COURT’S RULING ON SLAC: Shipping Firms Lobby FG As Shippers’ Council Claims N4 trillion

 *Police back NSC for enforcement
*Judgment threatens Osinbajo’s Executive Orders

Following the recent Court of Appeal Judgment directing foreign shipping firms operating in Nigeria to refund the sum of N4 trillion, being accruals from the illegal Shipping Lines Agency Charges(SLAC) collected from shippers from 2006 till date, the Nigerian Shippers’ Council(NSC) has been inundated with pleas for settlement by the multinational firms, who also have been throwing their weights around lobbying the .Federal Government to set aside the judgment.

Not swayed by the moves, the Council, it was gathered, had commenced the process of filling judgment to ensure full enforcement of the judgment, even as it is feared that the interpretations of some aspect of the judgment could serve as precedence to render the executive orders of Acting President Yemi Osinbajo null and void, a development capable of creating anarchy in the country.

Meanwhile, the Council has also received the backing of the Attorney General of the Federation and the Nigerian Police Force(NPF) to enforce compliance among erring service providers in the shipping industry.

The court re-established the powers of NSC to regulate and negotiate tariff in the port industry, explaining that no tariff must be fixed or collected arbitrarily in the industry without the approval of the Council.

According to the court judgment, the “ the unilateral introduction and imposition of the shipping Line Agency Charges(SLAC) by the Appellant and collection of same from shippers or users shipping/port services from 2006 to date is illegal, ultra vires and therefore null and void.”

Consequently, the shipping firms were directed to stop the collection and account for the total sum already collected for a refund with interest paid at 21 per cent.

In complying with the court directive, the Council has said that the sum to be refunded by the shipping firms is N4 trillion, a figure a arrived at after a thorough calculation from the cargo throughput provided the Nigerian Ports Authority(NPA).

Contrary to a publication the court affirmed the regulatory powers of NSC as conferred on it by a Presidential Order in 2015, hence the powers to approve port tariff granted in the judgment but stated that the Presidential Order is in conflict with NPA Act and NSC Act.

To many lawyers and maritime practitioners, a judgment against one presidential or executive order amounts to questioning the integrity of others.

Deputy President of the Chartered Institute of Logistics and Transport(CILT) Nigeria, Dr. Alban Igwe, who is also a lawyer, said,” Presidential order is considered as a law. It is called an order and it can supersede some laws if they are not fundamental laws. There are fundamental laws that requires the National Assembly to be amended but the ease of doing business isn’t classified as a fundamental law. So, as long as it doesn’t negate or goes contrary to any existing law, it is considered as a law. However, if it goes contrary to any existing law, it is the responsibility of the National Assembly to call the president to order.”

”A lot of people have deliberated on this issue of executive orders. People say that this ruling is going to affect the present presidential orders that are being passed by the ruling government. The issue is that the President has the powers to make presidential orders but the reason why this one is being questioned is only known to those who are questioning it,” said Mr. Samuel Vongtau, Director of Legal Services in NSC.

“Probably when the new presidential orders don’t go according to their interest, they may go to court and say the president has no powers to make executive orders. A lot of people have the opinion that this ruling (the judgment) is really going to affect the new presidential orders. The judgment is saying that presidential orders are not strong enough to stand on its own. In other words, they are questioning the president’s ability to make such orders. This is subject to a lot of interpretations. While they claim that NSC port regulatory functions goes against existing legislation, these new orders have not been tested to see where it goes against any law.

“The truth is that, some aspects of that judgment need further interpretation so probably a higher court will pronounce on it again. That is when we will know the actual position of the law in regards to the executive order.” He added.

As noted earlier, the new Assistant Inspector General of Police, Maritime Police Command, Mr Pius Imue, during a visit to the Head office of the Council in Apapa, last week, assured that they support the Council to enable it discharge its statutory obligations without hindrance.

Imue said that the Maritime Command of the Police would be ready to dedicate a team that will accompany the Council in its monitoring and enforcement functions in the industry.

According to him, a Desk for this assignment and other matters affecting the industry has been set up.

He said that the team of the Police Unit will be ready to accompany the Council officials on target mission once it is given a notice for the operation.

The AIG was quoted as saying, “if you want to visit any of the companies, give us 24 hours notice. We shall give you police team to go for enforcement”.

The Police support came following a request to this effect by the Executive Secretary of the Council, Barr Hassan Bello, who said that monitoring compliance in the industry was very imperative.

It would be recalled that maritime industry stakeholders had called on the Council over two years ago to seek the support of the Police in enforcing some of its statutory obligations.

The stakeholders had referred the Council to the Standard Organisation of Nigeria, SON, NAFDAC, among others who have dedicated Police Units to enforce their statutory functions at any given time.

The management of the Council had however played this down, preferring a gentleman approach, a style that appears not to be helping the Council.

Bello had also during the visit called on the AIG to put an end to a situation in which some police officers were intercepting containers cleared at the ports on the high way.

According to Bello, this has been affecting trade facilitation because of the delay involved.

Responding on this, Imue assured that this will be addressed, adding that there is a standing instruction to stop such exercise.

He explained that in the past, some officers who were not of the Maritime Command were in the habit of writing terminal operators not to release some containers to owners, adding that this has been addressed.