Port concession agreement provides for only 3 days free storage, STOAN tells court

Counsel to the Seaport Terminal Operators Association of Nigeria (STOAN), Mr. Femi Atoyebi (SAN) yesterday informed a Federal High Court sitting in Ikoyi, Lagos that the agreement signed by his clients and the Federal Government expressly stated that free storage days for cargo at the nation’s seaports would be between 24 hours (one day) and 72 hours (3 days).

While adopting his written address before Justice Ibrahim Buba at the resumed hearing in a case instituted by STOAN against the Nigerian Shippers’ Council (NSC) on the reversal of progressive storage charges at the nation’s seaports and the increase of free storage days from three days to seven days by the NSC yesterday, Atoyebi said the directive as published in a public notice issued on Wednesday 29th October 2014, was an attempt by the Shippers’ Council to change the rule in the middle of the game.

He also said NSC lacked powers and legal instrument recognizable by law to issue the said directive as contained in the public notice.

The Senior Advocate of Nigeria also said that there was no evidence before the court that the NSC had any presidential approval to act as port economic regulator arguing that even if there was such approval, it carried no legal authority. He said the NSC could not act as economic regulator at the port without an amendment to the law setting it up.

“The duty of the executive is to follow the law and therefore cannot do what they set out to do with the NSC,” Atoyebi informed the court.

He said even the Counsel to the NSC, Mr. Emeka Akabogu agrees with this position by virtue of an interview he granted to SHIPS & PORTS DAILY newspaper, which was published on 25th February 2014.

According to an exhibit tendered by Mr. Atoyebi; Mr. Akabogu, in the said interview was quoted as saying about the NSC: “How effective they can sanction is going to be called to question because the primary essence of the economic regulator will lay in its bite in terms of sanction. It will be a challenge enforcing sanctions in the absence of a statutory backing.

“My thinking is that since the intention is to get statutory backing but in the interim to generally put in place broad frameworks for the regulatory functions which is expected of an economic regulator; I think it is a step in the right direction.

“The ultimate is to have statutory backing to be able to give authority to sanctions which are going to be imposed and sanctions are the essentials of an economic regulator.”

The STOAN Counsel said the concession agreement signed by the terminal operators with the Federal Government of Nigeria reocgnises the Nigerian Ports Authority (NPA) as regulator. He said the appointment of any other body to serve as regulator must have statutory backing.

While arguing his case, the NSC Counsel, Mr. Emeka Akabogu initially deferred to his colleague, Mr. Babatunde Ogungbalima to adopt his written address before the court because according to him, “Counsel is on trial”, in apparent reference to the exhibit of his interview tendered by Mr. Atoyebi.

Ogungbamila argued that the concession agreement signed by the terminal operators and the Federal Government envisaged the appointment of an economic regulator, a role, which he said, NSC has been appointed to perform by President Goodluck Jonathan.

In concluding the argument of the defense, Akabogu stated that the President has the powers to confer economic regulatory oversight powers on the NSC. He also said that his comment in the SHIPS & PORTS DAILY interview “cannot be used against the litigant”. He therefore requested the court to dismiss the matter.

Justice Buba adjourned the matter to Wednesday 17th December 2014 (tomorrow) for ruling.

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