PUC’s Victory for Dr. Bartholomew Bassey Ebong at the Federal High Court
Paul Usoro and Co (“PUC”) through its Financial and Corporate Services Team successfully represented Mr. Ebong who was discharged of all the offences relating to Banking and Securities in Charge No. FHC/L/CS/296C/2009: FRN v Dr. Bartholomew Bassey Ebong & 5 Ors, at the Federal High Court (“FHC”), Lagos Judicial Division in a well-considered Ruling delivered on 17 October 2022, on a No Case Submission (“NCS”) filed on his behalf.
The arrest and trial of Dr. Bartholomew Bassey Ebong-the erstwhile Managing Director of Union Bank of Nigeria Plc (“the Bank”) and the 1st Defendant in the above numbered Charge, which enjoyed widest publicity in both print and electronic media, started sometime in 2009. The 1st Defendant at the limelight of his career at the Bank and 5 Ors were, pursuant to a Joint Committee Report involving Central Bank of Nigeria (“CBN”) and the Nigeria Deposit Insurance Corporation (“NDIC”), investigated by the Economic and Financial Crimes Commission (“EFCC”), and arraigned for an alleged offence bordering on grant and approval of credit facilities to the tune of N30,477,210,000.00 (Thirty Billion, Four Hundred and Seventy Seven Million, Two hundred and Ten thousand Naira) to the Bank’s subsidiary -Union Trustee Limited (“UTL”); N3,315,000,000.00 (Three Billion, Three Hundred and Fifteen Million Naira) to Falcon Securities Ltd in excess of the paid-up capital of the Bank; N3,400,000,000.00 (Three Billion, Four Hundred Million Naira) to Union Capital Markets Ltd; N2,600,000,000.00 (Two Billion, Six Hundred Million Naira) to Damnaz Cement Company Ltd through Union Capital Markets inter alia which were in contraventions of the regulations, circulars or procedure of the Bank and were deemed to have committed offences contrary to Section 15(1)(c), 19(4) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, Cap F2 Laws of the Federation of Nigeria 2004 and punishable under Section 16(1)(a) of the same Act, Sections 105(1)(a) , 106(1), 110(b) of the Investment and Securities Act 2007. The 1st Defendant was equally arraigned for having allegedly caused to be created or created a misleading appearance of active trading in the securities of Union Bank, whose shares were traded on the floor of Nigerian Stock Exchange with intent to mislead the public and mop-up the shares of the Bank at the Stock Exchange as well as conspiracy to commit the said offences which were in contraventions to the above referred Laws.
The Defendants were initially arraigned by the Prosecution on a 27-Count Charge that was filed on 31 August 2009, but which was amended by way of a 20-Count Amended Charge that was dated and filed on 10 May 2010. The Amended Charge was further amended by way of a 15-Count Amended Charge dated 07 December 2015 but filed on 08 December 2015 (“Amended Charge”). The Defendants consistently pleaded “Not Guilty” to all the Counts in the various Charges, including the Amended Charge following which the Prosecution called 3 (three) witnesses in proof of its case – PW1 to PW3 and closed its case on 05 April 2022, with 47 (forty-seven) Exhibits tendered and admitted by the Court.
At the close of the Prosecution’s case (after calling three witnesses, PW1-PW3), and noting, inter alia, that the Prosecution has not established a prima facie case against the 1st Defendant; PUC on behalf of the 1st Defendant filed the NCS praying the Honourable Court to discharge and acquit the 1st Defendant on all the Counts in the Amended Charge hereof pursuant to Sections 302 and 303 of Administration of Criminal Justice Act 2015 (“ACJA”) and hold that the Prosecution has not at all established a prima facie case in any of the Counts sufficient or at all to justify calling the 1st Defendant to enter his Defence. For completeness, similar NCS were filed by other Defendants.
In its Written Submissions, PUC raised a sole question for the Court’s determination, to wit:
“Upon a reasoned review of the evidence presented by the Prosecution in this Amended Charge, is this a Charge that justifies the invocation of the Court’s powers pursuant to Sections 302 and 303 of the Administration of Criminal Justice Act, 2015 to ‘record a finding of not guilty in respect of the Defendant without calling on him . . . to enter his . . . Defence and . . . accordingly’ discharge the Defendant in consideration of the fact ‘that the evidence against the Defendant . . . is not sufficient to justify the continuation of the Trial’?”
In support of its Written Submissions, PUC relied on statutory and judicial authorities in exposing the principle of NCS vide Sections 302 and 303 of ACJA and the decision of the Supreme Court in Saraki v Federal Republic of Nigeria (2018) 16 NWLR (pt.1646) 405 at 437-438 paragraphs G-E.
The Honourable Court in examining the offences alleged to have been committed by the 1st Defendant, his Written Submissions in support of his NCS, Sections 302 and 303 of AJCA vis-à-vis the evidence of Prosecution’s Witnesses (PW1-PW3) noted the meaning and implications of a No Case Submission and further stated that the 1st Defendant in his Written Submissions has argued that; throughout the case of the Prosecution, no legally admissible evidence was tendered before the Court against the 1st Defendant linking the 1st Defendant with the commission of the offence(s) which will indeed compel the 1st Defendant to enter his Defence and, that the evidence adduced by the Prosecution has been so discredited during cross-examination that no reasonable Court or Tribunal can act on it, or that such evidence is so manifestly unreliable that no reasonable Tribunal or Court can safely convict on it.
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Thereafter, the Court upon wholistic and clinical consideration of the Prosecution’s evidence, the essential elements of the offences as provided under the respective laws – stated that PW1 to PW3 were so discredited during cross-examination that no reasonable Tribunal/Court would convict the 1st Defendant; the Prosecution failed to tender critical documents linking the 1st Defendant to the commission of the offence; PW1 to PW3 could not identify and speak on some of the transactions and during cross-examination they all stated that other Witnesses would come to testify and speak on the transaction.
The said Witnesses were however never called to speak on same. It was also noted by the Court that PW1 to PW3 could not distinguish if the afore-referenced sums were granted as Private Placement or Credit Facilities. Therefore, the Honourable Court finally held that the Prosecution has not proven all the elements of the offences to warrant the 1st Defendant to enter his Defence. Consequently, the Honourable Court upheld the No Case Submissions of the Defendants and accordingly discharged the 1st Defendant, Mr. Ebong and Ors from the Charge, after a very traumatizing criminal trial of over a decade.
The significance of PUC’s victory, apart from the illuminating questions of law and facts that were in issue, is the fact that PUC reaffirmed again, its remarkable ability to competently defend the interests of its Clients in all legal spheres – banking, civil, commercial, transactional, arbitral and as shown in the recent decision – White Collar Crimes as well.
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