The Nigerian Bar Association (NBA) has won a suit instituted against the Attorney-General of the Federation and Central Bank of Nigeria (CBN) seeking to bar the defendants from enforcing the provisions of the Money Laundering (Prohibition) Act 2011 (MLA) against legal practitioners.
In an originating summons dated March 15, 2013 and taken out on behalf of the Registered Trustees of the NBA by Chief Wole Olanipekun (SAN), Mrs. Funke Adekoya (SAN), Messrs Babajide Ogundipe, Emeka Nwadioke and Davison Oturu, the NBA had asked the court to declare that the provisions of Section 5 MLA, insofar as they purport to apply to legal practitioners, are invalid, null and void.
The plaintiffs also sought an order of the court deleting legal practitioners from the definition of Designated Non-Financial Institutions (DNFIs) as contained in Section 25 MLA, an order of perpetual injunction restraining the CBN from seeking to implement its circular reference FPR/CIR/GEN/VOL.1/028 dated 2nd
August 2012 in relation to legal practitioners, and an order of perpetual injunction restraining the Federal Government, acting through Special Control Unit against Money Laundering (SCUML), the National Financial Intelligence Unit (NFIU), the Economic and Financial Crimes Commission (EFCC) or otherwise howsoever from seeking to enforce the provisions of Section 5 MLA in relation to legal practitioners.
Delivering judgment in the matter, Justice Gabriel Kolawole of the Federal High Court sitting at Abuja raised three issues for determination, namely whether Section 5 of the MLA is unconstitutional, whether SCUML is the body authorised to regulate the conduct of legal practitioners and whether it is a juristic body, and whether in view of the Legal Practitioners Act (LPA), Evidence Act and the 1999 Constitution (as amended), the legal profession is not already well regulated? Justice Kolawole resolved all three issues in favour of the plaintiffs.
The court, in resolving issue one, held that insofar as Section 5 and 25 of the MLA seek to impose sanctions on the legal practitioner, they run contrary to the provisions of the Legal Practitioners Act (LPA), the Rules of Professional Conduct for Legal Practitioners, and Section 192 of the Evidence Act.
On issue two, the court held that SCUML is not a juristic person, being the creation of the Ministry of Trade and Commerce. Even the Ministry of Trade and Commerce is also not a body known to law, the court further held, adding that the Federal Executive Council could not by a resolution confer on SCUML a juristic personality.
Noting that there is no nexus between SCUML and legal practitioners, Justice Kolawole held that it was improper for SCUML to seek to exercise oversight powers over the plaintiffs. He further held that even if any oversight powers were to be conferred on any ministry, it ought to have been the Ministry of Justice.
Justice Kolawole observed that the sanctions for non-compliance with Section 5 of the MLA include banning the legal practitioner from engaging in legal practice. He held that the LPA has already made provisions for the manner in which a legal practitioner can be disciplined where his conduct falls below prescribed
standards of the rules guiding the profession. The court held that since the Minister of Trade and Commerce neither issued the Call to Bar certificate nor entered the name of any legal practitioner in the Roll, he had no right to disqualify any legal practition
Turning to the classification of legal practitioners as “traders,” Justice Kolawole struck down the classification. He held that legal practitioners are not “traders” and do not have “customers.” They ought not to have been grouped in the category of persons who can be reasonably treated as traders, the court held.
Justice Kolawole also resolved issue three in favour of the plaintiffs, holding that the legal profession is already well regulated by the respective provisions of the LPA, the Rules of Professional Conduct for Legal Practitioners and the Evidence Act which all deal specifically with the practice of law. According to the court, these laws already have a well defined mechanism for ensuring accountability and discipline among legal practitioners.
Justice Kolawole held that if the National Assembly set out to unsettle the structure already in place, it would have done so expressly. The court also observed that if the attention of the National Assembly had been drawn to the relevant provisions of the LPA, the legislature would not have included legal practitioners in
the list of persons to be regulated by SCUML without making the necessary alterations to the LPA. The court therefore held that no other body can sanction a legal practitioner without violating the provisions of the LPA which is an Act promulgated principally for regulating the legal profession.
The court then granted the reliefs sought by the plaintiffs and held that the provisions of the MLA as it applies to legal practitioners are null and void. It also adjudged the inclusion of legal practitioners in the definition of designated non-financial institutions as inapplicable.
Justice Kolawole gave an order of perpetual injunction restraining the Federal Government, the CBN and the SCUML from seeking to enforce Section 5 of the MLA against legal practitioners. He made no order as to costs.
It is recalled that Section 5 (1) of the MLA 2011 enacts that, “A Designated Non-Financial Institution whose business involves the one of cash transaction shall (b) prior to any transaction involving a sum exceeding US$1,000 or its equivalent, identify the customer by requiring him to fill a standard data form and present his
international passport, driving licence, national identity card or such other document bearing his photograph as may be prescribed by the ministry.” Section 5(1)(c) directs all such DNFIs to “record all transactions under this section in chronological order, indicating each customers surname, forenames and address in a
register numbered and forward to the ministry.” The Central Bank of Nigeria (CBN) had also in its Circular No. FPR/CIR/GEN/VOL.1/028 of 2nd August, 2012 classified legal practitioners as DNFIs in line with the MLA.
SCUML is an agency currently under the Federal Ministry of Trade and Investment with operational linkages to the Economic and Financial Crimes Commission (EFCC).
In an 18-paragraph affidavit deposed to by Osita Okoro, NBA Executive Director, the plaintiffs had stated that the action was brought on behalf of members of the legal profession in Nigeria to challenge Nigeria’s anti-money laundering regime as set out under the MLA, and following complaints from legal practitioners all over the country regarding, among others, potential encroachment on the principle of lawyer/client privilege through the implementation of the anti-money laundering regime by the SCUML.
But the defendants had argued that the objective of the MLA and the SCUML was not to monitor the legal practitioner but to monitor their clients who may have the potential to commit heinous crimes, adding that the MLA is a valid and deliberate exercise of legislative power to enact a law in derogation of the rights conferred by Section 37 of the Constitution for the purposes of preventing the financing of terrorism and other criminal activities inimical to public health and safety.
-NEWSWATCH TIMES-
No comments:
Post a Comment