Court refuses to suspend trial for EFCC to hunt fresh evidence

The Economic and Financial Crimes Commission (EFCC) on Friday failed in its efforts to convince an Abuja court to put the Malabu case trial on hold to buy time to scout for fresh evidence against key defendants in the almost four years long proceedings.

The commission, through one of its lawyers, Sylvanus Tahir, a Senior Advocate of Nigeria (SAN), urged the court to adjourn the trial to a later date, stressing that the President Bola Tinubu administration was highly interested in the case.

He said the newly appointed EFCC chair, Olanipekun Olukoyede, asked him to request the adjournment of the case to facilitate further investigations to shore up the case.

But the judge, Idris Kutigi of the Federal Capital Territory (FCT) High Court, Abuja, rejected the request for an adjournment, upholding defence lawyers’ objection to it.

“It is going to be a bad legal basis to grant an adjournment,” Mr Kutigi said of the reason cited by the commission for requesting an adjournment. “The court is guided by extant laws and the constitution, so it cannot be under the whims of any institution or person.”

EFCC’s move to reopen investigations came less than a month after it conceded in a filing that it lacked sufficient evidence to successfully secure the conviction of most of the defendants in the trial that started in January 2020.

The commission had called 10 prosecution witnesses during the almost four years span of the trial, before admitting in the filing it submitted to the court on 23 December 2023 that it lacked evidence to secure the conviction of six out of the seven defendants.

Charges and defendants

Key among the 40 counts alleged in the case centre around a 2011 agreement brokered by the federal government regarding the disputes over the lucrative OPL 245 oil block which had been controversially awarded to Malabu Oil and Gas Limited in 1998.

In a chain of convoluted back-and-forth events, the assets were transferred to oil giants, Shell and Eni, following the 2011 agreement backed with payments of $1.1 billion, a chunk of which prosecutors alleged was passed to some Nigerian officials as bribes.

The EFCC had alleged that Nigeria was shortchanged in the agreement leading to the transfer of the asset to Shell and Eni despite the huge revenue potentials of the block.

The then administration of President Muhammadu Buhari, which came on board in 2015, touted the case as one of the worst instances of corruption under previous governments, and vowed to bring perpetrators to justice. Mr Jonathan and his former aides denied wrongdoing, saying the agreement was packaged in the country’s best interest.

Among the principal defendants charged with various offences regarding the OPL 245 deal are Nigeria’s former Attorney-General of the Federation, Mohammed Adoke, and Eni’s Nigeria Agip Exploration Limited, as well as two Shell subsidiaries – Shell Nigeria Ultra-Deep Limited and Shell Nigeria Exploration Production Company Nigeria Limited.

Also charged in the case was Malabu Oil and Gas Limited, which was in 1998 allocated the OPL 245 oil block, by the Sani Abacha regime’s Minister of Petroleum, Dauzia Etete, better known as Dan Etete.

The defendants also include Aliyu Abubakar, a businessman accused of serving as a middleman for the distribution of bribes concerning the transaction.

Another of the defendants is Rasky Gbinigie, accused of committing sundry offences, including document falsification aimed at fraudulent alteration of ownership and structures of the shares of Malabu Oil and Gas Limited, and fraudulent conversion of funds in the company’s account, offences which he allegedly committed in conspiracy with others. Mr Gbinigie was charged alone in 35 out of the 40 counts.

The EFCC reluctantly closed its case in the trial that started in January 2020 with the testimony of its 10th prosecution witness on 19 October 2023.

In response, the defence lawyers said they would file a “no-case submission” for their clients, a filing that calls for the termination of trial midway without proceeding to defence on the grounds of alleged failure of the prosecution to provide cogent evidence linking them to the alleged offences while presenting its case.

‘No case’

The defendants filed their no-case submissions in November 2023, calling on the court to discharge and acquit them because, according to them, it is pointless for the trial to continue to defence stage, as no cogent evidence was led to prove the case against them.

On 20 December last year, EFCC’s prosecuting counsel, Offem Uket, in his filing responding to Mr Adoke’s no-case submission, surprisingly agreed that the commission had all along lacked sufficient evidence to successfully prosecute six of the seven defendants.

Mr Uket wrote that the only defendant it had presented sufficient evidence against is the third defendant, Mr Gbinigie, who is charged with sundry offences, including document falsification, abetting and other sharp practices that helped to manipulate Malabu’s shares to give Mr Etete, the former petroleum minister, the control over the company’s bank accounts.

Call for adjournment and stiff objection

But appearing for the prosecution on Friday, EFCC’s top prosecutor, Mr Tahir, acknowledged the “lack of evidence” on the part of the prosecution, but appealed that the matter be further adjourned for further investigations.

Opposing the application, defence lawyers said it was too late in the day to ask for such an adjournment at the stage of arguments over the no-case submissions filed by defendants.

They opposed the application the same way they rejected the commission’s previous request for an adjournment to call an additional witness in October last year. The judge ruled in their favour, forcing the commission to reluctantly close its case after its 10 prosecution witnesses testified on 19 October 2023.

Mr Adoke’s lawyer, Kanu Agabi, a SAN and former attorney general, rejected EFCC’s adjournment plea, which he described as frivolous.

READ ALSO: Malabu: EFCC surrenders, says no evidence of wrongdoing against Adoke, others

Mr Agabi said his client has been unjustly prosecuted, describing the plea for adjournment as both immoral and unjustifiable.

“Mr Adoke is facing a trial that cannot be justified and he has not been able to practice law for the past four years. I am asking the court to reject the plea,” he said.

Also opposing the request for adjournment, Wole Olanipekun, a Senior Advocate of Nigeria (SAN) representing the second defendant, Mr Abubakar, said it was baseless to adjourn the case just because the EFCC chair asked for it.

Except Malabu’s lawyer, other defence lawyers aligned themselves with the submissions of Messrs Agabi and Olanipekun.

Ruling, the court agreed with the defence lawyers.

“I have carefully considered the submission, the ground for adjournment is at my discretion, but the prosecution counsel did not provide a substance upon which an adjournment should be granted.

“It is obvious here that the prosecution had five months since the adjourned date to have looked into the case, and know what to do.

“The direction is very clear and all have filed their no-case submissions and the prosecution counsel has also joined in the filing,” Mr Kutigi ruled.

After dismissing EFCC’s call for an adjournment, the court asked the parties to address him on the no-case submissions filed by the defendants.

After the arguments, the court adjourned until 29 February for ruling.