Nigeria may not succeed anytime soon in repatriating the $308 million Abacha loot from the British Island of Jersey if the United States has its way.
Having earlier committed to helping Nigeria recover the money, part of the billions of dollars traced to the late military dictator, General Sani Abacha, the US, through its Department of Justice (DOJ), appears to be stalling the repatriation efforts.
Findings from available documents and sources knowledgeable about the matter indicate that the US had become a ‘meddlesome interloper’, in the case. It is posturing as a “global police” even when clearly in breach of Nigeria’s sovereign rights.
Recall that a repatriation agreement concerning the money was signed by Mark Temple, the Solicitor-General and Attorney-General designate of Jersey, on behalf of Jersey, Brian Benczkowski, a Deputy Assistant Attorney on behalf of the US, and Abubakar Malami, the Attorney-General of the Federation (AGF) on February 3, 2020.
But in flagrant and blatant infringement of Nigeria’s sovereignty, the United States government insisted that Nigeria present it with a list of projects it plans to spend the $308 million on.
Though senior lawyers Malami consulted over the US’ condition described it as an affront on Nigeria’s sovereignty, especially since the money belongs to Nigeria in the first place, the Buhari administration complied.
It submitted the Second Niger Bridge, the Lagos-Ibadan expressway and the Abuja-Kaduna-Zaria-Kano expressway as three of the projects to be completed with the recovered money.
However, shortly after the agreement was signed in the US, Bloomberg, citing court documents, reported that officials of the US Department of Justice (DOJ) were kicking against “plans by the Nigerian government to return $100 million to Governor of Kebbi State, Atiku Bagudu who has been helping the Nigerian government with the recovery of some of the said funds.
“The Bloomberg report further claimed that paying the money to Bagudu “may hamper future cooperation between the two nations (US and Nigeria) to recover state money moved offshore by Abacha.”
The report which insinuated that Nigeria would get only $208 million from the latest repatriation while Bagudu, would pocket the balance, jolted the Federal Government as commission to the Governor was never discussed at meetings held with officials of the DOJ.
The development was said to be the first indication to the Federal Government that the US government may not be really interested in returning the recovered money to Nigeria and may have resorted to subterfuge to stall the payment. Assurances by Malami that Bagudu would not get a dime from the recovered money have not swayed the US to reconsider its stance.
The Back Story
In 1999, the Nigerian government hired Swiss lawyer, Enrico Monfrini, to launch legal proceedings to recover assets traced to the late General Abacha, his family and associates in Switzerland, France, Jersey, the UK and other jurisdictions. The holdings of Bagudu, who was an associate of the Abacha family, were then frozen along with those traced to the Abacha’s.
To prove his innocence and protect assets he had acquired prior to his relationship with the Abacha family, Bagudu initiated a series of civil proceedings against the federal government over the freezing of the investment portfolios held by his company, known then as the Ridley Group.
In 2003, after a series of litigation, President Olusegun Obasanjo decided to resolve the issue out of court by entering into an “original settlement agreement” with Bagudu and a “global settlement agreement” with the Abacha family.
In the “final resolution” with Bagudu, the Federal Government agreed to drop all civil and criminal claims against him in the UK while he would stop all civil suits against the government.
The resolution also reportedly provided that Bagudu would forfeit some assets to the FG while he would keep his investment portfolios.
The agreement, dated August 21, 2003, was subsequently approved by a UK court and registered with the National Crimes Agency (NCA).
Section 12 of the agreement is said to have stated that, “this Agreement is governed by English Laws, and the English Courts shall have jurisdiction over any disputes arising out of or in connection with it.”
The agreement and its endorsement by a UK court, according to a Ministry of Justice source, may not have gone down well with the United States government.
In 2004, Bagudu’s previously disputed assets in Ridley, his old company, were settled in new companies under Blue Trust, and he continued to do business in the UK until a twist occurred sometime in the year 2013.
In breach of the subsisting agreement signed by the Nigerian government, Mohammed Adoke, Nigeria’s Attorney General under the Goodluck Jonathan administration on August 28, 2012, was said to have written another “Letter of Request” to the US Department of Justice requesting its support to recover more Abacha loot.
The Department of Justice, acting on Adoke’s letter, promptly filed a criminal case at a District Court in Washington DC on November 18, 2013, against Bagudu’s companies as part of the claim against the Abacha’s.
Subsequently, on February 25, 2014, the assets of Bagudu’s Blue Trusts were frozen by the English Commercial Court based on an exparte application filed by DOJ hinged on its money laundering proceedings in DC.
Bagudu’s lawyer, Ricky Tarfa was said to have written to Adoke on March 12, 2014, reminding him that government was a continuum and that his action was at variance with the agreement reached with the Obasanjo government in 2003.
Bagudu’s lawyers thereafter filed an appeal against the freeze in the UK, and it was upheld by the Court of Appeal on the ground that the procedure followed by the US was wrong. The judgement was seen as a bad defeat for the United States in “it’s expansionist posturing.”
Perhaps desperate to ensure that assets were never released to Bagudu, the US switched gear from the civil case it had earlier filed to writing the National Crimes Agency (NCA), the UK agency of government responsible for economic crimes across regional and international borders, to request that the assets held by Blue Trusts be frozen.
The DOJ hinged its new action on the claim that some of the transactions which passed through US banks and were carried out using US dollars and so should be considered as “the fruit of a poisonous tree.
” On April 16, 2014, Bagudu and his companies filed a Settlement Agreement Claim against Nigeria in the UK over the non-compliance with the 2003 agreement.
Sensing he might have played into the hands of the US Government, Adoke again wrote to the US Department of Justice clarifying that Blue Trust assets were not part of the Abacha loot to be recovered.
Adoke’s letter of June 16, 2014, to the Asset Forfeiture Money Laundering Section of the DOJ clarified that by the terms of the August 21, 2003 Settlement Agreement between Bagudu and Nigeria, “the Federal Government of Nigeria has no claim” over Blue Trust assets. He said Bagudu and the Blue companies were entitled to keep the assets under section 7.8(b) of the settlement agreement. The clause says Bagudu and his companies shall hold the assets “free from any claims existing or future, direct or indirect, contemplated or otherwise by the FRN or in whole or part at its behest or on its behalf or for its benefit”.
Adoke concluded: “accordingly, and respecting the contractual commitment made by the Federal Republic of Nigeria to the United States, I would ask that insofar as the Letter of Request from the Federal Republic of Nigeria to the United States can be read as relating to Mr Bagudu and/or the Blue Companies and/or the Ridley Assets, it should be treated as withdrawn.”
A source close to the Jonathan administration explained that “by the time Adoke’s letter was written, the deed had been done. The DOJ did not honour Adoke’s letter, insisting that the Obasanjo deal was not binding on the US.”
Bagudu’s assets have since remained frozen.
In April 2015, Bagudu made another recourse to the High Court in the UK, arguing that Nigeria had violated the 2003 agreement considering that the freeze order was based on a letter of request from the Jonathan government in 2012. The court was reported to have entered a default judgement against Nigeria on July 8, 2015.
The Federal Government entered into a revised agreement with Bagudu on October 26, 2018, a copy of which was circulated to the media.
In the agreement, the Federal Government, Bagudu and Blue companies said they had decided to resolve the settlement agreement claim “without further proceedings or dispute”.
Significantly, the agreement also stipulated that the frozen assets, now reportedly worth about $155 million, should be returned to the Federal Government as the legal owner “subject to the terms of this agreement”.
It also provided that the FG “will hold the same free from any claims existing or future, direct or indirect, contemplated or otherwise, made by the Blue Family Trusts, Atiku Bagudu or his affiliates, in whole or in part, at their behest or on their behalf or for their benefit or purported benefit, while compensating the Blue Family Trusts and Atiku Bagudu for the Settlement Agreement Claim”.
The market value of Blue Trust assets held in accounts at Waverton Investment Management Limited and James Hambro & Partners LLP, among others, were valued at €141 million, out of which Bagudu and affiliates were mandated to pay a tax of €42 million to the Federal Government of Nigeria.