Attorney-General of the Federation v Attorney-General of Abia State & 35 Others (S.C. 28/2001) [2002] NGSC 10 (4 April 2002)

In The Supreme Court of Nigeria

On Friday, the 5^th day of April 2002

S.C.  28/2001

Before Their Lordships

Between

And

Judgement of the Court

Delivered by

Michael Ekundayo Ogundare. J.S.C

Section 162(1) of the Constitution of Federal Republic of Nigeria 1999 (hereinafter is referred to as the Constitution or the 1999 Constitution) establishes the Federation Account into which shall be paid all revenues collected by the Government of the Federation, with a few exceptions not relevant to the case in hand.

Sub-section (2) of section 162 of the Constitution empowers the National Assembly to determine the formula for the distribution of funds in the Federation Account. Sub section (2) provides:

"162(2)     The President, upon the receipt of advice from the Revenue Mobilisation Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density;

                Provided that the principle of derivation shall be constantly reflected in any approved formula as being not less than thirteen per cent of the revenue accruing to the Federation Account directly from any natural resources."

The proviso to the sub-section entrenches, with respect to natural resources, the principle of derivation in any formula the National Assembly may come up with. By this principle "not less than thirteen per cent" of the revenue accruing to the Federation Account directly from any natural resource shall be payable to a State of the Federation from which such natural resources are derived. For a State to qualify for this allocation of funds from the Federation Account, the natural resources must have come from within the boundaries of the State, that is, the resources must be located within that State.

There arose a dispute between the Federal Government, on the one hand, and the eight littoral States of Akwa- Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Ondo and Rivers State on the other hand as to the Southern (or seaward) boundary of each of these States.

The Federal Government contends that the southern (or seaward) boundary of each of these States is the low-water mark of the land surface of such State or, the seaward limit of inland waters within the State, as the case so requires. The Federal government, therefore, maintains that natural resources located within the Continental Shelf of Nigeria are not derivable from any State of the Federation.

The eight littoral States do not agree with the Federal Government’s contentions. Each claims that its territory extends beyond the low-water mark onto the territorial water and even onto the continental shelf and the exclusive economic zone. They maintain that natural resources derived from both onshore and offshore are derivable from their respective territory and in respect thereof each is entitled to the "not less than 13 per cent" allocation as provided in the proviso to subsection (2) of section 162 of the Constitution.

In order to resolve this dispute, the Plaintiff took out a writ of summons praying for:

               "A determination of the seaward boundary of a littoral States within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that State pursuant to section 162(2) of the constitution of the Federal Republic of Nigeria 1999."

All the States in the Federation are joined as defendants in the action. The parties, except the 29th and 30th Defendants, that is, Osun and Oyo States, filed and exchanged their respective pleadings. Some of the Defendants raised counter-claims against the Plaintiff. The pleadings of the Plaintiff and the eight littoral Defendant States reflect their respective viewpoints in the dispute. Some of the defendants raised in their pleadings, a number of objections such as there being no dispute, misjoinder, lack of jurisdiction etc. All these objections were taken at an earlier hearing and disposed of. See Attorney General of the Federation v. Attorney General of Abia State & 35 Ors. (2001) 11NWLR689.

Notwithstanding the decision of this Court rejecting the preliminary objections, the 3rd Defendant in the affidavit evidence in support of their case still maintains that they have no dispute with the plaintiff. In paragraph 16 of the affidavit evidence of Ifiok Uleana, a legal practitioner and Acting Director of Civil Litigation in the Ministry of Justice, Uyo, Akwa Ibom State, the deponent testified thus:

"That the 3rd defendant has never had any dispute with the plaintiff regarding on-shore or off-shore derivation since as our counsel has advised and I verily believe that question has been settled by Decree No.106 of 1992."

In paragraphs 27 and 29, however, the deponent deposed:

"27.         That the Federal Government has been paying to defendant Akwa-Ibom State the amount due to it on derivation but in paying, the Federal Government has unjustly withheld 40 per cent of the 13 per cent due and the plaintiff has held on to such amounts and has refused to pay despite repeated demands by the 3rd defendant."

29.          That the total amount due to Akwa-Ibom State Government and wrongly withheld by the plaintiff’s N15,006,418,955.28 covering the period indicated in paragraph 28 above and the plaintiff has not denied owing this amount."

If there was no dispute between him and the plaintiff, why the underpayment complained of by him. I stand by our earlier decision that on the pleadings of the parties in this case there is a serious dispute between the plaintiff and the littoral states as to the seaward limit of the latter's territories.

In a similar situation in United States v. State of California, 332 US 19, 24-25;US Reporter 1658, 1661, the US Supreme Court, per Black J, had this to say:

"It is contended that the pleadings present no case or controversy under Article III, 2 of the Constitution. The contention rests in the first place on an argument that there is no case or controversy in a legal sense, but only a difference of opinion between Federal and State officials. It is true that there is a difference of opinion between Federal and State officers. But there is far more than that. The point of difference is as to who owns, or has paramount rights in and power over several thousand square miles of land under the ocean off the coast of California. The difference involves the conflicting claims of Federal and State officials as to which Government, State or Federal, has a superior right to take or authorise the taking of the vast quantities of oil and gas underneath that land, much of which has already been, and more of which is about to be taken by or under authority of the State. Such concrete conflicts as these constitute a controversy in the classic legal sense, and are the very kind of differences which can only be settled by agreement, arbitration, force, or judicial action. The case principally relied upon by California, United States v. State of West Virginia, 295, U.S. 463 55SC 789, 79 L.Ed. 1546, does not support its contention. For here, there is a claim by the United States, admitted by California, that California invaded the title or paramount right asserted by the United States to large area of land and that California has converted to its own, oil which was extracted from that land. United States v. State of West Virginia, supra, 295, U.S. at page 471, 55 SC at page 792, 79 L.Ed. 1546. This alone would sufficiently establish the kind of concrete, actual conflict of which we have jurisdiction under Article III. The justifiability of this controversy rests therefore on conflicting claims of alleged invasions of interest in property and on conflicting claims of governmental powers to authorise its use."

Here, the Federal Government contends that natural resources derivable from Nigeria’s territorial water, continental shelf and exclusive economic zone are not derivable from any littoral State. The littoral States contend to the contrary; they claim those areas as part of their respective territories.

Can it still reasonably be suggested that there is no concrete dispute between the parties as to entitle either side to invoke the original jurisdiction of this Court in section 232(1) of the 1999 Constitution to resolve same? I rather think not.

The Court had earlier ordered that parties willing to adduce evidence should do so by filling affidavit evidence. Only the 3^rd, 8^th, 9^th, 10^th, 24^th and 32^nd Defendants did so; the others did not. Nor the plaintiff either.

The parties (except, again, some of the Defendants) filed and exchanged their briefs of arguments as well. At the hearing of the case, learned counsel proffered oral submission. The defendants, who, however, failed to file briefs were not heard in oral arguments.

Plaintiff's Claim

The simple question that arises in this case is: what is the southern (or seaward) boundary of each of the eight littoral Defendant States of Akwa-Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Undo and Rivers ? The answer to the question is not, however, as simple. One would need to wade through past constitutions, statutes and statutory instruments, evidence, common law and international law to come to an answer. To get a clear picture, I will start by giving a brief political history of the Federal Republic of Nigeria.

Political History of Nigeria

There is evidence before us in the affidavit evidence of Professor Ayodeji Oladimeji Olakoju, His Royal Highness Oba Adeyinka Oyekan of Lagos (both filed by the 24th Defendant, Lagos State) and His Royal Highness Edidem (Professor) Nta Elijah Henshaw VI, Obong of Calabar (filed by the 9th Defendant, Cross River State), from which a brief political history of Nigeria can be traced.

Until the advent of the British colonial rule in what is now known as the Federal Republic of Nigeria (Nigeria, for short), there existed at various times various sovereign states known as emirates, kingdoms and empires made up of ethnic groups in Nigeria. Each was independent of the other with its mode of government indigenous to it. At one time or another, these sovereign states were either making wars with each other or making alliances, on equal terms. This position existed throughout the land now known as Nigeria. In the Niger Delta area, for instance there were the Okrikas, the Ijaws, the Kalabaris, the Efiks, the Ibibios, the Urhobos, the Itsekiris, etc. Indeed certain of these communities (e.g. Calabar) asserted exclusive rights over the narrow waters in their area. And because of the terrain of their area, they made use of the rivers and the sea for their economic advancement in fishing and trade -and in making wars too! The rivers and the sea were their only means of transportation. Trade then was not only among themselves but with foreign nations particularly the European nations who sailed to their shores for palm oil, kernel and slaves.

The area now known as Lagos was an amalgam of several communities, such as Aworis and Eguns, to mention a few. All the coastal communities took advantage of the sea and the network of rivers and lagoons as their means of transportation in traveling far and wide along the coastline on trading expeditions, fishing and waging wars.

The British colonial rule commenced with the cession of Lagos to the British monarch in 1861. By the Treaty of Cession entered into on 6th August 1861, King Dosumu (otherwise spelt Docemo) of Lagos and his chiefs ceded to the British Crown the Port and Island of Lagos. For the full text of the treaty, see The Attorney-General v. John Holt & Co. & Ors. and The Attorney General v. W .B. McIver & Co. & Ors. 2NLR at pp.4-5

At about the same time some British firms had established trading ports around the Niger and subsequently extended their operations from the middle of the Niger valley into what is now known as Northern Nigeria. The companies later merged and formed a company known as the Royal Nigeria Company which was granted a charter by the British Monarch not only to trade but also to administer the area from the middle of the Niger valley to present day Northern Nigeria. On the revocation of the charter of the Royal Niger Company on 31 December 1899, the area under its sphere of administration was renamed Protectorate of Northern Nigeria.

With effect from 1st January 1900, also, the remaining part of the present day Nigeria that did not form part of the Protectorate of Northern Nigeria was added to the Niger Cost Protectorate which had earlier been established for the communities of the Niger Delta, to form the Protectorate of Southern Nigeria. It was the British colonial rule that provided the central authority that bound together all the erstwhile separate states, emirates, empires and kingdoms that were dotted all over the land now known as Nigeria.

The case of the Attorney -General v. John Holt &Co. & Ors. (supra) shows that the political history of Lagos was more chequered. By commission under the Great Seal dated 13th March 1862, the ceded territories were formed into a separate Government with a Legislative and Executive Council under the title of the Settlement of Lagos. This arrangement lasted but only a short time, for by another Commission dated the 19th day of February 1866, Lagos became part of the Government of the West African Settlements, with a separate Legislative Council but subject to the Governor-General-in-Chief at Sierra Leone. By 24th July 1874 the Gold Coast and Lagos were separated from the other settlements and constituted into one Colony known as the Gold Coast Colony. On 13th January 1886, by Letters Patent, Lagos became a separate Colony. Twenty years later, by Letters Patent dated 28th February 1906, the Colony of Lagos, on 1st May 1906, was merged with the Protectorate of Southern Nigeria to form the Colony and Protectorate of Southern Nigeria.

And on 1st January 1914, the Protectorate of Northern Nigeria was merged with the Colony and Protectorate of Southern Nigeria to form the Colony and Protectorate of Nigeria. Thus emerged the country Nigeria which gained independence from British Colonial rule on 1st October 1960 and is today known as the Federal Republic of Nigeria.

Boundaries

It is interesting to know the boundaries of the country the British created in 1914. By The Nigeria Protectorate Order in Council, 1913 made at the Court at Windsor Castle on 22nd November 1913 but to take effect on 1st January 1914, the boundaries of the new country were defined. The boundaries of the Protectorate of Nigeria were again reaffirmed in The Nigeria Protectorate Order in Council 1922 made on 21st November 1922 at the Court at Buckingham Palace. See Laws of Nigeria 1923. Vol.4 at page 355 et seq. In section II of the said Order in Council, the Protectorate of Nigeria was defined as "the territories of Africa which are bounded on the South by the Atlantic Ocean, on the west, north and north-east by the line of the frontier between the British and French territories and on the east by the territories known as the Cameroons".

By another order in Council - the Colony of Nigeria (Boundaries) Order in Council, 1913 made the 22nd November 1913 the boundaries of the Colony of Nigeria (that is, Lagos) were also described with the Bight of Benin as the southern boundary. See also The Lagos Local Government (Delimitation of the Town and Division into wards) Order in Council 1950 No. 34 of 1950 which put the southern boundary of Lagos as "The sea". That remains the boundaries of Nigeria, and of Lagos, to this date. The Southern boundary of Nigeria is the Atlantic Ocean, that is, the sea. The Bight of Benin is a long inward curve on the Coast of the Atlantic Ocean.

By further constitutional changes - see: Nigeria (Constitution) Order in Council, No.1172 of 1951 - Nigeria was divided into Northern, Western (including Lagos) and Eastern Regions. By L.N 126 of 1954 titled The Northern Region, Western Region and Eastern Region (Definition of Boundaries) Proclamation, 1954 , made pursuant to section 5(2)(a) of the said Nigeria (Constitution) Order in Council 1951, the boundaries of the three Regions to which the Country had been divided, were given in one proclamation. The boundaries of Western and Eastern Regions were described in the Second and Third Schedules respectively, to the said Proclamation. Of relevance to this case are the southern boundaries of these two Regions which are given in each case as "The Sea", which is the Atlantic Ocean.

Nigeria remained divided into three Regions up to and after independence in October 1960. In 1964, however, a fourth Region - the Mid-West Region was carved out of the Western Region. In May 1967, the Federal Military Government scrapped the regional arrangement and divided the country  into twelve states. By 1996, a 36 States structure had emerged in the country. All the eight littoral Defendant States were carved out of the old Western, Mid-West and Eastern Regions and constitute the coastal areas of those Regions. It goes without saying that the southern boundaries of all these littoral Defendant States must be the Southern boundaries of the Western and Eastern Regions as defined in LN 126 of 1954, that is, "The Sea". And this is coterminous with the Southern boundary of Nigeria as defined in Section 11 of The Nigeria Protectorate Order in Council l922 and of Lagos as defined in The Colony of Nigeria (Boundaries) Order in Council, 1913.

This conclusion would have provided the answer to the simple question that calls for determination in this action. But the conclusion raises yet another question: what is the boundary mark between Western, Mid-West and Eastern regions (and indeed Nigeria for that matter) on the one hand and the sea, on the other ?

The Orders-in-Council and Proclamations are silent on this. And this is the next question I now have to resolve in this judgment. One thing, however, is clear. If the boundary is with the sea, then by logical reasoning, the sea cannot be part of the territory of any of the old Regions. For this reason, therefore, I have no hesitation in rejecting the contentions of the eight littoral Defendant States that their boundaries extend to the exclusive economic zone or the continental shelf of Nigeria. The position of the territorial waters of Nigeria, the continental shelf and the exclusive economic zone shall be considered later in this judgment.

Coming back to the new question posed by me in the paragraph above I must observe that the Plaintiff led no evidence in this case. Some of the Defendants have argued that Plaintiffs case ought to be dismissed on this ground alone. But Chief Williams, SAN learned leading counsel for the Plaintiff has submitted that the issue before the Court is one of law that needs no evidence to resolve. He referred to the Court's earlier ruling on the preliminary objections of some of the Defendants and pointed out that the Court had then observed that the action was about the interpretation of the Constitution. In learned Senior Advocate's view the Plaintiff does not need any evidence to interpret the Constitution and prove his case. He cited in support of his submission the English case of Pioneer Plastics Contractors Ltd. v. Commissioners of Customs & Excise (1967) Ch 597.

I think Chief Williams is right as the new question now under consideration can be resolved as a matter of Law. Both Messrs Akpamgbo, SAN and Okpoko, SAN learned counsel for the 1st and 6th Defendants respectively made oral submissions to the same effect. In my humble view, and as I shall presently show, the seaward boundary of a littoral State as we are called upon to determine in this case, is a matter of law. What becomes factual, and on which evidence will be required to prove, is the actual location of that boundary. The latter situation is not the issue before us. If, however, a Defendant State claims territory beyond the boundary as determined by law, such a Defendant will need to adduce evidence, such as Crown grant, to establish her case. That plaintiff has not adduced affidavit evidence in this case is not fatal to Plaintiffs case. See: Pioneer Plastic Containers Ltd. v. Commissioners of Customs and Excise (supra) where the Court in England (Chancery Division) held, rightly in my view, that where there are no issues of fact on the pleadings, no evidence need be adduced.

What then is the position in law, as Chief Williams relies on law? As I have found earlier in this judgment, the southern boundaries of the littoral States of Nigeria are the sea. This makes them riparian owners. And as riparian owners the seaward extent of their land territory, at common law, is the low-water mark or the seaward limit of their internal waters. This is so, because at common law, the sea shore or foreshore (both mean the same thing) belongs to the Crown. See: Hales: DeJure Maria (Hargrave's Tracts. pp 12,25 &26) where it is written:

"The shore is that ground that is between the ordinary high-water and low-water mark. Thus both prima facie and of common right belong to the King, both in the shore of the sea, and the shore of the arms of the sea."

The learned author of Halsbury’s Laws of England 4th Edition has this to say in Vol.4(l) paragraph 921:

"Seashore or foreshore ...  The boundary line between the seashore and the adjoining land is in the absence of usage or evidence to the contrary, the line of the median high tide between the ordinary spring and ebb tides."

Again, in Vol.49(2), paragraph 1, the learned author explains further:

"l.    Meaning of 'high seas' and 'territorial waters'.   At common law, 'high seas' includes the whole of the sea below low-water mark where great ships can go, except for such parts of the sea as are within the body of a county, for the realm of England only extends to the low-water mark, and all beyond is the high seas. In international law ‘high seas’ means all parts of the sea not included in the territorial sea and internal waters of any state."

Writing in Volume 18, paragraph 1453, the learned author defines the land territory of a State as consisting of the land within its boundaries, including islands. This is "within the exclusive jurisdiction of the territorial State." In paragraph 1454, he has the following on the internal waters of a territorial State:

"1454.  Internal waters.  Internal or national waters are those areas of water, including parts of the sea, which are under the full sovereignty of the territorial state. They include inland waters, ports, anchorages and roadsteads, bays, gulfs and estuaries, sea separated by islands and all sea area which are to the landward side of the baselines from which the territorial sea is delimited. Internal waters differ from territorial waters in that there exists in territorial waters but not in internal waters, a right of innocent passage for foreign vessels. Foreign warships require permission to enter internal waters, and merchant vessels enter on conditions determined by the territorial state."

Now, at international law the baseline for measuring the breadth of the territorial sea is the low water mark along the coast. See Article 3 of the Geneva Convention on the Territorial Sea and Contiguous Zone. 1958 (binding on Nigeria) which provides.

"Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast as marked on large-scale charts officially recognized by the coastal state."

See now Article 5 of the United Nations Convention on the Law of the Sea, 1982.

In R v. Keyn (1876) 2 Ex.D 63 at p.67 Sir Phillimore declared:

"The county extends to low-water mark, where the "high seas" begin: between high and low-water mark, the Courts of oyer and terminer had jurisdiction when the tide was out, the Court of the admiral when the tide was in.

There appears to he no sufficient authority for saying that the high sea was ever considered to be within the realms, and, notwithstanding what is said by Hale in his treatises De Jure Maris and Pleas of the Crown, there is a total absence of precedents since the reign of Edward III, if indeed any existed then, to support the doctrine that the realm of England extends beyond the limits of counties."

See also: The Mecca (1895) P 95 at p.107 per Lindley L.J applied in R v. Liverpool Justices, ex-parte Molyneux(1972) 2 QB384; (1972) 2 All E.R. 471; Att. Gen of Southern Nigeria V. John Holts & Co. (Liverpool) Ltd. &Ors. (1915) AC 599 (PC): 2 NLR 1 (Full Court).

Chief Williams has referred us to a number of cases decided in other common law jurisdictions and has urged us to apply the principles enunciated in those cases to the present case. These cases are: US v. Louisiana L.Ed 1025; (USA), Reference Re Ownership of Offshore Mineral Rights, (1968) 65 DLR 2^nd, 354 (Canada); New South Wales & Ors v. Commonwealth (1975-6) 8 LR I (Australia). The Littoral Defendant States, however, urged us not to follow those cases as, according to them, the facts and circumstances in those cases.

I have read all these cases. True enough, the facts and circumstances may not be the same. But the principles of the common law and international law pronounced in those cases are applicable equally here. I have already discussed the common law principles and their application to this case. I shall later in this judgment discuss in depth the international law relating to the matter on hand.

Thus, at common law, the boundary-mark between a riparian owner, such as the littoral states are in this case, and the sea is the low-water mark. See: Bonze v. LA Mackie (1969-70) 122 CLR 177; Reference ownership of offshore Minerals Rights (supra); New south Wales & Frs. Commonwealth (supra), (1975)-76) 135 CLR 337; United States v. Louisiana (supra); 332 US 19;67 US Reporter 1658; RV. Kin (1876) 2 Ex D63 at p.67.

But some of the Defendants, particularly the 9^th Defendant has submitted that the common law is not applicable. With profound respect to learned counsel, I cannot accept this submission. Common law has been received law in this country since I863 when it was applied to Lagos and 1914 when by the Supreme Court Ordinance of that year it was applied to the Colony and Protectorate of Nigeria. In Charlie King Amachree v. Daniel Kalio, 2 NLRL 108; John Holt's Case (supra) and Chief Braide v. Chief Adoki, l0 NLR 15, to mention a few, common law was applied to resolve the issues arising in those cases. I do not think I need say more on this except to point out that the successor to the British Crown is the Government of the Federation of Nigeria.

I think this is a convenient stage to consider the peculiar position of the 9th Defendant. It has been shown by affidavit evidence and annexures thereto that the Cross River State has a number of islands dotted on its internal waters and the sea. Her southern boundary, in the circumstance, will be the seaward limit of her internal waters.

With the conclusion I reach in the paragraph above I would have said I am done with Plaintiffs case. But that is not yet to be. For the Littoral Defendant States, in reliance on some sections of the Constitution and the past history of revenue allocation in the country, appear to be saying that the Constitution supports their standpoint and that the Plaintiff had before admitted their ownership of the land and sea beyond the low-water mark. How correct are these contentions?

Both in their written Briefs and in oral submissions, the Littoral Defendant States argue that by sections 2(2). 3(1) & (2) and First Schedule to the Constitution, Nigeria consists of the aggregate of the territories of all the 36 States of the Federation and the Federal Capital Territory and that, constitutionally, therefore, Nigeria cannot have any other territory outside this aggregate. It is argued that if the Plaintiff’s contention is right it would mean that Nigeria’s territory exceeds the constitutional limit set out in the constitution. It is then submitted that it is the acceptance of their argument that these areas of the sea belong to the literal State that will make the territory of Nigeria accord with the constitution.

Chief Williams, in reply, contends that the seaward limit of Nigeria is the low water mark but Nigeria in its sovereignty and by the custom of the international community exercise jurisdiction beyond that limit.

I think Chief Williams is rig