Lagos State House of Assembly’s Competence to Legislate on Intra-Inland Waterways

“….The Lagos State House of Assembly is competent to make laws in respect of the intra-inland waterways in Lagos State, except the inter-State waterway declared as International or Interstate Waterways under item 5 in the 2nd Schedule to the National Inland Waterways Actr”

In the Court of Appeal

In the Lagos Judicial Division

Holden at Lagos

On Tuesday the 18th Day of July, 2017

Before Their Lordships

Hussein Mukhtar

M L Shu’aibu

Frederick O. Oho Justices, Court of Appeal

CA/S/886/2014

Between

1. Lagos State Waterways Authority
2. Hon Commissioner Ministry of Waterfront Infrastructural Development
3. Hon. Attorney-General of Lagos State
4. Governor of Lagos State …….. Appellants

And

1. The Incorporated Trustees of Association of Tourist Boat Operators & Water Transportation in Nigeria
2. The Incorporated Trustees Dredgers Association of Nigeria Transport
3. National Inland Waterways Corporation
4. Nigeria Maritime Standard and Safety Agency
5. Hon. Minister of Mines & Steel Development
6. Hon. Minister of Transport……..Respondent

Lead Judgement delivered by Hon. Hussein Mukhtar, JCA

Facts

The 1st and 2nd Respondents who are representatives of the Boat Operators, Water Transporters and Dredgers Association via an Originating Summons dated 22nd May, 2012, instituted an action at Lagos Division of the Federal High Court seeking direction, among other things, from the Court on the appropriate authority to which they are to make payment, obtain and renew Permit or Licence for their operational activities on the inland Waterways and Jetties under the Constitution of the Federal Republic of Nigeria. The Appellants and 3rd – 4th Respondents filed written responses to the 1st and 2nd Respondents Originating Summons. On 28th March, 2014, Honourable Justice Tsoho of the Federal High Court, delivered his judgement in favour of the 3rd Respondent. Dissatisfied with that decision, the Appellants filed a Notice of Appeal, contending among other things, that the Learned Trial Judge erred in law, when he held that the Federal Government had exclusive jurisdiction to make laws and regulate all inland waterways within the territorial jurisdiction of Lagos State to the exclusion of the Appellants, that the Federal Government and its agencies are the competent authorities to licence, register and regulate transportation and tourist boat operators on the inland waters, waterways and waterfronts within Lagos State, to the exclusion of State Government.

Issue for Determination

Whether the Constitution vests on the National Assembly, the power to make laws/ regulate intra State waterways/inland waterways by virtue of the provisions of sections 4(2), 4(4)(a), Sections 315 and Items 36 and 64 of the Exclusive List of the Constitution.

Arguments Parties filed and exchanged their briefs of argument. The Learned Attorney-General of Lagos State (AG) representing the Appellants, argued that the Federal Republic of Nigeria as the name implies, operates a Federal structure and arrangement of governance, and that the Federal nature of the Nigerian structure of government is enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In expounding the concept of federalism within the context of the Constitution, the AG relied on the case of A. G. OGUN STATE v ABERUAGBA & ORS (1985) LPELR-3164(SC) where the Supreme Court concluded on the respective powers of the Federal Government viz-a-viz State Governments, that a proper construction of section 4 would reveal that the residual legislative powers of government, were vested in the States. He submitted that, the Constitution does not bestow on the National Assembly, the power to legislate on intra State waterways/inland waterways. The AG posited that, in the absence of any express provision vesting on the National Assembly the legal competence to legislate on inland waterways or intra State waterways, the Lagos State House of Assembly is therefore, competent to legislate on intra State waterways/inland waterways, as the subject-matter consequently falls under the residual list.

Conversely, the Counsel for the 3rd Respondent, argued that the National Inland Ways Act (NIWA Act), cannot absolve the Appellants seeking to justify the creation of the 1stAppellant, without making sure that their actions are intra-vires and in accordance with the Constitution. It was further submitted that, though the NIWA Act was a product of the Military Government Decree, it has become an existing law by virtue of Section 315 of the Constitution being an Act of the National Assembly, now referred to as NIWA Act CAP N.47LFN 2004. It was finally submitted that, without doubt, the Lagos Waterways Authority Law enacted by the Lagos State House of Assembly, is illegal and should be declared null and void, being materially and substantially inconsistent with NIWA Act CAP N47 LFN 2004 and the Constitution.

The 4th Respondent submitted that items 36 and 64 in the Exclusive Legislative List of the Constitution, vests in the National Assembly the exclusive legislative competence to make laws in respect of all inland waterways in the Federal Republic of Nigeria and that, Nigeria has only national waterways, not intra-State water ways as advocated by the Appellants. It was further submitted that, item 36 in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, has empowered the National Assembly to make rules/regulations for the navigation of “tidal waters” in the Federal Republic of Nigeria, that includes all waterways in Lagos State.

Court’s Judgement and Rationale

The Court of Appeal stated that it was glaring that this case, turns on the core issue of interpretation of Part 1 of the 2nd schedule to the Constitution, especially items 29, 36 and 64 and whether the Intra-State Inland Waterways in Lagos State are incorporated under the Exclusive Legislative List. According to the Court, a community reading of the provisions of items 29, 36 and 64 of the Schedule, give the impression that the Exclusive Legislative list aims at preserving navigable rivers or inland waterways designated as international or interstate by a law promulgated by the National Assembly. The Court expressed no doubt that the common radical denominator is the scope of waterways cutting across international and state boundaries coupled with a declaration by the National Assembly that such waterways are international or interstate respectively. The more obvious area of coverage under the exclusive list are the sea tidal waters and maritime ports, declared by the National Assembly to be Federal Ports.

Their Lordships held that there is nothing in the Exclusive List dealing with intra-State water ways either in Lagos, or any other State in the Federation, and that the burden was on the Respondents to show that any of the Lagoons, creeks or water ways used for intra-State navigation, has run across the parameters of Lagos State into international or interstate boundaries, and is so declared in a law promulgated by the National Assembly.

The Court held that Item 64 is couched in no narrower scope, as it deals with water from such sources declared by the National Assembly to be sources affecting more than one State. The inland waterways within Lagos State are not and cannot by any stretch of interpretation, be covered by any item on the Exclusive Legislative list under Part 1 to the Second Schedule of the Constitution.

The Court further held that, the glaring absence of the Lagos State intra-waterways in the Exclusive Legislative list under Part 1, as well as the Concurrent Legislative list under Part 2 of the Second Schedule to the Constitution, means that it is automatically a residuary item that falls within the legislative competence of the Lagos State House of Assembly.

It further held that, the required declaration for inland waterways under the exclusive legislative list is made under section 10 of the National Inland Waterways Act, which includes rivers and their tributaries, distributaries, creeks, lakes, lagoons and intra- coastal waterways specified in the Second Schedule to the National Inland Waterways Act, which have been declared as Federal navigable waterways. Section 11 thereof provides that all navigable waterways, inland waterways, river-ports and internal 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 pursuant to the Nigerian Ports Authority Act, up to 250 metres beyond the upstream edge of the quay of such ports, shall be under the exclusive management, direction and control of the Authority. Item 5 in the Second Schedule to the National Inland Waterways Act is the relevant provision for the navigable route that falls under the exclusive legislative list and it provides thus:

The Intra-coastal route from Badagry. along the Badagry Creek to Lagos through Lagos Lagoon to Epe, Lekki Lagoon to Iwopin. Along Omu Creek, Talifa Kivei to Atijere, Akata. Aboto. Oluwa River to Okitipupa and onto Gbekebo. Arogbo. Ofunama. Benin Creek to Warri. Also the canal running from Araromi through Aiyetoro. Imelumo to Benin River and from Aiyetoro through Mahin Lagoon to Igbokoda.

This route runs through international and States’ boundaries and is therefore, consistent with the provisions of the Constitution being an item on the exclusive legislative list. Revenue accruable from this Federal route is payable to the Federal Waterways Authority.

The Court held that the inland waterways within Lagos State are not, and cannot by any stretch of interpretation, be covered by any item on the Exclusive Legislative list under Part 1 to the Second Schedule of the Constitution, and the authority of the Lagos State House of Assembly to legislate in respect of all intra- State inland water ways is not in doubt and all other inland waterways within Lagos State are within the legislative competence of the Lagos State House of Assembly and any revenue accruable therefrom, is payable to the Lagos State Waterways Authority.

On the whole, the Court held that the Lagos State House of Assembly is competent to make laws in respect of the intra-inland waterways in Lagos State, except the inter-State waterways declared as International or Interstate Waterways, under item 5 in the 2nd Schedule to the National Inland Waterways Act.

Appeal Allowed.

Representation: Adeniji Kazeem Esq. (Honourable A-G, Lagos State) with H. O. Oyenuga Esq. (DCL MOJ, Lagos) and O. O. Olanrewaju Esq. (SSC MOJ, Lagos) for the Appellants Dr. Charles Mekwunya with Desiree Erugoh Esq. for the 4th Respondent