NIWA V LASG: Supreme Court Affirms FG’s Exclusive Control Of Inland Waterways

 The Supreme Court has ruled that the Federal Government has total control of all waterways in the country, including the right to levy and license operators in the sector.

The apex court in its ruling declared that states attempting to regulate the sector and impose levies on businesses operating in the nation’s inland waterways were acting wrongly, unlawfully, and illegally.

In an appeal marked SC/CV/17/2018, the court held that States lack the constitutional right to impose levies on businesses operating in the nation’s inland waterways.

The appeal was filed by the National Inland Waterways Authority, NIWA, and the Nigerian Maritime Standard and Safety Agency, NMSSA, the Minister of Mines and Steel Development, as well as the Minister of Transport.

According to the supreme court, the existing legal framework exclusively assigns control over activities within the nation’s inland waterways to the Nigerian Government, executed through its agencies – the National Inland Waterways Authority (NIWA) and the Nigerian Maritime Standard and Safety Agency (NIMASSA) – without any provision for involvement by other tiers of government.

The appeal filed in 2018 was prosecuted for the appellants by a team of lawyers led by Prince Lateef Fagbemi (SAN), now the Attorney General of the Federation, AGF, and Minister of Justice.

The Supreme Court agreed with Fagbemi’s argument that NIWA is the only agency saddled with the responsibility to levy, impose, and charge utilization rates along the declared waters of the Nigerian Inland Waterways Authority.

It stressed 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 way throughout the country for inland navigation, under Sections 8 and 9 of NIWA Act.”

Backstory

The Supreme Court restored the judgment delivered on March 28, 2014, by Justice John Tsoho of the Federal High Court in Lagos. It reversed July 18, 2017, judgment of the Court of Appeal (Lagos division), which 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.

Confronted with a regime of multiple charges by the agencies of both the Federal and Lagos governments, ATBOWTN and DAN in 2012 filed a suit, marked FHC/L/CS/543/2012, at the Federal High Court, Lagos, 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 judgment on the case, Justice Tsoho held, among others, that 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.

The decision of Justice Tsoho was, however, set aside by the Court of Appeal in its July 18, 2017 judgment on the appeal, marked CA/L/886/2014, filed by the Governor of Lagos State and three others.

NIWA and three others challenged the Court of Appeal’s decision at the Supreme Court, which in the January 5, 2024 judgment reversed the decision of the lower court and affirmed the March 28, 2014 judgment by Justice Tsoho of the Federal High Court.