PUC Records Another Win at the Federal High Court for Dr. Bartholomew Bassey Ebong (Former Managing Director of Union Bank) after 13 Years of Legal Persecution in Respect of Alleged Criminal Charges.

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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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The Petroleum Industry Act, 2021 and the unveiling of the Nigerian National Petroleum Company Limited

  1. INTRODUCTION

The Petroleum Industry Act 2021 (“PIA”) was signed into law by the President of the Federal Republic of Nigeria, His Excellency, Muhammadu Buhari, GCFR on 16 August 2021. The Act is to provide legal governance, regulatory and fiscal framework for the Nigerian petroleum industry and the development of host communities. Prominent amongst the many innovations of the PIA is the creation of the Nigeria National Petroleum Company Limited (“NNPCL”) which was officially unveiled on Tuesday, 19 July 2022.

Prior to now, the Nigerian petroleum industry had become so synonymous with the Nigerian National Petroleum Corporation (“NNPC”). The NNPC has been the government’s main entity primarily vested with the responsibility of managing the joint venture relationships between the Nigerian Government and multinational companies licensed to carry out exploration, exploitation, production and distribution of petroleum in Nigeria. It was by its creation and structure, a state-owned entity/corporation devoid of any ownership of shares.

However, the NNPCL based on the provisions of the PIA was designed to be a limited liability company and to succeed the NNPC with its specific objectives enumerated in Section 64(a)-(m) of the PIA. The NNPCL was to be incorporated within 6 (six) months from the commencement of the PIA and was eventually incorporated on 21 September 2021 in accordance with the Companies and Allied Matters Act 2020.

  1. HIGHLIGHTS OF THE PIA AS IT RELATES TO THE NNPCL

The PIA makes extensive provisions for the formation, structure, objectives and governance of the new entity “NNPCL” in Sections 53 to 65 of the Act. The referenced sections are contained in Part V, Chapter One of the PIA. The major highlights of the provisions are:

  • Ownership and Non-Transferability of Shares
    • Ownership of shares of the NNPCL is to be vested in the Government at incorporation and held by the Ministry of Finance Incorporated and the Ministry of Petroleum Incorporated in equal portions on behalf of the Federation. One peculiar point to note as regards the shares of the NNPCL is that the shares are not transferable except with the approval of the Government and endorsement of the National Economic Council on behalf of the Federation.
    • In the event that the said shares are transferred, it shall be on equal proportion basis of the shares held by the Ministry of Finance Incorporated and the Ministry of Petroleum Incorporated.
  • Funding
    • The NNPCL is set up to operate as a commercial entity without reliance on government funding and it is mandated to expressly state the restrictions in its Memorandum and Articles of Association. It is also required to pay its share of all fees and taxes or other form of payments to the Government under any lease or license.
  • Limitation of Action upon Transfer of Assets, Interests and Liabilities of NNPC
    • Upon the conclusion of the transfer of the assets, interests and liabilities of NNPC to the NNPCL or to the Government or extinguishing of same within the stipulated period of 18 months from the commencement of the PIA, the NNPC shall cease to exist and all pending actions commenced by or against NNPC with regards to the assets, interests and liabilities of NNPC before the transfer shall be enforced or continued by NNPCL. However, the PIA places a limitation on the commencement of any action against the NNPCL with regard to the transferred assets, interest and liabilities where the time for instituting such proceedings would have expired had such transfer to NNPCL not occurred.
    • The transfer is not in any way deemed to have created a new cause of action for the Creditors of NNPC or any party to a contract with NNPC which was entered into before the date of Transfer.
  • Appointment of NNPCL to Act as Agent of NNPC
    • The Minister of Petroleum upon due consultation with the Minister of Finance shall appoint the NNPCL as an agent of NNPC for the sole purpose of managing the process of winding down the assets, interests and liabilities of NNPC and the cost is to be borne by the Government.
  • Automatic Transfer of Employees
    • The provision of the PIA mandates that all employees of the NNPC are deemed to be employees of NNPCL and the said employees are to enjoy any related entitlements as specified under any applicable law and to also take benefit of terms and conditions not less favourable than what they enjoyed prior to the transfer. The NNPCL is required as a matter of law to fulfil all statutory obligations in terms of Pension owed to the employees by NNPC. This in effect means that the employees do not lose their jobs merely by reason of the transition. 
  • Governance
    • The PIA provides for the composition of the Board of the NNPCL whose members shall be appointed or removed by the President of the Federal Republic of Nigeria. The Board is required to carry out its responsibilities as enumerated under Section 63 (1) of the PIA in line with applicable principles of corporate governance and best practices.
  • Establishment of Incorporated Joint Venture Companies
    • The PIA makes provision for the restructuring of any Joint Operating Agreement (“JOA”) as an Incorporated Joint Venture Company. This option is solely on a voluntary basis as may be agreed by parties to the JOA in respect of any upstream petroleum operation.
  1. CONCLUSION

It is clear from the highlights in the foregoing paragraphs that the NNPCL is structured to run as an independent company based on commercial objectives in line with best practices and standard principles of corporate governance. These are indicators that the NNPCL is primed to compete at the world international level with other major operators in the Oil and Gas sector.

It is the hope of Nigerians that with the unveiling of the new NNPCL, Nigeria will be able to attain global relevance in the Petroleum Industry.

Energy, Constitutional Law & Electoral Matters and Transport (ECT) Section

  • Chinedu Anyaso – chinedu.anyaso@paulusoro.com
  • Esther Samuel – esther.samuel@paulusoro.com
  • Chijioke Obute – chijioke.obute@paulusoro.com

After a 25 Year Legal Tussle PUC Makes Another Bold Statement at the Federal High Court for the Nigerian National Petroleum Corporation (NNPC)

Paul Usoro and Co (“PUC”) successfully represented and secured a remarkable victory for the Nigerian National Petroleum Corporation (“NNPC”) at the Federal High Court (“FHC”), Lagos Judicial Division in a Judgment delivered on 18 January 2022, after twenty-five (25) years of turbulent legal battles in SUIT NO. FHC/L/CS/1186/96: ROBINSON EDOBOR & ORS v. NNPC.

The legal tussle started sometime in 1996 when the Plaintiffs vide a Writ of Summons, Statement of Claim and other accompanying processes (“Originating Processes”) commenced a Suit against NNPC seeking inter alia declaratory reliefs, perpetual injunction, refund of excess monies paid as housing allowances, as well as damages and an Order compelling NNPC to transfer the Certificate of Occupancy in respect of the houses occupied by the Plaintiffs to them. The Plaintiffs’ claims were predicated on the fact that on or about 16 March 1977 in the Daily Times Newspaper Publication, the then Federal Military Government under the Leadership of General Olusegun Obasanjo introduced a Housing Policy Scheme to facilitate home ownership for Nigerian workers. The said Housing scheme which was open to all participating organization had three (3) categories of houses, to wit: Two (2) Bedroom at the rate of N12, 000.00, three (3) Bedroom at the rate of N16,500.00 and four (4) Bedroom at the rate of N21,000.00 respectively and the said amounts were paid by the Plaintiffs.

According to the Plaintiffs, the Federal Government sequel to the housing policy, vide a Letter of Allocation, allotted parcels of land at Satellite Town in Lagos to NNPC to develop, build houses, and deduct on monthly basis certain sums from their gross housing allowances with the sole aim of transferring ownership of the said houses to the Plaintiffs. Rather than comply with the government directives, NNPC issued a vacation Notice to the Plaintiffs and equally coerced them to sign an undertaking to vacate the house before they could be paid their entitlements.

PUC on behalf of NNPC mounted a very robust defence against the Plaintiffs and also Counterclaimed against them, seeking inter alia declaratory and injunctive reliefs. It was PUC’s arguments that NNPC was not bound by the then policy of the FGN, the Letter of Allocation did not provide that the developed staff quarters would have to be on owner/occupier basis. In point of fact, the quarters were governed by NNPC’s housing policy, which empowered NNPC to generally deduct 81/3% (eight and one-third percent) as cost of rent, from the annual income of its employees resident in the NNPC Staff quarters. The rent deduction is discontinued upon the vacation of the houses by any of the allottees’ or any other condition(s) provided by NNPC. However, the policy was discontinued several years before the determination of the Plaintiffs’ employment.

In support of the immutable principle that policy of the Federal Government was not a law binding on NNPC, PUC relied on the Court of Appeal decision in Wilkie v. FGN & ORS (2017) LPELR-42137, whereat, the Court upheld the afore-referenced principle. In addition, PUC established before the FHC that the Plaintiffs were not privy and/or party to the contract of allocation between NNPC and the then Federal Government as such, the Plaintiffs’ lacks the competence to have instituted the Suit. Moreover, the Plaintiffs did not establish that by the Letter of Allocation, the developed quarters were to be built on owner/occupier basis. What is more? The Plaintiffs did not even produce the Letter of Allocation before the Court, the plank upon which their case rested on.

The Court after the examination of the issues in contention agreed with PUC’s submissions and granted all the reliefs sought in the Counterclaim. In its Judgment, the Court raised two issues for determination to wit:

  1. Whether the Plaintiffs have placed sufficient materials and evidence before the Court to be entitled to reliefs sought?
  2. Whether the Defendant/Counterclaimant is entitled to the reliefs claimed in the Counterclaim against the Plaintiffs?

The Court held that the Plaintiffs failed to discharge the burden of proof on them to be entitled to the properties in issue. The Court went further to hold that the Counterclaimant’s claim succeeds having been able to prove its claims before the Court. The Court in its analysis held that the Letter of Allocation being the contract between the FGN and NNPC which contained the disputed conditions of allocation was capable of settling the Suit one way or the other. However, failure on the part of the Plaintiffs to produce same in proof of their case notwithstanding the issuance of a notice to produce on NNPC was tantamount to not discharging the burden of proof based on preponderance of evidence. Also, the Court held that the Letter of Allocation being a contract document between the FG and NNPC, the Plaintiffs were not privy to same and so could not sue for its enforcement.

As it relates to the Federal Government’s directives and policy in respect of the Housing Scheme, the Court held that Government policies cannot create contract and have no force of Law. In the final analysis, the Court agreed with the entirety of PUC’s submissions and held that the Plaintiffs’ Suit was frivolous and lacking in merit and dismissed same. On the other hand, the Court upheld NNPC’s Counterclaim in its entirety.

What is significant about this PUC 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 interest of its Clients.

Trailblazing PUC: The Case of Mobil Producing Nigeria Unlimited & Exxon Mobil Corporation v. Registered Trustees of Mineral Resources Awareness Initiative of Akwa Ibom State & Anor.

Click here to read the CTC of the judgement.

Just within days of preventing a calamitous upset in the Nigerian Mining sector by securing a court victory in what is arguably Nigeria’s biggest mining legal tussle, Paul Usoro & Co (“PUC”) made another profound statement on Friday 14 January 2022 by recording a second tumultuous courtroom win, the echoes of which this time around, reverberated well beyond the shores of Nigeria right up to the offices of international oil giant, Exxon Mobil Corporation, in the United States of America.

In a Suit commenced by a Writ of Summons, Statement of Claim and other accompanying Processes dated 12 May 2017 (“Originating Processes”) and based on a  fiat issued to them by the Attorney General of Akwa Ibom State, the Registered Trustees of Mineral Resources Awareness Initiative of Akwa Ibom State and one other instituted Suit No: FHC/UY/CS/67/2017; Registered Trustees Of Mineral Resources Awareness Initiative Of Akwa Ibom State & Anor V. Mobil Producing Nigeria Unlimited & Anor at the Federal High Court, Uyo Judicial Division against Mobil Producing Nigeria Unlimited (the 1st Defendant or MPNU) and Exxon Mobil Corporation, a foreign corporation resident in the United States of America (the 2nd Defendant or EMC). The 1st Plaintiff, a non-governmental organization claiming to act for the people of Akwa Ibom State was seeking an assortment of declaratory, executory and monetary reliefs, principal amongst which was for an order of Court compelling MPNU to relocate its head office from Lagos State to Akwa Ibom State. The Plaintiffs anchored this interesting relief on a document called the Standard of Business Conduct document published on EMC’s website which the Plaintiffs claim constitutes a contract between them on the one hand and MPNU and EMC on the other. The Plaintiffs assert that by the said standard of Business Conduct issued by the parent company EMC and binding on the subsidiary, MPNU, the said MPNU was obligated to locate its headquarters in Akwa Ibom State as against Lagos State because MPNU’s operations are in Akwa Ibom State.

The Plaintiffs also made a claim for the payment/remittance of accrued tax from 1987 till the date of Judgment for sums running into billions of dollars.

Continue reading “Trailblazing PUC: The Case of Mobil Producing Nigeria Unlimited & Exxon Mobil Corporation v. Registered Trustees of Mineral Resources Awareness Initiative of Akwa Ibom State & Anor.”

PUC Records Another Remarkable Victory at The Federal High Court for Dangote Group

Paul Usoro and Co (“PUC”) reaffirmed its place as the foremost commercial litigation firm after successfully representing and securing a remarkable victory for Dangote Industries Limited & Dangote Cement Plc (“Dangote Group”) at the Federal High Court, Benin Judicial Division in a twin decision delivered on 10 January 2022 in the Suit No.: FHC/B/CS/7/2016:BUA INTERNATIONAL LIMITED & ANOR v. HONOURABLE MINISTER OF MINES & STEEL DEVELOPMENT & ORS (“BUA Group Suit”) and  Suit No. FHC/B/CS/74/2016 between DANGOTE INDUSTRIES LIMITED & ANOR V BUA INTERNATIONAL LIMITED & ORS (“Dangote Group Suit”).  Beyond the recondite issues of law canvassed by our Firm, this precedent-setting decision prevented what would have become a near-catastrophic tsunami in the Nigerian mining industry. Had PUC’s arguments been rejected, the outcome would have been the nullification of all mining leases issued by the Mining Cadastre Office (“MCO”) since 2008 when the agency was created, and this would have thrown the entire mining sector into a turmoil.

The legal tussle started in 2016 following the Suit filed by the BUA Group to challenge the Dangote Group’s right over the Mining Lease No. 2541ML located at the border town between Okpella in Edo State and Okene in Kogi State. The BUA Group also sought to enforce their rights over the Mining Lease Nos. 18912 and 18913 which they claim were granted to them. The Dangote Group counter sued the BUA Group to challenge the latter’s  acts of trespass, wrongful and illegal exploitation of the claim  over the mining area covered by  2541ML which was historically granted on February 01, 2008 by the Mining Cadastre Office (“MCO”)and the Honourable Minister of Mines and Steel Development pursuant to the provisions of the Nigerian Minerals and Mining Act, 2007 (‘Mining Act) to Ado Ibrahim & Company Limited (“AICO”) and subsequently transferred to the Dangote Group in 2014. Continue reading “PUC Records Another Remarkable Victory at The Federal High Court for Dangote Group”

PUC’s Victory for the National Judicial Council at the Federal High Court paved the way for the swearing-in of 18 new Justices of the Court of Appeal

On Monday, 28 June 2021, the Chief Justice of Nigeria, Honorable (Dr.) Justice Ibrahim Tanko Muhammad, CFR presided over the swearing-in of 18 new Justices of the Court of Appeal. Continue reading “PUC’s Victory for the National Judicial Council at the Federal High Court paved the way for the swearing-in of 18 new Justices of the Court of Appeal”

Summary of Judgment in: FHC/ABJ/CS/347/2021: Incorporated Trustees of Alaigbo Development Foundation v. National Judicial Council & 4 Others

Barely 4 days after PUC celebrated its success in a popular oil spill case in Nigeria, PUC recorded another success today in a Suit of national interest filed at the Federal High Court, Continue reading “Summary of Judgment in: FHC/ABJ/CS/347/2021: Incorporated Trustees of Alaigbo Development Foundation v. National Judicial Council & 4 Others”

PUC MAKES ANOTHER BIG AND BOLD STATEMENT AT THE COURT OF APPEAL FOR UNITED BANK FOR AFRICA PLC

PUC stepped up to the plate recently and registered another big win by successfully representing United Bank for African Plc at the Court of Appeal, Calabar Division in Appeal NO. CA/C/407/2018 vs. United Bank for Africa Plc and Sunday Udo Akpan & Anor. Continue reading “PUC MAKES ANOTHER BIG AND BOLD STATEMENT AT THE COURT OF APPEAL FOR UNITED BANK FOR AFRICA PLC”