4.4 Elephant’s import of urea
The import of goods to Nigeria is regulated by the Nigerian Customs and Excise Management Act. The act provides authority to prohibit the import of specific goods and to require special permission for imports. Cargo being imported against the rules is forfeited or may be detained or seized. The act also allows for the forfeiture of a vessel used to import prohibited goods.(1)The arbitration award (n 1) 3.
The import of fertilizer into Nigeria requires import permission from the National Administration for Food and Drug Administration and Control, as well as an End-User Certificate, which in 2015-2016 was awarded by the NSA/ONSA. Elephant had a permission to import urea that had expired in 2015, and so applied for a renewed import permit for fertilizer from NAFDAC on 14 April 2016.(2)The arbitration award (n 1) 14.The application concerned three types of fertilizers:
Prilled Urea – 100,000mt
NPK 15-15-15 – 150,000mt
Single Super Phospate – 25,000mt.
NAFDAC granted permission to import two types of fertilizer, but not urea, on 27 May 2016, and stated:
‘This permit does not authorize the importer to clear the chemical substances from the Nigerian Ports without first obtaining a ‘permit to clear’ from the Chemical Permit Section of the Chemical Evaluation and Research Directorate, National Agency for Food And Drug Adrninistration and Control. lt is an offence to, import or c!ear the chemical substances without obtaining the required permits.’
The legal basis for denial of import of urea is given in a letter from NAF-DAC to the NSA on 10 February 2017: ‘the third (3rd) · request being for Urea was denied because of the ban on importation of Urea fertilizer.’
The tribunal concludes that the refusal was based on regulation and practice that first and foremost were in effect due to considerations of national security.