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Legal Limits Of Resource Control BY IT IS generally agreed that what the Supreme Court did in its judgment on the resource control suit is to affirm the position of the country's various laws relevant to the issue. The laws are many, starting from the constitution, Orders in council of the colonial days, legal notices effecting amendments on existing laws including the constitution, Territorial Waters Act, Cap 428, Exclusive Economic Zone Act Cap 110 and Sea Fisheries Act, Cap 404. Along the line, extensive references were made to international law and conventions governing territorial integrity of countries and component states. Wide citations were also made of legal precedents and other decided cases from within and outside Nigeria.
When the Federal Government as plaintiff went to court to seek a pronouncement on the resource control agitation, it was interpreted to be a move to undercut the agitating states and force them to renege on their clamour. Apparently to buttress this point, the states, particularly the littoral states which have boundaries facing the sea, did explain that their claim is that natural resources located offshore their states ought to be treated or regarded as located within their respective states. It is a statement of the ideal because so far, the resources located offshore are purely treated as those of the federal state, meaning their exploitation and money generated from them cannot be shared with the adjoining states as having been derived from them. The littoral states are Akwa Ibom, Bayelsa, Cross River, Delta, Lagos, Ogun, Ondo and Rivers.
Basically, what the Federal Government wanted was "a determination by this Honourable (Supreme) Court of the seaward boundary of a littoral state 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 the proviso to Section 162( 2) of the Constitution of the Federal Republic of Nigeria, 1999."
Subsection 2 of section 162 of the Constitution empowers the National Assembly to determine the formula for the distribution of funds in the Federation Account. It provides 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."
By a proviso to Section 162(2), "any approved formula for revenue allocation from the Federation Account shall reflect the fact that not less than 13 per cent of revenue accruing to the said Federation Account from any natural resources are allocated to the government of the state or territory where such resources are located." In effect, the Federal Government's contention was that only the Federal Government or any of the states comprised in the Federal Republic of Nigeria has power to: •Exercise legislative, executive or judicial powers over the entire area designed as the "territorial waters of Nigeria," pursuant to the provision of the Territorial Waters Act, Cap 420 Laws of the Federation of Nigeria 1996 as amended; and •Exercise any of the sovereign rights exercisable by Nigeria over the entire area designated as the "exclusive economic zone" pursuant to the provision of the Exclusive Economic Zone Act, Cap 110, Laws of the Federation of Nigeria as amended;
In the course of disputing Federal Government's claim (all the 36 states were joined as defendants), the littoral states raised new grounds challenging several practice of the Federal Government, claiming the practices were unconstitutional as far as Federation Account and revenues allocation were concerned. As it were, resolution of these fresh matters constituted a high point for the states.
After considering legal submission that lasted several days, the Supreme Court ruled on Friday that: •The seaward boundary of a littoral states for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that state is the low-water mark of its land surface or the seaward limits of inland waters within the state as in the Cross River State with an archipelago of islands; •Contentions of the littoral states that their boundaries extend to the exclusive economic zone or the continental shelf of Nigeria is rejected; •There is no provision anywhere in the 1999 Constitution which made it possible for revenue derived from the continental shelf contiguous to a region to be payable to that region; •The federal capital territory is not a state or a local government in a state. It therefore cannot qualify for distribution of the Federation Account; •Exclusion by the Federal Government of natural gas as constituent of derivation is unconstitutional. Similarly so is funding of the judiciary as a first line charge on the Federation Account as well as servicing of external debts as first line on the Federation Account; •It is equally unconstitutional and against the grain of the 1999 Constitution for the Federal Government to refuse payment of the shares of Delta State in respect of proceeds from capital gains taxation and stamp duties; and •Funding of joint venture contracts and the Nigeria National Petroleum Corporation (NNPC) priority projects as first line charge on the federation account is unconstitutional.
Co-terminous with the findings, the Court restrained the Federal Government from further violating the constitution in the manner so listed. Outside this, the Supreme Court either dismissed or struck out counterclaims by the states which could not be sustained in law. Some of them were actually withdrawn by the claimants in the course of trial.
Most lawyers in the case who assess the judgment lauded it for recognising and upholding the laws of the country. They cannot believe that there was a victor or a vanquished since the two opposing parties has issues resolved for and against them. Political pundits believe the Federal Government largely won the case especially going by the declaration of the court that "the plaintiff's case succeeds." Amos Utuama, a professor of law and Attorney General of Delta who made profuse arguments at the hearing is satisfied that the Supreme Court has defined the vexing issues found in favour of the states. The federal claim on the seaward boundary and the impropriety of the states to have resources on their off-shore declared as coming from their territory may be so, the political process for resolving the unresolved areas is now open for both the states and the Federal Government, Utuama said.
The Attorney General of the Federation and Minister of Justice, Godwin Kanu Agabi (SAN), described the Supreme Court judgment on the resource control suit as "a celebration of democracy at work" and the victory of constitutionalism and rule of law.
Agabi stated that the Federal Government will accept the judgment. Speaking with newsmen at the Supreme Court complex in the nation's capital, the chief law officer of Nigeria stated: "With what has just happened at the Supreme Court, people around the world will know that Nigeria's beautiful democracy is at work. The decision of the nation's apex court has demonstrated to people in Nigeria and globally that Nigeria is a country that respects, upholds and keeps the tenets and principles of rule of law and democracy."
Agabi however declined to interpret the judgment, preferring to read the text of the judgment first before making detailed comment. The Attorney General of Ekiti State, Obafemi Adewale, said that the judgment is good for the sustenance of the nation's nascent democracy.
His words: "What the Supreme Court has done, once again , is to uphold the laws of the land and further re-affirm the belief in upholding the constitution and the laws because the nation's apex court has given the states their right to the full payment of the 13 per cent derivation fund."
The Ekiti State Attorney General, who commended the judgment as being "meticulous and wise," stated that "in this judgment there is no victor nor vanquished."
Asked to interpret the implication of the judgment, Adewale said: "What we have heard today is that the states that are agitating for 13 per cent derivation have no stake. What the law is saying is that the struggle for resource control has to continue if it must go through the political process. That was exactly what happened in the United States when the Federal Government sued the state of California, got the judgment and later came back to resolve the matter through a political process and I want that to happen in Nigeria."
The Ekiti Attorney General added: "What the judgement has proved or shown us is that we can only get a case of such magnitude resolved through political process."
Governor Donald Duke of Cross River who declined to make elaborate comments on the judgment simply said: "it is good for democracy."
Chief Mike Ozekhome, who represented Bayelsa State along with others, is particularly happy about the development. "It is victory for democracy which has come to stay. It is not a victory for the Federal Government or for the states. The implication is that the law is vibrant when we seek judicial interpretation. The court is alive and active. Judicial interpretations enable government and its departments to know the law and that states cannot take control of their resources alone. For instance, states are now free to demand arrears of payment from derivation from Federal Government. If after such letters of demand, the Federal Government does not yield, we are now free to issue a fresh writ of summons to demand what the Supreme Court has declared to be our entitlement.
How far the political process will solve agitation for resource control remains to be seen however. April 2002
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