Counsel to the Seaport Terminal Operators’ Association of Nigeria (STOAN), Femi Atoyebi, has faulted the Nigerian Shippers’ Council (NSC) over a ‘publication where the NSC itemised nine issues purportedly decided in its favour’ in the judgment of the Lagos State Federal High Court delivered by Justice Ibrahim Buba on December 17, 2014.
In a statement issued last week, Atoyebi said contrary to its Council’s claim, NSC did not file any counter-claim in the matter relating to STOAN in suit number FHC/L/CS/1704/2014 and so the court could not have upheld the same as claimed by the Council.
“Secondly, the publication deliberately concealed the fact that the judgment is a subject of a pending appeal and that STOAN also filed an application for a stay of execution of the judgment pending the determination of the appeal,” Atoyebi said.
The senior advocate of Nigeria said his firm had written to the NSC “when it was apparent that they were making efforts to ride roughly shod of the judicial process” and threatening his clients to comply with their directives as from December 22, 2014.
While describing the Council’s action as unacceptable, he said that it was a cloaked attempt to foist upon the Court of Appeal a situation of complete helplessness “so that if our clients’ appeal succeeds, their lordships’ decision would have been rendered nugatory.”
According to him, Nigeria’s constitution makes it clear that when there is an appeal against a court decision and a motion for stay of execution or injunction is filed, none of the parties must do anything to frustrate the hearing of the appeal until hearing and determination of the application are completed.
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Citing instances to support his argument, the STOAN lawyer said: “It is also trite that both the court from which an appeal lies and the court to which an appeal lies must preserve the ‘res’ so that the appeal, if successful, is not rendered nugatory.
“We consider that the NSC lawyers should have advised them appropriately of the correct position of the law and if they did, it would appear that NSC is refusing to follow the advice.”
When a party who suffered defeat in any matter is appealing and asked the court for a stay, he will not be held in contempt merely because he has not obeyed the order which he is appealing against, Atoyebi said, saying further that “what the courts frown against is any attempt by a successful party to pre-empt an application for a stay of execution of the judgment or the appeal itself by rushing the process of execution of the judgment to frustrate the exercise by the court.”
He said any further step that may be taken by the Council in a bid to frustrate the pending appeal and foist on the Court of Appeal a situation of complete helplessness would be highly contemptuous of the court, and that his firm would not hesitate to apply the full weight of the law on persons that authorised the publication.
“We advise our clients and the general public to ignore the directives or any directive of the NSC premised on the said judgment as they are not bound to follow them until our clients’ pending application or appeal has been determined, one way or the other,” he said.
Reacting to this, NSC through its counsel, Olisa Agbakoba, filed an application asking the court to compel STOAN and the Shipping Association of Nigeria to obey the judgment of the court in an action between the parties.
In a release issued by OAL and signed by Niyi Odunmorayo, the hearing of the application has been fixed for March 3, 2015.
