By GODWIN DUNIA
The heat generated by the lingering legal disputations over the controversial Oil Prospecting Lease, OPL 245 transaction, that has involved top government officials in the past two decades may not be going away any soon.
Indeed, rather than abate, going by the trend of affairs at the moment, it is looking more likely that the lingering dispute, which has since claimed the careers of several high-flying oil executives the world over, may soon begin to impact more severely on local players back here in Nigeria.
Presently being awaited, industry insiders say is the verdict of the court in Milan, which is expected to make far-reaching pronouncements that impinge on the possible culpability of several notable Nigerian actors in the saga.
According to feelers, from the outcome of the anticipated judgement, it is very likely that the coast may now be very clear for the likely indictment and punishment of some top administration officials in the immediate past and distant presidencies, including perhaps the immediate past minister of Justice, Mohammed Adoke, and even former President Goodluck Jonathan himself.
At the same time, there are a number of related lawsuits in Nigerian courts at the moment whose outcome, analysts say, would definitively decide who and who would be sanctioned, indicted or jailed. Indeed, for in the opinion of the corporate lawyer, Anderson Oteri, the issues would indeed become clearer in the next one year.
The beginning of the crisis
A decades-old affair, the controversial Malabu oil saga has been traced to as far back as 1995 when Chief Dan Etete was appointed oil minister by the Abacha junta. However, it is precisely in 1998, when the OPL 241 and 245 oil blocs were awarded by the Abacha junta to Malabu Oil and Gas Limited that its formal historical roots lie.
As minister and nominal approving authority for many of the deals that took place in the oil sector, it was to Etete that the bevy of oil sector players went to secure approvals for their deals and business interests.
Taking advantage of his office, Etete, allegedly began to receive payments from these courtiers, with many of these being lodged in offshore accounts overseas in among others, Switzerland, France and Gibraltar. Monaco, Lebanon and several other foreign money centres also came into the picture as the days went by.
Taking advantage of indigenous content promotion
In 1998, the Abacha regime decided to encourage indigenous participation in the upstream sector of the oil and gas industry. Under the scheme, the regime offered oil blocks to Nigerian companies at a discounted cost of $20 million per block.
In the process also, the former minister also reportedly established and set up an oil sector business, Malabu Oil and Gas Limited, which was subsequently to be awarded the rights to the very lucrative OPL 245 and OPL 241.
Etete had indeed formed and registered Malabu Oil and Gas Limited on April 24, 1998 while still serving as Petroleum minister. At that point, there were only three reportedly listed shareholders, namely, Mohammed Sani Abacha who was the son of the late Sani Abacha, Kweku Amafagha (a name said to be an alias for Dan Etete) and Hassan Hindu (who was wife of a former Nigerian High Commissioner to the UK).
It was within a week of the firm’s inception, that it was to be awarded the two juicy oil blocks, OPL 245 and OPL 214.
The company moved on to take up the OPL 245 offer and made a part-payment of $2 million for the acreage which is estimated to hold nine billion barrels of crude oil. It also brought in Shell as technical partners.
Former President Obasanjo wades in
President Olusegun Obasanjo and his then National Security Adviser, General Aliyu Mohammed Gusau have been mentioned in the tale. From facts in the public domain, this is how they played.
Upon his assumption of office in 1999, the former President Olusegun Obasanjo was appraised of controversial transactions relating to the Central Bank of Nigeria, the Petroleum Ministry and the process of award of oil licenses, with investigations, unveiling that among other finds, there were issues with the OPL 245 bid that had been secured by Malabu oil. The transaction was then red-flagged.
In 2001, the Obasanjo-led Federal Government revoked the licence and invited some international oil companies (IOCs) to bid for the block. Shell, formerly technical partner to Malabu, participated and was offered the block. Etete petitioned the House of Representatives, which after a public hearing, passed a resolution that OPL 245 be returned to Malabu.
When the federal government ignored the resolution, Malabu took legal action in a series of litigation until 2006 when it reached an out-of-court settlement, which was subsequently reduced to a consent judgment of the Federal High Court, Abuja.
Shell also instituted litigation at the same time, but later opted for an out of court resolution in 2010.
However, part of the challenge to resolving the issues locally have to do with the international dimensions it has since assumed.
For example, the Italian company, Snamprogetti (SPA) was convicted by a Milan court. Equally, Mr. Jack Tesler, a Briton, was successfully prosecuted by the United States Department of Justice in 2011.
Indeed, in Tesler’s case, he was arrested in the United Kingdom and extradited to the United States, was identified in the documents as a representative of a firm that had received $130million from TSKJ, an international consortium, which he was then said to have paid as bribes to high-level Nigerian government officials, including Mr. Etete.
In his statement to the Proceeds of Corruption Unit of London Police, Tesler is said to have shed some light on circumstances related to the Oil Prospecting Lease (OPL 245) controversy. These include the fact of a promise allegedly made to Mr. Umar Bature of $2million by Mr. Etete, which was allegedly a sum that came from the price paid for OPL 245. Tesler’s statement also noted that the amount in question was with a bureau de change in Abuja. Notably also, Tesler allegedly named General Gusau as the channel through which the bribes were delivered weven as the former National Security Adviser was also reportedly mentioned in an email sent by John Copleston of Shell to Robinson Peter, also of Shell.
From the email, he was seen as working unofficially on behalf of Shell to get concessions from members of the National Assembly who were at the time discussing the Petroleum Industry Bill. Copleston indicated that he had met with Gusau on 28 July 2009 in respect of the matters. He also, according to the mail, told Copleston that Etete was ready to deal, more so when the Federal Government was planning to take the oil field from him.
In response to Copleston’s mail, Colgate Guy of Shell reported that there were other matters arising. According to him, there was a Russian tilt to the story as representatives of the Russian company, Rusal and Malabu had met in London, even as the meeting had been facilitated by Gusau. The former Nigerian National Security Adviser, the email said, had met Mr. Edmond Agaev in 2008.
Agaev, a Russian diplomat that had worked in Nigeria and was reportedly close to former President Obasanjo, whom he helped link with President Vladimir Putin of Russia, had hosted Obasanjo after he was released from prison in 1998.
Tesler was also linked with MegaTech Engineering, which had received the sum of $180million on 29 August 2011 from the First Account of Malabu. The company is controlled by Monument International Nigeria, which is in turn controlled by Monument International, a company registered in Gibraltar and has Nurudeen Mohammed Imam, a retired Air Vice Marshal and former Minister of Mines, Power and Steel as co-principal.
Linking the dots further, documents at the Corporate Affairs Commission revealed that MegaTech’s property purchased in 2011 was connected to Pioneer Communications Limited, a firm represented in the documents by Mr. Abubakar Aliyu. Incidentally, Aliyu was also the representative of other companies, which got most of the money Malabu had paid to Eni.
Faced with the outcome of investigations conducted across Europe and Nigeria which indicated that he had reportedly received, if not laundered, hundreds of millions of dollars that had been extorted from oil companies, and in consort with a string of collaborators, including his main accomplice, Richard Granier-Deferre, Etete had reportedly owned up to receiving the ‘gifts’ but also explained that some of them were indeed given to him to transfer to the Head of State while it was also standard practice for Nigerian oil ministers to be given ‘gifts.’
Indeed a roll call of the sums involved in the transactions is mind-boggling. First, Obasanjo had requested international financial review agencies to help in tracing some $386 million that had reportedly vanished from the coffers of the Central Bank of Nigeria in the Abacha-Abdulsalami era. Then there was also talk of a further $800 million dollars that could not be accounted for. In specific terms, Addax, a company run by the Etete ally, Richard Grainer-Deferre, was reportedly deployed to transfer 1.9 million British pounds sterling and $385 million dollars into Abacha family bank accounts.
Second, Grainer-Deferre reportedly also opened accounts in Switzerland for the brothers, Dan and Bukazi Etete, in addition to alias accounts in the name of Omoni Amafega that the former minister had unbridled access to.
Quizzed, Addax’s representative in Nigeria during that period, Mr. Jean-Pierre Decker, reportedly confirmed that oil companies doing business in Nigeria were almost as a matter of course, expected to give money to petroleum ministers. Richard Granier-Deferre also did not deny the existence of this practice, asserting that he paid over $10 million in hidden commissions to Etete.
Other petroleum sector executives such as Mr. Vermeulen, director-general of ELF TOTAL FINA; Mr. Gavalda, director of ELF Africa, and Mr. Viaud, the director-general of ELF Nigeria equally let out that Elf had paid $20 million to Dan Etete’s account in Credit Agricole Indosuez in Gibraltar in May of 1998 as part of a demand imposed on them when they wanted to renew four operating licenses.
Among other things, Etete reportedly invested some of these monies in real estate, high-priced art and antiquities and a private jet. Others were luxury cars, office furniture and boats.
But the matter did not end well for the former minister who kept insisting that all he did was to follow a well-established practice of ministers receiving “sponsor’s fees.” The trial court in Paris did not agree with him and in its 2007 judgment, found him guilty of aggravated money laundering. He was sentenced to 3 years imprisonment and asked to pay a fine of 300,000 Euros. The court also ordered Etete to pay the Federal Government of Nigeria 150,000 Euros and an additional 20,000 Euros under Article 475-1 of the Code of Criminal Procedure.
A 2009 appeal challenge from Etete was also rebuffed even as the French appeal court also imposed a fine of $10.5 million on him.
The Jonathan administration angle
Notwithstanding Etete’s conviction and the failure of his appeal bid, the issue would just not rest.
Post-Obasanjo, the government of President Goodluck Jonathan was also to be caught up in the OPL 245 fiasco.
In 2011, news broke that President Goodluck Jonathan had approved the transfer of $1.1 billion to the London account of Dan Etete’s company, Malabu Oil. Jonathan, the story went, reportedly took the decision on April 29, 2011.
Specifically, the sum in question was coming from funds paid to the Federal Government by two multinational companies, Nigeria Agip Exploration Limited and Shell Nigeria. It was part of the settlement of the Malabu oil block case between the Federal Government, Malabu Oil and the two multinational oil firms.
Underscoring however that there may indeed have been high level connivance in the transaction, as soon as the funds hit Malabu’s accounts, they began to move out. One of the beneficiaries was Abubakar Aliyu, who reportedly has close links to the then President. He received $532 million.
On its part then, the Economic and Financial Crimes Commission , EFCC after investigating the $1.1 billion dollar deal affirmed that it had found out that the funds were transferred to accounts owned by “real and artificial persons” without any reasonable validation of what they had done to deserve such huge ‘payments.’ But not much followed and indeed, this remained the state of affairs until the present administration came into the saddle in 2015 and began to beam a fresh searchlight into the matter.
As the investigations continue, fresh facts have begun to emerge. One of which is that Etete had also invested in buying a Bombardier Global 6000 private jet worth $56million and that it may have been purchased with funds from to the sale of OPL 245.
Indeed, four international anti-corruption crusaders, Chairman, Human Resource Development Centre (HEDA), Olanrewaju Suraju; Corner House Director, Nick Hildyard; Re:Common Director, Antonio Tricarico and Co-founder Global witness, Simon Taylor made this accusation in a joint petition sent from Italy and calling for the retrieval and forfeiture of the jet by the Nigerian authorities after they had reportedly attended the court proceedings in Milan.
The investigations focused on the sale of OPL245 to Eni and Shell. It also involved the grievous allegations of corruption linked with several serving and former company executives, politicians and public officials.
With the heat developing, some of the affected former officials have moved to prevent the possibility of their being indicted. However, an FCT High Court in Jabi has recently struck out an application seeking to stay an order, granting the Economic and Financial Crimes Commission (EFCC) leave to arrest two ex-ministers, and seven others for their alleged involvement in the Malabu oil deal.
The EFCC had charged a former Attorney General of the Federation and Minister of Justice, Mr. Mohammed Adoke and his Petroleum counterpart, Mr. Dan Etete for their alleged involvement in the mismanagement of $1.1 billion revenue that had accrued from the sale of an oil block to Malabu Oil and Gas Limited in 2011.
The charge which had been filed on December 20, 2016 established a nine-count charge against the accused, saying they transferred $801.540 million from the federal government escrow account.
Justice Danlami Senchi of the court refused to grant the application in the suit No. FCT/HC/M/546/2019 on the grounds that the substantive suit was yet to be argued by the parties in the matter.
The learned judge had previously adjourned till June 11 to rule on all the motions and counter-motions before the court and for the parties to argue the substantive suit
According to the judge, any party willing to file further motions or applications, must do it on or before June 5.
I have no case to answer – Jonathan
In his own statement of defence, former president Goodluck Jonathan, has affirmed that he did nothing wrong when his government brokered the controversial Malabu oil deal.
Speaking through Ikechukwu Eze, his media adviser, he averred that the claim that he had acted corruptly and may have received bribes was “recycled falsehood that is blatantly dishonest, cheap, and predictable.”
The rebuttal is coming on the heels of a fresh claim by the Nigerian government filed in a London court.
In the same filing, the government is also reportedly seeking about $3.5 billion in damages from oil giants Eni and Shell over the controversial Malabu oil deal.
The government is also alleging that the Malabu deal was “corrupt” and not done in the interest of Nigeria. It accused Eni, Shell, Malabu and other defendants of, among others, “fraud or/and bribery, dishonest assistance and unlawful means of conspiracy.”
Describing the renewed inquiry as lacking any merit, Eze places it all on the doorsteps of politics.
“The fact remains that as recent national events continue to vindicate former President Jonathan, and as the world continues to celebrate him, those who are insecure will feed such propaganda to their media agents to feed their inferiority complex,” the statement said.
“In fact, we expected something like this ever since it was announced that former President Jonathan would lead the Election Observation Mission of the Electoral Institute for Sustainable Democracy in Africa to South Africa’s national and provincial elections.
“We are well aware that this claim was intentioned to eclipse the goodwill and positive reports of former President Jonathan’s diligent engagement in South Africa’s national and provisional elections.
Another angle to the saga is the Nigerian government’s claim that the controversial block was undervalued even at the time it was sold in 2011. To Making this point, a consultant who stood as witness before an Italian court in Milan faulted the valuation of the controversial block by the oil giants, Eni and Shell.
This is even as the house of representatives is also continuing with its investigation of the award of oil prospecting licence (OPL) 245 to Malabu Oil and Gas.
At the moment however, a Federal High Court in Abuja has ordered the interim forfeiture of Oil Prospecting License (OPL 245) to the Federal Government pending investigation and prosecution of suspects in the $1.1bn Malabu Oil scam.
Justice John Tsoho granted the order shortly after the Economic and Financial Crimes Commission move an ex parte on it.
OPL 245 is an oil field believed to be the largest in Africa, was said have been fraudulently acquired from the Federal Government by Malabu Oil and Gas Limited in 1998 and afterwards sold to oil giants, Shell and Agip, in a shady transaction.
While moving the application which was dated and filed on January 11, 2017, on Thursday, EFCC’s lawyer, Mr. Johnson Ojogbane, urged the court to grant the order pending the investigation and prosecution of the suspects named in the scam.
Though, the EFCC had earlier filed charges against some of the suspects, including the immediate past Attorney-General of the Federation and Minister of Justice, Mr. Mohammed Adoke, the order obtained by the EFCC appeared to set the stage for prosecution of more suspects.
The additional suspects named in the application were Shell Nigeria Ultra Deep Limited, Shell Nigeria Exploration Limited, Malabu Oil and Gas Limited “and other individuals”.
Ojogbane said that the suspects were being investigated “in connection with acts of conspiracy, bribery, official corruption and money laundering”.
It will be recalled that the EFCC had on December 20, 2016, charged nine suspects, including Adoke, with respect to the $1.1bn scam.
Other accused persons named in the charges filed by the EFCC before a Federal High Court in Abuja, were Etete, Aliyu Abubakar, Malabu Oil & Gas Ltd, Rocky Top Resource Ltd, Imperial Union Ltd, Novel Properties & Dev. Co. Ltd, Group Construction Ltd, Megatech Engineering Ltd.
The anti-graft agency, in the charges with suit number,FHC/ABJ/CR/268/2016, accused Adoke of illegally transferring over $800m purportedly meant for the purchase of the OPL 245 to Etete, Malabu Oil & Gas Limited from a Federal Government account.
The EFCC also accused Aliyu, an oil magnate, who is the Chairman of A. A. Group and Rocky Top Services, of receiving $336,456,906.78.
Civil Society Action
Rising from a workshop to shed more light on the OPL 245 saga that was held in Abuja recently, an enraged bevy of civil society groups say that they are willing to help raise awareness on the matter and also maintain a watching brief on the court processes until justice is completely done and the nation gets what is due her from OPL 245.
Accordingly then they have convened a protest march to hold on Tuesday at the Unity Fountain, Abuja.
In a chat with Alloysius Eze of the umbrella Civil Society Network Against Corruption, CSNAC, he affirmed that the purpose of the march was to raise awareness on the matter and pressure the authorities to ensure that justice is done for the Nigerian people.
‘It is sad what has happened to us over the years, and particularly in this OPL 245 matter. Shell and Eni have colluded with public officials to rob the nation and her people of her much needed resources that could have been spent on other critical areas of need. This is unacceptable and must be addressed.’
Asked if he foresaw a situation where highly connected past presidents and other former top government officials would be sent to jail as a consequence of the trial outcome, Eze replied that though this was not a first consideration of his group, if it came in the process of the trial then everyone involved should very well live with it.
‘Our first concern has to do with our resources that have been pilfered. We want it back. But even if the entire process results in the conviction of any of the affected former officials then that would also be a logical outcrop of the development. People should not just take the collective resources of the nation and dispense with it as they please. It is not right.’