The Lagos State Government has lost its share of control of Nigeria’s inland waterways which it has exercised for over 15 years through levying and licensing of operators in the sector.
The Lagos State Government had raked in revenues from operators in the sector pursuant to the state’s Lagos State Waterways Authority (LASWA) Law which came into force in 2008.
The Supreme Court, on Friday, held that it was the sole responsibility of the central government to impose levies, and issue licences to operators in the industry.
Delivering its judgement on a suit concerning the dispute, a seven-member panel of the Supreme Court led by John Okoro said it was unlawful for state governments to seek to control the nation’s inland waterways.
In the lead judgement written by Mr Okoro, the Supreme Court held that existing laws confer exclusive control of activities in the inland waterways on the federal government through its agencies, the National Inland Waterways Authority (NIWA) and the Nigerian Maritime Standard and Safety Agency (NMSSA) and no other tier of government.
Background
Faced with a multiplicity of charges by both federal and the Lagos government agencies, the incorporated trustees of the Association of Tourist Boat Operators and Water Transportation of Nigeria (ATBOWTN) and the incorporated trustees of the Dredgers Association of Nigeria (DAN) filed a suit at the Federal High Court, Lagos to seek an end to such in 2012.
The plaintiffs prayed the court to determine which tier of government was empowered by law to license and levy business operators on the nation’s inland waterways.
Ruling on the case, the judge, John Tsoho (now Chief Judge of the court), said the federal government agencies – NIWA and NMSSA – 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.
Mr Tsoho restrained 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.
However, Mr Tsoho’s decision was nullified by the Court of Appeal in its 18 July 2017, judgement on the appeal filed by the state governor and three others.
NIWA and three others challenged the Court of Appeal’s decision at the Supreme Court, which in the 5 January judgment reversed the decision of the lower court and affirmed the March 28, 2014 judgment by Justice Tsoho of the Federal High Court.
The Court of Appeal had held that the inland waterways within Lagos State were not captured by the National Inland Waterways Act, are within the legislative competence of the state’s legislature, and that Lagos could collect taxes/levies on businesses on waterways which start and terminate in the state.
The appellants – NIWA, NMSSA, the Minister of Mines and Steel Development, and the Minister of Transport – listed the Lagos State Waterways, the state’s Commissioner for Waterfront Infrastructure Development, the Attorney-General, the Governor of Lagos State, the incorporated trustees of the Association of Tourist Boat Operators and Water Transportation of Nigeria, among others, as respondents.
Deciding the appeal on Friday, the Supreme Court agreed with the appellant’s lawyer, Lateef Fagbemi, who is now the Attorney General of the Federation (AGF), that NIWA is the only statutory agency vested with the responsibility of levying, imposing, and charging rates of utilisation along the declared waters of the Nigerian Inland Waterways Authority.
The lead decision of the Supreme Court, which was prepared by Mr Okoro but read in open court on his behalf by Emmanuel Agim, a member of the court’s seven-member panel that sat over the case, clarified that the federal waterways agency is the rightful and legal agency of government with the “powers to exclusively manage, direct and control all activities on the navigable waters and its right of way throughout the country for inland navigation, pursuant to Sections 8 and 9 of NIWA Act.”
The justice upheld Mr Fagbemi’s argument that the activities of the Lagos State government and its agencies constituted a flagrant usurpation and an illegal encroachment on the statutory functions of NIWA.
He noted that 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 Nigerian constitution.
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The Supreme Court added that it is only the federal government, through the National Assembly, that can validly legislate on Maritime Shipping and Navigation, saying the power to legislate on any subject in the Exclusive Legislative List does not reside with the Lagos State Government.
The appellants had contended that 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 were unconstitutional.
The Supreme Court agreed that the existing laws do not favour the Lagos State government’s contention on resource control, but that political stakeholders, including the legislature, could work on ways to amend the law to address the concerns raised by Lagos and others on the issue.
The federal government is often in dispute with subnational governments over resource control, especially petroleum resources and mining of other mineral resources.
However, the constitution confers exclusive control of these resources on the central government, many times, to the displeasure of the states.
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