IN THE COURT OF APPEAL
LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON TUESDAY THE 18TH DAY OF JULY 2017
BEFORE THEIR LORDSHIPS
HON. JUSTICE HUSSEIN MUKHTAR JUSTICE, COURT OF APPEAL
HON. JUSTICE M. L. SHU’AIBU JUSTICE, COURT OF APPEAL
HON. JUSTICE FREDERICK O. OHO JUSTICE, COURT OF APPEAL
EAL NO.: CA/S/886/2014
LAGOS STATE WATERWAYS AUTHORITY
HON COMMISSIONER MINISTRY OF WATERFRONT
HON. ATTORNEY GENERAL OF LAGOS STATE
GOVERNOR OF LAGOS STATE
THE INCORPORATED TRUSTEES OF ASSOCIATION
OF TOURIST BOAT OPERATORS & WATER
TRANSPORTATIO IN NIGERIA
THE INCORPORATED TRUSTEES DREDGES
ASSOCIATION OF NIGERIA TRANSPORT
NATIONAL INLAND WATERWAYS CORPORATION
NIGERIA MARITIME STANDARD AND SAFETY AGENCY
HON. MINISTER OF MINES & STEEL DEVELOPMENT
HON. MINISTER OF TRANSPORT
(DELIVERED BY HON. JUSTICE HUSSEIN MUKHTAR, JCA)
The court of appeal by its unanimous decision 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 waterway declared as international or interstate waterway under item 5 in the 2nd schedule to the national inland waterways act.
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 judgment in favour of the 3rd Respondent. Dissatisfied with that decision, the appellants filed a Notice of Appeal contending among other things that Learned Trial Judge erred in law when His Lordship 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 license, register and regulate transportation and tourist boat operators on the inland waters, waterways and waterfronts within Lagos State to the exclusion of State Government.
Questions slated 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?
Submission of Counsel
Parties filed and exchanged their briefs of argument. The Learned Attorney General of Lagos State 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 Learned Attorney General 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 Learned Attorney General 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 Learned 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 that 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.
Decision of the Court
The Court of Appeal stated that it is 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 is 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 lo 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 root 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 allowed the appeal and set aside the judgment of the Federal High Court Lagos delivered on 28th March 2014 and in its stead 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 waterway declared as International or Interstate Waterway under item 5 in the 2nd Schedule to the National Inland Waterways Act.
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