23RD OF MAY, 2021
BY: CHIEF MIKE OZEKHOME CHAMBERS
The Court of Appeal, Lagos Judicial Division, in a well considered
judgement on Friday (May 14, 2021), dismissed an appeal filed by the
EFCC against the judgement of Justice Abdulazuz Anka of the Federal
High Court,
Lagos, delivered on 3,2017, and held in favour of the Respondent, Chief
Mike Ozekhome, SAN.
Justice Anka had defozen Ozekhome’s blocked account in Guaranty Trust
Bank and vacated the interim ex parte order he earlier placed on the funds
of Mike Ozekhome’s Chambers, at the instance of the EFCC.
The EFCC had obtained the interim ex parte order of forfeiture to freeze the
money for 120 days, arguing that the 75m transferred to the account was
proceed of unlawful activity, because it was paid to Ozekhome by the then
sitting Governor of Ekiti State, Mr Ayodele Fayose,whom it said it was
investigating.
The Court of Appeal in dismissing the appeal brought by the EFCC (FRN),
held that the EFCC had wrongfully obtained the ex parte order to freeze the
account as the lower court lacked the jurisdiction to grant same and as the
defendant could not have committed any infraction to warrant his account
being blocked and frozen.
The court after hearing arguments from U. U. Buhari for the Appellant
(FRN) and Ejieke Onuoha (for Ozekhome), held that there was
uncontradicted evidence shown in invoices and receipts issued by
Ozekhome to Fayose that the said sum represented part payment of his
professional fees in the handling of various cases for Fayose across
Nigeria.
It would be recalled that sometime in 2016, the EFCC had, through Justice
I.B.M Idris, then of the Federal High Court, Lagos, frozen Governor Fayose
‘s accounts, accusing him of allegedly keeping proceed of unlawful activity.
Fayose immediately engaged Ozekhome’s legal services and he
approached the Federal High Court, Ado Ekiti, presided over by Justice
Taiwo Taiwo, and challenged the ex parte freezing order granted by Justice
Idris.
In a judgment delivered by Hon Justice Taiwo Taiwo, the Judge had found
that the freezing order had been improperly granted and without jurisdiction
in the first place, and upon suppression of material facts.
Fayose after the judgment went to his bank and withdrew 5 million naira
from his defrozen account for himself, while transferring 75m to Ozekhome, as part payment of his professional fees.
The EFCC, though appealed this judgment, still went ahead and freezed
Ozekhome’s account, contending that the 75m paid to his chambers by
Fayose as professional fees for legal services rendered was proceed of
unlawful activity.
Ozekhome filed a motion before the Federal High Court, Lagos, urging it to
set aside its earlier order freezing his chambers’ account. He alleged
misrepresentation, non disclosure, suppression of material facts and non
compliance with the rules of the lower court and Judicial authorities
regulating the grant of ex parte applications by the Appellant. Justice Anka
after hearing arguments from Ozekhome and Mr Rotimi Oyedepo for the
EFCC vacated the ex parte order and defreezed his account with
GTBank.It was this judgement that the EFCC appealed to the Court of
Appeal.
In an unanimous judgment delivered by the presiding Judge, Hon Justice
Chidi Nwaoma Uwa, with Justices Tunde O. Awotoye and James Gambo
Abundaga, JJCA, (the other two members of the Panel), concurring, the
Court of Appeal dismissed the appeal and found as of fact that the bank
account from which Fayose paid the fees was unencumbered as at the timehe did having been defozen by Justice Taiwo of the Federal High Court,
Ado Ekiti.
The court found and held that the said order of Justice Taiwo which had
vacated the order of Justice Idris (a court of equal and coordinate
jurisdiction (as permitted by the Supreme Court under certain conditions),
remained the extant law as it was still valid, subsisting and binding, having
not been set aside by an appellate court or by the trial court itself.
The Court of Appeal also agreed with the lower court and held that from
available evidence on record, the disputed amount having already been
dissipated by the Respondent as at the time it was frozen by the lower
court at the instance of the EFCC, the lower court did not have the requisite
jurisdiction to have granted such freezing order in the first case.
The court also held that the said sum of 75m was lawful proceed for legal
services duly rendered to Fayose by Ozekhome, and not proceed of
unlawful activity.
The Court of Appeal also agreed with the lower court, relying on the case of
REGISTERED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION V
AG, FEDERATION & CBN (Suit No. FHC/CS/173/2015), decided in 2015,
by the Hon Justice Gabriel Kolawaole (then of the Federal High Court,
Abuja), and later upheld by the same Court of Appeal in appeal No.
CA/A/202/2015 (CBN V REGISTERED TRUSTEES OF THE NBA), that
Legal Practitioners are excluded and exempted from the definition of
“DESIGNATED NON-FINANCIAL INSTITUTIONS”, as contained in section
25 of the MONEY LAUNDERING (PROHIBITION) ACT, 2011. The section
had been declared invalid, null and void, being inconsisted with the
overriding section 192 of the Evidence Act. The Court of Appeal held this
remains the extant law.
The court also agreed with the finding of the lower court and held that the
failure of the EFCC to give security or undertaking to pay damages as one
of the conditions precedent to the grant of an interim injunction, as held by
the Supreme Court in KOTOYE V CBN was fatal to its case. The court dismissed the Federal Government’s contention that it was not afforded fair
hearing before the lower court vacated its freezing order.
The Court of Appeal held that it was rather the Respondent (Ozekhome)
that was denied fair hearing before the order affecting him was made ex
parte. Consequently, the Respondent was perfectly entitled to have the
order reviewed by the trial court before the expiration of its life span of 120
days, by putting forward his uncontradicted facts and exhibits, as he did.
The court further held that an ex parte order is expected to be short as an
interim measure, and that the lower court was right to have discharged the
order it earlier made before its lifespan of 120 days, having found that it had been misled in granting same, based on suppression of material facts by the EFCC.
On whether a legal practitioner is legally obliged to begin to ask a client for
the very source of his money from which the client desired to pay lawyer,
the court said there was no such requirement known to law.
It held that:
“a Legal Practitioner is entitled to his fees for
professional services and such fees cannot be rightly
labelled as proceeds of crime. It also held, “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 “.
