EXCLUSIVE: How Malami Sealed The Deal For The Return Of $321 Million Abacha Loot

More facts have emerged on how the President Muhammadu Buhari administration concluded the deal for the return of $321 million stolen by late head of state, General Sani Abacha, which was confiscated by the court in Switzerland since December 2014.

Documents seen by the Whistler show that contrary to some reports that the deal for the return of the stolen fund to Nigeria’s Federal Government had long been concluded, it was the Buhari administration that facilitated the signing of the final agreement for the repatriation of the money.

The documents show that the foreign lawyers initially engaged for the consummation of the judicial process, which would lead to the repatriation of the loot after the forfeiture order by the court, refused the terms of engagement offered by the federal government.

Monfrini Crettol & Associates, the lawyers initially engaged by Nigeria, rejected the five percent success fee offered by the Federal Government of Nigeria as professional fees for asset recovery services.

In a letter to the Attorney-General of Nigeria, Mofrini Crettol & Associates said the “ the percentage of the proposed success fee is far below the one we had offered , and we need to assess whether it would make sense in regard of the time , costs and risk that such proceedings as the ones which are contemplated entails…

“…The cost of asset recovery through civil proceedings, both in common law and civil law jurisdiction(including advance court fee costs that often exceeds 10%), is very high and often represents in excess of 20 % to 30 % of the value at stake.”

In essence Monfrini was asking for between 20 to 30 percent of the value of recoveries made for Nigeria-a proposition the Government of Nigeria found too exhorbitant at a time the country was going through a debilitating economic recession.

This necessitated the engagement of Dipo Okpeseyi and Tope Adebay, two Senior Advocates of Nigeria with significant experience in such services at home and abroad, to take over conclusion of judicial process for the recovery of the fund at a cost of five percent of value of the money.

Contrary to speculations that the lawyers were engaged after the fund repatriation deal had been signed by Malami, the letter of engagement of the Nigerian lawyers were actually dated January 6, 2016, nearly two years before Nigeria, the Swiss Federal Council and the International Development Association signed a MOU for the repatriation of the stolen funds.

Paragraph two of the engagement letter states that : “The general scope of the engagement is to undertake the tracking and recovery by all lawful means, of illicitly-acquired assets held by the late General Sani Abacha and his associates, particularly in Luxembourg($300 million) London ($20 million) Jersey ($300 million) and France ($150 million) respectively and any such other assets for the time being held by Nigerian citizens and institutions and their foreign accomplices or associates related to the said General Sani Abacha and his associates…”

The letter also spells out the terms and conditions of the engagement, which among others stipulates “A success fee of five percent of actual recoveries made and remitted to the designated accounts of the Federal Government of Nigeria shall be paid to your firm as professional fees.”

Malami further stated that the said five percent success fee “shall be deemed to cover all the fees and expenses incurred by the firm and any agents or associates contracted by it in the course of its engagement.”

These assets, which were initially frozen in Luxemburg, were repatriated and confiscated by Switzerland as part of criminal proceedings brought by the public prosecutor’s office of Geneva against Abba Abacha in December 2014.

A lawyer at the Ministry of Justice who shed some light on the transaction said judicial processes are consummated by advocates and they do not move to conclusive end in themselves without lawyers moving them. He stated further that a judgment of a court remains stalled for good in the absence of a lawyer that moves for its execution.

Another source said “The $321 million due for remittance to Nigerian Government remains hanging in court in the absence of a lawyer moving the court for an order for such remittance. The order for repatriation was a judicial order calling for consummation of judicial process which could only be concluded by engagement of an advocate.”

This fact is further supported by the content of the Letter of Intent signed on March 8, 2016, between the Swiss Federal Council and Nigeria on the stolen funds. Paragraph 4 of the agreement states: “The signatories intend to maintain regular exchanges and to engage constructively to conclude the processes necessary for the final restitution of the funds.”

It is in order to hasten the consummation of the judicial processes to release the funds that made the Attorney-General hire two Nigerian lawyers believed to have the requisite experience and skill in such deals. The lawyers were able to successfully conclude the processes which made it possible for the federal government to finally sign an MOU on December 7, 2017 in Washington Dc.
With the signing of the MOU, the stage was finally set for the repatriation of the $321 million stolen by the late Abacha family and friends.

Paragraph two of article 8 of the MOU states that “The Swiss Federal Council shall transfer the Funds within two weeks after the entry into force of this Memorandum of Understanding into the Dollar Designated Account in accordance with written information provided by the Federal Government of Nigeria setting out the details of said account.”

The transparency of the repatriation process was further confirmed when the Federal Executive Council ratified the MOU recently signed for the final repatriation. Moreover, the process is also to be monitored by civil society organisations.

It is noteworthy that no deductions of any amount was made from the $321 million recovered in the name of any professional fee. By the provision of the MOU, the whole amount is to be credited to a designated account provided by the Federal Government of Nigeria.

Chapter V of the United Nations Convention against corruption provides the international legal framework for cooperation among member-countries in the field of asset recoveries. This cooperation led to a partnership between Nigeria and Switzerland which led to judicial confiscation of $723 million illegally-acquired assets of late General Sani Abacha and its restitution to Nigeria in 2005 in cooperation with the World Bank.

The MOU allows the involvement of civil society in the monitoring of the restitution process and provides against any possible misuse of the fund thereby setting a precedence on the need for transparent management of returned assets internationally.