NIMASA/NLNG out-of-court settlement suffers setback

The much anticipated out-of-court settlement reportedly proposed last Thursday by the Nigeria Liquefied and Natural Gas (NLNG) Limited over its alleged multi-million dollars indebtedness to the Nigerian Maritime Administration and Safety Agency (NIMASA) may have suffered major setback as the gladiators returned to court yesterday with each party holding tenaciously to its position.
In the case before a Federal High Court in Lagos yesterday, NLNG lost its quest to reaffirm an earlier order of the Court restraining NIMASA from detaining its vessels over alleged failure to pay statutory charges to the agency.
Justice Mohammed Idris, who turned down an oral application by NLNG’s lawyer, Wale Akoni (SAN) to that effect, also warned parties to desist from engaging in acts that could undermine proceedings in court. NLNG and NIMASA had been locked in fierce battle over the issue of non-payment of certain statutory levies and charges which NIMASA claims are due to it from NLNG.
Since June 21, NIMASA has barred NLNG cargoes from entering or leaving the loading bay because it claimed NLNG is not paying a 3 percent levy, from which the NLNG argues it is exempt.

NLNG is reportedly losing about $22 million (about N3.4 billion) daily due to the NIMASA blockade. Justice Idris, it would be recalled, had on June 18, 2013 in Suit FHC/L/CS/847/2013 between NLNG and Attorney General of the Federation and Global West Vessels Specialists, granted an ex-parte order restraining the defendants from charging, imposing, demanding or collecting the three per cent of gross freight earnings or any other sums further to section 15(a) of NIMASA Act 2007 on all of NLNG’s international inbound or outbound cargo ships owned, contracted or subcontracted by it.
Both the AGF and Global West had last Friday moved separate applications seeking to discharge the ex-parte order on the grounds that the order was essentially made against NIMASA, which was not joined as party to the suit.
The AGF was represented by Fabian Ajogwu (SAN), while Global West was represented by Abiodun Owonikoko (SAN).
Ajogwu had contended in his application that NIMASA is a body corporate with statutory powers to sue and be sued in its own name and that its non-inclusion as a party was a violation of the principles of fair hearing. Ajogwu had further added that the fact that the other side was not heard before the order was made was fatal to the case of NLNG.
He further contended that an order cannot be made against a person who is not a party to the suit as it is necessary that such party must be given the opportunity to present its case.
Besides, Ajogwu added that the dispute that gave rise to the suit was essentially between NLNG and NIMASA, and that the non-inclusion was a deliberate move by NLNG to circumvent the provision of Section 53(2) of the NIMASA Act of 2007, which makes it mandatory for an intending plaintiff to give the statutory body a 30-day pre-action notice.

Owonikoko, on his part, had submitted on behalf of Global West that NLNG procured the ex-parte order by suppression of material fact, as same was essentially against NIMASA.
He argued that being an agent of NIMASA, Global West ought not to be sued, and that the said company, which is a private firm, could not be held liable for action of the agency.
But Justice Idris struck out the AGF’s application on the ground that it was filed outside the time permitted by court rules.
The court also dismissed the application of Global West on the ground that there was no suppression of any material fact and that the company could be sued on behalf of its principal, NIMASA.
Shortly after the ruling, Akoni urged the court to reaffirm the ex-parte order.

The application was vehemently opposed by Owonikoko, who urged the court not to be tempted to fall into such trap.
Also, before the ruling was delivered, NIMASA’s lawyer, Mike Igbokwe (SAN) informed the court of some newspaper reports where Akoni granted an interview accusing NIMASA of frustrating its out-of-court settlement efforts.
Ruling, Justice Idris warned parties to desist from engaging in acts that could undermine the proceedings, stating that counsel must strive very hard to encourage their clients from embarking on such unfortunate act of self-help.
On Akoni’s oral application for an order reaffirming the ex-parte order, Justice Idris ruled that since the defendants are already challenging his jurisdiction to entertain the suit, the only jurisdiction “I have now is to hear the objections of the defendants.”
The matter was, thereafter, adjourned to today (July 9, 2013) for hearing of the preliminary objections filed by the defendants.