As hearing continues in a Port Harcourt High Court on the N5Bn contract case (Suit No: PHC/2013/CS/2022) between the NLNG and an indigenous contractor, the managing director of Macobarb International Limited, Shedrack Ogboru, has tendered 37 documents seeking to prove how the NLNG owed Macobarb N5.074Bn.
The judge, Justice Chinwendu Nwogu, marked the documents in KJ series, but the defence said their objection to two of the documents would be submitted during address.
This is the highlight of the hearing which began in Port Harcourt in September 2024 after two years of preliminaries and many amendments between both parties as well as frequent replacement of counsels by the claimant (Macobarb).
Ogboru of Macobarb relied on the statement of claims and the many amendments which the CEO adopted on September 29 and November 1, 2024 in court along the 37 documents that were marked as exhibits in KJ series by the court as well as expert deposition.
Some of the submissions and documents include the letter written by NLNG General Counsel (Company Secretary), Akachukwu Nwokedi, to Festus Keyamo’s Chamber which had stated that the contract between the NLNG and Macobarb Int’l Ltd had no provisions for standby payment. Macobarb claimed that such a position by the NLNG legal department was the reason why the NLNG refused to pay Macobarb.
Macobarb thus tendered many documents and quotes from the contract to show that the contract had ‘stand down payment’ provisions. Macobarb also called in a forensic auditor to try to prove to the court that those contract classes existed.
Macobarb position in adopted statements and claims insist that stand down provision is plentifully provided for in the contract, one of which he said is on page 28, section 7, sub section 5(11). This section states that; “In any and all situations, if NLNG fails to give Macobarb instructions or approvals (as in payment approvals) where the contractor has done his part by giving notification to the contract holder (NLNG), and several payment certificates have been generated by NLNG supervisory team for payment for work confirmed done, but such were ignored by the NLNG, and if this should lead to delay of the job on the part of the contractor, the contract shall
be extended accordingly and whatever cost it created shall be paid by the NLNG.”
Macobarb says there is abundant evidence that it fulfilled this clause by notifying the NLNG about this development (contract payment failures). Macobarb said in the statements that they thus relied on the position of the NLNG general counsel arising from this failure to amend its claim to N5.074Bn.
Macobarb insists that by NLNG’s failures to honour the terms of contract closeout as signed by both parties on the said date, Macobarb has not been able to demobilize its equipment. The forensic accountant thus relied on NLNG’s failures to further calculate the liability the NLNG has incurred by their own alleged negligence or other actions by impliedly detaining Macobarb’s equipment on their site indefinitely.
Macobarb stated in its claims that whereas NLNG insists it owed no money to Macobarb, yet, in the contract closeout of February 10, 2016, NLNG agreed to pay Macobarb for its 20 feet caravan, to also pay balance payment for turnstiles and vehicle barriers amounting to N38m but only paid N33m. They also allegedly failed to pay the various outstanding payments of previous milestones. He claimed that the NLNG had promised at contract closeout to issue two cheques to cover all outstanding payments but allegedly failed to do so to date.
Macobarb said that it thus relied on paragraphs 51 to 60 of its claims and minutes of meeting of contract closeout to amend the claims to N5.074Bn and pointed to the court the clauses that empowered Macobarb to make such claims especially where the closeout agreement stated thus: “To close the contract, NLNG will establish what the cost for the materials delivered to them is, including the cost for the 20ft container (caravan) and its associated costs (reimbursable) as well as the cost for demobilization, and prepare the payment certificates for all items of the contract executed by the contractor”. Macorbab said none of this has been done to this day.
As is contained in the amended claims, it was further agreed by the parties thus: “Two valuations would be done based on the contract terms; the first shall capture all costs with the exception of demobilization costs. The next valuation was to be done after the contractor demobilized his facilities. None of this was done.”
The submission to the court showed that it was agreed by the parties as contained in the minutes of meeting thus: “Second and final valuation would be done after demobilization of contractor’s temporary facilities from NLNG and retrieval of Identity Cards (badges) issued to all Macobarb personnel.”
Macobarb claims that none of this has been done due to NLNG refusal to honour their own contract closeout agreement. For this reason, Ogboru said in the claims that Macobarb equipment or facilities are still on site in NLNG to this day, and for which Macobarb says NLNG is liable.
Further claims and amendments by Macobarb said that the NLNG reneged in its promise to the Rivers State House of Assembly to settle the matter outside the arbiter; That the debts have made Macobarb to be delisted by the banks for any further financial support or loans; That the NLNG did not only breach the contract but deliberately subverted it; and that the entire content of the arbiter zoom meeting of December 2020 were pleaded in evidence to show proof of the issues Macobarb pleaded in the meeting.
Cross examination:
The NLNG team of lawyers led by Prof Bayo Adaralegbe began cross examination on November 1, 2024, and first dwelt on the eligibility of the CEO of Macobarb, Shedrack Ogboru, to be a joiner in the suit, asking to be shown where the contract provided for him to sue as an individual, to which Ogboru sited two sections.
Adaralegbe also pursued the angle of submission of ‘performance bond’ stated in the contract that should be done within 14 days of the takeoff of the contract, and tasked the claimant to show where he submitted the said bond, even to this day.
Cross examination will continue on November 29th and December 2 and 3, 2024.
Ends/