The terminal operators under the aegis of Seaport Terminal Operators’ Association of Nigeria (STOAN) has dragged President Muhammadu Buhari, Minister of Transportation, the Attorney-General of the Federation and the Nigerian Shippers’ Council (NSC) before Justice Idris Kutigi of the Federal High Court in Lagos over a Presidential order conferring the port economic regulator role on the NSC.
The action emanated from the claims of the plaintiffs, in this case, the terminal operators that the Presidential order made in 2015 and pursuant to it, a regulation made empowering the Nigerian Shippers’ Council (NSC) to regulate tariffs at the nation’s ports was null and void as according to them, it was not made by the National Assembly.
The terminal operators in their line of argument argued that the President of the Federal Republic of Nigeria had no powers as the Executive President to make such order.
They therefore argued that it was ultra-vires the President to make that order and the regulations that related to it. They further claimed that the effect of the order was an amendment of the NSC Act.
STOAN contended that it was only an Act of the National Assembly that can amend or repel the NSC Act thereby asking the court to set aside the order and the regulations made pursuant to it and consequently stop the NSC from exercising the powers conferred on it as an economic regulator at the ports.
But in their line of argument, the NSC and the Shippers’ Association Lagos State (SALS) whose application for a joinder in the suit is still pending before the court argued that the suit by the plaintiffs was a rehash of the same argument that they made when in 2014 they took the NSC to court and the Shippers’ Association Lagos State joined.
They recalled that the plaintiffs in the said suit had argued that the appointment of the NSC by the President through the Minister of Transport to become the port economic regulator with powers to regulate tariffs in the port system was null and void as according to them, the President had no such powers and that the letter written by the Minister transmitting the new role to the NSC was not a regulation or a law or an Act of the National Assembly.
NSC as well as the SALS maintained that that was the argument STOAN tendered at that time which they both argued to the contrary.
Whereas the NSC argued that the President as the Executive President of Nigeria had powers to make the appointment under his Executive powers particularly when the constitution did not preclude him from exercising such powers, counsels to SALS argued that their client had the right to be in that suit because their client bore the brunt of the port charges in the port system and that being the party directly affected , they could not afford to stand and watch a fight between the NSC and the port terminal operators to see whichever would win, that they should be directly involved in the suit.
According to the counsel to the SALS, Barr. Osuala Emmanuel Nwagbara, the matter was then argued on behalf of the Shippers’ Association Lagos State that because their interests were directly affected, they had to be in that suit and of course they supported the argument of the NSC that the Executive President of Nigeria had the power to make that appointment of the NSC as regulator of tariffs in the port system in Nigeria under the general powers of the Executive President under section 5 of the constitution to make orders for the peace and good governance of Nigeria especially when the constitution did not expressly prohibit him from making that appointment or the exercise of such powers as a President with regards to that area where you had a lacuna.
“So, in a nutshell, the suit before the Federal High Court is a rehash of the argument that was made in the suit that was decided by the Federal High Court in 2014 which is pending on appeal at the Court of Appeal as we speak. It is also part of the argument of the Nigerian Shippers’ Council that the issues raised there being more or less the same , that it will amount to re-litigating those issues and that they should rather wait for the outcome if the appeal that they filed and that the issue had already been decided between the parties.
“As it stands now, there is a preliminary objection pending in that suit filed by the Office of the Attorney -General and the Minister of Transportation basically saying that the issue had been decided between the plaintiffs and the Nigerian Shippers’ Council.
“Nigerian Shippers’ Council had already filed a preliminary objection in that suit but was struck out on technical ground. I was informed as at yesterday (Thursday) that they had filed another one and it will be coming up for argument hopefully when the matter comes up on the 15th of December, 2016.
“The case is coming up for mention on the 15th of December, because we are still dealing with the preliminaries. Our application for joinder is still pending for Shippers’ Association Lagos State to be party in that suit. It has not been argued but it is being opposed by the Seaport terminal operators but the argument has not been taken.”, Nwagbara said.
It will be recalled that Justice Buba of the Federal High Court, Ikoyi Division had earlier in 2014 ruled that the President was right in appointing the Nigerian Shippers’ Council as the Port Economic Regulator thereby confirming the position of the NSC as the port economic regulator, a decision that STOAN had since appealed and is pending before the appeal court for determination.
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