Ports: Senior Advocates Lock Horns over Shipping Charges…

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About 72 days after Round One of the case between the terminal operators, shipping companies and the Nigerian Shippers’ Council (NSC) on shipping charges was decided and won by the Ports Regulator, three Senior Advocates of Nigeria (SAN) appear to be battle-ready for the second stage, writes Francis Ugwoke

For Olisa Agbakoba, Femi Atoyebi and Chidi Ilogu, it is indeed a battle royale over who smiles last on the issue of shipping charges being collected at the nation’s ports. The three are Senior Advocates of Nigeria (SAN).  Besides, they are highly rated lawyers. More to it is that the three are also friends at personal levels. The case for which they have clashed is the one between the Nigerian Shippers’ Council (NSC) as the Ports Economic Regulator and the shipping service providers in the ports. The service providers are the terminal operators or concessionaires and the shipping companies. While Agbakoba is defending the interest of the Ports Regulator, both Atoyebi and Ilogu are counsels for the terminal operators and shipping companies respectively.  

Genesis of the Case
The case followed the current efforts by the Ports Regulator to   reduce the cost of doing business at the ports. The Council had in November last year reduced some shipping charges being collected at the ports by both the terminal operators and the shipping companies. The Council had reduced the Progressive Storage Charge collected by the terminal operators to the rate approved by the Transport Ministry in 2009. NSC also reduced the shipping line agency charge and container cleaning and maintenance charge being collected by shipping companies by 50 percent. Having taken this action, it issued a notice to the service providers asking them to stop collecting the charges with effect from November 3. But the affected terminal operators and shipping companies in reaction headed to the court to stop the regulator from enforcing the order. The court action had questioned the powers of the NSC to carry out such regulation.

In the case which hearings were accelerated, the NSC emerged the winner when Justice Buba Ibrahim dismissed the case by the service providers. Apart from stopping the collection, the court had also ordered that the service providers should refund what was collected earlier. The court also affirmed the appointment of the NSC as a regulator by the Federal Government and upheld its decision on the shipping charges.  This was after exactly 43 days of legal fireworks by both teams representing each interest.  But not satisfied about the court judgement, the two lawyers, Atoyebi and Ilogu   appealed against the judgement.  In doing do, they equally filed an application for a stay of execution of the order of the court.

Fresh Tussle on Charges  
With the judgement, shippers had expected immediate enforcement of the order of the court. But this was not so, apparently because of the appeal and the stay of execution filed by the lawyers to the terminal operators and shipping companies. It is about two months and 12 days that the judgement was given. The industrial action embarked on by judicial workers also affected further hearing on the case. While waiting for the case to resume, the NSC had in what appeared like a move to stop the continued collection of the particular charges identified about nine   issues decided in its favour in the judgment delivered by the court. It was that publication that has so far generated reactions from the lawyers to the shipping companies and terminal operators. Atoyebi in a press statement reacted to the publication. He was followed by Agbakoka who replied. The argument from Atoyebi and Ilogu  centred on why the collection of the charges would continue while Agbakoba disagreed with them.

Fireworks by SANs
Atoyebi  in his reference to the publication by the Ports Regulator said:  “Firstly and for the avoidance of doubt, NSC did not file any counter-claim in the matter relating to our clients, STOAN in SUIT NO. FHC/L/CS/1704/2014 and so the court could not have upheld same as claimed in item 4 of the said publication. Secondly, the publication deliberately concealed the fact that the said judgment is subject of a pending appeal and that our clients also filed an application for a stay of execution of the judgment/injunction pending the determination of the appeal.

He referred to  Vaswani Trading v.Savalakh & Co (1972) and Kiogo v. Holman Bros (1980)  and other relevant  cases to support   his argument.

Atoyebi added,  “It is also trite that both the court from which an appeal lies and the court to which an appeal lies have a duty to preserve the ‘res’so that the appeal, if successful, is not rendered nugatory.     We consider that the NSC lawyers should have advised them appropriately of the correct position of the law and if they did, it would appear that NSC are refusing to follow the advice.    

We hasten to add that the NSC publication and any further step that may be taken by them in a bid to frustrate the pending appeal and foist on the Court of Appeal a situation of complete helplessness would be highly contemptuous of the court and we would not hesitate to apply the full weight of the law on such persons as nay have authorised the publication.  We would also like to draw NSC’s attention to the decision of the Court of Appeal in the case ofRATISCO (NIG) LTD v. S.G.S.(1990) 6 NWLR (PT.158) PG. 610, PARA. 5 wherein the court held as follows:

“Where a party who has suffered a defeat following a trial in any cause or matter is appealing, and he asks the court for a stay, he will not be held in contempt merely because he has not obeyed the order which he is appealing against or which he wants stayed or suspended pending the appeal.  What the courts frown against is any attempt by a successful party to pre-empt an application for a stay of execution of the judgment or even to pre-empt the appeal itself by accelerating or rushing the process of execution of the judgment so as to frustrate the exercise by the court of its jurisdiction to hear the application or the appeal.”

With this, Atoyebi advised  his clients to ignore the  directives  or any directive from the NSC as premised on the said judgement, insisting   “as they are not bound to follow them until our clients’ pending application and/or appeal has been determined, one way or the other”.

Chidi Ilogu was also quoted to have said that the Ports Regulator cannot execute the judgement delivered in its favour because of the pending appeal.

Atoyebi’s statement was the one that elicited reaction from Agbakoba. In his press statement, Agbakoba said it was wrong for the terminal operators to have continued to collect the shipping charges that had been stopped by the court.  He stated: 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 for stays of 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”.

Fresh Suit
   Agbakoba  as a follow-up has filed an application before Justice  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 N150bn illegally collected in disobedience of the judgment”. The case is expected to come up soon.

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