An analysis of the Supreme Court Ruling on Resource Control Jurisdiction Challenge

An analysis of the Supreme Court Ruling on Resource Control Jurisdiction Challenge

Last April 9, 2001, all eyes were on the Supreme Court and the nation held its breath as it began hearing of the Federal Government's suit against the 36 states of the federation. The Federal Government is asking, among other things, the apex court to decide the seaward boundary of a littoral state for the purposes of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that state pursuant to S.162 (2) of the 1999 Constitution.

S.162 states that "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 13% of the revenue accruing from the Federation Account directly from any natural resources."

On that first day of hearing when the matter came up for mention, the court disposed of preliminary and straightforward applications and adjourned for hearing on May 21, the Notice of Preliminary Objection filed by 10 states challenging its jurisdiction. The states were Ondo, Abia, Akwa Ibom, Bayelsa, Cross River, Delta, Ebonyi, Edo, Ogun and Rivers. Their numbers were swelled to 11 on that day, with the addition of Anambra State. The Supreme Court spent May 21 listening to arguments by the challenging states and the Federal Government's reply, at the end of which it adjourned to July 11 to deliver its ruling.

Lead Ruling

In a majority decision of six to one ( Adolphus Karibi-Whyte, JSC dissenting) the Supreme Court overruled and dismissed the preliminary objection challenging its jurisdiction to hear the suit. Chief Justice of the Federation, Muhammadu Uwais delivering the lead ruling, held that a dispute concerning the sharing of the Federation Account and involving the interpretation of the Constitution exists between the Federal Government and the littoral states, making it justiciable. Copious reference was made throughout the body of the 21 page ruling to the case of A.G. of Bendel State v. A.G. of the Federation & 22 others 1981 10 SC. Uwais also held that the court's decision in the substantive case was likely to affect the non-littoral states since they are constitutionally entitled to share in the distribution of the Federation Account.

Insisting that the main thrust of the suit was the interpretation of the Constitution and referring to S. 3 (1) and (2) which names each state in Part 1 of the First Schedule, he held that not only was the court competent to interpret those provisions, but that it was not usurping the powers of the Legislature or Executive, neither was it also exercising the powers given to the National Boundaries Commission under the National Boundary Commission etc Act, Cap 238. It was simply exercising its powers under the Constitution which could be the same or concurrent with that of the Commission. He held that there was no conflict between the powers of the Supreme Court and the Commission, and that if there were any, the Constitution, being supreme, would prevail over those of the Act.

On the potentially explosive issue of whether the matters which the National Assembly would take into consideration in prescribing a new Revenue Allocation formula were political, and that therefore, the Supreme Court could not deal with a political question Uwais held that the dispute was certainly not one which only a political decision could resolve.

Finally, he dismissed the objection raised on procedural irregularity on the grounds that the court was empowered to waive the irregularity, and that in any event, striking out the action would not disqualify the FG from taking appropriate steps to re-institute the action and would only have the effect of delaying the action, which would not be in the best interest of the public.

Dissenting Ruling

Delivering his dissenting ruling and by so doing, evoking recollections of Kayode Eso, JSC's (as he then was) dissenting judgment in the 1979 case of Awolowo v Shagari, Justice Adolphus Karibi-Whyte took the unusual approach of dealing with the issue of jurisdiction last, instead considering first, giving a meaningful construction of the Federal Government's claim and next, the propriety of the joinder of parties.

Stating, in his 22 page ruling that there was a misjoinder of the non-littoral states, he held, citing the case of Christopher Okafor v B. Nnodi 1963 NNLR 42 that it was not sufficient if all a party has is a mere interest in the result of the action and that the fact that a dispute will arise subsequently after the Plaintiff has obtained judgment which will give rise to a cause of action is merely speculative and will not be sufficient reason to enable a joinder.

He therefore, further held that since the FG had, in its Writ of Summons and Statement of Claim, sought reliefs only against the littoral states of Akwa Ibom, Bayelsa, Cross Rivers, Delta, Lagos, Ogun, Ondo and Rivers states, the rest of the remaining 28 states were excluded. The court therefore lacked and could not exercise jurisdiction over them. He further held that the presence of the non-littoral states whose defence to the FG's action was adverse to the defence of the littoral states, was very likely to confuse the trial, make the proceedings unwieldy and cause unnecessary delay.

On the issue of jurisdiction, Karibi-Whyte held that since the FG's claim is for the determination of the seaward boundary of the littoral states and since the only averment relating to this claim stated that the seaward boundary of the states was the low water mark of the land surface or the seaward limits of the inland waters within the state, there was accordingly, no dispute between the parties, nor the existence of a right in the FG and the violation of such right by the Defendants which gave right to an action. He went further to hold that there was nothing in the Statement of Claim, which showed the nature of the dispute, the injury to the FG resulting from the acts of the defendants or any threat to the enjoyment of such legal right. He stated that he found the FG's contention that the determination of the seaward boundary of the littoral states was an interpretation of the provisions of the Constitution "difficult to comprehend".

His Lordship was of the view that the interpretation of S.162 of the Constitution was not a claim before the court and could not therefore, confer jurisdiction on the court. He also found that the National Boundary Commission was the only competent body to determine boundary disputes between the states.

Karibi-Whyte observed that since the FG represents all the constituent states of the Federation, holding in trust and exercising all the powers of the Federation for and on behalf of all the states, it could therefore not bring an action against any of the parts of the Federation.

On the vexed issue of the political question, the learned Justice was of the view that the Constitution had vested the determination of boundary disputes in the political departments (saying," by the obvious absence of a legislative provision governing any boundary dispute between the federation and the states, it has left that issue for political determination through appropriate legislation and executive action") and that the courts were ill-equipped to engage in the question of determining boundaries when they had no materials for the exercise.

He found the FG's action premature and incompetent as he said a dispute as to the seaward boundary could only arise after the National Boundary Commission had so determined it, and if such determination was the subject matter of dispute.

Choosing to tread the path of caution, he concluded that the Supreme Court should decline jurisdiction, saying, "the thirst to assume jurisdiction should be prudently controlled" and warning that "the court should not be overly anxious to expand its jurisdiction in situations where the law has granted none".

Political v. Legal Solution

It is noteworthy perhaps, that in other jurisdictions such as Canada, The United States and Australia, where the issue of Resource Control has arisen, those countries' courts have held the view that they can entertain such questions, and have in fact, gone ahead to entertain them and resolve them judicially. Their judgements though, have tended to favour the Central Government.

Though there are political undertones to the issues raised in the FG's suit, quite clearly, it appears they are matters which can be judicially resolved since there are existing statutes upon which the rights of the parties can be based, with the majority of six out of the panel of seven Justices so deciding.

Some have expressed the view that our courts should not shirk their responsibility simply because of the fear of adverse political consequences, opining that in fact, intervention in such delicate matters by the courts may actually pave the way for parties to reach a compromise. Some have also opined that, following the precepts of other jurisdictions, it is right to have these issues resolved judicially. Still others have said that the issue is capable of a legal resolution, but that it is the political functionaries who are giving it a political colouration in their bid for re-election in the election year of 2003.

I sought out lawyer and Senator Udoma Udo Udoma who hails from one of the littoral states, Akwa Ibom, and who attended the hearing to observe proceedings for his views, and he told us that he has always preferred a political solution to the issue. While it seemed to him that the FG preferred the legal route, he was of the belief that it was not too late to explore a political solution.

In a chat with us shortly after the ruling, he dismissed any initial despondency and disappointment by the littoral states as unnecessary, because people were yet to read the ruling and take a closer look at it. According to the Senator, any joy of the FG and its supporters will quickly dissipate when the ruling is closely scrutinised.

Udoma who remained nonplussed and highly optimistic, referred to the portion of Chief Justice Uwais' ruling which held that there could not be a boundary dispute between the Federation, which consists of all the states of the Federation, and individual states whether littoral or otherwise since the boundaries are the same. "The Supreme Court" according to Udoma, "is clearly indicating that the FG will have no case". The implication of that part of the ruling he continued, "is that on the issue of offshore/ onshore the Supreme Court has clearly stated that unless introduced by any other enactment, of which there is none, that the boundary of Nigeria is made up of the boundaries of the littoral states, and this means there is no offshore/ onshore distinction. And I hope, with this categorical statement by the highest court in the land, the Honourable Attorney-General will advise the Federal Government not to wait till October when this decision will be confirmed, before beginning to pay the states their full entitlements".

Undoubtedly, Honourable Mr. Justice Karibi-Whyte's dissenting ruling, and indeed that of the majority Justices, will be the subject of discourse for a long time to come, with some perhaps, ever willing to give it an ethnic undertone. They would do well to be reminded however, that a Judge, particularly of the highest court in the land, is trained not to be subjective and to dispense justice without fear or favour.