31st December 2015
Professor Yemi Osinbajo, SAN, GCON
Federal Republic of Nigeria,
RE: RESOLUTION OF THE DISPUTE BETWEEN SHELL ULTRA DEEP NIGERIA LIMITED, THE FEDERAL GOVERNMENT OF NIGERIA (FGN) AND MALABU OIL & GAS LIMITED IN RESPECT OF OPL 245 NOW SUBJECT OF INVESTIGATION BY THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
May I respectfully draw Your Excellency’s esteemed attention to the above subject matter which is now a subject of investigation by the Economic and Financial Crimes Commission (EFCC) and to present the true facts in so far as they concern the official and professional role played by the office of the Honourable Attorney General of the Federation and Minister of Justice (HAGF) during my tenure. This has become necessary in order to set the records straight in view of the spurious allegations, mischievous and misleading publications on the subject matter in the media (particularly the online media).
2. Your Excellency may please note that except for those whose sole intentions are to denigrate and impugn my integrityfor resisting attempts to use the Office of the HAGF to further narrow selfish business interests, the transaction aforementioned was legitimate, transparent and well documented, and above all, self explanatory. I trust therefore that this brief will afford you the opportunity to dispassionately examine the records and come to a fair and just assessment of the matter.
3. A few weeks ago, I was informed through the office of the Director of Public Prosecutions of the Federation (DPPF) that the Federal Ministry of Justice was in receipt of a letter from the EFCC inviting me to its office for an interview on the Malabu Oil Transaction with Shell/ENI. I was however unable to immediately honour that invitation as I was writing my end of semester examinations at the University of Leiden, in the Netherlands where I am currently studying for an Advanced LL.M Degree in Public International Law. I therefore requested that the invitation be deferred to 28th December 2015 pending the completion of my examination.
4. However, on deep reflection, I found the invitation rather curious, unconventional and mischievous especially as I acted purely in an official capacity and the EFCC could easily have had recourse to the sitting HAGF for clarifications since the records were in the Federal Ministry of Justice as government is a continuum. I therefore phoned the HAGF and notified him of the development and offered a detail explanation of what had transpired. I also impressed on him the need to protect the office from unwarranted attacks and machinations of those out to destroy it in view of its unique constitutional role in governance. I followed up by sending him a written brief with a copy of the attached Comprehensive Position Paper to enable him familiarise himself with the transaction in the event that official files in the Federal Ministry of Justice could not, for one reason or the other, be easily traced.
5. It was after this development that I was made to understand that there were plans by some individuals who had become aware that I would be honouring the invitation of the EFCC on 28 th December2015 to humiliate me. I was also informed that these individuals had enlisted a notorious online media (Sahara Reporters) to smear my name with allegations of corruption and bribery and that some agents of the Abacha family and one Lawal Abba acting for Alhaji Atiku Abubakar, a former Vice President were behind the scheme. According to the information, their motive was predicated on the following:
(a) the claim that they were shareholders in Malabu Oil & Gas Limited and had been short-changed by the main shareholder of the company, and
(b) that I had refused to use my official position as Attorney General of the Federation to help them get their dues from the main shareholder.
6. Your Excellency, as preposterous as these assertions were, I was forced to give credence to them when on 27th December 2015, Sahara Reporters and Premium Times published that I was scheduled to appear for interrogation at the EFCC on 28th December 2015 and will thereafter be detained and charged to court. It was also falsely published that I was involved in the Halliburton bribery scandal, when the said scandal predated my tenure. It will be recalled that it was during my tenure that the Office of the Attorney General of the Federation in collaboration with the office of the National Security Adviser (NSA) under the leadership of General Aliyu Gusau and the EFCC proceeded against the Companies that were involved in the bribery scandal and got them to pay reparations for ‘reputational damage’ to the country totaling almost $180 Million even when by the penal sanctions contained in our laws, the companies could only have paid pittance. The records are there to show what was achieved and that the monies were paid into the Federal Government accounts with the Central Bank of Nigeria (CBN).
7. It is apparent from these publications that the intention is not necessarily the clarifications sought by the EFCC but a carefully orchestrated plan for my assured unjustified persecution, humiliation and disgrace by a known group with interest in the Malabu matter that are aggrieved over my official role in the resolution of the case. The said group has now joined forces with those desperate to malign me by using the present investigation by the EFCC to humiliate my person. My refusal to take a particular position they had sought and impressed upon me after the resolution of the matter was concluded is the root of all this blackmail.
8. Your Excellency, I make bold to state that any responsible Attorney General of the Federation would have done what I did to safeguard the interest of the country and avoid a liability that potentially stood against the country. It is in this regard that I respectfully urge Your Excellency to carefully consider and ascertain from the documentation supplied, the following facts:
(i) that Oil Prospecting License (OPL) 245 was granted to Malabu Oil & Gas Limited by the administration of General Sani Abacha, GCFR in 1998;
(ii) that OPL 245 was subsequently revoked by the administration of President Olusegun Obasanjo, GCFR in 2001and re- allocated to Shell Nigeria Ultra Deep Limited (SNUD) in 2002 under a Production Sharing Contract (PSC) arrangement;
(iii) that at the time of revocation and re-award, Malabu and SNUD had a binding Joint Operating Agreement to exploit the block with SNUD as technical partner to the Venture;
(iv) that aggrieved over the revocation, Malabu petitioned the House of Representatives Committee on Petroleum. After a public hearing, the House condemned the revocation and re- allocation to SNUD and recommended that the block be restored to Malabu;
(v) that Malabu also sued the FGN and SNUD at the FHC in Suit No FHC/ABJ/CS/420/2003 claiming several declaratory reliefs including an order setting aside the re-allocation to SNUD and a restoration of the block to Malabu. The suit was struck out but on appeal, the parties entered into a settlement dated 30 th November 2006 which were executed by my predecessor in office, Chief Bayo Ojo, SAN, CON;
(vi) that the Terms of Settlement were filed in court as consent judgment and a key term in the settlement was the restoration of the Oil block 245 to Malabu by the FGN;
(vii) that pursuant to the Terms of Settlement, President Olusegun Obasanjo in 2006 rescinded his earlier revocation and restored the Oil block 245 to Malabu;
(viii) that at this time SNUD had already expended huge resources of over $500 million to de-risk the Oil block under the existing arrangement with the FGN and had found oil in commercial quantities. This was inspite of the pending litigation instituted by Malabu;
(ix) that Shell was equally aggrieved over the unilateral revocation of the block by the FGN and commenced Arbitration proceedings at the International Center for Settlement of Investment Disputes (ICSID) claiming over $2 billion from the FGN for breach of contract, loss of investment and special damages;
(x) that It was under the above circumstances that I, as AGF encouraged a definitive resolution between the parties who themselves had expressed an intention to settle but were untrusting of each other given their antecedents;
(xi) that title on OPL 245at the date of settlement in 2006 and the Resolution Agreement in 2011 vested exclusively in Malabu subject only to the terms and conditions in the allocation;
(xii) that the interest of the FGN at the time of resolution in 2011 was to ensure the payment of the signature bonus on the block and that the block was developed to enable the country earn revenue through royalty and taxes;
(xiii) that consistent with Nigerian law governing oil and gas and the allocation of oil blocks, the signature bonus due and payable to the FGN amounting to $210 million was duly paid and acknowledged. The taxes and royalties associated with oil produced from the block are also now being paid. This is contrary to the lies and misinformation being peddled that Nigeria was short changed in the transaction.
(xiv) that at all times material to the resolution of the disputes between Malabu/Shell/FGN one Mohammed Sani who now claims to be Mohammed Abacha was not a party to the transaction and did not disclose any personal or family interest in OPL 245 to the administration of Gen Abdulsalami Abubakar GCFR or to the administration of President Olusegun Obasanjo GCFR;
(xv) that Mohammed Abacha did not participate in the negotiations leading to the resolution or settlement agreements;
(xvi) that Mr. Abacha surfaced only after the tripartite resolution of the matter between Shell/Malabo and the FGN to request that the Office of the Attorney General of the Federation should prevail on the main shareholder of Malabu to respect their interests in Malabu by paying them part of the proceeds;
(xvii) that rather than use the courts to resolve their internal company issues in Malabu, they have resorted to the use of the apparatus of state to settle scores with imaginary perceived enemies;
9. Your Excellency would upon an objective determination of the distilled issues come to the irrebuttable conclusion that at all times material to the resolution of the dispute, conscious efforts were made by the Office of the Attorney General of the Federation and Minister of Justice to safeguard national interest. Furthermore, in the negotiations, the office of the Attorney General ensured that all relevant MDAs including the Department of Petroleum Resources (DPR), the Federal Inland Revenue Service (FIRS) and Nigerian National Petroleum Corporation (NNPC) were represented and participated to ensure compliance with extant laws and processes.
10. It is therefore incorrect and contrary to as widely claimed in some quarters that the money that was paid to Malabu, which was only warehoused in an escrow account, was meant for the Nigerian Government and that the country was thereby shortchanged. Malabu as title-holder of the oil block merely dispensed of her interest in it as allowed by law. This indeed is the case with similar oil blocks allocated to several notable Nigerians who also disposed of their interests to oil multinationals and are enjoying the proceeds without any eyebrow or allegations of corruption.
11. Your Excellency, I have explained in detail the history of the transaction trusting that you are in a better position as a one-time Attorney General of Lagos State and the current Vice President to objectively appraise the situation and brief the President truthfully so as to discourage the lies being peddled by mischief makers. This will not only bring my persecution to an end, but also protect the institution that the exalted office of the Attorney General of the Federation represents as well as guarantee its independence and prevent its destruction on the altar of political expediency.
12. I am not unmindful of the need for public officers to be held accountable for their service. In this respect, if Shell and or ENI have infracted on the laws of their home countries either by non-disclosures and or tax evasion, our duty is to assist their home governments if requested to ascertain the truth but not to undeservedly criminalize our public office holders to satisfy the narrow and selfish interest of shareholders fighting over assets of their company.
13. While thanking Your Excellency for your patience and valuable time, I want to assure you that I discharged my duties as the Chief Law Officer of the Federation with conviction, integrity and candor striving at all times to protect national interest. While I acknowledge that I am human and not infallible, I remain very proud of my record of service as Attorney General of the Federation.
14. Please accept, Your Excellency, the assurances of my highest regards and personal esteem.
MR. MOHAMMED BELLO ADOKE, SAN, CFR