19th July, 2018
Akin kuponiyi
An Appeal Court sitting in Lagos, Southwest Nigeria, has affirmed the judgment of a Federal High Court in Lagos dismissing a suit instituted by a limited liability company, Elephant Group Plc against the National Security Adviser NSA and the Attorney General of the Federation, AGF for lacking in merit.
Elephant Group Plc commenced legal action at a Federal High Court, Lagos, against the NSA and the Attorney General of the Federation jointly and severally seeking the following reliefs.
-A declaration that the company is entitled to fully utilize the end user certificate it obtained dated 13th January, 2015 issued in its favour by NSA to import 60,000 metric tons of NPK 15-15-15 and 60,000 metric tons of urea 46%.
-A declaration that NSA and its agents cannot deny the validity of the importation of the cargo by the company having obtained the license to import same, and having paid all the requisite levies as prescribed by the Nigerian custom services
-An order awarding damages in the sum of N500 million as exemplary, aggravated and general damages, awarding special damages in the sum of US$1,041,532,000 being the accumulated demurrage since paid on the 3 vessels at the time of filing this suit and US$655,000 as incidental charges.
-Cost of this legal action assessed at N50 million
Elephant group Plc, in its case stated that by an end user certificate dated 13/1/15 issued to it by NSA, it became entitled to import 60,000 metric tons of PK 15-15-15 and 60,000 metric tons of urea, 46%.
Consequently, the company imported 13,199 metric tons of prilled urea 46% N cargo on board a vessel MV Team Tango and fulfilled all requirements for chattering vessel, to convey, the cargo to Lagos, all levies were paid
However, the vessel and cargo were refused clearing and discharge by NSA, no official explanation was given, hence the company file a legal action to seek the release of the cargo.
However, NSA and AGF in their counter affidavit alleged that the company imported the Urea into Nigeria without the permission of National Agency For Food Drug Administration and Control NAFDAC, and that the importation was done, without a valid end user certificate from the office of NSA which were prerequisite to the importation of the said chemical substance into Nigeria.
They said the absence of these two vital documents is due to government policy on importation of Urea into Nigeria and that after issuing the company the end user certificate in 2015, the company upon fully utilizing same applied for a new end user certificate which was not issued to the company.
The added that the end user certificate relied on by the company to import the said 13,199 metric tons of Urea has expired since January, 2016 as the life span of end user certificate for the purpose of importing restricted chemical is for 12months was well known to the company.
According to them, the company also was well aware that it has fully exhausted the End User Certificate dated the 13 January 2015. At the time the company initiated the importation of Urea into Nigeria, there was already ban on the importation of Urea into Nigeria.
Justice Hadizat Shagari in her judgment said “it is pertinent to note that as at the time the importation of the cargo was initiated in June 2016, the company has no permit to import urea 46% into Nigeria because the chemical has been banned due to security threat therefore the company’s case did not succeed as it is trite the court cannot enforce illegality consequently application for the confiscated Urea to be released is not granted and it is hereby dismissed for lack of merit.
“In the same vein, by a judgment delivered by three man panel of justice at the Appeal court Lagos Joseph Shagba, Biobele Abraham Georgewill and Jamilu Yammama Tukur, particularly lead Judgement delivered by Biobele Abraham Georgewill, said “I hold that this appeal is to be dismissed and I hereby so dismiss it.
“In the result, the judgment of the Federal high court, Lagos division Coram Rabiu Hadizat Shagari in suit FCH/L/CS/1699/2016 Elephant Group Plc versus National Security adviser and Attorney general of the federation delivered on 16/June/2017 in which the claims of Elephant Group Plc as claimant against the National Security Adviser and other as defendants were dismissed is hereby affirmed. I make no order as to cost.”