SB 243: Nigerian Ports and Harbours Authority Act (Amendment) Bill 2016

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Sponsor:

Sen. Andy Uba
State: ANAMBRA
Party: All Progressives Congress

Bill Status: Passed!

  • First Reading: 26/05/2016
  • Second Reading: 29/09/2016
  • Committee Referred To: Committee on Marine Transport
  • Consolidated with:
  • Date Reported out of Committee:10/01/2017
  • Third Reading:27/04/2017
  • Reconsidered and Passed:

Bill Analysis:

SHORT TITLE

Nigerian Ports & Harbor Authority Bill, 2016.

OBJECTIVE OF THE BILL

The objectives of the Bill are to:

  • Provide an appropriate institutional framework for the ownership, management and development of ports & harbors
  • Ensure the integrity, efficiency and safety of the ports based on the principles of accountability, competition, fairness and transparency
  • Ensure private sector participation in the provision of port services and infrastructure
  • Promote and safeguard Nigeria’s competitiveness and trade objectives

NUMBER OF CLAUSES/PARTS

The Bill has 14 parts and 125 clauses including the short title.  It also has four schedules.

CONTENTS

The Bill has the following contents: -

  • Part I: - Purpose and Scope of Application
  • Part II: -Establishment of the Nigerian Ports and Harbors Authority and its Governing Board etc
  • Part III: - Functions and Powers of the Authority
  • Part IV: - Staff of the Authority
  • Part V: -  Financial Provisions
  • Part VI: - Declaration of Ports
  • Part VII: The Authority’s Landlord’s Powers
  • Part VIII: Concessions
  • Part IX:- Tariff Regime of the Authority
  • Part X:-Pilotage and Harbour Master
  • Part XI:- Provisions on Piers, Wharves and Safety Matters
  • Part XII:-Liability and Legal Proceedings in Relation to the Authority
  • Part XIII:- Offences and Penalties
  • Part XIV:- Miscellaneous
  • First Schedule
  • Second Schedule
  • Third Schedule
  • Fourth Schedule

IMPLICATIONS OF THE BILL

1.  Jurisdiction:-The Bill will apply to all port related activities carried out within Nigeria’s maritime, all ports and harbours specified in the First Schedule of the Act & any other port as may be declared by any Minister in charge of Marine Transport.

It will also repeal the Nigerian Ports Authority Act Cap N126 LFN, 2004 and Lagos Port Operations (Special Provisions) Act Cap L3, LFN 2004. However, all assets and liabilities under the repealed Act shall be constituted in the Nigerian Ports and Harbor Authority, which is referred to as “the Authority”.  All regulations, orders and subsidiary legislation made under the Act it intends too repeal shall continue to be in force as far as they are not inconsistent with the provisions of the proposed Bill.

If passed, consequential amendments will also be made to the following laws;

  1. Ports Related Offences Act Cap P23, LFN 2004
  2. Federal Environmental Protection Agency Cap F10, LFN 2004
  3. National Agency for Food and Drug Administration and Control Act LFN 2004
  4. Utility Charges Commission Act U17 LFN 2004
  5. National Drug Law Enforcement Agency Cap N30, LFN 2004

Also under the Bill, legal proceedings shall not be commenced against the Authority until after the expiration of one month and after notice has been served. Legal proceedings must also be commenced within 12 months after the act, neglect or default complained of. The interpretation section of the Bill defines Court as a “court of law with competent jurisdiction”.

2. Administration and Management:-

  1. Establishment of Authority- There shall be a body known as “the Authority” which is a body corporate. The ownership of all Nigeria’s ports and harbours is vested in the Authority for and on behalf of the Federal Government of Nigeria. The headquarters of the Authority shall be in Lagos.
  2. Establishment of the Board- The Board shall have control over the Authority . The Board shall consist of 11 members. That is a non-Executive Chairman, a Managing Director of the Authority , 3 Executive Directors and 6 persons appointed from each political zone. Members of the Board shall be persons of integrity with cognate experience in relevant fields and versed in areas of ports, harbours and environmental management and shall be appointed by the President of the Federal Republic of Nigeria on the recommendation of the Minister overseeing Marine Transport for a renewable term of four years and on a part-time basis. However, their tenure may be renewed no more than once and on the terms and conditions specified in their letter of appointment. Remuneration of the Board shall also be in accordance with extant Federal Government Guidelines.

Among others, the Board shall have powers to manage and superintend the powers of the Authority, declare the terms and conditions of services of the employees of the Authority, fix remuneration, determine job description, qualifications, allowances and benefits of staff and employees of the Authority.

  1. Minister - The Minister is defined in the schedule as anyone charged with the responsibility of overseeing Marine Transport. He has wide powers to declare ports including declaring any place in Nigeria and any navigable channel leading to that place to be apt.
  2. Pilotage and Harbour Master- These are responsible for the navigation of any vessel leaving or entering into a pilotage district. A harbormaster must also be appointed for every pilotage district.
  3. Pilotage Board- This Board is established only when a pilotage district is classified as compulsory. It shall consist of a Harbour Master as Chairman and have at least a minimum of 2 or a maximum of 4 other members approved by the Board. Members shall serve on a three-year term, which may be renewed once.

3. Powers of the Authority: - The powers of the Authority under the Bill are classified as either general powers or special powers.

Some of the general powers include its advisory goal to the Government in implementing national port policies, entering into contracts and agreements of leases, granting permit licenses, approving services and facilities, providing services of off-shore cargo handling and facilities and making bye-laws for regulating, declaring and defining wharves, docks, piers and places vested in the possession of the Authority.

 The Authority’s special powers include establishing and maintaining subsidiaries, participating in the formation of or being a member of any company for the purpose of carrying out any of its functions under the Act. However, the Bill does not give any reason for distinguishing between the two powers.

The Authority has wide powers under the Bill including operational powers to provide port services or facilities notwithstanding a concession grant if a person has failed, abandoned terminated or is not discharging his duty satisfactorily under the concession grant.  However, the exercise of the Authority’s power must be conducted in a competitive and transparent manner- clause 37(3) . The Authority must also authorize persons to enter into a port, marine or carry out port services.

The powers of the Authority must be distinguished from its functions which among others include the provision of landlord services in ports and harbours, pilotage services, waste reception facilities, other ports infrastructure and directing and controlling the mooring vessels within ports and harbor.

4. Financial Provisions: -

  1. Establishment of Fund- There shall be a Fund for the Authority that shall comprise of charges, dues, levies, fees and penalties collected by the Authority, technical assistance, gifts, aids, testamentary dispensation, monies borrowed and capital raised by the Authority. All penalties under the Act are paid to the Fund.
  2. Power to borrow and invest- The Authority is empowered to borrow such sums of money or raise capital in the exercise of its functions provided it obtains the approval of the Minister and in accordance with the applicable laws governing borrowing by public bodies.
  3. Accounts and records- Any member of the Board or any other person specially authorized to do so may inspect the accounts and records of the Authority during official working hours. The Authority is mandated to keep proper and regular accounts and other records of monies received and paid by it.
  4.  Timelines- The Authority shall not later than 3 months after the close of each financial year (December 31) submit its financial statement to auditors. The auditors shall in turn not later than 2 months after the account has been submitted for audit forward the report to the Authority and submit such other periodical reports that the Minister or Authority may require.

The Authority must also make a report to the Minister of its activities during that year and its proposed undertakings for the ensuing year within 2 months after the end of each financial year.

6. Rates and Fees: - The Authority is responsible for levying port charges, dues, fees, rates and general tariff on and prescribing charges or scale of charges.  These include harbor dues, rates and ship and pilotage dues.

Pilotage fees and rates are paid by the Master, owner, consignee or agent who has paid or made himself liable to pay any fees on account of the vessel in her port of arrival or departure and pilotage outwards. Rates shall also be paid on goods that are not yet discharged, removed or shipped from the premises of the Authority. The Bill also prioritizes a lien on goods for rates as having priority over all other levies and claims against goods.

7. Duty of Disclosure: The master of a vessel arriving in any port must produce information on all inbound cargo, passengers and animals and the consignee of the cargo intended to be discharged. Where there is a difference between the Authority and the master of any vessel concerning the weight or quantity of goods, the Authority shall cause the goods to be weighed and if necessary detain the vessel.

 Where it is found that the master of a vessel has under declared his items, a hundred percent penalty shall be imposed by the Authority in addition to the cost of weighing the items. However, the Authority shall pay the expenses of weighing or measuring the items and the cost of any unavoidable delay of the vessel where the weight and quantity are same as shown by the particulars.

7. Implicit Need for Collaboration with Customs- The Bill prevents the Nigerian Customs Authority from giving clearance until the Authority confirms that the vessel for the payment of duties, fees and rates has given security –clause 56

8. Exemptions: - Government owned vessels not in commercial activities, vessels belonging to the Armed Forces of the Federation, vessels belonging to foreign Armed Forces extending reciprocity and vessels engaged in humanitarian and charitable causes are excluded from the tariff regime of the Authority- clause 59

9. Offences and Penalties:- Some of the offences under the Bill are listed on the table below:

 

 

Clause

Offences

Penalties

90

Removal , Destruction and Damage  to the Property of the Authority

Fine of not less than N800,000 in addition to expenses of any inspection or survey to ascertain loss, destruction or damage

91

Unlawful Operation of Port Services and Facilities

Fine not less than N1,000,000 and/or imprisonment for not less than 3 years. However, for continuing offences , a fine of not less than N120,000 for every day or part thereof  during which the offence continues

92

Evasion of dues, rates, charges or fees payable

Fine not less than N800,000 and/or imprisonment for a term not less than 6 months. In addition, a penalty double the cost of the dues, charges or rates evaded or attempted to evade, neglected or omitted to pay.

93

Giving false statement returns

To a fine not less than N800,000 or imprisonment for a term not less than 12 months or both.

94

Offences in connection with safety of vessels

A fine not less than N1,000,000 and/or imprisonment of a term not less than 6 months

95(1)

 

 

95(2)

 

 

95(3) (i)

 

 

95(3)(ii)

 

 

 

 

 

Entering or leaving Port without the Permission of Authority/Harbour Master 

 

 

Failure to leave port after notice for departure has expired 

 

 

 

 

 

 

 

 

 

 

Fine not less than N500,000 and/or imprisonment for a term not less than 12 months. 

 

In addition to penalty in section 95(1), master of vessel may pay damages in relation to the registered tonnage of vessel for every hour the vessel remains in the port.

 

In the case of individuals damage paid will be N300,000 for every day or part thereof that offence continues.

In the case of body corporate a fine of N1,000,000 and a further fine of  N500,000 for each day or part that the offence continues.

96

Failure for not keeping a vessel so loaded with ballast or otherwise so as to be safely removed

A fine not less than N70,000

97(a)

 

 

97(b)

Throwing oil or chemical waste into the waters

 

Throwing non-oil or bio-degradable waste into the waters

Fine not less than N10,000,000

 

A fine not less than N5,000,000

98

Giving false information to draught of vessels and cargo

A fine not less than N5,000,000 and/or imprisonment for a term of less than 6 months

99

Removal or damages to beacons, buoys and beacons

A fine not less than N1,000,000 in addition to  making good, any loss, destruction or damage caused by the contravention.

100

Prohibition of false lights at the lighthouses

Offence not exceeding N50,000 and to a further fine of N50,000 for every day during which the offence continues.

101

Obstructing authorized entry

Fine of N800,000 and/or imprisonment for  a term not less than 12 months

102

Navigation without Pilot

Fine not less than N800,000 in addition to the pilotage fees that would have been paid if the Authority’s pilot had been employed.

103

Illegal Piloting

Fine of N800,000 and/or imprisonment for  a term not less than 12 months

104

Failure of compliance of  any provisions of Act by Master of Vessel

Fine not less than N500,000  and/or imprisonment to a term not less than  12 months

105

Persons who endanger life or property in the loading, unloading or warehousing of goods

Fine not less than N500,0000 and/or imprisonment for not less than 6 months

106

Non-compliance with directives of the Authority or any provisions of the Act

Fine not less than N1,000,000 or imprisonment and/or imprisonment to a term not less than 12 months  and  a further fine not less than N200,000 for every day the offence continues

107

Unlawful loosening moorings of vessels

Fine not less than N10,000,000 or imprisonment and/or imprisonment for a term not less than 5 years

108

Willfully sinking vessels without permission of Harbour Master

Not less than N50,000,000 and/or imprisonment for term as the Court may determine. In addition, he shall pay the expenses incurred by the Authority in salvaging the vehicle.

109

Employee with intention to defraud Authority from fees, dues or rates imposed under the Act

N5000,000 and /or imprisonment for a term not less than 12 months. In addition, shall pay the Authority ten times the amount that would have been paid

111

Obstructing the Authority in the performance of its duties

Fine not less than N800,000 and/or imprisonment for  a term not less than 12 months

112

Preservation of Confidential Information

Fine not less than N300,000 and/or imprisonment for a term not less than 6 months

 

ANY SIMILAR EXISTING BILL

There is a Nigerian Ports Authority Act (Amendment) Bill, 2016  (HB 569) that is sponsored by Hon. Ossai Nicholas Ossai before the House of Representatives. It was presented to the House of Representatives on June 15, 2016.

CONCLUDING ISSUES

The Bill is a welcome development in the infrastructure sector. It is also clearly written and very extensive. However, the need to provide a legal framework must be balanced with economic interests. The Bill is also tilted in favour of the Authority, which is vested with wide powers. A disadvantage of this might mean that interested business partners may have to tread with caution when investing in the ports. Nevertheless and arguably, the Bill’s clauses make major strides in attempting to cover the loopholes or leakages that prevent the generation of resources to government’s purse. 

Also, it would be helpful if some of the language of the Bill is not ambiguous. For instance in clause 54, where the weight or measurement of a vessel is more than that shown in the particulars, a hundred percent penalty shall be paid.  It is unclear what a hundred percent penalty is. There also appears to be a typographical error in clause 78 when read vis-a-vis its marginal note.  In addition, some of the provisions overlap. For instance clause 38 and clause 118 can be subsumed under one section as they deal with information that a master of a vessel must supply.

There might also be implications for lifting the corporate veil on a company by charging persons who at the time was a director, manager or partner at the time with the offence that the company is deemed to have committed in clause 113(1). Lastly, it is unclear why there is no specific court of jurisdiction listed under the Bill although the interpretation section, defines “a Court” as a Court of law with competent jurisdiction.

Infographic:

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