By Abubakar D. Sani
IN what is quickly becoming a consistent pattern in the Federal Government’s serial attempts to ‘nail’ the immediate past Attorney- General of the Federation, Mohammed Bello Adoke, in connection with his role in the resolution of the Oil Prospecting Licence, OPL, 245 saga, a British Court, recently threw out the government’s bid to compel a British Bank, JP Morgan Chase, to refund about U$1.1 billion which the latter had paid out on behalf of the Government, to Malabu Oil and Gas Co. Ltd, between 2011 and 2013.
From the certified copy of the court’s judgment it is clear that the Federal Government grossly over-estimated its chances of success in the case, as it sought (based on flawed legal advice) to fix JP Morgan Chase with a duty of care which the court found was unfounded in the circumstances.
The court threw out all its claims, specifically the series of damaging allegations against Mr. Adoke.
Prior to the said judgment, an Italian Court, had, in related proceedings, in February 2017, charged a number of current or former officers/employees of companies in oil and gas giants Eni and Shell (as well as former Nigerian Oil Minister, Dan Etete) with international bribery arising from the circumstances in which those companies had acquired their interests in Block 245 under the 2011 Resolution Agreements. In March 2018, the Federal Government joined the proceedings as a civil claimant.
Even though Mr. Adoke was not a party to these proceedings, his name featured prominently therein, as the Federal Government apparently sought to ‘scape goat’ him for what it perceived to be its loss. Mr. Adoke has consistently denied any wrongdoing. In March 2021, all the defendants in the case were acquitted of all charges (vide judgment released on June 9, 2021). Significantly, for our purposes, theFederal Government’s civil claims were also dismissed.
On April 13, 2018, a Federal High Court, sitting in Abuja, held that Mr. Adoke could not be held personally liable in respect of the payments to Malabu (and any other role he played in that transaction), because he was merely carrying out the lawful directives and approvals of President Goodluck Jonathan.
Even though the essence of the claim was the alleged negligence and breach of a duty of care owed by the Nigerian Government’s bankers, JP Morgan Chase to it in relation to the payments which the latter made to Malabu, Mr. Adoke featured prominently in the court processes filed by the Government as well as its evidence.
As the court observed, “the critical issue of fact in the case, is whether Resolution Agreements (allegedly authored by Mr. Adoke, the basis upon which the payments to Malabu were made) were themselves part of a fraud”.
Given the government’s charge that Mr. Adoke’s “fingerprints were all over” the Resolution Agreements, the court considered that it is “necessary to evaluate whether (i) Mr. Adoke went beyond what one might expect if he were innocently promoting the settlement and (ii) whether there is anything in his actions which denotes a guilty involvement”. The court observed that: “it has been explicitly accepted by the FRN that its case in this action cannot succeed unless it can prove fraud in relation to the Resolution Agreements. Here it is the bonafides of Mr. Adoke which is in issue”.
Continuing, the court noted that the “FRN’s factual case had two main elements: What it sees as clear evidence of corruption on the part of Mr. Adoke and specifically a trail of money from the payments made under the Resolution Agreements which they submit leads directly to Mr. Adoke”. The court, however, agreed with the bank (JP Morgan Chase) that “since (Mr. Adoke) was Attorney-General and the agreements (if honest) settled a long running legal dispute, this cannot of itself be seen as surprising or sinister”. Accordingly, the court considered it “necessary to evaluate whether (i) Mr. Adoke went beyond what one might expect if he were innocently promoting the settlement and (ii) whether there is anything in his actions which denotes a guilty involvement”.
The Federal Government made a number of specific allegations against Mr. Adoke to justify it’s inference that the Resolution Agreements (which he allegedly authored) were fraudulent and corrupt. However, each of them, in turn, was separately considered and categorically rejected by the court, as follows: Mr. Adoke’s alleged proactiveness in saving the deal by proposing an alternative transaction structure which would not require Shell and Eni to transact with Malabu.
The court, however, held that this could not stand alone, being “equally consistent with a wish to see a deal which he honestly believed to be in the country’s best interests done”; That Mr. Adoke’s letter of April 4, 2011, inviting President Jonathan to approve the Resolution Agreements did not make any mention of the objections which had been raised to the transactions.
The court pointed out that “those concerns largely did not go to resolving the Malabu imbroglio, but rather to the commercial terms with the new partners”, adding that, it did “not appear a particular pointer to fraud”; Mr. Adoke’s alleged knowledge of Mr. Etete’s ownership of Malabu and the supposed self-grant to him of OPL 245.
The court held that this was “hardly surprising (because) this knowledge appears to have been common currency”; That the Resolution Agreements did not represent a good outcome for the FG. Even though the court conceded that it couldn’t definitively “judge this point”, it, however, noted that that argument would “ignore the situation which existed (namely) the hideous web of litigation which the Malabu grant and revocation and later actions have spawned, doubtless all conducted at enormous cost and requiring considerable input from ministers and civil servants”. All of these, according to the court, “would seem to provide a very powerful incentive for even a costly resolution”.
•Sani, a lawyer, wrote from Kano State