By Ignatius Chukwu
Macobarb and its managing director, Shedrack Ogburu, have submitted what they deem to be further and better particulars in the forms of more exhibits to press home their claim of over N5bn against the NLNG.
The claimants successfully submitted the nine documents when the case was called up again on January 27, 2025, after cross examination by the NLNG had come to an end.
This is the continuation in the long-drawn legal warfare between NLNG and the indigenous contractor. Macobarb has been striving to press a claim of N5.74bn saying it is value for work done but not paid for, plus outcome of alleged breaches by the multinational organization (NLNG) in a 2014 contract.
Macobarb insists that the contract is still subsisting and that their items and property are still on site, thus accruing value. The NLNG has contested this, saying the contract was terminated and value of work paid for.
When the case came up earlier, the claimants led on that day by Mr Nwieke Dignity from Masters Chambers pleaded to submit more documents that were pleaded but not yet submitted. This was objected to by Prof Bayo Aderelegbe leading many other lawyers for the NLNG.
The judge, Justice Chinwendu Nwogu of the Port Harcourt High Court, who first allowed cross examination by the NLNG to proceed, however granted the claimants a date to submit their pleaded exhibits in the Suit No: PHC/2013/CS/2022.
Macobarb and team had first submitted 37 exhibits (documents) and later two more where they tried to show that the contract with the NLNG made downtime provision and stipulated procedures for approval of jobs done and payments.
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 39 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 at that time (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. Macobarb also called in a forensic accountant to try to prove to the court that those contract clauses existed.
Some of the additional documents submitted at the last adjourned date were later marked exhibits YJ-40 to 48 by the court. Exhibit YJ-40 showed first milestone payment requisition of over N32m by Macobarb; purchase order to the foreign manufacturers showing agreed payment term; Total Secure pro foma invoice showing $127,000 to design and manufacture NLNG-requested items; Total Secure acknowledgement of Macobarb having paid 57.5% of total cost to manufacturer for which Macobarb expected 50% payment in bill of quantity of N33.8m. For this, Macobarb said they made a request for first milestone payment as agreed in contract; there is another document showing acknowledgment of some payments; plus acknowledgment of over $134,000 of the payments for turnstile.
Exhibit YJ-41: showed a mail from Babalakin & Co acknowledging Macobarb’s mails to NLNG MD (Dr Philip Mshelbila) dated 06/02/2023 and other mails from Macobarb some of which levied allegations against the NLNG. One of the exhibits showed a ruling of Justice Nwogu dismissing NLNG preliminary objections with N200,000 cost where the NLNG had said the suit was status barred and that the 2nd complainant was not a proper party.
Another exhibit (YJ-42) is the forensic accountant’s acknowledgment of typographical error dated April 12, 2024 of his computation; while YJ-43 is NLNG mail to Macobarb of July 14, 2015, with the subject as Standby cost in response to Macobarb’s details of stand by cost presented to NLNG through the GRC manager of July 13, 2015 claiming over N600m in the first standby cost computation where NLNG rejected the standdown claims. The reason shown in the response was that there was no work down whereas Macobarb claimed there were two invoices establishing ‘work down’ in procurement, engineering, and construction as they said several ‘notes of progress review’ meetings showed.
Another document submitted marked YJ-44 shows a contract meeting held between Macobarb and NLNG dated July 28, 2015 where NLNG demanded that Macobarb not to make a claim on the basis that the contract payment term is based on ‘work down’ and not on material delivered (meaning that material delivered was not ‘work done’). Macobarb had claimed that this was the basis for denying them payment for 2nd milestone for foreign procured items costing the company (Macobarb) $134,000.
Another is YJ-45 showing Macobarb response to NLNG notice of default and termination served on Macobarb by a person Macobarb claimed not known to the contract as contained in the contract terms. There is also YJ-46 which is ‘Notice of Dispute’ which Macobarb said was permitted by the contract to resolve the matter but which Macobarb claimed was bluffed by the defendants.
Macobarn also submitted YJ-47 known as ‘Progress Review meeting number 17’ where the parties showed overall progress as at the date with percentages of ‘work done’ which Macobarb said was basis for 2nd milestone payment request which they said is yet to be paid.
Another exhibit is marked YJ-48 which is NLNG notice of default and termination dated November 20, 2015, signed by one Emeka Ohiri who the claimants say is not known to the contract.
With these further particulars, the Court gave the NLNG more days for possible cross examination fixed for February 21, 27, and 28, 2025.
Crux of the matter:
Macobarb International Limited, an indigenous contractor had dragged the NLNG to court claiming over N1Bn (now amended to N5.074Bn) 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.
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