Terminal operators allege breach of concession pact against NPA
Justice Saliu Saidu of the Federal High Court, Lagos has adjourned till September 29, further proceedings in the suit filed by the Ports and Terminal Operators Nigeria Limited (PTOL) against the Nigerian Ports of Authority (NPA) over breach of concession agreement.
PTOL said the Federal Government, through the NPA, breached the agreement they signed on May 11, 20, over a terminal at Onne Port in Rivers State.
The firm joined the Attorney-General of the Federation (AGF) in the suit. It is alleging that the defendants are granting “monopolistic benefits” to another firm, known as INTELS.
Justice Saidu adjourned the matter to enable the plaintiff’s counsel, Ayo Olorunfemi regularise his processes and give opportunity for the office of the AGF to file its defence .
The Onne port complex, managed through public/private partnership, is situated along Bonny Estuary on Ogu Creek, about 25 kilometres south of Port Harcourt.
PTOL said based on the concession agreement it signed with the Federal Government through NPA, it became the operator of Terminal A at the port with effect from the day the agreement was signed.
The plaintiff said the concession agreement empowered it to receive vessels and cargoes of all descriptions into the terminal without hindrance.
But, in violation of the agreement, the plaintiff said NPA diverted some of the vessels meant for Terminal A to another terminal owned by INTELS.
The plaintiff is seeking a declaration that the diversion of vessels scheduled to berth and discharge their cargoes at its terminal to INTELS’ terminal, as well as the defendants’ classification of cargoes the plaintiff can take into Terminal A, is in clear breach of the agreement and therefore wrongful and unreasonable.
The plaintiff said the defendants’ action also contravenes the privatisation policy and relevant anti-trust laws, adding that it is “to the monopolistic benefit of INTELS and the detriment of the plaintiff.”
PTOL is seeking an order setting aside the defendants’ directive classifying cargoes as oil and gas meant only for a particular terminal and diverting vessels meant for the plaintiff’s terminal to INTELS’ terminal.
The plaintiff is also seeking orders of mandatory and perpetual injunction restraining the defendants from classifying and diverting vessels meant for its terminal to INTELS’ terminal.
It asked for N1.3billion being direct and exemplary damages suffered by the plaintiff, including loss of earnings.
Justice Saidu had, on March 20, granted an ex-parte order restraining the defendants from diverting the vessels meant for the plaintiff’s terminal.
But the plaintiff alleged that NPA has issued a parallel letter/directive to PTOL to the effect that vessels scheduled for their terminal would be diverted to INTELS, which it said is in flagrant disregard of the order.
It filed an application in which it is praying the court not to hear the defendants until they purge themselves of the contempt of court they allegedly committed.
However, NPA has filed a motion seeking to set aside and discharge the ex-parte orders made on March 20. It is also praying the court to dismiss the suit for lack of jurisdiction.
According to NPA, parties to the agreement ought to refer any dispute arising from the breach of the contents of the lease agreement to an arbitration panel for resolution.
“The plaintiff has disregarded this provision by instituting this action. The condition precedent before instituting this action against the first defendant (NPA) was not met.
“The ex-parte order was granted based upon suppression and misrepresentation of material facts,” NPA said.