…disowns Dan Etete over Malabu Oil

By Tunde Oyesina

Son of the late military Head of State, Gen. Sani Abacha, Mohammed, had begun a legal battle to reclaim the $1.3 billion Oil Prospecting Licence (OPL) 245, which was allocated to Malabu Oil Gas Limited. Mohammed Abacha is a Director and the largest shareholder of Malabu Oil Gas Limited. The two other major shareholders are Amafagha Kweku and Hindu Hassan.

There have been a couple of suits before different courts in recent time over the oil bloc. While the Economic and Financial Crimes Commission (EFCC) had approached the court seeking a forfeiture order of the said licence from Shell Nigeria Exploration and Production Company Limited, and Nigerian Agip Exploration Company Limited, the Federal Government had, in another suit, slammed a six-count corruption charge on a former Attorney General of the Federation and Minister of Justice, Mohammed Adoke (SAN); former Minister of Petroleum, Chief Dan Etete and nine others for their involvement in the sales of the oil bloc to Shell and Agip.

The newest of the suit was filed by Malabu Oil at the registry of the Federal High Court sitting in Abuja on Friday wherein Abacha joined the Federal Government and eight others over alleged illegal re-allocation of the oil bloc to Shell and Agip. Justice John Tsoho of the Federal High Court, Abuja had, on Friday, in the suit filed by the EFCC, reversed a forfeiture order it earlier granted against Shell and Agip as regards the oil bloc.

The forfeiture order was at the instance of an ex-parte application filed by the anti-graft agency praying the court to take over the licence of the oil bloc from the companies and return it to the Federal Government.

However, on Friday, the day the forfeiture order was reversed, Malabu Oil approached the court on ground that the Federal Government has no power to re-allocate the oil bloc to Shell and Agip while its (Malabu) rights and interests in the oil bloc is still pending. In the fresh suit filed by Malabu Oil through its lawyer, J.A Achimugu, the plaintiff is asking the court to grant an order compelling the Federal Government to restore the rights to the exclusive possession of OPL 245 to it.

Joined, as 1st to 7th defendants in the suit, were the Federal Government of Nigeria, Minister of Petroleum Resources, Shell Ultra Deep Limited and Shell Nigeria Exploration and Production Company Limited.

Others are Nigerian Agip Exploration Company Limited, EFCC and Chief Dan Etete. In a 29-paragraph affidavit deposed to by Mohammed Sani Abacha, he averred that Malabu Oil was incorporated in April 1998 with the Certificate of Registration number RC 334442, adding that the company was incorporated with a total share capital of 20 million ordinary shares.

Abacha further averred that out of the 20 million shares, he is holding 10 million shares, while Kweku and Hassan are holding six million and four million shares respectively.

He further stated that Etete does not directly or indirectly hold any shares in the company as there is no transfer of shares in his favour, even though he claims to indirectly hold 30 per cent shares of the company in the name of Amafagha Kweku, adding that there is no such transfer.

The son of the former Head of State also averred that Malabu had applied for Oil Prospecting Licence and same was granted by the Minister of Petroleum on April 29, 1998 via letters of allocation of OPL 214 and 245.

It was also averred that the company made payment of N50,000 as application fee, $10,000 as bid processing fees and part payment of or a deposit payment of $2,400,000 as signature bonus. According to him, “On the 2nd of July, 2001, the Federal Government and the Minister of Petroleum revoked the OPL 245. The plaintiff sued the Federal Government at the Federal High Court Abuja over the said revocation.

The matter went on appeal before the Court of Appeal, Abuja Division, in appeal no. CA/ A/99/M/06, but was subsequently resolved through an out-of-court settlement agreement executed by the parties namely: Malabu Oil and Gas Ltd. and the Honourable Minister of Petroleum resources on behalf of the Federal Government of Nigeria on November 30,2006.

“In pursuance of and in the perfection of the under standing in the out-of-court settlement agreement, the Federal Government issued a letter of re-allocation dated July 2, 2010, reallocating OPL 245 to the plaintiff.

The re-allocation of OPL 245 to Malabu Oil brought disputes between the Federal Government and Shell Nigeria Ultra Deep over production of sharing contract. “While the allocation to the Malabu Oil is still pending, the Federal Government, Shell, Agip and NNPC surreptitiously entered what they called, ‘BLOCK 245 RESOLUTION AGREEMENT’ dated April 29, 2011.

In spite of the acknowledgment of the subsisting rights and interest of the plaintiff on OPL 245, the plaintiff was not a party to, but deliberately and purposefully excluded from Block 245 resolution agreement of April 2011 to enable the parties to agree among themselves to allocate OPL to the 4th and 5th defendants,” he stated. Furthermore, the deponent stated that both Shell and Agip resolved to pay $1.3 billion to Etete purportedly in the name of the plaintiff but through the Federal Government as a facilitator.

He also averred that after the allocation of OPL 245 to Shell and Agip, the Federal Government forwarded its escrow accounts to the oil companies with details No. 41451496 IBAN: GB 30 CHAS 609242 411493 with J.P Morgan Chase Bank for Shell and Agip to enable them to effect the payment of the sum of over $1 billion into the Federal Government account.

“Sometimes in May 2011, Shell and Agip paid the sum of $801,540,000 into the escrow account with J.P Morgan Chase Bank. Sometimes in or about August 2011, the Federal Government caused the total sum of $801,540,000 to be paid into two unauthorised bank accounts opened by or at the instance of Etete in the name of Malabu Oil from the Federal Government escrow account,” he added.

He further noted that the said sum was paid in two tranches into two different bank accounts which is: First Bank of Nigeria Plc. with Account no. 2018288005 with the sum of $401,540,000 paid into it, while another $400,000,000 was paid into a Keystone Bank Limited with account no. 3610042472.
Abacha added that the two accounts were opened without the consent or knowledge of Malabu Oil and that same was operated by Etete, in the name of Malabu Oil of which he (Etete) was the sole signatory.

Abacha also averred that Malabu Oil did not, in any way, benefit from the payment of the said payment because Etete was the sole signatory to the two accounts. Malabu is, however, praying the court for a declaration that its rights and interest in OPL 245 granted or re-allocated to it is still valid and subsisting.

It also wants a declaration that not being a party to the Block 245 Resolution Agreement dated April 29, 2011 is not bound by the terms of the said agreement as it relates to or concerns OPL 245. In addition, the plaintiff is seeking a declaration that not being a party to the block 245 resolution agreement dated April 29, 2011, any payment purportedly made by the defendants into any bank account purporting to be the plaintiff’s bank account and or made to the 9th defendant purportedly in the name of the plaintiff was not payment made in pursuance of the said Block 245 Resolution Agreement.

Also, the plaintiff is seeking a declaration that the allocation of OPL 245 by the 1st and 2nd defendants to the 4th and 5th defendant’s via the 2nd defendant’s letter on May 11, 2011 titled: “Re: OPL 245 Resolution Agreement/ Letter of Award” while the plaintiff’s rights and the interests to OPL 245 was subsisting is in violation of the plaintiff’s exclusive right under paragraph 5 of the 1st schedule to the Petroleum Act to explore and prospect for petroleum within the area covered by OPL 245 and is, therefore, invalid, wrongful, null andand of no effect whatsoever.

The plaintiff also wants the court to give a declaration that the grant of OPL 245 by the 2nd defendant to the plaintiff in the exercise of the 2nd defendants powers under Section 2 of the Petroleum Act Cap. P.10 Laws of the Federation of Nigeria, 2004 does not constitute an offence under any penal law in Nigeria and OPL 245 is not the proceeds of any offence or crime under EFCC (Establishment) Act Cap. E1 Laws of the Federation 2004 or any other law in force in Nigeria.

The plaintiff, however, wants the court to make an order compelling the defendants to restore to it its right to the exclusive possession of OPL 245. It is also praying the court for an order of perpetual injunction restraining the defendants and in particular the 6th defendant from treating and or dealing with OPL 245 as a proceed of an offence and from interfering in any manner whatsoever and howsoever with the plaintiff’s exclusive right to explore and prospect for petroleum in the area of OPL 245.

It also wants an order of perpetual injunction restraining the defendants from carrying out any exploration or prospecting activities in connection with or in relation to the area covered by OPL 245. The suit is yet to be assigned to a judge.

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