18 March 2017, Sweetcrude, Abuja – The Abuja division of the Federal High Court has discharged its earlier interim forfeiture order on the Oil Prospecting License (OPL) 245, an oil block which is at the centre of the $1.2bn Malabu oil scam.
Justice John Tsoho took the decision while ruling on an application by Shell Nigeria Exploration & Production Company Ltd and Nigerian Agip Exploration Limited.
The Economic and Financial Crimes Commission (EFCC) had on January 26, 2017, sought and obtained an ex parte order of interim forfeiture of the OPL 245 to the Federal Government pending further investigation and prosecution.
The action of the anti-graft agency followed the filling of charges against some individuals and companies in relation to the $1.1bn scam on December 20, 2016.
The OPL 245 was said to have been originally issued by the Federal Government to Malabu Oil and Gas Limited under shady circumstances before the subsequent transfers that ended with Shell and Agip, which the EFCC described as fraudulent.
In his ruling, Justice Tsoho agreed with submissions of counsel to EFCC, Mr. Johnson Ojogbane, that it was permissible and constitutional for the anti-graft agency to seek an order of interim forfeiture of the OPL 245, being a subject of criminal proceedings earlier instituted on December 20, 2016.
But the court agreed with the contentions of both Shell’s and Agip’s lawyers, Prof. Konyinsola Ajayi (SAN) and Mr Babatunde Fagbohunlu (SAN), respectively, that the ex parte application upon which the interim forfeiture order was sought and obtained was irregular.
While arguing his client’s application on February 27, Ajayi had 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.
According to him, sections 28 and 29 of the EFCC Act, envisage that the ex parte application for interim forfeiture is filed in the name of the EFCC and not its chairman.
“Having been brought by the improper person, the jurisdiction and powers of the court have not been activated,” he said.
He also argued 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.
He argued that under section 28 of the EFCC Act, certain conditions precedent, including arresting of suspects and tracing of the assets had not been complied with before the application for forfeiture was filed.
Earlier in his ruling on Friday, Justice Tsoho, dismissed the application by Malabu Oil and Gas Limited seeking the reopening of arguments of the applications by Agip and Shell.
The court described the application by Malabu, as lawless and constituted an abuse of court process.
It also ruled that with the order of interim forfeiture discharged on Friday, the matter initiated by the EFCC had been closed, adding that any other further dispute relating to the OPL 245 should be resolved through a substantive action.