The mandatory requirement for all customs agents associations to come under the Council for the Regulation of Freight Forwarding in Nigeria, CRFFN, as the condition to be issued entry permits or port passes to enter the nation’s seaports for business may have hit some of the practitioners.
A faction of the National Council for Managing Directors of Customs Agents, NCMDCA, has complained that this requirement which is being enforced by the Nigerian Ports Authority, NPA, as the landlord of the ports was illegal.
In a letter to the Presidency, the President of the NCMDCA, Mr Lucky Amiwero, maintained that his association cannot be subjected to come under CRFFN as it was already registered by the Nigeria Customs Service, NCS, to practise in the ports.
Amiwero in the letter to the President that the action of the NPA to subject all associations to come under CRFFN for the purposes of being issued the port pass was wrong.
The association indicated that by the requirement of the NPA, the association will be forced to pay illegal Illegal fees imposed by CRFFN.
He said that this has in turn restricted licensed custom agents from performing their legitimate functions as contained in the various laws.
According to the association, the restriction has resulted in the payment of demurrages by the customs agents, adding that it had complained to the NPA through a letter dated June 7 to no avail.
The letter reads:
14TH JUNE 2017
THE ACTING PRESIDENT AND COMMANDER-IN CHIEF
FEDERAL REPUBLIC OF NIGERIA
THE ILLEGAL IMPOSITION BY NIGERIAN PORTS AUTHORITY OF THE COUNCIL FOR REGULATION OF FREIGHT FORWARDING IN NIGERIA (CRFFN) AS CONDITION FOR THE ISSUANCE OF PORT PASS FOR LICENSED CUSTOMS AGENTS IN CONTRAVENTION OF THE CUSTOMS AND EXCISE MANAGEMENT ACT, PORT (RELATED OFFENCES, ETC.)(AMENDMENT) ACT 61 OF 1999, LETTER FROM THE PRESIDENCY AND THE FEDERAL HIGH COURT RULING
We hereby bring to the attention of HIS EXCELLENCY MUHAMMAD BUHARI PRESIDENT AND COMMANDER-IN-CHIEF of the imposition by Nigerian Ports Authority (NPA) requirement of Council for the Regulation of Freight Forwarding as Condition for the Issuance of Port pass to Licensed Customs Agents who by law are only the Practicing organ that is allows to Practice in the Ports Border station.
1. THE LAW THAT ESTABLISHED THE LICENSED CUSTOMS AGENTS AND ITS FUNCTION IN NIGERIA
LEGAL POWERS OF LICENSED CUSTOMS AGENTS
Customs and Excise Management (Amendment) Act (CEMA) CAP. C 45 of 2004 Section 153-156
2. THE AUTHORIZATION OF LICENSED CUSTOMS AGENTS TO PRACTICE AS CONTAINED IN SECTION 153 AND REGULATED BY THE MINISTER OF FINANCE UNDER SECTION 156
The Licensed Customs Agents are authorized to practice the Profession under section 153-(1&2) of the Customs and Excise Management Act
Clearly states, subject to subsection (1) of this section,
ANY THING REQUIRED BY (THIS ACT) to be done by IMPORTER OR EXPORTER OF ANY GOODS OR AN EXCISE TRADER (MANUFACTURER) Be done on his behalf by (b) A PERSON LICENSED AS A CUSTOMS AGENTS
Section 153 conferred power to the Licensed Agent to perform any function relating to import, Export and Manufacturing.
Copy of section 153-156 relating to the power and authorization of Licensed Custom Agents and Ministers regulation of Agent is attached appendix 1
3.THE REGULATION BY THE MINSTER OF FINANCE UNDER SECTION 156
Section (1) states, the Minister may make regulations with respect to the Licensing of Customs Agents and Excise, and without prejudice to generality of the power conferred by this section.
The Minister of Finance under Section 156 regulates the Licensing of Customs Agents
4. THE PORT (RELATED OFFENCES, ETC.)(AMENDED) Act 61 of 1999 ONLY ALLOWS THE LICENSED CUSTOMS AGENTS TO ENTER THE PORT AND PERFORM THEIR DAILY FUNCTION
The Provision as contained in Section (1b) (2) Clearly states, Notwithstanding the Provision of subsection (1A) of this Section and Unless otherwise requested by written notification by the Nigeria Customs Service, it shall be unlawful for any person, not being a duly authorized officer or AGENTS OF THE NIGERIAN CUSTOM, ( to be concerned with or involved with the actual process of examination and clearance of goods in any Port
The Licensed customs Agents/Clearing Agents are the only once legally authorized to enter the Port and be involved in the Examination and the Clearance of goods from the Port and Airport. based on section (1B) of Port (Related offence, ETC) (amendment) act 61 of 1999
Copy of the Port (related offences, Etc.)(Amendment) Act 61 is attached and marked appendix 2
5 .THE GRANTING OF PORT PERMIT INTO THE PORT IS UNDER THE CUSTOMS LEGAL NOTICE 3 PART V6B
The legal instrument to grant Permit in to the Port is from the Customs legal Notice 3 that conferred authority to Nigeria Port under Customs control area, which specifically authorized the Licensed Customs Agent to perform their daily function.
6. THE LETTER OF THE SECRETARY TO THE GOVERNMENT OF THE FEDERATION ON THE DISSOLVED COUNCIL FOR REGULATION OF FREIGHT FORWARDING IN NIGERIA
The secretary to the government of the Federation Letter address the statutory provision of the expired/dissolved council, which function cannot be exercised by the Registrar /Staff who are not elected as member of the Council under section 2-(1) a-g (2) 7(3)
The copy of the letter is attached and marked appendix 3
7. THE DISSOLVED COUNCIL OF THE COUNCIL FOR REGULATION OF FREIGHT FORWARDING (CRFFN) AND THE FEDERAL HIGH COURT RULING
The Federal High Court ruling on Suit No. FHC/LCS/5172 of 2008 as referred by the Court of Appeal, after judgment in the Federal High Court and Court of Appeal in Favour of the Plaintiff, filed by the members of the National Council of Managing Directors (NCMDLCA), which was later, referred back to the High Court for Continued process.
The High court ruling was delivered on 24 March 2015, which upheld that, the tenure of the Council Expired on 25 November 2012 that the council has vacated office, as there is no existing Council and No Council to deliver judgment
It formed legal decision on the proper position of the Non existence of the Council as Contained in Section ,which can only be perform by the Council elected under Section 2 and presided over by Chairman/Vice Chairman under Section-2-(3)
Copy of the Federal High court ruling is attached and marked appendix 4
8. THE LIMITATION OF THE POWER OF THE MINISTER OF TRANSPORT IN THE ACT
The Power of the Minster as Contained in Section 5-(1) specifically states, the Minster may give to the Council Direction of general character, which limits the Function of the Minister to only when the Council is in place. Section 5-(2) Clearly states, prior to given a direction under Section (1) of this Section, the Minster shall serve a copy of the propose direction on the Council and afford the Council opportunity of making representative to him.
As provided in section 5-(1) 7(2), the Minister Cannot interfere in the affairs of the Council without a properly constituted council elected under the Provision of section 2.
The Council ceases to exist since November 2012 that limits the Minister to issue any directive concerning an expired council, which has been decided by the high court and the letter from the secretary to Federal government that house the Decision Making body of Federal Government of Nigeria
Copy of section 5(1)&(2) relating to the Minister is attached and marked appendix 4
9. ANY DECISION MADE BY THE MINISTER, REGISTRAR AND STAFF AFTER THE EXPIRATION OF THE TENURE OF THE COUNCIL IN 2012 IS VOID
The power of the Council to function is domiciled in sections 4 and exercised by the Chairman/Vice chairman under section 2-(3) and not the Minister or Registrar, which has no legal authority to exercise any function in the Act , without the Constituted Board.
Copy of Section 2 of CRFFN Act is attached and marked appendix 4
10.THE SECURITY, LEGAL AND ECONOMIC IMPLICATION TO THE NATIONS, FEDERAL MINISTRY OF FINANCE AND NIGERIA CUSTOMS SERVICE ON DOUBLE REGULATION OF LICENSED CUSTOM AGENTS, WITH CRFFN
The Security, Legal and Economic Implication is detailed hereunder:
(1) the non-existence of liability on the collection of import duty and other charges in the performance of import and export function to government in CRFFN Act
The Freight Forwarders (CRFFN) Act, lacks provision of liability for performance, which is the core in accessing performance on the payment and protection of government revenue, as the Freight Forwarder are registered individually without traceable address.
The Licensed Customs agents are Liable under the provision of Section 154 of the Custom and Excise Management Act, which clearly states (Liability of agents for duty, etc.,
Copy of section 154 no liability of agents for duty, etc. is attached and marked appendix 6
11. THE REGISTRATION PROCEDURE AND THE NON-EXISTENCE OF SECURITY/BOND, FIXED ADDRESS, ON REVENUE COLLECTION AND TRACTABILITY OF THE INDIVIDUAL REGISTER BY CRFFN
TRACEABILITY OF MEMBERS OF FREIGHT FORWARDERS
The Freight Forwarder who are Transporters are registered individually without any offices fixed address, Bond and any Security, Which makes it difficult to trace them if they commit any infraction, the registration process is for individual and few cooperate bodies.
(a) The process contravenes the provision of paragraph 7 of the Customs and Excise agent regulation No. 95 of 1st jan. 1967, which only allows registration by Companies and allied Matters Act
(b) The Risk to allow the access of unlicensed individual to handle import Duty and Licensed Customs related function, who could not be trace if there is infraction as to evasion of Customs Duty,, Smuggling of unwholesome articles and security items.
(c) DUPLICATED REGISTRATION AND REGULATION
There is going to be duplicated registration and regulation that has never happen any where in the globe, which will create serious conflict in control between, the Federal Ministry of Finance/Customs and CRFFN on Control and traceability of practitioners.
The process clearly contravene the International protocol on Security/Bond, which requires a Secured and Validation process for Performance of Function of Practitioners in the Payment of Import, Export, Excise Duties and other charges to government revenue.
The Licensed Customs Agents are Regulated by the Minister of Finance under section 156 and Bonded for Security under section 144 Bond and Security with strict validation process under strict Customs an Excise Agent (Licensing) Regulation that requires under paragraph 9(Security)
The paragraph clearly states, a person shall not be issued with License to carry on the business of Customs and Excise Agent unless he has furnished, in such formats the Board may consider. Which was communicated to the Presidency Finance and Ministry of transport and
The reply from Ministry of Transport is attached and Marked appendix 6 and the Bond/Security is also attached and marked appendix 7
12 FREIGHT FORWARDING IS TRANSPORTATION BY DEFINITION UNDER SECTION 30 OF CRFFN ACTS AND ALIEN TO THE CUSTOMS AND EXCISE MANAGEMENT ACT BY LAW, PRACTICE AND FUNCTION
The Freight Forwarding is alien to the Customs and Excise Management Act, in terms of function, law, performance, practice and operation that is completely excluded from the function as contained in various provision of the Custom and Excise Management Act C45 of 2004
The Licensed Customs Agents are covered under International Convention of World Trade Organization, (WTO) World Customs Organization (WCO) a United Nation Conference of Trade and Development (UNCTAD) the Customs and Excise Management Act 153 gave the Authorization to perform, 156 regulates the profession 154 makes agents liable to payment of import Duty, the Port (related offences)(Amendment) 61 Act of 1999 Act, allows only licensed Customs Agents assess to the Port and the Customs legal Notice 3 that allows only authorized Licensed Customs operators to access the Port and Perform their function through the issuance of Customs Form 30 and 31
13. The Definition of FREIGHT FORWARDER, BASED ON SECTION 30 OF THE COUNCIL FOR REGULATION OF FREIGHT FORWARDING IN NIGERIA ACT 16 OF 2007
SECTION 30 Clearly state” Freight forwarder” means:
ANY PERSON OR COMPANY WHO ARRANGE THE CARRIAGE AND MOVEMENT OF GOODS AND ASSOCIATED FORMALITIES ON BEHALF OF AN IMPORTER OR EXPORTER ALONG INTERNATIONAL BOUNDARIES The definition is detailed under:
14. FREIGHT FORWARDER AS TRANSPORTER BY SECTION 30 OF THE CRFFN ACT:
(i) ANY PERSON OR COMPANY WHO ARRANGES THE CARRIAGE OR THE MOVEMENT OF GOODS, clearly describe its function as that of transporters who arrange the carriage or movement of goods.
(ii) AND ASSOCIATED FORMALITIES: is for Transporters
Associated formalities are authority to Load (ATL), Weigh bill, weighbridge fees etc.
(iii) ALONG INTERNATIONAL BOUNDARIES: transporters
The freight Forwarders are not allowed by their law to operate in the Port but must wait along international boundary to arrange the carriage of goods, whose service is required by the Licensed Customs Agents for the carriage of goods out of the Port
Copy of Section 30 of CRFFN of Freight Forwarder definition is attached and marked appendix 8
15. LICENSED CUSTOMS AGENT ARE NOT FREIGHT FORWARDERS BY LAW AND PRACTICE
The Licensed Customs Agents by law and practice are involved in the
(i) CLASSIFICATION OF GOODS-
Using the International Convention of Harmonized Commodity Description and Coding System (HS) under World Customs Organization (WCO) done at Brussels, with the GIR Rule and Notes
(ii) TO INTERPRET TRADE LAWS
, Relating to Import Export and Excise procedure in the following, Customs, Excise Tariff, ETC., Consolidation) act No’s of 1995 that contains provision for Schedules, Charges of import Duty, Concession, Goods under prohibition, Duty on Import and other Fiscal and Monetary policy measures
(iii) TO TREAT GOODS
Relating to the valuation of goods, under Article GATT Articles VII domesticated under the Customs and Excise (Amendment) Act 20 of 2003, Rule of Origin, Under the International Convention on the Simplification and Harmonization of Customs procedure Chapter 1 Specific Annex
(iv) TO APPLY TRADE AND MANUFACTURING PROCEDURES
To apply various sections of the CEMA and Fiscal Policy measures, Customs Legal Notices from 1-57 and other international trade procedures.
The Licensed Customs Agent are International Trade Procedure expert (TPE) who are principally trained to (i) classify (ii) interpret (iii) Treat and apply trade procedure, which was duly communicated too the presidency, secretary to Government Ministry of Finance, Custom and Transport, with reply from
Ministry of Finance, which is attached and marked appendix 9
16. THE FORCEFUL COLLECTION OF VARIOUS FEES FROM LICENSED CUSTOMS AGENT WITH THE SUPPORT OF NIGERIA PORT AUTHORITY BY CRFFN STAFF IN CONTRAVENTION
The Licensed Custom Agent are Now restricted by Nigeria Port Authority, with the strong connivance of the Management to enter the Port even with all the Legal process, which the Licensed Custom Agent undergone to procure their practicing License yearly, which is the only instrument to practice in the Port as contained in Section 153 of (CEMA), Customs legal Notice 4, Port (relate Office) (amendment) Act 61 of 1999 and Customs legal Notice3, which resulted to Payment of various fees by the Licensed Customs Agents to CRFFN before NPA will issue Port pass, which is in contravention of the Act 61 of 1999, CEMA and the letter from the secretary to government of the Federation, The Federal high Court Ruling and the provision in the act that limit the staff to preform the function of the CRFFN without a Board
Copy of the CRFFN receipt as presently issued is attached and marked appendix 10
17. RESTRICTION FROM THE PORT AND HUGE RENT AND DEMURRAGE PAYMENTS BY LICENSED CUSTOM AGENTS
The restriction has resulted in the payment of demurrages by the Licensed Customs Agents due to restriction from the Port to performing their normal function in, which the National Council of Managing Directors of Licensed Customs Agent(NCMDLCA) inform the Management through letter dated 7th of June 2017 without any respite
Copy is attached and marked appendix 10
18. TENSION IN THE PORT AND THE NEED FOR GOVERNMENT INTERVENTION ON THE ILLEGALITY OF IMPOSITION BY NPA
We as reputable organization which has serve in almost 167 Federal Government Committee as attached, which include Presidential Task Force on the Reform of Nigerian Customs(PTFRCS), Presidential Committee on Port problems, Presidential Committee on 48 hours Clearance etc, which., to implore the Federal Government of urgent intervene on the illegal imposition that has force the License Customs Agents to pay the Illegal fees impose by CRFFN, which restrict the License Custom Agents to preform their legitimate function as contained in the various laws
Thank in anticipation of your prompt intervention
LUCKY EYIS AMIWERO, FNIS,FNISM,FINS,TA FIAM,F.ICA
CC: HIS EXCELLENCY, MUHAMMUDU BUHARI.
CC: ACTING PRESIDENT, YEMI OSINBANJO
CC: THE PRESIDENT OF THE SENATE
CC: THE SPEAKER OF THE HOUSE OF REPRESENTATIVE
CC: THE CHAIRMAN SENATE COMMITTEE ON CUSTOMS AND EXCISE
CC: CHAIRMAN HOUSE COMMITTEE OF CUSTOMS AND EXCISE
CC: THE HONORABLE MINISTER OF FINANCE
CC: THE HONORABLE MINSTER OF TRANSPORT
CC: NIGERIAN PORT AUTHORITY
CC: NIGERIA CUSTOMS SERVICE