Still on Malabu: Is FG estopped from pressing charges?

BY ABUBAKAR D. SANI

The Federal Government (FG) has reportedly charged some senior officials of oil giants Shell and Agip, along with two former Ministers – Dan Etete and Mohammed Bello Adoke – some Nigerian companies, including Malabu Oil Co. Ltd., as well as the multinational companies themselves, with corruption arising from the payment of over $1billion (one Billion) US Dollars in connection with Oil Prospecting Licence (OPL) 245. This is the second of such charges, an earlier set, under the Money-Laundering Act, having been filed against the same defendants – with the exception of Shell, Agip and their said officials – in December 2016. The current charges were brought under the Independent Corrupt Practices and other Related Offences, Act 2000.

However, it has since emerged that an agreement made in November, 2006 by the FG through a former Minister of State for Petroleum Resources under the Obasanjo regime, Dr. Edmund Daukoru, explicitly gave Malabu exclusive beneficial interest in and the right of disposal over the said oil block. In return for certain concessions by Malabu, the FG categorically restored Malabu’s pre-existing title to the block, in addition to foreswearing all further claims to the block. What is the legal effect of the agreement? Does it invalidate the charges and/or the purported revocation of the oil block by the FG? The issues are analysed in this piece.

Background

Before going further, however, it is essential to appraise the said agreement. It was made on the 3rd day of November 2006 between Malabu and the FG, and signed on behalf of the FG by the said Dr. Edmund Dankoru, in his capacity as Minister State for Petroleum Resources; it is in respect of OPL 245, whose disposal by Malabu is the subjectmatter of the criminal charges filed by FG against Shell, Agip, Malabu, et al.

The terms of the agreement (titled “Settlement Agreement”) are all-important; they include the following:

–​That in the spirit of an amicable settlement and without any admission of liability , the FGN agrees to re-allocate the oil block known as and covered by oil prospecting license 245 (called OPL 245) to Malabu within 30 (Thirty) days from the date of the Agreement;

–​That the signature bonus for OPL 245 shall be the sum of US$ 210,000,000 (Two Hundred and Ten Million U.S. Dollars) payable by Malabu to the FG. The FGN acknowledged that Malabu had hitherto paid the sum of US$ 2,040,000 to the FGN in respect of this oil block; this sum shall be deducted from the aforesaid signature bonus leaving a balance of US$207, 960,000 to be paid by Malabu to the FGN within 12(twelve) months from the date of the reinstatement of OPL 245 to Malabu;

–​That Malabu is at liberty to assign OPL 245 or any part thereof;

–​That immediately the agreement is executed, Malabu shall withdraw, discoutinue and terminate its appeal No. CA/A/99/M/06 pending against the FGN at the Court of Appeal, Abuja.

A letter, subsequently written by the same Minister on the issue, dated 2nd December, 2006, is similar in content to the agreement – it merely reiterates and conveys the latter.

Legal Effect of the Settlement Agreement

It can be seen that the agreement by the Federal Government to re-allocate OPL 245 to Malabu was subject only to two conditions:

i.​the payment by Malabu of signature bonus in the sum of US$207,960,000; and

ii.​ the withdrawal of Malabu’s case against the FG at the Court of Appeal.

In return, Malabu was granted full proprietory rights over the block – including the right to dispose of or alienate it. It is important to emphasize these conditions because, in my view, the validity of the Federal Government’s present position – including the criminal charges – depends wholly on their legal implication. In other words, it depends, in my view, on whether Malabu paid the signature bonus and withdrew its said appeal. These, in my view, are the absolute minimum conditions precedent to Malabu making a successful claim for the enforcement of the terms of the agreement and, more importantly, for defeating any criminal charges allegedly arising from its disposal of the said oil block.

Assuming Malabu paid the said signature bonus and withdrew its appeal against the FG, I believe the latter is estopped not only from continuing to stake any claim to OPL 245, but – at least from the perspective of the defendants in the criminal charges – from denying that Malabu had the exclusive legal right to dispose of the block. In other words, the Federal Government is estopped from asserting that the divestment by Malabu from OPL 245 and the sum of US1.1 billion paid for it by Shell and Agip were criminal or unlawful – the very essence of the charges laid by the FG in connection with it.

What is Estoppel?

The law on estoppel in Nigeria is codified in Section 169 of the Evidence Act, 2011; it provides thus:

“When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth that thing”.

Of the four kinds of estoppel recognized under Nigerian law (see OYEROGBA vs. OLAOPA (1998) 12 CNJ 122), I believe that by virtue of the said agreement of 3rd November 2006 one of them, estoppel by deed or estoppel by conduct, applies to the relationship between the FG and Malabu and its privies (the other defendants in the criminal charges) vis-à-vis OPL 245. I believe that the conditions laid down by the apex court for the application of the principle in a plethora of cases, exist in this case.

This is because, where one party (in this case, the FG) has by his words or conduct made to the other (in this case Malabu) a promise or assurance (the said agreement) which was intended to affect the legal relations between them and to be acted on accordingly, then once the other party has taken him at his words and acted on it (in this case by Malabu paying the signature bonus and withdrawing its appeal), the law will not allow the one who gave the promise (the FG) afterwards to revert to their previous positions as if no such promise or assurance had been made by him. See ATT-GEN. BENDEL vs ATT-GEN FED. (1981) 10S.C Reprint, pg. 1.

In circumstances not dissimilar to the instant one, in ATT-GEN OF RIVERS STATE vs. ATT-GEN OF AKWA IBOM & ATT-GEN OF THE FED (2011)8 NWLR pt. 1248 pg. 31, the Supreme Court forcefully reiterated the application of estoppel to agreements freely made by parties. In that case, the apex court held that it was inequitable and unconscionable for the Federal Government to renege on an agreement with the Rivers and Akwa Ibom State Governments for the sharing of revenue from certain maritime oil wells. The Court held that the FG was estopped from doing so.

Conclusion

As long as Malabu complied with the terms of its agreement in respect of OPL 245 by paying the signature bonus of US$207,960,000 in addition to withdrawing her appeal against the FG at the Court of Appeal, it would be unconscionable and inequitable for the FG to behave as if it never made the said agreement. Accordingly, the FG cannot now disown the promise it made to Malabu in the agreement, i.e., that the latter was at liberty to assign OPL 245 or any part thereof.

I believe that it is in this light that the receipt by Malabu of the sum of US$1.1 billion from Shell/Agip – through the FG’s own escrow account operated by the Federal Ministry of Justice – must be viewed. If that is done – as I submit forcefully it should be – the irresistible conclusion would be that the charges filed by the FG in connection with the said payment are untenable and invalid. Dr. Daukoru is currently a traditional ruler in Bayelsa State; he has not denied executing the agreement on behalf of the FG.

No court will permit a party to resile from an otherwise valid and binding agreement simply because he or she is no longer comfortable with it. As the apex court aptly put it in ATT-GEN RIVERS vs ATT-GEN OF AKWA IBOM, supra, parties are bound by the terms of an agreement which they freely made, as this is the whole essence of the doctrine of sanctity of contracts or agreements. The apex court added, for effect, that unless that legal principle is strictly applied, great uncertainty will result if a person who appeared to have agreed to certain terms is allowed to escape liability simply by showing that he had no real intention of adhering to those terms.

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