Nigeria’s former Minister of Petroleum, Chief Dan Etete during the week filed a suit before an Abuja High Court seeking to restrain the Economic and Financial Crimes Commission(EFCC) from arresting him despite a pending suit challenging an ex-parte order for his arrest before the same court.
Chief Etete served as Petroleum Minister to the late military Head of State, Gen Sani Abacha, when he was alleged to have used his office to procure an oil block, OPL 245, for himself under his company, Malabu Oil and Gas Limited.
Succeeding governments since the time of former President Olusegun Obasanjo has intervened in the matter. While Obasanjo initially withdrew the license to the oil block from Malabu, and re-awarded it to Shell. He towards the end of his tenure gave the license back to Malabu. The late President Umaru Musa Yar’Adua also investigated the matter but could not do much as the transactions had attracted several law suits in both local and international courts, including courts of arbitration in the United Kingdom, United States, Italy and Nigeria.
Former President Goodluck Jonathan sought to put an end to the myriad of litigations through London arbitration court decision that directed Shell to pay Malabu for the block and take over. Shell allegedly paid to Malabu $1.2 billion to regain OPL 245 in partnership with another International Oil Company (IOC), ENI of Italy.
Things appeared to have died down until it reached the present administration of President Muhammadu Buhari who got information that substantial amount from the moneys paid ended in the pockets of private public officers under the Jonathan administration. At the same time, Shell and ENI began to face criminal prosecutions in London and Milan on charges of money laundering over the OPL 245 deal.
On April 12, 2019, the Legal and Prosecution Department of EFCC moved against alleged principal actors in the OPL 245/Malabu debacle. The anti-graft agency through her lawyers, Aliyu Yusuf, Offem Uket, and Mohammed Abubakar filed a Motion Ex-Parte before an Abuja High Court, asking for warrants of arrest against them. They are Shell Nigeria Exploration Production Company Ltd, Nigeria AGIP Exploration Limited, ENI SPA, Raph Wetzels, Casula Roberto, Pujato Stefeno, Burrato Sebastiano, Duazia Louya Etete(a.k.a Dan Etete), Mohammed Bello Adoke, Aliyu Abubakar, and Malabu Oil and Gas Limited.
On April 17, 2019, Justice D.Z Senchi of the court granted the ex-parte order. He ordered that six out the eleven defendants be arrested both “within and outside the jurisdiction of the honourable court”.
On May 9, 2019, lawyers to Chief Etete, Ikoli and Okagbue and Co swiftly filed a Motion on Notice before Justice Senchi, seeking an order of the court to set aside the bench warrant issued by the court, particularly against Chief Etete. He also sought an order restraining the complainant whether by itself, privies, or agents from approaching, contacting, or informing the International Criminal Police Organization(INTERPOL) to either execute or register the arrest warrant issued by the court.
The lawyers argued that the warrant of arrest issued by the court against Etete was issued without jurisdiction and ought to be set aside. They further argued that the information in charge no FCT/HC/CR/124/17 that culminated in the present criminal proceedings was neither served on the defendant/applicant herein nor was any legally cognizable attempt in this regard made. “The bench warrant issued by this honourable court herein was issued in breach of the applicant’s right to fair hearing guaranteed under section 36(1) of the constitution of the Federal Republic of Nigeria, 1999 as amended”.
In its response, EFCC filed a counter affidavit before the court. In the 27 paragraph affidavit deposed to by an operative of the agency, Ahmed Ibrahim, the agency stated that the applicant had knowledge of the charge pending before the court but chose to evade service of the charge and absconded to face trial. It acknowledged that it had contacted INTERPOL through Nigerian police to assist in his arrest so that he could be brought before the court to face trial. He averred that the warrant of arrest was one of the requirements of INTERPOL to assist in the arrest.
But Chief Etete’s lawyer insisted on points of law that EFCC did not serve their client, saying non service in a fundamental flaw capable of ousting jurisdiction of the court. They quoted the Court of Appeal decision in Peremolizze Nigeria Ltd vs Globe Motors Holding Ltd which stated that “The law is settled that failure to serve process where service of process is required is a failure which goes to the root of the case. Service of process in any give case is so fundamental in that the court’s jurisdiction and competence can only be activated when such service of process is affected”.
The court was yet to give its decision on the case during the week when EFCC brought INTERPOL into the case to arrest the defendant. His lawyers quickly intimated the court of the move through a motion ex-parte, and Originating Summons seeking a prohibitive order to stop EFCC from executing the warrant of arrest pending the determination of the suit before the court. Joined as defendants are the Inspector General of Police, Commissioner for Police, INTERPOL and the Department of State Service(DSS).
The lawyers insisted that it would not only amount to robbery of the court of the opportunity to consider the parameters of the issuance of the bench warrant, it will also amount to an infringement of the fundamental human rights of the applicant to freedom of movement, fair hearing, and liberty.
The lawyers further argued that EFCC, upon receipt of the application challenging the bench warrant ordered by the court, and having filed a counter affidavit, ought to have waited for the decision of the court, and inform all security agencies and other sister organisations working on the arrest of the applicant, of the pending application, thereby instructing them to stay execution of the order.
In urging the court to restrain EFCC, the lawyers stated: “If this application is not heard, and the applicant’s prayer is not granted, the action of the respondents shall foist a fait accompli on the honourale court, and will render nugatory and merely academic exercise in nature whatever decision the court makes upon the hearing and determination of the pending application”.
The court is yet to hear the case.