The Federal High Court, Abuja, on Monday reserved ruling till March 13, on two separate applications filed by Shell Nigeria Exploration Ltd, and Nigeria Agip Exploration Ltd, seeking reversal of the Malabu oil block forfeiture order.
The court granted an order of forfeiture, to the EFCC in respect of the Oil Prospecting Licence (OPL) 245.
The two companies want the court to set aside the order it made on Jan. 26, on the grounds that the EFCC Chairman, in the ex- parte motion, was not the proper person to make such an application.
Counsel to Shell, Prof. Koyinsola Ajayi (SAN), told the court that the EFCC chairman was wrong in law to have brought the ex-parte motion that led to the order of forfeiture in his capacity as chairman.
Ajayi said that Section 28 of the EFCC Act did not allow the chairman to bring an ex- parte application in his capacity as chairman.
He added that the application having been brought by an incompetent person could not invoke the jurisdiction of the court.
Ajayi added that the order that was made was supposedly to preserve property or assets. He, however, said that there was nothing to show that the property in question could be destroyed or moved.
“This is a licence over some thousands of kilometres over the ocean and the ocean cannot be destroyed or taken away or put under seal by the EFCC.”
He maintained that it was an intangible thing that was subject to the control of the Federal Government.
Ajayi submitted that there were three conditions precedent which ought to have been met by the EFCC before bringing the ex-parte motion.
He said that the EFCC ought to have made arrest, trace the property, apply for an order of attachment before seeking an order of forfeiture. Since these three conditions were not met, he argued, the order of forfeiture granted was a nullity.
According to him, by not following the laid down precedent, the EFCC has abused court processes and to that effect, their case is patently hopeless.
He said that Section 115 of the Evidence Act was “violently violated,” because the EFCC in its supporting affidavit claimed that it had concluded investigation, whereas the order of attachment could only be applied for pending investigation.
He said that there was nothing to show that the order of attachment was a fallout of a nine-count charge filed against the two oil companies before another court as was claimed by the EFCC.
Ajayi said there was nothing in that charge that showed that it had anything to do with OPL 245, and that the claims that it was fallout could not hold water.
The EFCC counsel Mr Johnson Ojogbane, asked the court to dismiss the two applications on the grounds that there was no proper suit before the court.
He said that the ex-parte application was filed by the chairman in line with Section 44 of the 1999 Constitution, and as such was a competent person to bring the said application on behalf of the commission.
Ojogbane said that the application lacked merit and should be dismissed, as granting it would be a disservice to the Federal Government and Nigerians.
He urged the court not to vacate the forfeiture order in respect to OPL 245 because of the element of criminality involved.
Justice John Tsoho adjourned the matter till March 13 to rule on whether to set aside the order of attachment or not.
Justice Tsoho had granted the order of forfeiture following an ex-parte motion filed by the EFCC.
The court ordered that the property be managed by the Department of Petroleum Resources on behalf of the Federal Government, pending the conclusion of investigation and prosecution of all those involved.
The EFCC counsel in the motion had noted that the investigation bordered on alleged acts of conspiracy, bribery, official corruption and money laundering.
Nine suspects were charged to court over the issue in 2016, including the former Attorney-General of the Federation and Minister of Justice, Mr Mohammed Adoke.
Shell and Agip had approached the court on Feb. 14 asking for an order to discharge the order of forfeiture of OPL 245.
