Mr. Abubakar Malami, SAN
Attorney-General of the Federation,
and Minister for Justice
Federal Ministry of Justice
Plot 71B, Shehu Shagari Way,
Maitama,
Abuja.
Sir,
UNTRUE AND UNFAIR ACCUSATION OF FRAUD/CORRUPTION AGAINST MOHAMMED BELLO ADOKE IN THE CASE OF FEDERAL REPUBLIC OF NIGERIA v. JP MORGAN CHASE N. A.
We represent Mr. Mohammed Bello Adoke, SAN, who has instructed us to once again, draw your attention to news reports, particularly the Sahara Reporters publication of 26th February 2022, which claimed to report the proceedings of 24th February 2022 at the Commercial Court in the United Kingdom in Claim No. CL-2017- 000730, Between FRN and JPMC under the caption “Despite Prosecuting HEDA Chairman For Forgery, Nigerian Government Tells London Court Adoke Sent Email, Called JP Morgan – Sahara Reporters”.
2. Our client has instructed us to bring to your attention, excerpts from the publication under reference:
(a) “The Nigerian Government has informed a court in London, United Kingdom, that a former Attorney-General of the Federation and Minister of Justice, Mohammed Adoke, contacted JP Morgan through phone call and email. The government said this while briefing the High Court of Justice Business and Property Courts of England and Wales Admiralty and Commercial Court in a suit it instituted against JP Morgan Chase Bank, N.A. explaining how Adoke benefitted from the OPL 245 deal”.
(b) “However, the government while briefing the court said Adoke contacted JP Morgan repeatedly and sent an email using the mail of Aliyu Abubakar’s shell company A Group. In a court document exclusively obtained by Sahara Reporters, the Nigerian Government reaffirmed that Adoke telephoned the bank JP Morgan and even sent emails severally using the [email protected] email address”.
(c) “The Nigerian Government also stated that Adoke acted while he was no longer in the ministerial position, an act linked to impersonation and fraud”.
3. Our client has instructed us to also refer you to some of the false depositions made before the High Court of Justice in London in the above-referenced suit:
(a) “Steel J later received a letter addressed to him from the then Attorney-General of Nigeria. This letter was summarised in the judgment and thereby entered the public domain. The Attorney-General explained that the Resolution Agreements had been concluded with the full knowledge of the FGN which believed that they were in the public interest of the Nigeria people for reasons which he set out. They were patently not in the public interest of the Nigerian people, and those individuals in the FGN who were seeking to effect the transfer to Malabu were acting in clear breach of their fiduciary duties to the FRN”.
(b) “On 16th December 2016, the criminal charges of money laundering were brought against Etete and the former Attorney-General, Adoke by the Claimant (FRN), in Nigeria, in connection with the funds. The charges are that the former Attorney-General and Etete committed the offence of money laundering by facilitating the payment of the funds to Etete and Malabu Oil & Gas Limited through the Deposit Account. The case against Adoke and Etete, who are at large, is still pending”.
4. Our client is concerned that you, the Attorney-General of Nigeria, have instructed Counsel in England to the above effect or have allowed those instructions to be given, or allowed those “facts” to be presented in a court of law, when you are fully aware that they are not true. Our client has therefore instructed us to remind you of the true facts, most, if not all of which are already in the public domain:
(a) You had in your letter of 20th September 2017, to the Acting Chairman of the Economic and Financial Crimes Commission titled Re: Forwarding of Case File in Respect of Charge No. FHC/ABJ/CR/268: Malabu Oil and Gas Ltd, written thus: “The EFCC investigation and attached proof of evidence does not appear to have clearly revealed the case of fraud against the parties in view of their claimed acting in their official capacities with purported approval of the President of the FGN at the time and with claimed intentions that the matter be resolved in the national interest to save the nation from acrimonious litigations resulting in high legal fees and the none (sic) production of the oil field while litigation lasted”.
(b) In your letter to the President of the Federal Republic of Nigeria dated 15th September 2017, you had also advised the President that:
“…EFCC investigation and attached proof of evidence do not appear to have clearly revealed the case of fraud against the parties who claimed to have acted in their official capacities with the approval of 3 consecutive Presidents of the Government of Nigeria at the time with further claim that the matter was intended to be resolved in the national interest thereby saving the nation from acrimonious litigations resulting into high legal fees and the dormancy of the oil field while litigation lasted”.
(c) Recall too that Dr. Emmanuel Ibe Kachikwu, the Hon. Minister of State for Petroleum Resources had also appraised the Resolution Agreements and in his letter (Ref. no. MPR/STAHMS/S.26/11) dated 11 December 2017 to the Chief of Staff to the President, while aligning himself with your advice to the President under reference, stated as follows:
“… following the advice of the Attorney General, that the Federal Government is obliged to respect the resolution of the Settlement Agreement entered by the Federal Government with respect to OPL 245 given:
(a) the consistent role of three (3) predecessor Presidents in this matter, and
(b) the potential negative view of Nigeria that may follow should international arbitration ensue from this matter.
My Experience is that the potency of bilateral investment treaties upon which a claim could be made on Nigeria is such that, any attempt to abrogate the Settlement Agreement or take any steps that will undermine its integrity, could prove costly to Nigeria”.
In essence, your colleague in the cabinet of the Federal Government of Nigeria in the person of the Honourable Minister of State for Petroleum Resources, relying on your legal advice to the Government, came to the reasoned conclusion that it was in the national interest to allow all the contending issues to be laid to rest so that Block 245 could be operated for the benefit of the Government.
(d) Relying largely on the Attorney-General’s letter to the Acting Chairman of the EFCC, the Federal High Court of Nigeria in its judgment dated 07/04/2018, delivered by Justice B.F.M Nyako in suit No FHC/ABJ/CS/446/2017, MOHAMMED BELLO ADOKE v. ATTORNEY-GENERAL OF THE FEDERATION, made the following declarations in favour of our client:
(i) “The involvement of the plaintiff in the negotiations leading to the implementation of a Settlement Agreement dated 30th November 2006 between Malabu Oil & Gas Limited and the Federal Government of Nigeria and the eventual execution of Bloc 245 Malabu Resolution Agreement dated 29th April 2011 between the Federal Government of Nigeria and Malabu Oil and Gas Limited was in furtherance of the lawful directives/approval of the President in the exercise of his executive powers.”
(ii) “Any correspondence/instruction to JP Morgan or any other entity and ancillary actions and processes taken by the Plaintiff in furtherance of the implementation of the Settlement Agreement dated 30th November 2006; Block 245 Malabu Agreement dated 29th April 2011; Block 245 SNUD Resolution Agreement date 29th April 2011and Block 245 resolution dated 29th April 2011 were in furtherance of the lawful directives/approvals of the President in the exercise of his executive powers”, and
(iii) “The Plaintiff cannot be held personally liable for carrying out the lawful /approvals of the President while he served as a Minister of the Government of the Federation”.
(e) As you are well aware, the FGN did not appeal that judgement, the legal implication being that the judgment represents the truth of the matters that it decided, for all time. Unfortunately, and contrary to your own legal advice and in defiance of the un-appealed, binding declarations made by the Federal High Court (that our client had no criminal culpability in the OPL 245/Malabu agreements), your office filed charges in another court of coordinate jurisdiction against the parties to the Settlement agreements, with our client as one of the defendants.
(f) You are also aware that even though at the High Court of the Federal Capital Territory, Abuja, you had charged our client with receiving gratification in the sum of N300m from Mr. Aliyu Abubakar on account of OPL 245, your witnesses, including the EFCC investigator, later admitted in sister proceedings at the Federal High Court that the said N300m was not gratification from the Malabu transactions, but the refund of a loan taken by our client from Unity Bank to purchase a house from Mr. Abubakar, with the title documents to the property deposited as an equitable mortgage for the loan. The evidence before the court is that Mr. Abubakar later sold the same property to the Central Bank of Nigeria when our client could not pay the balance of N200m. Your witnesses even produced documents to prove the loan/mortgage transaction and further testified that the N300m refunded by Mr. Abubakar had been used to repay the Bank loan and extinguish the mortgage.
(g) As you know, the Italian Court has discharged and acquitted all defendants, including Mr. Abubakar Aliyu, of the criminal charges that had been filed in that country on account of the OPL 245 Resolution Agreement of 2011, and the prosecutors in that case are being investigated for withholding from the Court, evidence that would have further exonerated the defendants.
(h) You are similarly aware that in February 2021, our client had petitioned the Nigerian Police to investigate the forgery of the email of 21/06/2011 and the fake telephone interview said to have been given by him and to identify the persons that had been responsible for the petition to the Italian authorities that had led to the disastrous prosecution in Milan. Our client had complained that he believed the concoction of evidence against him to have been an unlawful criminal design to unlawfully interfere with the administration of justice in the civil proceedings pending in the Commercial Court in United Kingdom under Claim No. CL-2017-000730 Between FRN v JP Morgan Chase Bank, as well as the criminal trials in Milan/ Nigeria, connected to the OPL 245 Resolution Agreements of 29/04/2011.
(i) At the conclusion of the investigation, the Police in their report dated the 2nd of September 2021, indicted one Olanrewaju Sur Your office then filed charges against that person for forgery of the email that had been falsely sent in the name of our client in order to implicate our client in alleged “fraud” in the payment to Malabu. In spite of the clear findings by the Police, your office later amended the charges in respect of the forged email. From what is now reported of the proceedings in England, it is reasonable to conclude that your office deliberately amended the charge of forgery against Mr. Suraju in order to keep alive the fiction being passed off as truth to the High Court of England – that our client had sent the forged email. It is disheartening that the good name of our country is being associated with such unethical methods in a misguided view of “national interest”. It appears that the office of the Attorney General has embraced the discredited doctrines of “the end justifies the means” and “all is fair in war”. To say the least, this is most regrettable.
(j) Furthermore, you are aware that all the authorised signatories to the escrow account with JP Morgan, who signed the instructions that enabled the payment to Malabu Oil and Gas Limited pursuant to the OPL 245 Resolution Agreement of 2011, are walking freely without any insinuation that they were involved in any fraud or scam. Surely they would all have been facing trial, had there really been fraud in the transaction, not to mention the fact that all the payments to Malabu Oil and Gas Limited were duly approved by the President of the Federal Republic of Nigeria, who has never been accused of wrong-doing in the matter.
(k) More recently (on the 24th of August, 2021), you had in your letter to the present Minister of State for Petroleum Resources, correctly advised the Federal Government that:
“… it is very disheartening that the Field has remained dormant for decades while all issues and litigations connected therewith lasted, with negative economic consequences for the country. Thus, the conversion of OPL 245 to an OML as being sought by ENI/Shell is reasonable, timely and justifiable at this time. The opportunity of the proposed conversion should, as much as possible, be seized to resolve all issues connected to the Field, including the associated prosecution which I had, at some point opined, were, as constituted, not sustainable. This position is in consonance with my previous correspondence to Mr. President on the subject via the letter dated 27th September 2017 ref: DPPA/FMPR/198/17 (herewith attached for ease of reference) wherein I advised in paragraphs 9 and 10 inter alia that:
(i) “9. the above commitments are binding on the FGN. ENI/Shell legitimately expects that the FGN would respect the commitments. Failure by the FGN to respect them would cast Nigeria in a very bad light internationally and negatively impact th e FGN’s quest for international investments. Clearly, potential investors will not have the confidence to invest in Nigeria if the government of the country is perceived as one which does not honour its commitments (as captured in an agreement signed by three of its Ministers)”.
(ii) 10. ENI/Shell claims to have invested in excess of $USD 2.5 billion on OPL 245 from 2011 to date and as such would seek the protection of International Law, including applicable investment treaties which prohibit the unreasonable, unfair, and inequitable treatment of their investment and could expose the FGN to international arbitration involving multi-billion dollars claim”.
“In sum, in the premise of the foregoing, I am of the firm view that, it is in the best interest of the Federal Government and Peoples of Nigeria, to resolve all issues connected with OPL 245, especially the commercial issues, and to expedite the process of converting the OPL to an OML for ENI/SNEPCO thereby taking advantage of the fast-disappearing opportunities in the Oil exploration industry, and attracting other high-net-worth investors that will provide the resources much needed in the Oil industry and by extension our economy at this time.”
While the high quality of the above legal advice to the government is noted, our client finds it remarkable that you are portraying him as corrupt for giving the same advice that you have so wisely given the government. Surely you would not expect a future Attorney-General to say that you too were corrupted by Malabu since you gave the same legal advice that had earlier been given by our client. There can be no doubt that you did the right thing in advising the government to bring the Shell/Malabu dispute to a tidy close so that Nigeria can earn the huge revenue promised by the OPL 245 Oil Field. There is no fraud whatsoever in your legal advice on this point, just as there was none in our client’s.
5. In view of the foregoing, our client wishes to draw your esteemed attention to the grave implications of the Attorney General’s authorisation of the unlawful disobedience of the judgment of the Federal High Court delivered by Justice B.F.M Nyako dated 07 April 2018 in Suit No. FHC/ABJ/CS/446/2017 between Mohammed Bello Adoke vs Attorney General of the Federation by the allegation of corruption made against our client, contrary to the declaratory orders made therein. The sad reality is that this willful disobedience of the judgment of a Nigerian Court by the exalted office of the Attorney General of the Federation charged with the responsibility of protecting the sanctity of the courts and their judgments, has the potential of engendering loss of public confidence in our judiciary and encouraging disrespect for the judgments of Nigerian courts by foreign jurisdictions.
6. Our client is dismayed that the pursuit of ‘National interest’ has now changed from the reasons aptly captured by him in his Comprehensive Position Paper to you on the assumption of the OPL 245 Settlement Agreement and the learned Attorney General’s position as conveyed in his letter to the Hon. Minister of Petroleum Resources under reference. This is more so as the Attorney-General is prepared to allow the name of his predecessor in office to be unjustifiably dragged in the mud, in an effort to deceive a foreign court into believing that our client had acted corruptly. Our client does not believe that it is in the ‘National interest’ to mindlessly damage the reputation of any citizen, on the expectation that the Federal Government will reap a windfall from J.P. Morgan.
7. Our client is addressing this protest to you because it is not possible for you to be unaware that lies are being told about him in court proceedings filed by the Federal Government of Nigeria in the Commercial Court in the United Kingdom and the fact that grave injustice will be done to him if urgent steps are not taken by your office to properly inform and guide the English Court on the facts needed to assist the court to arrive at a just determination of the suit.
8. The Attorney General is further reminded that as an Officer in the Temple of Justice he is required to, at all times, place the true facts before the court. This is irrespective of the interest at play. The Attorney General therefore has a duty in the present case to bring to the attention of the court, all exculpating circumstances which in this case, include, inter alia:
(i) The judgment of the Federal High Court in Suit No. FHC/ABJ/CS/446/2017: “The Attorney General’s legal advice of 20th September 2017 which exonerated our client of any wrongdoing in respect of the implementation of the OPL 245 resolution Agreement of 2011;
(ii) The outcome of the Police investigation which had indicted Olanrewaju Suraju of forging and the email.
(iii) The fact that your office had filed charges against Olanrewaju Suraju for forgery of the email that had been falsely sent in the name of our client in order to implicate our client in alleged “fraud” in the OPL 245 Resolution Agreement;
(iv) The fact that evidence given by prosecution witnesses to a Nigerian court shows clearly that our client did not corruptly enrich himself in the implementation of the OPL 245 Resolution Agreement and that the N300m that was in issue before the court has been conclusively proven to have been a mortgage transaction between our client and Unity Bank of Nigeria;
(v) The fact that as Attorney General of the Federation, you have appraised the OPL 245 resolution of 2011 and have come to the reasoned conclusion that “I am of the firm view that, it is in the best interest of the Federal Government and Peoples of Nigeria, to resolve all issues connected with OPL 245, especially the commercial issues, and to expedite the process of converting the OPL to an OML for ENI/SNEPCO thereby taking advantage of the fast-disappearing opportunities in the Oil exploration industry, and attracting other high-net-worth investors that will provide the resources much needed in the Oil industry and by extension our economy at this time”;
(vi) That our client had in his Comprehensive Report on the implementation of the OPL 245 Resolution 2011, similarly anchored the decision of the Government to mid-wife the settlement on national interest-the need to resolve the lingering dispute between Shell Ultra Deep Limited and Malabu Oil and Gas Limited which had prevented the Block 245 from being exploited for the benefit of Nigeria and avoid likely contingent liabilities in the sum of over $2billion in the ICSID arbitral proceedings brought against the Federal Government of Nigeria by SNUD.
9. Finally, we are to convey our client’s respect for the Office of the Attorney General of the Federation and his abiding faith in your ability to discharge the constitutional duty required of the office as well as your sense of justice, which should propel you to take immediate steps to correct the false depositions made against him in the on-going proceedings before the Commercial Court in the United Kingdom, and indeed, all other proceedings involving him.
PAUL EROKORO, SAN
CC:
1. The Court Manager
Business and Property Court
Commercial List
Rolls Building
Fetter Lane
London EC4A 1NL
United Kingdom
2. Freshfields Bruckhaus Deringer LLP
100 Bishopsgate
London EC2P 2SR
United Kingdom
3. Andrew Mitchell, QC
Reynolds Porter Chamderlain LLP
London
United Kingdom
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