The Federal High Court in Lagos on Friday upheld the right of any ship owner in Nigeria to challenge any violations of the Cabotage Act.
The trial judge, Justice Ibrahim Buba, stated this while delivering judgment in a suit by Polmaz Limited, represented by a former Nigerian Maritime Administration and Safety Agency (NIMASA) Director-General, Mr. Temisan Omatseye, a lawyer.
The plaintiff sought an order directing the Nigerian National Petroleum Cooperation (NNPC) and Pipelines and Products Marketing Company (PPMC) to cancel all contracts with foreign-flagged vessels operating in the Nigerian coastal waters without licence.
It also urged the court to direct the defendants, except NIMASA, to pay fines stipulated in the Cabotage Act for their alleged violation of the law.
Polmaz said NNPC and PPMC engaged the vessels in domestic coastal trade without requisite licenses being issued or any waivers granted to them as stipulate in the Act.
Other defendants in the suit as third to ninth defendants are NIMASA and the vessels’ operators, namely Olimpex Nigeria Limited, Unibros Shipping Corporation, Africulti Limited, Marika Investments Limited, Nidas Marine Limited and Prometheus Maritime Limited.
The defendants had challenged the court’s jurisdiction on the basis that the plaintiff had no locus standi. The also urged the court to dismiss the suit because it raised criminal allegations.
But Justice Buba held that the plaintiff has locus to institute the action. “The plaintiff, duly registered with NIMASA, has sufficient interest which can be adversely affected,” the judge said, adding that a citizen should not be denied access to court to ventilate his right.
“Our laws should not be interpreted to render citizens poor,” he said. The judge, however, dismissed the suit because the plaintiff “shot himself in the foot” by raising allegations which could not be substantiated in the suit brought by Originating Summons.
Justice Buba said he was unable to find the defendants guilty of violating the law when there was no charge or writ before him.
“It is clear from the forgoing submissions that the plaintiff in proof of their case did not show conclusively that the fourth to seventh defendants did not comply with the Cabotage Act.
“Because of the element of crime, the duty is squarely on their head to prove it beyond reasonable doubt. It is for this reason that the case of the plaintiff crumbles like a pack of cards.
“There is no corresponding duty on the defendant to prove the innocence or compliance with the law,” the judge held.
The plaintiff’s lawyer, Mr Edoka Onyeke, urged NIMASA to ensure that the Cabotage Act was complied with by all foreign vessels since it has the powers to do so.
He told reporters after the verdict: “The judgment is good in the sense that it re-emphasised the right of Nigerian ship owners to approach the court to interpret the provisions of the Cabotage Act.
“The fact that some prayers had criminal allegations, which made the court not to go beyond agreeing that the ship owner has the locus standi to sue over the Act, is a technical issue to me.
“But the judgment now places a responsibility squarely on NIMASA, because if they had done what they ought to do under the Act in terms of regulating operations of foreign flagged vessels and ensuring they operate with licence, we’ll not be in court.”
The plaintiff, in its Originating Summons, sought a declaration that the operation of the foreign flagged vessels operated by the fourth to ninth defendants and their engagement by NNPC and PPMC in domestic coastal operations are in clear violation of Section 5 of the Merchant Shipping Act and several sections of the Coastal and Inland Shipping (Cabotage) Act, No. 5 of 2003.
During hearing, Onyeke said it was illegal for the foreign-owned vessels to operate in Nigeria without licence.
“Until they show they have the requisite permissions, they cannot continue to operate in Nigeria,” he said.
Onyeke said the plaintiff’s case was for the court to interpret the provisions of the law.
“We urge the court to discountenance the objections of the defendants. What we’re fighting for, my Lord, is for the benefit of all Nigerians,” he said. But counsel for the eight defendant, Mr Sebastine Hon (SAN) urged the court to dismiss the suit for lack of jurisdiction.
He said the plaintiff lacked the locus standi to institute the action because he was not privy to the contract which NNPC and PPMC entered with the vessels’ owners. Hon said the suit was also criminal in nature, as the plaintiff was accusing the agencies of allowing the vessels to operate without licence.
The lawyer said a criminal allegation cannot be raised through an Originating Summons. “Let them come properly,” he said.
Counsel for the fourth to seventh defendants, Mr. Babajide Koku (SAN), added that the court can only make finding on the case if it first determined whether an offence had been committed.
“All the infractions they have complained about are criminal offences which they must prove beyond reasonable doubt,” he sai
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