As the struggle for the restructuring of the Country continues to gather speed, some of the federating States have continued to fan the embers of restructuring, one way or the other. The remarkable thing is that the battle for the control of resources within a State by the relevant State Government did not start in 2017. As some commentators would say, the idea of restructuring means different things to different people. For some folks, it means the need for the devolution of powers to the various federating states, including the need for state police. To others, it means the need to balance the much-touted structural imbalance in the country. To Lagos, it simply appears to mean, as the various public officials in Lagos State would routinely say, “somebody somewhere, cannot continue to dictate how the inland waterways and resources within Lagos State will be controlled and governed.” The point here is that the Lagos State example, regarding the battle for resource control is almost synonymous to the well-documented Niger-Delta militancy approach, by the Niger-Delta militants who took up arms against the Federal Government of Nigeria, to protect, control and dictate the exploitation crude oil within the Niger-Delta region.
However, the fundamental difference as would be shown, is that while the various units of the Niger-Delta militants, took up arms to secure and fight the exploitation of crude oil fields against their wishes; the Lagos State Government, continues to fight the battle for resource control, brazenly with all the executive and legislative powers at its disposal, through its various authorities and personnel. In fact, going by recent events, it appears the various Courts of the land may have been dragged to join the politics of the battle.
The first reported official missile launched by the Lagos State Government was through the enactment of the Lagos State Waterways Authority Law, 2008 (“the Waterways Law”) by which the Lagos State House of Assembly, imposed various operational permits or charges for any commercial operations on the inland waterways within Lagos State. It is pertinent to mention that the Waterways Law is not only a replica of the National Inland Waterways Authority, (“NIWA”) Act, but also expressly repealed the NIWA Act. In effect, the Lagos State House of Assembly sitting in its Chambers at Alausa, abrogated an Act enacted by the National Assembly. Subsequently, the Lagos State House of Assembly enacted the Lagos State Waterfront and Infrastructure Law, 2009, (“the Waterfront Law”) which imposed various sand dredging permits and charges, and criminalized any sand dredging operation by anyone without a permit issued by the Governor of Lagos State. Remarkably, the Waterfront Law, by its interpretation section covers all other minerals other than those minerals within the context of the Mines and Minerals Act, 2007. (“the Minerals Act”)
Be that as it may, the real issue is whether there are any such minerals in existence, which even if not covered by the Minerals Act, can by any stretch of interpretation of the Constitution said to be within the regulatory competence of the Lagos State House of Assembly? Nonetheless, what needs to be pointed out at this juncture, is that by the combined provisions of these Lagos State laws, the stakeholders in the industry, particularly; Water Transport Operators; and Sand Dredgers were all required to obtain permits and pay charges to the Lagos State Government regarding their commercial operations. The circumstances of the sand dredgers who operate on the lagoons and rivers within Lagos State, even further underscores the burden. In effect, such operators must first obtain permit and pay charges pursuant to the Waterways Law for operating on “Lagos Waters” and in addition obtain permit and pay charges for dredging “Lagos Sand” along inland waters within Lagos State. The foregoing, recalls, the next line of questions-
First, are the waters really within the regulatory competence of the Lagos State Government?
Second, is sand having regards to Minerals Act, within the regulatory competence of the Lagos State Government?
Third, assuming these subject matters are not within the regulatory competence of the Lagos State Government, what has been the attitude of the relevant authority or authorities with the constitutional regulatory powers?
Section 4(2) & (3) of the Constitution vests the National Assembly with the exclusive powers to make laws with respect to the items within the Exclusive List of the Constitution. By Items 36 and 64 of the Exclusive List, the regulation of all navigation and shipping on all tidal waters, waterways and rivers are vested on the National Assembly. In pursuance of its powers the National Assembly have since enacted the National Inland Waterways Virtually all rivers and waterways are listed on the second schedule to the NIWA Act. Nonetheless, any waterway, river, lake or lagoon, that is anywhere within the territory of the Federal Republic of Nigeria, and therefore forming part of her inland waters that is not so listed in the Second Schedule to the NIWA Act, such omission (assuming there is any); having regard to the provisions of- (a) section 4(3) of the Constitution; (b) section 10 of the NIWA Act; (c) Items 36 and 64 of the Exclusive List; (d) the definition of – “inland waterways” within the context of the NIWA Act, and (e) “inland waters” in the Interpretation Act, does not howsoever, automatically consign the competence to any State House of Assembly, Court of Law, or any other authority to prescribe such waters, river, lake, or lagoon as state waters, belonging to any State of the Federation. Hence, only the National Assembly have the legislative competence to prescribe such waters and consign them to any of the federating States. Assuming, by any stretch of interpretation of the Constitution, any waterways, rivers or lagoons can be owned by any of the federating States of the federation. This is because, unlike in the case of land, where ownership is expressly defined and vested in State Government, there is no law vesting any inland waterways, lagoons, rivers or lakes on any of the federating States.
Remarkably, unlike in the case of inland waterways, section 44(3) of the Constitution vests all mines and minerals on the Federal Government of Nigeria. In effect, it is immaterial, where the mineral resources are found, be it water, land, or air. In so far, as such mineral is within the territory of the Federal Republic of Nigeria, it is owned by the federal government and within the legislative competence of the National Assembly, pursuant to section 4(3) of the Constitution and item 39 of the Exclusive list. In pursuance of these powers, the National Assembly have since enacted the Minerals Act, and it is pertinent to emphasize that within the context of the Minerals Act, there is barely any mineral that is not considered under the Act, other than oil and gas, which have since been considered by other legislations. What is also more interesting, is that by section 75 of the Minerals Act, sand, is expressly prescribed and regulated pursuant to the Minerals Act. It is also noteworthy, that based on the NIWA Act and Minerals Act, various charges and royalties are collectable by the Federal Government, through the relevant authorities.
The net implication of the foregoing appears very straightforward but cumbersome, at least within the business context, and speaks volumes of ease of doing business in Nigeria and what the stakeholders in Lagos must have faced regarding sand dredging and water transport in Lagos State, as the laws and Acts stand. First, the stakeholders in the industry, must having regard to the NIWA Act and the Minerals Act, obtain necessary permits and pay prescribed charges or royalties to the Federal Government of Nigeria, through the relevant authorities. Second, in addition, they must obtain various permits and pay various rates and charges imposed by the Lagos State Government pursuant to the Waterways Law and the Waterfront Law. Furthermore, the Stakeholders, must also obtain the permits and pay the Charges imposed under the NIWA Act. They also had to pay or remit the various taxes to relevant revenue service, including but not limited to the Companies Income Tax and Value Added Tax, prescribed under the tax laws. It does not stop there, they must also obtain quarry lease and pay royalties to the Federal Government through the Federal Ministry of Mines. Remarkably, despite, the outcries of the stakeholders, the Federal Government, particularly, successive Attorneys General of the Federation continued look the other way, while stakeholders were drained of their finances, including the severe difficulties and length of time, involved in obtaining the relevant permits from various levels of governments.
Consequently, the various collecting authorities of the Federal Government and Lagos State Government were in a severe battle with the Stakeholders, regarding the collection of royalties and charges. While some of the stakeholders tried to parley with the Lagos State Government having been probably befriended one way or the other; or for some other sentiments, the rest parleyed with the Federal Government Authorities, perhaps having regards to constitutional and statutory provisions. However, it eventually dawned on the stakeholders that they could only operate smoothly by obtaining operational permits imposed across board and paying all charges imposed by both levels of governments. This is because, the operators were often harassed, arrested, detained and or even prosecuted for illegal operations, by the authorities of the Lagos State Government, where they fail to obtain their permits and pay their charges. The Stakeholder also had to contain with the operational costs of sustaining their businesses and even with the locals that make their own individual demands as land owners. Invariably, the burden became heavier and it was under these circumstances that the stakeholders approached the Federal High Court.
A lot of judicial time and tax payer’s funds could have been saved and the stakeholders could have been equally saved some time, money and freed from needless harassment, if the then Attorney General of the Federation, alive to its duties, had taken out a Summons against the Lagos State Government, at the Supreme Court regarding the imposition of this charges and permits, when the dispute arose, as far back as 2008. Such Summons between the Federal Government and the Lagos State Government could have cloaked the Supreme Court, with the jurisdiction to pronounce on the issues, subject on the ever-ranging controversies regarding these charges, once and for all. For obvious reasons, the Attorney General of Lagos State could not have been bothered to take such steps. These circumstances equally speak volumes of the need to separate the offices of the Attorney General from the office of the Minister or Commissioner for Justice. The present circumstances, confronting the Stakeholders are such, that could have warranted a petition to the office of the Attorney General for such a Suit, to be filed, failing which, the Attorney General will face the music in the hands of the public, in terms of how he may be perceived by the public and allowed to continue in office by the next election. Sadly, the stakeholders had to approach the Courts by themselves regarding what clearly appears to be a revenue dispute between the Federal and State Governments. The events divergent Judgments reached by Federal High Court and the Court of Appeal, perhaps underscores how the Supreme Court could have prevented the whole uncertainty and laid the controversy to rest as far back as 2008, if the necessary step had been taken from the onset.
Upon the Summons taken out in 2012, the Federal High Court delivered its Judgment regarding the dispute, almost two years after in 2014. The Federal High Court, upheld the exclusive powers of the National Assembly to make laws, with respect to waterways, rivers and lagoons. In a well-considered Judgment, the Court directed the stakeholders to deal with the Federal Government Authorities regarding operational permits and payment of charges, with respect to their operations. The Court further nullified the Waterways Law. For whatever strange reason, the Court did not make any pronouncement regarding the Minerals Act in its Judgment and equally the provisions of the Waterfront Law were not considered. Nonetheless, it restrained the Lagos State Government from imposing charges, permits and duties on the stakeholders. The Judgment it will be recalled, was sufficient to bring sanity in the system and the stakeholders dealt with the Federal Government Authorities. Expectedly, the Lagos State Government appealed against the Judgment.
The Court of Appeal, on 18 July 2017, delivered a very unique Judgment, wherein the Judgment of the Federal High Court was completely set aside, and held that Lagos State can regulate what it termed as “intra-state inland waterways”. It is pertinent to point out that this was almost three years after the Federal High Court Judgment and when the dust seemed to have been settled following the Federal High Court’s Judgment. The Court of Appeal’s Judgment resurrected the controversies and harassments, already rested pursuant to the Federal High Court’s Judgment. The Court of Appeal, with respect, failed or neglected to consider the provisions of the Mineral Act, whilst nullifying the Judgment of the Federal High Court. The Learned Justices of the Court of Appeal, held that no inconsistencies were pointed between the Acts of the National Assembly and the Laws made by the Lagos State House of Assembly.
Regrettably, the Learned Justices of the Court of Appeal equally failed to consider, having regard to item 39 of the Exclusive List, whether the Lagos State House of Assembly can competently make any laws regarding the exploitation or dredging of any mineral resources, in the first place, including sand. The dangerously unique aspect of the Judgment, was that the Court of Appeal, with all due respect, constituted itself as a law-making body and “judicially enacted” the Lagos State “Intra-State Inland Waterways”, completely unknown to the NIWA Act or the Constitution. The Court of Appeal held that all the waters prescribed in the NIWA Act are waters within the regulatory competence of the National Assembly, but that such other waters not specifically listed under the NIWA Act and forming “intra-state inland waterways” cannot be extended to be within the regulatory competence of the National Assembly and the NIWA. It further held that each of the stakeholders must show that they are on waterways, within the regulatory competence of NIWA, failing which the Lagos State Government, can indeed regulate, impose and collect charges regarding the operational activities of the stakeholders on intra-state inland waterways of Lagos State. Upon this Judgment the authorities of the federal government, but particularly the Lagos State Government claimed victory. In effect, the Court of Appeal, rather than resting the controversy opened the litigation gate for each operator to approach the Courts to determine whether its operations are within the federal inland water ways or within the Lagos State Intra-State Inland Waterways; the scope and limits of the Lagos State Inland Waterways having not been delineated by any Lagos State Law, in the first place.
Suspicious, of this ugly scenario and in a bid to arrest the situation, the Area Manager of NIWA in Lagos, quickly issued a Press Statement, requesting the Lagos State House of Assembly, to prescribe the intra-state inland waterways of Lagos State, if there are any; while maintaining that the activities of the stakeholders are presently being carried, on waterways within the regulatory competence of NIWA. Conversely, the Lagos State Government, directed all stakeholders to immediately approach the relevant authorities of the Lagos State Government and regularize their operations, obtain necessary permits and pay imposed charges, failing which they will be decidedly dealt with, according to the Lagos State laws.
In reaction, the stakeholders seeing that they are back to square one and still unsatisfied with the Judgment of the Court of Appeal, immediately approached the Supreme Court. Nonetheless, while the appeal was pending at the Supreme Court, and yet to be determined, the Lagos State Government subsequently, proceeded against some of the stakeholders. The workers, working for these companies were in fact, arrested, detained for some days and are presently being prosecuted at the instance of the Lagos State Government. What is unclear, is why the Lagos State Government personally targeted the workers working for these companies. Assuming there is any legitimate case against the companies owned by the stakeholders, it necessarily follows by the principle of corporate personality, that the company is responsible for the operations and activities of its workers. In the case of one of the companies, an intern on industrial attachment with one of the affected companies, and a youth corper were arrested along with other workers and detained, until they were subsequently released on bail upon their arraignment for illegal dredging at the Lagos State Special Offences Court. The Nation Newspapers very quickly for whatever reasons published the images of these workers and the intern, reporting that they have already been convicted for illegal sand dredging, in a publication of 29 September 2017, even before the trial of the case, levelled against them.
It is sympathetic to imagine what these stakeholders and their workers have had to face, simply because of the failings of governments, the politics of the battle for resource control and the poverty of our judicial systems. First, for workers and interns working for these companies or stakeholders, to be dragged to this battle is simply alarming and unforgivable. Second, for a dispute regarding the charges imposed by the federal and state governments that arose since 2007 or 2008 to be ranging almost a decade after is indeed, preposterous. Third, for the various successive Attorneys General at both, the federal and state levels, to have refused and or neglected to have taken out a Summons, immediately before the Supreme Court, speaks volumes of our approach to governance. These authorities knew what the stakeholders where suffering but failed, refused and or neglected to do the needful. In fact, the Attorney General of the Federation, who should have led the litigation, was reported to have applied to be struck out of the Suit, at the level of the Federal High Court, for whatever reason. The various agencies of the federal government, namely, the Federal Ministry of Transportation, the NIWA and the Nigerian Maritime and Safety Administration Agency had to brief Counsel to appear and defend their interests respectively. Remarkably, the Federal Ministry of Mines was not represented at all, in a legal battle regarding charges for a mineral. Also, so much judicial time and tax payers’ resources paid as legal fees to Counsel could have been saved, if the Attorney General of the Federation, had taken out a Summons against the Lagos State Government, once and for all, at the Supreme Court. The costs incurred by the operators ultimately one way or the other would have been transmitted to the public to bear the ultimate pains for the protracted legal battle. Above all, the Lagos State Government appeared to be simply reaping in double portions, as it partakes in the monthly sharing of the Federal Government revenue, collected by the federal government authorities, and in addition, yet directly collects extra or additional charges from source from the stakeholders.
Interestingly, now the issue is before the Supreme Court, hopefully, the Supreme Court will determine the appeal, expeditiously. Whichever way the Judgment goes, we hope that in the future, the battle for resource control, will be channelled either before the Supreme Court, for quick determination of the existing laws, which are very clear and unambiguous; or in the alternative, before the National Assembly for the amendment of the laws, to give effect to the wishes or powers vested on the various levels of government. Also, in furtherance of the federal government’s policy of ease of doing business and to save judicial time, there is need to amend the laws, to enable stakeholders approach, at least the Court of Appeal, at the first instance, whenever, both the federal and state governments impose charges and permits on the same commercial operation, with a specific timeline for the determination of the dispute. In the alternative, a special procedure should be enacted, to enable stakeholders to be able to quickly obtain an Order of Court, compelling the relevant Attorneys General to approach the Supreme Court, to determine issues regarding the imposition of charges and permits by both the federal and state governments, at the same time on the same commercial operation, rather than the stressful legal battle from the level of the Federal High Court, all the way to the Supreme Court.
Stakeholders, should never again, be subjected to what those, in the sand dredging and water transport industry, including their workers have suffered in the hands of the Lagos State Government, in a bid to determine the legitimate authority to deal with, regarding their commercial operations.
© Nnamdi Amaefule.
© Copyright DNL Legal & Style 2017.
This piece may only be copied on the condition that DNL Legal & Style is duly acknowledged in this manner: “Source: DNL Legal & Style. View the original piece on: (insert Hyperlink)
© Copyright DNL Legal & Style 2017.
This piece may only be copied on the condition that DNL Legal & Style is duly acknowledged in this manner: “Source: DNL Legal & Style. View the original