27 February 2015, Lagos – Maritime lawyers are divided over the refusal of terminal operators to obey the ruling of Justice C.N Buba ruling of December 17th 2014 asking the concessionaires to stop the collection of unapproved port charges and refund over N150billion illegally collected from port users in last three months.
Others are of the opinion that the concessionaires are not bound by the ruling and asked the general public to ignore any move by the Nigerian Shippers’ Council to compel the terminal operators to make refund and stop the collection of illegal charges.
A leading maritime lawyer and Senior Advocate of Nigeria (SAN), Mr. Chidi Ilogu has said that the Nigerian Shippers’ Council (NSC) cannot execute the judgment delivered in its favour against members of the Association of Shipping Line Agencies (ASLA) on Shipping Line Agency Charges (SLAC) yet because of a pending appeal.
Ilogu, who is the Counsel to ASLA said that members of the association, being dissatisfied with the Federal High Court judgment delivered on 17th December 2014 by Justice Ibrahim Buba, immediately filed a ‘Notice of Appeal’ challenging the entire judgment of the lower court.
He said the judgment is being appealed on the grounds that the NSC cannot perform economic regulatory role at the ports in Nigeria pursuant to a presidential directive which is inconsistent with the extant laws of the country including the Nigerian Shippers’ Council Act and regulations made pursuant thereto; that the purported economic regulatory functions are ultra vires the powers of the NSC as presently stipulated under the enabling Act which has not been amended; and that the purported presidential directive, being inconsistent with the NSC Act, is null and void and of no effect.
“In addition to the said Notice of Appeal, the Plaintiffs filed an application for a Stay of Execution and/or Injunction Pending Appeal.
“It is a trite principle of law as established in a plethora of cases that where an appeal Is pending and the applicant has applied for a Stay of Execution of the Judgment appealed against, the parties to the appeal are enjoined to maintain the status quo – being the subsisting position before the judgment of the lower Court,” Ilogu stated.
A former President of the Nigeria Bar Association, NBA, Mr. Olisa Agbakoba, disagreed with the above position stressing that the mere fact that there is a pending application for stay and an appeal does not remove the effect of the judgment.
Agbakoba, stated that “Our position is supported by Supreme Court decision in Okafor v. Nnaife 4 NWLR (P. 64) 126 at 138, 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.
“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” he noted.