THE NIGERIAN NAVIGABLE WATERWAYS AND THE DOCTRINE OF COVERING THE FIELD: THE REVERBERATING ECHOES OF THE SUPREME COURT DECISION IN N.I.W.A V L.S.W.A

INTRODUCTION

The Supreme Court\’s decision in National Inland Waterways Authority (N.I.W.A) & 3 ORS v Lagos State Waterways Authority & 5 ORS (L.S.W. A) (subsequently referred to as ‘N.I.W.A v. L.S.W.A’)[1] represents a watershed moment in Nigerian Maritime, Taxation and Constitutional law. This decision has undoubtedly rekindled discussions on the nexus between Federal and State powers in the regulation of Nigeria’s navigable waterways whilst also providing long awaited clarity on the seemingly never-ending conflicts between Federal and State authorities in this regard. This article delves into the fine details of the decision of the apex court and its reverberating implications across the Nigerian legal landscape.

ADMIRALTY; WHAT CONSTITUTES NAVIGABLE WATERWAYS IN NIGERIA?

Navigable waterways have often been described as rivers, creeks or other bodies of water, through which natural or man-made features are suitable for navigation.[2] [2] When faced with this question, the Supreme Court in N.I.W.A v. L.S.W.A had recourse to the provisions of Section 10 of the National Inland Waterways Authority (N.I.W.A) Act which delineates the federal navigable waterways to include;

“rivers and their tributaries, creeks, lakes, lagoons and intra-coastal waterways specified in the Second Schedule to the Act”.

CONSTITUTIONAL LAW AND LEGISLATIVE POWERS: THE DOCTRINE OF COVERING THE FIELD

The Doctrine of Covering the field is manifestly seen in a federal system of government, particularly as the system allows the numerous tiers of government like the Federal Government, State Governments of many States and many Local Governments with certain powers allotted to each tier of government to co-exist and operate within the said country. These legislative powers are constitutionally captured under the Exclusive list, which is to the exclusive preserve of the Federal legislative arm, the Concurrent list, where both the Federal and State legislative arms can exercise legislative powers, and the Residual list, which is to the exclusive preserve of the Local Government. 

In light of the foregoing, there exists a real tendency that the Federal legislative arm may legislate on a subject matter and the State legislative arm would also legislate on the same subject matter, hence foisting a difficult situation on the citizens as to which of the “conflicting” laws should be obeyed. In Nigeria, the Constitution[3] in an attempt to resolve this conflict, provides that where any such conflict/inconsistency exists, the “State law” shall be void to the extent of its inconsistency with the provisions of the “Federal law” as the Federal law has covered the field.[4]

With regards to the case of N.I.W.A v. L.S.W.A (supra), the National assembly by virtue of the provisions of Items 36 and 64 of the Exclusive Legislative List on the Second Schedule to the 1999 Constitution (as amended) enacted the National Inland Waterways Authority, Act (N.I.W.A Act)[5] which established the National Inland Waterways Authority conferred with the exclusive power to improve and develop all navigable waterways, rivers, their tributaries, creeks, lakes, lagoons and intra-coastal waterways[6] and regulate the issuance of operational certificates, operational permit/licence, impose taxes and administer operations within the inland waterways in the Federation, including Lagos State.[7]  However, the Lagos State House of Assembly enacted the Lagos State Waterways Authority Law No. 14 of 2008 (L.S.W.A Law) purportedly also regulating the aforementioned items within Lagos State.

The enactment of the L.S.W.A Law appeared to set the Lagos State Waterways Authority (L.S.W.A) against the National Inland Waterways Authority which is a creation of an Act of the National Assembly possessing the exclusive jurisdiction to legislate on issues under the Exclusive Legislative List, thus resulting in a conflict of operational jurisdiction.

In resolving this apparent conflict, the Supreme Court’s application of the doctrine of covering the field was particularly pivotal. As eruditely articulated and held by the apex court;

“By the doctrine of covering the field, where the National Assembly has enacted a law on a particular subject, a State House of Assembly cannot enact a law on the same subject which is in conflict or inconsistent with the provisions of the enactment of the National Assembly. And where there is such an inconsistency between the provisions of any law enacted by the National Assembly and that enacted by the House of Assembly of a state the law enacted by the National Assembly shall prevail and the law enacted by the House of Assembly of a state shall to the extent of the inconsistency, be null and void. The above is settled position of the law and following therefrom, in this case it was clear that the National Assembly expanded on the provisions of the constitution when it enacted the National Inland Waterways Authority Act, which has effectively covered the field in regards to navigable waterways throughout Nigeria including Lagos State, be it waterways used for commercial transportation of cargo by ship or that used to ferry boats and power driven small crafts. There was therefore no area reserved or known as intra-inland waterways of Lagos State, for which the Lagos State House of Assembly could exercise its residuary legislative powers upon.” (Pp. 468-469, paras. E-B;473, paras. A-B)

TAXATION; IS DOUBLE TAXATION ALLOWED UNDER NIGERIAN LAW?

In the wordings of Zaid Abubakar, the new Executive Chairman of Kano Internal Revenue Service (KIRS) “nobody actually wants to pay taxes”[8] . This sentiment is undoubtedly shared by an overwhelming majority of individuals and businesses alike and it becomes even more daunting when the prospect of paying taxes twice arises.

In addressing the ever-popular term “Double taxation”, the Supreme Court stated in the case of N.I.W.A v. L.S.W.A thus;

“It would amount to double taxation for the same tax to be levied on the same goods and services, payable by the same consumers under two different legislations.”

In a similar vein, the Supreme Court in the case of AG Lagos State v. Eko Hotels LIMITED & ANOR[9]

\”There is no doubt in my mind that it would amount to double taxation for the same tax to be levied on the same goods and services, payable by the same consumers under two different legislations.\” 

Furthermore, the world-renowned tax expert, Abiola Sanni, Ph.D.,[10] has also posited that the multiplicity of taxes by the Government can be said to manifest in the following ways:

1. “The various unlawful compulsory payments being collected by the local and state governments without appropriate legal backing through intimidation and harassment of the payers.
2. The various situations where a taxpayer is faced with demands from two or more different levels of government either for the same or similar taxes.
3. where the same level of government imposes two or more taxes on the same tax base.
4. refers to cases whereby various government agencies \”impose taxes\” in the form of fees or charges.”

For the purpose of this article, we wish to place emphasis on scenario “2” as articulated above. Double taxation although generally discouraged is practically unavoidable under the Nigerian federal system. So much so that this position was elucidated in the National Tax Policy Document[11] to wit;

\”A certain level of multiplicity is unavoidable in a federal structure as each tier of government may want to charge certain taxes, fees, charges as may be applicable………”

The Regulation of water transportation on Nigeria’s navigable water ways.

The National Inland Waterway Authority Act establishes the National Inland Waterway Authority (N.I.W.A) and empowers the N.I.W.A the authority to exclusively manage, improve, develop, direct and control all navigable waterways, inland waterways, riverports and internal waters of Nigeria[12] . More specifically, Section 11 of the N.I.W.A Act vests the duty of management, direction and control of, amongst others, inland waterways, in the N.I.W.A.

Undoubtedly, the judgment of the apex court in N.I.W.A v. L.S.W.A affirms and reinforces N.I.W.A’s mandate as the “sole” regulatory authority for water transportation and other related activities on Nigeria’s navigable waterways. As the Supreme Court expressly held thus;

“……..Also by section 28 of the National Inland Waterways Authority (NIWA) Act, the 1^st appellant is authorized to make regulation for dues, rates and charges on specified purposes such as; dredging permit, survey fee for river crafts, river guide dues and rates, boat licences, berthing fees, ferry fares and tariffs, utilities rates within dockyard and river ports, etc. The 1^st – 4^th respondents’ argument therefore that the Constitution having not expressly mentioned boat transportation services and dredging activities in Items 36 and 64 connotes the intention of the makers of the Constitution to keep such activities outside the contemplation of maritime shipping and navigation and outside the legislative competence of the National Assembly, was largely misconceived.”

CONCLUSION

The Supreme Court’s decision in N.I.W.A v L.S.W.A has far-reaching implications for admiralty law, taxation, and regulatory practices in Nigeria. By reaffirming federal supremacy over navigable waterways and the doctrine of covering the field, the judgment of the apex court promotes a much-needed unified legal framework essential for economic progress and development while also serving as a clarion call for enhanced cooperation between the federal and state governments, to not only address the challenges of double taxation but also to ensure the sustainable management and regulation of Nigeria’s waterways.

Please note that the foregoing does not in any way constitute legal advice. Please kindly contact the underlisted persons for any legal advice on the subject matter.

References

[1] (2024) 14 NWLR (Pt.1959) 435

[2] https://ec.europa.eu/eurostat/statisticsexplained/index. Accessed on the 23^rd of January, 2025.

[3] Section 4(5) of the 1999 constitution

[4] Attorney – General of Ogun State v. Attorney – General of the Federation [1982] 3 NCLR 166.

[5] Cap N47, Laws of the Federation of Nigeria, 2004.

[6] Section 10 of NIWA Act.

[7] Section 28 of the NIWA Act.

[8] ]https://web.facebook.com/thecableng/videos/taxes/ accessed on the 24^th of January, 2025

[9] (2017) LPELR-43713(SC).

[10] Multiplicity of Taxes in Nigeria: Issues, Problems and Solutions” written by Dr. Abiola Sanni PhD. accessed on the 22^nd of January, 2025 through;  https://ijbssnet.com/journals/Vol_3_No_17_September_2012/26.pdf

[11]https://admin.theiguides.org/Media/Documents/NATIONAL%20TAX%20POLICY.pdf accessed on the 23^rd of January, 2025

[12] https://ng.boell.org/sites/default/files/uploads/2014/06/land-and-water-use-regulations-and-policies.pdf accessed on the 23rd of January, 2025

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Please do not treat the foregoing as legal advice as it only represents the public commentary views of the authors. All enquiries on this Brief should please be directed at: 

Chinedu Anaje
Partner
chinedu.anaje@ao2law.com

Oluwasijibomi Alafe

Senior Associate
oluwasijibomi.alafe@ao2law.com

Chinemeze Eze

Senior Associate
chinemeze.eze@ao2law.com

Kelvin Erue

Associate
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