'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.”