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7/29/2019 Legal Opinio1

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LEGAL OPINION

Subject- A LAW PROVIDING FOR THE PERMITTING OF

FISHING IN THE INLAND WATERWAYS OF

CROSS RIVER STATE, REGISTRATION OF FISH

FARMERS AND FOR OTHER MATTERS

CONNECTED THEREWITH

In considering the drafting of any law it is pertinent to always take into

Consideration the Nigerian Constitution or any other Constitution as the case

may be.

The Constitution remains the grund norm and basically any other law that is

inconsistent with the constitution remains null and void to the extent of thatinconsistency. It also follows that any state law that is inconsistent or in

conflict with an Act of the National Assembly shall be void to extent of the

inconsistency and the Act shall supercede.

The 1999 Constitution of the Federal Republic of Nigeria hereinafter called

the Constitution provides for an exclusive legislative list reserved for the

NASS. In the first schedule, item 29 provides for fishing and fisheries other

than fishing and fisheries in rivers, lakes, waterways, ponds and other inland

waters within Nigeria to be within the exclusive legislative competence ofthe NASS. See also item 64.

The National Assembly has through enactment established

the National Inland Waterways Authority (NIWA) with the responsibility

among other things, to improve and develop Inland Waterways for

Navigation.

Section 2 of the Act establishing the authority provides for the objectives of

the authority.

The emphasis here is on navigation of the Inland Waterways of Nigeria and

the improvement and development thereof and not fishing.

Section 9 of the Act provides thus, particularly sub-section (J) and

(K) thereof

J- Grant of licences to private waterway operators;


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K- approve the design and construction of inland river crafts

Section 8 provides for the general functions of the authority thus;

it shall be the function of the authority to-

(a) Provide regulations for inland navigation

(b) Ensure the development of infrastructural facility for a

national inland waterways network connecting the creeks

and the rivers with the economic center using the river-ports

as nodal point for internodal exchange; and

(c) ensure the development of indigenous technical and managerial

skill to meet the challenges of modern inland waterways transportation

Section 10 of the Act provides for the declaration of navigable waterways.

The rivers and their tributaries distributaries, creeks lakes, lagoons and

intra- coastal waterways specified in the second schedule to this Act are

hereby declared Federal Navigable Waterways.

By this section river Cross River is declared a Federal Navigable Waterway

and no other river or water in Cross River State is so declared.

While section 11 defines areas under the control of the authority.

- All navigable waterways, Inland waterways, river-ports and Internal

Waters of Nigeria, excluding all direct approaches to the

ports listed in the third schedule to this Act and all other

waters declared to be approaches to ports under or

pursuant to the Nigerian Ports Authority Act up to 250

metres beyond the upstream edge of the quay of such

ports, shall be under the exclusive management, direction

and control of the Authority.

Section 29 of the Act is the interpretation section which definesInternal water to mean all waters

on the land ward side of the baseline of the territorial sea

Inland waterways- Includes all waterways, river, creeks, lakes, tide kinds

lagoon below the low water baseline.


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River Craft - Includes any vessel, barge or lighter canoe, boat or tug of

any kind whatsoever towed or self- propelled by any type

of motor or otherwise.

Analysis of the subject- matter:

The subject-matter of this opinion seeks to regulate fishing in the inland

waterways of Cross River state by giving permission, registration of fish

farmers and for other matters connected therewith.

The purpose of this legal opinion is to examine the contents of the subject

matter as to determine whether there is a conflict with the Constitution or

any other extant Federal Act or there is compliance thereof and that the

principles of legislative drafting has been complied with.

Section 1 of the subject matter deals with permit for fishing crafts. Itprovides thus:

1 (1)- As from the commencement of this law no person shall operate

for the purpose of fishing a motor or non-motor fishing

craft (hereinafter referred to as a craft) within the

inland waters of the state unless a fishing permit in

respect of that craft has been issued to the owner or

operator of the craft under this law.

This sub-section of the section 1 of the subject matter provides

basically the operation of a craft in the inland waterways

of the state subject to a fishing permit being issued to the

owner. It presupposes that the operation of the craft is

predicated on the fishing permit.

The subject matter also defines a craft under S.19 as a

vessel which is used for or equipped to be used for

fishing this includes canoes with or without motor

engines except trawlers

While section 29 of the NIWA Act defined River Craft to include any

vessel, barge or lighter canoe, boat or tug of any kind

whatsoever towed or self-propelled by any type of motor

or otherwise.


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(1) The exclusive list of the constitution item 29 does not preclude the Cross

River State Government from regulating fishing within the State Internal

Waterways PROVIDED that sections 10 and 11 of the NIWA Act is

complied with and not negated with respect to operations on river Cross

River.

(2) For fishing to take place, there be navigation within the inland

waterways.

(3) Section 8 of this Act NIWA Act provides that the regulation of inland

navigation is that of the authority.

(4) Designs and construction of the inland river crafts is that of the authority.

It therefore follows that any craft operating for the purpose of fishing underThe subject matter must comply with the regulation of the authority and

NIWA Act within river Cross River and no other. Note that all inland

waterways as defined by the NIWA Act is under the control of NIWA and

authorization of the authority is required for the navigation of same

either for the purpose of fishing or transportation and if it has been given it

should be reflected by making such section that require that approval

contingent upon such reference; S.2 and 3 of the subject matter which

conflicts with the NIWA Act ought to be recast by making the sections

subject to the Constitution and the NIWA Act.

The subject matter itself is a good law but must not conflict with the NIWA

Act particularly with the navigation aspect of the law vis--vis use of crafts

for the purpose of fishing.

The Act has vested upon NIWA the control and regulation of inland

waterways within Nigeria and therefore all activities within that

jurisdiction must be complied with.

This is our humble legal view of the subject matter which we hope meetsevery necessary standard.

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