A judgment on sand mining royalty collection in Nigeria
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
ON THURSDAY THE 21 TH DAY OF APRIL, 2005
BEFORE THE HONOURABLE
JUSTICE G.O. KOLAWOLE – JUDGE
BETWEEN: SUIT NO. FHC/B/CS/63/2003
- MR CELESTINE NWANCHUKWU )
- MR. NWAKACHA NNALUE
- MR AZUKA NWANMOR …PLAINTIFFS
- NATIONAL INLAND WATERWAYS AUTHORITY )
- FEDERAL MINISTRY OF SOLID MINERALS )…DEFENDANTS
By an originating summons dated 26/2/03 and filled on 19/3/03, the plaintiffs therein named instated and commenced this action “ for themselves and as representing the members of the Delta Tippers Workers and Quarry Operators Association, Asaba” against the defendant both of whom are Federal Government Agency and Federal Ministry respectively.
The plaintiffs in the said origination summons set down two main issues for determination and seek three main reliefs. And the reliefs are herewith reproduced:
Issues for Determination:
- “Which of the 2 Defendants is entitled to issue authority and demand royalty from the plaintiffs for building sand manually removed/dredged from the River Niger beaches at Asaba”
“Whether is the 1 st or 2 nd defendant that is the agency or body entitled to issue authority and demand royalty from the plaintiffs for building sand manually removed or dredged from the River Niger beaches at Asaba”.
- “Whether the defendant so entitled to issue the said authority and demand royalty is entitled to demand or receive any sum of money in excess of that prescribed by law”.
The reliefs and remedies which are being claimed are as follows:
- “An other of the court declaring between the 1 st and 2 nd defendants the appropriate Federal Government body or agency entitled to issue authority or license and demand/collect royalties from the plaintiffs for building sand at all sand Beaches in Asaba, Delta State”.
- “An order that whichever of the defendants is declared the proper authority shall not and is not entitled to demand and collect as royalty from the plaintiffs any amount of money in excess of FIVE PERCENT of cost/price of sand at the said beaches in Asaba or in excess of FIVE PERCENT ( N20.00) as prescribed by law”.
- “An order of the court restraining the Defendant not entitled, their agent and privies from demanding and receiving royalties from the plaintiffs and from harassing, disturbing, or interfering with plaintiffs sand quarry operation”.
In the course of hearing submissions of counsel for and against the originating summons, the plaintiffs learned counsel, Ejike Ezenwa Esq., orally applied to withdraw the second relief which on 17/11/04 was granted. The second relief was consequently struck out. It will no longer be considered for the purposes of the plaintiffs’ case
In his oral submissions, the plaintiffs’ Counsel drew my attention to the affidavit filed in support of the Originating Summons as well as Exhibit also filed thereto. He submitted that the Originating Summons was filed because, “there are conflicting demand between the Defendants as to which of the two bodies is entitled to issue license and demand royalties from the Plaintiffs in respect of building sand manually removed and dredge from the River Niger basins at Asaba”. He drew my attention to the counter affidavit filed by both the 1 st and 2 nd defendants agreed with the Plaintiffs that there is a claim by each of them that is entitled to demand royalties and issue licenses. My attention was drawn to the relevant paragraphs of both counter affidavits to buttress the views he has expressed.
In his submission, dealing with each of the Defendants, the Plaintiffs’ Counsel submitted that the 1 st defendant relies on the national Inland Waterways Authority Act, No.13 of 1997 as the basis for it claims on the Plaintiffs to issue license and receive payment of royalties. While in the case of the 2 nd Defendant, the learned counsel substituted that it relies on the Mineral and Mining Act, No. 34 of 1999. The Plaintiffs counsel submitted that having taken a look at these two enactments, he expressed the view that “ the is no clear statement of the law on the proper authority” as to whom the plaintiffs should deal with.
With regard to the 2 nd Defendant’s principal enactment, that is the Mineral and Mining Act No.34 of 1999 (hereinafter referred to as the Mining Act), the Plaintiffs’ counsel invited my attention to the provision of section 193; 194(1); 195; 207 and 223. In this regard, he submitted that the question which may be posed is whether building sand is a naturally quarrying mineral, and if it is, it is one that is employed for industrial use?
The Plaintiffs’ Learned Counsel submitted that in finding answers to these questions, I was asked to look at the provision of section 207(1) of the Mining Act. He submitted that this provision imposes a limitation on the provisions of section 194(1) of the same Act. My attention was also invited to the provision of section 223(1) and section 232 of the mining act.
On whether sand fall under the purview of minerals under the Mining Act, my attention was drawn to section 193 of the Mining Act. On what “land” is under the Act, I was urged to look at section 232 of the Mining Act. The same section also, in his words, defined “Quarriable Minerals”, “Quarry” and “Quarry operation” Learned Counsel submitted that sand from the part of the “Mineral” in the contemplation of the framers of the Mining Act.
On the 1 st Defendant’s principal enactment, that is the national inland Waterways Authority Act No.13 of 1997, which is hereinafter simply referred to as “the NIWA Act”, my attention was drawn to the provision of section 8,9,10,11,12,29(1) and 30 of the Act.
The Plaintiffs’ Counsel submitted that section 10 & 11 of the NIWA Act deal with what areas are “the waterways” he referred me to the 2 nd schedule of the NIWA Act and submitted that it is not all rivers or lagoon that are “waterways” and further substituted that River Niger has not been declared as a “waterway” the by NIWA Act. I paused to ask: can this view or submission be right in view of what I had seen and read in the NIWA Act? I answered that quickly by saying that it is not a correct proposition or submission; see section 1 of the second schedule of the NIWA Act.
My attention was also drawn to section 2 of the NIWA Act which according learned counsel deals with the objectives of the 1 st Defendant. He submitted that the 1 st Defendant’s main object is “inland waterways transportation”. He further argued that it is against this background that the court will determine whether the framers of the NIWA Act ever contemplated that dredging of sand in the waterways is part of the activities regulated by the 1 st Defendant in Asaba axis.
By the provision of section 30 in the NIWA Act, the Plaintiffs Counsel submitted that the 1 st Defendant is under the Federal Ministry of Transport. My attention was also drawn to Section 29(1) of the NIWA Act which in Learned Counsel submission enables the 1 st Defendant with the approval of the Ministry to make certain regulations. I was urged to consider the provision of section 29(1) (b) & (g) of the NIWA Act. In conclusion, Learned Counsel for the Plaintiffs urged them to consider the provision of these two enactments which have been highlighted and to pronounce on the reliefs being claimed by the Plaintiffs.
In responding to the submissions made in the Plaintiffs Origination Summons, the 1 st Defendant’s Counsel O.A. Ubachukwu Esq., informed the court that the 1 st Defendant is opposing the Origination Summons and submitted that “there is no conflict between the NIWA Act and the Mining Act as it is being alleged by the Plaintiffs”. He expressed the view that the Plaintiffs have refused to abide with the conditions necessary for the lawful operations of their business in the area and that none of the Plaintiffs has produced any receipt issued by the 2 nd Defendant. He drew my attention to the 20 paragraph counter Affidavit sworn on 1 st Defendant’s behalf by one Christopher Omatala on 23/1/04. Whilst relying on all the paragraphs, he informed the Court that the Plaintiffs are manual sand dredgers within the area in issue. He drew my attention to paragraph 8, 9, 10, 11 and 12 of the 1 st Defendant’s Counter affidavit.
On the 1 st Defendant principal enactment, that is the NIWA Act, he drew my attention to its section 9(1) and Section 29(1)(b). he proceed further by urging to consider the provisions of section 13(1) & (2) of the NIWA Act. Learned Counsel also drew my attention to section 23(1)(c) of the NIWA Act which according to him make the action of the Plaintiffs illegal as the Act prescribes punishment for the Plaintiffs’ activities without the consent of the 1 st Defendant. He read the provision of section 23(3) of the NIWA Act.
On the Mining Act, He drew my attention to section 5(1) and submitted that it is only “body corporate” that can be granted license to explore/exploit Minerals. He submitted that the Plaintiffs are not body corporate and submitted that the 2 nd Defendant cannot be seen to violate the Act by which it is empowered to co-ordinate the activities of miners.
The 1 st Defendants’ Counsel also drew my attention to the provision of section 14(1)(a) of the Mining Act. He drew my attention to its Section 259 and submitted that it has the same definition as to “public purpose” with section 51(1)(b) of the Land Use Act. He submitted that the 1 st Defendant is a corporation within the meaning of section 51(1)(b) of The Land Use Act. He submitted that section 14(1)(a) of the Mining Act excludes the granting of any license by anybody to operate in such area under the 1 st Defendant. He referred me to the case of
FOREIGN FIN.CORP.V LSPDC (2001) 3 LRCN 855 @882-885.
The 1 st Defendant’s Counsel submitted that he agreed with the Plaintiffs’ submission that section 207(1) of the Mining Act places limitations on the power of the 2 nd Defendant to grant licenses and submitted that the Plaintiffs are protected under section because, they are manual sand dredgers. He referred me to Section 62 of the Mining Act and submitted the 2 nd Defendant cannot grant any mining lease in respect of a land already occupied by another public authority unless the occupation of such public authority is revoked by the president.
The 1 st Defendant Counsel submitted further that under the provision of section 206 of the Mining Act, even if the second Defendant grant any license, if the area is required for any public purpose, that public purpose supersedes such grants. He submitted further that the second Defendant can only be asked by the affected grantee or licensee to be paid compensation. Learned Counsel Urged me to hold that the land or the beaches at Asaba are under the exclusive management and control of the 1 st Defendant and that the Plaintiffs not being “corporate Bodies” cannot apply to the second defendant for License to operate. He submitted that section 13(2) of the NIWA Act, the plaintiffs must obtain license or permission from the first Defendant to operate between the declared right of way. By Section 14(1)(a) of the Mining Act, Learned Counsel submitted that the area covered or exclusively granted to the 1 st Defendant are excluded from the operation of Authority of the 2 nd defendant as these areas are preserved exclusively for public purposes. Finally, he ask the court to order the Plaintiff to pay the 1 st Defendant all the accrued charges, dues, fines and penalties being the authority that can receive same.
In his own submission on behalf of the 2 nd Defendant, it Learned Counsel, H. Labaran Esq., began by submitting that this is a proper case that should be determined by Originating Summons, he drew my attention to the provision of order 2 rule 2 (2) of the FHC Rules.
The 2 nd Defendant Counsel also drew my attention to the 16 paragraph Counter affidavit sworn to by one Engr. N.O. Ajari on 23/4/03. whilst relying on all the paragraph of the Counter affidavit, the 2 nd Defendant Counsel drew my attention to paragraph 5,7,8,12 and 13 of the Counter affidavit.
The 2 nd Defendant Counsel submitted that it is only the 2 nd Defendant that is entitled to issue licenses and to be paid royalties for any Quarrying operation carried on within Nigeria. He drew a distinction between the 1 st & 2 nd Defendant and described the 1 st Defendant as an “Agency under the Federal Ministry of Transport”. He Submitted that the main objective of the 1 st Defendant “to improve or develop inland waterways for navigation” and argued further that all other acts “will be to enhance this main objective”. He referred me to section 2 of the NIWA Act.
The 2 nd Defendant Learned Counsel submitted it is the only Government Agency “charge with the execution of National Policy on Solid Minerals and the enforcement of laws and regulations relating to prospecting, Mining and Quarrying operations”. He referred to section 1(1) of the Mining Act. He also drew my attention to sections 193 and 194 of the Mining Act. The 2 nd Defendant posed a question as to what is “quarriable mineral” and what is meant by “industrial use?”. In answering this question, he referred to section 232(1) and 194 (4) of the Mining Act. This, he submitted must be distinguished from section 207 of the Mining Act which according to him, deals with extraction of sand, clay, laterite and stone for purely local purposes and not for sale. Even for this, he submitted that the consent of the Ministry must be obtained. He submitted that the quarrying operation carried on by the plaintiffs is the one contemplated by section 194 and not section 207 of the Mining Act. Learned Counsel further drew my attention to section 194(3) of the Mining Act. On the definition of “land”, he referred to section 232(1) of the Mining Act. By section 223(1) of the Mining Act, Learned Counsel submitted that the 2 nd Defendant is empowered to collect royalties from Quarrying Operators. He also sited section 229(a) of the said Act.
Dealing with the NIWA Act, the 2 nd Defendant Counsel drew my attention to section 11, 12 and 13 and submitted that these provisions did not exclude the 2 nd Defendant from controlling the mineral in the waterways and that these sections merely give the 1 st Defendant exclusive management and control of waterways-not the solid mineral found there. He submitted that land within the right way of 1 st Defendant is not excluded from prospecting of Mining and quarrying. He drew my attention to section 14(1) of the Mining Act. The 2 nd Defendant Counsel submitted that even if the 1 st Defendant want to sell sand after dredging, it must pay royalties to the 2 nd Defendant. He concluded by urging me to hold that the 2 nd Defendant is the only Government Agency charged with the responsibility to issue quarry license and collect royalties on all mineral including sand found on any land in Nigeria.
In his reply on point of law to Submissions of Defendants’ Counsel, the Plaintiffs’ Counsel, Ejike Ezenwa, Esq. submitted that with reference to the 1 st Defendant’s submissions that by section 14 of the Mining Act – that no license can be granted by the 2 nd Defendant in respect of an area ready marked for public purpose, he submitted that this can only hold if the area is within the declared waterways. He was on the view that section 50(1)(b) and section 259 of the Land Use Act cannot avail the 1 st Defendant. He submitted that the area of the law declared as waterways does not include River Niger at Asaba/Onitsha axis. Instead, it’s River Niger at Nigeria/Niger / Benin through Nun and Forcados distributaries. I cannot see any issue of law in this as the Plaintiffs’ Counsel has already made this submission earlier on. I will therefore discontinuance it as it is an attempt to re-argue an issue in respect of which I had heard his submission whilst arguing the originating Summons.
On the issue that the plaintiffs are not “corporate bodies” as provided for under section 5(1) of the Mining Act, his reply was that it does not lie in the mouth of the 1 st Defendant to deny existing relationship between the 2 nd Defendant and the Plaintiffs. He reminded me that that the Plaintiffs are suing in a representative capacity and that the identities of those who are members are not fully listed. He urged me to hold that “persons” could include individual and incorporated companies being represented by the plaintiffs.
Again Plaintiffs counsel submitted that the 1 st Defendant have placed reliance on section 207 of the Mining Act and have agreed that the Plaintiffs are local sand users and they are covered by the “Use for local Purpose”. He submitted on this that by the exhibit attached to the Originating Summons as well as the Affidavit and Counter Affidavit, the Plaintiffs are not covered by this section as their object is purely “commercial” purposes.
Finally, on the exclusion of the Land Use Act, the Plaintiffs’ Learned Counsel submitted that the area of coverage by section 12(1) of the NIWA Act is 100 meters from the area declared as waterways. He submitted that it is only in this area that the right of the 1 st defendant is limited. He concluded his argument by submitting that the right of the 1 st Defendant is limited only to use of waterways for improvement of navigation.
I have endeavoured as much as I can, to reproduce the substance of the submissions made by all the Counsel who appeared both for Plaintiffs and for each of the 1 st and 2 nd Defendants.
At the initial stage of the proceeding, I had thought that the judicial power of this court was being invoked in order as it were, to render advisory opinion as to which of the two Defendants- both of whom are public bodies has the power to issue permit/license to the plaintiffs and to collect or receive royalties for quarrying operation being carried on within the 1 st Defendant’s area of authority. At this stage and being fully conscious of the fact that this court lacks jurisdiction to render legal opinion to litigants, it does not matter that the parties involved are Agency or Department of Government, I advised the Counsel involved that the dispute or misunderstanding ought to be referred to the office of the Attorney General of the Federation who under the constitution and or the common Law is the chief Law officer and Legal adviser to the government of the federation. It does not seem that any progress was made in this regard. My attitude was informed by the way I viewed the whole matter as it’s rather unhealthy, perhaps tragic and unfortunate that two public bodies created by Law are to be involved in a “public contest” such as this – as to who has the power to issue license/permit to the Plaintiffs and collect royalties for sand being manually dredged from the River Niger bed or beaches at Asaba. This is so in view of the submissions of the 2 nd Defendant Counsel, Labaran, Esq. that the royalties so collected are to be paid into the “Federation Account”. But when the parties could not resolve the “disputes”, even after I have enjoined Learned Counsel involved to refer the issue to the Office of the Attorney of the Federation I sat back to have a closer look and scrutiny at the claim initiated by the Origination Summons, dated 26/2/03 and filed on 19/3/03 by the named Plaintiffs’ agent on the Defendants. It was then I began to take the position that it may be an action, having being initiated by Originating Summons, which is intended to invoke the interpretative jurisdiction of this Court. Perhaps, if the action had been between the 1 st and 2 nd Defendant alone as the only parties, it could have qualified in my view to be a proceeding instituted to invoke the judicial power of this Court to render Legal opinion. It is a Jurisdiction which this Court neither has the statutory, constitutional or inherent jurisdiction and power to exercise. But inview of the dispute which the Plaintiffs have with both the 1 st and 2 nd Defendants – both insisting that they have the statutory power to issue licenses and demand for and collect royalties from the Plaintiffs, this ipso facto, has raised in my view, a genuine “lies”, fit to be entertained and resolved by this Court on the exercise of its constitutional vested judicial powers. See section 6 (1) & (6)(a) & (b) of the 1999 Federal Republic of Nigeria Constitution. In that regard this Court has competence to embark on the enquiries set up by issues raised in the Originating Summons filed. The mode of its commencement, via Originating Summons in my view, proper as the only dispute of facts is still in respect of interpreting the law by which both defendant were established and to decide who as between both of them, the Plaintiffs should deal with as regard seeking permit/license for their business of manually dredging sand and to whom royalties are to be paid. All of these inevitably invoke the interpretative jurisdiction of this Court.
The Plaintiffs’ action, looking at it on the surface, conveys the impression of what one may describe as being in the form of an “interpleader summons”. This is so having regard to the questions of issues posed and the remedies being sought in the Originating Summons filed. But when the Submissions of the Plaintiffs Counsel are carefully considered, the Plaintiffs have in my view, betrayed the image or impression of total independence which they seek to convey by their Originating Summons. They have demonstrably in my view, shown a preference to deal as it were, with the 2 nd Defendant in relation to their quarrying sand business rather than with the 1 st Defendant. The good thing however, is that this Court is not swayed by sentiment in arriving at its decision as to who between the two Defendants has the legal power to grant permit/license to the Plaintiffs and to demand for and collect royalties from them. My decision is base solely on interpretation of the relevant provisions of both enactments that has been copiously cited by all the parties through their respective Counsel. These enactments, for the avoidance of doubts are:
- The National Inland waterways Authority Act, No. 13 of 1997- by which the 1 st Defendant hitherto known as “The Inland Waterways Department of the Federal Ministry of Transport” was established. See section 27(1) and section (1) and (2) of the National Inland Waterways Authority Act, No.13 of 1997- hereinafter referred to as the “NIWA Act”.
- The Mineral and Mining Act No. 34 of 1999. The 2 nd Defendant is the Federal government Ministry saddled with the responsibility to enforce the act.
In resolving the issues which the Plaintiffs have submitted for determination, it is convenient for me to begin the enquiry by looking at the 1 st Defendant’s enabling law that is the “NIWA” Act. Section 2 of the NIWA Act states the objectives for the establishment of the 1 st Defendant and in paragraph (a), (b) and (c) of section, the Act
Provides as follows:-
- improve and develop inland waterways for navigation;
- provide an alternative mode of transportation for the evacuation of economic goods and persons; and
- Execute the objectives of the national transport policy as they concern inland waterways. (underline mine for emphasis)
Reading these provisions, I have no doubt that the primary focus of the 1 st Defendant’s statutory duties is in respect of transportation via the inland waterways. Under part II of the NIWA Act, section 8 and 9 deal with and expressly provide for the “functions and powers” of the 1 st Defendant. Section 9 of the NIWA Act provide in my view, a comprehensive list of “other function and powers” of the 1 st Defendant. The paragraph of section 9 runs from (a)-(z). It is paragraph (i) that appears to be germane to the 1 st Defendant’s submissions as to its powers in relation to the Plaintiff’s business activities within its area of authority. Section 9 (i) of the section 9:”other function and powers of the Authority shall be to:
(i) Grant permit and licenses for sand dredging, pipe line
Construction, dredging of slots and crossing of waterways by
Utility lines, water intake, rock blasting and removal”.
I may pause here to ask whether the Plaintiffs’ activities of manual sand dredging fall among any of those in respect of which the 1 st Defendant is empowered “to grant permit and licenses” under section 9 (i) of the NIWA Act which I have just reproduced? To answer this question, it is the Plaintiffs case as depicted by the Originating Summons filed that I am entitled to consider. In this regard, I take a look at paragraph 6 and 7 of the “Affidavit of Facts” sworn to by the 1 st Plaintiff in support of the Originating Summons. Paragraph 6 states:
- “the plaintiffs state that over the three years they have duly obtained license and also paid royalties to the 2 nd defendant for the units of sand quarried or removed from the sand beaches in Asaba but the 2 nd defendant did not use any known modality to charge these royalties”. which paragraph 7 states
- “by 1999, the 1 st defendant also started demanding royalties from the plaintiffs for the unit of sand quarried at the various beaches in Asaba and also insisted that they are proper authority or federal Government body or Agency entitled to issue licenses or authority to the Plaintiffs as against the 2 nd defendant”.
In the light of these depositions made by the Plaintiffs, I hold that their business activities are such are contemplated under and by virtue of section 9(i) of the NIWA Act. It is convenient, perhaps pertinent to at this stage ask and resolve two questions which in my view arise from the totality of the processes filed by both the Plaintiffs –and the Defendants. The first question is whether there is a correspondingly clear and specific provision in the Mining Act to the section 9(i) of the NIWA Act which I have reproduced? The second question is whether the 1 st Defendant is empowered to demand for royalties from the Plaintiffs with regard to the “unit of sand” which they manually dredge from the River Niger beaches in Asaba?
With regard to the first question, I have looked through the Mineral and Mining Act (Mining Act). I’m afraid, there is no such provision specific and clear as section 9(i) of the NIWA Act which unambiguously vests such power as the 1 st Defendant has been given the 2 nd Defendant. This possibly, in my view explains one of the reasons why the 1 st Defendant Learned Counsel, Ubachukwu, Esq. in his opening submissions said that there was no conflict. This is to be so when one read the provision of section 10 and 11 of the NIWA Act. By section 10, the act under part III titled: “Declaration of Navigable Waterways Etc” provides:
- “the rivers and their tributaries, distributaries, creeks, lagoons specified in second schedule to this degree are hereby declared Federal navigable waterways”
While section 11 of the same Act States:
- “all navigable waterways, inland waterways, river port and
Internal waters of Nigeria, excluding all direct approaches to
The port listed in the third schedule of this Decree and all
Other waters declared to be approaches to ports under or pursuant to the Nigerian Port Decree 1993, up to 250 meters beyond the upstream edge of the quay of such port, shall be under the exclusive management, direction and control of the authority ( underline mine for emphasis)
By this provision, it is clear that the NIWA Act has vested exclusively in the 1 st Defendant – the control and management of these areas it has clearly defined. Is the River Niger one of such rivers so declared? The answer unequivocally positive having regard to the provision of section 1 of the second schedule to the NIWA Act. I Asaba beaches covered? My answer again is in the affirmative once it falls along the River Niger bank which the Act has declared as one of the “Federal Navigable Waterways’. It is to avoid conflicts such as in the instant case that the NIWA Act by its section 11 in relation to port excluded the area under the management and control of the Nigerian port authority from the purview of it, that is, the 1 st Defendant’s area of authority. It this were not so, I have no doubt that conflict such as we now have would inevitably occur between the 1 st Defendant and the said Nigeria Ports authority. The same reasoning, Mutatis Mutandis, would in my view apply in relation to the extent of the powers of the 2 nd Defendant to oversee “mining activities” in the context of its enabling Act vis-à-vis such activities as would likely, perhaps inevitably interfere with the powers vested in the 1 st Defendant to have exclusive management and control of the rivers declared as navigable inland waterways. It is in this connection that the NIWA Act by section 12(2) says that the right of way in respect of the 1 st Defendant’s area of authority shall include “area of land along the waterways measured 100 meters perpendicular from the edge of the channel”. By this provision, the 1 st Defendant is not only vested with the exclusive control and management of the navigable waterways, but it includes the bank or beaches measuring 100 meters from “the edge of the channel”.
The Plaintiffs’ Counsel, as if admitting to the fact, however strenuously argued that the River Niger at the Asaba/Onitsha axis was not covered under the second schedule to the Act. I had earlier in the course of reviewing Counsel Submission summarily dismissed this submission as it flies in the face of the clear provision of section 1 of the second schedule to the NIWA Act. What the legislature seeks to do by this provision is to ensure that the boundaries, national as it were, within which the 1 st Defendant can exercise its statutory powers as provided for under section 8 and 9 of the NIWA Act are in respect of those part of the River Niger and Benue (see section 1 & 2 of the second schedule to the NIWA Act) that are within the territorial boundaries of the Federal Republic of Nigeria. After all, I am entitled to take judicial notice that it is an obvious, perhaps a notorious fact of elementary geography (as depicted in West Africa and Africa physical maps) that both River Niger and Benue has their sources of origin well out side the territorial boundaries of this country. The specific physical features mentioned in section of the second schedule were intended in my view, to define the course of River Niger as it flows into the Atlantic Ocean. It is therefore wrong, as the Learned Counsel to the Plaintiffs has tried to argue, that because the Asaba axis was not mentioned in section 1 of the second schedule to the NIWA Act, even if the 1 st Defendant has power to grant permit/license, its power does not extend to the area of operation of the Plaintiffs at Asaba. This submission, in my view is hollow and lack any merit. It betrays the independent/stakeholder posture of the plaintiffs.
The second question which I have posed is whether the 1 st Defendant is empowered to demand for and receive royalties from the Plaintiffs with regard to sand manually dredged from the beaches of River Niger at Asaba. This question can be answered by a communal reading of section 13(2) (c) and section 23(1) (C) and (3) of the NIWA Act on the one hand and its section 29(1) (b) and (g) on the other. One may wonder whether this power is consistent with the primary objective of the 1 st Defendant as defined in section 2(a); (b) & (c) of the NIWA Act? But when we look at section 9(a), the 1 st Defendant is empowered to “undertake capital and maintenance dredging” of the inland waterways declared to be navigable. This function is in my view, concomitant and in accord with its declared corporate objectives under section 2(a), that is to “improve and develop inland waterways for navigation” it is my view and I hold that when all these previsions are read together and liberally interpreted, I have no doubt that the demand being made by the 1 st Defendant on the plaintiffs in respect of sand being manually dredge at the River Niger beaches at Asaba was not ultra – vires its enabling Act. It is intra – vires.
In the course of submissions, the 1sr Defendant Counsel drew my attention to section 5(1) of the Mining Act which both the Plaintiffs’ and the 2 nd Defendant Counsel deliberately or advisedly avoided, the 1 st Defendant’s Counsel submitted that the 2 nd Defendant had no power to grant permit/license to the Plaintiffs, and ipso facto, has no power to demand and or receive royalties from them because, they are not “corporate bodies”. Section 5(1) of the Mineral and Mining Act provides that:
“No person shall be qualified for the grant of any mining title under this decree unless the person is a body corporate duly incorporated under the companies and Allied Matters Decree of 1990”.
Are these Plaintiffs “bodies corporate”? the submission of the Plaintiffs Counsel, Ejike Ezenwa Esq., in his reply on point of law in regard is with due respect to him, at the best laughable. I have no doubt that Learned Counsel did not, seriously speaking expect that I should accept his submissions: (1) that it does not lie in the mount of the 1 st Defendant to deny existing relationship between the 2 nd Defendant and the plaintiffs; (2) that the Plaintiffs are suing in a “representative capacity” and that the identities of those who are members are not fully listed. He therefore urged me to hold that “persons” could include individuals and incorporated companies being represented by the Plaintiffs. If any of the Plaintiffs is a corporate body, why should it sue through its human agent? Such corporate body, by simple legal principle in company law stands as the “principal”, whilst its officers are its agent. I have never come across a situation where a company duly registered under the companies and Allied Matters Act, Cap 59, L.F.N 1990 and with powers vested in it under Section 36 of the Act to sue and be sued, will institute such legal action in the name of its officers! It stand Law, perhaps logic straight on its head! Again it was argued that it does not lie in the mount of the 1 st Defendant to challenge the coporate status of the Plaintiffs in the light of section 5(1) of The Mining Act and the permit/license being issued and royalties collected from the Plaintiffs by the 2 nd Defendant. Who else would have raised such issue? Both the 1 st & 2 nd Defendants are in a contest as to who has the statutory powers to perform these two obligations vis-à-vis the Plaintiffs’ business activities. I am on the clear view that the 1 st Defendant is legally entitled to question the “vires” of the 2 nd Defendant in the course of dealing with the Plaintiffs, it grant permit/license to individuals contrary to a specific express provision in its enabling Act. There is no equivalent of the provision of section 5(1) of the Mining Act in The NIWA Act. Infact when section 194(1) of the Mining Act is read, which talks of “extracting any quariable mineral from a quarry for industrial use”, it does not appear that the legislature intends to saddle the 2 nd Defendant with retail or “local user” of such quarriable mineral (sand) such as the Plaintiffs. This view is further strengthened when this provision is read together with section 207(1) of the Mining Act which excludes “extracting of sand, clay, laterite and stone for purely local purposes”. It was argued by the Plaintiffs Counsel that the Plaintiffs activities, which at the inception of Learned Counsel’s argument was described as “manual dredging” of sand at River Niger beaches at Asaba, are “commercial” and not “local” as Section 207(1) of the Mining Act has stated. The question that I asked is that in the absence of what the Mining Act meant by “local” and or “industrial purposes” under section 194(1) and 207(1) of the Mining Act, could the Plaintiffs’ business activities be regarded as “industrial”? Apart from my decisions that the areas of the 1 st Defendant’s authority which are those that were declared to be “navigable inland waterways” by the NIWA Act, the exclusive control & management of which are vested in the 1 st Defendant, the Mining Act in my view does not seems to concern itself with the volume of Plaintiffs’ activities which is regarded in my view as “non” industrial and rather as local.
It is against this background that it may be asked: are the sand which are being manually dredged by the plaintiffs along the River Niger beaches at Asaba “packaged” – if it can be so described and sold for instance at places such as Owerri, Port-Harcourt, Lagos or Maiduguri? Or are they being “packaged” or bagged like cement for export to neibouring West African Countries or to Europe and Americas? The answer to this can only be in negative because non of this parties has deposed to fact of such dealing and it is to this extent that their so called “commercial activities” are largely in my view of “local use”. This in my view, must be legislative intendment of this word in contradiction with “industrial use” as provided under section 194(1) and 207(1) of the Mining Act. In making this remark (which I consider as merely obiter), I have taken judicial notice of what perhaps, may be described as a notorious fact in Nigeria’s building activities – building sands are not such “commodities” that are usually, perhaps ordinarily, transported from one state to the other or that are transhipped and exported abroad. See Niki Tobi J.C.A. (as he then was) in OYEFESO O. OMOGBEHIN (1994) 4 NWLR (PT.187) 596 @ 615 on facts of which Court can take “Judicial Notice” in the context of section 74 of the Evidence Act, Cap.112, L.F.N. 1990.
There is one other matter which I need to avert my attention. Applying again provision of section 74(1) (a) of the Evidence Act Cap. 112, L.F.N. 1990, I take Judicial Notice of the fact that the NIWA Act predates the Mining Act. The former was promulgated on 12 th August 1997 and by Section 31, is deemed to have come into force on 1 st January 1996. The latter Act, that is, the Mineral and Mining Act No. 34 of 1999 was promulgated on 10 th may 1999 and is deemed to have come into effect on the same date. This issue bring me to another aspect in construing both enactments as they relate to the powers of both the 1 st and 2 nd Defendants in relation to the plaintiffs’ manual sand dredging business.
On this issue, I hold that if it were the intension of the Legislature that the powers of the 2 nd Defendant (in relation to granting permit/licenses and to demand for and collect royalties for sand manually dredged by the Plaintiffs within the River Niger Beaches at Asaba) should over ride that of the 1 st Defendant not withstanding the clear and specific provisions of NIWA Act which vests in the 1 st Defendant’s authority declared to be “navigable inland waterways”, the Legislature would have clearly, expressly and specifically said so. In Maxwell on “Interpretation of Statutes” 10 th Ed, its page 128, the Learned Authors remarked that “it is supposed that the legislature would not ,make any important innovation without a very explicit expression of its intensions, especially since in recent years such an intention has often been very explicitly expressed”. Since the Mining Act much after The NIWA Act, it is my view that the legislature had the opportunity whilst promulgating the Mining Act (as it is presumed to be conscious of all existing legislations on the subject) to expressly if it intends to do so, divest the 1 st Defendant of its “exclusive control and management” of those area which section 10 of the NIWA Act has declared to be Federal Navigable Inland Waterways. The two defendants as Public Bodies, cannot be legislative instrument be concurrently empowered to run or operate the same business or exercise the same powers in an area in which a specific legislation, that is, the NIWA Act had by clear provision declared to be for the exclusive control and management of another, that is, the 1 st Defendant. I had earlier used the provision of section 11 of the NIWA Act to illustrate a legislative conscious effort to avert conflict between the 1 st Defend herein and the Nigerian Port Authority. It is in this context that I have read and construed the provision of section 193 and 194(1) of the Mining Act with its Section 207(1). Section 194(1) of the Mining Act as I had earlier observed envisages “extracting of any quarriable Mineral from a Quarry for industrial use”. This possibly accounts for the reason why under the Mining Act, an Applicant for a license must not only be a “body corporate” by section 5(1) of the Mining Act to be qualify for a license, such Applicant is required to meet the rather stringent and cumbersome conditions as to “working capital” as stipulated under section 10(1) & 2 of the Act. The NIWA Act as I have said has no similar provisions and it is in this context that the phrases as to “local use” or “industrial use” under section 207(1) of the Mining Act must be construed. It is not intended to deal with the Plaintiffs’ type of Activities which Learned Counsel described as “commercial”, which I see merely as “retail” perhaps for “local use” of the sand so dredged. In this regard, I have consciously averted my attention to the deposition made by the 1 ST plaintiff in paragraph 12 of the “affidavit of fact” filed in support of the Originating Summons and I have consequently made what I have regarded as reasonable inference from the said fact in the analysis I have made on this aspect of the issues. The said paragraph 12 states:
“The Plaintiffs aver that up till now the Defendants are yet to determine which of them is entitled to issue authority and demand or collect royalties from them at the sand beaches in Asaba, Delta State. The Defendants have resorted to the use of force to further coerce the Plaintiffs to pay the unlawful and arbitrary royalties of N400.00 (four hundred Naira) only when the unit price of said at the said beaches is about N350.00 (three hundred and fifty naira ) only and actual royalty is between N17.50k or N20.00 (underline mine for emphasis).
These are the bare fact as presented by the plaintiffs on the volume and nature of their sands business manually dredged/removed from River Niger beaches at Asaba.
Section 14(1) of the Mining Act spells out lands that are excluded from prospecting and mining by 2 nd Defendant. Even where the 2 nd Defendant can grant leases, license/permits for land already acquired for “public purpose”, it must by this provision obtain the authorisation of the head of state or president for such area. I am the view that this provision must be read and construed in the context of the provision of section 12(1) and (2) as well as section 13(2) of the NIWA Act which especially provides:-
“No person including a state shall-
- Obstruct a delayed waterway, take sand, gravel or stone from any declared waterway”. While paragraph ( C) states:
“ carry out any of the activities as specified in Section 9 of this Decree, without the written consent, approval or permission of the Authority”. (Underline mine for emphasis).
The activities listed under Section 9 includes “grant permit and license for sand dredging, pipe line construction, dredging of slots and crossing of waterways by utility lines, water intake, rock blasting and removal”. The opening word to section 13(2)(a) is “No person including a state”. Does this cover the 2 nd Defendant? The 2 nd Defendant is merely a department of the Federal Government. It can not be greater of bigger that a “state” of the Federation which are created by the constitution and which this provision was designed to prohibit. States of the federation, just like the 2 nd Defendant area “public authorities”. When this section is read and construed with section 14(1)(a) of the Mining Act, it is my view that even if the 2 nd Defendant is empowered to grant permit/license to the Plaintiffs or any person – whether incorporated or not, it must obtain the consent of the head of state (now president) to be able to grant such licenses in respect of these areas declared as “navigable inland waterways” which the NIWA Act vest the exclusive control and management in the 1 st Defendant. It is assumed, for all intents and purposes, and for the stronger reason that the 1 st Defendant is a public body statutorily established (see section 1(1) and (2) of the NIWA Act) such area as are declared as “navigable inland waterways” are by the fact of such declaration, deemed in my view, to be areas “acquired” for “public purpose”. It cannot be open for license/permits by the 2 nd Defendant without fulfilling the preconditions stipulated by section 14(1) of the Mining Act.
I am not under illusion that the primary objective of the 1 st Defendant under section 2 of the NIWA Act is to “improve and develop inland waterways for navigation”, which is transportation, but in doing so, it is also given the power to carry out these functions clearly spelt out in section 9(i) of its enabling Act. As I have earlier observed, if it were the intention of the Legislature to clothes the 2 nd Defendant with wide and extensive powers that may be exercised as to override the 1 st Defendant within its area of operation (which a pre-existing statue to the Mining Act has Exclusively placed under its “control and management”), it would have clearly and specially provide for such powers in the Mining Act which came into operation three or four years after NIWA Act was promulgated and deemed to have come into effect
I have doubt in my mind that although, whilst the 2 nd Defendant may poses what Learned Counsel, Labaran Esq. regard as its general power to regulate and over see Federal Government polices for mining in Nigeria, its power-general and extensive as it may appear, do not in my view, extend to the area where the NIWA Act has specifically vested under exclusive control and management of the 1 st Defendant. Its power is also limited by it enabling Act with specific reference to section 5(1); 194(1) and 207(1) which I had earlier averted to in this judgement. In relation to such areas vested in the 1 st Defendant, and for the purpose of section 206 of the Mining Act, it will be a mis-use of English Language and to a large extent, abuse of legislative grammar to construe the 1 st Defendant as a licensee or lessees of the area within 100 meters of the declared navigable inland waterways. It is my view that section 207(1) of the Mining Act appears to knowledge the type and or volume of sand dredging which the Plaintiffs are carrying on within the 1 st Defendant’s area of authority and such activities are not, by a proper construction of this section for “indusrial use” as provided in section 194(1) of the Act. They are rather for “local Use”
Finally, in the light of the analysis that I have done, I hold that the 2 nd Defendant has no power to grant permit or issue licenses and or to demand and collect royalties from the Plaintiffs for the sand Dredging Business which they carry out within the 1 st Defendant area of authority as defined by the NIWA Act. By the provision of section 5(1) by the Mining Act, the Plaintiffs are not even qualified to be granted such licenses or permit, they not being “body corporate” by the 2 nd Defendant. Afortiori, I hold that the 2 nd Defendant has no power, and it act illegally by granting such licenses/permit to the Plaintiffs and demanding and receiving royalties from them by virtue of section 232(1) of the Mining Act.
Although section 232(1) of the Mining Act defines “land” to include “a river bed and land underneath any body of water”, it is my view that it is not every every river in Nigeria that the NIWA Act has “appropriated” to the 1 st Defendant and declared as navigable inland waterways for the purposes of the 1 st Defendant’s powers and statutory function under section 8 and 9 of the NIWA Act. It may well be that the 2 nd Defendant can exercise Authority in respect of sand dredged from such rivers not declared by the Act, it suffices that the NIWA Act in its second schedule has not classified such rivers as being one of those it has listed among the “navigable waterways”. The 1 st Defendant too, by the same reasoning may not be able to exercise authority over rivers or streams which its parent Act does not acknowledge and or declared as “navigable inland waterways” in conclusion, I answer the first issue for determination on the Originating Summons as follows: it is the 1 st Defendant that is entitled to issue authority by which I must be understood as saying permit/licenses to the Plaintiffs and it has the statutory power to demand for and collect royalties for building sand manually removed/dredged from the River Niger beaches at Asaba Delta State in accordance with approved Regulations. This, I believe has dealt with the issues for determination and consequently, it is hereby declared that the 1 st Defendant is the Appropriate Federal Government Body/Agency statutorily empowered to grant permit/licenses and to demand for and collect royalties from the Plaintiffs for building manually dredged/removed at all sand beaches along River Niger at Asaba in Delta State.
The 2 nd Defendant is hereby restrained whether by itself, it servants, agents, privies or whoever from issuing and granting permit/licenses or leases to the Plaintiffs for the purpose of their sand dredging business at sand beaches along River Niger At Asaba and to demand for and collect royalties from sand manually dredged /removed by the Plaintiffs at Sand beaches along Asaba in Delta State.
The Plaintiffs’ Originating Summons is resolved as I have analyzed in this judgement and in respect of the orders I have pronounced herein. The Plaintiffs would on the authority of this Judgement, deal only with the 1 st Defendant concerning their sand dredging business along the beaches of River Niger at Asaba Delta State, the same haven been vested in the exclusive control and management of the 1 st Defendant by the NIWA Act.
Applying the provision of Order 54 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2000, I do not think that it is in the interest of justice, having regard to the peculiar nature of these proceedings, that costs be ordered or awarded. All the parties shall bear their respective costs. This is the judgment of this Court, a copy of which shall be forwarded by the Deputy Chief Registrar of this Court to the Office of the Attorney General of the Federation, Abuja for his record and information in view of the public interest which the issues raised have elicited as they concern two Federal Government establishments.
HON.JUSTICE G.O. KOLAWOLE
SIR EJIKE EZENWA ESQ. FOR THE PLAINTIFFS
O.A. UBACHUKWU ESQ. FOR THE 1 ST DEFENDANT
H.LABARAN ESQ. FOR THE 2 ND DEFENDANT