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‘Terminal Operators have no right to continue collection of illegal charges’

Olisa Agbakoba(SAN)

The firm of Olisa Agbakoba Legal (OAL), counsel to the Nigerian
Shippers’ Council (NSC), has submitted that seaport “terminal operators have no
right to continue the collection of illegal charges”.

 In a press release signed by an Associate Partner,
Litigation, Babatunde Ogungbamila, a copy of which was emailed to Onepageafrica,
OAL had faulted media report by counsel to the Seaport Terminal Operators’
Association of Nigeria (STOAN), Mr. Femi Atoyebi, a Senior Advocate of Nigeria
(SAN), over a suit between STOAN and the Nigerian ports economic regulator, the
NSC.
The rejoinder from OAL stated inter alia: “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.”
 OAL stated that its position is supported by Supreme Court
decision in Okafor v. Nnaife[1987] 4 NWLR (P. 64) 126 at 138, where,
according to the NSC’s counsel, “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”.
 OAL explained that in his concurring judgment, Anthony
Aniagolu, Justice of the Supreme Court (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.”
 Noting that “this Supreme Court decision is apt to our
case”, OAL posited that “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.”
 OAL said that the statement attributed to Messrs Femi
Atoyebi, SAN and Ayo Olorunfemi advising the general public to ignore the
judgment of a court is wrong, advising the general public to disregard the
publication.
The rejoinder disclosed that OAL has now filed an application
before Mr. Justice Ibrahim 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”.
OAL stated: “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.
“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 neighbouring
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.”

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