FG, Shell, Agip lose bid to stop Abacha’s suit to reclaim Malabu’s OPL 245

By Eric Ikhilae, Abuja

A Federal High Court in Abuja has rejected moves by the Federal Government, Shell Nigeria Exploration, Nigeria Agip Exploration Company and others to prevent the hearing of a suit seeking to reclaim the Oil Prospecting License (OPL) 245 originally awarded to Malabu Oil and Gas Limited.

The suit, marked: FHC/ABJ/CS/201/2017 was filed in the name of Malabu Oil and Gas Ltd by Mohammed Sani Abacha, son of the late Head of State, Sani Abacha, who claimed to be the majority shareholder of the oil firm.

In a ruling on Tuesday, Justice Binta Nyako dismissed the preliminary objections filed by the defendants in the case and held that the court has jurisdiction to hear the case with relates to oil and gas.

As against the contention by the defendants, Justice Nyako also held that the suit was not caught by the Public Officers Protection Act and as such, was not statute-barred.

She further held that the plaintiff was right to have included the Minister of Petroleum as a defendant because the minister being a juristic personality could sue and be sued.

Justice Nyako held that, as against the contention by the defendants, the suit did not amount to an abuse of the process of the court, adding that the plaintiff rightly instituted by case, because no evidence exists that issues raised have not been determined by any other court.

After lawyers to parties, including Reuben Atabo (for the plaintiff), assured the court that they were ready to proceed to the hearing of the substantive suit, Justice Nyako adjourned till March 9, 2021, for hearing.

Defendants in the suit are the Federal Government of Nigeria, the Minister of Petroleum Resources, Shell Nigeria Ultra-Deep Ltd, Shell Nigeria Exploration and Production Company Ltd, Nigeria Agip Exploration Company Ltd and former Petroleum Minister, Dan Etete.

In its statement of claim, the plaintiff stated among others, that it was not part of the purported allocation of the OPL 245 to Shell and Agip and for which they allegedly paid $1.3billion to Etete, with the FG providing the account into which it was paid as its actual shareholders were excluded from the process.

The plaintiff added that it was also not part of the Block 245 Resolution Agreement of April 29, 2011 entered between the FG, Shell, Agip and Etete, purporting to represent Malabu Oil, adding that it “did not relinquish any or all of its rights and interests in OPL 245 to any person or persons.”

It added that the purported allocation of OPL245 to Shell and Agip in 2011 is in violation of its rights as the holder of the “OPL 245 to exclusively explore and prospect for petroleum with the area its licence, pursuant to Paragraph 5 of the First Schedule to the Petroleum Act, and is therefore null and of no effect.”

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The plaintiff is praying the court for, among others, an order of perpetual injunction restraining the defendants from carrying out any exploration or prospecting activities in connection with or in relation to the area covered by OPL 245.

It wants the court to make an order compelling the defendants to restore to it, its right to the exclusive possession of OPL 245.

The plaintiff also wants a declaration that not being a party to the Block 245 Resolution Agreement dated April 29, 2011, any payment purportedly made by the defendants into any bank account purporting to be the plaintiff’s bank account and or made to the 7th defendant (Etete) purportedly in the name of the plaintiff, was not a payment made in pursuance of the said bloc 245 resolution agreement.

It wants a declaration that the allocation of OPL 245 by the 1st and 2nd defendants (FG and Petroleum Minister) to the 4th and 5th defendants (Shell and Agip), via a letter by the Petroleum Minister, on May 11, 2011, titled “Re: OPL 245 Resolution Agreement/Letter of Award”, while the plaintiff’s rights and the interests to OPL 245 was subsisting, is in violation of the plaintiff’s exclusive right under paragraph 5 of the First Schedule to the Petroleum Act, to explore and prospect for petroleum within the area covered by OPL 245 and is therefore invalid, wrongful, null and void and of no effect whatsoever.