Malabu Scandal: Prosecution Hampered by Evidence

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Ibrahim Magu

Revelations from the ongoing trial of some suspects in the Malabu scandal in Milan, Italy, may pose a challenge to the Economic and Financial Crimes Commission to sustain the prosecution of the former Attorney General of the Federation, Mohammed Adoke, Davidson Iriekpen writes

One year has passed since a Federal High Court in Abuja held that former Minister of Justice and Attorney General of the Federation, Mr. Mohammed Adoke (SAN), could not be held liable for his roles in the Oil Processing Licence 245 transactions, commonly referred to as the Malabu deal, yet the Economic and Financial Crimes Commission (EFCC) does not want to respect the judgment.

The court, presided over by Justice Binta Nyako resolved all the issues raised for determination in favour of the Adoke and also dismissed the preliminary objection raised against the suit by the immediate past AGF, Abubakar Malami (SAN).

The Malabu Deal

On April 9, 1998, the Federal Military Government awarded OPL 245 to Malabu Oil and Gas Ltd, which was said to be owned mainly by Mohammed Abacha, the son of the late Head of State, General Sani Abacha, and Dan Etete, who served as his minister of petroleum. On July 2, 2001, President Olusegun Obasanjo revoked Malabu’s licence and assigned the oil block to Shell without a public bid. Malabu went to court, and ownership was reverted to it in 2006 after it reached an out-of-court settlement with the federal government.

Shell challenged the decision and commenced arbitration against the federal government, but when President Goodluck Jonathan came to power in 2010, the controversy appeared to have been resolved with Shell and Eni agreeing to buy the oil block from Malabu for $1.1 billion.

The oil companies also paid $210 million as signature bonus to the federal government of Nigeria. Both payments were made to the federal government account at JP Morgan, London, from where Malabu’s share was transferred to Nigerian bank accounts of Abubakar Aliyu, owner of AA Oil Ltd.

EFCC’s Charge

When President Muhammadu assumed power 2015, EFCC under Ibrahim Maga, as part of his effort to allegedly hound down officials of the previous government, in 2017, charged Adoke, Shell Nigeria Exploration Production Co. Limited, Nigeria Agip Exploration Limited, Eni Spa and seven others at the Federal Capital High Court in Abuja with various offences involving their alleged roles in the transactions in which Nigeria was said to have been defrauded of about $1.8bn.

The transactions involved the chains of transfer of the ownership of the OPL 245 covering a lucrative oil field.

A Daniel in Judgement

While the charge was pending, Adoke went to the Federal High Court in Abuja to challenge it with suit marked, FHC/ABJ/94/446/2017, against the then AGF, Malami, praying to be freed from any criminal liability in respect of the transactions and declaring his prosecution by the EFCC null and void. The suit was opposed by Malami.

But in her judgment, Justice Nyako said Adoke cannot be held liable for his roles in the OPL 245 transactions since he acted on presidential directive. 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, Petroleum Resources to the chief of staff of 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, 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 1999 Constitution (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 of the Federal Republic of Nigeria (as amended). A community reading of sections 5(1), 147(1), 148(1) and 150 of the Constitution of the Federal Republic of Nigeria (as amended) 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.”

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

Justice Nyako added, “it is a fact that Exhibits 19 and 20 are not challenged by the defendant. Not having been challenged, the court is entitled to come to a reasonable conclusion that the plaintiff has discharged the burden required of him in accordance with Section 132 of the Evidence Act. On the whole, I am convinced that the provisions of sections 5(1), 145(1), 148(1) and 150 of the Constitution of the Federal Republic of Nigeria (as amended) are clear and unambiguous and should be given their literal and ordinary meanings. 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.”

She granted four of the prayers.

But Justice Nyako refused to grant relief 5 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 said the prayer was unnecessary and amounted to an academic exercise in the light of Exhibit 19 (Adoke’s letter to the Acting Chairman of the EFCC).

Warrant of Arrest

Just when many observers thought the EFCC would withdraw the charge in view of the judgment, last April, its counsel, Aliyu Yusuf, surprisingly brought a motion ex-parte before the FCT High Court praying for a warrant of arrest for Adoke and others. Yusuf also prayed for an order for leave to execute the warrant outside of the jurisdiction of the court.

After listening to the application, Justice D. Z. Senchi of the FCT High Court, issued a warrant of arrest against Adoke and others. He ruled that the Nigeria Police, the INTERPOL and any other law enforcement agency should arrest them anywhere they are found.

Adoke’s Contention

But the former AGF asked the court to set aside the warrant and strike out his name from the charge sheet, He contended that the bench warrant was issued without jurisdiction and in breach of his judgment to fair hearing as guaranteed under the 36 (1) of Constitution.

The former AGF who has severally vehemently denied taking any bribes in the Malabu deal, said he was neither served Charge No FCT/HC/CR/124/17, nor any proof of evidence in respect of the criminal charge pending before the court. He stated that in suit number FHC/ABJ/CS/446/2017 he secured a judgment of the Federal High Court in Abuja against the AGF representing the Federal Republic of Nigeria wherein he was exculpated with respect to the same facts and circumstances over which he was erroneously charged and the basis upon which the bench warrant was issued against him.

Adoke also contended that the ex-parte application for the bench warrant against him was obtained upon gross misstatements, misrepresentation, concealment and suppression of the material facts. He concluded where a court of law makes a void order, it reserves the right and power to set it aside.

Observers are wondering why the EFCC filed the charges against Adoke in the first place when there was nowhere it stated that the former AGF collected $2.2 million bribe from the Malabu deal. They also wonder how the anti-graft commission hopes to sustain the charges.

Independent Investigation

THISDAY investigation revealed that before the EFCC filed charges against Adoke, Malami had written a letter to Magu, to the effect that Adoke had no case to answer in respect of the actions he took pursuant to the directives/approvals of President Jonathan in respect to the implementation of OPL 245 Resolution Agreement. Also, a Minister of state for Petroleum Resources had equally written 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, Petroleum Resources agreed with the opinion of the AGF.

Political Vendetta?

This, to many observers, confirms the former AGF’s assertion in several newspaper interviews that the powerful toes he stepped upon when he was in office are the ones now using the EFCC to fight him. They believe that he seems justified to cry political vendetta in the Malabu case because the court case does not accuse him of collecting a bribe, yet that is not the impression being given to Nigerians.”

While the former AGF has maintained his innocence, he stated that he advised former President Jonathan to resolve the OPL 245 dispute to prevent Shell from getting a colossal arbitration award of $2 billion against Nigeria over the revocation of the oil block in 2001 by the former President Obasanjo’s administration.

Fresh Exoneration
Incidentally, his exoneration in the scandal was confirmed when a former Russian Ambassador to Colombia, Ednan Tofik ogly Agaev, who is also being tried over the OPL 245 affair, said in an Italian court last month that he was pressured, under interrogation by the FBI, to mention Adoke’s name as one of the recipients of the $400 million bribes allegedly paid to government officials in the deal. Agaev refused to adopt the FBI interview in court, insisting that he did not mean for it to be used against him.

On July 17, in Milan, Italy, Mr. Vincenzo Armanna, the former ENI manager who is also standing trial over the Malabu scandal told the court that Adoke warned ENI officials against discussing kickbacks and threatened them with arrest.

Rights Group Intervention

It is against this background that a rights group, the Justice and Equity Forum (JEF), urged the EFCC to consider new revelations in the ongoing OPL 245/Malabu trials in Milan, Italy to set Adoke free from any wrongdoing in the deal. In a statement by its co-conveners Alhaji Idris Kainji and Adebowale Peters, the group said the revelations by Agaev was a clear evidence that the former AGF did not commit any offence in the deal. It added that while it supports the EFCC in its Malabu investigations, charges should be based on verifiable facts, not on circumstantial and weak grounds.

The group said: “We note that on June 27, Mr. Ednan Tofik ogly Agaev, a former Russian diplomat who is being tried over the scandal, told the Italian court that he was pressured under interrogation by the FBI to mention Adoke’s name as one of the recipients of the bribes reportedly paid to government officials in the deal.

“In fact, Agaev refused to adopt the FBI interview in court because, according to him, he did not mean for it to be used. He effectively confessed making a false accusation against Adoke. In a court of law, this will certainly kill the case except there is anything else to it.

“We at the Justice and Equity Forum thereafter applied for and got a certified true copy of court papers in the case filed against Adoke by the EFCC at the Federal High Court in Abuja alleging money laundering. We went through the charges line by line and to our utmost surprise, nowhere did the EFCC mention that Adoke collected bribe. Yet what the EFCC continues to tell the public is that Adoke is on trial for collecting $2.2 million bribe from the Malabu deal. Nowhere in the court papers does EFCC make any reference to bribe or Malabu. This is very strange.”