Attorney-general Of Ondo State V. Attorney-general Of Ekiti State (2001)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

By an originating summons the plaintiff seeks for the determination of the following:

“(i) A DECLARATION that by virtue of section 7(1) of the States (Creation and Transitional Provisions) Act 1996 (hereinafter referred to as the ‘Act’) ALL immovable properties and chattels owned by the plaintiff as at 30th September, 1996 remain vested in and owned by the plaintiff after that date to the exclusion of the defendant with the ONLY exception of those immovable properties and chattels that as at the said 30th September, 1996 were held by a body corporate directly established by a legislation of Ondo State and were situate in the geographical area of Ekiti State.

(ii) A DECLARATION that any agreement or arrangement reached or made between officials or other functionaries of the plaintiff and the defendant in whatever capacity, and any resolution and/or decision taken, or compromise reached in whatever form between the parties herein, which contradicts or is inconsistent with the provisions of section 7(1) of the Act is unconstitutional null and void and of no effect whatsoever.

(iii) A DECLARATION that the defendant has no right, title or interest in shares owned by the plaintiff as at 30th September 1996 in any company incorporated or deemed to be incorporated under the Companies and Allied Matters Act.

(iv) An order of perpetual injunction restraining the defendant and all its functionaries, officers, servants or agents whomsoever from occupying or making use of or exercising any proprietary right in or over any immovable property or chattel owned by the plaintiff as at 30th September 1996 and –

(a) located outside the geographical area of Ondo State and Ekiti State as at the said 30th September 1996.

(b) located in the geographical area of Ekiti State but not held by a body corporate directly established by a legislation of Ondo State, except with the consent of the said plaintiff.”

The summons was supported by a six-paragraph affidavit sworn by one Adegboyega Adebusoye, a civil servant. It reads as follows:-

“1. That I am the director of Civil Litigation of the Ministry of Justice in Ondo State.

2. On 1st October, 1996, Ekiti State was created by States (Creation and Transitional Provisions) Act 1996 (hereinafter referred to as the “Act”).
3. At all times material to this action and before the creation of Ekiti State the plaintiff owns immovable properties as well as chattels located within what is now the geographical area of Ekiti State. In addition the plaintiff also owns immovable properties as well as chattels outside the geographical areas of Ondo State and Ekiti State.
4. Furthermore, as at 30th September 1996, the plaintiff owned and still owns shares in companies incorporated or deemed to be incorporated under the Companies and Allied Matters Act such as Ondo State Investment (Holding) Co. Limited and Omega Bank (Nigeria) Plc).
5. Some of the corporate bodies established directly by the legislation of Ondo State own immovable properties and chattels which, as at 30th September 1996 were located in Ekiti State and in Ondo State, and also out side both States.
6. That I swear to this Affidavit in good faith believing the same to be true and correct.”

The Defendant entered appearance and filed a 22 paragraph counter-affidavit sworn by one Lawrence Ojo a civil servant to which seven (7) exhibits were attached. A further counter-affidavit sworn by one Chief Raphael Makajuola Esan, S.A.N., legal practitioner was also filed later to which again were attached other four (4) exhibits. I consider paragraphs 4 – 19 of the counter-affidavit very relevant. They read as follows:-

“4. That Ekiti State was created out of the old Ondo State on 1st October, 1996.

5. That to facilitate the smooth take off of the new State, the Federal Government constituted a committee on the sharing of assets and liabilities between Ekiti and Ondo States. The letter dated 8th November, 1996 intimating the plaintiff of this is herewith attached and marked as Exhibit EK 1.
6. That consequent upon the above, the Government of Ondo and Ekiti States constituted a joint committee on the sharing of the assets and liabilities of the Ondo State. The list of the committee members is hereby attached and marked as Exhibit EK 2.
7. That a sharing formula of 53.87%: 46.13% to Ondo and Ekiti States respectively was agreed upon and approved by the Federal Government in the sharing of the assets and liabilities of the old Ondo State. The letter dated 11th February 1997 is herewith attached and marked as Exhibit EK 3.
8. That the above sharing formula was executed in relation to the moveable properties within the States.
9. That it was jointly agreed that the companies fully owned by the former Ondo State shall be jointly managed by the parties.
10. That the parties also agreed that shares in subsidiary and associated companies shall be held by each State in accordance with the approved sharing formula.
11. That consequent upon paragraphs 9 and 10 above a joint committee on the management of public undertakings was put in place by the two States. The committee comprised the Commissioners of Finance of the two States, their Commissioners of Commerce, Attorneys-General and Commissioners of Justice and the Secretaries to the Governments of the two States.
12. That the above committee on public undertakings submitted its report and the two States decided that a managing agency called ODEK Investment Limited should manage the companies recommended for continued joint ownership and management by the two States.
13. That when the plaintiff was in breach of the decision of the two States as regards the public undertakings, the defendant instituted an action at the Federal High Court Akure in Suit No. FHA/AK/CS/612000. The writ of summons and the statement of claim are herewith attached and marked as Exhibit EK 4.
14. That the plaintiff in reaction to paragraph 13 above raised an objection to the competence of the Federal High Court Akure in determining the rights of parties as to the ownership of the public undertakings jointly owned by the parties as at 30th September, 1996 and the objection was dismissed by the Federal High Court.
15. That not satisfied with the ruling of the Federal High Court in that case FHC/AK/C5/6/2000 the plaintiff appealed to the Court of Appeal sitting at Benin City. The notice and ground of appeal is herewith attached and marked as Exhibit EK 5.
16. That the defendant has also filed an application for the winding up of the companies jointly owned by the two States due to the oppressive attitude of the plaintiff in the administration of the companies. The petition Suit No. FHC/AK/M/13/2000 is herewith attached and marked as Exhibit EK 6.
17. That the plaintiff has deliberately failed to disclose these cases pending at the Federal High Court Akure Ondo State and the Court of Appeal Benin City to this honourable court.
18. That the honourable Attorney General of Ekiti State told me and I verily believe him that the action of the plaintiff is intended to pre-empt the outcome of the action already pending at the Federal High Court.
19. That the summary of recommendation of Ondo and Ekiti States Assets and Liabilities Sharing Committees to the Asset and Liabilities Sharing Committees set up by the Federal Government is hereby attached as Exhibit EK7”.

The Following paragraphs of the further counter affidavit are also in my view relevant. They are:-

“1. That I am a former Attorney-General for Ondo State having served in that capacity from January, 1994 till 30th September, 1996.