Between Rivers government, SAIPEM SPA & 6 ORS and the law

Wike

The Rivers state government has arraigned Saipem SPA, Saipem Contracting Nigeria Limited their Managing Director, Walter Peviani and 4 others on a 16 Count Charge bothering on conspiracy, fraud, obtaining credit by false pretences, cheating contrary to sections 518 (6) and (7), 419 (A) (1) (b), section 421 of the Criminal Code Law of Rivers State, Cap 37 Vol. 2 Laws of Rivers State of Nigeria 1999 respectively as well as several attempts to defraud and or obtain credit by false pretences before a Rivers State High Court holden in Port Harcourt in CHARGE NO. PHC/3106/CR/2021 THE STATE V. SAIPEM SPA & 6 ORS. 

It was gathered that the RSG has given a Fiat to Chief Godwin Obla SAN, George Adeyemi, Esq and John Eche Okpe, Esq of OBLA & CO to prosecute the Defendants.

 The Matter is slated for mention on Friday the 26th day of November 2021. 

Charged alongside the duo are their Managing Director Walter Peviani and other major officers including Kelechi Sinteh Chinakwe, Giandomenico Zingali, Vitto Testaguzza and David Anelli who are charged amongst others for the offence False Statements by Officials of Companies contrary to and punishable under section 436 (b). other heads of charges are: CONSPIRACY contrary to Section 518 (6) and (7) and punishable under Section 518; OBTAINING CREDIT OF $130 Million USD BY FALSE PRETENCES OR OTHER FRAUD contrary to Section 419A and punishable under Section 419 (A) (1) (b); OBTAINING CREDIT OF $20,467,942.00 BY FALSE PRETENCES OR OTHER FRAUD contrary to Section 419A and punishable under Section 419 (A) (1) (b); OBTAINING CREDIT OF N7,000,000,000.00 (Seven Billion Naira only)BY FALSE PRETENCES OR OTHER FRAUD contrary to Section 419A and punishable under Section 419 (A) (1) (b); OBTAINING CREDIT OF N318,640,173.54 BY FALSE PRETENCES OR OTHER FRAUD contrary to Section 419A and punishable under Section 419 (A) (1) (b); ATTEMPT TO CHEAT $97 Million USD contrary to Section 508 and punishable under Section 509; ATTEMPT TO CHEAT $15 Million USD contrary to Section 508 and punishable under Section 509; CONSPIRACY TO RECEIVE CREDIT OF $97 Million BY FALSE PRETENSE contrary to Section 518 (6) and punishable under Section 518; CHEATING $11 Million USD contrary to Section 421 and punishable under Section 421; CHEATING contrary to Section 421 and punishable under Section 421; CHEATING N110, 097, 416.51 contrary to Section 421 and punishable under Section 421; CHEATING by collecting sums attributable to shared facilities already paid for in AFAM Phase I in AFAM Phase II contrary to Section 421 and punishable under Section 421; CHEATING N20, 467, 942 contrary to Section 421 and punishable under Section 421; OBTAINING CREDIT OF $60,168,936.00 BY FALSE PRETENCES OR OTHER FRAUD contrary to Section 419A and punishable under Section 419 (A) (1) (b); OBTAINING CREDIT OF $1,512,034.00 BY FALSE PRETENCES OR OTHER FRAUD contrary to Section 419A and punishable under Section 419 (A) (1) (b) all of the Criminal Code Law of Rivers State, Cap 37 Vol. 2 Laws of Rivers State of Nigeria 1999.

From the Proof of Evidence attached to the Charge and the Statement made by one Mr. Temple Azunda M. the Head, Power Generation/Mechanical of the Rivers State Ministry of Power the facts constituting the case in hand are as follows:

Saipem SPA and Saipem Contracting Nigeria Limited and other officers of the duo, herein the Defendants, are Italian companies which services have been retained by the Rivers State Government, herein RSG, in several projects, prominent amongst which is the AFAM Phase II Power Plant Project.

 By an initial tripartite agreement made on the 20th January 2010 the RSG under the auspices of the Rivers State Ministry of Power entered a contract with Saipem Contracting Nigeria Limited, Saipem SPA for the construction of the  OGCT power plant in Port Harcourt at a total cost of $119 Million USD consequent upon which the Rivers State Government made advance payments, in installments, to Saipem Contracting Nigeria Ltd and Siapem SPA amounting in total to a sum of $130 Million USD in all which the Defendants have acknowledge receipt of. 

The Defendants were to be given an initial mobilization of 20% of the total contract sum which the RSG paid. It was part of the initial agreement – and indeed a condition sine qua non – that, to access the 2nd tranche of of 25% from the Rivers State Government, the Defendants would mandatorily have installed the Gas Turbine into the foundations as referenced in ATTACHMENT 1 to VO 007 which states that: 

CONTRACTOR shall be entitled to a payment corresponding to Twenty percent (20%) of the VO No. 007 LS PRICE upon mobilization to Site and commencement of bush clearing activities at SITE. Upon commencement of bush clearing activities at SITE, CONTRACTOR shall issue the invoice relevant to the above payment and OWNER shall pay such invoice within 14 days from its issuance. The PARTIES agree that no deduction for recovery of advance payment shall apply on the payment due the CONTRACTOR for invoices issued by CONTRACTOR in accordance to this paragraph.

CONTRACTOR SHALL BE ENTITLED TO A SECOND ADVANCE PAYMENT CORRESPONDING TO TWENTY-FIVE PERCENT (25%) OF THE VO 007 LS PRICE UPON INSTALLATION OF GAS TURBINE INTO FOUNDATIONS, provided that where such vent is delayed, due to OWNER’S default, beyond 6 months from commencement of the work, CONTRACTOR shall increase the value of the APG above (as reduced in accordance to this article) for an amount corresponding to twenty five (25%) of the VO No. 007 LS PRICE. Upon increase of the APG value, CONTRACTOR shall issue the invoice relevant to the above advance payment and OWNER shall pay such invoice within 5 days from its issuance. 

By various pieces of correspondence misrepresenting facts to the RSG the Defendants have received by false pretences a total sum of $130 Million USD which they have acknowledged in a correspondence to the Rivers State Government Ministry of Power. This is $11 Million USD in excess of the total contract sum while the contract is still at a preliminary stage only.

To worsen matters, the installation of the turbines in the foundation which is a mandatory precondition for the access the second tranche of payment of 25% of the total contract sum has not been done. 

In fact, the RSG is aware that the turbines which it had bought and the transport cost of which has already been paid to the Defendants are lying in a seaport in the Netherlands and have accumulated demurrage of about $8 Million USD which the Defendants insist must be defrayed by the RSG. 

The proof of evidence additionally reveals that the construction and maintenance of the camp site at Afam was included in the initial costs for the construction of AFAM Phase I Power Project making the camp site property of the RVSG. In AFAM Phase II the same camp site was used to siphon funds belonging to RVSG by the Defendants who charged for their use of the camp site and passed the costs to RVSG and charged the state  for and other camp related uses in respect of the property of same.

In a bid to have the project completed for the benefit of the people of Rivers State, the RSG leaned backwards and conceded and paid another N7 Billion to the Defendants since December 2013 on the condition that the Defendants would import the turbines and install them in the foundations.

 The Defendants collected the money and still refused against all remonstrance to keep to their obligation under the contract. 

The Defendants, especially the 2nd Defendant herein have in spite of their clear infractions of the terms of the contract audaciously purported to revoke the contract with RSG and demanded the sum of about $97,000,000.00 to enable it return to site to complete the obligations for which they have been fully paid – and even in excess – in accordance with the contract.

The RSG has played the Defendants dirges and the Defendants would not mourn; played them a flute and they would not dance. 

All entreaties in that behalf having fallen on deaf ears, the project which is meant to be for the benefit of the people of Rivers state has become, as a result of the Defendants’ obduracy, a white elephant project, into which scarce public funds have been sunk with no results.

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