The Economic and Financial Crimes Commission (EFCC) has stated that it’s investigating former Attorney General of the Federation (AGF) and Justice Minister, Mohammed Adoke (SAN) and a former Finance Minister over a $1.2billion fraud.
Although the EFCC was silent on the identify the ex-Finance Minister, it said the fresh investigation was informed by its discovery of the role Adoke allegedly played in the Malabo Oil deal, through which some prominent Nigerians allegedly defrauded the Federal Government.
The EFCC stated that Adoke is presently being investigated along with “the Finance Minister for fraudulently using Federal Government’s excrow account to receive the bribe money paid by the applicants to Malabu Oil and Gas Ltd.”
The commission made this disclosure in its counter-affidavit in reaction to applications by Nigerian Agip Exploration Limited (NAE) and Shell Nigeria Exploration and Production Company Ltd (SNEPCO), seeking the vacation of orders made by a Federal High Court in Abuja on January 26, 2017 for the temporary forfeiture of Oil Prospecting Licence (OPL) 245, subject of the controversial Malabu Oil deal.
The EFCC first referred to the alleged $1.2b fraud in its application for the temporary forfeiture orders.
It stated, in the application, how Shell, Agip, former Petroleum Minister, Dan Etete, Adoke and others allegedly short-changed the Nigerian government through the Malabu Oil deal.
“Shell and Agip went into a fraudulent agreement with Malabu Oil and Gas in which the companies will pay signature bonus of $210m to the Federal Government of Nigeria while the sum of $1.2b would be paid to the owners of Malabu Oil and Gas Ltd,” it said.
The EFCC added that, contrary to Shell’s claim that the $1.2b was for compensation, the investigation revealed that “the money was a bribe to Dan Etete and his cronies.
“Shell was aware, at the time of consummating this transaction, that Dan Etete, the owner of Malabu Oil and Gas Ltd, was already a convict and hence, was not willing to pay the said sum of $1.2b directly to Dan Etete and or Malabu Oil and Gas Ltd.
“One Mohammed Adoke, who was the Federal Government’s counsel in series of arbitration instituted by Shell in London on the said oil well and, who later became the AGF, conspired with Shell/Agip to route the payment of the said sum of $1.2b bribe money through FG’s excrow account with JP Morgan Chase Bank,” EFCC said.
In its counter-affidavit, which was argued yesterday, the EFCC said, although it has filed charges against Adoke and some others, its fresh investigation was informed by new revelations.
It said investigation so far conducted “revealed that the 1st applicant (Agip) conspired with others to defraud the Federal Government of Nigeria of the sum of $1.2b that should. Rightly have gone to the Federation Account,” it said.
The EFCC added that contrary to claim by Agip and Shell that the forfeiture orders were wrongly granted by the court, its investigation revealed that the applicants (Agip and Shell) and others conspired to fleece the Nigerian government of over $1b in bribery and revenue.
Arguing the counter affidavit yesterday, EFCC’s lawyer, Johnson Ojogbane, urged the court to dismiss the applications by Agip and Shell for lacking in merit.
Ojogbane contended that contrary to the claim by the applicants, OPL 245 was a tangible asset which was a subject of criminal investigation and prosecution.
Ojogbane said, “OPL 245 is an oil block. It is a tangible oil block. The order my lord gave was to prevent any step or action on the oil block,” he said.
Ojogbane contended that the argument by Konyinsola Ajayi (SAN) and Babatunde Fagbohunlu (SAN) for the applicants, on the constitutionality the temporary forfeiture order was completely misconceived.
He added that “Section 44(2)(k) 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. The OPL 245 is a subject of criminal investigation and prosecution. It is not just investigation, there is a charge pending now before this court.
“The application is not just to preserve the res (the subject matter), the activities surrounding OPL 245, is criminal. It can be described as proceeds of crime.
“Other charges will be following. With the forfeiture, we are stopping criminality from progressing,” Ojogbane said.
Ajayi (for Shell) 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, on which the EFCC relied in applying for the forfeiture orders.
Ajayi said: “What we have is a chosen action, a mere licence, an intangible right that is incapable of destruction or being moved. It is a licence over thousands of miles on the ocean. The ocean cannot be destroyed.
“Nothing can be destroyed; nothing can be taken away, nothing can be put under the seal of the EFCC, nothing can be seized by the EFCC,” he said.
Ajayi 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.
Sections 28 and 29 of the EFCC Act, he argued, 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 an improper person, the jurisdiction and powers of the court have not been activated,” he said.
Ajayi further contended 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 contended 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.
Fagbohunlu (for Agip) argued that an order of forfeiture could not be granted through an ex parte motion except through a motion on notice.
He said, “Is it possible for the EFCC to attach and subsequently forfeit asset of a subject in the proceedings which from start to the end is on an exparte basis?“My response is that the answer that my lord should give is an emphatic no,” he said.
Fagbohunlu contended that it was against the spirit of the Constitution for an asset to be seized from someone without being heard.
He added: “Sections 28 and 29 of the EFCC Act do not even purport that the proceedings for forfeiture of an asset can be conducted on ex parte throughout.
“There is nothing in section 28 that says an interim order can be applied for through ex parte.That application has to be on notice.
What then follows is the forfeiture proceedings which can be done ex parte,” Fagbohunlu said.
Justice John Tsoho adjourned to March 13 for ruling.