As a first step to start its legal battle with the State governor, SaharaReporters learned that DavNotch, through its solicitor, Norbert Osodi, has served Mr. Okowa, Energy Commissioner Newword Safugha, and Attorney-General Peter Mrakpor a notice of arbitration to stop the sale and recover its outstanding unpaid balance of N8 billion from the State government.
All necessary plans to institute legal action against Delta State Governor Ifeanyi Okowa are said to have been concluded, as the contracting firm handling the controversial multi-billion naira Independent Power Plant (IPP) project, DavNotch Nigeria Limited, is currently battling the governor over a debt of N8 billion being owed to it and to stop the proposed sale of the project.
The IPP project was awarded in 2011 by the former administration of Emmanuel Uduaghan to DavNotch Nigeria Limited, a firm owned by the former speaker of the Delta State House of Assembly, Victor Ochei. The project has been engulfed in a series of controversies rising from accusations and counter-accusations bordering on corruption.
SaharaReporters reliably learned that the IPP contractual agreement reached between the Delta State government and DavNotch Nigeria Ltd was for the supply and installation of 2 Nos. Rolls Royce Trent Gas Turbine Generators for the Delta State IIPP at Oghereki in Ethiope West local government area (LGA) of Delta State, which has cost over N20 billion.
It would be recalled that a few months ago during a press conference, Mr. Okowa confirmed to journalists that his government already supplied the 2 Nos. Rolls Royce Trent Gas Turbine Generators for the Delta State IPP but they had yet to be installed due to some financial challenges that were being faced by the State. He added that as a result, the State government would have no option other than to put the project for sale to prospective buyers within the country and South Africa.
Following the sale pronouncement of the project by the governor, tempers have risen, as DavNotch is said to have vowed to do everything legally within its powers to stop the sale of the project and have its N8 billion owed to it by the State government paid.
As a first step to start its legal battle with the State governor, SaharaReporters learned that DavNotch, through its solicitor, Norbert Osodi, has served Mr. Okowa, Energy Commissioner Newword Safugha, and Attorney-General Peter Mrakpor a notice of arbitration to stop the sale and recover its outstanding unpaid balance of N8 billion from the State government.
SaharaReporters obtained the notice of arbitration. It reads in part as follows:
"Arising from your breach of clauses 3a and 12a of the IPP agreement dated the 22nd day of March, 2011, coupled with your subsequent plans to sell and dispose of the IPP without recourse to us and in furtherance to your consequential failure to make yourself available to amicably resolve the lingering payment default of the sum N3,374,572,295 (three billion, three hundred and seventy four million, five hundred and seventy two thousand, two hundred and ninety five naira) as original contract balance part of which valuation/advance payment recovery certificate No. 4 dated the 3rd day of July, 2014 was raised.
"And the sum of N4,739,691,987 (four billion, seven hundred and thirty nine million, six hundred and ninety one thousand, nine hundred and eighty seven naira) being variation cost of the contract as listed in the variation request, we hereby demand that the dispute be referred to arbitration and finally settled in accordance with the arbitration and conciliation act, laws of the federal republic of Nigeria as stipulated in clause 11 of the said IPP agreement dated 22/3/2011."
The claimant claims in the arbitration against the respondents jointly and severally as follows:
"Stoppage of the proposed sale of the IPP by Delta State Government/Respondents and/or anyone acting on her instructions/behalf to anyone however whatever, pending the satisfaction of the claimant's demands.
"Total sum of N8, 114, 264, 282 (Eight billion, one hundred and fourteen million, two hundred and sixty four thousand, two hundred and eighty two naira) arising from lingering payment default of the sum of N3,374,572,295 (three billion, three hundred and seventy four million, five hundred and seventy two thousand, two hundred and ninety five naira) as original contract balance part of which valuation of work/advance payment recovery certificate No. 4 dated the 3rd day of July, 2014 was raised, and the sum of N4,739,691,987 (four billion, seven hundred and thirty nine million, six hundred and ninety one thousand, nine hundred and eighty seven naira) being variation cost of the contract as listed in the variation request."
According to the claimant, the clause 3a of the aforementioned agreement reads thus: "The contract sum shall be paid to the contractor upon work evaluation and certification by the employer provided that 10% of the value of work done but not exceeding five percent (5%) of the contract price shall be retained as retention fee until the expiration of the defects liability period if twelve (12) months which shall be computed from the date of completion of works."
The claimant therefore sought the following as reliefs in the arbitration:
"A Declaration that failure of the Delta State government/respondents to pay the claimant the total sum of N8, 114, 264, 282, arising from lingering payment default of the sum of N3, 374, 572, 295 as original contract balance part of which valuation of work/advance payment recovery certificate No. 4 dated the 3rd day of July, 2014 was raises, and the sum of N4, 739, 691, 987, being variation cost of the contract as listed in the variation request, is a breach of clause 3a of the IPP Agreement dated the 22nd of March, 2011 as well as a breach on extant provisions of the said contract.
"A Declaration that the surreptitious plans of the respondents to sell the said IPP plant without recourse to the claimant and without factoring the claimant's outstanding payments and consequential loses is a breach of clause 3a and clause 12d of the said IPP agreement dated the 22nd day of March, 2011.
"A Mandatory Order directing the Delta State government/respondents to immediately pay to the claimant the sum of N8, 114, 264, 282, arising from lingering payment default of the sum of N3, 374, 572, 295, as original contract balance part of which valuation of work/advance payment recovery certificate No. 4 dated the 3rd day of July, 2014 was raised, and the sum of N4, 739, 691, 987, being variation cost of the contract as listed in the variation request in compliance with clause 3a of the IPP Agreement dated the 22nd of March, 2011 and extant provisions of the said contract.
"A Mandatory Order directing the Delta State government/respondents, their agents, servants and/or privies, to stop forthwith and desist from selling the said IPP to anyone howsoever and whatsoever without first settling the claimant's the total sum of N8, 114, 264, 282, arising from lingering payment default of the sum of N3, 374, 572, 295, as original contract balance part of which valuation of work/advance payment recovery certificate No. 4 dated the 3rd day of July, 2014 was raised, and the sum of N4, 739, 691, 987, being variation cost of the contract as listed in the variation request in compliance with clause 3a of the IPP Agreement dated the 22nd of March, 2011 and extant provisions of the said contract.
"A Mandatory Order directing the Delta State government/respondents, their agents, servants and/or privies, to stop forthwith and desist from selling the said IPP to anyone howsoever and whatsoever, if the said sale is to be done without recourse to the claimant and without recourse to clause 12d of the IPP agreement.
"An Order directing the respondents to bear the cost of the arbitration including claimant's arbitration and solicitor's cost and for such further orders."
SaharaReporters noticed while perusing the arbitration notice that in compliance of the said IPP agreement, DavNotch Nigeria Ltd has chosen and appointed Albert Akpomudje (SAN) as its arbitrator with a warning that should the respondents fail to appoint their arbitrator within 30 days, the claimant shall seek the leave of court to have one arbitrator appointed for the respondents.
