TERMINAL OPERATORS HAVE NO RIGHT TO CONTINUE THE COLLECTION OF ILLEGAL CHARGES - AGBAKOBA SAN

TERMINAL OPERATORS HAVE NO RIGHT TO CONTINUE THE COLLECTION OF ILLEGAL CHARGES -  AGBAKOBA SAN

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.”

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 toMessrs. 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.

The essence of the judgment obtained by the  Nigerian Shippers’ Council is for the overall general good of the Nigerian Economy. It is to stabilize 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 characterized 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.

 

Signed: Olisa Agbakoba Legal

Counsel to the Nigerian Shippers’ Council