Stories by NWADINAMUO AUGUSTINE
…Appeal against judgment
Counsels to the Association of Shipping Line Agencies (ASLA) and the Seaport Terminal Operators’ Association of Nigeria (STOAN) have obtained an order for stay of execution of the ruling of the Federal High Court, Ikoyi, Lagos which dismissed their suits against the Nigerian Shippers’ Council (NSC) over the reduction of shipping line agency charges (SLAC) and refund of container deposits with regards to ASLA members and reduction in progressive storage charges and increase in free storage days with regards to STOAN members.
The appeal was coming on the heels of last week’s dismissal of the suits of both associations against the NSC by Justice Ibrahim Buba.
NSC had on Wednesday 29th October 2014 announced the reversal of progressive storage charges at the ports to that, which was in force as at May 1, 2009. NSC also ordered an increase in the free storage period at the port from three days to seven days.
The Council equally directed shipping companies to reduce their shipping line agency charges from N26, 500 to N23, 850 per TEU (20-foot containers) and from N48, 000 to N40, 000 per FEU (40-foot containers), even as it directed shipping agencies to refund container deposits to importers and agents within 10 working days after the return of the empty containers.
However, shortly after publishing the order which was to come into effect on 3rd November, 2014, the terminal operators under the aegis of the Seaport Terminal Operators Association of Nigeria (STOAN) and shipping line agencies under the umbrella of the Association of Shipping Line Agencies (ASLA), secured an interim injunction of the Federal High Court, Ikoyi, Lagos stopping the NSC and/or its agents from implementing the directive.
Ruling on the matter, the presiding judge, Justice Ibrahim Buba dismissed the originating summons filed by ASLA and STOAN describing them as hypothetical and an academic exercise while granting the counter-claims filed by the 1st and 2nd defendants in this case the NSC and the Shippers Association of Lagos State (SALS).
Justice Buba further affirmed the position of the NSC as the economic regulator of the Nigerian port industry which was one of the issues contended by the STOAN and ASLA as they both contended that there was no law in the land empowering the Council to act as economic regulator.
The Judge rule that pursuant to section 5 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria respectively that the President can take executive action in the overall interest of the citizens of the country, as such the pronouncement of the President either by him or his representatives could stand as law where there was none in place in respect of the issue in contention.
While ruling that as far as the Shipping Companies are concerned, that the only valid status was as reflected in the Memorandum of Understanding of 2001, he however declared that that was the only valid status that could be reverted to.
He therefore declared the shipping line agency charge as illegal and therefore ordered the shipping companies to account for all monies collected as shipping line agency charge since they started collecting it and subsequent payment of same into the Cargo Defense Fund for the benefit of the entire shippers.
Reacting to the judgment, Counsel to the 2nd defendant, Barr. Osuala Nwagbara described the Judgment as significant for the Nigerian Maritime Industry adding that it gave hope to the Nigerian Importers.
According to him,” so, in summary, this judgment is significant to the industry. It is also a sign and a warning to anybody who has embarked on any form of illegality in the Nigerian Maritime industry to adjust before the long hand of the law catches up with them”.
On his part, Counsel to the 1st defendant, Barr. Emeka Akabogu described the judgment as a landmark in the maritime industry in a very significant respect even as he advised the shipping companies and the terminal operators to approach the NSC and engage them actively in discussions and negotiations on the way forward.
He said, “the only thing that can happen is that if the shipping companies are not happy, they can more actively engage the shippers’ council as the economic regulator so that the interest which they have so easily pursued can be put on the table, discussions and negotiations can proceed and then all parties can come to agreement in the best interest of all Nigerians.
Also Speaking, the President, Shippers’ Association of Lagos State (SALS) which happened to be the 2nd defendant on the matter, Rev. Jonathan Nicole described the Judgment as a victory for the Nigerian Shippers and indeed all Nigerians commending the judge for his boldness and uprightness in discharging his duty.
Nicole stated that with the Judgment, the path of impunity had been completely cleaned off from the system adding that people would no longer wake up one morning and begin to give unnecessary bills to importers.
“So, we are happy over the judgment and we appreciate that we have some very outstanding Nigerians who believe in the law”, he said.
On what will happen if the plaintiffs decide to go to appeal, Nicole has this to say,” well, it is not too good for you to always go to court, you find a better way to resolve issues, we have arbitration, they should go back and think about it”.
“They know what they were doing was wrong and what we are asking for is not too much, it is our right. We lose so much money to them and they know it. So, I will not expect them to say they will go to appeal court because we will not tolerate them to charge us that much anymore, we have to tackle this , it is part of the reform and if they are not even happy to do business in Nigeria, let them tell us, they will be replaced”.