…Claimant faces cross-examination
Mkpoikana Udoma
Port Harcourt — At the resumed hearing in a Port Harcourt High Court on the N5 billion contract case between the Nigeria LNG Limited, NLNG, and an indigenous contractor, Macobarb International Limited, the Managing Director of the local company, Shedrack Ogboru, has tendered 37 documents seeking to prove how the NLNG owed Macobarb N5.074 billion.
Justice Chinwendu Nwogu, the judge in the suit No: PHC/2013/CS/2022, marked the documents in KJ series, but the defendant’s counsel objected to two of the documents, saying their objections would be submitted during the address.
This was the highlight of the hearing, which began 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).
The tendered 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 “standdown payment” provisions. The indigenous company also called in a forensic auditor to try to prove to the court that those contract clauses existed.
Macobarb’s position, in the adopted statements and claims, insists that the standdown provision is plentifully provided for in the contract, one of which it said is on page 28, section 7, sub-section 5(11).
The section states that; “In any 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 said there was abundant evidence that it fulfilled this by notifying the NLNG about this development (contract payment failures). The company 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 N5.074 billion.
It insisted that by NLNG’s failure to honour the terms of the contract closeout as signed by both parties on the said date, Macobarb has not been able to demobilise its equipment. The forensic accountant thus relied on NLNG’s failures to further calculate the liability it (NLNG) had 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, in the contract closeout of February 10, 2016, NLNG agreed to pay Macobarb for its 20 feet caravan and also make balance payment for turnstiles and vehicle barriers amounting to N38 million but only paid N33million.
NLNG also failed to make the various outstanding payments of previous milestones, Macobarb alleges.
Macobarb’s managing director claimed that the NLNG had promised at contract closeout to issue two cheques to cover all outstanding payments but failed to do so to date.
Macobarb said that it thus relied on paragraphs 51 to 60 of its claims and minutes of the meeting of contract closeout to amend the claims to N5.074 billiion 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 these had 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 except 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 the 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 these had been done due to NLNG’s 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, for which Macobarb says NLNG is liable.
