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Court of Appeal Voids EFCC’s Seizure of Mike Ozekhome’s Professional Fees
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 transfered 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.”
See court documents below:
By Eric Elezuo
If there is one Nigerian, who can tell accurately the heartbeat of the nation, its direction and what the future portends for it, based on the dynamics already at play, that person is Chief Dele Momodu; a seasoned journalist, former presidential candidate, holder of high profile chieftancy titles across the country, and Chief Executive Officer, Ovation Media Group.
As a vocal politician and public speaker, whose voice echoes across the length and breadth of the nation for all the good reasons, Momodu has continued to speak against the cluelessness of the present government and the need for the government to redress its steps in terms of unpopular policies emanating from the cradle, which have rather impoverished the populace rather than do the opposite. He is credited with being the first to notice the government’s unpopular drift towards one-party system, and warned on the dangers. Today, almost all the state governors, national and state assembly members have all decamped to the ruling All Progressives Congress (APC).
Sustaining his credence as a value-adding speaker, Momodu was a guest of the fabulous, experience and adequately exposed Charles Aniagolu of Arise News(Night), where he further highlighted the challenges and remedies of the Nigerian situation.
He also spoke on the appointment of the former Chief of Defence Staff, General Chris Musa (retd) as the Minister of Defence, the withdrawal of Police eacort from very important personalities (VIPs) including the former Vice President Atiku Abubakar and many other issues of national concern.
The text of the interview is presented in details even to the tiniest details below:
Momodu with former Vice President, Atiku Abubakar
Well, for more on this, I’m joined now from our studios in Lagos by the former presidential candidate and publisher of Ovation magazine, Basharu Dele Momodu. Mr. Momodu, thank you very much indeed for coming in. You look like you’re about to cry there. I mean, I know you had a bit of a tough time getting in, and I do apologize to our viewers because we’re quite a few minutes late. But you had a bit of a mishap coming in, and that delayed us a bit.
Dele Momodu: Yes. Well, we thank God that it was something minor. We had an accident on top of the bridge coming into the Arise studios, but we’re okay. Now, you asked if I am off the mark this…
Well, I’m going to get to that in a minute. Sorry to interrupt you – I want to be a bit systematic because we’ve got to gallop ahead, given that we’re, I mean, almost 12 minutes late in starting the program. Let me start by first of all getting your reaction to the confirmation of General Christopher Musa as the new Minister of Defence in the current climate of insecurity that’s gripping this country.
Dele Momodu: Well, I mean, I didn’t expect anything else. I expected that he would be screened — whether bow-and-go or not — he would be screened, and he would be ratified. And he’s been ratified, and I want to congratulate him. That’s all. I pray that we won’t hear sermons this time and that he will just go straight into action.
Yes, we all hope for that, don’t we? And we also got the news this evening that the National Economic Council has approved 100 billion naira for the renovation of training centres for the police and other security agencies across Nigeria. So that suggests that they’re serious about retraining serving police officers and training new ones. Is that the message that you’re getting from it?
Dele Momodu: Well, I would say that 100 billion is too small for the police and the security agencies. The government should do something better if it is serious about the insecurity that is terrorizing everybody in Nigeria. They would need to get serious, invest more in training, involve- I mean, invest in new personnel. The reasons they are saying they are withdrawing police from the streets are just because we don’t have enough of them. But we have enough jobless people in Nigeria, including graduates and non-graduates, who are willing to join the police force and other security agencies. So my advice is that President Tinubu should invest heavily in security. 100 billion to me, especially when you translate it into other currencies, it’s chicken feed.
Well, to be entirely fair, Bashorun, that 100 billion is for the renovation of training centers for the police. It’s not for the whole security recruitment thing. It’s purely to renovate the centres that have been left to kind of, you know, rot across the country, and he’s trying to bring them up to speed and at the same time get on with the recruitment of new police officers and move on with the training of existing ones.
Now, you spoke recently about the ban on police escorts for VIPs. You called it a targeted move against opposition figures like Alhaji Atiku Abubakar, who you support, and who is constitutionally entitled to security protection. You argued that the ban is a calculated move to weaken opposition voices and fuel resentment against successful Nigerians, and that it’ll expose prominent Nigerians to danger. I wonder why you think all that, because public sentiment in Nigeria seems to be in support of President Tinubu’s decision to ban the use of police escorts by VIPs. And it looks like you are the one who is off the mark this time.
Dele Momodu: No, I’m not off the mark. I remember in October 2022, when I foretold the dictatorship that would soon visit Nigeria. I was abused that night — that I’m talking rubbish. You see, I am trained to go behind the scene to find the real stories. A lot of Nigerians get easily, easily fooled. And if you read my press release yesterday, I said it there that we have been fooled again. What they are doing is to set the poor against the rich. And whenever you do that, you will get an applause, you will get an ovation. But the truth is that most people are not thinking about the real motive behind this decision.
If you look at Lagos State, for example, when they had the problem in the House of Assembly, you will see that one of the things they used to intimidate the people was, one, they sent some forces in to disrupt the house. Then they withdrew the police security that was guarding the brother of the new speaker. They withdrew the police from Oba Elegushi. It’s nothing new. So if we start the campaign, let’s say in January — I don’t know when we are starting — tell me, who will risk his life criss-crossing Nigeria without police escort?
We should stop being fooled. You see, the sentiment is that, oh yes, all of us should suffer. There is no country in the world where you don’t have VIPs. And it’s never a crime to be successful. As a matter of fact, those who should lose their security are those politicians in Abuja and not the ordinary man, not a Dangote, not an Abdulsamad. Imagine a time when a kidnapper said he almost got Aliko, if not for his heavy security.
So you will see – I’ve said it again today – when tomorrow comes, and events begin to unfold, you will remember that only one man warned you that this is part of the plot to suffocate the opposition.
Well, I mean, I think that obviously you’re entitled to your opinion, but a lot of people will probably disagree with that because the government didn’t say that they were going to completely leave VIPs naked without protection. They talked about redrafting civil defense people to become protectors. And members of civil defense — they carry guns and very sophisticated weapons at that. And of course, it’s not just directed at the opposition; members of the government and the VIPs are also subject to the same restrictions.
But let’s move on from there because I’m concerned that we lost a lot of time at the beginning. I want to get your response to a lot of things because it’s not every day that we have you sitting there. I don’t know whether you’ve heard this, but it’s being reported tonight that the US government has introduced a new policy which allows it to impose a visa ban on people considered responsible for the attack on Nigerian Christians.
The State Department issued a statement saying the policy allows it to deny visas to those who have directed, authorized, supported, participated in, or carried out abuses targeting people based on faith. And it said that family members of affected people are also subject to the restrictions, and that the US cannot stand by while such atrocities are happening in Nigeria. What’s your reaction to that? Does it sound like all the attempts by the Nigerian government to convince the Americans that there isn’t genocide targeted specifically at Christians have failed?
Dele Momodu: You see, when you have bullies in power, people will also jubilate when a bigger bully comes to bully them. So what’s happening in Nigeria right now is that a lot of people feel hopeless. They feel helpless, and they are excited that there is a bigger bully. The same way you said, “Oh, people are happy that they are withdrawing security from…” is the same way America is bullying us now, and you can see us reacting.
It took us over two years to react, to what? To appoint ambassadors who will represent our country. So I think the game continues, and I can tell you that a lot of Nigerians, especially on social media, are very excited that for once, at least, our leadership is listening to someone, and that’s President Donald Trump. So if that’s what it takes for our country to get serious, maybe that’s what we needed, and that’s what we are getting.
And Mr. Momodu, as you assess the political landscape inside Nigeria using your very blunt and unapologetic assessment indicators, what do you see as we approach 2027? Is it, as some have suggested, a done deal for President Tinubu and the APC, given the many failures of the opposition? Because I see you being quoted as saying that no southern candidate — not even Goodluck Jonathan or Peter Obi — can defeat President Tinubu in 2027.
Dele Momodu: Oh, I’ve been saying that for long. It’s nothing new. nothing is a done deal for President Tinubu. About two months ago, no one expected him to suddenly sit up and respond to America. But now we are responding. So we don’t know what’s going to happen in the coming weeks that may further get them sober.
What we witnessed in the past was the giddiness — “Oh, we are the ones in charge, nothing can happen.” But suddenly we see them reacting to forces from America, which is unfortunate because to govern Nigeria is not too difficult. Nigerians — we’re the most tolerant human beings; otherwise, we wouldn’t be where we are now. We tolerate everything.
And I know that 2027 is not yet a done deal. But the opposition must get its act together. I’ve said it before on this programme that actions and reactions are always equal and opposite, according to Isaac Newton. So that’s my scientific analysis of what is going to happen.
Any southerner who goes into the race now – an average southerner will say, “After all, we already have Tinubu there, so why are we worrying ourselves?” So, the force that we need to energize the opposition, I believe it will not be there. There are three key things when it comes to presidential elections. Number one is ethnicity — where the candidate comes from. No northerner is going to come and die to come and defend a southern candidate if, let’s say, for example, he’s rigged out of the election. But when you have your own candidate, it’s more than likely that you will be more enthused to vote for that candidate.
And that is why I said, look, don’t let us waste our time. And I’ve said it — you know me, I’ve said it — I said the only person this government is afraid of is Atiku Abubakar. I will continue to say it. And since Atiku and Peter Obi ran together in 2019, I supported them then, and I was not a member of PDP. So it should be easier for them to come back together.
We have less than one year to prepare for that election. While Tinubu is already campaigning, cajoling, and, you know, coercing whoever he can, we are still busy thinking who is going to be our candidate. I think we are wasting too much time. Now is the time to do what is necessary.
And just following up on that, you recently described Peter Obi’s candidacy as independent because, according to you, he doesn’t have a party and has shown unwillingness to build and work with the ADC. But I mean, many of his supporters disagree with you and say that he is still a member of the Labour Party for now, and that the party has been making behind-the-scenes moves towards reconciliation and could well pull a rabbit out of a hat in 2027. What’s your assessment of that?
Dele Momodu: Now you have gone in the realm of magic. I am not a magician and I don’t see any magic that would awaken Labour Party or PDP and that APC will fold its arms and allow such a platform for Obi. I mean, the truth of the matter is that, you know, he’s a man I respect so much. If you look at it right now, I believe he’s party-less, like most of our opposition leaders.
He has not yet made up his mind, and he joined the ADC last week. So anybody who wants to run a year to election and you have not yet made up your mind, I think it’s proving more difficult. that’s why I said an independent candidate. But he has not said that he’s opposed to ADC, so we need to correct that. He has not said that he’s opposed. What I think he’s opposed to is maybe having to go through a convention — a primary — and ADC said everybody should come to the primary: if you win, you win, then others will support.
But I think it’s going to be difficult for any party to donate a ticket — especially any formidable party — at this stage, to donate a ticket to any candidate. I don’t even think Atiku can get an automatic ticket in ADC; he will have to fight for it. So let them — I mean, you have Roti… one of the most experienced politicians in the history of Nigeria. So they are all there; let them go and fight for it. And that is what a true democrat should do.
The only person who will get an automatic ticket, and already has, is President Tinubu. So for anybody to be shopping for a ticket at this stage, I think we need to get very serious. I’m being brutally frank.
Indeed, and that’s what we like about you – your brutal frankness. And in that regard, let’s talk a little bit about you as a prominent media personality. I mean, do you see your role as a commentator as influencing government policy or shaping public opinion?
Dele Momodu: Well, for me, I am like a prophet. I was born in an Aladura church, and I was named Joseph. I dream a lot. I see visions. And most of my predictions about Nigeria have come to pass, even after people have abused me.
They used to tell me, “Oh, you like supporting losers.” But now they can see that I support common sense. It does not matter whether you are going to win or you are not going to win. That’s the role God has chosen for me, and I have gladly accepted it.
So those who want quick fixes or quick, you know, appointments, of course, would always join the ruling party. When I supported Buhari the other time, I never went there to do anything. They invited me; I told them my piece of mind. So it tells you that I’m not desperate for anything.
For me as a person, I will continue to influence the younger ones. Everywhere I go – and I travel virtually every week – the young people come to me, even on flights, and say, “Thank you for speaking up.” A lot of people don’t speak up. That is why we believe Nigeria is populated by bad people. There are a lot of good people who are voiceless. And so they are looking for someone to just tell them where to go.
And I am happy that most things that I have said have come. I predicted that there would be a dictatorship, and that one didn’t take much. So as a prophet, I’m enjoying it.
Well, we like having you, and thank you very much indeed for taking the time to talk to us. And thank you for being there tonight. And also, I hope everything goes well because I know you had a bit of a mishap getting into the studio.
Dele Momodu — Basharun Dele Momodu — is a former presidential candidate and publisher of Ovation magazine. He was talking to me from our studios in Lagos.
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