In the Federal High Court,Holden at Lagos, Nigeria,On Monday, December 13, 2010,Before Honourable Justice Dan Abutu, Chief Judge,Suit No: FHC/L/CS/1225/2010Between:Mogbeyi Sagay (SAN) (applicant) and Economic and Financial Crimes Commission,The Attorney General of the Federation (respondents).JudgmentTHE 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 initiated by the respondents, vide the 1st respondents letter of July 20, 2010 Ref: CR:3000/EFCC/LS/BF1/Vol.4/328, into the written request by the applicants 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 has 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 firms demand as counsel to the judgment creditor for the payment of the judgment debt in Suit No., LD/1349/79 in the firms 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 applicants fundamental Human right; Damages against the respondents jointly and or severally in the sum of N100 million for the breach of the applicants 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 machinery 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 applicants demand for the payment of the judgment debt in his firms 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 applicants profession as a legal practitioner and a Senior Advocate of Nigeria; That the respondents action in arresting, detaining, humiliating and intimidating the applicant for demanding for the payment of the judgment debt in his firms name on behalf of his client is solely directed to enable the judgment debtor, WEMA Bank Plc, to totally evade paying an unquestionable debt to the applicants client; That the applicant has not committed any act or done anything to warrant any reasonable suspicion that an offence has been committed.The motion is supported by affidavit of 66 paragraphs to which 15 documents were annexed as Exhibits A-J. The applicant filed along with the motion a written address dated October 6, 2010. The 1st respondent in opposition to the motion on notice filed a counter-affidavit of 27 paragraphs to which a set of documents marked Exhibit EFCC7 was annexed. The 1st respondent filed a written address dated October 28, 2010, along with the counter-affidavit. The applicant filed in reply to the counter -affidavit a further affidavit of 29 paragraphs to which two sets of documents marked Exhibit K and K1 were annexed. The applicant filed along with the further affidavit his written reply on points of law dated October 28, 2010.In arguing the application, learned Senior Advocate for the applicant placed reliance on the affidavit in support and the further affidavit. He submitted that the issues for determination are: Whether the criminal investigation/inquiry launched by the 1st respondent against the applicant in respect of the demand by the applicants firm for the payment of a judgment debt in the firm name on behalf of their client in Suit Nos. LD/1349/79 and SC/49/1997 is altogether unjustified, illegal and a most egregious interference with or and restriction of the applicants guaranteed right to the practice of his profession and an unwarranted invasion of his personal liberty; 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 applicants freedom of expression guaranteed under Section 39 of the 1999 Constitution; Whether the demand or request by the applicant of the payment of his clients 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 (i) 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 Act 1990 and Rule 23 (2) of the Rules of Professional Conduct for Legal Practitioners 2007, the characterisation of the demand in this case for payment of the judgment debt in the applicants 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 legal 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 respondents 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 Peoples 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 clients 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 Advocates 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. 366) 1 at pages 2027 to hold that the action of the 1st respondent is contrary to the provision of Article 8 of the African Charter.Learned Senior Advocate further submitted that a legal practitioner is a trustee, personal representative and an agent of his client. He cited Section 20 (5) of the Legal Practitioners Act 1990, Osigwe vs. PSPLS Management Consortium Ltd. (2009) 3 NWLR (pt. 1128) 378 at 404, Ugu vs. Fabi (1997) 7 NWLR (pt. 513) 368 and Blacks Law Dictionary, 8th Edition Page 1553 in support of his submission.He further submitted that an allegation that a party has died does not prevent his counsel or its counsel, as in this case, from receiving monies due to his client. He contended that applicants client, not being the complainant in this case, there is no valid complaint on the basis of which the applicant should be investigated by the 1st respondent. The applicant, learned Senior Advocate submitted relying on Edozien vs. Edozien (1993) 1 NWLR (pt. 272) 678 at 702 as a counsel for the judgment debtor has unlimited power to do that which is best for his client. He urged the court relying on FRN vs. Adewunmi (2007) 10 NWLR (pt. 1042) 399 at 424 to hold that the applicant as counsel is presumed to have his clients authority to assume full control of the conduct of his clients case.He submitted relying on Order 1 Rule 2 of the Supreme Court Rules that the word appellant includes his counsel and that 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 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) A.C. 1129, Eloichim Nigeria Ltd vs. Mbadiwe (1986) All NLR 1 at 22 and GKF Investment (Nig) Ltd vs. NITEL Plc (2006) All 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 the 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 applicants fundamental rights; Whether 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. 11 of the 2004 and Section 4 of the Police Act 1990 to investigate all cases of economic and financial crimes reported to it for 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 Plc 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 1st 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 arresting, 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 at 111 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 this application. The complaint of the applicant in this case is that in the process of taking steps to enforce the judgment given in favour of his client by the Supreme Court on December 16, 2005, by demanding for the payment of the judgment debt, the 1st respondent acting on the petition written by WEMA Bank Plc, the judgment debtor arrested him on August 9, 2010, and detained him between 10.00 a.m. and 6.30 p.m. when he was granted bail with an order that he should report at the 1st respondents office on August 16, 2010. The applicant has further complained that he was while in detention humiliated, harassed, intimidated and threatened with an embarrassing public prosecution if he did not make written statement and disclose confidential information concerning his client. See paragraphs 25-37 of the affidavit in support of the motion.The 1st respondent filed a counter-affidavit in opposition. The 1st respondent has not denied the allegation in paragraph 34 of the affidavit in support to the effect that applicant was arrested on August 9, 2010 and detained between 10.00 a.m. and 6.30 p.m. when he was granted bail with an order to report at the 1st respondents office on August 16, 2010. The basis of the arrest and detention of the applicant is as stated in paragraphs 5 - 8 of the counter-affidavit ,which are in the following terms. 5.That contrary to the applicants averment in paragraph 11 of the affidavit in support of his application, the judgment of zthe court was not the bone of contention but that the applicant was making effort to perpetrate fraud by collecting judgment debt for a juristic person who no longer exists and thereby converting it to his own personal use. Attached is a copy of the petition marked Exhibit EFCC1; That contrary to the averment in paragraph 25 of the affidavit in support the petition against the applicant deals with attempt to commit fraud, which is the duty of the 1st respondent to investigate; That contrary to the applicants averment in paragraph 31 of the affidavit in support of his application, it is the duty of the 1st respondent to determine if there is a prima facie case against a suspect of an alleged crime and not that of the applicant; That contrary to paragraph 36 of the affidavit in support of the applicants application, the applicant refused to disclose information about his purported client (judgment creditor) who all facts revealed was no longer in existence. Attached is a copy of the investigation to unmask the status of the judgment creditor, auto import export marked EFCC 2.The averments above reproduced show beyond doubt that the 1st respondent arrested the applicant in connection with an allegation of attempt to commit fraud.By Section 35(1) (c) of the 1999 Constitution, a citizen of Nigeria can be lawfully deprived of personal liberty when there is a reasonable suspicion that he has committed a criminal offence. The said Section 35 (1) (c) 1999 Constitution is in the following terms:Section 35 (1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law:For the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed criminal offence or to such extent as may be reasonably necessary to prevent committing a criminal offence.The issue in this case is whether the allegation contained in the petition annexed as Exhibit EFCC2 to the counter-affidavit is one that can make the 1st respondent to reasonably suspect that the applicant has committed a criminal offence. The phrase reasonably suspect has been defined on Page 1584 of Blacks Law Dictionary 9th Edition to mean to consider something to be probable under circumstances in which a reasonable person would be led to that conclusion or to consider someone as having probably committed a wrong-doing under circumstances in which a reasonable person would be led to that conclusion.The uncontroverted affidavit evidence in this case is that the applicant for upwards of 25 years has been the counsel for the judgment creditor. There is no evidence in this case, which shows that he did more than demanding that the judgment debtor be paid to him on behalf of his client. As the solicitor for the jugdment-creditor, See Blacks Law Dictionary 9th Edition Page 1520. By the provision of Sections 20 and 21 of the Legal Practitioners Act, 1990 and Rule 23(2) of the Rules of Professional Conduct for Legal Practitioners 2007, a legal practitioner is entitled to collect money for his clients. The said rule 23(3) of the Rules for Professional Conduct for Legal Practitioners states as follows:Where a lawyer collects money for his client, or is in a position to deliver property on behalf of his client, he shall promptly report and account for it and shall not mix such money or property with, or use it as, his own.The Legal Practitioners Act and the Rules for Professional Conduct for Legal Practitioners certainly permit a legal practitioner to receive a judgment debt on behalf of his client. The uncontradicted affidavit evidence to the effect, that the judgment creditor in this case has been liquidated and dissolved cannot be a ground for suspecting that by demanding for payment of the judgment debt, the applicant is making an attempt to commit fraud. See Ikeogu vs. LPDC (Supra) at 643.There are provisions under the law for lawful disposal of the money of a corporation, which has been liquidated and dissolved. The money can be used by the liquidator to settle the liabilities of the corporation, which has been liquidated and dissolved and if there are no liabilities, the money becomes that of the share-holders of the corporation.On the whole, it is my firm view that the arrest and detention of the applicant on August 9, 2010, was not based on reasonable suspicion that the applicant has committed or making an attempt to commit an offence. It is certainly within the powers of the 1st respondent, to on the basis of the petition, question the applicant to know the basis on which he is demanding for payment of the judgment debt to him. On becoming aware that the applicant is demanding for payment of the judgment debt to him as the solicitor for the judgment creditor, the 1st respondent ought not to have gone further to arrest and detain the applicant and to grant him bail with a direction that he should report at the 1st respondents office on August 16, 2010. The 1st respondent also ought not to have gone further to threaten the applicant with criminal prosecution if he failed to make a written statement regarding the confidential communication between him and his client, the judgment creditor. It is after the judgment debt has been paid and it is found out that it has been misappropriated by the applicant that it can be said that an offence has been committed. The 1st respondents intervention in this case is patently premature.The claim for damages in this case, is in my respectful view, not supported by the evidence on record. The action, therefore, succeeds and judgment is hereby entered for the applicant in the following terms:It is hereby declared that the arrest and detention of the applicant on August 9, 2010, by the officers of the 1st respondent and the criminal inquiry/investigation initiated by the respondents vide the 1st respondents letter dated July 20, 2010, Ref: CR:300/EFCC/LS/BF1/VOL.4/328 into the written request by the applicants 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 No. LD/1349/79, is contrary to Section 35(1) of the 1999 Constitution and Articles 8 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1990, having regard to the provisions of Sections 20 and 21 of the Legal Practitioners Act, and Rule 23(2) of the Rules for Professional Conduct for Legal Practitioners 2007 and are, therefore, unconstitutional and an illegal interference with the right of the applicant to practise his profession as a legal practitioner.It is further declared that the demand made on the applicant by the respondents requiring the applicant to disclose the confidential communication between him and his client, the judgment-creditor is contrary to Section 170 of the Evidence Act and is, therefore illegal, null and void.The respondents, their servants, officers or agents are hereby restrained from arresting, detaining or prosecuting the applicant in connection with his law firms demand as counsel to the judgment creditor for the payment of the judgment debt in suit no. LD/1349/79 in the firm name on behalf of the judgment creditor.The 1st respondent is hereby directed to write a written apology to the applicant for the arrest and detention of the applicant on the basis of an act done by the applicant in the lawful practice of his profession.Appearance: Chief Judge Dan. D. Abutu, FCI Arb, December 13, 2010.
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