THE Nigerian Shippers Council (NSC), by a notice dated October 16, 2015, has informed all shipping lines in Nigeria of the re-introduction of International Cargo Tracking Note (ICTN) in Nigeria with effect from 3rd November 2015 despite opposition from Manufacturers Association of Nigeria (MAN) and the multinational shipping lines. The legality or otherwise of this regime is the subject of this discourse.
Historically, ICTN was first introduced in Nigeria on December 9, 2009 with the approval of the Federal Executive Council (FEC). The scheme was then under the management of Nigerian Ports Authority (NPA). However, following widespread condemnation by maritime industry stakeholders, the scheme was suspended less than a year after its introduction. On 9th November, 2011, the Nigerian Ports Authority (NPA) issued a statement to shippers that Mr. President has approved the abolition of ICTN for all shipments into and out of Nigeria seaports with immediate effect.
Whilst it could be argued that the powers of the NSC under section 3(1) of the NSC (Port Economic Regulator) Order 2015 and section 3(b) of the NSC Regulations are wide enough to cover the implementation of the ICTN since the Regulations and Order being subsidiary legislations have the force of law. Clearly, this argument cannot avail the NSC for two principal reasons. First, the NSC Regulations/Order cannot confer powers on the NSC that were not contemplated or provided for by the enabling Act.
The powers of the NSC are clearly stated in section 3 of the Act and does not include implementation of ICTN. Two decisions of the apex court are apt on this proposition. Nnaemeka-Agu, (JSC, as he then was) in Din v. A-G Federation (1998) 4 NWLR (Pt. 87) pg 147 at 187 stated that: “A subsidiary legislation derives its validity and authority from a substantive law, constitutional or otherwise.
It has not the capacity to extend such jurisdiction or authority”. Similarly, Hon. Justice Karibi-Whyte (JSC, as he then was) stated in Odeneye v. Efunuga (1990) 7 NWLR (Pt.164) 618 at 642 “A subsidiary legislation derives its validity from the enabling law. Its provisions therefore, must be in conformity with the terms of its enabling law”. By reason of the above, it is submitted that the NSC Regulations/Order cannot expand its powers as clearly stated in section 3 (a) – (j) of the NSC Act. It is a cardinal rule in the interpretation of statutes that words are to be given their plain, literal and ordinary meaning.
Secondly, in a sharp and agonising contrast with what is obtainable in other jurisdictions where ICTN is in force, there is no legal regime governing the implementation of ICTN in Nigeria. By its very nature, there must be a conceptual and an operational framework for the implementation of ICTN in Nigeria. In Europe, the equivalence of ICTN is the Economic Operators Registration and Identification number (EORI) which is a regional instrument subscribed to by members of the European Economic Community (EEC).
In US, it is known as the Advanced Cargo Declaration Regime (ACDR). In both the US and in Europe, the Regime is comprehensive. It applies to all goods imported to or exported from the EU/US, and to transit goods which are not in free circulation. It covers all transport sectors: deep sea shipping, short sea shipping, air transport, rail, inland waterways, road and combined transport using ro-ro vessels.
It applies to all “economic operators”, meaning anyone involved, in the course of their business, in activities covered by customs legislation. Having a law in place is inevitable. NSC cannot by a mere circular or notice to shippers commence the implementation of ICTN.
The re-introduction of the ICTN scheme will entail a lot of cumbersome processes and bureaucracy in our shipping industry. Furthermore, this will add to the cost of doing business in Nigeria. The Ghana Shippers Authority (GSA) – the Ghanaian counterpart of the Nigerian Shippers’ Council (NSC) has suspended the controversial cargo tracking note it introduced on 2nd April 2015. Popularly called Electronic Cargo Tracking Note (ECTN) or Advanced Shipment Information System (ASHI) in the old British Gold Coast, it was made mandatory for all imports into Ghana and operated by Antaser Afrique – the same company behind Nigeria’s version of the controversial scheme. It is hoped that the NSC will learn from the mistakes of the GSA and urgently abolish the scheme.
• Abiloye (FCIArb.) is a legal practitioner based in Lagos (firstname.lastname@example.org).