The Economic and Financial Crimes Commission (EFCC) on Monday disclosed that it was investigating former Attorney General of the Federation (AGF) and Justice Minister, Mohammed Adoke (SAN) and a former Finance Minister for $1.2billion alleged fraud.
EFCC stated that Adoke was presently being investigated along with “the Finance Minister for fraudulently using Federal Government’s excrow account to receive the bribe money paid by the applicants to Malabu Oil and Gas Ltd.”
The commission said this in its counter-affidavit in reaction to applications by Nigerian Agip Exploration Limited (NAE) and Shell Nigeria Exploration and Production Company Ltd (SNEPCO), seeking the vacation of orders made by a Federal High Court in Abuja on January 26, 2017 for the temporary forfeiture of Oil Prospecting Licence (OPL) 245, on the Malabu Oil deal.
It narrated how Shell, Agip, former Petroleum Minister, Dan Etete, Adoke and others allegedly short-changed the Nigerian government through the transaction.
“Shell and Agip went into a agreement with Malabu Oil and Gas in which the companies will pay signature bonus of $210m to the Federal Government of Nigeria while the sum of $1.2b would be paid to the owners of Malabu Oil and Gas Ltd”, it said.
The EFCC insisted that contrary to Shell’s claim that the $1.2b was for compensation, the investigation revealed that “the money was a bribe to Dan Etete and his cronies”.
“Shell was aware, at the time of consummating this transaction, that Dan Etete, the owner of Malabu Oil and Gas Ltd, was already a convict and hence, was not willing to pay the said sum of $1.2b directly to Dan Etete and or Malabu Oil and Gas Ltd.
“One Mohammed Adoke, who was the Federal Government’s counsel in series of arbitration instituted by Shell in London on the said oil well and, who later became the AGF, conspired with Shell/Agip to route the payment of the said sum of $1.2b bribe money through FG’s excrow account with JP Morgan Chase Bank.
“Investigation revealed that the 1st applicant (Agip) conspired with others to defraud the Federal Government of Nigeria of the sum of $1.2b that should. Rightly have gone to the Federation Account,” EFCC said.
EFCC’s lawyer, Johnson Ojogbane, urged the court to dismiss the applications by Agip and Shell for lacking in merit.
Ojogbane said, “OPL 245 is an oil block. It is a tangible oil block. The order my lord gave was to prevent any step or action on the oil block.”
He added that “Section 44(2)(k) Constitution allows the temporary taking of property for the purpose of any examination or inquiry.
“So it does not in any way offend the Constitution. The OPL 245 is a subject of criminal investigation and prosecution. It is not just investigation, there is a charge pending now before this court.
“The application is not just to preserve the res (the subject matter), the activities surrounding OPL 245, is criminal. It can be described as proceeds of crime.
“Other charges will be following. With th forfeiture, we are stopping criminality from progressing,” Ojogbane said.
Counsel for Shell, Konyinsola Ajayi (SAN) said argued that the OPL 245 was not such property that could be seized by an order of court as contemplated under Sections 28 and 29 of the EFCC Act, on which the EFCC relied in applying for the forfeiture orders.
“What we have is a chosen action, a mere licence, an intangible right that is incapable of destruction or being moved. It is a licence over thousands of miles on the ocean. The ocean cannot be destroyed.
“Nothing can be destroyed; nothing can be taken away, nothing can be put under the seal of the EFCC, nothing can be seized by the EFCC,” he said.
Ajayi maintained that by virtue of sections 28 and 29 of EFCC Act, the Chairman of EFCC, in whose name the ex parte application filed by the anti-graft agency was initiated, was not the proper person to institute the action.
“Having been brought by an improper person, the jurisdiction and powers of the court have not been activated,” he said.
Ajayi further contended that the order of interim forfeiture was unnecessary as without it, neither Shell nor Agip could take any action on the OPL 245 except it was authorised by the Federal Government.
Counsel for Agip, Babatunde Fagbohunlu (SAN) argued that an order of forfeiture could not be granted through an ex parte motion except through a motion on notice.
He said, “Is it possible for the EFCC to attach and subsequently forfeit asset of a subject in the proceedings which from start to the end is on an exparte basis?
“My response is that the answer that my lord should give is an emphatic no,” he said.
He added: “Sections 28 and 29 of the EFCC Act do not even purport that the proceedings for forfeiture of an asset can be conducted on ex parte throughout.
“There is nothing in section 28 that says an interim order can be applied for through ex parte.That application has to be on notice.
“What then follows is the forfeiture proceedings which can be done ex parte,” Fagbohunlu said.
Justice John Tsoho adjourned to March 13 for ruling.
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