Malabu: Why I should not be on trial – Adoke

A former Attorney General of the Federation (AGF) and Minister of Justice, Mohammed Bello Adoke (SAN), has asked a Federal High Court in Abuja to declare that he cannot face criminal trial since he was carrying out presidential directives regarding the Malabu oil deal. In a further affidavit in support of his suit, Adoke added […]

A former Attorney General of the Federation (AGF) and Minister of Justice, Mohammed Bello Adoke (SAN), has asked a Federal High Court in Abuja to declare that he cannot face criminal trial since he was carrying out presidential directives regarding the Malabu oil deal.

In a further affidavit in support of his suit, Adoke added that another reason he cannot face trial was that his successor, Abubakar Malami (SAN), had in his letter to the Acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu expressed a legal opinion to the effect that he (Adoke) has no case to answer on the account of the implementation of a Settlement Agreement in respect of OPL 245 in 2011.

Recall that the EFCC on December 16, 2016 in charge number FHC/ABJ/CR/268 (to which Malami’s letter referred) accused Adoke of aiding and abetting Duazia Loya Etete (aka Dan Etete) and Aliyu Abubakar in his capacity as justice minister in conniving with others to defraud the federal government by diverting  $1.1billion to themselves through some individuals and companies in 2011.

The others are legal entities including Malabu Oil and Gas Limited, Rocky Top Resources Limited, Imperial Union Limited, Novel Properties and Development Company Limited, Group Construction Limited and Megatech Engineering Limited.

But Adoke, through his legal team led by another former AGF, Kanu Agabi (SAN), asked the court to determine whether by virtue of Sections 5(1), 147(1), 148(1) and 150(1) of the 1999 Constitution a serving minister of the country could perform the “executive powers of the federation vested on the president as directed by the president.”

Arguing Adoke’s suit on Thursday, Agabi said the court should refer to Exhibit 1 attached to the suit, said to be the approval of the former president, Dr. Goodluck Jonathan for the implementation of settlement agreement in respect of OPL 245 in 2011.

He urged the court to declare that his involvement in the negotiation between the Nigerian government and Malabu Oil and Gas Limited, Shell Ultra Deep Nigeria Limited, Nigeria National Petroleum Corporation (NNPC) and Agip in the matter of OPL 245 was in “furtherance of the lawful directive/approval of the president in the exercise of his powers.”

The former AGF also asked the court to declare that any correspondence he had with J.P. Morgan and any other entity and additional actions taken in respect of the Malabu Oil deal was in obedience to the lawful directive of the president in the exercise of his executive powers.

He further asked the court to declare that his prosecution by the EFCC in respect of the Malabu deal on the account of carrying out the president’s directive was illegal, null and void and in breach of Section 5(1) of the constitution.

He also urged the court to declare that he could not be held liable for carrying out lawful directive/approval of the president while he served as a minister.

However, Malami, in his counter-affidavit, challenged the court’s jurisdiction to hear the case, adding that such civil suit could not be used to stop criminal prosecution already initiated.

Malami noted in his papers that the charges which its validity Adoke was challenging involved the fraudulent transfer of billions of dollars derived from the Oil Processing License 245 deal.

The Permanent Secretary and the Solicitor-General of the Federation, Dayo Apata, who appeared for Malami in the suit, told the court to determine whether the plaintiff’s suit warranted any cause of action from the government and whether the suit was not an abuse of court processes.

He argued that the plaintiff could not use the court as a shield from being prosecuted after he had been charged for a criminal offence before another court.

Malami said the argument of Adoke that he was carrying out presidential directives did not hold water, adding that there was no vicarious liability in Nigeria’s criminal law. He said this position of law had been reinforced by several Supreme Court judgments.

He added that all the arguments put forward by Adoke were defences that should come up at the trial of his criminal matter.

Responding, Agabi said Malami’s letter to Magu dated September 17, 2017 and attached to Adoke’s suit as Exhibit 19 showed his (Malami’s) contradictory stance on the matter.

Reading from the letter in court, Agabi said Malami wrote thus: “Having fully examined the entire case file, I am inclined to request you to reconsider the charge in relation to the composition of the parties, the offences, the proof of evidence and the case summary in view of the fact that nothing in the proof of evidence appear to have directly linked the parties to the offences as charged.

“A curious observation of the entire file clearly indicates that the proof of evidence is unlikely to support the counts which border on fraud, conspiracy and money laundering,” he said.

In a copy of the letter cited by our reporter, Malami said the reasons for the advice were: “(a) there is nothing to show that the parties as constituted were at all times working together and having a meeting of the mind to wit: to forget CAC documents and use it for the purpose of divesting the shares of the complainant and thereafter enter into a settlement agreement with FGN and other parties to take delivery of the proceeds of sale of OPL 245.”

“(b) there is nothing in the proof of evidence to support the charge of money laundering therefore it is unrealistic for the prosecution to proof the elements which include illicit funds, attempt to conceal/concealment of illicit funds, transfer of such funds through various channels to introduce same as legitimate funds, in financial institutions without the express proof of these elements, this count may not be sustainable.

“(c) the EFCC investigation and attached proof of evidence do not appear to have clearly revealed the case of fraud against the parties in view of their claimed acting in their official capacities with purported approval of the president of the FGN at the time and with claimed intentions that the matter be resolved in the national interest to save the nation from acrimonious litigations resulting into high legal fees and the non-production of the oil field while litigation lasted.”

He advised that the matter be thoroughly investigated, especially regarding the allegations of wrongdoing in connection with the $ 1.1billion in order to satisfy the constituent elements of offences.

He further advised Magu to also take steps to urgently file an application for a worldwide mareva injunction and or the forfeiture of the assets of the beneficiaries of the $1.1billion  pending the conclusion of his investigation in the areas above stated.

Also, in a further affidavit deposed to by one Oladapo Agboola, Adoke said the Minister of State for Petroleum, Ibe Kachikwu, endorsed the legal opinion of Malami to the effect that he (Adoke) had no case to answer in respect of the OPL 245 Settlement Agreement in a letter dated December 15, 2017 to the Chief of Staff to the President, Abba Kyari.

In the said letter marked as Exhibit 20, Kachikwu wrote: “I am writing further to your letter dated 8th November, 2017 Ref SH/COS/24/A/7921, to advise that I have considered the letter of the Attorney General and Minister of Justice to His Excellency, the President in respect of the above subject matter and am of the considered view, following the advice of the Attorney General, that the Federal Government is obliged to respect the resolutions of the Settlement entered by the Federal Government with respect to OPL 245 given:

“(a) The consistent role of three (3) predecessor president in this matter, and (b) The potential negative view of Nigeria that may follow should international arbitration ensue from the matter.

“My experience is that the potency of bilateral investment treaties upon which a claim could be made on Nigeria is such that, any attempt to abrogate the Settlement Agreement or take any steps that will undermine its integrity, could prove costly to the country.

“In the circumstances and following the advice, I respectfully recommend that the Federal Government should take advantage of the Settlement Agreement to acquire an interest in OPL 245 and ensure its conversion to a Production Sharing Contract (PSC) between the FGN and relevant parties as per paragraph 7 of the AG’s letter.

“This will not only ensure that Nigeria will bear no funding obligations for the development of the block, but will be a strategic, yet commercial, approach and solution to OPL 245 issue which will ensure that Nigeria is focused on obtaining an immediate benefit from OPL 245.”

Meanwhile, the trial judge, Justice Binta Nyako has adjourned the matter to February 28 for ruling/judgment.