- Malabu: Court Lifts Forfeiture Order on OPL 24
A Federal High Court in Abuja has discharged its interim forfeiture order on the controversial Oil Prospecting Licence 245, an oil block at the centre of the $1.1bn Malabu oil scam.
Justice John Tsoho had on January 26, 2017 made the order temporarily forfeiting the OPL 245 to the Federal Government.
But the judge discharged the order of interim forfeiture in his ruling on separate applications by Shell Nigeria Exploration & Production Company Limited and Nigerian Agip Exploration Limited.
Both companies were in the possession of the licence for the oil block before the interim forfeiture order.
According to the judge, the order was wrongly made as the Chairman of the Economic and Financial Crimes Commission, in whose name the ex parte application was filed, failed to meet the pre-condition required before filing it.
Justice Tsoho ruled, “Therefore, by the case of Onagoruwa vs IGP, I hold respectively that the Chairman of EFCC failed to meet the pre-condition for making an application for interim attachment of property. The application is, therefore, irregular and the order granted ought to be discharged.
“Accordingly this court granted ex parte on January 26, 2017 on the application of the Chairman of the EFCC is hereby discharged or set aside.
“At this juncture, it is important to advise that with the setting aside of the ex parte order, proceedings in this matter have finally closed.”
He also ruled that with the order of interim forfeiture discharged, the matter initiated by the EFCC had been closed, adding that any other further dispute relating to the OPL 245 should be resolved through fresh actions.
“Those who have other grievances concerning OPL 245 should seek remedy by instituting separation actions as appropriate,” the judge ruled.
Meanwhile, in compliance with the advice of the court, Malabu after the ruling on Friday filed a suit with number FHC/ABJ/CS/20/2017 before the Federal High Court in Abuja, seeking among other prayers, an order restoring to it the “rights to exclusive possession of OPL 245”.
Malabu also wants the court to restrain the EFCC from continuing to treat the OPL 245 as proceed of crime, and also stop the anti-graft agency from interfering with its “right to explore and prospect for petroleum in the area of OPL 245”.
Defendants to the suit are the Federal Government of Nigeria, the Minister of Petroleum Resources, Shell Nigeria Ultra-Deep Limited, Shell Nigeria Exploration and Production Company Limited, Nigerian Agip Exploration Company Limited, EFCC and the Minister of Petroleum in the late Gen. Sani Abacha’s regime, Chief Dan Etete.
The plaintiff, in its writ of summons, claimed that it was registered in 1998 and its subscribers/first directors “are Sani Mohammed, a son of the late military Head of State, Gen. Sani Abacha; Amafagh Kweku and Hindu Hassan, with 10 million, six million and four millions shares, respectively, making up the 20 million share capital of the company.
Malabu stated in its statement of claim accompanying the fresh suit, which it filed through its lawyer, Mr. J. A. Achimugu, that it was granted OPL 245 by the Minister of Petroleum Resources on April 29, 1998 and paid N50,000 as application fees, $10,000 as bid processing fees and part payment of deposit of $2,040,000 as signature bonus.
The OPL 245 was said to have been originally issued by the Federal Government to Malabu Oil and Gas Limited under shady circumstances before subsequent chain of transfers that ended with Shell and Agip through transactions, which the EFCC described as fraudulent.
The EFCC had on December 20, 2016 filed charges against some individuals, including the immediate past Attorney General of the Federation and Minister of Justice, Mr. Mohammed Adoke (SAN), and Etete, as well as companies like Malabu Oil and Gas Limited in relation to the alleged $1.1bn scam.
Relying on the criminal charges earlier filed in December 2016, the EFCC, on January 26, 2017, sought and obtained an ex parte order from Justice Tsoho for interim forfeiture of the OPL 245 to the Federal Government pending further investigation and prosecution.
The EFCC had sought the order of interim forfeiture to subsist pending the completion of investigation and prosecution of some persons and corporate organisations, including Shell and Agip, for offences involving about $1.1bn relating to the transfer of the oil block.
The EFCC earlier this month instituted charges against Shell and Agip in regard to the scam.
In his ruling on Friday, Justice Tsoho agreed with the EFCC, represented by 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.
But the court agreed with the contentions of both Shell 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 the EFCC Act, the Chairman of the agency, in whose name the ex parte application was filed by the anti-graft agency, 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.Justice Tsoho dismissed the application by Malabu Oil and Gas Limited seeking the reopening of arguments on the applications by Agip and Shell.
The court described the application by Malabu as lawless and constituted an abuse of court process.