Unfolding indication is to the effect that the Federal Government has directed the Nigerian Ports Authority (NPA) to terminate its boats pilotage monitoring and supervision agreement with Intels Nigeria Limited, because it flouts the tenets of the Treasury Single Account (TSA) mandate.
A directive which could result in several high profile jobs was communicated to the NPA Managing Director, Hadiza Bala Usman by the Attorney General of the Federation (AGF) and Minister of Justice, Mallam Abubakar Malami (SAN), in a letter dated September 27, 2017 highlighting that the agreement must be quashed, immediately.
The directive maintained that though the foreign integrated logistics and facilities services giant, Intels had collected revenue on behalf of NPA for about 17 years, deducting and keeping back about 28 percent of it as commission, it could no longer be sustained because, it violates the Nigerian Constitution, particularly, the aspects that has to do with the TSA.
The Intels, a terminal management giant towering in the oil and gas logistics sectors, is believably owned by former Vice President, Atiku Abubakar, a fact over which some industry watchers are alluding that the big stick might not be unconnected with Atiku’s recent political repositioning.
Atiku had been quoted in the past as identifying the Intels as his most lucrative business venture.
Some operators however believed that the AGF letter was sequel to NPA’s earlier correspondence seeking clarification on the appropriateness or otherwise of continuing an arrangement which allows a private firm collect Government revenue.
The AGF’s letter, while making its clarification however, also called Hadiza’s attention to the fact that it violates Sections 80(1) and 162(1) and (10) of the constitution, and wondered why both the NPA and Intels failed to recognise its illegality, almost a decade ago.
Malami’s letter indicated further: “I refer to your letter dated 31st May 2017, ref: MD/17/MF/Vol.XX/583 in respect of the above subject matter wherein you sought clarification on the legal issues implicated by the continuous implementation of the Managing Agent Contract Agreement dated 11th February 2010 executed between the Nigerian Ports Authority (NPA) and Intels Nigeria Limited for the provision of boats pilotage operations, in the light of the Federal Government of Nigeria’s Treasury Singe Account (TSA) policy.
“Upon my review of your letter under reference and the relevant agreements, I have been able to conclude inevitably that the terms of the agreement as agreed by parties and the dynamics of its implementation which permits Intels to receive revenue generated on behalf of NPA ab initio, clearly violates express provisions of Sections 80(1) and 162(1) and (10) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is thus curious that parties did not avert their minds to the above provisions of the constitution whilst negotiating the agreement.
“The inherent illegality of the agreement as formed has since been expounded by the TSA policy issued by the Head of Service of the Federation on behalf of the Federal Government of Nigeria directing all ministries, departments and agencies to collect payment of all revenues due to the federal government or any of her agencies through the TSA.
“The objective of the presidential directive (TSA policy) in exercise of the executive powers of the president under Section 5 of the 1999 Constitution (as amended) was in furtherance of the spirit and intent of Sections 80 and 162 of the constitution and to aid transparency in government revenue collection and management.
“NPA being an agency of the federal government is bound by the TSA policy and has not howsoever been exempt therefrom. Due to the constitutional nature of the TSA, where there is a conflict between the TSA and the terms of the agreement, the TSA shall prevail.
“Therefore all monies due to the NPA currently being collected by Intels and any other agents/third parties on behalf of NPA must henceforth be paid into the TSA or any of the sub-accounts linked thereto in the Central Bank of Nigeria (information of the account will be communicated in due course) in accordance with the TSA policy.
“For the avoidance of doubt, the agreement for the monitoring and supervision of pilotage districts in the Exclusive Economic Zone of Nigeria on terms inter alia that permits Intels to receive revenue generated in each pilotage district from service boat operations in consideration for 28% of total revenue as commission to Intels is void, being a contract ex facie illegal as formed for permitting Intels to receive federal government revenue contrary to the express provisions of Sections 80(1) and 162(1) and (10) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which mandates that such revenue must be paid into the Federation Account/Consolidated Revenue Fund.
“In the premise of the above, the conflict between the agreement and the TSA policy presents a force majeure event under the agreement, and NPA should forthwith commence the process of issuing the relevant notices to Intels exiting the agreement which indeed was void ab initio.”
Hadiza has immediately commenced the process of exiting the agreement.