MONEY LAUNDERING: MUZZLING THE LEGAL PRACTICE

TRACKING>>Osa Director argues that the trial of Paul Usoro, President of the Nigerian Bar Association, is baseless

The decibel of noise that accompanied the arrest of Paul Usoro, a Senior Advocate of Nigeria, and President of the Nigerian Bar Association (NBA), was deafening and thunderous.

Usoro was invited by the Economic and Financial Crimes Commission (EFCC) on an allegation of money laundering, having been accused of receiving N1.4billion from the Akwa Ibom State Government.

Although several subterranean plots might have engineered the buzz that trailed the NBA President’s arrest and consequent trial, not a few believed in Usoro’s innocence until proven guilty.

His election as the NBA President also happened on a controversial note. Some even averred that being part of the defence team for the embattled Senate President Bukola Saraki and his affinity for taking briefs from the Peoples Democratic Party (PDP) governors contributed immensely to the decision of certain forces in high places to move against him.

All these conjectures and conspiracy theories amount to mere politics, full of sound, fury and hubris, signifying nothing tangible or specific. What is of significance, however, is whether the case against Usoro can be sustained by the EFCC in the light of existing legal precedents and extant laws. And this is without prejudice to the ongoing trial as the matter is sub judice.

Since the war against corruption took a new intensity under the present regime, many Nigerians had hoped for conviction of the so-called powerful elite and high- profile cases. But in truth, nothing significant has been achieved in that direction.

In the light of the failure of anti-graft bodies, EFCC inclusive, to secure decisive victories in high-profile cases involving prominent Nigerians, it has become pertinent to evaluate the prosecutorial tactics and strategies of the anti-corruption agency.

Usoro is being tried for money laundering by receiving payment for his legal services to the Akwa Ibom State Government. He is being tried for laundering to the tune of N1.4billion.

And by the way, Usoro had been counsel to the Akwa Ibom State government, handling several briefs for the state government, right from the time of Obong Victor Attah to Godswill Akpabio as governor where he is being owed billions of naira.

Several sums of money totalling N1.1billion were paid into Usoro’s law firm account by the government of Akwa Ibom State between 2015 and 2016. Another N300 million was paid in cash into the law firm account of Usoro by Governor Udom Emmanuel.

Now, he is facing trial for laundering the total sum of N1.4billion paid to his chambers’ account by the government of Akwa Ibom State.

Can the EFCC sustain a case of criminal trial against Usoro, based on these allegations? When accused persons, especially public figures, are standing trial in Nigeria today, any act done by anyone that tends to favour such accused persons is usually interpreted as being induced financially.

In essence, it is a risky business to offer defence in the public sphere on behalf of any prominent Nigerian accused of corruption without a mob response and lynch mentality from the largely ill-informed, who are unwilling to analyse issues based on verifiable facts, legal precedents and extant laws.

Without sounding apologetic, let me state from the outset that I have never met Usoro in my life. As a lawyer, I also confess that he was not my candidate for the NBA Presidency. I vigorously campaigned for my friend, a consummate law teacher, Professor Ernest Ojukwu, SAN. But what is fair is fair, irrespective of tribe, religion, ideological differences and persuasions.

Only recently, another legal practitioner, Mike Ozekhome, SAN, had his account frozen by the EFCC for receiving N75 million as a legal professional fee from a former Governor of Ekiti State, Ayodele Fayose. Ozekhome had challenged the action at the Federal High Court in Lagos, saying the money paid was his professional legal fee. Not surprisingly, Ozekhome won his case, as the EFCC action was declared illegal, null and void, and consequently, of no effect by the court.

According to Justice Anka of the Federal High Court, “the funds are monies paid for the services rendered by the respondent/applicant in prosecuting various actions before various courts. I find it very doubtful if the objection of the EFCC can be lawfully sustained.”

Justice Anka’s decision is certainly not unrelated to the judgment of Justice G.O. Kolawole, of the Federal High court, Abuja, delivered on December 14, 2015, in the case of THE REGISTERED TRUSTEES OF NIGERIAN BAR ASSOCIATION AND CENTRAL BANK OF NIGERIA Suit No: FHC\B5\173\2014.

In that matter, the Registered Trustees of the Nigerian Bar Association, NBA, sued the Attorney-General of the Federation and the Central Bank of Nigeria (CBN), seeking inter alia “whether in light of the provisions of Section 37 of the Constitution of the Federal Republic of Nigeria, Section 192 of the Evidence Act, 2011 and rule 1a(i) of the Rules of Professional Conduct for Legal Practitioners 2007, the provisions of Section 5 of the Money Laundering (Prohibition) Act 2011, in so far as they purport to apply to legal practitioners, are not unconstitutional, ultra vires the National Assembly and therefore void.”

Also, the Registered Trustees of the NBA sought to know “whether the Special Control Unit Against Money Laundering Act 2011, SCUMUL and/or is empowered by any law to require the registration of legal practitioners or otherwise regulate the conduct of legal practice and legal practitioners.”

The suit also sought to know the legal status of the Federal Minister for Commerce (now Minister for Industry, Trade and Investment) in making rules that regulate the operations of legal practice and legal practitioners in Nigeria.

Another contentious issue, which the Registered Trustees sought a legal definition was whether the provisions of Section 5(5) of the Money Laundering (Prohibition) Act 2011 contravene the doctrine of lawyer-client confidentiality.

Justice Kolawole struck out legal practitioners as one of the non-financial institutions required to file cash Transaction Report with SCUMUL, an enforcement entity under the EFCC pursuant to the provisions of the Money Laundering (Prohibition) Act 2011.

Indeed, all the major reliefs sought by the Registered Trustees of NBA were granted by the learned Judge. In essence, the provisions of Section 5 of the Money Laundering (Prohibition) Act 2011 in so far as they purport to apply to legal practitioners are invalid, null and void.

The judgment of the Justice Kolawole of the Federal High Court, Abuja, was indeed, upheld and sustained by the Court of Appeal in their decision on CBN v. NBA, Appeal No: CA/A/202/2015.

Therefore, on what basis is the EFCC subjecting Usoro to a criminal trial of money laundering, when the NBA President has made it clear that the monies found in his account were proceeds of his professional fee? In short, bank transactions of the outflows from the account showed payments to other senior counsel who collaborated with Usoro to dispense of the cases he handled for same.

Going by the anti-graft agency’s logic, most senior and prominent lawyers, if not all in the country should be facing trial for money laundering as they had, and are still doing cases for various states and even Federal Government of Nigeria and its agencies. Could monies paid into their accounts be said to be proceeds of corruption?

With decisions of the Federal High Court and Court of Appeals in the case of the Registered Trustees of NBA and CBN, it is certain, definite and obvious that lawyers professional fee is exempted from the intendment of SCUMUL and section 5 of the Money Laundering (prohibition) Act 2011. Therefore, the EFCC not being a party to the contract between a lawyer and his client, cannot interrogate the propriety of such transactions since non-parties to contracts are strangers and therefore lacks powers to inquire into the propriety of such contracts. But this is left for the trial judge to decide. This is just an intellectual exercise.

Suffice it to say that in so far as the pronouncements of the nation’s court insist that lawyers’ professional fees are exempted from SCUMUL radar, it will do well for everyone to stay in line and bow to the majesty of our courts of competent jurisdiction decisions.

In short, there is no sane Nigerian who is not a victim of unbridled corruption. But we cannot fight corruption by using means and ways that corrupt the judicial processes. When all men are treated equally before the law, even if we don’t like their faces, methods and means, only then can we really say that we are making progress in the fight against corruption.

Director, a journalist and lawyer, wrote from Lagos