- Title
- The legal framework of concession agreements in Nigerian ports
- Creator
- Sanni, Tajudeen
- Subject
- Concessions -- Nigeria
- Subject
- Public law -- Nigeria Public-private sector cooperation -- Nigeria Marine terminals -- Economic aspects -- Nigeria
- Date Issued
- 2017
- Date
- 2017
- Type
- Thesis
- Type
- Doctoral
- Type
- LLD
- Identifier
- http://hdl.handle.net/10948/20537
- Identifier
- vital:29317
- Description
- The thesis examines the legal framework for concession agreements in Nigerian ports. The principal question is whether the legal framework for concession in ports is adequate. In order to answer this question, a number of related questions are raised and answered by analysis of laws and proposed laws related to ports. One question relates to what laws regulate concession in Nigeria. The thesis submits that a number of laws governs concession, the principal one being the Infrastructure Concession Regulatory Act (ICRCA).The Act provides that Federal Government agencies may grant the private sector concession for the financing, construction and maintenance of their infrastructure. In order to examine what this means for the port sector, the thesis examines how concession is being currently implemented in the ports. It is pointed out that under concession policy, a whole lot of operational duties which used to be carried out by the Nigerian Ports Authority (NPA) were being transferred to private sector in the new port governance paradigm. For this purpose, the possession of key NPA assets such as terminals for handling cargos were being transferred to the private sector vide concession agreements. The official position is that provisions in the Nigeria Ports Authority Act (NPAA) which allow the NPA to grant leases provide justification for the concession agreement. The concession policy also appoints the Nigeria Shippers Council (NSC) as the economic regulator of the ports to regulate economic activities such as tariff charged in the port. The thesis proceeds to examine the question whether port concession as it is being implemented is actually consistent with NPAA and other relevant laws. The thesis submits that stripping the NPA of a whole string of operational duties on the basis of concession is inconsistent with the provisions of NPAA which establishes the NPA as a regulator, operator and landlord of the port. The thesis posits that the ICRCA does not mandate the NPA to grant concession but rather leaves the decision to do so to the relevant government agencies such as the NPA. It is further submitted that the provision allowing the NPA to lease out its asset must be read with another provision restricting such leases to assets that are not necessary for the performance of NPA’s statutory duties. The thesis argues that this is based on the canon of statutory interpretation that one section of the law must be read holistically with the other sections. It is further argued that designation of NSC as economic regulator not only runs contrary to the Nigeria Shippers Council Act but also Utilities Charges Regulatory Commission Act (UCRCA) which regulates ports tariff and appoints UCRC as the relevant agency for this purpose. The thesis proceeds to examine the question whether the proposed laws, Nigeria Port and Harbour Authority Bill (NPHB) which establishes the port authority as the landlord cum regulator of port and the National Transport Commission Bill (NTCB) which establishes port economic regulator provide adequate legal provisions for port concession. The thesis posits that both bills legalize concession for the performance of core port functions by the private sector. However both contain some clauses that run contrary to the objectives stated therein. NPHB, for example, requires that the bill must be read in the context of the specific objective of separating landlord and regulatory duty from cargo-handling functions in the port. In contrast to this, the bill grants the NPA the duty to carry out port business and the powers to run cargo-handling business in addition to its landlord and regulatory functions. It is proposed that there should be a provision in the port bill providing a separate public company to compete with concessionaires for port businesses while the port authority concentrates on its technical regulatory and landlord duty that will allow it to enter into concession agreements as an independent entity. The thesis makes other proposals for the improvement of the aspects of the bills relating to port concession including inclusion of an outline of terms of concession agreement in the bill, public access to concession agreement, among others. It is recommended that the proposals are considered when the bills are passed into laws and concession agreements renegotiated on the basis of the bills when they become laws.
- Format
- xix, 326 leaves
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
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