Nigeria: Lessons As Atuche Begged for Mercy

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21 June 2021

Lessons were on display last Wednesday when a former Managing Director of the defunct Bank PHB, Mr. Francis Atuche, begged Justice Lateefa Okunnu not to send him to prison following his conviction for defrauding the bank of N25.7 billion.

The atmosphere inside the Justice Lateefa Okunnu courtroom at the Ikeja High Court last Wednesday was tense and palpable as Francis Atuche, a former Managing Director of the defunct Bank PHB, literally begged the judge not to send him to prison following his conviction for defrauding the bank of the sum of N25.7 billion.

For the period he held sway in the bank, Atuche could not have envisaged his own downfall. He was like a colossus, he made news and headline, lived large and dressed immaculately. But in dock last Wednesday, he was looking pensive, humbled, sober, reflective and meditative.

The former bank chief, his wife, Elizabeth, and a former Chief Financial Officer (CFO) of the bank, Ugo Anyanwu, were both found guilty of 22 of the 27 counts of conspiracy and stealing charge preffered against them by the Economic and Financial Crimes Commission (EFCC) in 2011.

His conviction brought to an end the first stage of his trial after 12 years of rigorous and tenacious legal battle by the EFCC.

Atuche who held sway in the bank from 2004 when it as first called Platinum Bank, had quickly resigned his appointment in anticipation of his sack by the Central Bank of Nigeria (CBN) led Sanusi Lamido Sanusi in the wake of his reforms aimed at cleaning up the banking industry in 2009.

But that still did not stop the EFCC from arresting him as it promptly alleged that between November 2007 and April 2008, the former bank boss stole about N25.7billion belonging to the bank. It claimed that of the total N25.7bn, he stole about N14.7bn by fraudulently describing it as a loan to some companies and subsequently converted the said sum to personal use.

In 2009, he was promptly arraigned at the Federal High Court in Lagos for money laundering and other offences. Not satified with the slow pace of the trial at the Federal High Court, the EFCC in 2011 arraigned Atuche, his wife, Elizabeth, and Anyanwu before Justice Lateefa Okunnu of the Ikeja High Court on a 27-count charge of conspiracy and stealing of N25.7 billion belonging to the bank via fictitious loans and shares.

After about three years into the trial, Atuche and co-defendants approached the Lagos division of the Court of Appeal to challenge their trial by the lower court on the grounds that it lacked jurisdiction.

In a judgment delivered in September 2016, the Court of Appeal stopped the lower court from going ahead with the trial. Though the appellate court failed to quash the charges against Atuche and others, it ordered Justice Okunnu to hands off the trial. It further directed the Chief Judge of Lagos State to re-assign the case to another judge.

Following the decision of the Court of Appeal, the EFCC approached the Supreme Court to set aside the decision and order trial in the matter to continue. When the case came up at the apex court for hearing, EFCC's lawyer Kemi Pinheiro (SAN) revealed that the matter had gone far at the lower court and that the decision of the Court of Appeal hampered the expeditious conclusion of the trial.

After listening to the EFCC's counsel, a panel of the apex court, in a unanimous decision, overturned the decision of the appellate court. The panel agreed that the lower court's decisions on the matter was "perverse" and, therefore ought to be set aside.

Justice Ejembi Eko, who prepared and read the lead judgment of the apex court, said the order which the Court of Appeal made on September 23, 2016, for the remittance of the casefile to the Lagos State Chief Judge for the purpose of re-assigning the case to another judge, was not aimed at serving the interest of justice.

The Supreme Court panel noted that the appellate court did not adduce any reason for disqualifing the trial judge that took the plea of the defendants in the first instance. Justice Eko also stressed that such order, being "a contentious one", required the lower court to give reasons why Justice Okunnu should not be allowed to continue with the trial.

The apex court panel equally noted that neither Justice Okunnu nor Justice Lawal-Akapo were accused of any wrongdoing by any of the parties to the case to warrant the transfer of the matter to a new judge. It consequently directed that the case be returned to Justice Okunnu for continuation of trial of the defendants.

Other Justices of the apex court that concurred with the lead verdict were Justices Kudirat Kekere-Ekun, Paul Galinje and Iyang Okoro.

When the case returned to Justice Lateefa Okunnu of Ikeja High Court, Atuche and his spouse were accused of fraudulent conversion of money described as bank loans. The EFCC said the couple diverted funds belonging to the bank by buying shares for fictitious companies linked to them. Anyanwu, on his part, was accused of using his position as the bank's CFO to aid Atuche in committing the crimes.

EFCC team led by Kemi Pinheiro (SAN), accused the defendants of fraudulently purchasing the bank's shares for 18 of his companies. A field investigator with the EFCC, David Nkpe, while testifying in the case, claimed that the shares, worth billions of naira, were purchased using funds belonging to Bank PHB.

Nkpe, who was being led-in-evidence by EFCC prosecutor, Kemi Pinheiro, claimed that Anyanwu had admitted in a statement to the EFCC that Atuche instructed him to purchase the shares on behalf of the companies.

The companies included Claremount Investment Ltd., Montrax Investico, Stanford Global Ltd., Arabian Probity, Consolidated Business Support Ltd., Commercial Trading Ltd Filemon Enterprise, Oakwood Asset Ltd., Ventures Resources, Caledonia Enterprise, Financial Company Ltd., Claremount Asset Management Ltd, Clairville Business Support, Gazali Yakubu Ltd., Afco Associate Ltd., Septron Trading Ltd., Guess-Trade Services Ltd and Nolly Investment Ltd.

He said a thorough investigation and confirmation from the Corporate Affairs Commission (CAC) revealed that these companies were mainly owned by the Atuches.

"During our investigation, we discovered that the shares certificates were collected by Bank PHB company secretary, who during interrogation, admitted to us that he collected and transferred them to the owner (Atuche). The funds transferred by Bank PHB were then used to pay for the shares which were taken by these companies owned by Atuche and his wife," Nkpe said.

According to him, these companies never repaid the money to Bank PHB, despite the fact that the transactions placed them on the top 1,000 list of the bank's shareholders.

After listening to the submissions, in a judgment that lasted over 10 hours last Wednesday, Justice Okunnu convicted Atuche alongside Anyanwu on 21 of the 27-count. She held that the EFCC successfully proved its case against the convicts beyond a reasonable doubt.

The judge rejected the claims of the defendants that they were merely professionally negligent. She specifically held that Atuche and Anyanwu abused their powers, ignored established rules and regulations thereby putting the bank and depositors' funds in danger.

Justice Okunnu also came to the conclusion that the convicts corruptly took advantage of their positions to confer on themselves undue financial benefits without regard to the health of the bank. She said Atuche abused his position of trust by stealing from the bank.

"By stealing from the bank, they stole from innocent customers of the bank. I hereby make an order of restitution against the first and third defendants to refund the sums stated in counts one to 11, 14 and 24. The sums are to paid to the relevant agencies that recovered the funds on behalf of the bank," she ordered.

"It was a well-planned, well-executed scheme but the bubble burst when the Central Bank of Nigeria intervened. The first defendant (Atuche) was diversionary and evasive on the witness stand; sometimes confrontational and rude. The third defendant (Anyanwu) was also combative and rude under cross-examination," she said.

After convicting the two bankers at 8:18 p.m., the judge asked if they had any plea to make. They answered in the affirmative.

Addressing the court, Atuche begged not to be sent to jail. He said: "All the time I was the MD of Bank PHB, I gave my all to the bank. Never at any material time did it occur to me that I would set up a scheme to defraud the bank. I plead for mercy, leniency, your kindness, and I plead that out of your kindness and generosity, you will not allow me to go to jail.

The convict told the court that as a professional banker and chartered accountant, he certainly did not want to become a convict.

"I am sorry and remorseful. I pray that God will place in your heart to be kind. 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," he said.

His counsel, Paul Nneoma, also put in some words for him, describing him as a responsible family man who had never been convicted of any crime. He appealed to the court to give him a fine instead of incarceration, in order to preserve his professional career.

On his part, Anyanwu told the court that he was the only son of a police officer who died when he was barely a year old. He said that he grew up on the premise of hardwork.

"What I achieved in the banking industry is by stint of hard work. I have suffered in the last 10 years of this trial. I am sorry if I was appearing cocky in the witness box during my examination-in-chief. I have two kids who are barely teenagers. They look up to their father, and I wonder what kind of impact this will have on them. Please temper justice with mercy," Anyanwu said.

Anyanwu's counsel, Silva Ogwemoh (SAN), also begged for mercy on his client. He said that one of Anyanwu's children had a medical condition requiring special attention. He added that Anyanwu was hypertensive, urging that the court should take judicial notice of the COVID-19 pandemic and impose a fine on him instead of custodial sentence.

The pleas did not stop Justice Okunnu from slamming a 12-year jail term on Atuche, while Anyanwu was given 10 years imprisonment. She held that neither Atuche nor Anyanwu was convincing as 'witnesses of truth'.

Dismissing the charge of stealing against Mrs Atuche's wife, Elizabeth, regarding two companies affiliated to her which were said to have fraudulently received N2 billion worth of Bank PHB shares, Justice Okunnu held that there was no act of fraud or dishonesty overt or covert that had been linked to her.

"Nothing was proved beyond reasonable doubt that she silently or knowingly endorsed the perpetuation of fraud; rather, it was the first defendant (Atuche). On account of this, the prosecution failed to prove its case of stealing against the second defendant (Elizabeth)," she said.

On the charge of conspiracy against Mrs Atuche, the judge held that there was no evidence that linked her to the shares bought for the two companies affiliated with her.

"I find that the case of conspiracy does not hold," the judge held.

Mrs. Atuche, who was reciting prayers with a rosary during proceedings, heaved a sigh of relief upon hearing the verdict.

The judge equally made an order for restitution.

The conviction of the Atuche brings to three the number of former chief executive officers of banks convicted as a result of the fianacial crises that rocked the banking industry between 2007 and 2009. While the former Chief Executive Officer of the defunct Oceanic Bank, Mrs. Cecilia Ibru bagged six months imprisonment after a plea bargain deal with the federal government, Okey Nwosu of the defunct Finbank Plc was convicted and sentenced alongside three directors of the bank.

A lawyer, Abiodun Mogaji, advised bank executives to learn from Atuche's fall and not abuse their positions. He also cautioned them to ensure that depositors' funds kept in their trust are not abused and recklessly stolen.

Mogaji hoped that the appellate courts uphold what he described as "the sound judgment of Justice Okunnu" to serve as a deterrence to other banks' chief executive officers.

"This is why if you attain a position of trust, you conduct and behave well. From Atuche's plea, you can see that is actually guilty and that justice was well served. This is definitely not a case of miscarriage of justice. This should clearly serve as a lesson to other banks' chief executive, that they should not be careless and reckless. They should use their positions well and for the betterment of all.

"Imagine the lives Atuche ruined with his recklessness. People put their life-savings in the bank and the bank went under due to recklessness. Let's hope that the appellate courts do not upturn the sound judgment of Justice Okunnu to serve as a deterrence to other banks' chief executive officers," he said.

For now, Atuche and Anyanwu's fate is in the hands of the appellate courts.

QUOTE

I plead for mercy, leniency, your kindness, and I plead that out of your kindness and generosity, you will not allow me to go to jail... I am sorry and remorseful. I pray that God will place in your heart to be kind. 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

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