From Godwin Tsa, Abuja

The Supreme Court had in a landmark judgment recently held that the control of activities on the nation’s inland waterways, including levying and licensing operators in the maritime sector belong exclusively to the Federal Government.

The apex court stated clearly that by the operation of existing laws, it was legally wrong for the Confederating states to control the sector and impose levies on business activities in the inland waterways.

Such powers, the court held, are exclusively vested in the Federal Government through its agencies, National Inland Waterways Authority(NIWA) and the Nigerian Maritime Standard and Safety Agency (NIMASA), and no other tier of government.

The judgment was in respect of an appeal marked: SC/CV/17/2018, filed by NIWA, NIMASA, the Minister of Mines and Steel Development, and the Minister of Transport.

The respondents to the appeal were the Lagos State Waterways Authority, the Lagos State Commissioner for Waterfront Infrastructure Development, the State Attorney General, the Governor of Lagos State, the Incorporated Trustees of Association of Tourist Boat Operators and Water Transportation of Nigeria (ATBOWTN) and the Incorporated Trustees of Dredgers Association of Nigeria (DAN).

The subject matter which can be rightly tagged as Resource Control began when the Lagos State Government through its House of Assembly enacted the Lagos State Waterways Authority Law No. 14 of 2008, which saddled the agency inter alia, with the regulation and management of internal waterways of Lagos State.

The Lagos State Government purportedly exercised its powers according to the provisions of section 315 of the 1999 constitution, which it claimed, empowered it to repeal an existing law.

The essence of the law made by the House of Assembly of Lagos State is to regulate and control all activities, and all vessels on waterways in Lagos State. Section 22 of the State law defined waterways to “include all waterways, rivers, creeks, lakes, tidelands, and Lagoons within the boundaries of Lagos State.”

The controversy was that by making such a law, the Lagos State Government simply reproduced an existing law made for the National Inland Waterways Authority(NIWA).

Furthermore, the conflict between the two laws arose from the fact that the Lagos State Waterways Authority enabling law gives powers, and responsibilities on Inland waterways already vested in the NIWA.

This is because the National Assembly having enacted a law on a subject, it is sufficient for such law to prevail over a law passed by a State House of Assembly, and where there is inconsistency, the state law is void to the extent of the inconsistency. (See AG Ondo V AG Federation(2002) 9NWLR (Pt.772) 222.

It was this controversy and the burden of multiple taxation that pushed the agencies of both the Federal Government and Lagos Government, ATBOWTN and DAN to file a suit in 2012, marked FHC/L/CS/543/2012 before the Lagos division of the Federal High Court, to determine which tier of government was empowered by extant laws to license and levy business operators on the nation’s inland waterways.

In his March 28, 2014 judgment on the case, Justice John Tsoho  (now the Chief Judge of the Federal High Court), held among others, that NIWA and NIMASA are the proper and lawful agencies with authority in matters relating to the commercial activities of ATBOWTN and DAN, who are involved in water tourism, water transportation, and sand dredging within the national inland waterways.

Justice Tsoho consequently retrained the Lagos State Waterways Authority and the state’s Commissioner for Waterfront Infrastructural Development from further seeking to control the commercial activities of the plaintiffs – ATBOWTN and DAN.

But dissatisfied, the Lagos State Waterways Authority and the State’s Commissioner for Waterfront Infrastructural Development approached the Lagos division of the Court of Appeal for a setting aside of the judgment.

In its judgment delivered on July 18, 2017, the Court of Appeal set aside the Federal High Court judgment.

The Court of Appeal had, among others, held that the inland waterways within Lagos State, not captured by the National Inland Waterways Act, are within the legislative competence of the state’s Legislature and that the state could collect taxes/levies on businesses on waterways which start and terminate in the state.

Not deterred by that decision, NIWA and three others challenged the Appeal Court’s decision at the Supreme Court, which in the January 5 judgment reversed the decision of the lower court and affirmed the March 28, 2014 judgment by Justice Tsoho.

Legal implications

The implication of the decision of the Supreme Court is as stated in its judgment that “ NIWA is the only agency saddled with the responsibility to levy,  impose and charge rates utilization along the declared waters of Nigerian Inland Waterways.

That NIWA is the rightful and legal agency of the Federal Government with the powers to exclusively manage, direct, and control all activities on the navigable waters and its right of ways throughout the country for inland navigation, according to Sections 8 and 9 of NIWA Act.

The apex court declared the activities of the Lagos government and its agencies as constituting a flagrant usurpation and an illegal encroachment on the statutory functions of NIWA because the waterways of Lagos State, among others in Nigeria, fall under the Exclusive Legislative List set out in Part 1 of the Second Schedule to the 1999 Constitution.

Another implication of the judgment is that it held that it is only the Federal Government, through the National Assembly that can validly legislate on Maritime Shipping and Navigation, adding that the power to legislate on any subject in the Exclusive Legislative List does not lie with the Lagos State Government.

The activities of the Lagos State Waterways Authority (LASWA) created by the Lagos Government, through the enactment of LASWA Law No. 14 of 2008 (LASWA 2008) by the state’s House of Assembly, to regulate, develop and manage all aspects of the waterways in Lagos State is unconstitutional.

The apex court further noted that existing laws do not favour the Lagos government’s arguments on resource control but that political stakeholders, including the Legislature, could work on ways to amend the law to address the concern raised by Lagos and others on the issue.

More importantly, the apex court by the judgment resolved the seeming dichotomy that was introduced by the Court of Appeal between “Inter” and “Intra-State Waterways” by stating the clear position of the Constitution on the subject matter.

This is because the Constitution does not recognise any contraption known as Intra-Inland Waterways and no legislation of the National Assembly recognised any such contraption.

The judgment equally restored the legislative competence vested in the National Assembly vide Item 36 of Part 1 of the Second Schedule which provides for Maritime Shipping and Navigation.

That is to say that waterways in Lagos State fall within Maritime Shipping and Navigation under Item 36 of Part 1 of the Second Schedule which are matters under the exclusive legislative list for which only the National Assembly can legislate under section 4 (2) of the 1999 Constitution.

It is important to reference the case in AG-Lagos State V AG Federation(2005), where the Supreme Court held thus: “Nigeria is a Federation and operates a federal constitution. An important attribute of a federal constitution is that there is a division of power between the center of the Federal Government and the state. The powers and roles given to each of the governments are as defined and set out in the Constitution. None of the governments is allowed to step out of its assigned field. If it does, whatever it does outside its assigned field will be unconstitutional and will be declared null, and void by the court.”

More so, in the case of INEC V Musa (2003) LPELR-1515 (SC), the Supreme Court emphasizing the legislative powers of the National Assembly held thus: “the Legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the federation or any part thereof concerning any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of states and to make laws concerning any matter in the Concurrent Legislative List set out in the First column of Part 11 of the Second Schedule to the constitution to the extent prescribed in the Second Column; and concerning any other matters concerning which it is empowered to make laws by the provisions of the Constitution.”

It is always necessary to appreciate the fact that, the 1999 Constitution(as altered), being the grundnorm, vests the legislative powers in respect of all matters in the exclusive legislative list, in the National Assembly. Therefore, in the exercise of the powers of the National Assembly, the State Houses of Assembly cannot encroach on the legislative terrain of the National Assembly.

In considering the scope, meaning, and applicability of items 36 and 64 of Part 1 of the Second Schedule to the Constitution, it is crystal clear that any activity that relates to navigation on water within Nigeria is covered by item 36 of Part 1 of the Second Schedule to the 1999 Constitution. It is a matter squarely within the exclusive list for which the National Assembly can legislate. Therefore, anything touching Maritime Shipping and Navigation are matters within the exclusive legislative list and only the National Assembly can legislate on it.

It is equally important to stress that the National Assembly does not share its legislative powers on Maritime Shipping and Navigation with any House of Assembly.

Sections 10 and 11 of the National Inland Waterways Authority Act Cap N47 L .F. N 2004,  provides for navigable waterways and the area of control of the NIWA to include “the rivers and their tributaries, distributables, creeks, lakes, lagoons and intra-coastal waterways specified in the Second Schedule to this Act are hereby declared federal navigable waterways.

Section 11 of the Act specify the area of control of NIWA to include “ All navigable waters, inland waterways, river-ports and international waters of Nigeria, excluding all direct approaches to the ports listed in the Third Schedule to this Act and all other waters declared to be approaches to ports under or according to the Nigerian Port Authority Act, up to 250 meters beyond the upstream edge of the quay of such ports, shall be under the exclusive management, direction and control of the Authority.”

The above provisions of sections 10, 11, and the Second Schedule to the National Inland Waterways Authority Act, cover all waterways in Lagos State, whether Rivers, Creek, or Lagoons, save for the approaches to the ports exempted by the Act.

By the above provision, Nigeria has a National waterway only, as there is nothing known as the Internal waterways of Lagos State or Intra State Waterways of Lagos State as declared in the Lagos State Waterways Authority Act.

It is important to note that the National Inland Waterways Authority Act Cap N 47 LFN 2004, derives its validity from the 1999 Constitution, according to section 315 of the 1999 Constitution.