The Federal High Court, Abuja presided over by Justice John Tsoho has reserved ruling for March 13, 2017 whether or not to vacate an interim forfeiture order awarding ownership of Oil Prospecting Licence, OPL 245, owned by former Minister of Petroleum, Dan Etete to the federal government pending the conclusion of investigation and prosecution of entities allegedly involved in the $1.2 billion disputed Malabu oil bloc.
Justice Tsoho had on January 26, 2017 ordered the interim forfeiture following an ex-parte motion by the Economic and Financial Crimes Commission, EFCC, filed before the court.
The court, in granting the motion, directed the Federal Government to take possession of the disputed oil bloc pending conclusion of investigation and prosecution of oil companies and other individuals named in connection with acts of conspiracy, bribery, official corruption and money laundering.
Following the order, Shell Nigeria Exploration Oil Production Company Ltd and Agip Exploration Limited on February 1, 2017 filed two applications asking the court to dismiss or in the alternative set aside the interim order of attachment earlier granted by it.
Arguing the motion Monday, Kayinsola Ajayi, SAN, representing SNEPCO, asked the court to dismiss or vacate the order.
In one of the prayers, he said: “The order that was obtained is supposedly to preserve property or asset. It is the case of the applicant that there is no provision within the EFCC Act Section 24, 26 and 28 that shows that the property can be subject to an order as it is in this case, rather the application is a chosen action, a mere license, an intangible right that is incapable of destruction or being moved”
The learned silk said that the ocean, as property, cannot be moved, destroyed, taken away or dissipated. He noted that nothing can be put in the custody of EFCC or under its seal rather they can only have a chosen action.
Ajayi urged the court to dismiss or strike out the case because it is an abuse of court process and that the case is patently hopeless and an attempt to direct the court to do what it ought not to because it was brought by the Chairman of the EFCC.
Ajayi also told the court that the orders given were attachments and not of forfeiture as Section 28 of the EFCC Act required certain things to be done before the court can be invoked and these conditions must be met, when the conditions of jurisdiction are not satisfied.
In his argument on a motion filed on January 31, 2017, Babatunde Fagbolu, SAN, counsel to Agip Exploration Limited, told the court that Section 28 and 29 of the EFCC Act does not allow the EFCC to confer a right of forfeiture on an ex parte basis. He said according to Section 26, for court to make final forfeiture, there must be an application, an application made according to prescribed rules.
Responding, counsel to EFCC, Johnson Ojobane asked the court to dismiss the applications saying that, “both SAN have a misconception that there is a suit that ought to be dismissed”.
According to him, “there is no suit, but an order that was made by the court”.
Ojogbane said that, OPL 245 is a tangible bloc adding that, the order the court granted was to prevent in the interim any action on the oil bloc which can be taken at any time.
He added that the OPL 245 was a subject of criminal investigation and prosecution with the partners involved, as there was a criminal charge pending before the court. “Activities surrounding the OPL 245 is criminal and can be categorised as proceeds of crime”, Ojogbane said.
On the ex parte application brought by the EFCC chairman, Ojogbane said that, the application “is competent”, adding that the Chairman acted on behalf of the Commission under the mandate of the EFCC Act to act as a body or an individual. He added that OPL was by all intent and purpose an asset in contemplation of the Act and a tangible property.
Ojobane, in urging the court to preserve its order submitted that, “to vacate the order on OPL 245 is a disservice to not only the federal government, but to Nigerians as the order was given properly with facts provided copiously”.