OPL 245: Malami breaks silence on ‘35 percent asset recovery fee’ deal with US firm

Abubakar Malami, attorney-general of the federation (AGF) and minister of justice, has denied the federal government’s involvement in an OPL 245 asset recovery deal entered with Drumcliffe, a US firm.

Drumcliffe, which serves as the litigation funder, established Poplar Falls LLC, a special fund incorporated in Delaware. 

Johnson & Johnson, a law firm hired by the federal government in 2016 for the recovery, had reportedly acted on the instructions of the AGF to sign a new deal with the US litigation firm to receive one-third of the recovered fund in the OPL 245 case.

The Malabu oil deal, which has resulted in a court case over allegations of bribery and corruption, dates back to 2011, when Shell and Eni acquired the massively rich OPL 245 for over $1.3 billion — paying $1.1 billion to take over 100 percent of Malabu’s interest and $210 million to the federal government as signature bonus.

According to a leaked document dated March 5, 2018, the US company is expected to get 35 percent as recovery fee.

“Thirty-five percent to the funder (the recovery percentage) and 65 percent to the counterpart or its designees,” a part of the agreement read. 

But in a message to TheCable on Sunday, Umaru Gwandu, spokesperson of the AGF, said Johnson & Johnson has no power to enter into such a deal on the government’s behalf. 

“The Federal Government of Nigeria has no contract expressly or by remote implications with Poplar Falls LLC and the engagement with Johnson and Johnson vest no power in them to commit the Federal Government of Nigeria to any third party liability,” he wrote. 

Gwandu did not explain if Johnson & Johnson has received instructions from the government not to commit to the agreement. 

He simply asked TheCable to “channel these inquiries” to the law firm.

‘GOVERNMENT IS PLAYING GAMES’

Earlier, in a list of 24 questions, the Human and Environmental Development Agenda (HEDA) and some other civil society organisations (CSOs) had asked Malami to give details of the deal entered with the US firm. 

When asked to react to the AGF’s claim, Olanrewaju Suraju, chairman of HEDA, told TheCable that the government is playing games with the matter. 

“The government, as represented by the office of the AGF, is technically, and most sadly, repeating and not learning from the experience of the past. This government is also playing the game, almost with what we have with P&ID experience, and similar contracts that have launched the country into several embarrassing agreements, contracts and commitments,” he said. 

“The government has outrightly failed to come out openly, officially to defend that Johnson & Johnson does not have the power to go ahead with that commitment made on behalf of the government. 

“These are written statements, and as you can see as published by one of the newspapers, showing that there was that agreement reached between the parties. 

“The Nigerian government and the office of the AGF is not seen during the trial in all of those countries. The only person that is seen is that lawyer who represents Nigeria. And if that lawyer who represents Nigeria commits on behalf of Nigeria to such an egregious and irresponsible amount of percentage, then how else do you want it to be believed that the Nigerian government is ignorant of it?”  

Suraju said the AGF and the ministry of justice were informed about the development, but there has not been any official statement. 

He said upon seeing the leaked contract documents, they had expected the government to come out and say it did not authorise its lawyer to enter into any agreement. 

Beyond getting the 35 percent, Suraju said it was also stated in the agreement that the recovered amount would go into an escrow account and it is from that escrow account that the 35 percent would be withdrawn before the balance is now paid to Nigeria. 

“This is exactly how the people originally behind the OPL 245 created an escrow account in London with JP Morgan where they removed the $1.1billion that was their own corrupt proceeds and only transferred $250 million to Nigeria’s federation account,” he said. 

“This is another design tailored almost like that criminal enterprise that is being prosecuted under the current dispensation. 

“The Nigerian government as represented by the office of the AGF cannot just sit down in a corner and respond verbally that it never authorised the lawyer to do that without showing evidence of either a stern warning to the lawyer and a protest to also the company that is responsible for the litigation fund, to the effect that Nigeria does not operate any escrow account for the purpose of that recovery. And that Nigeria does not give anything outside the peak of 5 percent to any recovery agent.”  

Suraju added that it is possible that elements in the ministry of justice have conspired with the recovery agent.