Mr Atuche’s trial before Justice Okunnu began on July 6, 2011, after the judge dismissed the defence lawyer’s application for a stay of proceedings
A mild drama ensued at the home of the Atuches in Ikoyi, Lagos, on the evening of May 3, 2011.
Nearly a dozen operatives of the Economic and Financial Crimes Commission (EFCC) had arrived at the palatial home of Francis Atuche, the former managing director of Bank PHB, to arrest the bank chief and his wife, Elizabeth. They were told the couple had travelled out of the country.
But the officers, relying on their intelligence, thought otherwise.
After forcing their way into the house to conduct a search, they found Mrs Atuche. Her husband, however, had gone into hiding.
A week later, the EFCC declared Mr Atuche wanted over money laundering allegations amounting to ₦8.6 billion. He was also accused of using his wife’s company to steal depositors’ funds totalling over ₦100 million.
The banker turned himself in two days later.
The arraignment
On May 17, 2011, the EFCC arraigned Mr Atuche on two separate charges before Justice Adeniyi Onigbanjo of the Ikeja Division of the Lagos State High Court.
In the first charge, Mr Atuche, the then managing director of Bank PHB, allegedly conspired with Funmi Ademosu, a director in the bank, to steal N4.2 billion which were part of the proceeds from the sale of 241,579,284 units of Afribank shares and joint property of Caverton Helicopters Ltd and Bank PHB. The offence is contrary to and punishable under Section 516 of the criminal code laws of Lagos State, 2003.
In the second charge, Mr Atuche allegedly conspired with another bank director, Lekan Kasali, to steal N7.2 billion which they fraudulently described as loans to Cogipar Nigeria Limited.
The EFCC said all the offences were committed between April and September 2008.
On the same day, Elizabeth Atuche was arraigned before another judge, Lateefah Okunnu, on a three-count charge of conspiracy and stealing. She was accused of fraud totalling N11.4 billion “being property of Bank PHB Plc by fraudulently converting the proceeds of several illegal loans for the acquisition of 337,500, 000 units of Bank PHB Plc shares on behalf of Ghazali Yakubu Investment Ltd. and AFCO Associates Limited.”
During Mrs Atuche’s bail hearing, her lawyers pleaded for the judge to allow her to remain in EFCC custody to enable her three young children to visit her regularly. The judge declined the request, ordering that she be remanded in prison until she fulfils her bail conditions: two sureties who must deposit N100 million and also possess a landed property worth N25 million in Lagos.
In June 2011, the EFCC amended the charges against the Atuches. The couple were re-arraigned before Mrs Okunnu on a 27-count charge bothering on conspiracy to commit felony and stealing of N25.7 billion belonging to the bank. The amended charges alleged that Mr Atuche, his wife, and Ugo Anyanwu, a former chief financial officer of Bank PHB, used some of the stolen funds to purchase 140,625,000 units of Bank PHB shares on behalf of Guesstrade Services and Clearville Business Support.
They also allegedly used part of the money to purchase 112,500,000 units of Bank PHB share.
The offences, according to the EFCC, were committed between November 2007 and April 2008.
In their defence, the defendants adduced 16 reasons why the charges against them should be quashed. They told the judge that the EFCC had filed a similar charge at the Federal High Court in Lagos. They also told the judge to restrain the anti-graft from preferring new charges against them because being the creation of a federal legislation, the EFCC has no right to prosecute them under the Lagos State Criminal Code.
Kemi Pinheiro, counsel to the EFCC, argued that the commission has powers under the statute creating it to prefer a charge and prosecute alleged offenders without delegation.
He further said the charge filed by the EFCC against the defendants at the Federal High Court was different from the one they are facing at the Lagos High Court.
“My Lord can look at the counts filed at the Federal High Court and the one filed here to see whether they are similar or not,” said Mr Pinheiro, a Senior Advocate of Nigeria.
“While that of the Federal High Court has the names of 14 companies, 11 of those companies are not here. They are not the same.”
The judge granted Mr Atuche a N150 million bail with two sureties, in like sum, who must be gainfully employed and resident in Lagos, and one of them must be a member of the Board of Directors of a bank or other reputable firm, with its head office either in Lagos or Abuja.
The judge barred Mr Atuche from travelling abroad until the end of his trial, without the leave of the court. He is also to report on the first working day of every month to the EFCC office.
Done with the proceedings before Justice Okunnu, the EFCC lawyers moved to Justice Onigbanjo’s courtroom where they asked the judge to recuse himself from the trial of Mr Atuche and the two bank directors. According to Mr Pinheiro, the judge in a ruling weeks earlier had claimed there were similarities between the charges before him and the ones before the Federal High Court.
“The prosecuting authority is extremely perplexed and disturbed by these statements and believes that these comments give an inclination to the court’s mind in respect of the substantive charges,” Mr Pinheiro said.
“In view of the disturbing comments, our clients have lost confidence in the ability of the judge to hold the scale of justice in the pending charge.”
The EFCC’s request was, however, declined by Inumidun Akande, the Chief Judge of Lagos State.
The trial
Mr Atuche’s trial before Justice Okunnu began on July 6, 2011, after the judge dismissed the defence lawyer’s application for a stay of proceedings.
One of the prosecution’s witnesses was Rauf Bello, a representative of First Registrars Nigeria Limited, who said Mr Atuche used about a dozen companies to purchase 1.6 billion units worth of Bank PHB shares worth N27.7 billion while he was the managing director.
Mr Bello, who was subpoenaed by the court, said the dividend warrants of the shares were collected by the bank’s secretary. He added that the dividend made by the companies from the shares purchased was over N790 million.
Another witness, Elizabeth Ebi, the managing director of Futureview Financial Services, claimed Bank PHB unknowingly credited her account with a ‘N10.9 billion loan.’
The next prosecution witness, Ifetayo Obi, told the court she was instructed by Mr Anyanwu, the third defendant, to transfer over N10 billion to Futureview Securities, Falcons Securities, and other accounts. She said the transfer was made without the traditional “customer instruction.”
“Normally it is supposed to come with customer-signed instruction,” said Ms Obi, a staff of Bank PHB.
“So I reported to my immediate boss, Kingsley, who took the mail and said he would get back to me. He later came back with the same document signed by the bank Chief Financial Officer. So when I received the go-ahead from my divisional director, we carried out the instruction.”
The court later admitted in evidence cheques, which ran into billions of naira, in the names of Futureview Limited, Resolution Securities Limited, Falcon Securities Limited, and Petosan Nigeria Limited. The funds were used to buy Bank PHB shares during a public offer in 2008.
In her testimony, Phillipa Ulasi, a former chief credit officer of Bank PHB, said Mr Atuche granted N14.3 billion loans to some companies without the approval of the bank’s board. According to the EFCC, the Bank PHB boss had granted loans to Futureview Securities (N3.5 billion), Extra Oil Ltd (N3.9 billion), Trajeck Ltd (N3.5 billion), Resolution Trust and Investment Ltd (N3.3 billion), and Petosan Oil and Gas Limited (N4 billion).
“It was my responsibility to make credit presentations to the board when requested by customers for recommendation and approval. I did not receive any memo from the board concerning the said loans,” Mrs Ulasi said.
In March 2012, Mr Atuche’s lawyers filed an application seeking to stop the EFCC from presenting additional evidence in the trial. The judge dismissed the application.
On July 9, 2012, Justice Onigbanjo, who is also hearing one of Mr Atuche’s cases, granted the bank chief permission to travel to the United Kingdom for medical treatment, between July 17 and September 7, 2012.
When trial resumed in September, the EFCC presented documents that appeared to show Mr Atuche releasing N35 million and N10 million as tithes to St. Monica Catholic Church, Ibusa, and St. Augustine Catholic Church, both in the bank chief’s native Delta State. The trial was, however, stalled for weeks after Bolaji Ogunsola, the witness who allegedly made the claim, said he received death threats from people in Delta State.
After calling 12 witnesses to give oral evidence and subpoenaing six others to tender documents, the prosecution closed its case on March 4, 2013.
The defence thereafter filed a no-case submission where they urged the court to discharge Mr Atuche because the testimonies of the prosecution’s witnesses were riddled with contradictions.
“One witness said hoax loans were granted. The other said they were regular loans. It is the burden of the prosecution to provide explanation for these contradictions,” Anthony Idigbe, a Senior Advocate of Nigeria and counsel to the Atuches, said.
For Mrs Atuche, the lawyer said there is no evidence from the witnesses linking her to the charges.
“The only evidence is that she is a shareholder in Gazali Yakubu Investment Limited and the wife of a bank managing director,” Mr Idigbe said.
Sylva Ogwuemor, counsel for Mr Anyanwu, also told the court to discharge his client because there was no sufficient evidence to warrant him standing trial.
“There is no evidence to support the charge of stealing because the third accused did not benefit from the transactions,” the lawyer said.
“His only offence was signing papers and sending e-mails which were his legitimate duty as the chief financial officer of the bank.”
The EFCC opposed the applications, noting that Mrs Atuche owned 80 per cent of Gazali Yakubu shares and was also a majority shareholder in Afco Associate Ltd., which received some of the funds.
The judge dismissed the defendants’ no-case submission and ordered them to open their defence.
“The prosecution has enough evidence before me, about 12 witnesses have been called, and 272 exhibits have been presented before the court by the prosecution,” the judge said.
The defence
The defence opened their case with Pat Utomi, the chairman of the board of Bank PHB, as its first witness.
In his testimony, Mr Utomi said Mr Atuche’s trial was due to plans by some public officials to take over his bank.
“I was told that if Atuche was removed, that it will be acceptable to CBN and Bank PHB will be left intact. The person that told me is the current CBN governor (Lamido Sanusi). He was a very good friend of mine until recently when these injustices were being carried out,” Mr Utomi said.
He said the bank failed the CBN’s Stress Test following the refusal of the board to comply with Mr Sanusi’s directive.
Mr Utomi also said the loans granted by Mr Atuche were approved by the board of directors.
The EFCC countered Mr Utomi’s testimony by saying as board chairman, he also got loans from the bank, part of which he used to fund his 2007 presidential election campaign.
Mr Utomi denied the claim.
In October 2013, Justice Okunnu fined Mr Atuche’s lawyers for “wasting the time of the court.” The two lawyers were absent on a day scheduled for hearing because they were delivering lectures. The judge also granted Mr Anyanwu permission to travel to the United States, between October 7 and 21, for a medical check-up.
Mr Atuche’s lawyers returned to the court on December 3 to file an application for the dismissal of the charges against their client. The move came after a Court of Appeal in Lagos struck out a theft charge instituted against a former Managing Director of Finbank Plc, Okey Nwosu, and some others. The appellate court held in Mr Nwosu’s case that the Lagos High Court lacked jurisdiction to entertain the charge because it emanated from capital market transactions. The court held that a case associated with the capital market should be handled by the Federal High Court.
Mrs Okunnu dismissed the application and adjourned for the continuation of trial.
In March 2014, Mr Atuche’s lawyers filed an application for a stay of proceedings on the grounds that they have a pending case at the court of appeal.
Again, the judge dismissed the application.
For much of the court days in 2014, proceedings were stalled by power outages in courtrooms.
Mr Atuche, however, took to the dock in mid-2014 and said he’d never stolen in his life.
“I am a Catholic. I cannot be a thief. I was baptised in the church and before I left primary school, I have started receiving Holy Communion which I do every day,” he said while being led in evidence by his lawyer.
“I cannot receive Holy Communion when I am not in the state of grace. I cannot be a thief because God has been gracious to me.”
Temporary reprieve
The Atuches got a temporary relief in June 2015 after the high court, in response to the decision of the court of appeal that the charges are capital market issues, dismissed the charges against the defendants for lack of jurisdiction. The court also directed that the case be reassigned to a different judge.
The EFCC swiftly appealed the decision, arguing that most of the charges against the defendants bordered on stealing and conversion of depositors’ funds to personal use.
The Atuches victory was, however, short-lived.
In 2017, the Supreme Court overturned the court of appeal’s decision and ordered that Justice Okunnu, who had already listened to 18 witnesses in the case, resume the trial. The apex court held that the court of appeal failed to give reasons why the case should be reassigned to a new judge.
Justice Ejembi Eko, who read the unanimous decision, held that the decision of the appellate court was “perverse,” noting that transferring the case to a new judge would have required that it starts afresh.
“Neither Justice Lawal-Akapo nor Justice Okunnu was accused of any wrongdoing by the parties to the case to warrant the transfer of the case to a new judge entirely,” he said.
The case returned to Justice Okunnu and on June 16, the judge convicted Messrs Atuche and Anyanwu.
Reading her judgement that lasted for 12 hours, Mrs Okunnu upheld the arguments of Mr Pinheiro, the EFCC counsel, that the N25.7 billion was stolen, not loaned, as argued by Mr Atuche.
The judge held that the first and third defendants did not debunk the evidence of the prosecution that the loans were used to purchase shares.
“They rather contended that the monies granted as loans could be used for whatever purposes.”
Mr Atuche’s wife, however, was discharged and acquitted.
Before the judge read out her sentencing, she gave the convicts an opportunity to speak.
In pleading for leniency, Mr Atuche said that as a professional banker and chartered accountant, he did not want to become a convict.
“I pray that God will place in your heart to be kind,” he told the judge.
“I plead from the bottom of my heart. I’m extremely sorry, today will be a turning point in my life, I’m very sorry.”
The judge sentenced Messrs Atuche and Anyanwu to six years in prison each.