➥ CASE SUMMARY OF:
Federal Republic of Nigeria v Chief Mike Ozekhome (SAN) (2021) – CA/L/174/19
by Branham Chima.
Federal Republic of Nigeria
Chief Mike Ozekhome (SAN)
Court of Appeal – CA/L/174/19
➥ JUDGEMENT DELIVERED ON:
Friday the 14th day of May, 2021
➥ SUBJECT MATTER
Ozekhome’s chamber’s Account freezed;
Motion ex parte.
➥ THIS CASE IS AUTHORITY FOR:
⦿ HOW TO FILE A PRELIMINARY OBJECTION
In response to the submissions of the learned counsel to the Appellant, the learned counsel to the Respondent in his brief of argument, argued at length what he termed a preliminary objection. It is noted that it was not headed as such and there was no Notice of the preliminary objection filed with the grounds upon which it was brought. It was argued as a preliminary point/preliminary objection under the background facts. When the appeal was argued the learned counsel to the Respondent did not argue the supposed preliminary objection before the main appeal was argued. No wonder then that the learned counsel to the Appellant did not respond to it but, only responded to the substantive appeal. It is taken that the supposed preliminary objection was abandoned by the learned counsel to the Respondent. The Court of Appeal Rules, 2016 outlined the mode of raising a preliminary objection on appeal in Order 10 Rule (1) thus: 10:(1) “A respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.” The requirements for reliance on a preliminary objection to the hearing of an appeal as provided for by Order 10 Rule (1) are three fold. These are: (1) Three clear days’ notice must be given by the Appellant before the hearing of the appeal. (2) The grounds of the objection must be clearly set out in the preliminary objection. (3) Twenty copies of the preliminary objection shall be filed with the Registrar within the same time. The Respondent did not comply with any of the requirements. No doubt, a Notice of objection can be given in the brief of argument, it does not dispense with the need for the Respondent to move the court at the hearing for the reliefs prayed for. Where a preliminary objection to an appeal is set out in the brief of argument, the Respondent cannot merely adopt his brief of argument in respect of the preliminary objection; which is what the learned counsel to the Respondent did in this case when the appeal was argued. Learned counsel is required to proffer oral argument in support of the grounds which are incorporated in the preliminary objection. The Notice of preliminary objection can be given in the Respondent’s brief, but, learned counsel must ask the court for leave to move the Notice of objection before the oral hearing of the appeal commences, otherwise it would be deemed to have been waived and therefore abandoned. The Respondent clearly failed to comply with the Rules of this court in raising and arguing a preliminary objection challenging the competence of this appeal. — C.N. Uwa, JCA.
⦿ GROUNDS UPON WHICH A COURT OF LAW CAN SET ASIDE HIS EARLIER RULING
A court of law has the inherent power to set aside its decision or that of a court of co-ordinate jurisdiction under special circumstances, for instance where the decision is taken without jurisdiction, where a misrepresentation is made which influenced the decision, where there is a suppression of material facts or where the order is irregularly granted. Therefore, in appropriate situations, a court can invoke its inherent jurisdiction or power to set aside its judgment or order where it is made without jurisdiction or in appropriate cases where the order or decision is afflicted by another virus capable of rendering the decision or order ineffective null and void. See, UBA PLC VS. MAGAMA NIGERIA LIMITED & ANOR (2013) LPELR – 20685 (CA), OBIMONURE VS. ERINOSHO & ANOR (1966) LPELR – 25301 (SC) and ALAYA VS. ISAAC (2019) LPELR – 46881 (CA). The law is that where a court makes an ex – parte order (as in the present case) without jurisdiction, the same order could be varied or discharged depending on the circumstances of the case, the grounds under which the court could do so as rightly highlighted by the learned counsel to the Respondent are as follows: (i) If the plaintiff has not used his administrative powers that might have resolved the difficulty; (ii) if default has been made in giving security for costs: (iii) if the affidavit has not been filed when the injunction was moved for; (iv) if it was granted on a suppression or misrepresentation of material facts; (v) if it was irregularly granted; (vi) if the plaintiff failed to attend to be cross examined: (vii) if there had been delay in complying with an undertaking to amend the writ by adding a party as plaintiff; (viii) if there is non-disclosure of material facts. — C.N. Uwa, JCA.
⦿ COURT WILL SET ASIDE MOTION EX PARTE MADE ON SUPPRESSED FACT – ISSUE OF FAIR HEARING DOES NOT ARISE
Further, the Appellant alleged lack of fair hearing, to this I would say that the allegation was not substantiated. It is not enough to waive the flag of lack of fair hearing and nothing more. Fair hearing is a two way traffic which both parties ought to enjoy or entitled to. The Respondent in the present case was entitled to be heard before an order that affects him should be made and having been made ex – parte, the Respondent was entitled to have it reviewed by the trial court after other facts with exhibits in support were made known to the lower court as deposed in the affidavit in support of the application to set aside the ex – parte order before the expiration of the 120 days granted. See, MFA & ORS VS. INONGHA (2014) (supra). If the Appellant had laid down the facts of the case as they were at the time the lower court granted the application, the lower court would not have been misled to have granted the ex – parte order which the court set aside, that led to the present appeal, had the facts not been suppressed the lower court would have arrived at a different decision. — C.N. Uwa, JCA.
⦿ THE JUDGEMENT OF A COURT REMAINS BINDING UNTIL SET ASIDE BY AN APPELLATE COURT
It is the law that a ruling or judgment of the court remains valid until it is set aside by an appellate court. The Ruling of Taiwo, J. of the Federal High Court, Ado Ekiti of 13/12/16 defroze the account of Ayodele Fayose from which the sum of N75,000,000.00 (Seventy Five Million Naira) being the professional fees paid to the Respondent for services rendered remains the extant decision. The said decision which the Appellant alleged to be perverse has not been set aside, it therefore remains the law, valid and binding, vacating an earlier order made by Idris, J. of the Lagos Division was the extant law as at the time the payment of N75,000,000.00 was made to the Respondent for services rendered. As rightly argued by the learned counsel to the Respondent, at the time the order was made by the lower court defreezing the account of the Respondent’s Chambers, the decision of Taiwo, J. was valid and subsisting until set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of an aggrieved party. See, ROSSEK & ORS VS. ACB LTD & ORS (1993) LPELR – 2955 (SC) P. 104, PARAS. A – D, OKEZIE VICTOR IKPEAZU VS. ALEX OTTI & ORS (2016) LPELR – 40055 (SC) P. 20, PARAS. A – C, FIDELITY BANK VS. THE M.T. TABORA & ORS (2018) LPELR – 44504 (SC) PP. 6 – 14, PARAS. B – D. In OJIAKO & ORS VS. OGUEZE & ORS (1962) LPELR – 25 116 (SC) P. 31 PARAS. D – E, his lordship Brett, JSC on the validity of a subsisting judgment held that: “Where no question of nullity arises, once the judgment of any competent court is perfected it is valid until set aside by competent authority, and there can be no presumption against the validity of such a judgment.” See, also BEMDOO MINDI VS. THE STATE (2020) LPELR – 52897 (SC) P. 53, PARAS. B – E. — C.N. Uwa, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Chidi Nwaoma Uwa, JCA.
⦿ FOR THE APPELLANT
U.U. Buhari Esq.
⦿ FOR THE RESPONDENT
Ejieke Onuoha Esq.
➥ CASE FACT/HISTORY
The background facts are that the Appellant had sought before the lower court an ex parte order of interim attachment and to freeze for a period of one hundred and twenty (120) days an account belonging to and operated by Mike Ozekhome’s Chambers, with Account No: 230675682110, domiciled with Guaranty Trust Bank Plc at Plot 1400, Tiamiyu Savage Road, Victoria Island, Lagos, now Account No: 0014436393. It was contended that the lower court made an interim order freezing the Respondent’s account on the basis of the ex – parte application and evidence tendered solely by the Appellant. The Respondent made out that the Appellant misrepresented and suppressed material facts in her application. Subsequently, the Respondent filed a motion before the lower court praying the court to vacate forthwith, the interim order freezing the account of Mike Ozekhome’s Chambers based on the grounds of suppressed facts, non-compliance with the rules of the lower court and judicial authorities regulating the grant of ex – parte applications which were breached by the Applicant. The Application was opposed by the Appellant who filed a counter affidavit, further affidavit and a written address. The Respondent also reacted to the above processes. Arguments were put forward by both parties, after which the lower court in its Ruling set aside the interim order freezing the account belonging to and operated by Mike Ozekhome’s Chambers.
The appeal is against the Ruling of the Federal High Court Lagos, delivered on 4 th April, 2017, presided over by Abdul – Aziz Anka, J. (hereafter referred to as the lower court) in which the court granted the prayers sought by the Respondent by vacating the earlier interim order made ex – parte on the 7 th day of February, 2017. The appellant was dissatisfied with the Ruling thus this appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether having regards to the facts and circumstances of this case, the court below has the requisite jurisdiction to set aside its own order of interim attachment before the expiration of 120 days granted to the Appellant to conclude its investigation?
RULING: IN RESPONDENT’S FAVOUR.
A. THERE IS NO SUSPICIOUS ILLEGALITY ON WHY THE ACCOUNT SHOULD CONTINUE TO REMAIN FROZEN
[‘The Respondent in his application before the lower court for the court to set aside its earlier order that the Respondent’s Chambers’ account be defrozen alleged misrepresentation, non-disclosure and suppression of material facts by the Appellant in securing an interim order to freeze the account operated by the Respondent’s Chambers. The lower court at page 694, volume one of the printed records of appeal found that the transfer of the money to the Respondent’s Chambers was made when the account was not encumbered. The Appellant did not tender any contrary evidence to show that the account was encumbered and that transfer or withdrawals of funds ought not to have been made as at the time of the transfer of the funds. The applicant did not in any way fault the invoices, receipts and the Newspaper Publications exhibited and attached to the affidavit in support of the application on Notice which was granted by the lower court. At pages 696 – 698 of the printed records, Volume II, the lower court held thus: “The fact that the Respondent/Applicant whose account had earlier been frozen, seeks an order of court to defreeze same cannot in my view amount to seeking injunctive relief against prosecution. When the commission after having investigated the accounts of the Respondent/Applicant feels an offence had been committed, the commission has the right to file charges before court of competent jurisdiction. Filing an application seeking to discharge an earlier order of court made ex – parte cannot be tantamount to seeking an injunction against prosecution which will metamorphose into a shield against the commission. From the circumstances of the facts as outlined above, my decision is based on the following considerations considering the fact that the source of the funds of the Respondent/Applicant is derivable from an unencumbered account, considering also the fact that such account had already been defrozen via order of the Federal High Court sitting in Ado Ekiti, considering also that the amount had already been dissipated, put into consideration also the fact that the proceeds are monies paid for the services rendered by the Respondent/Applicant in prosecuting various actions before various courts, also considered is the fact that the name of a legal practitioner is expunged from the money Laundering Act as at the time of the present action as being a DESIGNATED NON – FINANCIAL INSTITUTION, and having given careful consideration to the submissions of the Learned Senior Advocate Chief Mike Ozekhome in his address at pages 33 to 34 on failure of the Applicant/Respondent to give security or undertaking to damages as one of the conditions precedent for granting an interim injunctions as held in the famous case of KOTOYE VS. CBN (1989) I NWLR (PT. 98) 419 and the case of ADEYEMO VS. THE ESTATE OF DR. VICTOR AWOSIKA (DECEASED) & ANOR (2013) LPELR – 20213 (CA), I find it highly doubtful of the objection of the EFCC can be lawfully sustained.”’]
B. EX PARTE ORDERS ARE TO LAST FOR ONLY FEW DAYS, IT HAS A VERY SHORT LIFE SPAN
[‘The Appellant’s grouse was that the 120 days interim order of forfeiture to freeze or attach the account operated by the Respondent’s Chambers, Account No. 230675682110, with Guaranty Trust Bank Plc, Plot 1400 Tiamiyu Savage, Road, Victoria Island, Lagos, now Account No. 0014436393, LUTH, Idi – Araba, Lagos had not elapsed. It is noteworthy that an order ex – parte has a very short life span, it is an interim order in which the party against who it is made can freely apply that it be discharged or pending the determination of the application on Notice which may lead to automatically terminating the life span of the ex – parte order or continue it pending the determination of the substantive suit. An ex – parte application ought not to last for more than a few days, usually the next motion day, moreso where there was a misrepresentation of material facts or suppression of facts. See, NJOKANMA & ANOR VS. UYANA (2006) LPELR – 9805 (CA). The learned counsel to the Appellant has not argued or made out that the funds in question have not been dissipated by the Chambers of the Respondent.’]
II. Whether having regards to the facts and circumstances of this case, the learned trial judge was not in error when in setting aside its own order relied on the evidence that the sum of N75,000,000.00 (Seventy Five Million Naira) received by the Respondent was for services rendered but failed to rely on the evidence of the Appellant showing that the said sum were proceeds of the unlawful activities of the Respondent’s client and his cronies?
RULING: IN RESPONDENT’S FAVOUR.
A. IT IS NOT THE BUSINESS OF A LEGAL PRACTITIONER TO ENQUIRE SOURCE OF MONEY PAID TO HIM FOR HIS SERVICES
[‘The learned counsel to the Appellant had argued that the Respondent ought to have known that the source of money paid to him as professional fees was from an illicit act or “proceeds of unlawful activities.” No doubt a Legal Practitioner is entitled to his fees for professional services rendered and such fees cannot be rightly labeled as proceeds of crime. 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. There was nothing on record at the time the money was paid to the Respondent’s Chambers to show that the money was from the proceeds of unlawful activities and the lower court was right not to have agreed that the money was from unlawful activities. The second issue is resolved against the Appellant.’]
III. Whether legal practitioners are excluded from the definition of “designated non – financial institutions” contained in the money Laundering Prohibition Act, 2011?
RULING: IN RESPONDENT’S FAVOUR.
A. LEGAL PRACTITIONERS ARE EXCLUDED FROM DESIGNATED NON-FINANCIAL INSTITUTION
[‘The learned counsel to the Respondent had argued that the Legal Practitioners are excluded from the definition of designated non – financial institutions as contained in the Act, while the learned counsel to the Appellant submitted otherwise. There is no dispute that in a decision of the Federal High Court in Suit No. FHC/CS/173/2015, REGISTERED TRUSTEES OF THE NIGERIAN BAR ASSOCIATION VS. A.G. FEDERATION & CBN, his lordship Kolawole, J. (as he then was) held that legal practitioners are excluded from the definition of designated non – financial institutions as contained in the Money Laundering Prohibition Act, 2011 (hereafter referred to as the Act) as far as it applies to legal practitioners invalid, null and void, Section 25 of the Act (which was held to be inconsistent with Section 192 of the Evidence Act, therefore Section 25 of the Act would give way to Section 192 of the Evidence Act, it cannot override or amend the Evidence Act. The decision of Kolawole, J. has not been set aside but, rather upheld by this Court, in Appeal No. CA/A/202/2015, CBN VS. REGISTERED TRUSTEES OF THE NBA (unreported). The above decision has defined the law until it is set aside. The learned counsel to the Appellant has neither argued nor shown that it has been set aside by the Supreme Court, his argument seems to challenge the decision of Kolawole, J. (as he then was) which is not on appeal before this court. See, AKINTOKUN VS. LPDC (2014) LPELR – 22941 (SC) PP. 64 – 66 PARAS. F – B. The GOVERNOR OF KADUNA STATE VS. LAWAL KAGANA (1982) LPELR – 3176 (SC) PP. 41 – 43, PARAS. B – C, UWAIFO VS. A – G BENDEL STATE & ORS (1982) LPELR – 3445 (SC) P. 51, PARAS. D – F, ONYEMA & ORS VS. OPUTA & ANOR (1987) LPELR – 2736 (SC) PP. 83 – 84, PARA. B, IBIDAPO VS. LUFTHANSA AIRLINES (1997) LPELR – 1397 (SC) P. 59, PARAS. A – B and IKINE & ORS VS. EDJERODE & ORS (2001) LPELR – 1479 (SC) PP. 26 – 27, PARAS. E – C. The lower court was right to have followed the decision in CBN VS. REGISTERED TRUSTEES OF THE NBA (supra) which reaffirmed the position of the law to the effect that Legal Practitioners are excluded from those tagged “Designated non – Financial Institutions” under Section 25 of the Money Laundering Act, 2011’]
‘In the final analysis, I hold that the appeal is without merit, it is hereby dismissed in its entirety. I affirm the Ruling of the lower court in Suit No. FHC/L/CS/102/17 delivered on 3rd April, 2017. No order as to costs.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)