NBA V AGF: Court fixes judgement for May 16

challenging the legality of the directive by Special Control Unit against Money Laundering (SCUML) that lawyers report to it certain transactions relating to their clients. The defendants are the Attorney-General of the Federation and the Central Bank of Nigeria (CBN).  The court set down the judgement date following arguments by counsel for the parties last […]

challenging the legality of the directive by Special Control Unit against Money Laundering (SCUML) that lawyers report to it certain transactions relating to their clients. The defendants are the Attorney-General of the Federation and the Central Bank of Nigeria (CBN).
  The court set down the judgement date following arguments by counsel for the parties last Thursday. While the plaintiffs were represented by Chief Wole Olanipekun (SAN), leading Chief Mike Ozekhome (SAN), Mr. Babajide Ogundipe and 12 other lawyers, the 1st defendant was represented by Mr. M. B. Wali (with H.A. Gudaji) while the 2nd defendant was represented by Charles Uwensuyi-Edosomwan, SAN (with Seun Owolade and Dayo Ashagbaya).
  Following the adoption of written addresses by all the counsel, Olanipekun argued that by virtue of the Legal Practitioners Act and the Rules of Professional Conduct, legal practitioners have an obligation not to permit any entity outside the Bar or judiciary to control the practice of law, adding that this is what Section 5 of the Money Laundering (Prohibition) Act (MLA) 2011 seeks to accomplish.  
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 Designated Non-Financial Institutions (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.”
 SCUML is an agency currently under the Federal Ministry of Trade and Investment with operational linkages to the Economic and Financial Crimes Commission (EFCC). The Central Bank of Nigeria (CBN) had in its Circular No. FPR/CIR/GEN/VOL.1/028 of 2nd August, 2012 classified legal practitioners as DNFIs.
  In an originating summons dated March 15, 2013 and taken out on behalf of the Registered Trustees of the NBA by Olanipekun, Mrs. Funke Adekoya (SAN), Messrs Babajide Ogundipe, Emeka Nwadioke and Davison Oturu, the NBA 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.
  It then sought an order of the court deleting legal practitioners from the definition of DFNIs 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 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.
  In an 18-paragraph affidavit deposed to by Osita Okoro, NBA Executive Director, the plaintiffs 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 potential encroachment on the principle of lawyer/client privilege through the implementation of the anti-money laundering regime by the SCUML.
The plaintiffs also filed an application seeking an interlocutory injunction restraining the defendants from implementing the MLA against legal practitioners pending the determination of the substantive suit.
  In response, Wali submitted 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.
  Arguing for the 1st defendant, Wali stated that the MLA 2011 “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.”