By Abubakar D. Sani, Esq
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 (seemingly at all costs) in connection with his role in the resolution of the Oil Prospecting Licence (OPL) 245 saga, a British Court, yesterday, threw out the Government’s bid to compel a British Bank, JP Morgan Chase, to refund about U$1.1 billion US Dollars 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 (which has since gone viral) 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 (which the Government frankly admitted to be the fulcrum of its case). What were those allegations and why the court rejected them shall be examined presently. Before doing that, however, it is necessary to stress that Mr. Adoke, himself, was not a party to the proceedings and the Federal Government sought no reliefs whatsoever against him.
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 FG 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 FG 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 9th June 2021). Significantly, for our purposes, the FG’s civil claims were also dismissed.
On 13th April, 2018, a Federal High Court, sitting in Abuja, held, inter alia, 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.
The London Case
It was against this background that the Federal Government filed the case which was decided by Hon. Justice Cockerill, yesterday. 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 “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:
- Adoke’s causative role in the agreements, characterized by the submission that “his fingerprints were all over it”.
- 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 FG 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:
- 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 4th April, 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”.;
- 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”.
- That Mr. Adoke sought to set up the JP Morgan Chase account as a bi-partite account not naming the beneficiary. The court opined that this was “equally capable of being seen simply as a pragmatic approach to a transaction which on any analysis contained toxic components which might lead to difficulties”, as “the reactions of Shell and Eni would have indicated a real danger that others would not wish to be seen to touch Malabu”.
- That Mr. Adoke sought to push through the payments of the proceeds via a letter to Mr. Aganga dated 24 May 2011, in which the former wrote that the “conditions precedent to the release of the funds had been satisfied and requested that Mr. Aganga instruct JP Morgan Chase to pay the moneys out to Petrol Services’ account at BSI with the utmost urgency”. The court opined that given “the imminence of the cabinet reshuffle (which occurred on 29 May), an urgency to complete business may not have been entirely surprising”;
- Adoke’s continued involvement even when not in office. On this, the court observed that even through “on one analysis this looks sinister”, however “on another, it presents simply as a responsible ex (and future) Minister attempting to manage business which, ex hypothesi, is in the country’s interests in a constructive and efficient manner”.
The court pointed out the fact that “a large number (around 27) Nigerian Ministers and officials considered the proposed deal (including the Accountant General of Nigeria) . . . No allegations are made against any of the 25+ people who were involved in the process.” The judge also dealt with the allegation that “Mr. Adoke caused the payment instructions to be given”. Noting that this argument “was pursued with particular enthusiasm at the point when the FRN’s team was laboring under the misapprehension that “AGF” stood for “Attorney-General of the Federation and not (as transpired) Accountant-General of the Federation”, the court categorically “conclude(d) that Mr. Adoke did not cause the issuing of the payment instructions”.
In drawing the foregoing threads together, the court held that “so far as Mr. Adoke’s role is concerned, the evidence by itself would not seem inconsistent with his role (of) being an entirely honest one. As Attorney-General, one would expect a significant involvement from him – and doing exactly the sorts of things which he was doing. In particular, whenever someone sought justification for the propriety of the payments, it should logically be a government legal officer who responds, as having the requisite expertise, rather than (say) the Minister for Petroleum”.
What more needs be said? Congratulations are certainly in order, as Mr. Adoke has been completely exonerated in a court of law. This is all that is needed for his evitable exoneration in the court of public opinion. As someone once memorably said, it is better for nine guilty men to be set free, than for an innocent man to be jailed.
To the chagrin of his traducers, a British Court has just “discharged and acquitted” Mr. Adoke of the most egregious allegations and insinuations surrounding his tenure as the Attorney-General of the Federation. They should bury their heads in shame.
Abubakar D. Sani, Esq.,Kano – Nigeria, 08034533892
15th June, 2022