Malabu Oil: A Review of Adoke v AGF
IIntroduction n a now-widely circulated judgement delivered by Hon Justice Binta Nyako on Friday, the 13th day of April, 2018, the Federal High Court sitting in Abuja upheld the primacy of the repository of the executive powers of the Federation in the President, by virtue of Sections 5, 147(1), 148 and 150 of the 1999 Constitution. The court handed down the landmark decision in a suit filed by Mr. Mohammed Bello Adoke, SAN, the erstwhile Attorney- General of the Federation and Minister of Justice, under the immediate past administration of former President Goodluck Jonathan.
Background Justice Nyako’s judgement was the culmination of Mr. Adoke’s suit, in which he sought five declarations against the incumbent AGF, Abubakar Malami, on the legality of the role he played in relation to the disposal of OPL (Oil Prospecting Licence) 245. In the interest of completeness and accuracy, it is better that the orders which the learned trial judge made in the judgement speak for themselves. She had declared as follows:
(1) The involvement of (Mr. Adoke) in the negotiations leading to the implementation of the Settlement Agreement dated 30th November, 2006 between Malabu Oil and Gas Limited and the Federal Government of Nigeria and the eventual execution of Block 245 Malabu Resolution Agreement dated 29th April, 2011 between the Federal Government of Nigeria and Malabu Oil and Gas Limited, was in furtherance of the lawful directives/approval of the President in the exercise of his executive powers.
(2) The involvement of (Mr. Adoke) in the negotiation and eventual execution of the Block 245 SNUD Resolution Agreement dated 29Ih April, 2011 between the Federal Government of Nigeria and Shell Nigeria Ultra Deep and Shell Nigeria Exploration and Production Company Limited, was in furtherance of the lawful directives/approval of the President in the exercise of his executive powers.
(3) The involvement of (Mr. Adoke) in the negotiation and eventual execution of Block 245 Resolution Agreement dated 29th April, 2011 between the Federal Government of Nigeria; and Shell Nigeria Ultra Deep Limited; and Nigeria National Petroleum Corporation; and Nigeria Agip Exploration Limited; and Shell Nigeria Exploration and Production Company Limited, was in furtherance of the lawful directives/approval of the President in the exercise of his executive powers.
(4) Any correspondence/instruction to JP Morgan or any other entity and ancillary actions and processes taken by (Mr. Adoke)in furtherance of the implementation of the Settlement Agreement dated 30th November, 2006; Block 245 Malabu Agreement dated 29th April, 2011; Block 245 SNUD Resolution Agreement dated 29'h April 2011 and Block 245 Resolution dated 29th April, 2011, were in furtherance of the lawful directives/approvals of the President in the exercise of his executive powers, and
(5) (Mr. Adoke) cannot be held personally liable for carrying out the lawful directives/approvals of the President, while he served as a Minister of the Government of the Federation.
She then reviewed Exhibits 19 and 20, which were letters written on the issue by the current AttorneyGeneral of the Federation, Abubakar Malami, SAN, to the EFCC, the current Minister of State for Petroleum Resources, Dr. Ibe Kachikwu addressed to President Buhari’s Chief of Staff, respectively. In the former, Mr. Malami had advised that the charges against Mr. Adoke, arising from his role in the disposal of OPL 245, were weak and could not reasonably sustain a conviction. In the latter, the Minister of State for Petroleum Resources endorsed Mr. Malami’s opinion in Exhibit 19.
In resolving all the issues formulated by Mr. Adoke in his favour (except the one declaring his prosecution by EFCC, illegal), the court rejected the contention of the Defendant (the current AGF), that Mr. Adoke exceeded the directives of President Jonathan, and in the process, committed a crime (or crimes). In the court’s opinion, Exhibits 19 and 20, showed that Mr. Adoke acted within the lawful directives of former President Jonathan. Accordingly, she concluded that Mr. Adoke was protected by the law. This is surely sensational, and cannot but be welcome news for Mr. Adoke.
This is particularly the case, with regard to the most potentially damaging allegation of all, that of corrupt personal enrichment arising from the transfer of over $1billion in settlement of the dispute. On this, the court held that, Mr. Adoke merely carried out the lawful directives of Mr. Jonathan. I believe that this finding, neatly dovetails into the provisions of Section 45 of the Penal Code which stipulate, inter alia, that “Nothing is an offence if done by any person who is justified by law”. The significance of Justice Nyako’s findings and this provision, is better imagined.
The Fallout Given the refusal of the court to grant Mr. Bello’s further prayer to invalidate the three-odd sets of criminal charges pending against him in connection with the disposal of OPL 245, the obvious question is: what is the implication, if any, of the aforesaid findings of the court on those charges? That is the million-dollar question. We must however, caution ourselves that any detailed review of this here, would be inappropriate, as they are sub judice and would run foul of the refrain of the Hon. Chief Justice of Nigeria, which he expressed earlier this year against such “unguarded utterances”.
Suffice it to say that, generally speaking, (and without prejudice to the pending charges), the Supreme Court has held in a plethora of cases, that “estoppel per rem judicatam or estoppel by record, arises where an issue of fact has been judicially determined in a final manner between the parties by a court or tribunal having jurisdiction, concurrent or exclusive in the matter, and the same issue comes directly in question in subsequent proceedings between the parties or their privies.” See DOKUBO v OMONI (1999) 8 NWLR pt. 616 pg. 647 @ 669 per Kalgo, JSC.
In FADIORA v GBADEBO (1978) 3 S.C. 219 @ 228, the Apex Court recognised two kinds of estoppel by record inter parties thus: “The first is usually referred to as ‘cause of action estoppel’, and it occurs where the cause of action is merged in the judgement, i.e, transit in rem judicatam... a second kind of estoppel inter partes, occurs where an issue has earlier been adjudicated upon by a court of competent jurisdiction, and the same issue comes incidentally in question, in any subsequent proceedings between the same parties (or their privies); in these circumstances, “issue estoppel” arises.” The court further opined that: “For the principle to apply in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must exist, that is: (i)The same question must be for decision in both proceedings (which means that the question for decision in the current suit, must have been decided in the earlier proceedings); (ii)The decision relied upon to support the plea of issue estoppel must be final and (iii)The parties must be the same (which means that parties involved in both proceedings must be the same per or by their privies)”.
The question is: to what extent, if any, do these conditions exist vis-à-vis Justice Nyako’s decision and the criminal charges pending against Mr. Adoke? Are the parties in both sets of proceedings (or their privies) the same? Are there any similarities between the issues in both sets of proceedings?. None of these questions can, however, be safely answered here - or anywhere else outside the courts where those criminal charges are pending - without running foul of the sub judice rule. Accordingly, we once again, defer to the superior wisdom of Hon. Chief Justice Onnoghen in his admonition earlier referred to.
Conclusion It is clear that, the aforesaid findings by Justice Nyako, that Mr. Adoke acted as the agent of a disclosed principal, former President Goodluck Jonathan, has all but absolved the former of any wrongdoing in relation to the disposal of OPL 245. However, whether those findings are applicable to the criminal charges pending against him, which are alleged to have arisen from the same circumstances, i.e., that the Nigerian State is estopped from asserting a position contrary to those findings, would be utterly presumptuous of this paper to speculate upon.
In other words, it is within the exclusive purview of those courts, to make that determination at the appropriate time(s). Suffice it to say that, Justice Nyako’s interpretation of Sections 5, 147, 148 and 150 of the 1999 Constitution in the context of the relationship between former President Jonathan and Mr. Adoke, ought to be of more than passing interest to all Nigerians, given the trite position of the law, that a person is not criminally liable for an act or omission which he allegedly commits in obedience to the order or lawful directives of a competent or superior authority, which he is bound by law to obey. See EDEDEY v THE STATE (1972) 1 All NLR 280; NWAOGA vs THE STATE (1972) 2 ECSLR 244; UDOSEN v THE STATE (2007) 4 NWLR pt. 1023 pg. 125, and ANOM v THE STATE (1972) 12 S.C. 42. Justice Nyako has already held that Mr. Jonathan’s directives to Mr. Adoke on OPL 245 were lawful. What follows, remains to be seen.
“IT IS CLEAR THAT, THE AFORESAID FINDINGS BY JUSTICE NYAKO, THAT MR. ADOKE ACTED AS THE AGENT OF A DISCLOSED PRINCIPAL, FORMER PRESIDENT GOODLUCK JONATHAN, HAS ALL BUT ABSOLVED THE FORMER OF ANY WRONGDOING IN RELATION TO THE DISPOSAL OF OPL 245”