28 February 2017, Abuja – The Economic and Financial Crimes Commission has said it is still investigating a former Attorney General of the Federation and Minister of Justice, Mr. Mohammed Adoke (SAN), in relation to the $1.2bn Malabu oil scam.
The anti-graft agency said in a court process filed on Friday that it was investigating Adoke along with an unnamed former Minister of Finance.
According to the EFCC, Adoke and the former Finance Minister conspired to “fraudulently” use “the Federal Government’s escrow account to receive $1.2bn bribe paid by Shell and Agip to Malabu Oil & Gas Limited.”
The EFCC said this in a counter-affidavit, which it filed before Justice John Tsoho of the Federal High Court in Abuja .
The counter-affidavit was filed in opposition to the applications by oil giants, Shell Nigeria Exploration & Production Company Ltd. and Nigerian Agip Exploration Limited, asking the court to discharge its order of interim forfeiture on the controversial Oil Prospecting Licence 245, which is at the centre of the $1.2bn scam.
The OPL 245, an oilfield believed to be the largest in Africa with over nine billion barrels of crude, was said to have been fraudulently acquired from the Federal Government by Malabu Oil and Gas Limited in 1998 and afterwards offered to oil giants, Shell and Agip, in an alleged shady deal.
The EFCC had on December 20, 2016, charged nine suspects, including Adoke, before Justice Ahmed Mohammed of the Federal High Court in Abuja with respect to the $1.2bn scam.
The other accused persons named in the charges were a former Minister of Petroleum, Dan Etete, Aliyu Abubakar, Malabu Oil & Gas Ltd., Rocky Top Resource Ltd., Imperial Union Ltd., Novel Properties & Dev. Co. Ltd., Group Construction Ltd. and Megatech Engineering Ltd.
The anti-graft agency, in the charges with suit number, FHC/ABJ/CR/268/2016, accused Adoke of illegally transferring over $800m purportedly meant for the purchase of the OPL 245 to Etete, Malabu Oil & Gas Limited from a Federal Government account.
The EFCC also accused Aliyu, an oil magnate, who is the Chairman of A. A. Group and Rocky Top Services, of receiving $336,456,906.78.
The EFCC, subsequently on January 26, obtained an ex parte order for the interim forfeiture of the OPL 245 to the Federal Government.
Shell and Agip subsequently applied to Justice Tsoho asking the judge to vacate the interim forfeiture order on the basis that the EFCC obtained the order through suppression of material facts.
Justice Tsoho heard the applications by Shell and Agip as well as the EFCC’s objection to the motions on Monday.
He fixed March 13 for ruling.
In response to the motions by Shell and Agip, the EFCC through its investigator, Mr. Ibrahim Ahmed, stated in the counter-affidavit that OPL 245 was a subject of criminal investigation.
It stated that through the OPL 245 scam, Adoke, then as the AGF, and the unnamed Minister of Finance, fraudulently used the Federal Government’s escrow account to receive $1.2bn bribe allegedly paid by Shell and Agip to Malabu Oil & Gas Limited.
The counter-affidavit stated that Adoke and “the Minister of Finance” were under investigation for the alleged crime.
Arguing the EFCC’s objection to the application for the discharge of the forfeiture order on Monday, the anti-graft agency’s lawyer, Mr. Johnson Ojogbane, urged the court to dismiss the applications for lacking in merit.
Ojogbane said contrary to the contention by the applicants, OPL 245 was a tangible asset which was a subject of criminal investigation and prosecution.
Ojogbane said, “On the constitutionality of the order, the position of the learned SANs is completely misconceived.
“Section 44(2)(k) of the 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.”
Shell, represented by Prof. Konyinsola Ajayi (SAN), 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.
The SAN maintained that by virtue of sections 28 and 29 of the EFCC Act, the Chairman of the 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.
According to him, sections 28 and 29 of the EFCC Act envisage that the ex parte application for interim forfeiture would be filed in the name of the EFCC and not its chairman.
On his part, Agip’s lawyer, Mr. Babatunde Fagbohunlu (SAN), maintained that an order of forfeiture could not be granted through an ex parte motion except through a motion on notice.
He added that according to the EFCC Act, application by the anti-graft agency must be brought under the rules prescribed by the Attorney General of the Federation.
But he said the AGF had yet to prescribe any rules and as such no application for forfeiture could be filed by the commission.
Ruling on the applications was adjourned until March 13.