INTERPRETATION OF LAWS DEALING WITH SAND DREDGING AND SAND STOCKPILE BUSINESSES IN LAGOS STATE
OFFICE OF THE ATTORNEY-GENERAL & COMMISIONER FOR JUSTICE, LAGOS STATE
(Being reply to a letter written by P.O. Jimoh Lasisi & Associates on brief from the Dredgers Association of Nigeria regarding issues of agency regulation of the industry in Lagos State)
27th March, 2009
P.O. Jimoh Lasisi & Associate
Barristers, Solicitors,Legal Practitioners
& Notaries Public
21 Oritshe, Street,
Off. Awolowo Way,
Attention: S. I . Lawal Esq.
RE: REQUEST FOR INTERPRETATION OF LAWS DEALING WITH
SAND DREDGING AND STOCK PILING IN LAGOS STATE
I have been directed by Mr. Olasupo Shasore, the Hon. AttorneyGeneral & Commissioner for Justice Lagos State to respond to your letter dated 5 th March, 2009.
Your law firm seeks the interpretation of the Lagos State Waterfront Infrastructure Development Law 2009 (“the LAWID Law”) and Lagos State Waterways Authority Law 2008 (“the LASWA Law”) as it affects functions of Lagos State Ministry of Waterfront Infrastructure Development (“MWID”) and Lagos State Waterways Authority (“LASWA”) with respect to the following questions:
- Which between MWID and LASWA is statutorily empowered to deal with sand dredging, registration of dredging and commercial sand stockpiling in Lagos State?
- Which law empowered MWID to charge haulage fees and collect same from sand stock-pilers who are not in haulage business?
- Which law authorized MWID to appoint consultants to collect haulage fees and such fess paid to the consultants account?
- Which between MWID and LASWA has the right statutorily to register dredgers (vessels) that excavate sand from the bed of the Lagos State Inland Waterways?
On question 1 above, MWID and LASWA are empowered to regulate sand dredging in two (2) distinct areas. MWID is empowered to grant permit for sand dredging or dealing within, around and on waterfronts and embankments – sections 3(e), 4 and 1(2) of the LAWID Law.
Waterfront is defined as land at the edge of a stream, creek, lagoon, coastal area, shoreline, harbour, wharf, dock, bar beach and other beaches within Lagos State – section 23 of the LAWID Law. Embankment simply means bank of wall of waterways. LASWA is empowered to grant permit for sand dredging along waterways - section 5 (p) of the LASWA Law.
Waterway is defined to include all waterways, rivers, creeks, lakes, tidelands and lagoons within the boundaries of Lagos State – section 22 of the LASWA Law.
From the above, it is clear that MWID’s power to grant permit for sand dredging or dealing is limited to waterfronts while LASWA’s power is limited to waterways.
On question 2, haulage involves transportation. Sections 3, 4 and 1(2) of the LAWID law empower MWID to grant permit for sand dealing or sand dredging around waterfront. Sand dealing operations is defined in section 23 of LAWID to mean “the engagement of any body in the business of dealing or transportation of granite, laterite, stone, gravel, clay …. around or on waterfronts in Lagos State… To “deal” in something means “to buy and sell it” – Chambers 21 st Century Dictionary Revised Edition. It is clear that MWID is statutorily empowered to regulate not only the transportation of granite, laterite etc. but also those who buy and sell it. Sand stockpilers fall into the category of those who buy and sell sand.
Section 9 of the LAWID empowers MWID to charge fees for any service rendered under the Law. Schedules 3 of LAWID provides for the various fees that are payable under the Law. The above provisions empowered MWID to charge fees for sand dealing, stockpiling, and transportation of sand etc .It follows therefore that stockpiling, and transportation of sand etc. it follows therefore that MWID can impose haulage fees.
On question 3 MWID is empower to do all such things as may be ………..to the fact that MWID is empowered to charge fees it can under this omnibus provision appoint agent to collect fees on its behalf.
On question 4, following the explanation in respect of question 1 above, dredgers that excavate sand from the bed of Lagos State Inland Waterways are required to obtain permit from LASWA. Bed is defined in Chambers 21 st Century Dictionary Revised Edition as the bottom of a river, lake or sea. The above definition falls with the definition of waterways already stated.
Consequently, only LASWA is empowered to issue permit to dredgers of sand from the bed of Lagos State inland waterways unless and until any other inter-ministerial delegation or redesignation of powers is entered into by MWID and LASWA.
Akeem Olajide Bello
Senior Special Assistant to
Hon. Attorney General &
Commissioner for Justice,
- Prince Adesegun Oniru
Hon. Commissioner for Waterfront
Infrastructure Development, Lagos State
Ministry of Waterfront
The Secretariat. Alausa, Ikeja.
- Engr. Jide Cole
Lagos State Waterways Authority
NATIONAL INLAND WATERWAYS AUTHORITY
P.M.B 1004, LOKOJA, KOGI STATE
PUBLIC NOTICE: REJOINDER
LAGOS STATE GOVERNMENT AND NATIONAL INLAND WATERWAYS AUTHORITY:
LAGOS STATE GOVERNMENT GOT IT ALL WRONG CONSTRUCTIONALLY
- Reference: is made to the earlier attempt by the Lagos State Government in 2008 when it conceptualized the idea of establishing an independent Waterways Authority and Waterfront Corporation for the state and cause in effect public notice by February 11, 2008., endorsed by it’s Attorney General & Commissioner for Waterfront Infrastructural Development, and the Authority’s response thereto.
- Notwithstanding, the state government went ahead to purportedly repeal the establishing. Act of National Inland Waterways Authority (NIWA)(an existing Act of the National Assembly of the Federal Republic of Nigeria as Cap 47 (2004 IFN). To replace with a replica of the Authority with same statutory powers, functions and responsibilities in the same state.
- Additionally, it enacted Lagos State Waterfront Infrastructure Development Law which vested absolute authority in the State Governor on matters relating to the management, control and direction of all activities along the waterfront of the Declared Right of Ways of Nigeria Waterways in Lagos State.
- The State House Assembly purportedly relied on sections 315(1)(b) and 315(4) (c) of the Constitution of the Federal Republic Nigeria (1999) for the adoption and repeal of NIWA Act duly assented by the State Governor by 2 nd of June, 2008.
- Pursuant to the foregoing publications by way of Public Notice made in the Punch Newspaper of Friday March 13 th 2009, by the newly created Lagos State Waterways Authority reiterating the claim of the repeal of NIWA Act and impressing on all operators within the dictates of the State Law as against the Federal Law (having unilaterally considered the NIWA Act as post mortem).
- It is in this light that theAuthority considered it very necessary to cause this intervening rejoinder to clarify essential issues following the misleading publications as an urgent concern with observations hereto as follows:
- That it is a misconception to consider waterways in Lagos State as exclusively Lagos sourced and bound.
- That the concept of what constitutes an international or inter-state waterways of Nigeria within the contemplation of items 36 and 64 of Exclusive Legislative list of the Constitution of the Federal Republic of Nigeria under the section 4 of the SECOND SCHEDULE OF LEGISLATIVE POWERS of part 1 has been totally misconstrued and misunderstood.
- That section 315 of the Constitution of Federal Republic of Nigeria, 1999, ought to have been read in toto and not in isolation especially as it relate to Sections 315 (2) & 315 (4) (a) (i) and 315 (6) and therefore, the reliance by the State House of Assembly on Sections 315 (1)(b) and 315 (4) (c) was a misnomer by error of interpretation and understanding.
- That the Act of the State House of Assembly could therefore at best be described as an unparalleled usurpation of powers, as well as the assenting authority to the purported Enactment; since neither the state Assembly nor the State Government could possibly replace the National Assembly of the Federal Republic of Nigeria or the President of the Federal Republic of Nigeria within the context of the constitution.
- Therefore, all publications by Lagos State Waterways Authority and those in pursuance to the Lagos Waterfront Infrastructure Development Law , running parallel with the statutory powers and responsibility of the Authority is unacceptable (for being ultra- vires the power of the State Government and thus illegal and unconstitutional).
- Operators and users of waterways under the permit or license instrument issued by the Authority are advised to continue their normal business in the state since the Authority is still in full existence as a federal parastatal with subsisting statutory rights and powers from both its Enabling Law and the Constitution of the Federal Republic of Nigeria (and neither of these has been replace or reviewed or modified).
Governing Board of the Authority
National Inland Waterways Authority.