Obtaining by false pretence: Court reserves ruling in suit against NLNG former MD

Magistrate Blessing Vick-Jumbo of the Rivers State Magistrate Court sitting in Port Harcourt on Thursday reserved ruling in a case bordering on allegations of obtaining by false pretence filed against the former Managing Director of Nigerian Liquefied Natural Gas Limited (NLNG), Mr Tony Attah, the company and a General Counsel, Akachukwu Nwokedi.

The court reserved ruling for February 7, 2022 after counsels argued their points on a preliminary objection filed by the NLNG, Attah and Nwokedi, in relation to the criminal summons issued against them by one of the firm’s vendors, Macobarb International Ltd and its Managing Director, Mr Ogboru Shedrak.

The preliminary objection dated December 8, 2021, was supported with an affidavit and a further affidavit dated December 8 and 20, 2021 respectively.

In his argument, Dr. Bayo Adaralegbe submitted that the complaint was based on a contract awarded by NLNG to the vendor which NLNG terminated due to lack of performance, adding that the vendor had petitioned at least 10 federal and state government agencies based on the dispute between the parties which was characterised as breach of contract.

He submitted that the facts could not have given rise to the offence of obtaining by false pretence under the Criminal Code of Rivers State as alleged by the complaint, adding that the complaint failed to satisfy Section 89(5) of the Administration of Criminal Justice Law of Rivers State, which stipulated that there had to first be a police investigation before the court could deal with private prosecution.

He argued further that based on Section 92 of the Administration of Criminal Justice Law, the complaint was statute barred, having been filed outside the maximum six years permitted by law and urged the court to quash the charge.

In his response, Mr M. Uzoma, who appeared for the complainants, argued that despite the objection, the court should proceed with prosecution.

Consequently, the court fixed ruling on the application for February 7, 2022.

The complainant, Macobarb International Limited, an oil services firm and two others, had dragged the Nigerian Liquefied Natural Gas (NLNG) Limited and two others; Attah and Nwokedi before the court over an alleged breach of contract, claiming infractions through obtaining by false pretence.

The summons read “complaint has been made this day by Macobarb International Limited and Ogboru Shedrack, that you, Nigeria LNG Ltd, on the various dates inclusive the month of April, 2018 and December, 2020 and at various fora, inclusive in Bayelsa and Port Harcourt, Rivers State, of the above mentioned Magisterial District did:

“By way of false pretences, fraudulent tricks and misrepresentations ‘which you knew to be false working in conjunction with NIGERIA LNG LTD and Mr. Tony Attah, prompted the complainants to mobilise both equipment and personnel to the contract site at their expense on false representation that they would be paid on ‘work done’ as defined in your contract documents with monetary valuation of ‘work done’ assessed at various sums inclusive that of N32, 079, 723. 10, N33, 588, 401, 76 amongst other monetary sums incurred by the complainants and of which the complainants were tricked and not paid.

“You are hereby summoned to appear before the Chief Magistrate Court Sitting at Court 12 PH on the – 9th day of December, 2021 at the hour of 9am to answer to the said complaint,” it said.

But, an affidavit filed in support of its preliminary objection by Mr Toochukwu Nwankwo, of the law firm of Babalakin and Co, on behalf of the defendants, said the counter-affidavit deposed to by the second respondent, Ogboru Shedrack, was false and calculated to mislead the court.

He maintained that “a promise to perform a futuristic, obligation, undertaking, commitment, such as a promise to make payments under a contract (for work done or for good supplied) cannot be a false pretence.

“False pretence involves a description of a past or present state of affairs that is false/untrue, but a breach or non-performance of obligations under a contract is not false pretence but simply breach of contract remediable with a civil action for breach of contract.

“I am aware from the complaint on oath upon, which summons are issued against the applicants is simply, entirely, and only on failure of the applicants to meet or fulfill purported contractual obligations and not any false pretence whatsoever.

“In specific response to paragraph 8 of the counter-affidavit, I was informed by Gogo Dienye in the manner earlier described that at no point did the applicants undertake to comply with any earlier representations whatsoever and the applicants did not renege on its assurances in any manner.

“Contrary to the false assertions in paragraph 9 and 10 of the counter affidavit, the applicant restate the averments in paragraph 4(j) of the affidavit in support of the preliminary objection that it has fully paid the respondent for the extent of the work done and for the materials that the respondents elected to hand over to the 1st Applicant.

“I verily believe by virtue of my legal training that the respondents’ complaints to this honourable court, the subsequent charge and the summons issued thereto are invalid and baseless and same ought to be quashed by this honourable court.

“I believe that the grant of this application will not prejudice the interest of the respondents but help prevent the deliberate waste of the precious time of this honourable court on a frivolous process as the instant complaint,” he further argued.

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