There is no doubt that the judgment delivered by the Supreme Court on April 5 2002 on the seaward boundary of a littoral state will continue for a long time to engage the attention of Nigerians and to excite their curiosity.

While some have seen it as a balanced judgment others are seriously critical of that judgment. The big constraint however is that those who are aggrieved have no other judicial venue to demonstrate their dissatisfaction which is always done by way of appeal.

Although the Supreme Court was acting in exercise of its original jurisdiction ( like a court of first instance) the reality on the ground is that being the highest Court of land, no appeal lies to any other jurisdiction.

At the preliminary stage of the proceeding it was raised by way of preliminary objection that the claim was within the jurisdiction of the Federal High Court and outside the jurisdiction of the Supreme Court since the subject matter of the claim relate to the revenue of the government of the Federation pursuant to section 251 (1) of the constitution which provides: Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matter – (a) relating to the revenue of the Government of the federation in which the said Government or any organ thereof or person suing or being sued on behalf of the said Government is a party.

That objection was unfortunately overruled by the Supreme Court. The point of regret is that had the matter been handled by the Federal High Court, any judgment coming out of it would have been accommodated without much complaint and without the type of tension now experienced.

Those aggrieved would have exercised their right of appeal and still entertain some hope of redress.

Looking at it from various angles, I am humbly of the view that the judgment of the Supreme Court contains a bundle of errors. At the preliminary objection stage and the hearing, it was our respectful contention that to the extent that the plaintiffs claim related to the formula for the sharing of revenue from the Federation Account, the matter should be placed before the National Assembly for resolution and not the Supreme Court. This timely objection was overruled by the majority decision of the court. However when the court came to deliver its final judgment it discovered that until the National Assembly enacts a Revenue Allocation Act, any question as to the entitlement of any State to derivation fund and the actual percentage payable is premature . Regarding derivation, the Court said: By the use of the expression not less than 13 per cent a discretion is given to the law maker as to the figure to be used. That discretion is not for the court to exercise but for the …National Assembly when enacting a law pursuant to section162(2) Is this not confirmation of the fact that the body responsible for the resolution of any dispute regarding derivation pursuant to section 162 (2) of the constitution is the National Assembly and not the Supreme Court? Going to the Supreme Court was clearly putting the cart before the horse; the action was premature – and that is why by the judgment of the court payment of derivation fund is now to be put on hold pending an Act of the National Assembly.

The case of the plaintiff as pleaded in the statement of claim was that the  natural resources located within the territorial water and the Federal Capital Territory are deemed to be derived from the Federation and not from any state. The contention of the littoral States was that natural resources are incapable of being derived from the Federation since the federation has no land of its own outside the aggregate of the 36 states.

Although the plaintiff was overruled in this respect, the Supreme Court did so using the wrong facts and by denying the plaintiff what the plaintiff had expressly but wrongly asserted. The court said it is not correct, in my respectful view, that the plaintiff is claiming for himself the revenue on natural resources derivable otherwise then from a State. The principle of derivation does not apply to the Government of the Federation, rather what the plaintiff appears to be saying is that whatever remains in the Federation Account after the application of derivation, is for distribution among the beneficiaries listed in subsection (3) of section 162. 

I observe with great respect that the judgment of the Supreme Court is palpably faulty in this regard. The natural and commonsense approach is that the federation has 36 component states and Abuja. Natural resources referred to in section 162(2) and the principle of derivation are to the effect that funds from natural resources payable into the Federation Account must be derived from a state of Nigeria and if it is not derived from a state of Nigeria or Abuja FCT, such fund cannot find its way into the Federation Account. Nigeria's Territorial Water does not become the 37^th State of Nigeria.

Therefore natural resources coming the Territorial Waters (if at all) must naturally be derived from that State of Nigeria contiguous to that part of the Territorial Waters. Denying a littoral State of the benefits of such natural resources in the face of devastation oil spillage which impact most dangerously on the cost line, damage to walls and roofs of building and virtual destruction of aquatic life- is most insensitive and grossly unjust. If justice had been properly explored one question would have settled this matter: Can the Federation Account be credited with funds from natural resources not derived from a State of Nigeria?

The judgment can be faulted on several other grounds. This was a case where the court having seen that the plaintiffs case had woefully failed, proceed by itself to explore other areas to boost the plaintiffs case instead of dismissing it. An example is the conclusion of the court on the core issue of the determination of the seaward limit of a littoral State. The judgment of my lord I.L. Kutigi J.S.C. is relevant here. Said he inter alia… I have read through the three enactments (the Territoral Water Act, the sea Fisheries Act and the Exclusive Economic Zone Act) referred to above and I am unable to find anything expressly in any of them which show that the seaward boundary of the Nigeria State or indeed the littoral component states therein is the low water mark or the seaward limits of inland waters… Speaking for myself, I think in the absences of any express enactment, it will be unsafe and indeed dangerous to make the inference urged on the court by the plaintiff … the plaintiff has undoubtedly failed to show us any provision of the 1999 constitution or any law or enactment for that matter which this court is required to interpret. In other words the plaintiff has not identified any law which the court is to interpret. 

With the above finding the plaintiff's case was bound to be dismissed, yet, it was not. Their lordship most surprisingly opted rather to carry out research into colonial ordinances, in council and proclamation which culminated in the definition of the Southern boundary of the protectorate of Nigeria as being the Sea (i.e. the Atlantic Ocean). It is to be noted rather sadly that this was not part of the plaintiffs case.

It was the case of Akwa Ibom and Cross River State as contained in their respective affidavit evidence that some of the Local Government Councils in their States are located off the low water mark and on the high sea and that it is from such island Local Government Areas that the seaward boundary of the states should start. I am of the view that that position cannot be wished away. It should certainly be a factor whenever the delimitation of the actual seaward boundaries of the littoral states will be made.

On the core question of the seaward boundary of a littoral State, the Supreme Court relied on common law and the colonial proclamations and orders in council to conclude that it was the low water mark. A detailed reading of the judgment shows clearly that the sea or low water mark area of the sea delimits the sovereignty of a coastal nation State (i.e. a country) under the common law. For purposes of international law Nigeria is a littoral State; in the context of the Federation of Nigeria, Nigeria is a littoral State because about 8of the 36 States are on the coast.

Certainly States in the context of the 36 States structure are not what the common law or the various proclamations or orders in council envisaged. That is why the court has also held that even the Federal Government has only limited sovereignty over the Territorial Waters, Exclusive Economic Zone etc. The lead judgment states: The low water mark therefore, forms the boundary of the land territory of not only the eight littoral States of Nigeria, but of Nigeria itself.  And that is why the CJN had said in his earlier ruling that there cannot be a boundary dispute between the Federation which consists of all the State of the Federation, and individual State whether littoral or otherwise since the boundaries are the same.

The courts judgment to the effect that the seaward limit of coastal States is the low water mark is merely declaratory. It has not ordered any person or authority to alter the status quo under the principle of derivation. To effect such alteration, the Supreme Court or another court will have to entertain another suit. The lead judgment is clear on the point: 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. It is my view that the type of evidence referred to here will have to be evidence in a judicial proceeding and not arbitrary or extra-judicial evidence by any person or authority, including the National Boundaries Commission.

Coming to the issue of the abolition of the on-shore off-shore dichotomy as enshrined in Decree 106 of 1992? THE Supreme Court has not invalidated that Decree; indeed it has confirmed that that Decree is an existing law pursuant to section 315 of the constitution. The court is rather of the opinion that since provision is made in the Decree for 1per cent derivation, that figure is inconsistent with section 162 of the constitution which provides for not less than 13% and to the extent that the words mineral oil and non-mineral oil are used instead of natural resources that section is also void for inconsistency. The reasoning of the court is that either the President pursuant to section 315 of the constitution must make an order modifying these sections of Decree 106 of 1992 to bring them into conformity with the constitution, or the National Assembly passes legislation which may have that effect.

Since it is unlikely in the circumstances of this case that the President will make that order to revalidate the abolition of the dichotomy, the National Assembly should take urgent steps to pass a Revenue Allocation Act which should give effect to the abolition of the dichotomy. The effect of all of this is that even though the low water mark has been adjudged to be the seaward limit of littoral State for general purposes when it comes to the question of derivation under section 162(2) of the constitution there should be no distinction between onshore and offshore natural resources. Decree 106 of 1992 which abolished the dichotomy is an offshoot of the recommendations of the Political Bureau set up in 1986 and the National Assembly must be properly guided on this. The National Assembly is no way constrained by the judgment; they have a social responsibility to enact the wishes of the people of this country as properly represented in the report of the political Bureau.The Bureau in discussing revenue allocation recommended: The dichotomy between onshore and offshore in the allocation of revenue due to oil producing states should be abolished, as it is oblivious of the tremendous hazards faced by the inhabitants of the areas, where oil is produced off-shore. 

It is nevertheless surprising that the Supreme Court on its own declared these sections of Decree No 106 of 1992 as being inconsistent with the constitution even where neither the plaintiff nor the defendant made that claim to the court. One wonders if a court can competently grant a relief not claimed by any party to the proceeding. It was the position of the defendants that Decree 106 abolishing the dichotomy was an existing law which should be applied. The plaintiff conceded and said it applied pending when the National Assembly would pass an Act pursuant to section 162(2) of the constitution. Reacting to the submission of Chief Rotimi Willams in this regard the court said: With profound respect to the learned Senior Advocate I cannot agree that Cap. 16… applies as it is notwithstanding any inconsistency between it and the constitution.

Finally, the various persons and government agencies pushing with exuberance to interpret the judgment of the Supreme Court must exercise caution and not rush to faulty conclusions that may be difficult to reverse. It is agreed that the courts judgment is final in respect of issues it has settled.

For instance the question of Akwa Ibom State being entitled to funds under the derivation formula is settled. What is left unsettled is what amount is due. The lead judgment has declared In the absence of any legislation by, the National Assembly pursuant to section 162(2) of the constitution which fixed a figure that is not less than 13% (but which may be more than the figure) …. It is for the President authority to modify Cap 16 (as amended) to bring it into conformity with provisions of the constitution ……Unless and until either is done the 3^rd defendant (Akwa Ibom State) cannot as of legal right lay claim to 13% as a basis of working out the amount due it under the proviso to section 162(2). It is not in dispute that natural resources are located on its territory and that revenue accrued and still accrues to the 3^rd defendant is entitled to some share of that revenue, it is hereby struck out rather than dismissed, since Akwa Ibom State may be entitled to receive funds in arrears when the National Assembly comes to pass the necessary enactment on Revenue Allocation.

No doubt as anticipated the judgment of the Supreme Court has generated a lot of anxiety and a lot of tension- indeed it will bring about more and more disputes. Perhaps Hon. Justice Karibi-Whyte J.S.C. was right when in his minority ruling on the preliminary objection he struck out the entirety of the plaintiff’s case saying;….. It seems to me unnecessarily ambitious for the court to assume jurisdiction where the law has not vested any. The thirst to assume jurisdiction should be prudently controlled by the reasonableness and propriety of its exercise . The watch word in the situation is caution. It is preposterous to assume jurisdiction where there is no cause of action.

Similarly indiscreet to do so in a factual situation fraught with dangerous political consequences and fit only for political resolution. This is because the court will by so doing be sowing seeds of inevitable recurring political disputes with their attendant imminent social conflicts. To assume jurisdiction in such circumstances is like sailing in an uncharted sea without a compass or driving to an unknown destination without a road map. As Angels of justice, the courts should avoid treading dangerous alleys.

June 2002