Adoke in the Thick of the Storm

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The fate a former Attorney General of the Federation and Minister of Justice, Mohammed Adoke (SAN), had seriously dreaded has befallen him. For close to two weeks that he returned to Nigeria from Dubai, the United Arab Emirates, he has been in the detention of the Economic and Financial Crimes Commission (EFCC), courtesy of an ex-parte order from an Abuja High Court to detain him for 14 days pending his investigation and trial.

The former AGF, who served from April 2010 to May 2015, left Nigeria after the Goodluck Jonathan government left office, had fled the country for The Netherlands. Initially, he claimed he went for a graduate study at a university in the European country but when he did not return home at the end of the programme, it became obvious he was running away from arrest and detention. He later admitted that there was a conspiracy by the current administration to persecute him.

His return to Nigeria capped a five-week ordeal in Dubai, where he was in detention. He was arrested by Interpol on November 11 after arriving in the UAE for medical check-up and summarily taken into custody. His arrest followed an Interpol red alert, which the Nigerian government had issued against him as part of the ongoing litigation over the controversial Malabu Oil deal.

On April 9, 1998, the Federal Military Government awarded OPL 245 to Malabu Oil and Gas Limited, 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 Limited.

When President Muhammadu assumed power 2015, EFCC under Ibrahim Maga, as part of his effort to hound down official of the previous government, alleged in 2017 that some individuals and officials in the Jonathan government received kickbacks,
While Adoke, Jonathan and others named in the scandal strongly denied receiving bribes from anyone or committing any wrongdoing, the former AGF insisted 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 Obasanjo administration.

Despite his denial, however, the anti-graft agency charged him, Shell Nigeria Exploration Production Company 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. 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, Abubakar Malami, praying to be freed from any criminal liability in respect of the transactions and declaring his prosecution by the EFCC null and void.

In her judgment, Justice Binta Nyako said, Adoke could not be held liable for his roles in the OPL 245 transactions since he acted on presidential directive, adding 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 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 former 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 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.
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.
But the former AGF through his lawyers fought back. They asked the court to set aside the warrant and strike out his name from the charge sheet, They 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 had 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 that 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. It was on the basis of the order that he was arrested in Dubai on November 11, a development that finally culminated to his coming back home.

While observers are waiting to see how the EFCC would prove its charges that the former AGF collected $2.2 million bribe from the Malabu deal, they believed that revelations from the ongoing trial of some suspects in the Malabu scandal in Milan, Italy, would pose a challenge for the EFCC to sustain Adoke’s prosecution.
For instance, last June, a former Russian Ambassador to Colombia, Ednan Tofik ogly Agaev, who is also being tried over the OPL 245 affair, told an Italian court 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.
Anytime Adoke’s trial eventually resumes, two things that would play out in his favour are the letters Malami wrote to President Muhammadu Buhari in 2017 that he could not find evidence of wrongdoing against Adoke, advising the president to authorise the dropping of all pending charges against him.

The second is another memo by the former Minister of State for Petroleum Resources, Dr. Ibe Kachikwu, to the Chief of Staff to the President, also exonerating Adoke of wrongdoing in the Malabu Oil deal. Until then, the jury is still out.