Following the loss of an appeal brought by the Seaport Terminal Operators of Nigeria (STOAN), challenging an earlier Federal High Court judgment which directed them to account for all progressive storage charges illegally collected, the Appellants have changed their counsel and in so doing, taken the case to the Supreme Court.
The Appellants, being dissatisfied with the decision of the Court of Appeal sitting in Lagos, hereby appealed to the Supreme Court on the grounds that the lower court erred and breached their right to fair hearing when it struck out Ground 17 of the Appellants’ Amended Notice of Appeal on the ground that the said Grounds of Appeal was a challenge to the trial court’s ruling of 10th December, 2014, which joined the Shippers’ Association of Nigeria, the 2nd Respondent, as a Defendant to the suit.
The Appellants claimed that by striking out the Ground 17 of the Amended Notice of Appeal, the lower court misrepresented the case before it.
The Appellants also claimed that the lower court erred in law and reached a perverse decision when it affirmed the grant of the counter-claim of the 2nd Respondent by the trial court. They noted that the trial court rightly held that the 2nd Respondent would not benefit from the relief it sought before it, saying that it has no locus standi to make/present the counter claim.
The Terminal Operators also observed that the lower court acted without jurisdiction when it held that “The action of the Appellant at the lower court touched on the interest of the 2nd Respondent and the trial court was right to have found in favour of the 2nd Respondent that there in merit in the counter-claim.”
They also challenged the court’s ruling which granted the counter-claim of the 2nd Respondent seeking refund of the monies collected to the Cargo Defence Fund; noting that the Cargo Defence Fund was neither a party at the trial court nor the lower court.
Furthermore, the Appellants challenged the lower court’s validation of the Notice Number NSC/LN-TO.2014/001 issued by the Nigerian Shippers’ Council, the 1st Respondent, in its capacity as Economic Regulator of Nigerian Ports.
They hinged their claim on the Judgement of the lower court in Appeal No: CA/L/188/2015- Alraine Shipping Agencies (Nig) Ld/ Cross Marine Services & 12 Ors.V. Nigerian Shippers’ Council & Anor. delivered on 21st June, 2017. The lower court has declared the appointment of the Nigerian Shippers’ Council as Economic Regulator of Nigerian Ports inconsistent with the 1st Respondent’s enabling Act and the Nigerian Ports Authority Act.
In addition, the Terminal Operators claimed that the lower court reached a wrong decision when it held that the Appellants could not make a claim against the Nigerian Shippers’ Council because the Nigerian Ports Authority and the Bureau of Public Enterprises were the parties to the lease agreements. They alleged that the 1st Respondent exceeded its statutory powers under its enabling Act and by so doing, interfered with the execution of their lease agreements.
Appellants further stated that the lower court failed to holistically interpret and give full effect to the provisions of the NPA Act authorising the Nigerian Ports authority to regulate the use of the ports.
They also challenged the court’s order that the money should be refunded to the Cargo Defence Fund on the basis that there was no claim before the lower court of the Appellants’ indebtedness to the Cargo Defence Fund, which was not a party to the proceeding before the lower court.
They also sought to counter the lower court’s position that the 1st Respondent’s action was taken in exercise of the President’s executive powers to check excessive loss of revenue from the Maritime sector.
Relief sought by the Terminal Operators include allowing the appeal; an order striking out the counter-claim of the 2nd Respondent; an order granting the reliefs in the originating summons filed by Appellants on 10th November, 2014 and; to set aside the Judgement of the lower court in Appeal No; CA/L/189/2015 delivered on 15th January, 2018 which affirmed the Judgement of the Federal High Court, Lagos Judicial Division in Suit No: FHC/L/CS/1704/2014 delivered on 17th December, 2014.
Recall that the provisions of the 2007 port concession agreements approved maximum progressive storage rates to be charged by terminal operators, which were not to be increased without the prior agreement and approval of the Minister of Transportation.
However, at some point, the terminal operators increased the charges without recourse to nor approval of the Minister. They also reduced the free period allowed from seven to three days.
Following its confirmation as Economic Regulator of Nigerian ports, the Nigerian Shippers Council, on 28 October 2014, issued a Notice to all terminal operators in Nigeria (Notice No. NSC/LN-TO/2014/001) directing the appellants to revert to the regime of seven days free storage and rates as approved by the Minister in 2009.
The terminal operators went to court and at the end of proceedings, the Federal High Court per Justice Ibrahim Buba in December 2014, upheld the arguments of counsel to the Nigerian Shippers’ Council and entered judgment against the terminal operators. They appealed, and on January 16 2014, the Court of Appeal per Honourable Justice C.N. Uwa delivered judgment and affirmed the judgment of the Federal High Court, and directed terminal operators to account for all progressive storage charges collected by them from May 2009 on containerised cargo and pay same as refund to the Cargo Defence Fund of the Nigerian Shippers’ Council