Royal Dutch Shell Plc  .com Rotating Header Image

Latest OPL 245 News 25 Jan 2019

Although Shell and ENI initially claimed they did not know the money would end up with Mr Etete and his cronies, evidence has shown that claim to be false. Shell, Eni, Mr Etete and several officials of the oil firms are also being prosecuted in Italy for their roles in the scandal.

Malabu Scandal: How AGF Malami’s controversial letter threatened trial of Etete, Shell in Italy

A controversial letter by Nigeria’s attorney general, Abubakar Malami, almost frustrated the corruption trial of two multinationals in Italy.

PREMIUM TIMES reported how Mr Malami wrote the letter to President Muhammadu Buhari recommendending the stoppage of the trial of suspects involved in the Malabu OPL 245 scandal.

The anti-graft agency is prosecuting Shell, ENI, ex-petroleum minister Dan Etete, Mr Adoke and others for their roles in the scandal. Unlike the Italian trial, the trial of the suspects in Nigeria has been largely stalled due to the EFCC’s inability to serve court papers on former Attorney General Mohammed Adoke, former Minister Dan Etete, and controversial businessman Abubakar Aliyu.

The Malabu scandal involved the transfer of about $1.1 billion by Shell and ENI through the Nigerian government to accounts controlled by Mr Etete and Mr Aliyu. About half the money went to Mr Aliyu’s accounts. Anti-corruption investigators and activists suspect he fronted for top officials of the Goodluck Jonathan administration.

The transaction was authorised in 2011 by President Goodluck Jonathan through some of his cabinet ministers. The money was payment for OPL 245, one of Nigeria’s richest oil blocks.

Although Shell and ENI initially claimed they did not know the money would end up with Mr Etete and his cronies, evidence has shown that claim to be false.

Shell, Eni, Mr Etete and several officials of the oil firms are also being prosecuted in Italy for their roles in the scandal.

During the Italian trial on Tuesday, a lawyer to Mr Etete tried to use Mr Malami’s letter as evidence his client did no wrong in the deal.

In his letter to Mr Buhari, Mr Malami said following due examination of the case files. he was able to determine that the EFCC has no significant evidence to prove its allegations of sharp practices against Mr Adoke, Mr Etete and others.

Mr Malami’s claim has since been punctured by the EFCC, whose official testified before the Italian court in Milan on Wednesday.

The EFCC investigator, Ibrahim Ahmed, told the Milan court that the allocation of OPL 245 in 1998 to Malabu, a company owned under false identity by Mr Etete (using a fictional character, Kweku Amafegha) and Mohammed Abacha, violated all extant laws guiding the allocation of oil blocks in Nigeria at the material time.

Mr Ahmed graphically described how Mr Etete manipulated Malabu’s shares. He also named two businessmen, Oyewole Fasawe and Gabriel Volpi of Intel, of paying about $5 million to own part of Malabu.

He said the payment was made without the knowledge of Mohammed Abacha, an original holder of 50 per cent shares of Malabu from inception.

Mr Abacha is a son of the late military dictator, Sani Abacha. It was during Mr Abacha’s dictatorship that Mr Etete, as petroleum minister, awarded OPL 245 to Malabu in 1998.

THE ETETE GAMBLE

Under cross-examination, the lawyer to Mr Etete presented a newspaper report of the letter written by Mr Malami as evidence his client did no wrong.

The prosecutor, Fabio Depasquale, objected to the use of the newspaper article or report of the letter. The court president requested five minutes break to rule on the objection.

At resumption, the judge upheld the objection of the prosecutor and the evidence was rejected.

The lawyer to Mr Etete, obviously relying on the letter for his cross-examination, abruptly withdrew from further cross-examination after the court’s ruling.

Without the timely objection of the prosecutor, Mr Malami would have subjected the country to another round of international embarrassment, like what happened during the case instituted against the federal government by Mr Adoke, said activist Lanre Suraj, who has been monitoring the Italian trial.

“If the report had been admitted, the prosecutor had planned to embarrass Mr Malami by tendering in evidence President Muhammadu Buhari’s reply where he turned down the disgraceful legal advice,” Mr Suraj said.

SOURCE

Malabu Scandal: AGF Malami writes Buhari, wants trial of Adoke, Diezani, others stopped — FULL LETTER

The Attorney-General of the Federation, Abubakar Malami, has written to President Muhammadu Buhari, urging him to back off on his administration’s legal battles against the principal actors in the controversial Malabu Oil deal.

The raging scandal over the OPL 245 oil block began in 2011 when the Goodluck Jonathan administration approved its purchase by Shell and Agip-Eni from Malabu Oil and Gas Ltd., a suspected briefcase firm with ties to Dan Etete, a convicted criminal who was Nigeria’s petroleum minister from 1995 to 1998.

The Jonathan administration officials who participated in the negotiation preceding the controversial sale of the massive oil block included Mohammed Bello Adoke, Attorney-General at the time; and Diezani Alison-Madueke, who was petroleum minister.

Mr. Jonathan himself was named by investigators as being involved in the alleged fraud, but the former president strongly denies the charges.

The Economic and Financial Crimes Commission has been pursuing fraud and criminal conspiracy charges against Mr. Adoke, Mr. Etete and their alleged accomplices since 2016. Messrs. Adoke and Etete are believed to be at large, and the anti-graft agency had repeatedly sought to fish them out.

Messrs Adoke, Etete, Alison-Madueke and all other officials named in the scandal have denied wrongdoings.Okowa Campaign AD

Mr. Adoke said the sale was approved to save Nigeria from huge financial losses that could arise from international arbitration lawsuits.

In his letter to Mr. Buhari, Mr. Malami said, following due examination of the case files. he was able to determine that the EFCC has no significant evidence to prove its allegations of sharp practices against prominent players like Bello Adoke, Diezani Alison-Madueke and others.

Besides, Mr. Malami said, the Nigerian government risks being portrayed before the international community and foreign investors as an unserious country that could not be trusted to live up to its obligations to international partners.

“Clearly, potential investors will not have the confidence to invest in Nigeria if the government of the country is perceived as one which does not honour its commitments,” Mr. Malami said of the OPL 245 oil deal which was approved by at least three former Nigerian Attorney-Generals.

The September 27, 2017 letter advised the president to pursue Nigeria’s possible investment in the disputed oil blocks rather than trying to repossess it or prosecute former Nigerian government officials or Shell or Agip-Eni chiefs involved in the deal.

PREMIUM TIMES recently obtained a copy of the letter, but excerpts of it were published by The Cable earlier this month.

It came as the EFCC ramps up legal efforts towards bringing Mr. Adoke back into Nigeria to face prosecution.

But Mr. Malami insisted that the anti-graft office is on a wild goose chase and that the president should immediately intervene to save Nigeria from international embarrassment and reputation damage.

“There is nothing to show that the parties as constituted were at all times working together and having ‘meeting of the mind’ to wit to forge CAC documents and use some for the purpose of divesting the shares of the complainants and thereafter enter into a settlement agreement with FGN and other parties to take delivery of the proceeds of sale OPL 245.

“There is also nothing in the proof of evidence to support the charge money laundering and it is therefore impossible for the prosecution to prove the elements which include illicit funds, transfer for such through various channels to re-introduce same again into the regular financial system as legitimate funds in financial institutions etc.

“Without the express proof of these elements, the count may not be sustained on the premise of the attached proof of evidence.

“The EFCC investigation and attached proof of evidence do not appear to have clearly revealed the case of fraud against the parties who claimed to have acted in their official capacities with the approval of three consecutive presidents of the federal government of Nigeria at the time with further claim that the matter was intended to be resolved in national interest thereby saving the nation acrimonious litigations resulting in high legal fees and the dormancy of the oil field while litigation lasted,” Mr. Malami said.

Mr. Malami said Nigeria should take advantage of some favourable clauses in the agreement that allowed for government’s ownership of a part of the oil field.

“Your Excellency, the beneficial approach I counsel in the circumstances is for the federal government to take advantage of the terms of the agreement under clauses five and 11 to acquire a stake in the OPL 245 converting it to a production sharing contract (PSC) between FGN/NNPC, Shell and Agip after negotiating with the ENI/Shell to absorb the cost of the FGN/NNPC entry under the said clauses five and 11 through the PSC mechanism,” Mr. Malami said.

The Nigerian government, through the EFCC, has been trying to take possession of the lucrative oil deal, estimated to hold more than nine billion barrels of crude.

However, the Minister of State for Petroleum, Ibe Kachikwu, has been mounting pressure on the administration to allow Agip-Eni continue development of some parts of the field.

“Total investment from Agip involved in both the Zabazaba field, the power plant and the new refinery is in excess of $15 billion. That is major push in terms of our search for investment,’’ Mr. Kachikwu said after emerging from another meeting with then-Acting President Yemi Osinbajo at the State House on May 9, 2017.

The confusion in Nigeria over the scandal continues as Italian prosecutors are proceeding with criminal charges against Shell executives suspected to be involved in the OPL 245 deal. The prosecutors are also reportedly making progress in their criminal allegations against some Nigerian players named in the scandal.

Read the letter in full below:

RE: FORWARDING OF CASE FILE IN RESPECT OF CHARGE NO. FHC/ABJ/CR/268/17 AND FCT/HC/CR/124/2017 MALABU OIL & GAS LTD

May I refer Your Excellency to the above subject matter, please.

2. This case file was received from the EFCC in a letter dated 21st December, 2016 for vetting and further directive. Having fully examined the entire case file I am inclined to request you to note the following and direct accordingly.

3. A curious observation of the entire Malabu story clearly indicates that there are the civil and criminal aspects to the case.

4. The civil aspect bothers on the skirmishes between the directors of the company which led to the claims that shares of the same directors were divested without their consent thereby taking over their interest. Having examined the cases it is important to note that the cases are pending before the courts and therefore sub-judice; the FGN should await the outcome of the cases- Suit No. FHC/ABJ/CS/201/2017 MALABU OIL & GAS LTD vs. THE FEDERAL GOVERNMENT OF NIGERIA AND & 6 ORS; and Suit No. FHC/ABJ/CS/206/2017 MALABU OIL & GAS LTD vs. MR KWEKU AMAFAGHA & 9 ORS.

5. In the criminal case, the aggrieved parties through their lawyers petitioned the EFCC against some directors of Malabu Oil and Gas alleging fraudulent divestment of their shares and subsequently depriving them of their benefits in the sale of OPL 245. EFCC investigated the case and filed nine-count charge dated 16th September, 2016.

6. Attached to the charge are a proof of evidence, case summary and list of witnesses in support of the counts which bother on fraud, conspiracy and money laundering.

Regarding the criminal charge. Your Excellency is invited to note that the charge as presently constituted may most likely not succeed against the parties for the following reasons:

a. There is nothing to show that the parties as constituted were at all times working together and having a ‘meeting of minds’ to wit; to forge CAC documents and use same for the purpose of divesting the shares of the complainants and thereafter, enter into a settlement agreement with FGN and other parties to take delivery of the proceeds of sale of OPL 245.

b. There is also nothing in the proof of evidence to support the charge money laundering and it is therefore impossible for the prosecution to prove the elements which include illicit funds, transfer for such through various channels to re-introduce same again into the regular financial system as legitimate funds in financial institutions etc. Without the express proof of these elements, the count may not be sustained on the premise of the attached proof of evidence.

c. The EFCC investigation and attached proof of evidence do not appear to have clearly revealed the case of fraud against the parties who claimed to have acted in their official capacities with the approval of three consecutive presidents of the federal government of Nigeria at the time with further claim that the matter was intended to be resolved in national interest thereby saving the nation acrimonious litigations resulting in high legal fees and the dormancy of the oil field while litigation lasted.

d. In this regard, 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 much naturally come to mind considering their claim that the acts which are complained of were authorised by the three presidents before this current administration.

7.”Your Excellency, the beneficial approach I counsel in the circumstances is for the federal government to take advantage of the terms of the agreement under clauses five and 11 to acquire a stake in the OPL 245 converting it to a production sharing contract (PSC) between FGN/NNPC, Shell and Agip after negotiating with the ENI/Shell to absorb the cost of the FGN/NNPC entry under the said clauses five and 11 through the PSC mechanism,” Mr. Malami said.

8. The idea of revisiting the settlement agreement which resulted in the sale of the oil field to SNUD, SNEPCO and NAE is not workable. It is important in this regard for His Excellency to note the following:

a. The agreement was executed by the highest authority in Nigeria and remains sacrosanct unless it is eventually set aside by the decision of a competent court of law and denying the parties immediate benefit of reaping the fruit of their investments. The agreement has its mechanism for compensation in the event of any of the rights conferred to ENI or SHELL are challenged or violated. For the FGN to revisit the agreement, the consent of Shell and ENI will be required.

It is very unlikely that the consent will easily be obtained but rather they would rely on the protection afforded in the contract, and any unilateral effort by FGN to vary the terms of the agreement would probably open up a new bout of litigation, deter further investment, give rise to a claim for damages and payment of huge legal fees. Your Excellency may wish to note some of the FGN’s representations and assurances in the clauses 12, 13 and 17 of the agreement.

“12. FGN confirms that the terms of this FGN resolution agreement have been agreed by all the appropriate agencies of the FGN including the Ministry of Finance and the Federal Inland Revenue Service.’

“13. FGN acknowledges that, in entering into this FGN resolution agreement, the other parties have relied on its expressed or implied representation before the signature of this FGN resolution agreement regarding the efficacy of the terms thereof.”

“17. FGN shall indemnify, save and hold harmless, and defend SNUD, SNEPCO and NAE from and against all suits, proceedings, claims, demands losses and liability of any nature or kind, including, but not limited to, oil litigation costs, attorneys’ fees, settlement payments, damages, and all other related costs and expenses, based on, arising out of, related to or in connection with: (i) this FGN resolution agreement. (ii) the resolution agreement/ (iii) the issuance of the oil prospecting license in respect of Block 245 jointly in the name of SNEPCO and NAE and arising out of any asserted prior interest in Block 245.”

9. The above commitments are binding on the FGN. ENI/Shell legitimately expects that the FGN would respect the commitments. Failure by the FGN to respect them would cast Nigeria in a very bad light internationally and negatively impact the FGN’s quest for foreign investments. Clearly, potential investors will not have the confidence to invest in Nigeria if the government of the country is perceived as one which does not honour its commitments (captured in an agreement signed by three of its ministers).

10. ENI/Shell claims to have invested in excess of US $2.5 billion in OPL 245 from 2011 to date and as such would seek the protection of international law, including applicable investment treaties which prohibit the unreasonable, unfair and inequitable treatment of their investments and could expose FGN to international arbitration involving multi-billion dollars claims.

11. As the FGN/NNPC relies on the provisions of the resolution agreement, charges preferred against ENI/Shell companies and employees would necessarily have to be withdrawn as continuing with the charges will be inconsistent with the spirit of the relevant clauses of the resolution agreement which will enable FGN to obtain immediate interest in OPL 245. Regardless, as submitted in paragraph five and six above, the charges as constituted and filed by the EFCC are unsustainable.

12. Accept the assurances of my warm regards and loyalty, always.

Abubakar Malami, SAN

Honourable Attorney-General of the Federation & Minister of Justice.

DPPA/FMPR/198/17
September 27, 2017.

SOURCE

This website and sisters royaldutchshellgroup.com, shellnazihistory.com, royaldutchshell.website, johndonovan.website, and shellnews.net, are owned by John Donovan. There is also a Wikipedia segment.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Comment Rules

  • Please show respect to the opinions of others no matter how seemingly far-fetched.
  • Abusive, foul language, and/or divisive comments may be deleted without notice.
  • Each blog member is allowed limited comments, as displayed above the comment box.
  • Comments must be limited to the number of words displayed above the comment box.
  • Please limit one comment after any comment posted per post.