Tax Holiday: Appeal Court dismisses NLNG’S case against NIMASA

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…Orders gas firm to continue paying maritime levies

The Court of Appeal, Lagos Division, today set aside
the judgment of the Federal High Court, which had exempted the Nigerian
Liquefied Natural Gas Limited (NLNG) from levies payable to the Nigerian
Maritime Administration and Safety Agency (NIMASA) under the NIMASA Act,
Cabotage Act, Marine Environment (Sea Protection Levy) Regulations, and other
laws of the federation.

The appeal
court based its ruling on the fact that NIMASA, the country’s Maritime
Regulatory Agency, was not given fair hearing at the lower court.

Honourable Justice Mohammed Lawal Garba, who delivered
the judgment, ordered the return of the case to the Federal High Court for
fresh trial under a different judge.

Today’s
ruling restores the status quo, reaffirming NIMASA’s powers to continue to
collect the levies.

According to lead counsel of NIMASA, Mr. Lateef
Fagbemi (SAN), the effect of today’s ruling is that the Federal High Court is
ordered to revert to the fundamental issue of fair hearing while NLNG continues
to pay the statutory levies, pending another ruling by the lower court on the
matter.

It would be recalled that the dispute between
NLNG and NIMASA is based on the refusal by NLNG to pay 3% of the gross freight
on all international outbound and inbound cargo carried by ships chartered by
NLNG and its wholly-owned subsidiary company as contained in the NIMASA Act
2007.

Also, the refusal by NLNG to pay the 2% surcharge on
cabotage trade undertaken by its vessels within 200 nautical miles of the
baselines and Nigerian coastal and inland waters as contained in the Coastal
and Inland Shipping (Cabotage) Act 2003.

The NLNG had also refused to comply with the Marine
Environment (Sea Protection Levy) Regulations of 2012 and the Merchant Shipping
(Ship Generated Marine Waste Reception Facilities) Regulations 2012.

NIMASA had in 2010 commenced an action
against NLNG, wherein it sought for an interpretation of relevant provisions of
the Nigerian LNG (Fiscal Incentives, Guarantees and Assurances) Act, CAP N87,
Laws of the Federation of Nigeria 1990, and the NIMASA Act of 2007.

In January 2013, the action by NIMASA was withdrawn in a
bid to amicably settle the dispute out of court.

Following the continued disregard of the
provisions of the NIMASA Act and other relevant laws by the NLNG, in May 2013,
NIMASA sought to enforce the provisions of the NIMASA Act and Cabotage Act as
empowered under the Act, by demanding payment of the respective 3% and 2%
charges due from the NLNG, consequent upon which NLNG vessels were detained for
non-compliance.

Upon intervention by the Federal Government,
through the office of the National Security Adviser (NSA), an agreement in
principle was adopted, with NLNG undertaking to pay up all outstanding levies
and comply with the requirements of the NIMASA Act 2007, the Cabotage Act 2003
and other relevant Regulations at the time. NLNG made a payment of
$20,000,000.00 (Twenty Million Dollars) and the blockade was lifted.

In a surprising twist, the Agency received a
pre-action Notice on the 18 June 2013 from Counsel to NLNG, giving thirty (30)
days’ notice of their intention to commence legal action in accordance with
Sections 53(2) of the NIMASA Act. This resulted in another blockade on 21 June
2013, during which time various issues were canvassed in Court by the parties.

Meanwhile, there was a truce by the parties
under which the following were agreed: NLNG effects payment of all outstanding
sums owed to the Agency and henceforth all its vessels, including FOB cargoes,
will pay NIMASA levies as and when due as well as other sums as provided under
the NIMASA and Cabotage Acts, albeit under protest;

It was also agreed that NIMASA would lift the detention
Orders placed on NLNG vessels and for as long as due payments are effected
promptly, NLNG vessels will not be detained; NLNG will ensure that all
outstanding FOB payments are made within four months from the date of the
Agreement failing which NLNG will assume responsibility for the payments.

The outstanding due payments were made by
NLNG on the 6 July 2013 and the blockade was lifted on Saturday, 7 July 2013.

Hearing of the substantive issues continued
after which the Federal High Court sometime in 2016 entered judgment in favour
of NLNG.

The Agency, not satisfied with the judgment, engaged the
services of Mr. Lateef Fagbemi (SAN) and Mr. Mike Igbokwe (SAN) to immediately
file an appeal against the said judgment of the Federal High Court, which gave
rise to today’s ruling.