The case of Macobarb International Limited, a local contractor who had dragged the NLNG to court claiming over N1Bn for alleged breaches to a contract (B130142PPI, Access Control) in the NLNG plant area with three years duration. The suit said the contract provided that Macobarb be paid bit by bit progressively based on the value of verified work done.
Macobarb in its claims said the contract also forbade delay of any kind in the project and provided for penalty on whoever caused the delay. It also provided for alert system should anything want to cause a delay. Macobarb said it activated the alert clauses when payment delays began to happen but that nothing was done to rectify the delays until the contract was terminated.
Motion on Notice to dismiss the suit:
The NLNG’s filed a ‘Motion on Notice’ asking the court to strike out the case. They sought an order dismissing the suit in its entirety, alleging incompetence and want of jurisdiction.
It argued that the court did not have jurisdiction to entertain the suit, claiming that the suit was status-barred (filed outside time limit) since the incident that warranted the case took place over five years (November 27, 2015) before the commencement of the action in court. The NLNG lawyers said: “It is settled law that a court can only oblige a party when the law permits”.
Alternatively, the NLNG sought for an order striking out the name of the CEO of Macobarb, Shedrack Ogboru, as a party to the suit. Their statement said: “In the event that the court did not want to dismiss the case, that it should rule that the second respondent (the CEO of Macobarb) is not a proper party to the suit as he they claimed has not shown any reasonable cause of action against the NLNG as presented in the case.
Macobarb counters NLNG Motion:
Macobarb lawyers filed and adopted counter motion against the demands of the NLNG. Macobarb countered that they filed the matter in 2018, but that it was struck out in 2021 for want of due diligence, that the deficiencies have been rectified.
Their adopted statement said the law is trite as borne out in plethora of decisions of the Supreme Court and Court of Appeal that a struck out matter is still a pending cause and in the eyes of the law still remains in the general cause list until reactivated to the hearing list.
Macobarb said: “We have shown in our counter affidavit that the second respondent (CEO of Macobarb) is not only an assign of the first claimant (Macobarb) who by implication is a party to the contract in contention who ought to be a party to the suit but that he is also a third party injured by the NLNG’s (defendant’s) breaches in denying the claimants funds in the execution of the said contract.”
The counter said this is in regard to the fact that the second claimant is the guarantor of the loan granted to the first claimant for the execution of the contract.
On NLNG’s claim that the case is status-barred, Macobarb argued that the case cannot be status barred by time limitation because the said breach of contract contained criminal aspects. It argued that in such civil cases that have criminal aspects which have already caused criminal action before a court of competent jurisdiction, can no longer be status-barred. They pointed to the fact that the Chief Magistrate who struck out the criminal case did not discharge the defendants.
On this, the counsel for Macobarb in his argument said; “It is pertinent to state that fraud is equally an exception to the operation of the limitation law by virtue of section 31 (a) of the Limitation Law Cap 80, Laws of Rivers State 1999 of which we have shown overwhelming instances of fraud against the defendants (NLNG, Tony Atah, Akachukwu Nwokedi) and their trial at the Chief Magistrate’s court in Port Harcourt”.
The counter motion said; “Notwithstanding, we however re-emphasize that having shown that the struck out suit is still a pending cause that can be re-activated into the hearing list becomes most unnecessary.
“This brings the cause of action with the exception to the Limitation Law pursuant to Section 31(a) Cap 80 Laws of Rivers State 1999. It will amount to surplusage to delve into fraud as an exception to the limitation of action.”
Macobarb thus urged the court to dismiss the application of NLNG seeking to strike out the case.
Ends/