Justice Binta Nyako of the Federal High Court in Abuja, on Thursday, heard Adoke’s suit challenging the five counts instituted against him by the anti-corruption agency and adjourned till February 28 for judgment.
At the hearing on Thursday, Malami told the court that having been suspected of diverting public funds, Adoke could not use the civil suit filed before the court to shield himself from prosecution.
Malami, who was represented by the Permanent Secretary and Solicitor-General of the Federation of the Federal Ministry of Justice, Mr. Dayo Apata, added that his predecessor’s suit could not be used to truncate a criminal trial initiated by the EFCC.
He maintained that the suit disclosed no reasonable cause of action, adding that it could not be used to stop a criminal case.
The Permanent Secretary said, “We submit that the plaintiff cannot use this court to shield himself from prosecution having been suspected of diverting public funds.
“We urge this court to hold that this suit did not disclose any cause of action.
“We urge the court to dismiss the suit in its entirety.”
Adoke had in May 2017 filed his suit against Malami, 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 the oil field covered by the Oil Prospecting Licence 245.
He 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.
His lawyer, Chief Kanu Agabi (SAN), who is also a former AGF, adopted the papers filed on behalf of his client on Thursday, and urged the court to grant the six prayers contained in it.
While making his submissions, Agabi referred to a document marked Exhibit 1 which he said conveyed the then President’s approval of the settlement deal which Adoke acted on.
He urged the court to hold that the plaintiff had not done any wrong for obeying the President’s directive.
He also referred the judge to paragraphs 2 and 3 of Exhibit 19 in which Malami had in his legal opinion sent to the Acting Chairman of the EFCC, Ibrahim Magu, that the proof of evidence in the case file did not link Adoke and other defendants charged to the offences disclosed.
But Apata explained that the letter by the AGF, which also urged the EFCC to carry out further thorough investigations, “does not remove the culpability of the plaintiff.”
The part of the letter dated September 20, 2017 cited by Agabi stated, “Having fully examined the entire case file, I am inclined to request you to reconsider the charge in relation to the composition of the parties, the offences, the proof of evidence and the case summary in view of the fact that nothing in the proof of evidence appears to have directly linked the parties to the offences as charged.
“A curious observation of the entire file, clearly indicates that the proof of evidence is unlikely to support the counts which border on fraud, conspiracy and money laundering.”
But Apata, had also relied on the concluding part of the letter which only called for further investigation and did not exonerate Adoke.
The part of the letter read, “On the above grounds, I am of the considered view that there is the need to consolidate on the charges and the matter be thoroughly investigated especially regarding the allegations of wrongdoing in connection with the $1.1bn USD in order to satisfy the constituent elements of offences.
“You are to also take steps to urgently file an application for a worldwide mareva injunction and or the forfeiture of the assets of the beneficiaries of the $ 1.1bn USD pending the conclusion of your investigation in the areas above stated.”
Adoke , through the suit, 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 the federation vested in 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, Nigerian National Petroleum Corporation 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 asked 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 and in breach of Section 5 (1) of the 1999 Constitution.
He also urged the court to declare that he could not be held liable for carrying out a lawful directive/approval of the President while he served as a minister.
