Mr. Abubakar Malami, SAN
Honourable Attorney General of the Federation
And Minister of Justice,
Federal Ministry of Justice,
Shehu Shagari Way,
Abuja.
RE: SETTLEMENT OF DISPUTE OVER OWNERSHIP/OPERATION OF OPL 245, BETWEEN
THE FEDERAL GOVERNMENT OF NIGERIA, SHELL NIGERIA ULTRA DEEP AND
MALABU OIL AND GAS LIMITED
May I respectfully present my compliments and once more draw your
attention to the above subject matter, which has continued to engage
the attention of the Economic and Financial Crimes Commission (EFCC)
culminating in the filing of spurious and malicious charges against me
and other named individuals and companies.
I am constrained to write you because I had initially sent you a
Comprehensive Position Paper that I had prepared as far back as 2013
on the issue when you assumed office. I also indicated my readiness to
offer further explanations if the need arose. Having not received such
request for additional explanation, my understanding was that you and
indeed, the FGN were satisfied with the steps taken to implement the
Terms of Settlement and finally resolve the lingering dispute over the
ownership/operation of OPL 245.
However, recent actions of the Economic and Financial Crimes
Commission (EFCC) to impugn the settlement which was done in the
national interest particularly their penchant to suppress facts
relating to the transaction and the filing of criminal charges against
me for conspiracy/ aiding the commission of Money Laundering offence
and the latest allegations of bribe taking reveal very clearly that
either your Office and that of the EFCC are not working in harmony or
that something sinister is going on. Having given you the benefit of
the doubt that you would not sponsor deliberate falsehood against me,
my suspicion is that there is an orchestrated plot by the EFCC to:
deliberately impugn a transaction that has been scrutinized and
approved by at least three past Presidents and three Attorneys
General; drag my name in the mud and paint me with the tar of
corruption in order to attract public odium.
As the Chief Law Officer of the Federation, you have a public duty
to speak on this matter so that Nigerians would know whether I acted
mala fide or abused my office in the entire transaction leading to the
final implementation of the Settlement. Nigerians need to know whether
your predecessors in office from 2006 to May 2015 acted in the
national interest when they brokered and implemented the Settlement.
It will also be instructive for Nigerians to know whether your
predecessors were carrying out their personal agenda or that their
respective actions were carried out with the knowledge and approval of
their respective Principals.
I believe it is your responsibility to explain to the public who
are being sold a fiction that the transaction started from President
Olusegun Obasanjo, GCFR under whose administration the Terms of
Settlement were brokered with Chief Bayo Ojo, SAN, as the then
Attorney General who executed the Terms of Settlement before the
tenure of President Goodluck Ebele Jonathan, GCFR who approved the
final implementation of the Terms of Settlement and my humble self who
executed the resolution agreements. This is more so as the Settlement
and its implementation were situated in the Federal Ministry of
Justice.
Honourable Attorney General of the Federation, your response is
crucial because it has become glaring that the actions of the EFCC in
respect of the transaction are not in the national interest; but
rather in furtherance of a plot to serve the interests of some
powerful families and individuals who are aggrieved by my refusal to
accede to their requests to compel Malabu to pay them certain sums
from the proceeds of its divestment in OPL 245, and the subsequent
re-allocation of the Block to Shell/ENI. You will recall that I had on
several occasions asserted this fact. I am therefore surprised that a
national institution is being used to further the interest of
individuals whose claim or shareholding in Malabu remains shady and
prefer to engage proxies to fight their battles.
The pertinent questions that must be asked are: Why are these
powerful families and individuals reluctant to litigate their dispute
in the law courts if they are confident about their legal claims to
the Shares of Malabu? Why are they intent on using state actors and
institutions for their private benefits? Where were they when Malabu
was negotiating with the FGN from 2006 to 2011 when the Settlement was
finally implemented? Hon. Attorney General, you will be doing
Nigerians a great favour by asking the EFCC, the Abacha Family and
other powerful individuals involved to answer these important
questions.
I respect the Office of the Attorney General of the Federation and
believe that my responsibility towards you as the occupant of that
exalted office is to furnish you with information that would assist
you in the discharge of your functions. Therefore, please permit me to
retrace the history of the Settlement, once more especially as the
EFCC have deliberately excluded vital parts of the transaction from
the public space and are only content on dishing out deliberate
falsehood to the public.
It will be recalled that the Terms of Settlement encapsulating
details of the Settlement between the Federal Government of Nigeria
(FGN) and Malabu Oil & Gas Limited (Malabu) was executed on 30th
November 2006. The Terms of Settlement, which was later, reduced into
a Consent Judgment of the Federal High Court; Abuja was brokered by
our predecessor in office, Chief Bayo Ojo, SAN and signed on behalf of
the Federal Government of Nigeria by the then Honourable Minister of
State, for Petroleum Resources, Dr. Edmund Daukoru, during the
administration of President Olusegun Obasanjo, GCFR.
When I assumed office on 10th April 2010, I inherited a Consent
Judgment, which had undergone the scrutiny of three Presidents and
Attorneys General. I was therefore restricted to the implementation of
the Settlement as the issue of ownership of OPL 245 had already been
resolved in favour of Malabu by the Terms of Settlement dated 30th
November 2006 and the Consent Judgment of the FHC, Abuja. I also
inherited an on-going Investor/State Arbitration at the International
Centre for the Settlement of Investment Dispute (ICSID) in which SNUD
had initiated arbitral proceedings against the FGN claiming damages in
excess of $2 Billion for taking back OPL 245 re-awarded to them when
Malabu’s title was initially revoked by the FGN. SNUD’s claims were
also premised on the fact that they had substantially de-risked the
Block.
Itwill be recalled that in furtherance of the Indigenous
Exploration Programme Policy introduced by the Federal Government in
the early 1990s to encourage effective development of indigenous
capability in the upstream sector of the oil industry, Malabu and
other indigenous Oil and Gas companies were allocated Oil Blocks which
they were expected to develop in partnership with international oil
companies as Technical Partners.
Malabu was allocated OPL 245 in April, 1998 and in accordance with
the terms of the grant; it appointed SNUD as its Technical Partner.
The two companies executed relevant Agreements including a Joint
Operation Agreement in 2001. Records indicate that SNUD took 40%
participating interests in the venture in a farm-in- agreement and
also signed agreement with Malabu as its technical partner for the
venture.
Although, Malabu was issued a licence for Block 245 in April 2001,
the same licence was subsequently revoked by the Federal Government on
2nd July, 2001. Exxon-Mobil and Shell were invited in April 2002 to
bid for OPL 245 despite subsisting contractual agreements between
Malabu and SNUD with respect to OPL 245. Malabu was dissatisfied with
the revocation and contended that the circumstances leading to the
revocation of its licence on Block 245 was less than transparent and
smacked of inducement and connivance from SNUD, its technical partner.
Malabu also contended that the subsequent re-award of OPL 245 to
SNUD by the Federal Government was done under questionable
circumstances. It then petitioned the House of Representatives
Committee on Petroleum to look into the matter. It is apposite to note
that the House of Representatives Committee on Petroleum found no
rational basis for the revocation and reprimanded Shell for its
complicity. The Committee also directed the Federal Government to
withdraw the re-award, it made to Shell and return OPL 245 to Malabu,
the original allotee of the Block.
Malabu also instituted Suit No. FHC/ABJ/CS/420/2003, before the
Federal High Court (FHC), Abuja to enforce its claim to OPL 245.
Although, the suit was struck out by the FHC, Malabu lodged Appeal No.
CA/A/99M/2006 before the Court Appeal, Abuja, Division. During the
pendency of the Appeal, an amicable settlement was entered into
between Malabu and the Federal Government and in compliance with the
Terms of Settlement executed by the Parties on the 30th of November
2006, OPL 245 was fully and completely restored to Malabu in
consideration for its withdrawal of the Appeal. (Copy of the Terms of
Settlement dated 30th November is attached as Annexure ‘A’)
Apparently dissatisfied with the Terms of Settlement between the
Federal Government and Malabu, SNUD commenced arbitral proceedings
against the decision of the Federal Government to restore/re-allocate
OPL 245 to Malabu at the International Centre for the Settlement of
Investment Disputes in Washington DC, and made representations to
government on the impending arbitration. It is instructive to note
that SNUD’s claim before ICSID was in excess of US$ 2 Billion. It also
commenced a suit against the Government before the Federal High Court,
Abuja. (Copy of SNUD’s Claim before ICSID is attached as Annexure ‘B’)
Although, several meetings were held between the Presidency,
Ministry of Petroleum Resources, SNUD and Malabu, to resolve the
dispute, no satisfactory outcome was achieved. Attempts were also made
in 2007 to resolve the dispute by a Committee comprising the
Honourable Minister of State, Petroleum Resources, the Attorney
General of the Federation and Minister of Justice, Minister of Energy,
Group Managing Director, NNPC and DPR, during the administration of
Late President Umaru Musa Yar’Adua GCFR without success.
It is also important to note that SNUD had entered into a
Production Sharing Contract with the NNPC in 2003 upon which their
claim to OPL 245 was anchored and had paid $1Million US Dollars out of
the $210 Million US Dollars signature bonus to the Federal Government,
and kept the balance of $209 Million US dollars in an Escrow Account
with J.P. Morgan jointly managed by the Federal Government of Nigeria
and SNUD pending the resolution of the dispute between Malabu and the
Federal Government.
In 2010, when the administration of President Goodluck Ebele
Jonathan, GCFR came to office, Malabu again, petitioned the Federal
Government to implement the terms of the out-of-court settlement of
30th November 2006 on the basis of which they had discontinued their
Appeal. (Copy of Malabu’s Petition is attached as Annexure ‘C’).
Government also took cognisance of the pending cases instituted by
SNUD against Federal Government of Nigeria (FGN) and/or Malabu,
including Bilateral Investment Treaty (BIT) arbitration No. ARB/ 07/18
pending at the International Centre for the Settlement of Investment
Disputes (ICSID Arbitration) to enforce SNUD’s rights to exclusively
operate Block 245 as Contractor on the basis of the 2003 PSC between
NNPC and SNUD and the financial implications of defending these
actions on the public purse and opted for amicable resolution of the
dispute.
To resolve all the contending claims in a satisfactory and
holistic manner, due regard was given to the Terms of Settlement of
30th November 2006 which had been reduced to Orders of the Court, the
underlying policy of encouraging the participation of indigenous oil
and gas companies in the upstream sector of the oil industry and the
fact that Shell had substantially de-risked Block 245. To accommodate
all these interests, a Resolution Agreement dated 29th April, 2011 was
executed wherein the FGN agreed to resolve all the issues with Malabu
in respect of Block 245 amicably and Malabu also agreed that it would
settle and waive any and all claims to any interest in OPL 245. (Copy
of the Resolution Agreement is attached as Annexure ‘D’).
In furtherance of the Resolution Agreement, SNUD and ENI agreed to
pay Malabu through the Federal Government acting as an obligor, the
sum of US$ 1,092,040,000 Billion in full and final settlement of any
and all claims, interests or rights relating to or in connection with
Block 245 and Malabu agreed to settle and waive any and all claims,
interests or rights relating to or in connection with Block 245 and
also consented to the re-allocation of Block 245 to Nigerian Agip
Exploration Limited (NAE) and Shell Nigeria Exploration and Production
Company Limited (SNEPCO).
It is therefore quite evident from the foregoing that the role
played by the Federal Government, its agencies and officials in
relation to Block 245 was essentially that of facilitator of the
resolution of a long standing dispute between Malabu and SNUD over the
ownership and right to operate Block 245. At all times material to the
resolution of the dispute, the Federal Government was not aware of any
subsisting third party interest in Malabu’s claim to OPL 245 and
neither did any person or company apply to be joined in the
negotiations as an interested party.
I wish to reiterate that the resolution of the lingering dispute
over Block 245 was in furtherance Government’s demonstrable commitment
to attract investment in the oil and gas sector of the economy and
encourage genuine investors (local and foreign) by creating the
enabling environment for their business to thrive. The Office of the
Attorney General superintended over the process to ensure that the
implementation was holistic by ensuring:
(a) that the requisite Presidential Approvals were sought and obtained;
(b) that all the relevant MDAs such the Ministry of Petroleum
Resources, Ministry of Finance, the Department of Petroleum Resources
(DPR), and the Nigerian National Petroleum Corporation (NNPC) were
involved in the resolution and final implementation of the Settlement;
(c) that the relevant Agreements such as OPL 245 Resolution and
Re-allocation Agreements were duly executed by line Ministers and
Departments;
(d) that the Signature bonus was duly paid to the Federal Government
of Nigeria as required by law, and
(e) that disbursements from the escrow account were jointly approved
by the Federal Government and SNUD.
In view of the foregoing, I anxiously want to know where I went
wrong that I have been singled out by the EFCC for prosecution. I also
want to know the effect of section 5 of the Constitution of the
Federal Republic of Nigeria, 1999 as amended with respect to the
vesting of all the Executive powers of the Federation in the President
to exercise by himself and or through his Ministers and appointees.
What is the effect of section 5 of the Constitution on persons who act
pursuant to lawful Presidential approvals? This is more so as two out
of the three Presidents that had the opportunity to scrutinise this
Settlement (Presidents Obasanjo and Jonathan) are alive. Have they
disowned the Settlement? Has our predecessor in Office, Chief Bayo
Ojo, SAN distanced himself from the Settlement he brokered?; Have the
Honourable Ministers of Petroleum Resources and Finance at the time of
implementation of the Settlement (Mrs Diezani Allison-Madueke, CON and
Dr. Olusegun Aganga, respectively) disowned the Settlement or their
signatures? It is my respectful view that Nigerians deserve answers to
these questions as it will help them and my humble self to understand
the actions and the machinations of the EFCC masquerading to be acting
in the national interest while surreptitiously deploying state
resources and machinery to promote the personal agenda of their
cohorts.
Finally, I wish to use this medium to appeal to the Honourable
Attorney General of the Federation to be mindful of his overarching
powers over public prosecution and the need to ensure that state
institutions do not become persecutors or instruments in the hands of
those pursing personal vendetta. The Constitution and the traditions
of our noble profession demand your oversight over public prosecution.
Consequently, if you find that I had breached my Oath of Office or
abused my office, please do not hesitate to bring me to justice.
However, if it is the contrary, as I strongly believe, that certain
individuals who had vowed to even scores with me are now being aided
by state institutions such as the EFCC; I deserve protection from
these unwarranted attacks and dehumanising treatment that I am being
subjected to merely because I chose to serve my fatherland.
Please accept, Honourable Attorney General of the Federation, the
assurances of my highest regards and esteem.
MR. MOHAMMED BELLO ADOKE, SAN, CFR
