Nigeria: Malabu - AGF Asks EFCC to Determine If Adoke, Etete, Others Have Case to Answer

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Judge's gavel.
26 January 2018

Lagos — The Attorney-General of the Federation (AGF) and Minister for Justice, Abubakar Malami, has called on the acting Chairman of the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu, to thoroughly investigate the resolution of the dispute surrounding Oil Prospecting Licence (OPL) 245 to determine if any offence was committed by the parties already charged before the court.

This is contained in a letter written by Malami to Magu.

The letter which was dated September 20, 2017, formed parts of the exhibits filed at the Federal High Court in Abuja by the team of lawyers hired by a former Minister for Justice, Mohammed Adoke, who is charged with others for alleged complicity in the handling of the transaction.

In the letter, the justice minister said there was a need to consolidate all the charges.

He said the Malabu case should be investigated "thoroughly in order to satisfy the constituent elements of offences."

According to him, the investigation by the EFCC does not appear to have clearly revealed the case of fraud against the parties in view of their claimed that they acted in their official capacities with purported approval of the president.

The letter read: "Having fully examined the entire case file, I am incline to request you to consider 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 appears to have directly linked 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 gave the following reasons for reaching the above conclusion: "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 forge CAC documents and use it for the purpose of divesting the shares of the complainant and thereafter enter into a settlement agreement with the federal government 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 prove 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.

"I am of the view that 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 following the acts which are complained of unless if the acts were not within the mandate of the functions of the public officer, and your investigation needs to have covered that eventuality in view of the claim that the acts were authorised by the three presidents before this current administration.

"On the above grounds, I am of the considered view that there is the need to consolidate on the charges and the matter be thoroughly investigated especially regarding the allegations of wrongdoing in connection with the $ 1.1 billion in order to satisfy the constituent elements of offences.

"You are to also take steps to urgently file an application fora worldwide mareva injunction and or the forfeiture of the assets of the beneficiaries of the $1.1billion pending the conclusion of your investigation in the areas above stated."

Adoke and a former minister of petroleum resources Dan Etete are among those charged with conspiracy and other offences in the handling of the $1.1 billion paid as settlement for the dispute that arose after the federal government revoked the OPL.

Both Adoke and Etete denied any wrong doing.

Adoke even filed a separate action seeking a judicial interpretation of the legality of obeying presidential directives concerning the sale of the oil block to Shell and Eni by Malabu Oil and Gas in 2011.

The case has been fixed for February 23, 2018 for ruling.

Adoke asked the court to declare his prosecution by the EFCC illegal.

He also asked the court to declare that he acted on the orders of ex-President Goodluck Jonathan and therefore was not liable.

However, Malami, in opposing the case, asked the court to dismiss the suit.

The justice minister said Adoke must face trial.

At the court thursday, Kanu Agabi SAN, counsel to Adoke, argued that his client was acting on the orders of the president.

Agabi, himself a former Attorney General of the then Federation and Minister for Justice said: "We operate a presidential system where all executive powers are vested on one man.

"It is dictatorial under the constitution and all powers are exercised by him. These dictatorial power enable him to take decisive actions.

"He takes action for his minister and if ithe actions fails he takes the blame."

The former minister wondered why a minister who obeyed the president's directive would be punished for wrongdoing.

"We are in peril because of our obedience. We ask your lordship to resolve the matter in our favour," Agabi said.

On his part, Dapo Apata, counsel to Malami, said the Adoke should not use the court as a shield from prosecution.

The trial judge, Mrs Binta Nyako, adjourned the matter to February 28.

Meanwhile, Malami has said he has no regrets meeting with the fugitive former Chairman of the Presidential Task Force on Pensions, Abdulrasheed Maina, in Dubai.

"If hundreds of Mainas believe that they have information to offer as far at the protection of the national interest is concerned, I will meet them and will do so again," Malami said in his first public interview in the current edition of The Interview magazine.

After a spell in exile, Maina who has been accused of stealing N2billion public pension, returned to Nigeria and was re-absorbed into service.

It is widely believed that Maina's meeting with Malami in Dubai two years ago, paved the way for his return and reinstatement, a move that has sparked widespread public outrage.

In the interview, Malami said his meeting was in pursuit of the national interest. "It boils down to whether I have indeed acted or I have not acted," he said.

He added, without naming the specific examples, that information provided by Maina had helped in "solidifying (fraud) cases in terms of conviction" and recovering stolen funds.

Malami said President Muhammadu Buhari came to be aware of his meeting with Maina

much later, "out of a desire to see for his (Buhari's) directives relating to its application for the purpose of blocking leakages associated with the looting of pension funds."

The MD/Editor-In-Chief of The Interview, Azu Ishiekwene, described Malami's interview as "the first real window into the mind of a man who has been central to one of the most vexatious public issues in recent times."

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