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OPL 245, Italian court and the Adoke question

Nigeria’s oil sector reforms fail to gain traction

In view of the serial and unrelenting misrepresentation of facts and mischief orchestrated by forgers, pathological liars and pseudo anti-corruption activists in partnership with an online publication globally notorious for its culture of blackmail and extortion, it is important to set the record straight on the pronouncements of the Court of Milan, Republic of Italy, in the OPL 245 trial.

The court discharged and acquitted all defendants of criminal charges on March 17, 2021. Of particular interest to me is the extent of involvement of my client, Mohammed Bello Adoke, who served as the Attorney-General of the Federation (AGF) and minister of justice of Nigeria between 2010 and 2015 during which the OPL 245 dispute was resolved and the oil bloc was acquired by Royal Dutch Shell plc and ENI S.p.A. from Malabu Oil & Gas Limited for a combined consideration of $1.3 billion.

Although Adoke was not on trial in Italy, his name came up frequently in the court proceedings because of the desperate desire of Fabio De Pasquale, the deputy public prosecutor for Milan, to criminalise the OPL 245 transaction by impugning the integrity of Adoke and casting aspersions on his legal advice as the Attorney-General of the Federation in which position he acted on the lawful and legitimate instructions of President Goodluck Jonathan.

In trying to work to an answer, De Pasquale came up with a series of investigative theories, some of which were propounded by the so-called anti-corruption campaigners who were out to win awards as transparency champions by trampling on the truth. To them, all is fair in war. They can cook up anything, forge any e-mail and stage-manage any interview as long as they would get applause from their funders and promoters.

De Pasquale argued in court that the OPL 245 Resolution Agreement of 2011, which was based on a Settlement Agreement reached between the Federal Government of Nigeria and Malabu Oil & Gas on November 30, 2006, was illegal. He argued that it was also illegal to award an oil prospecting licence (OPL) through a court-ordered Settlement Agreement.

De Pasquale and his team theorised that the $801 million paid by Royal Dutch Shell plc and ENI S.p.A. to Malabu Oil & Gas to acquire the rights to the oil block was illegal and was a scheme to bribe FGN officials. They alleged that Adoke participated in the bribery scheme and profited to the tune of N300m ($2.2m at the time) from the $1.3 billion transaction.

Specifically, they said Aliyu Abubakar, a property developer known to both Dan Etete, the promoter of Malabu Oil and Gas, sold a property worth N700 million for N500 million to Adoke. They further alleged that the N200 million difference was a bribe. The Italian prosecutors tried to use the property transaction as evidence of corruption.

Since some of these expended allegations are sub-judicial in Nigeria because Adoke is still being tried in two honourable courts by the Economic and Financial Crimes Commission (EFCC) over the same issues, my comments would have to be limited to the Milan Court decision.

Also, some of the facts are already in the public domain and as such do not require any further comments from me. Luckily, the full text of the 458-page judgment, marked “Judgment No. 3055,” is available on the internet. Anyone interested in reading the document, which I intend to quote generously in this article, should google “OPL 245 full decision” and download it. It documents the key presentations made by the prosecutors and the final pronouncements of the court after nearly three years of trial.

It is significantly of note that no adverse findings were made against Adoke. Let us go into the specifics. It had been alleged that Adoke exerted “unlawful pressure” on the Nigerian National Petroleum Corporation (NNPC) and the Department of Petroleum Resources (DPR) to endorse the Settlement Agreement. But the Milan Court pronounced at Page 241 of its judgment: “We cannot instead accept the comments on the fact that Adoke Bello allegedly exerted unlawful pressure on NNPC and DPR.

In fact, as we have seen, it had been the Minister himself who had engaged these departments and demanded that an agreement be made reflecting their suggestions, so that the companies (Shell and ENI) were forced to give ground on recognition of the back-in rights, which were not included in the previous contractual framework, which called for direct purchase from Malabu, considering that that company had been granted a license free of these restrictions.”

On the rightfulness of awarding an OPL based on an out-of-court settlement (and the attempt to link it to corruption), the judges said at Page 248: “The opinions of the Public Prosecutor’s expert are absolutely contradictory and legally erroneous.

Although she admitted that licenses in Nigeria may be issued by the government on a discretionary basis, it underscores the anomaly represented by the issuance of a license in the context of an out-of-court settlement agreement that involved a party, Eni, that was considered to have nothing to do with the legal disputes over ownership of the license.

“On the basis of these erroneous premises of its own expert, the prosecution transforms a fact from common experience (out-of-court settlements of disputes may come about through the intervention of a third-party investor or financier) into circumstantial evidence of underlying corrupt arrangements.”

On the allegation of conflict of interest, the prosecutors argued that Etete, as minister of petroleum in 1998, should not have awarded an oil block to a company in which he had interest.

The court agreed with the position of the defence lawyer that it was never raised as a breach of law before any court. In fact, the 1998 assignment was subsequently confirmed several times by the government, even before Adoke became AGF.

The court agreed with the defence lawyer who had argued that the “fallaciousness of the prosecution’s reasoning was such that the Public Prosecutor was forced to contradict himself when he explicitly affirmed that confirmation of the license awarded to Malabu had legitimated it to sell the license.”

On the charge that Adoke’s involvement in meetings and communications with key actors in the OPL 245 negotiations was evidence of vested interest for corrupt enrichment, the judges said at Page 291: “Equally devoid of evidentiary value is the fact that the Minister Adoke Bello intervened in the context of these communications, guaranteeing the legitimacy of the agreements underlying the payments, legitimacy that has already been demonstrated and would in fact also be recognised by the Nigerian judicial authority at the request of the same public official (see the ruling of Judge Binta Nyako). The prosecution’s argument, based on the fact that the defendants knowingly provided the money for the bribe paid by Etete to the public officials, is reasonably contradicted by the outcome of the SOCA authorizations…”.

SOCA is the UK Serious Organised Crime Agency which gave JP Morgan the go-ahead to transfer funds to Malabu in 2011 after investigating suspicion of fraud.

At Page 317, the judges, in dismissing allegations of bribery in the OPL 245 deal for lack of proof, reproduced the transcript of the interrogation of a defendant, Vincenzo Armanna, a former ENI manager, by the prosecutor over the issue of kickbacks. Armanna said that, in fact, Adoke threatened to arrest and prosecute ENI officials for negotiating kickbacks.

The conversation is reproduced below. It is, therefore, a matter of public record that Adoke actually warned against bribery in the transaction, and threatened to get the commission agents arrested and prosecuted. This is the same Adoke that is being maligned and defamed as a bribe taker.

Before Armanna’s testimony, Ednan Tofik ogly Agaev, a former Russian ambassador to Colombia, had also withdrawn his earlier claim to the US Federal Bureau of Investigation (FBI) in which he said Adoke was involved in bribery. Agaev refused to adopt the statement in court, saying he was pressured to mention a name during interrogation and he mentioned Adoke. In other words, Agaev lied to the FBI to get off the hook.

I must, however, regret that there was an allegation against Adoke before the Italian court that was not exhaustively dealt with: the accusation that he bought a house from his supposed share of the kickbacks.

Every piece of evidence was purely circumstantial and an over-extension of the facts just to fit the narrative: one, that Adoke previously knew the property developer; two, that the property developer was close to Etete; three, that Adoke tried to buy a house for N500m after the OPL 245 transaction; four, that the property had just been acquired by the developer for N700m; five, that the N200m difference was his kickback; six, that as a public servant, where could he have earned the N500m to buy the property.

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Of course, the conclusion of the judges was that there was no proof of corruption and while we may say Adoke was exonerated, that will still not totally solve the puzzle around the mortgage and will continue to be used by the mischief makers as evidence of corruption.

But here are the facts, most of which were presented in Italy by the prosecutors but which they deliberately jumbled together because they were shooting at a target. Adoke never denied knowing Abubakar, the property developer.

He never denied being offered a house at Plot 3271 Cadastral Zone A06, Maitama District, Abuja. What he has said, and quite consistently, is that Abubakar approached him to buy the property for N500 million.

He then approached his bankers, Unity Bank, where he was a substantial shareholder, and asked for a mortgage of N300 million. He was to make an equity contribution of N200m to complete the payment. The bank opened a mortgage account, credited it with N300m and transferred the funds to Carlin International, owned by the developer. However, because Adoke could not raise his equity of N200m, Abubakar had to return the N300m to Unity Bank. The bank took the money and closed the account. The developer then sold the property to the CBN. All the documents presented in court by the prosecutors as provided to them by EFCC established the facts.

Actually, Adoke lost money because he had to pay high interests on the loan. But the prosecutors fiddled with the facts.

Since there was an agenda, the prosecutors said the same property had previously been purchased for N700 million by Abubakar. What they maliciously hid from the court was that three buildings were being developed on the 5,500sqmtr-plot. They also did not tell the court that it was just one of the three buildings that was offered to Adoke for N500 million. They made it look like it was the entire property and cruelly calculated a discounted “benefit” of N200 million. This is evil, to put it mildly.

Also, they failed to disclose to the court that the property now belongs to the CBN who bought it in 2013 because Adoke could not complete the payment. Adoke said he had been hoping to sell a plot of land in Abuja to raise his N200m equity but he did not get a buyer. He never said he was going to pay for it from his salaries as a public officer. But this was the impression presented to the court.

To sum up, the Italian court has, after an extensive trial, put a lie to the allegations levelled against Adoke over his role in the OPL 245 deal. The Justice Binta Nyako of the Federal High Court declared in 2018 that Adoke could not be held personally liable for carrying out a lawful presidential order. The US Department of Justice investigated the transaction and brought it to a close in October 2019 without any charges.

The US Securities and Exchange Commission (SEC) closed its own investigation in April 2020. As yet, no court of law has concluded that the OPL 245 deal is a scandal. It is just the narrative cooked up by self-serving pseudo activists and forgers, and vented by notorious online blackmailers. The truth will eventually prevail and those who participated in the defamation should know that they will pay dearly when the stage-managed storm is finally over.

Oboro, a lawyer at Gromyko Amedu Solicitors, writes from London