Arbitrary Port Charges: Agbakoba Heads To Court To Stop Terminal Operators

Wants Terminal Operators To Refund N150bn Illegally Collected

HUMAN rights activist and maritime lawyer, Dr. Olisa Agbakoba (SAN) has filed a suit before Justice I.N Buba of the the Federal High Court, Ikoyi, against the terminal operators over alleged continued collection of some shipping charges in disobedience to the court’s judgment granted in favour of the Nigerian Shippers’ Council (NSC) as the Ports Economic Regulator.

  Agbakoba, who is counsel to the NSC, is seeking an order of the court to compel the service providers to refund the sum of N150 billion as the money they have collected since the Ports Regulator issued a notice barring them from collecting such charges.

  He maintained that the continued collection of the charges was in disobedience to the judgment of the court on the matter, explaining that the essence of the judgment obtained by the NSC was for the overall general good of the Nigerian economy.

  Agbakoba in a statement made available to The Guardian said: “We refer to the newspaper publication by Messrs Femi Atoyebi SAN/Ayo Olorunfemi, advising the general public that they are not bound to follow the judgment of Mr. Justice I.N Buba of the Federal High Court declaring arbitrary port charges imposed by Terminal Operators illegal and ordering refunds of illegal charges estimated at 1 trillion Naira. 

  “Messrs. Femi Atoyebi SAN/Ayo Olorunfemi claimed that the Terminal Operators have the licence to continue the collection of the illegal charges because there is a pending application for stay of execution of the judgment and an appeal. In essence, Messrs. Femi Atoyebi SAN/Ayo Olorunfemi are saying that the pending application stays execution and the appeal have arrested the effect of the judgment.  We disagree with this position. The mere fact that there is a pending application for stay and an appeal does not remove the effect of the judgment. 

  “Our position is supported by Supreme Court decision in Okafor v. Nnaife[1987] 4 NWLR (P. 64) 126 at 138, where the Court held that it will be unfair to allow a losing Defendant “to continue cutting down and selling economic trees on the land” adjudged by the trial court not to belong to them simply because of a pending application for stay of execution and an appeal. 

  In his concurring judgment, Aniagolu, JSC, refused the application for stay in the following words: “what the appellants who have been found not to be the owners of the land in dispute want of this court, in effect, is for the court to lend its authority to the Appellants, for them to continue devastating the land in dispute by being allowed to continue cutting down and selling the economic trees on the land while the owners of the land – the Respondent – sit back and watches, helplessly, the fruits of his judgment being denied and deprived him. That will be justice inverted. I will not be a party to such an inversion.”

  He added: “This Supreme Court decision is apt to our case. Applying the decision, it is clear that the Terminal Operators cannot continue to impose and collect illegal charges on the pretext that they have filed a pending application for stay or appeal. The statement attributed to Messrs. Femi Atoyebi, SAN and Ayo Olorunfemi advising the general public to ignore the judgment of a court is wrong. We advise the general public to disregard the publication.

  “In any event, we have now filed an application before Mr. Justice I.N Buba to compel the Terminal Operators to comply with the judgment pending the determination of the Application for stay of execution and to immediately refund the sum of N150 billion illegally collected in disobedience of the judgment.”

  Agbakoba explained that “the essence of the judgment obtained by the Nigerian Shippers’ Council is for the overall general good of the Nigerian Economy. It is to stabilise prices and ensure more cargo throughput to Nigerian Ports and stem the yearly loss of over N2 trillion potential revenue to the Nigerian government caused by excessive and illegal port charges by Terminal Operators.” 

  He noted: “Nigerian Ports are now characterised by poor service delivery, cumbersome cargo clearance procedures, non-compliance with regulations, arbitrariness and indiscriminate billing systems, proliferation and duplication of charges and numerous tariff heads by these Operators. 

   “As a result, this has led to diversion of cargo to neighboring ports in the region thus depriving the Nigerian government and economy about N2 trillion potential revenue from port use every year. The Nigerian Shippers Council as economic regulator will continue to perform its statutory functions by ensuring that ports regulations are enforced.”

  The Terminal Operators in Nigerian ports— the Seaports Terminal Operators Association of Nigeria (STOAN) and the Association of Shipping Lines Agency (ALSA) — have been at loggerheads for sometime now over some reforms embarked upon by the NSC as ports economic regulator. 

  The NSC had, after carrying out a study in the neighbouring ports of Cotonou, Ghana, Gambia and Cameroun, ordered an increase in the free storage period at the ports from three to seven days. It also announced the reversal of storage fees at the ports to what obtained as at May 1, 2009. The Council equally directed shipping companies to reduce their shipping line agency fees from N26, 500 to N23, 850 per 20 ft container and from N48, 000 to N40, 000 per 40ft container. It also directed shipping agencies to refund container deposits to importers and agents within 10 working days after the return of empty containers. It also increased Container Demurrage-free days to 10 days.

   Although stakeholders had seen the sweeping reforms as well thought out, the service providers felt they were unconstitutional and filed a suit at the Federal High Court, Ikoyi, Lagos, on October 31, 2014, where they prayed for an order to quash them.

  The court in its ruling on December 17, 2014, upheld the appointment of the NSC as ports economic regulator and granted it the go ahead to reposition the nation’s maritime sector, especially as it affects arbitrary port charges. In spite of the landmark judgment, the Terminal Operators have allegedly continued to collect the charges citing a pending application for stay of execution and an appeal.