I have followed the events leading and subsequent to the “reported” Charge filed against Mr Paul Usoro SAN, the NBA President, I must confess that these are interesting times to be alive as a lawyer. For one, as I write, no Court process has been served on Mr Usoro SAN to the best of my knowledge. The Charge is still surrounded in mystery.
In the past, one would have at least expected a filed copy of such Charge to have flooded the internet in keeping with the Economic and Financial Crimes Commission (EFCC)’s media trial strategy. But, no one has sighted a copy of this controversial document except a draft of what purports to be the Charge circulating on most WhatsApp groups. Strangely, the draft only contains the Statement of Offence without more. Given that some credible media outlet has published not only the Charge Number but the Judge and the Prosecutor handling the matter, it is safe to assume that there is indeed a Charge.
Now to the real issue, I have come to notice that there are three groups of people who are fueling the debate in respect of the Charge on social media. First, those who are sympathetic to Mr Usoro SAN. This group has one central message – EFCC should leave Mr Usoro alone and stop harassing a man for earning what is due to him from his professional services.
The second group is made of people who see this incident as an opportunity to cut their pound of flesh from Mr Usoro for obvious reasons. There are splinter sub-groups within this second group but there are all working towards the same objective – to pull Mr Usoro down at all cost. Here, you will find those who lost in the last Nigerian Bar Association (NBA) General Elections and their sympathizers and supporters. You will also find in this group those who are not comfortable with the new order in NBA administration. Of course there are also political vultures who are after the soul of Akwa Ibom State and who must crush any threat both real and imaginary that stand on their way even if it means taking down an armless passer-by. This second group is the most complex of all as it is difficult to decipher the composition of the syndicate. Its members are the ones putting the fraud and money laundering spin on the debate. Prof Ernest Ojukwu is one of the founding members of this second group and his recent veiled call for Mr Usoro to step down as the NBA President did not come as a surprise. Prof Ojukwu’s attention should be drawn to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as he is feigning ignorance of same. For a man who claims he believes in the rule of law, it is a paradox that he has suddenly forgotten that the presumption of innocence of an accused person forms part of the pillars of the Rule of Law. You do not condemn a man who has not been found guilty. Asking Mr Usoro to step down is tantamount to punishing him for a crime he is presumed innocent of. There are precedents that should guide Prof Ojukwu and members of this group. The Nigerian Senate President did not resign his position when he was standing trial at the Code of Conduct Tribunal for what was popularly reported as a politically motivated charge. Of course there were those who wanted Saraki to resign his position on the mere ground that he was standing trial. Outside Nigeria, the Israeli Prime Minister, Benjamin Netanyahu is currently facing series of corruption cases but he is still in the office.
The third group constitutes of professionals who are concerned about the implications of the EFCC actions, not only on the legal profession but on other professions as well. This group is not influenced by any partisanship or inclinations. There are fears amongst the members of this group that there are dangers lurking in the shadows with the way EFCC is veering off from its statutory duties. This last group recognizes the statutory roles of EFCC as provided under the EFCC Act and insists that the Commission should focus on its mandate of fighting economic crimes and allow professionals to conduct their businesses and contribute their quota to the growth of the dwindling GDP of this country. At the risk of sounding immodest, I believe I find myself within this last group. I appreciate the efforts being made by the EFCC to curb corruption in Nigeria but one cannot close his eyes to the derailment in the operations of the EFCC which has been recognized by the Highest Court in the land. I want EFCC to be an institution that is insulated from political manipulations either from politicians or those who have axes to grind against another as it will serve the interest of all if we have strong institutions.
The real Issue in dispute
A hallmark of a good lawyer is not to make an assumption on issue of facts. I am pretty certain that majority of those who have been calling for the head of the NBA President online are not abreast of the facts leading to the Charge. I am not talking of those who chose to distort the facts to suit their mischievous narratives. I will implore those who are interested in the real facts to accompany me as we patiently navigate through the facts in issue leading to the Charge of Money Laundering against Mr Usoro. I must commend Mr Usoro himself for he has done enough to educate the public on these facts. It is no news that the EFCC has been investigating the affairs of Akwa Ibom State as well other States especially those governed by the opposition party. Recall that the EFCC had at sometime attempted to freeze the account of Akwa Ibom State Government leading to a Suit at the Federal High Court in Uyo filed by the Attorney-General of Akwa Ibom State challenging the powers of the Commission in that regard. EFCC had in its Statement of Defence which has now become a public document, in the Uyo civil Suit made the following allegations:
1. In the course of its statutory functions, it found massive suspicious transactions from the account of the Akwa Ibom State Government in what the Commission termed grand conspiracy between the Executive Governor of the Akwa Ibom State, the Accountant General of Akwa Ibom State, the Attorney-General of Akwa Ibom State, the Commissioner of Finance Akwa Ibom State, one Margaret Thompson Ukpe and Paul Usoro & Co;.
2. In one of such suspicious transactions, on 10 March 2016, the sum of N700 Million Naira was withdrawn in cash from the Akwa Ibom State Accountant General Impress account.
3. Out of the said N700 Million Naira, the sum of N300 Million was deposited in cash in the Zenith Bank account of Paul Usoro & Co without any contractual relationship between the Akwa Ibom State and the said Paul Usoro & Co.
4. EFCC invited Paul Usoro SAN who volunteered extra judicial statement confessing that the said N300 Million was his professional fees for handling Mr Udom Emmanuel’s personal matter before the election tribunal.
5. In a similar vein, the total sum of N1.1 Billion Naira was also removed from the Akwa Ibom State Ministry of Justice Zenith Bank Plc account and lodged in Paul Usoro & Co Access Bank Plc account.
6. That out of the said N1.1 Billion Naira, the sum of N65 Million suspected to be a kick-back was paid to the Attorney-General of Akwa Ibom State by Paul Usoro & Co.
The foregoing is the crux of the Defence of the EFCC in the ongoing civil Suit before the Federal High Court, Uyo. As clearly obvious from the draft Charge circulating on social media, the Charge against Mr Usoro is the regurgitation of EFCC’s Defence in the said Suit and from what has been reported so far, the same Counsel who represents EFCC in the Civil Suit is also prosecuting criminal Charge.
Mr Usoro SAN on his part has informed the public that he volunteered Statements and submitted documents at the EFCC. In his speech at the just concluded National Executive Committee (NEC) of NBA meeting that took place in Abuja on 06 December 2018, he alluded to these facts. The summary of Mr Usoro’s position is that:
1. The N300 Million paid into the Zenith Bank Plc account of Paul Usoro & Co at the instance of Governor Udom Emmanuel, was the professional fee for the conduct of the Governor’s Election Petition appeal before the Supreme Court. As applicable in any organization, Mr Usoro received advice from his Client (Governor Udom Emmanuel) that Paul Usoro & Co’s account has been credited. At that point, Mr Usoro had no idea whether the payment was a cash lodgment and it was only until EFCC interrogated him on the fees that he got to know. People who operate large firms account with distinct accounts department will relate to and identify this.
2. Mr Usoro was the Coordinating Counsel for Governor Udom Emmanuel’s Election right from the Governorship Election Tribunal to the Supreme Court and the payment was for the various Counsel who were members of the Governor’s Legal Team. The records of the Election Petition Proceedings from the Tribunal to the Supreme Court will bear this out.
3. Mr Usoro denied and never stated that the N300 Million that was paid to Paul Usoro & Co was part of the N700 Million Naira that was purportedly withdrawn from Akwa Ibom State bank account. The sum of N300 Million it will be recalled was deposited in cash on behalf of Governor Udom. And of course, there is no legal duty on Mr Usoro or his law Firm to question the source of N300 Million paid by Governor Udom.
4. Mr Usoro not being a staff of Akwa Ibom State was never questioned in respect of the withdrawal of N700 Million mentioned in EFCC’s Statement of Defence in the Civil Suit.
5. As it relates to the sum of N1.1 Billion Naira paid into the account of Paul Usoro & Co between 24 August 2015 and 18 September 2016, the sum was for several arbitral and litigation matters which Paul Usoro & Co was and still handling for Akwa Ibom State and its agencies. This sum was paid by the State Government being the Client of Paul Usoro & Co in those matters.
6. Documents evidencing the said arbitral and litigation matters were contained in the Schedule submitted to the EFCC and the records of the Court proceedings are clear on the representation of Paul Usoro & Co on those matters. Just being curious, what can possibly be the concern of EFCC about the source of funds for N1.1 Billion for 19 cases when it is clearly stated that it was from the accounts of the state government? Has the EFCC traced the funds to determine round tripping to Politically exposed persons?
With the above facts, is it not clear that Mr Usoro has no case to answer and that the case of the EFCC is clearly off base. Section 15(2)(a)(b) of the Money Laundering Act, 2011 under which the Charge was premised, provides that:
“(2) Any person or body corporate, in or outside Nigeria, who directly or indirectly- (a) conceals or disguises the origin of; (b) converts or transfers; any fund or property, knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act; commits an offence of money laundering under this Act.
Section 15(3) of the same Act provides for the punishment of 7 years but not more than 14 years imprisonment for whoever is found guilty under Section 15(2) thereof.
Whilst I do not pretend to know what material EFCC has in its Proof of Evidence to prove beyond reasonable doubt that Mr Usoro concealed or disguises the origin or converts or transfers the sum of N1.4 Billion Naira paid to his Firm as professional fees and that he knowingly or reasonably ought to know that the professional fees are proceeds of unlawful act, it will indeed be a herculean task and the eighth wonders of the World to see how the EFCC will scale through this hurdle of burden and standard of proof given Mr Usoro’s consistent position in this matter.
Of course, it is now clear that that the essence of the Charge against Mr Usoro is not to find him guilty after all, but to embarrass him out of the Office. There were even reports that the timing of Charge was deliberately set to coincide with the NBA NEC meeting. The plan was for Sahara Reporters and other media Trial Courts of EFCC to release the news about the Charge a day before the NEC Meeting so that it will form the basis of a well-orchestrated Motion at the NEC meeting for the impeachment of the NBA President. If it were not so, how else do you explain a situation where a Charge is filed against a Defendant and without serving or even informing the accused person, information about the Charge found its way to online media such as Sahara Reporters? The speculation that EFCC is working with Sahara Reporters and other online media to institutionalize media trial need no further proof. It is therefore laughable to read EFCC’s rejoinder to Mr Usoro’s NBA NEC Meeting Speech where the Commission amongst other things noted that it would not want to engage Mr Usoro on the pages of newspapers and that what is at stake is the legitimacy of the source of the money used for the various payments. Those who are behind the charade are now speaking, leaving no one in doubt of their clandestine plan. Sequel to the EFCC’s rejoinder, Prof Ernest Ojukwu followed suit with a call Mr Usoro to prepare his resignation letter and even went ahead to add that the 1st Vice President take over as the acting President pending when Mr Usoro clears himself. Prof Ojukwu even suggested that he will ensure that the Trial does not exceed six months so that Mr Usoro would come back and conclude his tenure if he acquitted. What a height of desperation on the part of a man who should know better not to presume someone guilty without Trial. What exactly do Prof Ojukwu and his co-travelers want? I ask this because, Prof Ojukwu came distant third and up till now has not filed any Suit challenging the Election. Can’t he move on and prepare for the next NBA election? How long is he going to nurse this bitterness? If he truly loves the NBA as he professes, there are other ways he can contribute without sowing a seed of discord amongst the members.
EFCC on its part should focus on its statutory mandate and leave professionals alone. If Mr Magi feels law practice is too lucrative, he should resign from position and proceed to acquire LL.B and B.L so that he can the same fat professional fees. It is on record that he had in the past questioned the professional fees being collected by Senior Advocates. Reading through the EFCC’s reported rejoinder, it is not in doubt that the Charge against Mr Usoro is an attempt to question the source of funds used in settling Mr Usoro’s legal services. To me, what EFCC has set out to do is turn lawyers into investigators who must first of all determine the source of funds used in settling their legal fees becoming accepting. That is utterly ridiculous and finds no basis in any known law. It will be too much to ask considering that the sum of N300 Million paid to Mr Usoro by Governor Udom was paid in cash and there is no duty in law or equity on Mr Usoro to confirm from Governor Udom the source of the N300 Million Naira before accepting same. As it relates to the sum of N1.1 Billion Naira, the case of EFCC is even more hopeless given that Mr Usoro has shown that the said sum was paid by Akwa Ibom State Government in respect of arbitral and litigation matters being handled by Paul Usoro & Co for the State government. Where then is the crime committed in this case? Beyond the issue of lawyer-client privilege, it will be incongruous to expect a professional to turn himself into an investigator after rendering services to his client, in order to ascertain the source of funds used in settling his professional fees. That will be too dangerous a precedent to set.
It is a matter of public knowledge that EFCC outsources some of its legal services to external lawyers. Virtually all the Ministries of Justice in Nigeria brief external lawyers possibly due to complexities of those matters or as a result of shortage of man power at the Ministries. Clearly, EFCC is chasing shadows and the earlier the Commission realizes that there are important cases pending before various Courts in Nigeria demanding its attention, the better. The need for EFCC to focus on its key mandate cannot be over-emphasized. I am presently defending some Defendants in some criminal matters involving EFCC and some of those cases have been scuttled on several occasions due to the fact that EFCC’s officials who are the witnesses in the matters are not available. In some cases, it is their prosecutors that are not available. Thus, if EFCC continues to be used as an instrument in the hands of politicians and those who have axes to grind against another, the Commission will gradually lose public confidence and deviate from its core statutory mandate. From being a debt collector, to delving into purely contractual/civil matters and now to investigating the source of lawyers’ fees. Who knows the next victim of the EFCC shadow chasing onslaught? My only worry is that tax payers’ funds are being utilized in this wild goose chase. Sadly, EFCC is not a good student as it has refused to learn from its sister Federal Government agency or from the Commission’s own previous futile ventures outside its core mandate. Sometimes in 2014, the Federal High Court sitting in Abuja had in Suit No. FHC/ABJ/CS/173/2013: Registered Trustees of Nigerian Bar Association v. Attorney-General of the Federation & Central Bank of Nigeria refused an attempt by the Federal Government through the Special Control Unit against Money Laundering (SCUML) to regulate the practice of legal practitioners by requesting them to register in order to declare the source of their professional fees. In that Suit, an injunctive order was sought not only against SCUML, National Financial Intelligence Unit (NFIU) but also against the EFCC to restrain them from enforcing the provisions of Section 5 of the Money Laundering Act in relation to legal practitioners. The Money Laundering Act has not been amended since the Federal High Court decision which I understand has been affirmed by the Court of Appeal. The back-door attempt by the EFCC to revisit the issue must be resisted. In the very recent case of EFCC V. DIAMOND BANK PLC & ORS (2018) LPELR-44217(SC), the Supreme Court descended heavily on EFCC and other law enforcement agencies and condemned the practice of security and investigating agencies going outside their statutory mandates. The Supreme Court came down hard on not just the EFCC but other sister agencies such as the Police in a notable pronouncement reproduced below:
“It is important for me to pause and say here that the powers conferred on the Appellant, i.e. the EFCC to receive complaints and prevent and/or fight the commission of financial crimes in Nigeria pursuant to Section 6(b) of the EFCC Act (Supra) does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions as in this case.
The EFCC has an inherent duty to scrutinize all complaints that it receives carefully, no matter how carefully crafted by the complaining party, and be bold enough to counsel such complainants to seek appropriate/lawful means to resolve their disputes. Alas! the EFCC is not a debt recovery agency and should refrain from being used as such.
The subsequent actions of reporting the matter to the police and to the Appellant were nothing but abuse of process of law. What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation, preventing and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions. Our security agencies, particularly the police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and powers conferred on them. The beauty of salt is in its taste. Once salt loses its own taste, its value is irredeemably lost. I say this now and again, our security agencies, particularly the police, are not debt recovery agencies. The agencies themselves need to first come to this realization, shun all entreaties in this regard and they will see confidence gradually restored in them.”
EFCC must take a hint from the above notable pronouncement of the Highest Court in the land and puts its house in Order. The Commission should resist the temptation of being used either by desperate politicians or those whose desperation to lead the NBA and quest for power have driven into megalomaniac frenzy. Prof Ojukwu falls in this category of desperate sore losers whose antics must be clear to all including the EFCC. The real issue surrounding the Charge against Mr Usoro is not Money Laundering or Fraud Charge. Rather, what is in contention is the soul of NBA and the refusal of losers of the last NBA Elections to sheath their swords. In issue is also the vested interest within NBA who feeds off NBA and are now feeling threatened by the new Order of transparent and accountable regime of Paul Usoro SAN. There are also desperate politicians have seized the opportunity created by the sore losers These desperate politicians who have their own agenda are ready to rope Mr Usoro into the labyrinth of their political machinations in a bid to actualize their desire. Discerning minds and lovers of our noble profession must rise and speak up to save the soul of the legal profession.