Nimba County Superintendent Dorr Cooper has filed a counter response to a lawsuit against the County's administration seeking the cancellation of two agreements with Sethi Ferro Fabrick Incorporated for the sale and purchase of 450,000 metric tons of scrap, arguing that the deal was approved by former President Ellen Johnson-Sirleaf and the legislature.
The lawsuit before the Civil Law Court was filed by a consortium of Civil Society Organizations (CSOs), contending that contrary to the law, Superintendent Cooper initiated and encouraged Sethi Ferro Fabrick to enter and execute two separate agreements called Scrap Metal Sale and Purchase Agreement on July 24, 2017, and on August 23, 2017.
Further, the CSOs, which comprise of Nimba Young Professional, Liberia Scrap Dealers Association and Catholic Justice and Peace Commission, among others, argued that the agreement did not follow proper legal steps; therefore, they violated provisions of the Administrative Regulation and the Public Procurement and Concession Commission (PPCC).
However, in his response, Sup. Cooper argued that the agreement was approved by former president Ellen Johnson-Sirleaf on December 7, 2016, and was subsequently ratified by the legislature and published on January 9, 2017. He said he wrote the executive director of the PPCC, Dorbor Jallah about the agreement and subsequently informed him to issue a no objection letter, which the CSOs claimed Dorbor did not issue.
Supt. Cooper also admitted that Dorbor did not respond to the letter for the objection. However since their request was made to him within a 14-day period as provided for by the PPCC Act, his silence by that time was interpreted as consent (approval) and they decided to sell the scrap to Sethi Ferro Fabrick.
In Supt. Cooper's objection letter, dated September 22, 2017, to Jallah, a copy of which is with the Daily Observer, the agreement was approved by former President Ellen Johnson-Sirleaf on December 27, 2016, rectified by the National Legislature and published on January 9, 2017.
According to the letter, Section 12.7 of the said agreement provides that the Government shall make reasonable efforts to ensure that scrap metal is available from local sources at reasonable competitive rates before exports can be allowed.
Therefore, Cooper's letter said, "Consistent with the above provision of the agreement under consideration, which outlines the government's obligation, we respectfully request your good offices to issue a no objection letter, so that government, through the Nimba County Administration, can proceed to sell scraps that are available in that county that is not covered under the Northstar agreement."
Northstar is currently paying Nimba County US$72 per ton of scrap metal; but according to Cooper, with the agreement, Sethi Ferro Fabrick is made to pay US$60 per ton as opposed to Bong County, where scrap metal is sold at US$55 per ton.
Initially, the CSOs claimed that the price of scrap metal in the sub-region ranges between US$75 and US$80 per ton, "based on this, and in consideration of the PPCC, the US$60 per ton was not in the best interest of the county."
The CSOs also argued that if the letter to Dorbor was in good faith and in line with proper procedure, such information regarding the average price for scrap would have been provided, "but where the parties decided to ignore the proper procedure and enter into the agreement before making such request, of what use would that have been to them?"
Besides the letter, Cooper also argued for the dismissal of the lawsuit because those of the CSOs that filed it did not seek any broad resolution before filing the action on behalf of citizens against the County's administration and that they also lack the capacity to do so.
According to Cooper, the court also lacks proper jurisdiction to handle the matter, because the alleged act was committed in Nimba County. As such, the plaintiffs should have filed the suit in that County, instead of in another county, particularly Montserrado County.
In counter-argument, the CSOs said the mere fact that the letter on which the agreement was signed and ratified was dated September 22, 2017, about two months after the July agreement was executed and a month after the August agreement was also executed makes the agreement fit for cancellation. "The rule is that before an agreement is entered into, the contracting parties must seek PPCC's approval and not after the agreement has been negotiated and executed, as they did," the CSOs argued further.
They also contend that a mere letter to the PPCC does not qualify a party fulfilling PPCC's requirements, because when such a request is made PPCC investigates to certify that indeed the party is qualified and has met all the requirements; "but when PPCC did not grant its approval as in the instance case, then the purpose of such letter is irrelevant and is intended to make mockery of the legal system," they said.
"They intentionally violated the law and cheated and understated the value of the scrap for which reason the agreement must be canceled," the CSOs alleged.
Regarding the argument that the CSOs did not have legal standing to bring the lawsuit against the County's leadership, they contended that they have a valid MOU with the technical committee, including government institutions that are responsible for scrap in the country; and additionally, all of them are citizens and beneficiaries of the country's resources, along with Article 17 and 26 of the 1986 Constitution which give them the right to bring the lawsuit against the County's leadership and company.
The court will make a decision on the legal arguments this week.