Court Of Appeal Voids EFCC’s Seizure Of Mike Ozekhome’s Professional Fees

…Says a Lawyer is Entitled to His Professional Fees
FEES

[Thebossnews] 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 judgement 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 judgement 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 judgement, 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 judgement 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 time he 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 was denied fair held that it was rather the
hearing b efore 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 uncontradicte d 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 earl i er made before its lifespan of
120 days been misled in granting same, , having found that it had
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 whi ch the
client desired to pay the court said there was no such requirement
known to law. It held that : lawyer, “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.”

…Says a Lawyer is Entitled to His Professional Fees
FEES

[Thebossnews] 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 judgement 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 judgement 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 judgement, 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 judgement 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 time he 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 was denied fair held that it was rather the
hearing b efore 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 uncontradicte d 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 earl i er made before its lifespan of
120 days been misled in granting same, , having found that it had
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 whi ch the
client desired to pay the court said there was no such requirement
known to law. It held that : lawyer, “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.”