Limitations of senate’s powers on cargo clearance in Nigeria, by expert
By Eniola Idris
Following the recent confusion on the Senate Committee on Customs’ directive to Shipping companies not to release about 500 containers laden with various cargoes over allegation of trade infractions, a legal luminary Akabogu & Associates has provided insight into the illegalities of the action.
The action, which attracted reaction from importers and clearing agents at Nigerian ports was latter rested after a meeting with Association of Nigerian Licensed Customs Agents (ANLCA).
ANLCA, in a communiqué after the meeting said, “it was mutually agreed between ANLCA and members of the Senate Committee on Customs and Excise that it negates due process for lawmakers to be involved in cargo clearing”.
Chairman of the committee, Senator Francis Alimikhena gave his words that all cargo clearance hitherto stalled with shipping companies due to the committee’s activities and correspondence will be allowed to be processed in line with extant regulations.
Meanwhile, Akabogu & Associates has released a directory into the legal matters surrounding the senate’s action.
The directory, made available to SlyNews is detailed below:
Introduction
Further to recent media reports about alleged directives issued by the Senate Committee on Customs, Excise and Tariff for some shipping companies to halt the release of containers pending the approval of the committee, we have received enquiries on the fate of owners of such cargo. As a result, we are pleased to offer the following advisory for interested parties and the general public.
Advisory
- The Senate Committee is reported to have founded its actions on constitutional powers to carry out legislative oversight into the operations of the Nigeria Customs Service (“NCS”) and the entire cargo clearance value chain. The scope of such oversight powers does not grant the Committee the powers to directly interfere with administrative duties of the Nigerian Customs Service because:
- The power of legislative oversight as set out in SECTION 88(1) OF THE CONSTITUTION provides that each house of the National Assembly shall have the power to investigate into anything in respect of which they can make laws, and into the conduct of affairs of any person, or authority charged with the duty of executing or administering laws enacted by the National Assembly and for disbursing or administering moneys appropriated. From Section 88, it is clear that the power granted is simply one of investigation and not one empowering it to directly interfere with or takeover the administrative function of the NCS.
- By SECTION 88(2) OF THE CONSTITUTION, the investigative powers mentioned above are exercisable only for the purpose of enabling it to expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.
- The powers to regulate cargo clearance in Nigeria remain as provided in SECTION 36(1A) of CUSTOMS AND EXCISE MANAGEMENT ACT (CEMA) which stipulates that the Minister may make regulations regulating goods or their importation. SECTION 45(2) OF CEMA also provides that the Customs Board may require any importer or other person concerned with the importation of goods to furnish to the Board information necessary for the proper valuation of the said goods. SECTION 71(1) OF CEMA grants a Customs officer similar powers. Section 8 of CEMA grants officers of the Nigerian Customs Service the powers and privileges of a Police Officer for the purposes of enforcing the provisions of the customs and excise laws.
- From the foregoing, the power to enforce Nigeria’ s customs and excise laws are vested in the Nigerian Customs Service and by extension the minister of government in charge of that agency and no one else. It is clear that the directive of the Senate committee to halt the clearance of the relevant cargoes (or any cargo for that matter) pending the ascertainment of the adequacy of duties and tariffs paid is untenable as the directive is a usurpation of the powers of the Minister of Finance as well as the Board of Customs and Excise.
Liability for delay
It is noteworthy that the affected cargo may attract demurrage for their continued non-release as a result of the instructions issued by the Senate. Who should bear the cost of the demurrage in such an instance? This is one out of several pertinent questions that may arise. It is our firm opinion that where the importer has concluded all that is required of him and the only reason for which demurrage accrues is the Senate directive, such an importer would not be liable for the delay. The shipping company remains responsible for timely release of the cargo, and by extension, liability for non-release based on compliance with illegal orders. It is advised that affected cargo interests take steps to protect their rights and mitigate losses that may result from the foregoing circumstances. Feel free to contact us if you have any further enquiries in this regard.
Akabogu & Associates (“AkaboguLaw) is a specialist law firm in Nigeria for maritime and shipping. It is ranked as a ‘Leading Firm’ for Shipping and Transport (EMEA) by Legal500.
