In bid to forestall the termination of its Calabar Towage contract, a limited liability company Global Spectrum Energy Services Limited has dragged the Nigerian Port Authority (NPA) before a Federal high court in Lagos.
The company is urging the court to restrain NPA and its agents from creating third party rights or carrying out any act capable of undermining or disturbing the company right to all areas of Calabar Port to be used in connection with the Towage Operation as contained in the Towage Lisence Agreement pending the hearing and determination of the arbitrary proceeding.
According to an affidavit sworn to by the Business Development Manager of Global Spectrum Energy Services Limited, Mr Adedipe Enitan, and filed before the court by Lagos lawyer, Barrister Osahon Idemudia, it stated that what led to the current legal action started on 27th of January, 2015.
The affidavit explained that by virtue of Towage agreement NPA granted the company an exclusive license for ten years to provide three Towage services at the Calabar Port, with right of access in the port to areas necessary in the delivery of its service.
By virtue of the said agreement NPA ceded to the company the responsibility, control and management of all the areas of the Calabar Port to be used in connection with Towage Operation.
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It was also agreed by the parties that the company shall be responsible for the towing of all vessels at the Calabar Port.
Following the execution of the Towage License agreement, the company commenced the process of discharging its own obligation as required under the agreement by bringing in its vessel, MV ANORA to the Towage Operation Area of the Calabar which is a major equipment in the execution of the project.
However when the vessel got to the Towage Operation Area of the Calabar Port, NPA refused to grant the company’s vessel access to berth at the Towage Operation Area, thereby necessitating the company to leave its vessel in an offshore anchorage area at the Nigerian water way thereby incurring demurrage.
The issue was brought to the attention of the Managing Director of NPA, through series of letters, but all efforts deployed by the company to ensure the issue was amicably resolved proved abortive as a result of insistence of the officials of the NPA that they have been instructed not to allow the company vessel berth at the Towage Operation area.
When it became apparent that NPA did not intend to amicably resolve the dispute, the company instructed its solicitors to send pre-action notice, but NPA refused to open a line of communication, consequently, the company instructed its solicitor to commence the process of resolving the dispute through arbitration as agreed under the Towage License Agreement and NPA was served with Notice of Arbitration and request for Arbitration,and has commenced the process of resolving the dispute through Arbitration as agreed by parties under the Towage License Agreement.
Consequently, the company is urging the court in the interest of justice to make a preservative order restraining NPA or its agents from re-contracting the project to any third party pending the subsistence of the arbitral proceedings.
The company contended that it has suffered and will suffer greater hardship as a result of the actions of the NPA if the court fails or refuses to make the preservative order pending when the Regional Centre For International Commercial Arbitration is able to constitute a panel of Arbitrators who would arbitrate over the dispute between parties.
Meanwhile, in a counter affidavit sworn to by a litigation clerk Mr Precious Origha, in opposition to the suit,on behalf of NPA and filed before the court by the law firm of AOA Legal Advisers and Advocate, the deponent averred that the Towage Licence Agreement did not grant the company any exclusive rights at Calabar,the company was merely granted a license to provide towage services at the Port.
The presiding Judge, Mohammed Idris has reserved judgement till 29th of September, 2017.
