OPL 245: Abacha family and Malabu trial scandal

Ten years after an international inquiry into the circumstances surrounding the sale of OPL 245 oil field by Malabu Oil and Gas Limited to Shell and its partners, ENI and Agip, for a princely sum of $1.3 billion following the resolution agreement of 2011 was opened, findings so far have revealed no evidence of corrupt practices on the part of those involved in the deal. And, like a pack of badly arranged cards on a shaky table, the case of criminal prosecution against Mohammed Bello Adoke, Nigeria’s former attorney-general and minister of justice and the man whose legal advice formed part of the processes leading to the resolution agreement of 2011, and international oil giants, Shell, ENI and Agip, over their respective roles in the sale of OPL 245 appears to be collapsing from one international jurisdiction to the other. From Washington to London and Milan, the efforts of the Federal Government and its partners to proceed with the criminal prosecution of Bello Adoke and others have been fruitless and unsuccessful.

In April 2018, a Federal High Court in Nigeria had ruled that Bello Adoke could not be held personally liable for his role in the $1.3 billion Malabu Oil deal and affirmed that his involvement in the resolution agreement of 2011, which paved the way for the acquisition of OPL 245 by Shell and its partners, was in compliance with his constitutional duties. In her ruling, Judge Binta Murtala Nyako said, “The executive powers of the President are exercisable by his ministers. The plaintiff cannot be held personally liable for carrying out the lawful directives of the President.”

Again, in October 2019, the United States Department of Justice closed its inquiry into Shell over its 2011 acquisition of OPL 245 from Malabu Oil for the sum of $1.3 billion without filing any charge against the company, Bello Adoke and any other person involved in the deal for fraud. A statement issued by Shell on the development read: “The U.S. Department of Justice [DoJ] has notified us that it has closed its enquiry into Shell in relation to OPL 245. We understand that this is based on the facts available to DoJ, including on-going legal proceedings in Europe.” In the same vein the U.S. Securities and Exchange Commission also closed its investigation into the OPL 245 matter without indicting any of the persons or entities involved for corrupt practices.

Similarly, in May 2020, an English court, while declining jurisdiction, threw out a case filed before it in 2018 by the Federal Government of Nigeria alleging payments made by Shell and ENI to acquire OPL 245 from Malabu Oil were used for kickbacks and bribes to Nigerian government officials. In his ruling, Justice Butcher maintained that the High Court “must decline jurisdiction over the action against” Shell and the other defendants.

Dubbed the biggest corruption case in Africa, a Milan court, in February this year, acquitted ENI, its chief executive and Shell over charges of fraud with respect to the 2011 $1.3 billion OPL 245 acquisition from Malabu Oil. After three years of trial and 74 court hearings, the presiding judge, Marco Tremolada, said the companies and other defendants had been acquitted as there was no case to answer. Whereas, the judgment of the Milan court is not final and is open to appeal, this latest “no case to answer” verdict has brought to the fore the need to dig deeper and unearth the truth behind the falsehood upon which the entire OPL 245 corrupt acquisition case is built in order to understand why it has serially failed the test of judicial scrutiny.

Contrary to the entrenched narrative that was spun around Shell’s acquisition of OPL 245 from Malabu Oil, which portrayed the deal as a corrupt scheme that was brokered by government officials to defraud Nigeria of $1.3 billion, the deal was purely a private transaction between two business entities, Malabu Oil and Gas Limited and Shell and its partners, ENI and Agip, with the government of Nigeria acting as a mediator. Government’s role as a mediator was necessitated by the need to resolve a lingering dispute over the ownership of the OPL 245 between Malabu Oil and Shell as a result of the double allocation of the same oil field to both companies at different times. And the $1.3 billion that was involved in the transaction was not the money of the Federal Government but a private capital pooled together by Shell and its partners to buy the contentious oil field from Malabu Oil under a willing buyer/willing seller arrangement.

The dispute over the ownership of OPL 245 was created by the President Olusegun Obasanjo administration when, in 2001, it revoked the oil field from Malabu Oil and reallocated it to Shell in 2003, five years after it was originally awarded to the former in 1998 by the Gen. Sani Abacha military regime. Interestingly, the man who emerged from the shadows as the owner of Malabu Oil and challenged the actions of the Obasanjo administration in court was Dan Etete, Nigeria’s oil minister at the time OPL 245 was first allocated. Discernibly, Etete, as oil minister, had awarded to a company in which he had interest a deep offshore oil field covering an area of over 1,000m bsl with a proven reserve of approximately nine billion barrels of oil reserves and a daily production capacity of 170,000 bpd. OPL 245 is a very lucrative oil field with a market value of about $15 billion at the time of its sale in 2011.

Curiously, before Etete and his Malabu Oil could exhaust every judicial channel to reclaim their revoked OPL 245, the Obasanjo administration opted for an out-of-court settlement in 2006. Under the terms of the 2006 agreement, OPL 245 was fully restored to Malabu Oil with authority to with the oil field whatever it pleased. The execution of this agreement became binding on the Federal Government when it was reduced to a consent judgment.

However, while the Federal Government had restored OPL 245 to Malabu Oil in 2006, the same government left Shell with its valid 2003 allocation of the same oil field, a clear case of double allocation of OPL 245 to two different oil companies, which triggered an intense dispute over the ownership of the oil field. Shell headed to the International Centre for Settlements of Investments Dispute [ICSID] in Washington with a $2 billion claim against the Nigerian government as compensation for its investment in de-risking OPL 245 to make it commercially viable. The dispute lingered for the next five years, until 2011, when the President Goodluck Jonathan administration came up with a resolution agreement that was endorsed by all contending parties.

The successful execution of the resolution agreement saw Shell agreeing to buy out the interest of Malabu Oil for the sum of $1.3 billion, despite having a valid allocation over OPL 245 since 2003, and Malabu Oil accepting an amount of money that was far less than what the company would have earned if it had embarked on the commercial exploration of an oil field worth more than $15 billion, over which it also had a valid claim as clearly spelt out in the settlement agreement of 2006. It allowed the Federal Government of Nigeria  the rare privilege of having its cake and eating it.

Due to the special circumstances surrounding this transaction, Shell and its partners had to pay the $1.3 billion into a Federal Government of Nigeria escrow account with JP Morgan, from where it was transferred to Malabu Oil after the company endorsed its own part of the resolution agreement.

There was also the problem of mistrust between Malabu Oil and Shell. Malabu Oil had engaged Shell as its technical partner before the revocation from the former and re-allocation to the latter. Understandably, Malabu Oil felt aggrieved with Shell and could no longer trust a partner that went behind it to possess its possession. Hence, the third party intervention by the government of Nigeria to free the locked-down oil field to boost the country’s economy.

  In addition to the fact that government retained a 50% production sharing stake in the oil field, the earning of a signature bonus of $210 million to Nigeria from the $1.3 billion deal was the icing on the cake. The successful execution of the resolution agreement of 2011, which was affirmed by the Ministry of Petroleum, Department of Petroleum Resources, NNPC and other stakeholders in conformity with Nigeria’s oil and gas law as well as industry practices, not only resolved the dispute but also saved Nigeria from a costly Washington arbitration, freed the oil field up for commercial exploitation and earned for the Nigerian federation the highest ever paid signature bonus of $210 million.

And now the big question: how did Bello Adoke, a man whose legal advice as attorney-general and minister of justice helped extricate the Nigerian government from a mess it created without paying a dime in penalties but actually earned $210 million signature bonus end up in the dock, slammed with corruption charges? The answer is not because the 2011 $1.3 billion Malabu Oil deal defrauded the Nigerian government but because of what was contained in a certain petition that was written to the Economic and Financial Crimes Commission (EFCC) against Etete by a law firm that goes by the name AA UMAR and CO on behalf of Pecos Energy Limited and Mohammed Sani [Abacha] in January 2012. 

In a fresh twist to the entire Malabu Oil saga, the Abacha family suddenly emerged from behind the clouds to lay claim to the ownership of Malabu Oil and Gas Limited and OPL 245 that belonged to it. In their petition to EFCC, the Abacha family accused Etete and his other associates of sundry crimes, including forgery, criminal conspiracy and a fraudulent restructuring of the shareholding structure of Malabu Oil sometime between 1998 and 2001, which replaced Mohammed Sani Abacha  and his allies as majority shareholders with Etete and his acolytes. Consequently, the Abacha family went ahead to distance themselves from the $1.3 billion executed by Etete on behalf of Malabu Oil, claiming that Shell and its partners, ENI and Agip actually bought stolen goods from Nigeria’s former oil minister. It would seem in this instance that Nigeria’s most notorious rogue family, whose looted funds are still being repatriated in tranches from various offshore private accounts in the over two decades after the demise of their roguish patriarch, is accusing Etete of stealing from them the stolen oil mineral asset of the Nigerian people.

It was on the basis of the claims in the Abacha petition that the EFCC, under the leadership of Ibrahim Magu, launched a criminal prosecution into a case that was ordinarily a civil shareholders’ dispute over the ownership of Malabu Oil. To put it simply, Magu’s EFCC got the government of Nigeria into prosecuting Bello Adoke and others on behalf of the Abachas in their desperate bid to retrieve a stolen oil mineral asset they stole from the Nigerian people.

Without evidence of bribery, corruption, money laundry and theft, most of the charges filed against the accused persons in multiple courts in Nigeria border more on their alleged conspiracy to fraudulently take over the ownership of Malabu Oil from Mohammad Sani Abacha [Complainant] and a closer examination of the case file reveals no corruption charged on Malabu Oil and Gas Ltd in relation to the $1.3 billion deal. Like a leper who boasted that if he can’t lift a cup of tea from the table he can well push it off the table, the Abacha family appears determined to ensure that if they can’t have OPL 245 no one else can have it. And It would seem that Magu’s EFCC was only out to scandalize, harass, embarrass and punish the accused persons into yielding to the demands of the Abacha family for their share of the proceeds of the sale of OPL 245. In fact, looking at the case before him, Justice Iyang Ekwo of the Abuja division of the Federal High Court cautioned the media against reporting the case before him as that of “Malabu Oil trial,” as there was no such matter in his court.   

Against the advice of Nigeria’s current attorney-general and minister of justice, Abubakar Malami, the decision of Magu’s EFCC to build a criminal case of bribery, money laundering and forgery on a civil matter of shareholders’ dispute over the ownership of Malabu Oil is responsible for the scandal that is now rocking the malicious trial of those involved in the deal across the world. Recall that, in 2017, Nigeria’s chief law officer, Abubakar Malami, had given a legal advice to Magu’s EFCC thus: “Having fully examined the entire case file, I am inclined to request you to reconsider the charge in relation to the composition of the parties, the offences, the proof of evidence and the case summary in view of the fact that nothing in the proof of evidence appears to have directly linked the parties to the offences as charged.”

Malami had also stated clearly, “A curious observation of the entire file clearly indicates that the proof of evidence is unlikely to support the counts which border on fraud, conspiracy and money laundering.”

While the role of Magu’s EFCC appears to be in furtherance of the agenda  of the Abacha family to recover their stolen property, could the same be said of some civil society organisations and their allies in the media? Could the deliberate dissemination of disinformation, misinformation, falsehood, innuendoes about the Malabu deal and the corrupt characterisation of the individuals and entities by some of these CSOs and their media allies be part of an elaborate Abacha scheme to give a dog a bad name in order to hang it?