Breach of Contract: Firm heads to court, demands $5.5m from Kepheren Business Limited, Goldman and Demsky 

An indigenous company, Maratam Limited has approached a High Court of the Federal Capital Territory (FCT), with a suit seeking to compel Kepheren Business Limited and Goldman and Demsky to pay the sum of $5.5 million,  being an outstanding indebtedness to the company with regards to a tripartite consultancy agreement between them.

In the suit marked FCT/HC/CV/1741/2023, the claimant (Maratam Limited) claimed that the defendants, which includes Hajiya Nene Lanval, the Nigerian Ports Authority (NPA) and former Minister of Transport, Rotimi Amaechi are in breach of the contractual agreement for the collection of offshore oil terminal dues for the NPA.

Meanwhile, Justice Abubakar Idris has struck out the name of the 4th defendant (NPA) from the suit as the claimant has not disclosed any cause of action against it and ordered the claimant to amend its originating processes to reflect the defendant now on record.

Court documents showed that on December 1, 2011, the claimant and Kepheren Business Limited and Goldman and Demsky (1st and 2nd defendants), willingly entered into a tripartite consultancy agreement to work together for the award and subsequent execution of contracts for the provision of crude oil (monitoring at offshore terminals and collection of offshore terminal dues for the NPA.

As a result of the collaboratory efforts of the claimant and the 1st and 2nd defendants, the 4th defendant (NPA) issued the 1st defendant an award of contract with a letter dated December 5, 2011, appointing the 1st defendant as the 4th defendant’s agent for the collection of Oil Terminal Dues (OTD) for Bonny/Port Harcourt pilotage district for 10 years effective from January 1, 2012.

It is the case of the claimant that by clauses 1(2), (4) and 2 (d) of the tripartite consultancy agreement, it is entitled to prompt payment of a consultancy commission fee of 35 per cent of every profit accruable to the 1st defendant in pursuance of the award and subsequent execution of the contract for the collection of offshore oil terminal dues for the 4th defendant throughout the execution of the contract.

The said clause 1(2) of the tripartite consultancy agreement provides that “the second party (1st defendant) shall pay the first parties (claimant and 2nd defendant respectively), a consultancy commission fee of 50 per cent of the accruable from the contract to be broken down among the 1st parties as follows; Maratam Limite – 35 per cent and Goldman and Demsky -15 per cent.

While clause 1(4) of the tripartite consultancy agreement provides that: “any payment both on-shore and offshore, to the first parties shall be made immediately upon receipt of payment from the client into the second party’s account.

Clause 2(d) of the tripartite consultancy agreement provides that: “This consultancy agreement shall come into being on the effective date being the date of signing of the agreement and shall remain in force for the duration agreed in the contract for the provision of crude oil monitoring at offshore terminals and collection of offshore terminal dues for the Nigeria Ports Authority.”

The claimant told the court that the representative of the 1st defendant, Mr. Adeoye Aderemi; communicated to the claimant through its director, Ibrahim Clark, via email on January 27, 2012, stating that the scope of terminals assigned to the 1st defendant has been increased.

That contrary to the provision of clauses 1(2) and (4) of the tripartite consultancy agreement of the parties and other correspondence between the parties which mandated the 1st defendant to directly credit the claimant with its consultancy commission fee of 35 percent of every profit accruable to the 1st defendant as and when due, the 1st defendant was paying same through the 3rd defendant (the representative of the 2nd defendant).

The claimant states that from its record, the 2nd defendant through the 3rd defendant has only remitted to it, the total sum of $390, 832.99 only.

That from 2015 till date, the claimant has not been paid its consultancy commission fee of 35 percent of every profit accruable to the 1st defendant notwithstanding that the execution of the 1st defendant’s contract award for the collection of offshore oil terminal dues for the 4th defendant is still subsisting, contrary to clause 1(2), (4) and 2 (d) of the tripartite consultancy agreement.

That all attempts to get both the 1st and 2nd defendants to honour the contractual agreement has proved abortive.

The claimant is therefore, seeking a declaration by the court that by the combined interpretation of the wordings of clauses 1(2) (4) and 2(d) of the tripartite consultancy agreement dated December 1, 2011 executed between the claimant and the 1st and 2nd defendants in pursuance of securing from the 4th defendant, a contract award and its subsequent execution for the collection of offshore oil terminal dues for the 4th defendant, the claimant is entitled to be paid by the 1st defendant as when due a consultancy commission fee of 35 percent of the accruable profits to the 1st defendant from the contract award for as long as the contract is subsisting.

The claimant is further demanding from the 1st and 2nd defendants, the sum of N500 million as general damages for the economic hardship, financial loss and business set back, it has suffered as a result of the 1st defendant’s breach of contract.

In addition, the claimant is pressing for an order of the court, directing the 1st defendant to pay the sum of N10 million  as cost of filing the suit.

Though Goldman and Demskey has been served  even through a newspaper publication but to date, no processes  was filed or any defense to the suit.