The Attorney-General of the Federation, Abubakar Malami, has
written to President Muhammadu Buhari, urging him to back off on
his administration’s legal battles against the principal actors in
the controversial Malabu Oil deal.
The raging scandal over the OPL 245 oil block began in 2011 when
the Goodluck Jonathan administration approved its purchase by Shell
and Agip-Eni from Malabu Oil and Gas Ltd., a suspected briefcase
firm with ties to Dan Etete, a convicted criminal who was Nigeria’s
petroleum minister from 1995 to 1998.
The Jonathan administration officials who participated in the
negotiation preceding the controversial sale of the massive oil
block included Mohammed Bello Adoke, Attorney-General at the time;
and Diezani Alison-Madueke, who was petroleum minister.
Mr. Jonathan himself was named by investigators as being
involved in the alleged fraud, but the former president strongly
denies the charges.
The Economic and Financial Crimes Commission has been
pursuing fraud and criminal conspiracy charges against Mr. Adoke,
Mr. Etete and their alleged accomplices since 2016.
Messrs. Adoke and Etete are believed to be at large, and the
anti-graft agency had repeatedly sought to fish them out.
Messrs Adoke, Etete, Alison-Madueke and all other officials
named in the scandal have denied wrongdoings.
Mr. Adoke said the sale was approved to save Nigeria from huge
financial losses that could arise from international arbitration
lawsuits.
In his letter to Mr. Buhari, Mr. Malami said, following due
examination of the case files. he was able to determine that the
EFCC has no significant evidence to prove its allegations of sharp
practices against prominent players like Bello Adoke, Diezani
Alison-Madueke and others.
Besides, Mr. Malami said, the Nigerian government risks being
portrayed before the international community and foreign investors
as an unserious country that could not be trusted to live up to its
obligations to international partners.
“Clearly, potential investors will not have the confidence to
invest in Nigeria if the government of the country is perceived as
one which does not honour its commitments,” Mr. Malami said of the
OPL 245 oil deal which was approved by at least three former
Nigerian Attorney-Generals.
The September 27, 2017 letter advised the president to pursue
Nigeria’s possible investment in the disputed oil blocks rather
than trying to repossess it or prosecute former Nigerian government
officials or Shell or Agip-Eni chiefs involved in the deal.
TheNigerialawyer recently obtained a copy of the letter, but
excerpts of it were published by The Cable earlier this month.
It came as the EFCC ramps up legal efforts towards
bringing Mr. Adoke back into Nigeria to face prosecution.
But Mr. Malami insisted that the anti-graft office is on a wild
goose chase and that the president should immediately intervene to
save Nigeria from international embarrassment and reputation
damage.
“There is nothing to show that the parties as constituted were
at all times working together and having ‘meeting of the mind’ to
wit to forge CAC documents and use some for the purpose of
divesting the shares of the complainants and thereafter enter into
a settlement agreement with FGN and other parties to take delivery
of the proceeds of sale OPL 245.
“There is also nothing in the proof of evidence to support the
charge money laundering and it is therefore impossible for the
prosecution to prove the elements which include illicit funds,
transfer for such through various channels to re-introduce same
again into the regular financial system as legitimate funds in
financial institutions etc.
“Without the express proof of these elements, the count may not
be sustained on the premise of the attached proof of evidence.
“The EFCC investigation and attached proof of evidence do not
appear to have clearly revealed the case of fraud against the
parties who claimed to have acted in their official capacities with
the approval of three consecutive presidents of the federal
government of Nigeria at the time with further claim that the
matter was intended to be resolved in national interest thereby
saving the nation acrimonious litigations resulting in high legal
fees and the dormancy of the oil field while litigation lasted,”
Mr. Malami said.
Mr. Malami said Nigeria should take advantage of some favourable
clauses in the agreement that allowed for government’s ownership of
a part of the oil field.
“Your Excellency, the beneficial approach I counsel in the
circumstances is for the federal government to take advantage of
the terms of the agreement under clauses five and 11 to acquire a
stake in the OPL 245 converting it to a production sharing contract
(PSC) between FGN/NNPC, Shell and Agip after negotiating with the
ENI/Shell to absorb the cost of the FGN/NNPC entry under the said
clauses five and 11 through the PSC mechanism,” Mr. Malami
said.
The Nigerian government, through the EFCC, has been trying
to take possession of the lucrative oil deal, estimated to hold
more than nine billion barrels of crude.
However, the Minister of State for Petroleum, Ibe
Kachikwu, has been mounting pressure on the
administration to allow Agip-Eni continue development of some
parts of the field.
“Total investment from Agip involved in both the Zabazaba field,
the power plant and the new refinery is in excess of $15 billion.
That is major push in terms of our search for investment,’’ Mr.
Kachikwu said after emerging from another meeting with then-Acting
President Yemi Osinbajo at the State House on May 9, 2017.
The confusion in Nigeria over the scandal continues
as Italian prosecutors are proceeding with criminal
charges against Shell executives suspected to be involved in
the OPL 245 deal. The prosecutors are also reportedly making
progress in their criminal allegations against some Nigerian
players named in the scandal.
Read the letter in full below:
RE: FORWARDING OF CASE FILE IN RESPECT OF CHARGE NO.
FHC/ABJ/CR/268/17 AND FCT/HC/CR/124/2017 MALABU OIL & GAS
LTD
May I refer Your Excellency to the above subject matter,
please.
2. This case file was received from the EFCC in a letter dated
21st December, 2016 for vetting and further directive. Having fully
examined the entire case file I am inclined to request you to note
the following and direct accordingly.
3. A curious observation of the entire Malabu story clearly
indicates that there are the civil and criminal aspects to the
case.
4. The civil aspect bothers on the skirmishes between the
directors of the company which led to the claims that shares of the
same directors were divested without their consent thereby taking
over their interest. Having examined the cases it is important to
note that the cases are pending before the courts and therefore
sub-judice; the FGN should await the outcome of the cases- Suit No.
FHC/ABJ/CS/201/2017 MALABU OIL & GAS LTD vs. THE FEDERAL
GOVERNMENT OF NIGERIA AND & 6 ORS; and Suit No.
FHC/ABJ/CS/206/2017 MALABU OIL & GAS LTD vs. MR KWEKU AMAFAGHA
& 9 ORS.
5. In the criminal case, the aggrieved parties through their
lawyers petitioned the EFCC against some directors of Malabu Oil
and Gas alleging fraudulent divestment of their shares and
subsequently depriving them of their benefits in the sale of OPL
245. EFCC investigated the case and filed nine-count charge dated
16th September, 2016.
6. Attached to the charge are a proof of evidence, case summary
and list of witnesses in support of the counts which bother on
fraud, conspiracy and money laundering.
Regarding the criminal charge. Your Excellency is invited to
note that the charge as presently constituted may most likely not
succeed against the parties for the following reasons:
>a. There is nothing to show that the parties as constituted
were at all times working together and having a ‘meeting of minds’
to wit; to forge CAC documents and use same for the purpose of
divesting the shares of the complainants 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 also nothing in the proof of evidence to support the
charge money laundering and it is therefore impossible for the
prosecution to prove the elements which include illicit funds,
transfer for such through various channels to re-introduce same
again into the regular financial system as legitimate funds in
financial institutions etc. Without the express proof of these
elements, the count may not be sustained on the premise of the
attached proof of evidence.
c. The EFCC investigation and attached proof of evidence do not
appear to have clearly revealed the case of fraud against the
parties who claimed to have acted in their official capacities with
the approval of three consecutive presidents of the federal
government of Nigeria at the time with further claim that the
matter was intended to be resolved in national interest thereby
saving the nation acrimonious litigations resulting in high legal
fees and the dormancy of the oil field while litigation lasted.
d. In this regard, the Public Officers Protection Act CAP P41
Laws of the Federation of Nigeria, 2004 limits liability of Public
Officers to a period of three months much naturally come to mind
considering their claim that the acts which are complained of were
authorised by the three presidents before this current
administration.
7.”Your Excellency, the beneficial approach I counsel in the
circumstances is for the federal government to take advantage of
the terms of the agreement under clauses five and 11 to acquire a
stake in the OPL 245 converting it to a production sharing contract
(PSC) between FGN/NNPC, Shell and Agip after negotiating with the
ENI/Shell to absorb the cost of the FGN/NNPC entry under the said
clauses five and 11 through the PSC mechanism,” Mr. Malami
said.
8. The idea of revisiting the settlement agreement which
resulted in the sale of the oil field to SNUD, SNEPCO and NAE is
not workable. It is important in this regard for His Excellency to
note the following:
a. The agreement was executed by the highest authority in
Nigeria and remains sacrosanct unless it is eventually set aside by
the decision of a competent court of law and denying the parties
immediate benefit of reaping the fruit of their investments. The
agreement has its mechanism for compensation in the event of any of
the rights conferred to ENI or SHELL are challenged or violated.
For the FGN to revisit the agreement, the consent of Shell and ENI
will be required.
It is very unlikely that the consent will easily be obtained but
rather they would rely on the protection afforded in the contract,
and any unilateral effort by FGN to vary the terms of the agreement
would probably open up a new bout of litigation, deter further
investment, give rise to a claim for damages and payment of huge
legal fees. Your Excellency may wish to note some of the FGN’s
representations and assurances in the clauses 12, 13 and 17 of the
agreement.
“12. FGN confirms that the terms of this FGN resolution
agreement have been agreed by all the appropriate agencies of the
FGN including the Ministry of Finance and the Federal Inland
Revenue Service.’
“13. FGN acknowledges that, in entering into this FGN resolution
agreement, the other parties have relied on its expressed or
implied representation before the signature of this FGN resolution
agreement regarding the efficacy of the terms thereof.”
“17. FGN shall indemnify, save and hold harmless, and defend
SNUD, SNEPCO and NAE from and against all suits, proceedings,
claims, demands losses and liability of any nature or kind,
including, but not limited to, oil litigation costs, attorneys’
fees, settlement payments, damages, and all other related costs and
expenses, based on, arising out of, related to or in connection
with: (i) this FGN resolution agreement. (ii) the resolution
agreement/ (iii) the issuance of the oil prospecting license in
respect of Block 245 jointly in the name of SNEPCO and NAE and
arising out of any asserted prior interest in Block 245.”
9. The above commitments are binding on the FGN. ENI/Shell
legitimately expects that the FGN would respect the commitments.
Failure by the FGN to respect them would cast Nigeria in a very bad
light internationally and negatively impact the FGN’s quest for
foreign investments. Clearly, potential investors will not have the
confidence to invest in Nigeria if the government of the country is
perceived as one which does not honour its commitments (captured in
an agreement signed by three of its ministers).
10. ENI/Shell claims to have invested in excess of US $2.5
billion in OPL 245 from 2011 to date and as such would seek the
protection of international law, including applicable investment
treaties which prohibit the unreasonable, unfair and inequitable
treatment of their investments and could expose FGN to
international arbitration involving multi-billion dollars
claims.
11. As the FGN/NNPC relies on the provisions of the resolution
agreement, charges preferred against ENI/Shell companies and
employees would necessarily have to be withdrawn as continuing with
the charges will be inconsistent with the spirit of the relevant
clauses of the resolution agreement which will enable FGN to obtain
immediate interest in OPL 245. Regardless, as submitted in
paragraph five and six above, the charges as constituted and filed
by the EFCC are unsustainable.
12. Accept the assurances of my warm regards and loyalty,
always.
Abubakar Malami, SAN
Honourable Attorney-General of the Federation &
Minister of Justice.
DPPA/FMPR/198/17
September 27, 2017.
The Attorney-General of the Federation, Abubakar Malami, has
written to President Muhammadu Buhari, urging him to back off on
his administration’s legal battles against the principal actors in
the controversial Malabu Oil deal.
The raging scandal over the OPL 245 oil block began in 2011 when
the Goodluck Jonathan administration approved its purchase by Shell
and Agip-Eni from Malabu Oil and Gas Ltd., a suspected briefcase
firm with ties to Dan Etete, a convicted criminal who was Nigeria’s
petroleum minister from 1995 to 1998.
The Jonathan administration officials who participated in the
negotiation preceding the controversial sale of the massive oil
block included Mohammed Bello Adoke, Attorney-General at the time;
and Diezani Alison-Madueke, who was petroleum minister.
Mr. Jonathan himself was named by investigators as being
involved in the alleged fraud, but the former president strongly
denies the charges.
The Economic and Financial Crimes Commission has been
pursuing fraud and criminal conspiracy charges against Mr. Adoke,
Mr. Etete and their alleged accomplices since 2016.
Messrs. Adoke and Etete are believed to be at large, and the
anti-graft agency had repeatedly sought to fish them out.
Messrs Adoke, Etete, Alison-Madueke and all other officials
named in the scandal have denied wrongdoings.
Mr. Adoke said the sale was approved to save Nigeria from huge
financial losses that could arise from international arbitration
lawsuits.
In his letter to Mr. Buhari, Mr. Malami said, following due
examination of the case files. he was able to determine that the
EFCC has no significant evidence to prove its allegations of sharp
practices against prominent players like Bello Adoke, Diezani
Alison-Madueke and others.
Besides, Mr. Malami said, the Nigerian government risks being
portrayed before the international community and foreign investors
as an unserious country that could not be trusted to live up to its
obligations to international partners.
“Clearly, potential investors will not have the confidence to
invest in Nigeria if the government of the country is perceived as
one which does not honour its commitments,” Mr. Malami said of the
OPL 245 oil deal which was approved by at least three former
Nigerian Attorney-Generals.
The September 27, 2017 letter advised the president to pursue
Nigeria’s possible investment in the disputed oil blocks rather
than trying to repossess it or prosecute former Nigerian government
officials or Shell or Agip-Eni chiefs involved in the deal.
TheNigerialawyer recently obtained a copy of the letter, but
excerpts of it were published by The Cable earlier this month.
It came as the EFCC ramps up legal efforts towards
bringing Mr. Adoke back into Nigeria to face prosecution.
But Mr. Malami insisted that the anti-graft office is on a wild
goose chase and that the president should immediately intervene to
save Nigeria from international embarrassment and reputation
damage.
“There is nothing to show that the parties as constituted were
at all times working together and having ‘meeting of the mind’ to
wit to forge CAC documents and use some for the purpose of
divesting the shares of the complainants and thereafter enter into
a settlement agreement with FGN and other parties to take delivery
of the proceeds of sale OPL 245.
“There is also nothing in the proof of evidence to support the
charge money laundering and it is therefore impossible for the
prosecution to prove the elements which include illicit funds,
transfer for such through various channels to re-introduce same
again into the regular financial system as legitimate funds in
financial institutions etc.
“Without the express proof of these elements, the count may not
be sustained on the premise of the attached proof of evidence.
“The EFCC investigation and attached proof of evidence do not
appear to have clearly revealed the case of fraud against the
parties who claimed to have acted in their official capacities with
the approval of three consecutive presidents of the federal
government of Nigeria at the time with further claim that the
matter was intended to be resolved in national interest thereby
saving the nation acrimonious litigations resulting in high legal
fees and the dormancy of the oil field while litigation lasted,”
Mr. Malami said.
Mr. Malami said Nigeria should take advantage of some favourable
clauses in the agreement that allowed for government’s ownership of
a part of the oil field.
“Your Excellency, the beneficial approach I counsel in the
circumstances is for the federal government to take advantage of
the terms of the agreement under clauses five and 11 to acquire a
stake in the OPL 245 converting it to a production sharing contract
(PSC) between FGN/NNPC, Shell and Agip after negotiating with the
ENI/Shell to absorb the cost of the FGN/NNPC entry under the said
clauses five and 11 through the PSC mechanism,” Mr. Malami
said.
The Nigerian government, through the EFCC, has been trying
to take possession of the lucrative oil deal, estimated to hold
more than nine billion barrels of crude.
However, the Minister of State for Petroleum, Ibe
Kachikwu, has been mounting pressure on the
administration to allow Agip-Eni continue development of some
parts of the field.
“Total investment from Agip involved in both the Zabazaba field,
the power plant and the new refinery is in excess of $15 billion.
That is major push in terms of our search for investment,’’ Mr.
Kachikwu said after emerging from another meeting with then-Acting
President Yemi Osinbajo at the State House on May 9, 2017.
The confusion in Nigeria over the scandal continues
as Italian prosecutors are proceeding with criminal
charges against Shell executives suspected to be involved in
the OPL 245 deal. The prosecutors are also reportedly making
progress in their criminal allegations against some Nigerian
players named in the scandal.
Read the letter in full below:
RE: FORWARDING OF CASE FILE IN RESPECT OF CHARGE NO.
FHC/ABJ/CR/268/17 AND FCT/HC/CR/124/2017 MALABU OIL & GAS
LTD
May I refer Your Excellency to the above subject matter,
please.
2. This case file was received from the EFCC in a letter dated
21st December, 2016 for vetting and further directive. Having fully
examined the entire case file I am inclined to request you to note
the following and direct accordingly.
3. A curious observation of the entire Malabu story clearly
indicates that there are the civil and criminal aspects to the
case.
4. The civil aspect bothers on the skirmishes between the
directors of the company which led to the claims that shares of the
same directors were divested without their consent thereby taking
over their interest. Having examined the cases it is important to
note that the cases are pending before the courts and therefore
sub-judice; the FGN should await the outcome of the cases- Suit No.
FHC/ABJ/CS/201/2017 MALABU OIL & GAS LTD vs. THE FEDERAL
GOVERNMENT OF NIGERIA AND & 6 ORS; and Suit No.
FHC/ABJ/CS/206/2017 MALABU OIL & GAS LTD vs. MR KWEKU AMAFAGHA
& 9 ORS.
5. In the criminal case, the aggrieved parties through their
lawyers petitioned the EFCC against some directors of Malabu Oil
and Gas alleging fraudulent divestment of their shares and
subsequently depriving them of their benefits in the sale of OPL
245. EFCC investigated the case and filed nine-count charge dated
16th September, 2016.
6. Attached to the charge are a proof of evidence, case summary
and list of witnesses in support of the counts which bother on
fraud, conspiracy and money laundering.
Regarding the criminal charge. Your Excellency is invited to
note that the charge as presently constituted may most likely not
succeed against the parties for the following reasons:
>a. There is nothing to show that the parties as constituted
were at all times working together and having a ‘meeting of minds’
to wit; to forge CAC documents and use same for the purpose of
divesting the shares of the complainants 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 also nothing in the proof of evidence to support the
charge money laundering and it is therefore impossible for the
prosecution to prove the elements which include illicit funds,
transfer for such through various channels to re-introduce same
again into the regular financial system as legitimate funds in
financial institutions etc. Without the express proof of these
elements, the count may not be sustained on the premise of the
attached proof of evidence.
c. The EFCC investigation and attached proof of evidence do not
appear to have clearly revealed the case of fraud against the
parties who claimed to have acted in their official capacities with
the approval of three consecutive presidents of the federal
government of Nigeria at the time with further claim that the
matter was intended to be resolved in national interest thereby
saving the nation acrimonious litigations resulting in high legal
fees and the dormancy of the oil field while litigation lasted.
d. In this regard, the Public Officers Protection Act CAP P41
Laws of the Federation of Nigeria, 2004 limits liability of Public
Officers to a period of three months much naturally come to mind
considering their claim that the acts which are complained of were
authorised by the three presidents before this current
administration.
7.”Your Excellency, the beneficial approach I counsel in the
circumstances is for the federal government to take advantage of
the terms of the agreement under clauses five and 11 to acquire a
stake in the OPL 245 converting it to a production sharing contract
(PSC) between FGN/NNPC, Shell and Agip after negotiating with the
ENI/Shell to absorb the cost of the FGN/NNPC entry under the said
clauses five and 11 through the PSC mechanism,” Mr. Malami
said.
8. The idea of revisiting the settlement agreement which
resulted in the sale of the oil field to SNUD, SNEPCO and NAE is
not workable. It is important in this regard for His Excellency to
note the following:
a. The agreement was executed by the highest authority in
Nigeria and remains sacrosanct unless it is eventually set aside by
the decision of a competent court of law and denying the parties
immediate benefit of reaping the fruit of their investments. The
agreement has its mechanism for compensation in the event of any of
the rights conferred to ENI or SHELL are challenged or violated.
For the FGN to revisit the agreement, the consent of Shell and ENI
will be required.
It is very unlikely that the consent will easily be obtained but
rather they would rely on the protection afforded in the contract,
and any unilateral effort by FGN to vary the terms of the agreement
would probably open up a new bout of litigation, deter further
investment, give rise to a claim for damages and payment of huge
legal fees. Your Excellency may wish to note some of the FGN’s
representations and assurances in the clauses 12, 13 and 17 of the
agreement.
“12. FGN confirms that the terms of this FGN resolution
agreement have been agreed by all the appropriate agencies of the
FGN including the Ministry of Finance and the Federal Inland
Revenue Service.’
“13. FGN acknowledges that, in entering into this FGN resolution
agreement, the other parties have relied on its expressed or
implied representation before the signature of this FGN resolution
agreement regarding the efficacy of the terms thereof.”
“17. FGN shall indemnify, save and hold harmless, and defend
SNUD, SNEPCO and NAE from and against all suits, proceedings,
claims, demands losses and liability of any nature or kind,
including, but not limited to, oil litigation costs, attorneys’
fees, settlement payments, damages, and all other related costs and
expenses, based on, arising out of, related to or in connection
with: (i) this FGN resolution agreement. (ii) the resolution
agreement/ (iii) the issuance of the oil prospecting license in
respect of Block 245 jointly in the name of SNEPCO and NAE and
arising out of any asserted prior interest in Block 245.”
9. The above commitments are binding on the FGN. ENI/Shell
legitimately expects that the FGN would respect the commitments.
Failure by the FGN to respect them would cast Nigeria in a very bad
light internationally and negatively impact the FGN’s quest for
foreign investments. Clearly, potential investors will not have the
confidence to invest in Nigeria if the government of the country is
perceived as one which does not honour its commitments (captured in
an agreement signed by three of its ministers).
10. ENI/Shell claims to have invested in excess of US $2.5
billion in OPL 245 from 2011 to date and as such would seek the
protection of international law, including applicable investment
treaties which prohibit the unreasonable, unfair and inequitable
treatment of their investments and could expose FGN to
international arbitration involving multi-billion dollars
claims.
11. As the FGN/NNPC relies on the provisions of the resolution
agreement, charges preferred against ENI/Shell companies and
employees would necessarily have to be withdrawn as continuing with
the charges will be inconsistent with the spirit of the relevant
clauses of the resolution agreement which will enable FGN to obtain
immediate interest in OPL 245. Regardless, as submitted in
paragraph five and six above, the charges as constituted and filed
by the EFCC are unsustainable.
12. Accept the assurances of my warm regards and loyalty,
always.
Abubakar Malami, SAN
Honourable Attorney-General of the Federation &
Minister of Justice.
DPPA/FMPR/198/17
September 27, 2017.