The acquittal of Eni, Royal Dutch Shell and their officials in the Malabu Oil and Gas deal by an Italian Court last Thursday has thrown up fresh call on the Economic and Financial Crime Commission on the need to have a rethink on its ongoing prosecution here in Nigeria. Davidson Iriekpen writes
After more than three years and a total of 74 hearings, an Italian court sitting in Milan last Thursday acquitted energy companies, Eni and Royal Dutch Shell along with a series of past and present managers, including Eni Chief Executive, Claudio Descalzi in one of the oil industry’s biggest corruption scandals.
The trial judge, Marco Tremolada, who read out the judgment in court, held that the companies and defendants had been discharged as there was no case to answer.
Italian prosecutors had alleged corruption in the deal while campaigners said the Federal Government of Nigeria was short-changed in the deal. They said $1.1 billion of the purchase price was siphoned off to politicians and middlemen, including the then Minister of Petroleum, Dan Etete.
They also called for Eni and Shell to be fined and for a number of past and present managers from both companies, including Descalzi, to be jailed.
The defendants all denied any wrongdoing. They said the purchase price for OPL 245 was paid into a Nigerian government account and subsequent transfers were beyond their control.
Recall that on April 9, 1998, the Federal Military Government of Nigeria 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 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 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 $1.8billion. The transactions involved the chains of transfer of the ownership of the OPL 245 covering a lucrative oil field.
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. 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.
Exhibits 19 was a letter written by the AGF to the former 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 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 ruled that 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.
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 the former AGF in that situation acted as an agent of a disclosed principal.
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 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 always vehemently denied taking any bribe 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.
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.
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.
In July 17, 2019, 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.
Even though judgment in Italy can be appealed and only become enforceable once they are final, it has vindicated Adoke who has all long maintained his innocence. It further confirms that his trial in Nigeria is a mere witch-hunt.
While no official comment has come from the federal government and Adoke on the acquittal,it has thrown up fresh challenge to the EFCC to have a rethink on its ongoing prosecution of the same matter here in Nigeria.
This is why the Chairman of Society of Equity and Justice, Frank Idemudia, has demanded that all prosecutions ongoing in Nigeria be dropped. He called for repentance, apology and possible restitution on the part of the persecutors, otherwise posterity will not forgive them. Idemudia said it was shame that the same Adoke that is being vilified and called names is the same man that foreign witnesses in their testimony before a foreign court, testified to the sanctity of his character and integrity.
He wondered why Nigeria does not always appreciate and commend people with good intentions and those who have served the country meritoriously.
“I pray for repentance, apology and possible restitution on the part of your persecutors, lest they rot in the hottest part of hell.”
“Isn’t it an eternal shame to all of us that the same man we vilify and contrive all sorts of stories against is the same man that foreign witnesses in their testimony before a foreign court where there is visible respect for rule of law, justice and fundamental rights are testifying to the sanctity of his character and integrity? he asked.
Also, the Director of a UK-based advocacy group, Friends of Justice, Marcos Williams, said the Federal Government of Nigeria owes Adoke and apology for vilifying him and his detention both in the United Arab Emirates (UAE) and at the EFCC at the behest of Magu. He chided the former EFCC boss for allowing himself to be used against the former AGF.
Williams said since the transaction has been found not tainted but legitimate, the government and the Attorney General of the Federation, Malami should terminate the ongoing trial in Nigeria and apologise to Adoke for the malicious use of state agencies to harass him. He also called for the former AGF to be compensated, adding that likes of Magu should be allowed access power again.
“The Nigerian state owes Adoke an apology for the vilification of his name and the detention both in UAE and EFCC at the behest of Magu who allowed himself to be used savagely against me in order to get confirmation which never came.
“Now that the transaction has been found not tainted but legitimate the government and the HAGF should bite the humble pie and do the needful by terminating the trial and apologising to Adoke for the malicious use of state agencies to harass him and possibly compensate him.
“The USA and the Dutch governments found nothing wrong with the transaction. The EFCC should going forward be wary of some their so-called activists and their dubious antics which is mainly to sustain their grant at the expense of innocent persons’ image and integrity. Stern actions should be taken against false whistleblowers and informants.”