Minister of Justice and Attorney-General of the Federation (AGF) Abubakar Malami (SAN) has urged a Federal High Court in Abuja to dismiss a suit challenging the competence of the charges filed against ex-AGF, Mohammed Adoke (SAN) and others over their alleged involvement in the $1.1bn Malabu Oil scam.
Malami also insisted that Adoke and others named in the charges must subject them selves to the court’s jurisdiction to prove their innocence.
The AGF position is contained in the documents he filed opposing Adoke’s suit before a Federal High Court in Abuja, urged the court to decline jurisdiction to hear the case.
He argued that such civil suit “cannot be used to stop criminal prosecution already initiated”.
Malami noted in his papers that the charges which its validity Adoke was challenging were five counts involving the fraudulent transfer of billions of dollars derived from the Oil Processing Licence 245 deal.
Adoke had in May 2017 filed his suit against his successor as the sole defendant, urging the court to declare as illegal his prosecution by the EFCC with respect to his involvement in the deal between Malabu Oil and Gas Limited and the Federal Government over OPL 245.
Malami, through the Permanent Secretary and the Solicitor-General of the Federation of the Federal Ministry of Justice, Mr. Dayo Apata, filed in response to the suit, a notice of preliminary objection challenging the competence of the suit and the court’s jurisdiction to hear it.
He also filed a counter-affidavit challenging the merit of the case.
Malami contended in his notice of preliminary objection that the suit was not only competent but that a civil suit such as Adoke’s could not be used to stop a criminal trial that had been instituted.
The four grounds of Malami’s preliminary objection to the suit read, “The plaintiff has not disclosed any cause of action in the suit.
“The civil suit cannot be used to stop criminal prosecution already initiated.
“That the plaintiff’s suit as constituted is incompetent.
“That this honourable court lacks jurisdiction to hear and determine the plaintiff’s suit.”
Thomas Etah of the Federal Ministry of Justice who deposed to the AGF’s counter-affidavit, stated that Adoke’s suit did not disclose any dispute between the former AGF and his successor, since it was EFCC that investigated the case and found it worthy to institute the charges.
Malami described Adoke’s suit as an abuse of court process, as he insisted that contrary to the former AGF’s claim in the suit, the charges initiated against him by the EFCC had nothing to do with “actions authorised by the President”.
The counter-affidavit read in part,, “That from the documents and the processes, the plaintiff did not show any dispute between him and the defendant.
“That the plaintiff’s suit does not disclose any cause of action.
“That there are allegations of commission of financial crime by the plaintiff.
“That the Economic and Financial Crimes Commission has investigated the activities relating to the said money and has come to the conclusion that a prima facie case has been established against the plaintiff.
“That the EFCC has drafted and filed a five-count charge against the plaintiff. A copy of the charge sheet dated January 30, 2017, the verifying affidavit dated March 2, 2017 together with the proof of evidence and dated March 2, 2017, all of which were filed on March 2, 2017, is hereby attached and numbered as Exhibit HAGF.
“That the charges filed against the plaintiff does not relate to actions authorised by the President to be carried out by the plaintiff.
“That the plaintiff’s suit is an abuse of court process.”
Adoke had maintained in his originating summons that his involvement in the Malabu Oil deal as a serving minister was based on the presidential directive of former president, Goodluck Jonathan.
In the suit filed on his legal team led by another former AGF, Chief Kanu Agabi (SAN), Adoke asked the court to determine whether by virtue of sections 5(1), 147(1), 148(1) and 150(1) of the 1999 Constitution a serving minister of the country could perform the “executive power of federation vested on the President as directed by the President.”
He urged the court to declare that his involvement in the negotiation between the Nigerian government and Malabu Oil and gas Limited, Shell, Nigeria national Petroleum Corporation (NNPC) and Agip in the matter of OPL 245 was in “furtherance of the lawful directive/approval of the president in the exercise of his powers.”
The former AGF also asked the court to declare that any correspondence he had with J.P Morgan and any other entity and ancillary actions and processes taken in respect to the Malabu Oil deal was in obedience to the lawful directive of the president in the exercise of his executive power.
He also urged the court to declare that his prosecution by the EFCC in respect of Malabu deal on the account of carrying out the president’s directive was illegal, null and void.
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