Malabu: EFCC surrenders, says no evidence of wrongdoing against Adoke, others

The Economic and Financial Crimes Commission (EFCC) has conceded it has no evidence to secure the conviction of key persons and entities facing trial over the Malabu saga, after spending yearsband huge public resources pushing the case at a High Court in Abuja.

It marks a defining juncture in a trial that set out to seek ‘justice’ for Nigeria over the country’s alleged losses in the controversial OPL 245 transaction.

The concession came after the anti-graft agency called 10 witnesses to prove its case of alleged fraud, bribery, and corruption against the defendants in a high-profile trial that has two multinational oil companies as defendants.

The case had been going on for over three years at the Federal Capital Territory (FCT) High Court in Abuja. The prosecution closed its case on October 19, 2023, after calling 10 witnesses.

The anti-graft agency dropped the bombshell of lacking sufficient evidence against key defendants in the case in a fresh court filing it submitted to the trial court on December 20, 2023, in response to a “no-case submission” filed by the defendants.

The defendants, with the no-case submission filing, requested the court terminate the trial midway due to the insufficient evidence they claimed the prosecution adduced to prove its case.

The case has been one of Nigeria’s few legal efforts at home to hold some individuals and corporations accountable in a decades-long saga the EFCC claimed denied the country revenue from the lucrative oil block, OPL 245.

Malabu, a firm incorporated in Nigeria for the purpose of acquiring the OPL 245 asset, was first awarded the oil assets under controversial circumstances in 1998. In a chain of convoluted back-and-forth events, the assets were later transferred to oil giants Shell and Eni, following a 2011 agreement backed by payments of $1.1 billion, a chunk of which prosecutors alleged was passed to some Nigerian officials as bribes.

The EFCC had alleged that Nigeria was shortchanged in the agreement leading to the transfer of the asset to Shell and Eni despite the huge revenue potential of the block.

The then administration of President Muhammadu Buhari, which came on board in 2015, touted the case as one of the worst instances of corruption under previous governments, and vowed to bring perpetrators to justice. Jonathan and his former aides denied wrongdoing, saying the agreement was packaged in the country’s best interest.

Long way to trial

For years, the Nigerian government struggled to bring back from exile Mohammed Adoke, who was the Attorney-General of the Federation (AGF) when the deal on the OPL 245 was struck in 2011, to account for his roles in the matter. Adoke returned to Nigeria in December 2019 and was immediately arrested by the Nigerian authorities.

In January 2020, the federal government, through the EFCC, filed charges, including the one in question, against various parties suspected to be involved in hammering out the agreement.

Among the principal defendants charged in the case was Adoke, a Senior Advocate of Nigeria (SAN) and former AGF, who was accused of receiving a dollar equivalent of N300 million as gratification to facilitate and negotiate the resolution leading to the 2011 settlement agreement against Nigeria’s interests.

They also include the Nigerian subsidiaries of Eni and Shell, which were ceded ownership of the oil block after paying $1.1 billion based on the 2011 agreement. The firms are Eni’s Nigeria Agip Exploration Limited and Shell subsidiaries, Shell Nigeria Ultra-Deep Limited and Shell Nigeria Exploration Production Company Nigeria Limited.

Also charged in the case was Malabu Oil and Gas Limited, which was in 1998 allocated the OPL 245 oil bloc, by the Sani Abacha regime’s Minister of Petroleum, Dauzia Loya Etete, better known as Dan Etete.

The defendants also include Aliyu Abubakar, a businessman accused of serving as a middleman for the distribution of bribes concerning the transaction.

Another of the defendants is Rasky Gbinigie, accused of committing sundry offences, including document falsification aimed at fraudulent alteration of ownership and structures of the shares of Malabu Oil and Gas Limited and fraudulent conversion of funds in the company’s account, offences which he allegedly committed in conspiracy with others. Gbinigie was charged alone in 35 out of the 40 counts.

Also charged along with them is Malabu itself, a firm that has been at the centre of the controversy since 1998.

“Evidence insufficient against Adoke, others”

But of all the defendants, the EFCC said it only has sufficient evidence to successfully prosecute Gbinigie, who is charged as the third defendant.

“Having evaluated the evidence adduced by the ten prosecution witnesses, including the exhibits tendered during the trial, the prosecution has no desire to argue against the no-case submission made by the 1st, 2nd, 4th, 5th, 6th, and 7th defendants with regard to counts 1, 2, 3, 4, and 5.

“The decision is anchored on the paucity of evidence available to sustain any of the ingredients required to establish each of the offences preferred against the six defendants,” the EFCC prosecutor, Offem Uket, wrote in the filing in response to Adoke’s no-case submission.

As a result of this, Uket stated that “it is needless to analyse the evidence adduced vis-à-vis the ingredients of the offences charged in counts 1 to 5, respectively.”

In what implied a call on the court to discharge and possibly acquit the rest of the defendants, Uket stated: “Nevertheless, the prosecution shall contend against the no case submission made by the three defendants in regard to counts 6–40, as overwhelming evidence abounds to warrant this Honourable Court to call upon the 3rd defendant to enter his defence on all 35 counts.”

Adoke’s contention

Adoke’s no-case submission, filed on November 17, 2023, urged the court to discharge and acquit him with respect to the three counts in which his name appeared.

He anchored this prayer on the basis that the prosecution, after closing its case with 10 witnesses, “has not made out any case” against him.

He argued through his lawyer, Kanu Agabi, a SAN and similarly a former AGF, that the EFCC “has not been able to prove the elements of the charges.” He added that it would be pointless and unfair to continue to subject him to trial by directing him to enter his defence.

“Not a single witness called by the prosecution said a single word implicating the 1st defendant,” Agabi wrote.

The prosecution having failed to discharge the burden of proof as expected under Nigeria’s legal regime, Adoke argued, “the journey should end here.”.

In his analysis of the evidence against his client, Agabi faulted the count, accusing Adoke of receiving the dollar equivalent of N300 million from his co-defendant, Abubakar, alleged to be a bribe distributor between parties involved in the OPL 245 deal. The EFCC levelled this allegation in the original charge that was later amended on different occasions, accusing Adoke of receiving the money from Mr Abubakar to facilitate and negotiate the Block 245 Resolution Agreement against the interests of Nigeria.

But Adoke’s lawyer argued that, although the allegation is serious, it was “casually abandoned” by the prosecution.

In the last amended charge, the EFCC alleged that Mr Adoke received gratification of N300 million in the exercise of his official functions, contrary to Section 116(b) of the Penal Code.

Faulting this count and other allegations levelled by the agency as generally vague, Adoke’s lawyer argued that the functions of the office that he was alleged to have exercised were not specified.

“The person who offered the gratification is not specified. The purpose for which the gratification was offered is not stated. Not a single witness mentioned the name of the 1st defendant in connection with this offence,” Agabi added.

The defence lawyer also said his client was charged in one of the counts along with the fourth to seventh defendants that they conspired amongst themselves, as public servants, to disobey a direction of law with intent to cause injury contrary to Section 97(1) of the Penal Code.”

Agabi noted that this could not stand as Adoke’s co-defendants in the count were not public servants.

He added, “The direction of the law alleged to have been disobeyed is not specified. The kind of injury that the defendant is alleged to have intended to cause is not specified. Not a single witness gave any evidence implicating the 1st defendant. The charge is obviously bad for vagueness.”

Further analysing the charges, the senior lawyer faulted the count, alleging that Adoke knowingly disobeyed the direction of the Companies Income Tax Act by intending to save the 5th–7th defendants from charges of tax to which they are liable to the Federal Government through the OPL 245 resolution agreement, contrary to Section 123(c) of the Penal Code.

“Not a single witness mentioned the name of the 1st defendant in connection with this offence,” he said.

Commenting on the overall evidence presented against his client, the lawyer said “essential elements of the offences charged have not been proved” and that “there is no evidence linking the 1st defendant with the commission of the offences charged.”.

Other defendants are likely to have canvassed similar arguments, but their filings have yet to be obtained.

The EFCC prosecutor, Uket, closed the prosecution’s case without calling an additional witness he planned to present in court in October last year.

Moments after the 10th prosecution witness, Ibrahim Ahmed, an investigator with the commission, finished his testimony on October 19, 2023, the prosecutor asked for an adjournment to enable him to produce his last witness.

But four defence lawyers representing six of the seven defendants in the case opposed the request for an adjournment, insisting that it would violate a previous ruling of the court, closing the window for seeking another adjournment against the prosecution.

Paul Erokoro (SAN), also representing Adoke, added that it was too late for the EFCC to ask for any further adjournments.

Wole Olanipekun, a SAN, representing Abubakar, the second defendant, added that while the law gives the parties the opportunity to seek adjournments not more than five times in the course of a trial, the EFCC has so far “enjoyed over 11 adjournments.”.

Except the lawyer representing Malabu, Reuben Atabo, also a SAN, who opted to leave the decision on the prosecutor’s request for adjournment to the discretion of the judge, other defence lawyers—Lawal Shekoni for Gbinigie, Joe-Kyari Gadzama, a SAN, representing Agip, and Oluseye Opasanya, also a SAN, representing the two Shell companies—all objected to the request.

Ruling on the issue, the trial judge, Idris Kutigi, upheld the objection to the request for another adjournment, holding that it was not backed by any cogent reason.

The judge recalled that the defendants were arraigned on January 23, 2020, but that over a period of about three years of the trial, proceedings were adjourned at the instance of the prosecution on 11 occasions, far beyond the limit of five times a party is entitled to under Section 396(5) of the Administration of Criminal Justice Act.

The judge recalled that as far back as May 22, 2023, the prosecution had said it had only three witnesses left and promised to bring them in the following sitting.

“It is obvious here that the prosecution has been given more than ample time to get his witness,” Kutigi said.

He added that even though a fair hearing is key in any well-conducted proceeding, “No parties, including the prosecution, have till eternity to present their case.”

“The implication of how the prosecution has conducted this case is that three witnesses have been called every year the case has lasted in court,” Kutigi said.

He added that the presumption of innocence that defendants are entitled to “will have no meaning if a criminal trial drags on interminably without a decision in reasonable time one way or the other.”

“On the whole, on the basis of the absence of cogent reason to support the application for adjournment and the law, which equally does not support the call for an adjournment, the application for adjournment is refused, and the prosecution is called to proceed with its case,” the judge ruled.

With no witness available in court, Uket was forced to announce a close of the prosecution’s case.

In response, all the defence lawyers said they would be filing a no-case submission on behalf of their clients.

The court gave the defendants 21 days to submit and serve their filings, while the prosecution would also have 21 days from the date of being served with them to file its replies to them.

The judge then adjourned until January 12 (Friday) for adoption.

With the EFCC’s conceding it lacked evidence to secure the conviction of key defendants in the case, it implies the court will be left with no other choice than to rule in favour of suspects. In the same fashion, an Italian court acquitted Shell, Eni, and their managers in a related case in March 2021.

Italian prosecutors alleged that some executives of the companies involved in the Malabu deal knew that much of the $1.1 billion they deposited into an escrow account controlled by the Nigerian government would be disbursed as bribes.

The Malabu saga involved the transfer of about $1.1 billion by Shell and ENI through the Nigerian government to accounts controlled by Etete, who, as the petroleum minister, allocated the oil block to Malabu in 1998.

Eni, Shell and its officials have consistently denied any wrongdoing.

The Italian court ruled in March 2021 that the prosecutors failed to present any evidence of wrongdoing against them.

After a possible discharge or acquittal of Adoke, the oil companies, and other key defendants in the ongoing Nigerian case in Abuja, the fragment of the case that would remain (with Gbinigie as the sole defendant) would focus on the allegation that the Malabu company secretary manipulated Malabu’s share ownership and structure.

In his petition that triggered the EFCC’s investigations into the Malabu saga in 2012, Mohammed Abacha, a son of the late Nigeria’s military leader, complained to the commission about how his directorship in the company was stolen from him through the dubious reallotment of a controlling 10,000 shares he owned at the incorporation of the company in 1998. The company, at its incorporation in 1998, had a total of 20,000 shares, with 10,000 allotted to Abacha and two other persons sharing the remaining 10,000 shares.

But over time, the shares of Malabu were serially restructured and reallotted under controversial circumstances, according to the EFCC, to give Etete the control of the company.