·As counsels adopt presentations in court, complainants say it’s a contract scam
·Defendants say court has no jurisdiction
By Ignatius Chukwu
A Port Harcourt Chief Magistrate, Blessing Vic-Jumbo, has reserved ruling for February 7, 2022, on whether her court has power to dock the immediate past Managing Director of the Nigeria Liquefied Natural Gas (NLNG), Tony Attah and the company’s head of legal, Akachukwu Nwokedi, along with the NLNG as a corporate entity.
The Chief magistrate reached the decision on adjournment after listening to counsels for both parties in the case of ‘false pretences, fraudulent tricks, and misrepresentations’ preferred against them by a contractor, Macobarb International and the managing director, Shedrack Ogboru. The defendants were represented by their counsels, Bayo Adaralegbe, Valentine Igbonekwu, and Tochukwu Nwankwo, while the complainants were represented by Morrison Uzoma and C.A Jombo.
In what looked like legal fireworks in court, the defence counsels said the court lacked jurisdiction because the case did not meet the law on private prosecution having not been first investigated by the police.
The complainants’ counsels fired back, saying by appeal court rulings, preliminary objections do not stop trial to commence in criminal matters but that the ruling on objections can only come at the end of the trial.
The moment the case was called up in Chief Magistrate Court 12, the team of lawyers from Babalakin Chambers fighting to stop two top notchers of the NLNG and the company itself from being docked for criminal offence adopted their preliminary objection which they had filed ahead. The complainant filed and also countered the objections in open court.
Details of objection:
According to the preliminary objections filed by team of seven lawyers led by Olawale Akoni, a Senior Advocate of Nigeria (SAN) leading another SAN, Tola Oshobi and five other senior lawyers from Babalakin and Co chambers, the Chief magistrate lacks the requisite jurisdiction to entertain the complaint and to issue the summons. He also objected further saying the complaint before the court does not disclose any probable cause or reasonable grounds for the assumption of the commission of an offence and the complaint on which the summons was predicated failed to satisfy the condition preceded in the relevant sections of the Rivers State law (ACJLRS2015).
They added that there was abject failure to comply with a condition precedent in section 89(5) of the said law; that the particulars provided in the complaint and summons filed against the applicants before the court do not support the commission of any offence recognized or created by any criminal legislation within Rivers State. Rather, he went on, the particulars of the complaint before the court on allegation of breach of contractual obligation and the refusal and/or failure (if any) to comply with contractual obligations does not constitute an offence recognized under any substantive criminal legislation in Rivers State.
He quoted a court of appeal ruling in 2004 thus; “The court will be failing in its fundamental duty if in the face of a defective or bad charge, it refused to entertain the application to quash, and hastily proceeds to set the criminal case for trial”.
Explaining their grounds of objection further, the SAN said the contract was lump sum and was to be paid at end of delivery; and that the NLNG supported Macobarb to overcome it’s financial challenges of not being able to execute the contract.
They further stated that Macobarb was making bogus claims and reported NLNG to 10 government agencies who, realizing the futility of Macobarb’s claims, stopped their investigation of NLNG – in other words, they satisfied themselves that NLNG did everything right as far as the contract was concerned.
They went further to state that the nature of transaction NLNG has with Macobarb is contractual and Macobarb has not disclosed anything of value (monetary or material) the defendants could have taken from Macobarb individually or collectively, adding that Macobarb is only harassing NLNG because it knows it couldn’t go to court to substantiate or seek remedies.
The major prongs of the objection are that Macobarb charge is incompetent because it failed to disclose anything of value, material or monetary, capable of having been taken by NLNG, Tony Attah or Akachukwu Nwokedi, individually or collectively. Also, that the court failed to first refer Macobarb complaints to the Police as stipulated by Rivers State Administration of Criminal Justice provision of section 89(5) before issuing summons and this condition precedent bars the court from adjudicating on the matter because court can’t be a prosecutor, judge and investigator all by itself. As such, since the police has not investigated and pronounced NLNG to have committed a crime, the court is not competent to entertain the matter.
In his counter, Shedrack Ogboru, the CEO of Macobarb, through his counsels led by Morrison Uzoma, argued that the mere fact that NLNG, Tony Atah and Akachukwu Nwokedi misrepresented the contract terms to obtain materials of monetary value and turned round to deny the company payment was enough grounds for criminal liability.
Macobarb countered that the defendants knew all along that the contract was lump sum and would be paid at the end of contract execution but led the contractor to believe that it was to be paid on milestones on ‘work done’.
Macobarb further told the Chief Magistrate that ‘It was maliciously misrepresented to the complainants by the defendants that on the strength of the provisions of the memorandum of understanding (MoU) of the contract terms, the contractor was deceived into believing that payment would be made on ‘work done’ which was understood to mean all activities pertaining to satisfactory performance of the contract. He said he was only to be told by the defendants after work had been done that it was no longer the true meaning of “work done”.
The complainants told the Chief Magistrate that they believed all these misrepresentations to the effect that the lump sum contract shall be paid distinctly based on ‘work done’ as defined by sections of the contract terms upon which understanding they said they took huge loans to execute the job, only to be told by same NLNG and their principal officers that those terms no longer applied.
He said that because of the ‘misrepresentations’, the first demand for N32m and second demand of N33.5m for ‘work done’ were turned down through alleged manipulations. They said when the contractor insisted on being paid, that the NLNG and the officers retracted their earlier representations and directed the complainants to first conclude the execution of the contract and get lump sum.
The counsel further told the court that the complainants only got to know in December 2020 that they have been fraudulently induced by the defendants to supply varieties of items during a virtual meeting when the defendants made utterances impliedly asserting that the provisions no longer applied.
Macobarb told the court that when dragged to mediators, the defendants would pledge to go and resolve the matter but after, they would renege on their assurances.
In further counter objection, Macobarb told the court in their adopted presentation and filings that they supplied imported turnstiles and vehicle barriers to the NLNG amongst other expensive items with certification by foreign experts as stipulated by the contract.
The complainants insisted that there was a prima facie case and that the only process the court looks at in determining whether there is prima facie commission of an offence are the particulars of offence and not what the defendants say to the contrary as facts of the offence. “The instant summons is not being prosecuted by the complainants on the basis of breach of contract but rather on the basis of criminal misrepresentations by the defendants”. They said the single transaction has both criminal and civil case angles which can go on at the same time in same or different courts.
“The complainants complied with all the requisite conditions as set out in the enabling law for private criminal complaints. The preliminary objection was filed in bad faith just to unreasonably delay the prosecution of the trial’, the counsel told the court.
The Chief Magistrate has fixed February 7, 2022, to rule on the objections and counter objections and determine whether or not Tony Attah and Akachukwu Nwokedi along with the NLNg would stand in the dock.