Misappropriation Of Judgement Debt By Counsel Is A Crime

In the Federal High Court, Holden at Lagos, Nigeria,

On Monday, December 13, 2010,

Bt:fore Honourable justice Dan Abutu, Chief judge, Suit No: FHC/L/CS/1225/2010

Between:

Mogbeyi Sagay (SAN) (applicant) and Economic and Financial Crimes Commission,

The Attorney Generalo/the Federation (respondents). Judgment

“The applicant seeks in this originating motion dated  October 6, 2010, brought pursuant to Section 35(2) and 39 of the 1999 Constitution and Article 8 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 1990 the following reliefs:

An order that the criminal inquiry/investigation initi~ted by the respondents, vide the 1st respondent’s letter ofJuly 20, 2010 Ref: CR3000JEFCC(LS/BFl/Vo1.4J328, into the written request by the applicant s law firm for the payment of the judgment debt in Suit No. LD/1349/79 in the name of the law firm (Mogbeyi Sagay & Co) who are (and have since 25 years) been the counsel on record to the judgment creditor in the suit aforesaid, “shall forthwith abate and cease” being an ille­gal interference with or and restriction on the right of the applicant to exercise his calling or and practice his profes­sion as a legal practitioner;

An order that the invitation of the applicant, by the 1st respondent and trying to muzzle him to disclose confiden­tial information about his client and or produce his letter of instruction in the nature of Power of Attorney, contrary to the provisions of Section 170 of Evidence Act is a violation of his guaranteed right to freedom of expression as contained in Section 39 of the 1999 Constitution;

An order that the applicant has not committed any act or done anything to warrant any reasonable suspicion that an offence nas been committed;

An order of perpetual injunction restraining the respon­dents, their servants, officers, agents or privies from arrest­ing, interrogating, detaining or prosecuting the applicant in connection with or concerning his law firm’s demand as counsel to the judgment creditor for the payment of the judgment debt in Suit No., LD/1349/79 inthe firm’s name on behalf of the judgment creditor;

An order directing the respondents to write a written apol­ogy to the applicant which shall also’be published in at least two national newspapers for unlawfully violating the appli­cant’s fundamental Human right;

Damages against the respondents jointly and or severali,Y in the sum of N100 million for the breach of the applicant s rights under Section 35(2) of the 1999 Constitution of the Federal Republic of Nigeria and Article 8 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act;

And for such further or other orders as the honourable Court may deem fit to make in the circumstances.

The grounds of the application set out in the motion are in the following terms:

The investigation/inquiry launched by the respondents against the applicant is an abuse of the coercive machineIf of the state by the respondents to aid and abet the undermin­ing of the laWful order of the Supreme Court of Nigeria and restricts or interferes with the right of the applicant to prac­tise his profession to the fullest limit without let or hin­drance;

That the applicant’s demand for the payment of the judg­ment debt in his firm’s name on behalf of his client is not a criminal offence, is not in violation of any law but is consis­tent with the practice of the applicant’s profession as a legal practitioner and a Senior Advocate of Nigeria;

That the respondent’s action in arresting, detaining, humil­iating and intimidating the applicant for demanding for the payment of the judgment debt in his firm’s name on behalf of his client is solely directed to enable the judgment-debtor, WEMA Bank Pic, to totally evade paying an unquestionable debt to the applicant’s client;

• That the applicant has not committed any act or done any­thing to warrant any reasonable suspicion that an offence has been committed.

Dan Abulu Forner CJ FHC

• Whether the invitation of the applicant by the 1st respon­dent and the insistence that the applicant should disclose information about his client and or produce his letter of instruction in the nature of Power of Attorney, which are privileged/confidential communication between the appli­cant and his client as provided under Section 170 of the Evidence Act, does not amount to violation of the applicant’s freedom of expression guaranteed under Section 39 of the 1999 Constitution;

Whether the demand or request by the applicant of the payment of his client’s fees based on the judgment of the Supreme Court of December 16, 2005, and the Order Absolute made by Oyebanji J. of the High Court of Lagos State on May 30, 2008, against the Central Bank of Nigeria consti­tute a crime under the EFCC Act or any law at all.

If the answer to (0 and (ii) are in the affirmative and (iii) in the negative, whether the reliefs claimed in the statement accompanying the affidavit in support ought to be granted by the court in its entirety.

Arguing the four issues together, learned Senior Advocate submitted that haVing regard to the provisions of Sections 20 and 21 of the Legal Practitioners’ Act1990 and Rule 23 (2) of the Rules of Professional Conduct for L gal Practitioners 2007, the characterisation of the demand in this case for pay­ment of the judgment debt in the applicant’s firm name as an attempted fraud is unjustified and bereft of any legal basis. He cited Ikeogu vs. Legal Practitioners’ Disciplinary Committee (2009) 17 NWLR (pt. 1171) 643 in support of his submission.

Learned Senior Advocate drew the attention of the court to paragraphs 6 and 7 of the affidavit in support wherein it is averred that the applicant is a  practitioner. He submit­ted that the applicant be a legal practitioner within the meaning of Section 24 of the Legal Practitioners’ Act 1990 the Criminal inquiry or investigation initiated by the respon­dents against the applicant vide the 1st respondent’s letter of July 20, 2010, is an illegal interference with or restriction on the right of the applicant to practice his profession as a legal practitioner.

He contended that action of the respondents is contrary to Article 8 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act 1990, relating to freedom of conscience, the profession and free practice of religion.

The applicant in this case, learned Senior Advocate submit­ted, is statutorily a trustee of his client with regard to his client’s money in his custody and that he ought not be subjected to the rigours of criminal investigation, which can lead to the disclosure of the professional communication between him and his clients.

It is the learned Senior Advocate’s further submission that the action of the 1st respondent in this case constitutes a vio­lation of Article 8 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 1990.

He urged the court relying on Abacha vs. Fawehinmi (pt. 16fi) 1 rit nrifJPC; 7n _ 77t” h”lrl f”h”f” f”h” ~r”;”n “ has ,st rn”

the applicant is part and parcel of the victory of his client in the judgment of the Supreme Court, sought to be enforced by him, in this case.

The action of the 1st respondent complained of in this action, learned Senior Advocate submitted, is contemptuous . having regard to the provision of Section 33(3), (4) and (9) of j) the Criminal Code Act, 1990. He urged the court relying on :: Dahiru vs. Kamale (2006) All FWLR (pt. 295) 616 at 652, Rurkes vs. Barnard (1961) AC. 1129, Eloichim Nigeria Ltd vs. Mbadiwe (1986) All NLR 1 at 22 and GKF Investment (Nig) Ltd vs. NITEL PIc (2006)A1l FWLR (pt. 299) 1402 to grant all the reliefs of the action, including the claim for exemplary damages.

The motion has been opposed by the learned counsel for the 1st respondent.

Learned counsel placed reliance on the counter-affidavit. He submitted that die issues for determination are:

Whether the invitation extended to the applicant and sub­sequent interview with the 1st respondent based on the peti­tion against the applicant amounts to an infringement of the applicant’s fundamental rights;

Wliether the issues before the court and the one being investigated by the 1st respondent are the same to warrant interference with the power of the judiciary; and

Whether an order of interlocutory injunction will lie against the 1st respondent to restrain the 1st respondent from carrying out its statutory duties.

Learned counsel submitted on issue one that the 1st respon­dent has power under Sections 6,7,8,13 and 14 of the EFCC Act No.n of the 2004 and Section 4 of the Police Act 1990 to inves­tigate all cases of economic and financial crimes reported to it Tor prosecution when a prima facie case is established.

He contended relying on Fawehinmi vs.I.G.P (2002) 7 NWLR (pt. 767) 645 that there are many areas in which the 1st respondent has a discretion with which the law courts will not readily interfere. He contended that having regard to the provision of Section 35 (1) (c) of the 1999 Constitution, it cannot be said that Section 35 of the 1999 Constitution pro­vides immunity to the applicant from being investigated when there is a complaint against him. He urged the court to hold that the allegation by WEMA Bank PIc that the appli­cants fraudulently intend to divert or embezzle money meant for a judgment creditor falls within the area of opera­tion of the 1st respondent. He cited Ekwenugo vs. F.R.N & Anor. (2001) 6 NWLR (pt. 708) 17 at 185 in support of his con­tention that if there is reasonable suspicion that an offence has been committed by the applicant, he can be validly inves­tigated by the st respondent.

On issue two, learned counsel submitted that the allegation against the applicant being an allegation of fraudulent enrichment, the 1st respondent has power under Section 6(b) of the EFCC Act 2004 to investigate the allegation. He contended that the Legal Practitioners’ Act and the African Charter do not give the applicant any immunity for investi­gation where an allegation of crime is made against the applicant.

On issue three, learned counsel submitted that the 1st respondent can not be validly perpetually restrained from carrying out its statutory functions. He urged the court rely­ing on Peter vs. Okoye (2002)3 NWLR (pt. 755) 529 at 537 to refuse the prayer for an order of perpetual injunction restraining the 1st respondent from arrestiQg, detaining or investigating the applicant. He urged the court to dismiss the motion on notice.

The learned Senior Advocate for the applicant in his reply on points of law submitted that the 1st respondent has no limit­less power and authority to subject the applicant to investi­gation and arrest without any reasonable cause. He contend­ed that the 1st respondent has not shown that there is any reasonable suspicion that the applicant had committed a criminal offence before he was arrested and detained.

He urged the court to hold that the arrest and detention of the applicant being not based on reasonable suspicion is unconstitutional. He urged the court relying on Ekanem vs. I.G.P(2008)5 NWLR(1079) 97 at111 and Kola Awodein (SAN) vs. IGP (11) unreported Suit No: M/491/09 decided on September 23,2010, to hold that the action of the 1st respondent consti­tutes a violation of the constitutional right of the applicant to personal liberty and to grant all the reliefs of the action.

The foregoing is a summary of the submissions made on both sides in tliis application. The complaint of the applicant is as stated in paragraphs 5-8 of the counter-affidavit which are in the following terms.