Omotayo Johnson, Esq. & Eunice Oluwadamilare, Esq.
LL.B., B.L.
G-mail: oluwadamipe7@gmail.com
Introduction
The Money Laundering (Prohibition) Act (MLA) 2022 was promulgated after the decision of the Court of Appeal in the case of Central Bank of Nigeria v. Registered Trustees of the Nigerian Bar Association & Attorney General of the Federation,[1] that decided, while interpreting Sections 5 and 25 of the Money Laundering (Prohibition) Act, 2011 on Special Control Unit against Money Laundering (SCUML), which is im pari Sections 6 and 30 of the Money Laundering (Prohibition) Act 2022, amongst others that:
“Since the Legal Practitioners Act has already made adequate provisions to regulate the practice of law vis-à-vis the Legal Practitioners duty and obligations to their client, the money Laundering Act cannot place them under control or regulations made by the Central Bank of Nigeria and the Minister of Commerce in their purported administration of matters provide for in the Money laundering Act”.
The Court further held that there is no doubt that the Legal Practitioners Act and Money Laundering Act cannot operate side by side or at the same time insofar as it relates to Legal Practitioners. There are violent conflicts between the two legislations as they affect Lawyers and their clients and the legal practice in Nigeria.
Since the judgment, Legal Practitioners have been exempted from SCUML requirement and to that end there has been no appeal against the judgment by Central Bank of Nigeria up till date. However, considering that the MLA 2022 was promulgated to repeal the MLA 2011 after the cited Court of Appeal judgment (delivered in 2017), there have been concerns whether the MLA 2022 can overrule the Court of Appeal judgment or sit as an appeal against the judgment.
Against the backdrop of facts summarizing the above subject matter, this work attempts to exploit the already settled principles of law and argue that the MLA 2022 cannot overrule or void the decision of the Court of Appeal in CBN v. NBA so as to make Legal Practitioners in Nigeria liable to SCUML requirements. To achieve this end, the following issues have been phased out to assist in arriving at a definite conclusion:
- Whether a repeal enactment serves to amend, alter or void a valid act of court over a subject matter prior to its repeal?
- What is the position of the law where there are two conflicting laws over the same subject matter?
Issue 1: Whether a repeal enactment serves to amend, alter or void a valid act of court over a subject matter prior to its repeal?
The MLA 2022 by its commencement section is an Act designed to repeal the MLA 2011. The MLA 2022 being a repeal enactment to the MLA 2011 does not out-and-out affect the entirety of the operation of the old law, especially where there are rights accruing from it or where the courts have left their marks on it prior to its being repealed.
Section 6(1) of the Interpretation Act[2] reads:
“(1) The repeal of an enactment shall not –
(a) revive anything not in force or existing at the time when the repeal takes effect;
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;
(c) affect any right, privilege, obligation, or liability accrued or incurred under the enactment;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may be instituted, continued enforced, and such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed”.
Emphasis is placed on paragraphs (b), (c), and (e).
PER Ogundare JSC (as he then was) in Oladoye and Ors v. The Administrator, Osun State & Ors,[3] further affirmed that:
“Where an enabling law is repealed or revoked any delegated legislation, instrument or order made pursuant thereof becomes of no legal binding effect, except for the right that has accrued prior to the repeal or revocation”.
The MLA 2011 prior to its repeal had through the instrumentality of the court birthed certain rights on legal practitioners. By the combined effect of the Section 6(1) of the Interpretation Act and the decision in Oladoye (supra), it is my believe and submission that the right created by the Court of Appeal decision in Central Bank of Nigeria v. Registered Trustees of the Nigerian Bar Association & Attorney General of the Federation[4]survives the repeal of the MLA 2011. Until there is an appeal to the decision, legal practitioners are exempted from SCUML certification.
Issue 2: The Position of the Law where there are Two Conflicting Laws on the same Subject Matter:
The Court of Appeal in Central Bank of Nigeria v. Registered Trustees of the Nigerian Bar Association & Attorney General of the FederationAppeal[5] was quick to point out the fundamental legislative error made by the National Assembly in attempting to bring the legal profession under the regulatory purview of the CBN, where there is an extant enabling law (i.e. The Legal Practitioners Act, 2004) on it. The court lamenting on the situation stated inter alia, that:
“Since the Legal Practitioners Act has already made adequate provisions to regulate the practice of law vis-à-vis the Legal Practitioners duty and obligations to their client, the money Laundering Act cannot place them under control or regulations made by the Central Bank of Nigeria and the Minister of Commerce in their purported administration of matters provide for in the Money laundering Act…”
It is unfortunate that, Sections 5 and 25 of the MLA 2011, upon which the court had earlier interpreted in favour of legal practitioners, are im pari and exact reproduction in Sections 6 and 30 of the new law. This either symbolises the sheer lack of alertness of the legislators to judicial development or a deliberate affront on the powers of the court to make laws.
It is trite law that, where there are two conflicting law; and one of specific application, while the other is of general application, the one which is of specific application shall take precedence. The Court of Appeal on the overriding effect of specific provision over general provision, in Neco v. Tokode,[6] held that:
“…the law is that a specific provision in a statute prevails over a general provision in a statute”.
The Legal Practitioners’ Act, being a law that applies specifically to only a class of people i.e. legal practitioners as a matter of law takes precedence over the provisions in the MLA 2022 which is of general application.
The decision in FRN v. Osahon[7] on the correct approach to conflicting provisions of two acts of National Assembly. is also instructive in this instant case. The Supreme Court held that:
“Where two provision, one each of the National Assembly , conflicting in relating to the same subject matter, the conflict cannot be isolated in the two only in so far as there are constitutional provisions on the same matter. In such a situation, the provisions of the Constitution shall govern the interpretation”.
The regulatory and disciplinary framework for the legal profession derives its source from the Constitution. SCUML cannot override or take precedence over the statutory and Constitutional bodies including Supreme Court of Nigeria which are charged with the responsibility of regulating the legal Profession as well as disciplining of erring lawyers. The Legal Practitioners Act (LPA), 2004 remains the law that regulates the practice of law in Nigeria. The Act created and gave power to the ‘General Council of the Bar’ for the general maintenance of the legal profession, and includes making rules from time to time on professional conduct in the legal profession,[8] out of which the Rule of Professional Conduct for Legal Practitioners (RPC), 2007 a subsidiary legislation to the LPA was made. As a matter of fact, the RPC contain copious provisions that mandate legal practitioners to maintain and ensure client confidentiality, except in circumstances allowed by the Rules.[9][10] It is worthy of note that the foregoing formed part of the rationale in the Court Appeal decision.
Conclusion
In view of the forgoing analysis and arguments, it is my believe that, that the decision of the Court of Appeal in Central Bank of Nigeria v. Registered Trustees of the Nigerian Bar Association & Attorney General of the Federation[11] survives the MLA 2011 and therefore remains valid. The mere reproduction of Sections 5 and 25 of the MLA 2011 in Sections 6 and 30 of the MLA 2022 is of no moment. This is because, although, the MLA 2022 had repealed the MLA 2011, notwithstanding, the rights birthed by the old law through judicial pronouncement remains valid, and can only be voided where there is a subsequent pronouncement to that effect.
[1] Appeal No. CA/A/202/2015
[2] Cap. 123, LFN, 2004
[3] (1996) LPELR -2552 (SC)
[4] Op.cit
[5] Op.cit
[6] (2010) LPELR -9121 (CA)
[7] (2006) 4 M.J.S.C 1
[8] See, Section 12(4) Legal Practitioners Act, 2004
[9] See, Rule 19(1)-(2) Rules of Professional Conduct for Legal Practitioners, 2007
[10] See also, Section 192(1) Evidence Act, 2011
[11] Op.cit
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