Malami, in his papers filed to oppose his predecessor’s suit, contended that the court lacked jurisdiction to hear the case and that such civil suit “cannot be used to stop criminal prosecution already initiated.”
Malami noted in his papers that the charges which its validity Adoke was challenging were five counts involving the fraudulent transfer of billions of dollars derived from the Oil Processing Licence 245 deal.
Adoke had in May 2017 filed his suit against his successor 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 OPL 245.
Malami, through the Permanent Secretary and the Solicitor-General of the Federation of the Federal Ministry of Justice, Mr. Dayo Apata, filed in response to the suit, a notice of preliminary objection challenging the competence of the suit and the court’s jurisdiction to hear it.
He also filed a counter-affidavit challenging the merit of the case.
Malami contended in his notice of preliminary objection that the suit was not only competent but that a civil suit such as Adoke’s could not be used to stop a criminal trial that had been instituted.
The four grounds of Malami’s preliminary objection to the suit read, “The plaintiff has not disclosed any cause of action in the suit. The civil suit cannot be used to stop criminal prosecution already initiated.
“That the plaintiff’s suit as constituted is incompetent and that this honourable court lacks jurisdiction to hear and determine the plaintiff’s suit.”
Thomas Etah of the Federal Ministry of Justice, who deposed to the AGF’s counter-affidavit, stated that Adoke’s suit did not disclose any dispute between the former AGF and his successor, since it was the EFCC that investigated the case and found it worthy to institute the charges.
Malami described Adoke’s suit as an abuse of court process, as he insisted that contrary to the former AGF’s claim in the suit, the charges initiated against him by the EFCC had nothing to do with the “actions authorised by the President.”
Adoke 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.
In the suit filed on his legal team led by another former AGF, Chief Kanu Agabi (SAN), Adoke 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 federation vested on 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, Nigeria 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 Constitution.
He also urged the court to declare that he could be held liable for carrying out lawful directive/approval of the president while he served as a minister.
The case, which is now before Justie Binta Nyako of the Federal High Court in Abuja, has been scheduled to come up on February 1.
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