The Federal Government has faulted a suit by Malabu Oil and Gas Limited, which is challenging the allocation of the highly lucrative oil block, the Oil Prospecting Licence 245, to Shell Nigeria Exploration and Production Company Limited and the Nigerian Agip Exploration Company Limited.
The suit was filed before the Abuja Division of the Federal High Court in the name of Malabu Oil and Gas Limited by Mohammed Abacha, a son of the late military dictator, Gen. Sani Abacha.
Mohammed, in the suit filed on March 17, 2017, explained that he was one of the three founding owners of the company to which the OPL 245 was allocated in 1998 while his father was the Head of State.
He is listed as a witness in the suit and his deposition, in which he reiterated his stake in the most shares in Malabu, was attached to the writ of summons filed before the court.
The Federal Government and the Minister of Petroleum Resources were joined as the first and second defendants.
Others joined as the third to the seventh defendant are Shell Nigeria Ultra-Deep Limited, Shell NEPCL, Nigerian Agip Exploration Company Limited, the Economic and Financial Crimes Commission and a former Minister of Petroleum Resources, Dan Etete.
But, challenging the competence of the suit, the Federal Government and the Minister of Petroleum Resources argued in their joint notice of preliminary objection to the legal action that Malabu had “relinquished” its rights and interests in the OPL 245 as far back as April 29, 2011.
The two defendants, through their lead counsel, Mr. Tijani Gazali, argued that the “Block 245 Resolution Agreement and other related mutual resolution agreements dated April 29, 2011”, paved the way for the Federal Government to re-allocate the OPL 245 to Shell and Agip on May 11, 2011.
A litigation officer in the Office of the Attorney General of the Federation, Mr. Fridy Atuh, who deposed to the affidavit filed in support of the Federal Government’s preliminary objection, stated, “Plaintiff (Malabu) was initially allocated OPL 245 via a letter, dated April 29, 1998, but same was later revoked via letter, dated July 2, 2001.
“However, upon settlement agreement, dated November 30, 2006, OPL 245 was re-allocated to plaintiff (Malabu) via a letter, dated July 2, 2010.
“Upon the execution of Block 245 Resolution Agreement and other related mutual Resolution Agreements, dated April 29, 2011, plaintiff relinquished its rights/interests in OPL 245, which paved the way for its allocation to the fourth and fifth defendants via a letter, dated May 11, 2011.
“Plaintiff is now challenging the allocation of OPL 245 to the fourth and fifth defendants via second defendant’s (Minister of Petroleum Resources) letter dated May 11, 2011.
“That the allocations referred to in paragraphs above were based on mutual agreements reached by the parties thereto.”
Challenging the competence of the suit further, the Federal Government and the Minister of Petroleum Resources noted that Mohammed Abacha’s ownership and stake in Malabu, and by extension, in OPL 245, were still in doubt.
This, they said, informed the filing of a sister suit with number FHC/ABJ/CS/206/2017 (between Malabu Oil and Gas Limited and two others against Mr. Kweku Amafagha and nine others) “where Mohammed Sani Abacha, who is the plaintiff’s witness herein, and others are seeking to establish ownership and control over Malabu Oil and Gas”.
The Federal Government also noted that the “the claims of membership/ownership of Malabu Oil and Gas Limited by Mohammed Sani Abacha, Oyewole Fasawe, Pecos Energy Limited and others” remained unascertained and a subject of an ongoing suit.
It added that “the outcome of the pending suit will determine the existence of any legal rights in favour of Mohammed Abacha, Oyewole Fasawe, Kweku Amafagha, Muhamuna Seidougha, Dan Etete or any other person or entity laying claim to having any interest in the plaintiff/applicant and by extension OPL 245”.
It also stated that the Malabu’s suit, challenging the re-allocation of the OPL 245, had been statute-barred, the plaintiff, having failed to within the statutory three months, filed the action to challenge the re-allocation of the OPL 245 to Shell and Agip since May 2011.
The suit was only filed on March 17, 2017.
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Also, the EFCC, the sixth defendant in the suit, argued in its separate notice of preliminary objection that it was wrongfully joined as a defendant to the suit.
The EFCC had, in December 2016 and early 2017, filed three separate criminal charges against some suspects, including Etete; the immediate past Attorney General of the Federation and Minister of Justice, Mr. Mohammed Adoke; Malabu, Shell and Agip, for fraudulent transactions of over $1.1bn in connection with the OPL 245.
But the anti-graft agency stated that it was only appearing in the civil suit by Malabu “in protest”, urging the court to make “an order striking out the name of the sixth defendant (EFCC) from this suit.”
Anchoring its preliminary objection on three grounds, the anti-graft agency, through its lawyer, Mr. Johnson Ojogbane, stated, “The sixth defendant (the EFCC) is not a necessary party in the plaintiff’s suit.
“The plaintiff’s suit does not disclose any cause of action against the sixth defendant.”
In a 29-paragraph affidavit, filed in support of the suit, Abacha, who deposed to it, stated that he owned 50 per cent of the share capital of Malabu Oil and Gas Limited and that he had been very much involved in the affairs of the firm.
He stated that the oil firm applied for OPL 245 and was granted same by the Minister of Petroleum Resources on April 29, 1998 via a letter of the allocation.
He stated that the plaintiff made payments of N50,000 as application fee; $10,000 as bid processing fee and part payment of or a deposit payment of $2,400,000 as signature bonus.
He narrated how, on July 2, 2001, the Federal Government and Minister of Petroleum Resources revoked the OPL 245 from Malabu and the dispute later resolved through an out-of-court settlement agreement between the parties.
According to him, part of the terms of agreement was that the Federal Government would re-allocate the OPL 245 to Malabu, but that in the process of the re-allocation, the Federal Government, the Minister, Shell and Agip (first to fifth defendants) along with the Nigerian National Petroleum Corporation “surreptitiously entered into what they called block 245 resolution agreement dated April 29, 2011”.
Mohammed stated that in the agreement, the five defendants agreed that the Federal Government should allocate OPL 245 to Shell Nigeria Ultra-Deep Limited and Nigerian Agip Exploration Company Ltd (4th and 5th) defendants, without the knowledge or consent of Malabu.
Justice John Tsoho, on Thursday, adjourned the case until July 5, to enable the plaintiff to serve some of the defendants yet to be served.
The sister case filed by Malabu, Mohammed and others, was also adjourned until the same date for similar purpose.
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