Legal Practitioner and his courage to advocate on behalf of his client to the best of his ability and conviction.
The association held and one should agree that client, lawyer privilege has over time been judicially and historically acknowledged. Until the ill-advised onslaught by EFCC on the Legal Profession it was reasonably settled law that issues of fees, as between a lawyer and his client, was a matter of privilege.
The NBA referred to the recent decision of the Court of Appeal in the matter between Central Bank of Nigeria v Registered Trustees of the NBA which affirmed this position. It is setting a bad precedent for lawyers’ fees to be questioned especially in the light of recent cases that said otherwise. 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 the courts in this regard.
The implication of the prosecution of Paul Usoro for his earnings from Akwa Ibom state government is a very bad development that tends to promote impunity. There is a subsisting decision of justice Gabriel Kolawole that legal practitioners cannot be prosecuted under the money laundering act and it is settled that that decision is yet to be set aside. So on what basis are lawyers still being harassed without just cause in contravention of the judgement of a Court of Superior record?
The legal profession should show its spine to stare down the unfolding Monster of Frankenstein and speak with one voice not because it is Paul Usoro, but in the lager interest of our noble profession, and the liberty and dignity of all Legal Practitioners.
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