When Obedience Should Not Be a Liability

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Last week’s ruling by a Federal High Court in Abuja may have dealt a fatal blow to government’s plans to criminalise the settlement agreement between the federal government and Malabu Oil and Gas, writes Davidson Iriekpen‎

A former Minister of Justice and Attorney General of the Federation (AGF), Mr. Mohammed Adoke (SAN), was in the news last week when he won a landmark judgment delivered by Justice Binta Nyako Federal High Court in Abuja.

Delivering her verdict in a suit filed by the former AGF against the incumbent AGF, Mr. Abubakar Malami (SAN), the judge held that Adoke could not be held liable for his roles in the Oil Processing Licence (OPL) 245 transactions, commonly referred to as the Malabu deal.
In the judgment which many pundits feel could considerably impact on the trial of the former National Security Adviser (NSA), Col. Sambo Dasuki (rtd), Justice Nyako held that since Adoke only executed the lawful directives/approvals of the then President Goodluck Jonathan, he was free of any liability for his roles in the deal.

Just like Dasuki, the Economic and Financial Crimes Commission (EFCC) had charged Adoke with various offences for his roles in the transactions in which Nigeria was said to have been defrauded of about $1.8 billion. It accused the former AGF of aiding the transfer of money to his co-defendant, Dan Etete, himself a former petroleum minister and conspiring with him to commit money laundering offences in the Malabu Oil deal.

Adoke consequently filed the suit wherein he prayed the court to free him from any criminal liability in respect of the transactions and to declare his prosecution by the EFCC null and void.

He asked the court to determine whether having regard to the provisions of section 5(1) of the constitution, the executive powers of the federation are vested in the president to exercise same directly or through a minister of the government of the federation; and whether he while serving as a minister can be held personally liable for carrying out the lawful directives and or implementing the lawful approvals of the president.

He went on to seek the following reliefs: A declaration that his involvement in the negotiations leading to the implementation of the settlement agreement dated November 30, 2006 between Malabu Oil and Gas Limited and the federal government and the eventual execution of OPL 245 Malabu resolution agreement dated April 29, 2011 between the federal government and Malabu Oil and Gas Limited was in furtherance of the lawful directives approval of the president in the exercise of his executive powers; a declaration that his involvement in the negotiation and eventual execution of the OPL 245 Shell Nigeria Ultra Deep (SNUD) resolution agreement dated April 29, 2011 between the federal government and Shell Nigeria Ultra Deep and Shell Nigeria Exploration and Production Company Limited was in furtherance of the lawful directives approval of the president in the exercise of his executive powers; a declaration that his involvement in the negotiation and eventual execution of OPL 245 resolution agreement dated April 29, 2011 between the federal government and Agip Exploration Limited and Shell Nigeria Exploration and Production Company Limited was in furtherance of the lawful directives approval of the president in the exercise of his executive powers; and a declaration that his prosecution by EFCC on account of his carrying out the lawful directives and implementation of the approvals of the president while he served as a minister of the government of federation is illegal, null and void and inconsistent with the intendment of section 5(1) of the Constitution.

In his response, Malami filed a conditional memorandum of appearance on June 22, 2017 and filed a six-paragraph counter-affidavit dated July 3 2017 supported with a written address. He also filed a notice of preliminary objection supported by a six-paragraph affidavit to which he also attached a written address.

Plaintiff, in response to defendant’s counter affidavit filed on July 26, 2017 a six-paragraph further affidavit supported with a written address on points of law in reaction to the defendant’s notice of preliminary objection, the plaintiff on July 26, 2017 filed a seven-paragraph counter-affidavit supported with a written address. He also filed a five-paragraph further and better affidavit on January 16, 2018 containing exhibits 19 and 20.

Since the preliminary objection raises issues of jurisdiction, Justice Nyako determined the suit by first looking at the issues raised in the preliminary objection. In the said objection, the defendant challenged the jurisdiction of the court to hear and determine the suit on the grounds that the plaintiff did not disclose any cause of action in the suit; civil suit could not be used to stop criminal prosecution already initiated; the plaintiff’s suit as constituted was incompetent and that the court lacked the jurisdiction to hear and determine the suit.

In his written address, defendant raised two issues for determination to wit: whether the plaintiff/respondent’s suit discloses a cause of action against the defendant and whether the plaintiff/respondent’s suit is not an abuse of court process?

But in her judgment, Justice Nyako resolved all the issues raised for determination in favour of the plaintiff and dismissed the preliminary objection. She granted four of Adoke’s prayers but refused one which sought a declaration that his prosecution was null and void.

The judge noted that contrary to the defendant’s contention that the plaintiff exceeded the directive of the president and in the process committed a crime, Exhibits 19 and 20, which remained uncontradicted and unchallenged, confirmed that the plaintiff actually remained within the confines of the lawful directives given to him by the president and is therefore protected by law. Exhibit 19 was a letter written by the AGF to the Acting Chairman of EFCC, Mr. Ibrahim Magu, to the effect that Adoke had no case to answer in respect of the actions he took pursuant to the directives/approvals of the president in respect to the implementation of OPL 245 resolution agreement.

Exhibit 20 was a letter from the Minister of State for Petroleum Resources to the Chief of Staff to the President in response to the latter’s request for advice on the letter by the AGF to the Acting Chairman of the EFCC on OPL 245 settlement agreement implemented by the plaintiff, in which the Minister of State for Petroleum Resources agreed with the opinion of the AGF.
Justice Nyako said by the provisions of sections 5(1), 147, 148 and 150 of the Constitution of the Federal Republic of Nigeria (as amended), the executive powers of the federation were vested in the president and which he could exercise either personally or through any of his appointed ministers.

She said: “I have carefully studied the provisions of sections 5(1), 147, 148 and 150 of the constitution. A community reading of sections 5(1), 147(1), 148(1) and 150 of the constitution leaves you in no doubt that the executive powers of the federation, as vested in the president, are exercisable by him directly or through a minister of the federation.”

She held that Adoke could not be personally held liable for acts done in furtherance of the lawful directives/approvals of the president, and that the former AGF in that situation, acted as an agent of a disclosed principal.

According to her, having examined paragraph 4d, 4bb and 4cc of the affidavit in support of the originating summons, as well as Exhibits 10A & 10B and 11A & 11B, Exhibit 11B is a presidential approval directing the plaintiff to implement the OPL 245 Resolution Agreement, while Exhibit 10B is the approval by the president for Malabu Oil and Gas Limited to be paid US$1, 080,040,000 in settlement of the dispute.

“I am therefore in agreement with the plaintiff’s submission that he was merely carrying out the lawful directives of the president and that a principal and agent relationship is created where the president assigns a responsibility to a minister appointed by him pursuant to sections 147 and 148 of the constitution.

“It is my considered view that while the plaintiff was carrying out the lawful directives of the President pursuant to section 5(1) and 148(1) of the cconstitution as contained in Exhibits 10B and 11B with respect to the implementation of the OPL 245 resolution agreement, an agency relationship of a disclosed principal was established. The plaintiff, as agent of a disclosed principal therefore incurred no personal liability.

“On the whole, I am convinced that the provisions of sections 5(1), 147(1), 148(1) and 150 of the constitution are clear and unambiguous and should be given their literal and ordinary meaning. I therefore hold that the executive powers of the federation vested in the president by virtue of section 5(1) of the constitution can be exercised by him directly or through ministers appointed by him and that by the combined effect of sections 5(1), 147(1) and 150 of the constitution, the plaintiff who was appointed a minister in the government of the federation by the then President Jonathan, can exercise the executive powers of the federation vested in the president as directed by the president, and that the plaintiff while serving as a minister of the government of the federation cannot be held personally liable for carrying out the lawful directives and/or implementing the lawful instructions of the president.”

But the judge refused to grant relief five where Adoke prayed for a declaration that his “prosecution by the EFCC on account of his carrying out of the lawful directives and implementation of the approvals of the president while he served as a minister of the government of the federation, is illegal, null and void and inconsistent with the intendment of Section 5(1) of the Constitution.”
She adduced her reason to the fact the EFCC was not joined in the suit, adding that the prayer was unnecessary and amounted to an academic exercise in the light of Exhibit 19 (Malami’s letter to the Acting Chairman of the EFCC).

“I am however unable to grant relief five in the plaintiff’s originating summons as the EFCC was not joined in the suit. Besides, in the light of Exhibit 19, the relief has become academic,” she held.

Despite her refusal to grant relief five, many analysts believe that the judgment would no doubt impact on the criminal charge that is currently ongoing before the same court in Abuja as the office of AGF is the chief prosecuting officer of the country and the custodian of all the suits filed on behalf of the federal government.

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The plaintiff (Adoke) as agent of a disclosed principal therefore incurred no personal liability.