Malabu Oil Scam: Shell, Agip Ask Court to Vacate Interim Forfeiture Order

Shell Nigerian Exploration & Production Company and Nigerian Agip Exploration Limited have filed applications before a Federal High Court, Abuja, seeking to set aside an order of forfeiture granted the Economic and Finacial Crimes Commission(EFCC) in respect of Oil Prospecting Licence OPL 245 also known as Malabu oil.
Justice John Tsoho had on January 26, 2017 issued an order of interim forfeiture of Oil Operating Licence 245 to the Federal Government following the Economic and Financial Crimes Commission (EFCC) experts motion that the licence was a proceed of crime.
On Monday, Prof. Olaniwun Ajayi (SAN) counsel representing Shell and Babatunde Fagboke (SAN) counsel representing Agip, urged the court to vacate the order.
Arguing the Shell application, Ajayi stated that EFCC did not meet the conditions prescribed in the EFCC Açt such as arrest, trace and an application to the court for attachment before it rushed to the court for an order of forfeiture.
He prayed the court to set aside the order made on 26 January because conditions precedent were not met by EFCC before the agençy obtained the order.
The counsel also said that the EFCC Chairman did not only filed a wrong court process but misled the court in issuing the forfeiture order without hearing from Shell and Agip.
“The orders obtained are supposedly to provide property or asset. In the application there is no property within the EFCC Act that show that property (licence) is tangible What is in the case it is licence. It is incapable of destruction or be moved. It is in the ocean. It cannot be taken away or destroyed. Nothing that can be seized or kept in the custody of the EFCC rather it a chosen action.
“The prospective license is subject to total control of the Federal Government”, he argued.
On his part, counsel to Agip , Fagboke while adopting the submissions of Ajayi added that it is unconstitutional to attach properties belonging to parties through an exparte motion because it denied them fair hearing.
According to him, “Sectio 28 allows the EFCC to seize an asset, but it must immediately follow such seizure with a motion on notice; that application has to be on notice, because the (EFCC) statute does not authorise it to be ex-Parte”
He further said the Supreme Court had in previous rulings ordered that an ex-parte motion cannot be given in such a manner as to remain ex-parte till the end of the case.
“According to section 28, the interim order should be accompanied with an inter-party motion.
“The exercise of a power has a condition precedent. The condition precedent is that there must be precise rules. If the regulatory framework is missing, your lordship must dismiss this action,” Fagboke said.
But EFCC counsel Johnson Ojogbane said that the arguments of both counsel were misconceived therefore should be discountenanced.
Stating that OPL 245 is tangible, the counsel added that the order was properly made to prevent any action on the oil block.
“OPL 245 is a subject of criminal investigation and prosecution .In fact, there are charges now before the court on the criminality . He added that “the order was not only about preserving the subject matter but stopping criminality from progressing.”
EFCC counsel maintained that asking the court to vacate the order was a disservice to the country and if granted will be harmful to criminal justice in the country.
According to him, the application lacked merit and should be dismissed.
After listening to arguments for and against vacation of the order, Justice Tsoho fixed March 13 for ruling.
Earlier, the court had overruled Abdullahi Haruna who announced appearance for Malabu Oil and Gas. The counsel had wanted the court to stand down the matter to enable him fetch an application he filed seeking to vary the court order.
He also told the court that Malabu had filed three applications.

Author: News Editor

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