Ogoni Cleanup: Despite Violations, Nigerian govt insists contracts followed due process

Contaminated Farmland at K-Dere, Ogoni land
Contaminated Farmland at K-Dere, Ogoni land

The Nigerian government has said it followed due process in the award of contracts for the remediation of polluted sites in Ogoniland.

In two separate responses to PREMIUM TIMES report on how the Buhari administration awarded Ogoni cleanup contracts to unqualified firms, both the Federal Ministry of Environment and the Hydrocarbon Pollution Remediation Project (HYPREP) said that due process was followed in awarding the said contracts.

In the statements, signed on behalf of the ministry by the Director of Press, Saghir el Mohammed, and another sent by HYPREP Media Director, Ekaete Umo, the duo said the choice of the companies ”complied with the Federal Government Executive Order 5.”

They said the order is aimed at growing the local capacity of Nigerian companies ”by encouraging them to partner remediation technical companies with proven track records”.

Contradictions

But PREMIUM TIMES has identified contradictions in submissions made by both outfits, especially on the five-year experience required of the interested companies.

HYPREP statement reads in part; “It is important also to note that in our publication in both local and international media (The Economist – March 31st – April 6th; The Guardian, Daily Trust, Ogoni Star and The Tide of March 30, 2018) HYPREP never requested interested companies to have 5 years remediation experience before applying. Rather, Companies were requested to provide details of experience providing environmental remediation services of hydrocarbon impacted soil/groundwater comparable in scope and complexity to the assignment of interest in the last five (5) years.

“This is to ensure that the companies are still in business with current remediation technologies and not companies that have been out of remediation business for the past 10 to 20 years. Therefore, local companies were encouraged to participate through evidence of partnership/joint venture agreement with local/international companies with requisite experience in remediation. This is aimed at building the capacity of the local companies in line with the aforementioned Presidential Executive Order for the promotion of Nigerian content.”

As part of its defence, the Ministry said: “Pacrim Engineering Ltd is duly accredited with NOSDRA, Federal Ministry of Environment and DPR for oil spill clean-up and remediation. It is in technical partnership with Pacrim International, who (which) has over ten years-experience in remediation worldwide and Delta Remediation, Canada, making them compliant of the conditions set by HYPREP that a company must have a minimum of 5 years-experience in remediation.”

Unaddressed Concerns

Meanwhile, both HYPREP and the Ministry failed to respond to the issue raised on how Pacrim Engineering Ltd, which was incorporated two months after the bidding process had closed, was able to make the list of successful companies.

The duo also failed to address the issues of objects of about 11 of the 16 companies, as filed in their documents with the Corporate Affairs Commission, which run contrary to the contracts awarded to them.

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According to a lawyer and Senior Advocate of Nigeria, who craved anonymity, running businesses contrary to objects filed during incorporation is a punishable offence.

The lawyer, who quoted Sections 38 and 39 of the Companies and Allied Matters Act, noted that the objects clause put in the incorporation file is aimed at guiding against abuse.

The lawyer said; “Objects clause is a provision in a company’s constitution stating the purpose and range of activities for which the company is carried on… A clause is only relevant in action against a director for breach of duty under the Company’s Act for failure to observe the limits of their constitutional provisions.

“Especially section 39 which talks about the effect of and sanction for ultra vires Under Nigerian Law, the sanction (has to be by order of the court) is to prohibit the company from further engaging in acts that are ultra vires the company’s objects. Damages may be sought for wrongs the claimant may have suffered owing to the conduct of the company.”

However, the government has claimed the companies with varying objects have ‘partnered’ other international firms with required experiences in the remediation fields.

For instance, Rey & Reina International Limited, which was incorporated less than five years to the period of the award of contract, has as its objects; “To carry on the business of trading, marketing, sales and distribution of general goods, marketing, sales and distribution of general goods be they manufactured or not, commission agents, manufacturers representatives, importers, exporters, general suppliers, general contractors, general merchandise, general services etc.”

But in its response, the Ministry said: “Rey & Reina International Limited, which met all mandatory requirements specified in the advertisement in line with Procurement Act of 2007 and is duly accredited with NOSDRA, Federal Ministry of Environment and DPR for oil spill clean-up and remediation. It is in technical partnership with EMCO Oilfield Services Ltd who has a reputable experience in remediation in Nigeria for over ten years.”

Meanwhile, the government’s claim has been faulted by the Principal Partner of Olalekan Oladapo and Company, Olalekan Oladapo, who said the law does not recognise such partnerships except ”the partners are those offered the contracts”.

He said; “The reason such partnerships are not recognised is that, if the companies default, the one awarded the contracts alone can be tried, and not the partners.”

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