FBI LEGAL & ANOR v. FRN & ORS
(2022)LCN/16559(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, August 18, 2022
CA/A/214/2021
Before Our Lordships:
Biobele Abraham Georgewill Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. FBI LEGAL 2. ISA FERDINAND APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. MRS. EGBUH A ROSELINE UCHE 3. NASIRU ISA 4. ENI OKUNS 5. AMAKA OKAFOR 6. UMAR GAJO UMAR 7. MUHAMMAD B. UMAR 8. EDOKAF MULTI GLOBAL NIGERIA LIMITED RESPONDENT(S)
RATIO:
THE COURT WILL HOWEVER INTERFERE IN EXCEPTIONAL SITUATIONS WHERE THE FINDINGS ARE MANIFESTLY AGAINST THE WEIGHT OF EVIDENCE
As a starter, it must be pointed out that evaluation of evidence essentially connotes appraisal or assessment of the entire evidence inthe case based on relevant, applicable laws and ascription therefrom of probative value to the evidence which forms and leads to its findings on same. This prerogative evidentiary duty lies squarely in the domain of the trial Court because it enjoyed the vintage advantage of watching and listening to the parties and witnesses live and forming impressions on their demeanour; unlike this Court. It is for good reasons that the law bars this Court from interfering with a finding of a trial Court where it is apparent that the trial Court justifiably performed its primary duty. This Court will however interfere in exceptional situations where the findings are manifestly against the weight of evidence, perverse and in consequence, led to a miscarriage of justice. See Wachukwu & Ors vs. Owunwanne & Anor (2011) LPELR-3466 (SC); Nguma vs A. G. Imo State (2014) LPELR-22252 (SC). BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment)
THE EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE ARE THE PRIMARY FUNCTIONS OF THE COURT OF TRIAL
In Agbabiaka vs. Saibu O Ors (1998) LPELR – 222 (SC), the Apex Court held that:
“It cannot be re-emphasised that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial…Where, therefore, a Court of trial unquestionably evaluates the evidence and justifiably appraises the facts, as was the position in the present case, it is not the business of the Court of Appeal to substitute its own views for the findings of the trial Court. What the appeal Court ought to do is to find out whether there is evidence on record from which the trial Court have (sic) acted as it did. Once there is such sufficient evidence on record from which the trial Court arrived at its findings of fact, the appellate Court can not interfere…” BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment)
BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal questions the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 11th of January 2021 in Suit No. AA/7718/2020 coram Adeniyi, J. in which the 1st Respondent’s Application seeking to forfeit permanently to the Federal Government of Nigeria alleged suspicious funds found in possession of the 2nd Respondent was granted.
The Appellants have expressed their dissatisfaction with the judgment by lodging this appeal, vide their Notice of Appeal filed on the 22nd of January, 2021.
To fully appreciate the Appellants’ Grounds of Appeal, it is instructive to preface same with a recap of the relevant facts and events at the bottom of it all as gleaned from the numerous documents of the parties and the judgment of the trial Court which altogether formed the two volumes of the Record of Appeal.
It all originated from a Suspicious Transaction Report (STR) developed by the Nigeria Financial Intelligence Unit (NFIU) in September 2019, alerting the Independent Corrupt Practices and Other Related Offences Commission (ICPC) ofobserved suspicious transactions to the tune of over five hundred million naira in the bank account of one MrsEgbuha Roseline Uche a primary school teacher. The ICPC is not listed as a party to this appeal o r in the proceedings leading to it but is by law the recognized legal representative of the 1st Respondent in all actions pursuant to its Establishment Act and is so construed herein. Mrs. Uche is the 2nd Respondent. Based on the STR, the 1st Respondent promptly commenced its own investigation; focusing largely on the inflows and outflows of funds in the 2nd Respondent’s bank account at Guaranty Trust Bank Plc (GTB) as well as on other allied angles and indices. Its Preliminary Investigations confirmed the NFIU’s STR. Immediately, it placed a Post No Debit (PND) directive on the 2nd Respondent’s bank account as a temporary restriction to avoid dissipation of the suspicious funds in it while its further investigations to unravel the sources and character of the funds continued. The 2nd Respondent was subsequently arrested, investigated and released on administrative bail. Others linked by the investigations into the STR were similarly investigated. Notable among them is the 2nd Respondent’s lawyer who is now the 2nd Appellant. As is the pattern in financial crimes investigations, events expectedly begun to unfold. In particular, some hitherto unconnected individuals under the umbrella of a company called Fulani Farms and Fisheries Ltd from Kano emerged into the scene, laying claim to the funds which they claimed to be payment for foodstuff it supplied to the 2nd Respondent’s son called Kingsley Joseph. Yet again, around the same time, another Association called the Centre for Prevention of Corruption and Human Rights Abuse Initiative also came in, claiming the mandate of the 2nd Respondent and on whose behalf it proposed a plea bargain arrangement with the 1st Respondent, requesting also to be allowed to access the funds in the 2nd Respondent’s bank account. The Nigerian Bar Association (NBA) too would not be left behind. In a communique by its Publicity Secretary, it expressed resentment at the arrest of the 2nd Appellant who is its member for performing what it called his professional duties. On yet another angle, is the 2nd Respondent’s Suit No. FHC/ABJ/CS/221/2020 against the STB and the 1st Respondent commenced at the Federal High Court Abuja by which the 2nd Respondent sought in the main for an Order unfreezing her bank account on which, as may be recalled, the 1st Respondent had placed a Post No Debit directive. She also sought for a Relief for breach of her fundamental rights on account of her arrest and detention by the 1st Respondent. The 1st Respondent caused Counter Affidavit filed in defence to the suit. Strangely, the 2nd Respondent discontinued the suit against the 1st Respondent. Apparently, the reason for discontinuing the suit against the 1st Respondent was made clear by yet another process the 2nd Respondent had filed in the suit; namely Terms of Settlement between her and STB; without the knowledge of the 1st Respondent. With the 1st Respondent out of the suit, it became easy for the duo to seek for Consent Judgment. There being no ostensible reason to the contrary, that Court granted their request and entered a Consent Judgment accordingly on the 3rd of June 2020. Of particular relevance to this appeal is the Order listed as number 2 in the enrolled Order on the Consent Judgment:
“That further to the immediate foregoing, upon being served the Order of this Court or Record of proceedings, striking out the suit against the 1st Respondent and directing it to lift the post-no-debt restriction on the account of the Applicant, the Bank shall promptly comply with the said Order.”
Unknown to the 2nd Respondent and Appellants also, the 1st Respondent had previously on the 23rd of March 2020 filed a Motion ex parte in the same Judicial division of the Court assigned earlier to another Judge of the Court and was all the while pending. The 1st Respondent rushed there, moved its said Motion ex parte. Just like the Consent Judgment was entered easily for the 2nd Respondent and the GTB because the 1st Respondent was no longer in that suit, the 1st Respondent’s Motion ex parte too was granted easily because the duo; more particularly the 2nd Respondent were not in it.
Instructively, in its enrolled Order, the latter Court ordered primarily that:
“1. An Order is hereby made for the Interim Forfeiture, to the Federal Republic of Nigeria all the funds in the account of Egbuha Roseline Uche domiciled in Guarantee Trust Bank Plc. Particularly Account No. 0473407705 which was recovered by the Independent Corrupt Practices and Other Related Offences Commission (ICPC) in the course of the investigation Petition No. ICPC/P/NC/1040/2019 upon reasonable suspicion that said funds were acquired through unlawful activities and/or corrupt activities.”
It must be noted that both Orders by the two learned Judges of the same Judicial Division of the Federal High Court were made on the same day i.e. 3rd of June 2020. In other words, on the same day, from the same Court sitting in the same Judicial Division, parties on the same subject matter came out of the Court successfully with practically and judicially conflicting, irreconcilable, critical Orders.
Soon as the Order unfreezing the 2nd Respondent’s bank account was made, the 2nd Respondent’s counsel i.e. the 2nd Appellant quickly obtained the enrolled Order, dashed to her bank i.e. the GTB, presented it and in an unusual speed transferred the entire funds in the 2nd Respondent’s account to multiple bank accounts. As for the 1st Respondent, soon after it successfully got the Court’s Order Freezing the 2nd Respondent’s bank account, it also, just like the 2nd Respondent did, quickly obtained the enrolled Freezing Order of that Court; not knowing that the 2nd Respondent had just beaten it to it. The entire scenario is as comic as it is said.
From the Record, nothing though shows or suggests that the two learned Judges of the same Court knew of the simultaneous pendency of both suits.
It seems also that whichever crusades the members of the Fulani Farms and Fisheries Ltd and the Centre for the Prevention of Corruption were meant to achieve became comatose in the raging legal battles between the main disputants; namely the 2nd Appellant, the 1st and 2nd Respondents because no notable word has been heard from them thence.
Left with an ineffectual Freezing Order in its hands, the 1st Respondent later filed yet another suit; this time before the High Court of FCT herein called the trial Court, seeking to attach the monies in the accounts into which the funds from the 2nd Respondent’s bank account were transferred. The trial Court first granted the 1st Respondent an interim forfeiture Order accordingly. Those affected by the Order emerged. They joined issues with the 1st Respondent. The suit was heard on the merit. In the end, the trial Court granted an Order forfeiting permanently to the Federal Government of Nigeria the various sums traced in the bank accounts of the nine listed Respondents in the suit. It is the 4th and 8th Respondents in the suit namely FBI Legal and Isa Ferdinand respectively that are the only Appellants herein; all others having shown no interest whatsoever in it or its outcome.
It is hoped that this prelude will accord a better appreciation of the Appellants’ Grounds of Appeal which, as will be seen, are partly rooted in the two vexed Orders of the Federal High Court. The Grounds are as follows:
“GROUND ONE
Learned Trial Court erred in law when it held that: ’’What I have said in essence is that even though the 5th Respondent, as a legal practitioner, is entitled to be paid for professional services rendered by him for the 1st Respondent; he however cannot be paid for such services from illicit funds traced to the 1st Respondent.”
GROUND TWO
The Learned Trial Court erred in law and fell into grave error when it relied on only Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 to place the burden of proof on the Appellants to show that their funds are not traceable to any illicit source without taking into cognizance the burden of proof on the 1st Respondent stipulated in Section 48 of the Corrupt Practices and Other Related Offences Act, 2000.
GROUND THREE
The Learned Trial Court erred in law and fell into grave error which occasioned a miscarriage of justice when it denied the Appellants’ right to fair hearing by using, relying and reaching its decision based on an affidavit of compliance filed ex parte by the pt Respondent on 16/10/2020 and the document titled PROGRESS REPORT all of which were not served or brought to the attention of the Appellants right up to the time of judgment.
GROUND FOUR
The Learned Trial Court erred in law and fell into grave error which occasioned a miscarriage of justice when it assumed jurisdiction and entertained the 1st Respondent application M/7718/2020 filed on 18/6/2020 for interim forfeiture of the Appellant’s private funds when same were not seized under Corrupt Practices and Other Related Offence Act, 2000 as funds within the jurisdiction of the ICPC.
GROUND FIVE
The Learned Trial Court erred in law and fell into grave error which occasioned a miscarriage of justice when it held that “the sums of money lodged at various times between June, 2019 and June, 2020, in excess of the sum of N550,000,000.00, in the 1st Respondent’s said savings account domiciled with Guarantee Trust Bank with No. 04773407705, from unexplained sources were derived or proceeded from questionable, unlawful and illicit transactions.”
GROUND SIX
The Learned Trial Court erred in law and fell into grave error which occasioned a miscarriage of justice when it held that “the action of the 1st Respondent, in procuring the bank account of the 4th Respondent to conceal and swiftly spread out the illicit sum of N550,000,000.00, traced to her account constitutes a classical case of money laundering. See EFCC vs. Thomas (2018) LPELR (CA).”
GROUND SEVEN
The Learned Trial Court erred in law and fell into grave error ’which occasioned a miscarriage of justice when it held that “I must first make the point that the arrangement by which the 5th Respondent is to receive the sum representing 10% of the amount constituting the subject of recovery in the suit filed on behalf of the 1st Respondent is clearly champertous in nature and it is forbidden, not only by professional ethics, but it is also against public policy. See Egbor, J.P Vs. Ogbebor [2015] LPELR-24902 (CA)”
GROUND EIGHT
The Learned Trial Judge erred in law when after finding that the 2nd Appellant (lawyer) got judgment of Federal High Court in suit No. FHC/ABJ/CS/221/2O2O per Justice A. R. Mohammed on 3/6/2020 freeing the 2nd Respondent’s (clients) sum of N550,000,000.00 but somersaulted that the 2nd Appellant cannot lawfully make payment to or on behalf his client from his client accounts upon written instructions duly received from his client and thus erroneously holding that the actions of the 2nd Appellant amounted to a classic case of Money Laundering.
GROUND NINE
The Learned Trial Court erred in law and thereby occasioned a miscarriage of justice when it found that there is a subsisting judgment of the Federal High Court per Justice A. R. Mohammed in Suit No: FHC/ABJ/CS/221/2020 over the funds in the account of 2nd Respondent but somersaulted by discountenancing, rejecting and sitting on appeal on the said judgment that it found it irrelevant to the legitimate use of the same funds to pay the appellants for legitimate service offered.
GROUND TEN
The Learned Trial Court erred in law and thereby occasioned a miscarriage of justice when it assumed jurisdiction over the 1st Respondent application M/7718/2020 filed before the FCT High Court for forfeiture of all funds (over N550,000,000.00) in the account of EGBUHA ROSELINE UCHE domiciled in Guarantee Trust Bank 0473407705 when the 1st Respondent had filed a prior application before Hon. Justice I. E. Ekwo of the Federal High Court in Suit No. FHC/ABJ/CS/421/2020 for the same purpose that is still subsisting at the time of filing this appeal.”
The particulars enumerated under these Grounds are noted. See pages 608 to 621 of the Record.
The Appellants’ Brief of Argument settled by their counsel P. D. Pius filed on the 29th of June 2021 presents seven Issues for determination, while the 1st Respondent’s Brief containing three Issues settled by its counsel Osunbeni Ekoi Akponimisingha was filed on the 11th of March 2022 but deemed properly filed on the 2nd of June 2022.Notwithstanding their seeming verbosity, the Appellants’ seven Issues are nonetheless reproduced in verbatim here thus:
“1. Whether from the evidence before the trial Court, the Appellants are entitled to retained the various sums of “N40,101,18 million” in the 1st Appellant’s account and the sum of “N6,590,695.7 million in the 2nd Appellant’s account as the professional fees earned upon offering valuable consideration by way of legal service in good faith? (Grounds 1 and 2 of the Notice of Appeal).
2. Whether the trial Court denied the Appellants’ right to fair hearing by using, relying and reaching its decision based on an affidavit of compliance filed ex parte by the 1st Respondent on 16/10/2020 and the document titled PROGRESS REPORT, all of which were not served or brought to the attention of the Appellants right up to the time of judgment? (Ground 3 of the Notice of Appeal).
3. Whether the trial Court has jurisdiction to entertain the suit as per application M/7718/2020 filed on 18/6/2020 for interim forfeiture of the Appellant’s private funds when same were not seized under Corrupt Practices and Other Related Offence Act, 2000 as funds within the jurisdiction of the ICPC? (Grounds 4 of the Notice of Appeal).
4. Whether the trial Court was in error to hold that ’’the sums of money lodged at various times between June, 2019 and June, 2020, in excess of the sum of N550,000,000.00, in the 1st Respondent’s said savings account domiciled with Guaranty Trust Bank with No. 04773407705, from unexplained sources were derived or proceeded from questionable, unlawful and illicit transactions.”? (Ground 5 of the Notice of Appeal).
5. Whether there is any evidence on record that the Appellants have committed a ’’classical case of money laundering” as held by the trial Court? (Grounds 6 and 8 of the Notice of Appeal).
6. Whether the trial Court was right to hold that ’’the arrangement by which the 5th Respondent is to receive the sum representing 10% of the amount constituting the subject of recovery in the suit filed on behalf of the 1st Respondent is clearly champertous in nature and it is forbidden, not only by professional ethics, but it is also against public policy”? (Ground 7 of the Notice of Appeal).
7. Whether the trial Court was right to discountenance, reject and sit on appeal on a subsisting and unchallenged judgment of the Federal High Court per Justice A. R. Mohammed in Suit No: FHC/ABJ/CS/221/2020 and assumed jurisdiction over already expended funds in the account of 2nd Respondent part of which was used to pay the Appellants? (Grounds 9 and 10 of the Notice of Appeal).”
The three Issues for the 1st Respondent are on:
“1. Whether the High Court of the Federal Capital Territory has jurisdiction to entertain the interim forfeiture application of the 1st Respondent leading to the permanent forfeiture of the alleged suspicious movable assets of the Appellants?
2. Whether the Learned trial Judge was right when he made the interim forfeiture orders permanent in view of the evidence placed before the Court by parties to the suit?
3. Whether the affidavit of compliance filed at the trial Court by the 1st Respondent amounts to denial of fair hearing?”
After reading both sets of Issues; it is clear that although altogether their arguments naturally differ, they are nonetheless basically on the same Issues; such that either set can be used as the baseline for the resolutions on both. Noticeably, while the Appellants’ seven Issues are segmented and argued in two parts; namely Issues 2, 3 and 7 questioning the jurisdiction of the trial Court over the 1st Respondent’s Suit and the other four Issues faulting the trial Court’s evaluation of the evidence in the suit, the 1st Respondent’s first Issue is directly on the Appellants’ Issues 2, 3 and 7 on jurisdiction of the trial Court while its second and third Issues are on the Appellants’ Issues on the evaluation of evidence. Accordingly, I shall, in that order, begin with their respective four Issues on jurisdiction together.
As may be recalled, the Appellants’ first Issue (supra) is on whether the trial Court had jurisdiction to entertain the 1st Respondent’s suit same not having been based and initiated under the 1st Respondent’s enabling, extant Corrupt Practices and Other Related Offences Act 2000. The Appellants’ main argument here is that all other amendments to that Act having been nullified by the Supreme Court in Nwankwoala vs. FRN (2018) LPELR-43891, the 1st Respondent as a statutory agency could not validly embark on any act or function on any other than the extant Act. Both the trial Court’s and the 1st Respondent’s alleged jurisdictional infraction is demonstrated by the fact that the funds seized from the 2nd Appellant’s bank account were not seized under the Act. Learned counsel relied on the provisions of Sections 2 and 48 of the Act to submit that the 1st Respondent’s background act was contrary to the Act in the first place, thus acting without statutory base or power and which also, as argued, accordingly affected the jurisdiction of the trial Court. Pointedly, it is argued that for the trial Court to have jurisdiction in civil forfeiture proceedings under the Act it must be shown that:
“1. The property is seized under this Act (the Corrupt Practices and Other Related Offences Act, 2000),
2. There is no prosecution and conviction,
3. The property had been obtained as a result of or in connection with an offence under Sections 3 to 19 of the Act,
4. There is publication of a notice in the Gazette and in at least two newspapers circulating in Nigeria, and
5. There is no purchaser in good faith for valuable consideration of the property”
See page 9 of the Appellants’ Brief.
In his bid to prove the contrary, counsel argued that the funds in the 1st Appellant’s bank account were not seized under the Act as it was under its account name; merely on the ground that the 2nd Appellant as its proprietor acted as solicitor to the 2nd Respondent who was the arrowhead of the 1st Respondent’s investigations; when there was no allegation that the 2nd Respondent committed any offence and that receiving client’s money into a Solicitor’s bank account or paying for the client therefrom are a settled practice; placing reliance on the provisions of Sections 20 and 21 of the Legal Practitioners Act and the decision of this Court in CBN vs. Registered Trustees of NBA & Anor in CA/A/202/2015. Other arguments are that the 1st Respondent’s act was entirely based on its erroneous belief that the Unfreezing Order on the 2nd Respondent’s bank account granted by the Federal High Court was procured; that the 1st Respondent did not seek for any Relief against the 2nd Respondent in its motion ex parte before the trial Court; that there was no evidence showing that the funds in the Appellants’ bank accounts were obtained from any offence; that the 1st Respondent’s motion ex parte, the trial Court’s Order consequent upon same on the 1st Respondent to conduct further investigations, the 1st Respondent’s subsequent Affidavit of Compliance and Progress Report on the Preliminary Investigation were all not served on the Appellants but which the trial Court relied on in its judgment in breach of the Appellants’ fundamental right to fair hearing. Other supplementary arguments for the Appellants under their combined three Issues are noted.
For the 1st Respondent however, it is argued that the trial Court possessed both territorial and substantive jurisdiction on the suit. It is argued that the subject matter of the suit arose within the territorial jurisdiction of the Court; relying on the provisions of Sections 26(2) and 61 (3) of its enabling Act which conferred jurisdiction on the trial Court over the subject matter of the suit and the decision in FRN vs. Edward (2021) 10 NWLR (Pt. 1784), 235 at 250 – 251. Section 14 of the Advance Fee Fraud and Other Related Offence Act; Lawal vs. EFCC (2020) 14 NWLR (Pt. 1744), 193 at 228; Nnadi vs. Oji & Ors(2010) LPELR-4627 (CA) and Jonathan vs. FRN (2019) 10 NWLR (Pt. 1681, 533 at 542 were also referred.
From all these statutory and judicial authorities, the final submission for the 1st Respondent is that the trial Court had jurisdiction over the suit. Other supplementary arguments for the 1st Respondent are noted.
Let me begin from the Appellants’ argument that since the Supreme Court in Nwankwoala vs. FRN(supra) has held that the extant enabling legislation on the ICPC is the Corrupt Practices and Other Related Offences Act 2000, it implies or suggests therefore that the 1st Respondent’s suit was invalid or incompetent having been initiated under some unnamed amendment to the Act nullified by the Supreme Court. I will say without mincing words, but with respects, that this argument is glaringly misleading. Firstly, this argument did not go far enough to state or hint where it is based in the entire Record. Secondly, the 1st Respondent’s suit was initiated specifically under the Corrupt Practices and Other Related Offences Act 2000 among others; which as the Appellants argued is the extant applicable, legislation. See page 1 of the Record(vol. 1). Thirdly, on all the exhibits emanating from the 1st Respondent’s office which were attached to its Motion ex parte before the trial Court, it is boldly indicated that its investigations and actions on same are pursuant to the Corrupt Practices and Other Related Offences Act 2000. Fourthly, neither in the trial Court’s Order on the 1st Respondent’s Motion ex parte nor in the entire judgment of the trial Court is there any indication of reliance on supposed, non existent amendment to the Act which the Appellants are hinting. See pages 348 to 352 of the Record (vol.1). In effect, the Appellants’ contention here is baseless.
Furthermore, it is erroneous to contend as the Appellants have done here that prosecution and conviction are a precondition to assumption of jurisdiction on a civil forfeiture proceeding because it is neither so provided in the Act nor in line with established rules on forfeiture proceedings. The Appellants’ arguments faulting the trial Court’s jurisdiction on the ground of alleged non-publication of the Court’s interim forfeiture Order seem not to recognize or even admit the publication of the Order as contained at page 394 of the Record. Again, in its Affidavit of Compliance found at page 391 of the Record, the 1st Respondent stated interalia:
“iii. That this Honourable Court, upon the grant of the said order(s), directed the Applicant to publish the order(s) in two National Newspapers.
iv. That the Applicant has now complied with the order of this Honourable Court by publishing the order(s) in the following Newspapers: Punch and Daily Trust newspapers of July 6th, 2020. Copies of the newspapers are hereby attached and marked as exhibits ICPC 1 & 1A respectively.”
The Appellants’ argument is not that they were unaware of
the interim Order but that it was not published in official gazette. The bottom line is that the purpose of the publication was thus served fully by the publication in the manner found at pages 394 of the Record and the trial Court was satisfied that it was sufficient.
On the whole, the trial Court, after its due consideration of the entire facts before it, which exercise is essentially and squarely within its own powers, by the discretionary power conferred upon it by Section 6(6) (a) of the Constitution FRN 1999 as amended granted the 1st Respondent’s Motion ex parte and made the interim forfeiture Order sought therein.
As may be recalled, the Appellants’ second Issue culled from their third Ground of Appeal is on the all important claim of denial of fair hearing against them by the trial Court’s failure to furnish them with the 1st Respondent’s Progress Report of the investigation which the trial Court relied on in its judgment. The entire arguments of the Appellants on this claim appear to have been aptly condensed in their following portion:
“67. The originating application before the trial Court is a motion ex parte. It was not served on the Appellants. The trial Court gave an order that the 1st Respondent should conduct preliminary investigation and report same to the Court within 30 days. (See page 554 of the record of appeal). Before the report was made, the Appellants had entered appearance, filed and served their affidavits before the trial Court on 20/7/2020. (See pages 96-332 of the record of appeal). About 3 months thereafter, the 1st Respondent surreptitiously filed the affidavit of compliance alongside the progress report on the preliminary investigation on 16/10/2020. (See pages 391-402 of the record of appeal). The said affidavit of compliance was not served on the Appellants, the progress report was not served on the Appellants, yet it was elaborately used, relied upon by the trial Court to find that the 1st Respondent has complied with both requirements of the law and order of Court to warrant forfeiture and also to enter judgment in favour of the 1st Respondent.”
See page 21 of the Appellants’ Brief.
The 1st Respondent’s contrary arguments here are basically that firstly, it merely complied with the trial Court’s Order to furnish the Court with the interim investigation Report. Secondly, as argued also, the Appellants owe the trial Court a duty to explain the source of the funds which the Appellants failed to do.
The Progress Report is at pages 395 to 402 of the Record (Vol. 1). I have read it carefully. There is nothing new in it; which was why the learned counsel for the 2nd Respondent at the hearing on the 20th of October 2020 and in the presence of the counsel for the other Respondents, more particularly that for the Appellants, informed the trial Court thus: “Secondly, the order of Court is clear. The Application to file a Report of investigation within 30 days. The content of the Report was more or less a reproduction of the content of the affidavit filed to support the ex-parte application.
I refer to paragraph 5 of the Counter Affidavit which clearly shows that no investigation has been carried out after the order of this Court.”
See page 557 of the Record (Vol. 2).
In effect, the Appellants too knew of the Progress Report and, just like the 2nd Respondent’s counsel, had not found any reason to make an issue out of it; otherwise, they would have surely jumped against it. Instead, as the proceedings showed, the Appellants were only focused on an entirely different issue of the competence or otherwise of the 1st Respondent’s counter affidavit to their Affidavit to show cause; with no reference or mention to the Progress Report. In this situation, the Appellant can not be heard complaining of breach of their fundamental right of fair hearing. See Nwokocha vs. AG Imo State (2016) LPELR-4007 (SC); S & D Construction Co. Ltd vs. Ayoku & Anor (2011) LPELR-2965 (SC). See also pages 557 to 567 of the Record (vol. 2).
Furthermore, apart from the general introduction of the processes filed by the parties in the suit in which the 1st Respondent’s Progress Report was similarly highlighted, there is no identifiable finding by the trial Court on it in the judgment. The findings of the trial Court were based on the same facts in the 1st Respondent’s affidavit in support of the Motion ex parte; which the trial Court found uncontroverted by the Appellants’ Affidavit to Show Cause. The Appellants’ claim of denial of fair hearing is unfounded and cannot therefore, as it meant to, deflate or impugn the correctness of the trial Court’s main finding that the Appellants failed to show cause why the funds in question shall not be forfeited permanently.
The Appellants’ last leg of its jurisdictional Issues culled from their seventh Ground of Appeal, it may be recalled, is rooted in the Order of the Federal High Court in Suit No. FHC/ABJ/CS/221/2020 which had granted the Appellants’ prayer seeking to unfreeze their bank accounts. The argument here in the main is that the trial Court lacked jurisdiction to sit on appeal, as it were, on the said Order by the Federal High Court and proceed as it did to order differently. Learned counsel for the Appellants said it all in a nutshell thus:
“My Lords, we further submit that the trial Court fell into error when it discountenanced, rejected and/or sat on appeal on a subsisting and unchallenged judgment of the Federal High Court per Justice A, R. Mohammed in Suit No: FHC/ABJ/CS/321/2020 and assumed jurisdiction over the already expended funds in the account of 2nd Respondent part of which was used to pay the Appellants; goads which were even no longer in the 2nd Respondent’s account as at the time the trial Court assumed this jurisdiction.”
See page 17 of the Appellants’ Brief.
For the 1st Respondent however, it is argued that its suit is essentially a civil forfeiture, non-conviction-based suit which the trial Court had jurisdiction to entertain by virtue of the powers on it accordingly under Section 26(2) of the Corrupt Practices and Other Related Offences Act 2000 and Section 17 of the Advance Fee Fraud and Other Related Offences Act 2006.
It seems to me that by their arguments under their seventh issue(supra), the Appellants lost sight of the fact that the suit before the trial Court was on forfeiture proceedings strictosensu: which cannot be defeated merely on the ground of the existence or non-existence of related prosecution. It is an independent proceeding in its own right. It is in some respects akin to a fundamental rights enforcement proceedings which can co-exist contemporaneously with a related main suit or charge or in the absence of it. That is the effect of Sections 45(1), 46, 49 of the Corrupt Practices and Other Related Offences Act 2000, Sections 29 and 34 of the EFCC (Establishment) Act, Section 7 of the Proceeds of Crime (Recovery and Management) Act 2022, Section 18 (8) of the Money Laundering (Prevention and Prohibition) Act 2022 and Section 44(2) (k) of the Constitution. In Akingbola vs. Chairman EFCC (2012) 9 NWLR (Pt. 1306), 457 at 502-503, this Court held that:
“There is undoubted jurisdiction in the lower Court to make an appropriate order as was done in this case affecting the conduct of a separate action. In Kigo (Nig.) Ltd, v. Holman Brothers & Anor (1980)12 NSCC 204 at 210, the Supreme Court held that the High Court has the jurisdiction and powers to make orders especially preservatory orders to affect another suit and or pending the determination of another suit. It cited, with approval the decision in Wilson v. Church (No. 1) (1879) 11 Ch.D 576 where Eso, JSC delivering the leading judgment held at pages 210 and 211 as follows:
’’The wide power of the Court to grant stay is further illustrated in the case of Wilson v. Church (No. 1) 11 Ch.D. §7&. In that case, there were two actions; but the plaintiffs in Wilson v. Church were not parties to the other action. The trustees of the fund in issue were defendants in both cases. The plaintiffs in Wilson v. Church on the commencement of the second suit, (to which they were not parties) and which asked for declaration for the payment out of the trust fund to the plaintiffs in the second case, applied to the Master of the Rolls for an injunction to restrain the defendants/trustees in that second case from parting with any part of the trust funds. The Court of Appeal in England granted injunction against the trustees. The Court held that there would be an injunction to restrain the trustees from parting with any part of the fund till the hearing of the appeal. The effect of the judgment is that the Court granted the injunction binding the defendants/trustees from parting with the money to the plaintiffs in the second case though the plaintiffs in Wilson v. Church Lt’ere not the plaintiffs in that case.”
See also Dangabar vs. FRN (2012) LPELR–19732 (CA); EFCC vs. Fayose & Anor (2018) LPELR-44131 (CA); Umezulike vs. The Chairman EFCC (2017) LPELR 43454 (CA) Nwaoboshi & Ors vs. FRN (2018) LPELR-45107 (CA); Lawal vs. EFCC (2020) 14 NWLR (Pt. 1744), 193 at 228.
In effect, the suit before the trial Court neither constituted an appeal against the decision of the Federal High Court in Suit No. FHC/ABJ/CS/221/2020 nor can be fairly construed as overreaching it. The trial Court had jurisdiction to entertain the suit.
As stated earlier, the second segment of the Appellants Issues namely numbers 1, 4, 5 and 6 are all basically on the evaluation of the evidence in the suit by the trial Court in its judgment. That is also the 1st Respondent’s second Issue (supra). The five Issues will thus be treated together herein.As prefaced earlier, the Appellants’ key arguments here are that the trial Court erred when it held that the 2nd Appellant acting as a legal Practitioner to the 2r,a Respondent in Suit No. FHC/ABJ/CS/221/2020 could not claim to have lawfully benefitted from funds that proceeded from illicit financial dealings on the pretext of earning legal fees; as the Court thereby neglected to consider the provisions of Section 48(3) (a) and (b) of the Corrupt Practices and Other Related Offences Act which provides as a precondition to forfeiture Order proof that there is no purchaser in good faith for valuable consideration of the property which in this case is the legal service of the 2nd Appellant in particular; that the 2nd Appellant has no knowledge that the funds in the 2nd Respondent’s bank account were obtained through an offence; that the act and role of the 2nd Appellant in the conduct of the suit at the Federal High Court are covered and recognized by Rule 50 of the Rules of Professional Conduct for Legal Practitioners, 2007 and affirmed by this Court in Appeal No. CA/A/202/2015 (CBN vs. Registered Trustees of NBA & Anor) and that there is no evidence of money laundering or any offence by the Appellants and the 2nd Respondent. Other supplementary arguments are noted. The thrust of the arguments is that the trial Court failed to evaluate these evidences properly before reaching its decision against the Appellants.
The arguments for the 1st Respondent however are in the main that the clear facts and the implied circumstances that emerged in the course of the investigation against the 2nd Respondent established undisputedly that the funds in her bank account were not obtained legitimately; that the 2nd Appellant’s legal services were procured solely for the purpose of getting those funds out of investigative restrictions; that the 2nd Respondent failed to explain to the trial Court the source of the funds in question; that the Appellants knew the true character of the funds they were engaged to secure and cannot lawfully benefit from same under the guise of legal fees and that the trial Court evaluated all the evidence in the case properly. Other allied arguments are noted.
As a starter, it must be pointed out that evaluation of evidence essentially connotes appraisal or assessment of the entire evidence in the case based on relevant, applicable laws and ascription therefrom of probative value to the evidence which forms and leads to its findings on same. This prerogative evidentiary duty lies squarely in the domain of the trial Court because it enjoyed the vintage advantage of watching and listening to the parties and witnesses live and forming impressions on their demeanour; unlike this Court. It is for good reasons that the law bars this Court from interfering with a finding of a trial Court where it is apparent that the trial Court justifiably performed its primary duty. This Court will however interfere in exceptional situations where the findings are manifestly against the weight of evidence, perverse and in consequence, led to a miscarriage of justice. See Wachukwu & Ors vs. Owunwanne & Anor (2011) LPELR-3466 (SC); Nguma vs A. G. Imo State (2014) LPELR-22252 (SC).
Although the 2nd Respondent was the 1st Respondent in the suit because she was the fountain of all the claims and issues in it, she has not demonstrated any interest in this appeal. The findings of the trial Court on the 1st Respondent’s case against her are significant in understanding the Appellant’s complaints in this appeal. In respect of her case, the trial Court held thus:
“48. It is pertinent to state that the 1st Respondent opted not to file any process in response to the interim forfeiture order; even though the funds affected by the interim forfeiture orders of this Court were all traced back to the sum of N550,000,000.00 that found its way to her account with Guaranty Trust Bank, the source of which she gave no reasonable or credible explanations.
49. The initial finding of this Court is that the 1st Respondent, a school teacher with a monthly salary of N76,000.00, failed to provide any tangible or satisfactory source of the said funds.
50. The Court further finds that the 1st Respondent’s son, one Kingsley Joseph (real name Chiedozie Fabian Ejeaka), to whom the 1st Respondent purportedly ascribed ownership of the said sum of N550,000,000.00 that was credited into her account, also failed to turn up, either in the Applicant’s office, or before this Court, to give explanations as to the source of the said funds.
51. In this circumstance, the Court hereby holds, without hesitation, that the sums of money lodged at various times between June, 2019 and June, 2020, in excess of the sum of N550,000,000.00, in the 1st, Respondent’s said Savings account domiciled with Guaranty Trust Bank with No. 04773407705, from unexplained sources were derived or proceeded from questionable, unlawful and illicit transactions.”
See pages 587 to 588 of the Record (vol. 2)
Curiously, in the same way that the 2nd Respondent opted not to file any response to the suit before the trial Court in which she was listed and shown as the principal Respondent, she has similarly maintained the same pattern in this appeal; thereby attracting no different outcome. More importantly, the Appellants cannot be heard in arguments for the 2nd Respondent since by her own volition she neither desired to be a co-Appellant nor even an interested or disputant Respondent.
In my humble view, there is no aspect of the relevant evidence in the trial that the trial Court omitted to evaluate. Whether or not the evaluation was properly done may be the only cogent issue for consideration here.
Although the Appellants’ earlier Suit No. FHC/ABJ/CS/221/2022 before the Federal High Court in which they obtained an Order unfreezing the bank account of the 2nd Respondent is not the subject of this appeal, the Appellants have however placed greater reliance on it in their main argument that their role and conduct therein were lawful and the financial benefits accruing to them therefrom legitimate; which altogether, as they argued, make the trial Court’s findings to the contrary perverse. All other arguments are at best an amplification of or supplementary to this main argument. The entire four Issues (supra) argued together by the Appellants demonstrate this common denominator. Much as the Unfreezing Order by the Federal High Court is significant to the Appellants’ case as shown in both their Grounds of Appeal and the arguments on their Issues, it is however important not to lose sight of the purpose of this appeal; which is a challenge against the judgment of the trial Court. I have earlier held that the Appellants are wrong in their arguments construing the suit before the trial Court as an appeal over the decision/Order of the Federal High Court. I stated the reasons for so holding. In effect, this appeal succeeds or failson the correctness or otherwise of the judgment of the trial Court; not on the correctness or otherwise of the Unfreezing Order by the Federal High Court; which in its own right, would form a different appeal, if the parties thereto so desired. Thus, contrary to the arguments of the Appellants, the similar holding by the trial Court at page 597 of the Record (vol. 2) that:
“The circumstances under which the said Federal High Court Order was procured by the 8th Respondent would not be the focus of this Court in the instant proceedings.” (supra),
is correct and therefore stands.
I have thus proceeded to consider and resolve the Issues accordingly; with greater focus on the Appellants’ main argument highlighted earlier.
In my humble view, a far more important issue than the Appellants’ stiff reliance on their service contract with the 2nd Respondent and the related 10% fees thereunder etc. is the dominant issue of whether on their facts the Appellants credibly explained to the trial Court the purpose of and circumstances surrounding the huge inflows into their bank accounts as well as the suspicious speed in which those funds were shared into multiple bank accounts of others; bearing in mind more particularly the fact that the 2nd Respondent on whose instruction it was all said to have been carried out strangely kept sealed lips all through the proceedings. The legitimacy of the funds in question takes rightful precedence over its fallout represented by the Appellants’ service contract and service fees; because if the funds are of illicit origin, neither the Appellants’ Service Agreement on it nor any other seemingly legitimate transaction on any amount therein can launder or change the true character of the funds; strictosensu; even if applied on mosques, churches or other benevolent causes. If the source of the funds is held to be illicit, no legitimate claim thereto can lie save by a victim in law i.e. a Government or on the facts i.e. an individual. See Sections 17 and 18 of the Money Laundering (Prohibition Amendment) Act 2012. (now repealed) and Section 18 of the Money Laundering (Prevention and Prohibition) Act 2022.
It is the finding of the trial Court that:
“58. The 4th and 8th Respondents seemed to be at the centre stage of laundering the illicit funds discovered in the 1st Respondent’s account.
59. By his own admission, the 8th Respondent, Isa Ferdinand, a legal practitioner, upon securing 1 order of the Federal High Court to lift the ’’Post No Debit” bar placed the 1st Respondent’s account with Guaranty Trust Bank, got the entire sum of N550,000,000.00 standing to the credit of the 1st Respondent in the account transferred to the Client Account of his Law Firm – FBI Legal (4th Respondent), also at Guaranty Trust Bank, upon the 1st Respondent’s instructions.
60. It is interesting to note, from the printed copy of the bank alert attached by the 8th Respondent to his Affidavit to Show Cause, prior to the time the illicit sum of N550,000,000.00 was transferred to the 4th Respondent’s, the balance in that account was a paltry sum of N1,399.52.
61. Again, by the admission of the 8th Respondent, upon receiving the money in his account, he had the 1st Respondent’s instructions to retain the sum of N60,000,000.00 as professional fees for the two suits he filed on her behalf the Federal High Court, pursuant to the agreement they both entered to on 03/02/2020, copy of which the 8th Respondent attached to his Affidavit to Show Cause as Exhibit 4.
62. According to the 8th Respondent, the 1st Respondent instructed him to transfer the balance of N490,000,000.00 in the 4th Respondent’s account variously to the accounts of the 6th Respondent – (N340,000,000.00); 7th Respondent (N50,000,000.00) and 9th Respondent (N100,000,000.00) respectively. I refer to paragraph 20 of the 8th Respondent’s Affidavit to Show Cause.
63. From the facts placed on record before the Court particularly the 8th Respondent’s admission in his Affidavit to Show Cause, the Court finds and hold that the action of the 1st Respondent, in procuring the bank account of the 4th Respondent to conceal and swiftly spread out the illicit sum of N550,000,000.00, traced to her account constitutes a classical case of money laundering. See EFCC Vs. Thomas [2018] LPELR (CA).
The question the 8th Respondent neglected to address in his Affidavit to Show Cause, is as to the kind of professional services he was meant to render to the 1st Respondent that entailed her to transfer N550,000,000.00 to his account to be distributed to bank accounts of other persons? What prevented the 1st Respondent from undertaking the transactions by herself if not for sinister intent of attempting to conceal and hide the fund’s?”
See pages 592-595 of the Record (vol. 2).
Unarguably, without a word of denial by the 2nd Respondent then as the main and 1st Respondent in those proceedings, it was impossible for the trial Court to arrive at any finding differently; notwithstanding the unsuccessful, desperate effort by the Appellants to fill the incriminating gap in or ameliorate her curious silence. In the circumstances, the trial Court rightly found that the funds in the 2nd Respondent’s bank account are of unexplained, illicit origin.
More importantly here however is its findings on the role and conduct of the Appellants in the entire ballgame. In my view, the trial Court considered and evaluated the relevant evidence by both sides on this issue. With the arguments of the Appellants on same in mind and reading through the trial Court’s evaluation on same at pages 592 to 600 of the Record (vol. 2), this Court is convinced that the trial Court discharged its primary duty of evaluation of theevidence properly. Contrary to the picture ascribed to it by the Appellants, the evaluation did not admit of sentiments, distraction or misapplication of the law on the evidence. Reading through it to identify its alleged perversity, every stage of it, as it unfolded, shows instead the evidence drifting and preponderating irretrievably against the Appellants’ case. In the ultimate, the finding of the trial Court that:
“63. From the facts placed on record before the Court, particularly the 8th Respondent’s admission in his Affidavit to Show Cause, the Court finds and hold that the action of the 1st Respondent, in procuring the bank account of the 4th Respondent‘s to conceal and swiftly spread out the illicit sum of N550,000,000.00, traced to her account constitutes a classical case of money laundering. See EFCC Vs Thomas [2018] LPELR (CA)”,
inescapable and unassailable. In Agbabiaka vs. Saibu O Ors (1998) LPELR – 222 (SC), the Apex Court held that:
“It cannot be re-emphasised that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial…Where, therefore, a Court of trial unquestionably evaluates the evidence and justifiably appraises the facts, as was the position in the present case, it is not the business of the Court of Appeal to substitute its own views for the findings of the trial Court. What the appeal Court ought to do is to find out whether there is evidence on record from which the trial Court have (sic) acted as it did. Once there is such sufficient evidence on record from which the trial Court arrived at its findings of fact, the appellate Court can not interfere…”
From the layout and prepondence of the evidence in the trial, the Appellants’ corollary argument on its Service Contract with the 2nd Respondent along with their argument on the service fees thereunder all seem to collapse and instead fit into the articulated design by the Appellants and the 2nd Respondent to disguise the true nature and character of the illicit funds in the 2nd Respondent’s bank account under the colour of the esteemed positions and roles of the Appellants. That was the overbearing evidence the trial Court was confronted with at the conclusion of the hearing. In its judgment, the trialCourt appraised same as follows:
“70. I must first make the point that the arrangement by which the 8th Respondent is to receive the sum representing 10% of the amount constituting the subject of recovery in the suit filed on behalf of the 1st Respondent is clearly champertous in nature and it is forbidden, not only by professional ethics, but it is also against public policy. See Egbor, J.P Vs. Ogbebor [2015] LPELR- 24902(CA), where it was held, per Ogakwu, JCA, as follows:
“It is no doubt settled law that a situation where a person elects to maintain and bear the costs of an action for another in order to share the proceeds of the action or suit is champertous”
71. From the facts deposed in the 8th Respondent’s Affidavit to Show Cause, it is apparent that he bore the costs of filing the two actions he filed on behalf of the 1st Respondent at the Federal High Court, with the understanding that he shall receive part of the proceeds of the fruits of the action.
72. As such, I must hold, at first that it was unlawful for the 8th Respondent to have claimed the said sum of N60,000,000.00 from the 1st Respondent in the mannerset out in the Service Agreement.
73. Even if it is accepted that the said Service Agreement is not champertous in nature, the 8th Respondent could not claim to have lawfully benefitted from funds that proceeded from illicit financial dealings on the pretext of earning legal fees. I so hold.
74. What I have said in essence is that even though the 8th Respondent, as a legal practitioner, is entitled to be paid for professional Services rendered by him for the 1st Respondent; he however cannot be paid for such services from its funds traced to the 1st Respondent. I so hold.”
See pages 598 to 600 of the Record (vol. 2)
It should be noted that the emphasis here is on the trial Court’s finding that the 2nd Appellant cannot be lawfully paid professional service fees from the illicit funds of the 2nd Respondent. That is the basis for the forfeiture Order made by the trial Court against the Appellants. In my humble view, the finding is built on sound legal principle because the 2nd Appellant cannot be paid legal or whatever form of fees from funds which as the evidence showed, he had reason to know were proceeds of crime. SeeSections 18(2) and 20 of the Money Laundering (Prevention and Prohibition) Act, 2020; Sections 19(1) and 74 of the Proceeds of Crime (Recovery and Management) Act 2022; Kalu vs. FRN (2016) LPELR-40108 (SC);Ekwunife vs. Wayne West Africa Ltd (1989) LPELR-1104 (SC); Pan Bisbilder (Nig) Ltd vs. FBN Ltd (2000) LPELR-2900 (SC); Babatunde & Anor vs. B.O.N. Ltd &Ors (2011) LPELR-8249 (SC).
In effect, the Appellants’ four Issues (supra) also, along with the 1st Respondent’s second and third Issues in the manner determined together hereinbefore are resolved against the Appellants.
On the whole, the final destination of this appeal here is in its deserved Order for dismissal for lacking in any merit and it is accordingly dismissed. The judgment of the trial Court is here affirmed.
BIOBELE ABRAHAM GEORGEWILL. J.C.A.: I have been privileged to read in advance, the draft copy of the leading judgment just delivered by noble lord, IsahBatureGafai JCA. I have gone through the lucid reasoning and the impeccable conclusions reached therein to the effect that the appeal lacks merit and therefore, ought to be dismissed. I agree!
My lords,going by the proved facts, this appeal presents in its most sordid form how not to look for money by a professional lawyer, purportedly, acting qua lawyer! There was incontrovertible evidence that the 2nd Respondent, a teacher earning well below N70,000.00 per month received into her account in one fell swoop the humongous sum of well over N500,000,000.00 in one trench of transfer from her son, an amount which should make every reasonable teacher earning under N80,000.00 per month to flinch and be put on immediate enquiry from her son the sources of such a humongous amount of money, but it was not so with the 2nd Respondent, who rather immediately set in motion processes to appropriate the said humongous amount.
Then entered the Appellants, the 1st Appellant being a Law Firm and the 2nd Appellant being a legal practitioner, who became ready tools to help the 2nd Respondent dissipate the said humongous sum of money and render it beyond tracing by the law but they had not reckoned with the tenacity and resilience of the 1st Respondent to bring to book all such brazen act of criminalities to ensure that there is no benefit or fruit from such criminalenterprises. The Appellants as well as the 2nd Respondent were thus, despite the shenanigans and orchestrated ill-advised litigations, stopped in their tracts and the monies they had so schemed to be kept out of the long arms of the law were eventually forfeited, and quite rightly, justifiably and commendably too, to the 1st Respondent.
From the outcome of the investigation, as copiously deposed to by the 1st Respondent before the lower Court, it was duly established, and without any controvertible evidence from the Appellants, that the huge funds transferred and credited into the 2nd Respondent’s Bank Account with the Guaranty Trust Bank were not legitimately obtained neither by the 2nd Respondent nor her son at large.
Curiously, whilst the 2nd Respondent the supposedly owner of the entire sum credited to her account had given up on the face of the obvious illegality of the source of the funds that were transferred and credited into her Bank account by her son, it was the Appellants who took up the gauntlet to justify, and see how to legitimise the illegal inflow into the Bank account of the 2nd Respondent, a clear case of the supposed‘sympathizers’ now crying more than the supposed ‘bereaved’.
The services of the 2nd Appellant were procured, induced by the humongous amount of money up for the grab, solely for the purpose of getting those humongous funds out of the reach of the determined and focused investigators, even when the 2nd Respondent had no rational explanation to offer for the inflow of such a humongous amount into her Bank Account from her son. In law, out of an illegal act no legal or valid cause of action can arise. This position of the law is founded on the principle of public policy and expressed in the maxim: ex turpi causa non orituractio, meaning that an action does not arise from a base cause. See Pan Bisbilder (Nigeria) Limited V. First Bank of Nigeria Limited (2000) LPELR-2900 (SC) per Godfrey Okay Achike, JSC. See also Nigerian Copyright Commission &Ors V. Musical Copyright Society of Nigeria Ltd &Ors (2017) LPELR – 50743 (CA) per Sir Biobele Abraham Georgewill JCA.
In the circumstances of this appeal, it is true as aptly and unassailably submitted by learned counsel for the 1st Respondent that the Appellants knew very well thetrue and stinking character of the funds in the 2nd Respondent’s Bank account for which they were engaged to secure and keep away from the long arms of the law. So, should the Appellants be allowed to lawfully benefit and keep any amount, even a kobo, from such a humongous amount whose source was illegal and cannot be explained by the 2nd Respondent under the guise of payment of legal fees? I think not!
The legal profession, the noblest of all professions, would never consider such funds, illegal to the knowledge of the Appellants, to pass off as lawful payment of professional fees. Thus, neither the 1st Appellant nor the 2nd Appellant can be paid any legitimate legal fees or commission from funds which has been shown indisputably to be illicit funds and to the knowledge of the 1st and 2nd Appellants are funds which were clear proceeds of crime, notwithstanding the purposes to which such proved illicit funds are either put into or utilised. See Sections 18(2) and 20 of the Money Laundering (Prevention and Prohibition) Act 2020. See also Sections 19 (1) and 74 of the Proceeds of Crime (Recovery and Management) Act 2022. See further Federal Republic of Nigeria V. Rt. Hon. Adeyemi Sabit Ikuforiji(2016)LPELR-43745(CA), per Sir Biobele Abraham Gcorgewill JCA; Kalu V. FRN (2016) LPELR-40108 (SC); Ekwunife V. Wayne West Africa Ltd (1989) LPELR-1104 (SC); Pan Bisbilder (Nig) Ltd V. FBN Ltd (2000) LPELR-2900 (SC): Babatunde & Anor V. BON Ltd &Ors (2011) LPELR-8249 (SC).
It follows therefore, since the source of the funds is clearly and indisputably illicit, as rightly found by the lower Court, no legitimate claim thereto can in law lie by either the perpetrator or his accomplices save by a victim, such as the Government or where the facts so permit and/or justify, an individual. See Section 18 of the Money Laundering (Prevention and Prohibition) Act 2022.
It is for the above comments of mine by way of my contribution to the leading judgment and for the fuller reasoning marshalled out in the leading judgment, that I loo hereby dismiss the appeal for lacking in merit. I shall abide by the consequential orders made in the leading judgment.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, ISAHBATURE GAFAI, JCA.
I equally agree with the reasoning and the conclusion that the appeal lacks merit and it is accordingly dismissed.
The judgment of the trial Court is hereby affirmed.
Appearances:
P. D. Pius For Appellant(s)
Osunbeni Ekoi Akponimisingha – for 1st Respondent.
O. A. MATHEW – for 2nd to 8th Respondents. For Respondent(s)