Attorney General Of Adamawa State & Ors. V. Attorney General Of The Federation & Ors (2005) LLJR-SC

Attorney General Of Adamawa State & Ors. V. Attorney General Of The Federation & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N. 

This suit was commenced by an originating summons, supported by an affidavit filed on behalf of all the plaintiffs by their counsel. The following reliefs, which have been stated in the originating summons are being sought by the plaintiffs: –

1. Declaration that the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 is unconstitutional,ultra vires the defendants and therefore null and void.
2. Declaration that the 1st and 10th defendants are without constitutional powers to rely on the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 for the purposes of allocation of revenue to the states and local governments from the Federation Account.
3. Order directing the defendants to forthwith stop the implementation and reliance on the said Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004.
4. Injunction restraining the 2nd – 9th defendants by themselves, their agents, or any other person or persons deriving authority through them from taking benefit from, insisting on or in any other manner seek to take advantage from or under or in the said Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004.
5. Injunction restraining the 1st and 10th defendants by themselves, their agents, servants, privies or any other person or body deriving authority from or through them from implementing, giving effect to or in any other manner enforce the provisions of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004.
6. Order setting aside, annulling and make void the said Revenue Allocation (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004
7. Any other relief or other reliefs as the Honourable Court may find the plaintiff entitled to in law and equity.”

Conflicting affidavits

In paragraphs 6,7,8,9, 10 and 11 of the affidavit in support of the originating summons, it is averred as follows:-

“6. That I know as a fact that hitherto, the amount accruing to the Federation account included monies realized from the on-shore and off-shore exploration of crude oil by oil companies operating in Nigeria.

7. That I know as a fact that the President of the Federal Republic of Nigeria presented a Bill to the National Assembly titled “An Act to Abolish the Dichotomy in the application of the Principle of Derivation for the Purpose of Allocation of Revenue Accruing to the Federation Account and for Matters connected therewith 2004” to the National Assembly which passed same and the President had since accented to it and it is now “The Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004″,

(hereinafter referred to as the Act).

8. That I know as a fact from the briefing given to my principal by the plaintiffs that the Act once implemented will impact negatively on the amount that will accrue to the Federation Account and this will in turn reduce the shareable revenue due to the plaintiffs.
9. That I know as a fact that the said Act has by implication ceded part of the shore coastline of Nigeria to the 2nd – 9th defendants.
10. That I know as a fact that the Act also has the effect of granting part of the territorial waters of Nigeria to the 2nd-9th defendants to the disadvantage of the plaintiffs.
11. That I know as a fact that the Act as it is if implemented will work to the disadvantage of the plaintiffs.”

Counter-affidavits to the affidavit in support of the originating summons were filed by the 2nd, 4th, 7th and 9th defendants respectively. That of the 2nd defendant avers in paragraphs 5 to 18 as follows:-

“5 That when the President of the Federal Republic of Nigeria presented a Bill title (sic) “An Act to Abolish the Dichotomy in the Application of the Principle of Derivation for the Purpose of Allocation of Revenue Accruing to the Federation Account and for Matters Connected therewith 2004,” to the National Assembly it was a matter of great public discussion, views and great interest throughout Nigeria and beyond.

6. That both Houses of the National Assembly deliberated openly and extensively on the Bill before the same was passed by the two Houses of the National Assembly as the “Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004.”
7. That throughout this period and throughout the long processes and procedure leading to the passage and enactment of the Act none of the plaintiffs raised a finger or voice in protest or made any reservation whatsoever.
8. That all the 36 states making up the Federal Republic of Nigeria have elected representatives in the National Assembly whose responsibility it is to initiate Bills, to take part in debates, to criticize or take any position on all Bills presented before the National Assembly and to participate in the passage or rejection of such Bills.
9. That all the representatives of the plaintiff states took part in the deliberations leading to the passage of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Bill 2004.
10. That neither the representatives of the 22 plaintiff states in the National Assembly nor the Attorneys-General of those states warned or advised or admonished the President of the Federal Republic to refrain from giving his assent to the Bill when it was finally presented for his assent.
11. That our leading counsel in this case A. Ekong Bassey, Esq. (SAN) informed me and I verily believe him that the plaintiffs’ action is an attempt to unlawfully interfere with the law making process of the National Assembly.
12. That our leading counsel in this case A. Ekong Bassey, Esq, (SAN) has also advised and I verily believe that it is wrong for the 22 plaintiff states having given support to the passage of Bill through their accredited representatives in parliament (National Assembly) to now turn round through their Attorney-General to challenge the validity of an Act which they had fully supported and sanctioned.
13. That in answer to Paragraph 8 of the plantiffs’ affidavit,the 2nd defendant states that the Act has already been fully implemented.
14. That paragraph 9 of the plaintiffs’ affidavit is totally false; the Act has not either directly or by implication ceded any “part of the shore coastline of Nigeria to the 2nd -9th defendants.”
15. That paragraph 10 of the plaintiffs’ affidavit is false and accordingly denied the Act has not in any way “granted part of the territorial waters of Nigeria to the 2nd-9th defendants.”
16. That paragraph 11 of the plaintiffs’ affidavit being false is accordingly denied; it is not true that “the Act. .. if implemented will work to the disadvantage of the plaintiffs,” indeed, the Act has already been implemented to the knowledge of the plaintiffs.”

In paragraphs 5-14 of his counter-affidavit, the 4th defendant avers thus:-

“5. That paragraph 6 of the plaintiffs’ affidavit in support of their originating summons is not correct and in answer thereto the 4th defendant avers that monies accruing to the Federation Account still include and continue to include monies realized from onshore and offshore exploration of crude oil in Nigeria.

6. That paragraph 7 of the plaintiffs’ affidavit in support of their originating summons is admitted.
7. That paragraph 8 of the plaintiffs’ affidavit in support is false; and in answer thereto the 4th defendant contends that the Act abolishes the onshore/offshore dichotomy that hitherto prevailed in computing revenue due to the oil producing states under the principle of derivation as enshrined in the Constitution of the Federal Republic of Nigeria, 1999.
8. That in further answer to paragraph 8 of the plaintiffs’ affidavit in support, the 4th defendant contends that the Act will not impact negatively on the amount accruing to the Federation Account; all monies derived from oil and gas exploration and production both onshore and offshore are payable into the Federation Account before any payouts or deductions are effected thereto.
9. That still in answer to said paragraph 8 of the plaintiffs’ affidavit in support, the 4th defendant contends that all revenues accruing to the Federation having first been paid into the Federation Account, payouts and deductions therefrom are made in accordance with law, and in accordance with the revenue allocation formula tabled before the President by the 10th defendant who then presents same to the National Assembly for enactment into law.
10. That paragraph 9 of the plaintiffs’ affidavit in support is false and misleading; and in answer thereto, the 4th defendant contends that the implication of the Act is that natural resources including crude oil derived from the waters and subsoil contiguous to the coastline or seawards limits of inland waters of an oil producing littoral state and extending to the 200 meter water depth (isobaths) is deemed part of the state for the purpose of computing revenue accruing to that state under the principle of derivation.
11. That in further answer to paragraph 9 of the plaintiffs’ affidavit in support, the 4th defendant contends that ownership of all natural resources derived offshore are vested and continue to be vested in the Federal Government of Nigeria in accordance with all relevant laws.
12. That paragraph 10 of the plaintiffs’ affidavit in support is false and misleading; and in answer thereto the 4th defendant states that no part of the territorial waters of Nigeria is granted to the defendants. Natural resources derived from the territorial waters contiguous to a littoral state are deemed to be derived from that state for purposes of computing revenue due to the state under the principle of derivation.
13. That in answer to paragraph 11 of the plaintiffs’ affidavit in support, the 4th defendant contends that the plaintiffs will suffer no disadvantage occasioned by the implementation of the Act.
14. That in further answer thereto, the 4th defendant contends that the Act is in accord with all relevant international and municipal legislation and conventions upon which the 4th defendant shall rely at the hearing of this suit.”

The 7th defendant avers in paragraphs 5-11 of his counter affidavit –

“5. That the legislators from the plaintiffs’ states constitute the majority in the National Assembly.

6. That I know as a fact that the Act in question was extensively debated before it was passed.
7. That the people in the plaintiffs’ states for whose benefit the plaintiffs’ share of the money in the Federation Account are meant have through their representatives in the National Assembly participated in the enactment of the Act in question.
8. That contrary to paragraph 9 of the affidavit in support, the Act in question has neither directly nor indirectly ceded any part of the shore coastline of Nigeria to the 7th defendant.
9. That contrary to paragraph 10 of the affidavit in support, the Act in question has not in anyway granted any part of the territorial waters of Nigeria to the 7th defendant.
10. That the 7th defendant played no role in the enactment of the Act in question.
11. That I know as a fact that it is the 10th defendant that has the power to implement the Act in question.”

While the 9th defendant avers in paragraphs 5-16 of his counter-affidavit as follows:-

“5. That the 9th defendant admits paragraph 6 of the plaintiff’s affidavit in support of their summons filed on the 5th day of November, 2004.

6. That further to the said paragraph 6 of the plaintiff’s affidavit in support of their originating summons, the 9th defendant states that it is a fact that any amount accruing to the Federation Account till date include all monies realized from the on-shore and offshore exploitation of mineral resources by oil companies operating in Nigeria.
7. That the depositions in paragraph 7 of the plaintiffs’ affidavit in support of their originating summons are admitted by the 9th defendant as being correct.
8. That further to the said paragraph 7 of the plaintiffs’ affidavit in support of the originating summons, the 9th defendant swears that the promulgation of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 is consistent with the provisions of sections 162(2) and 44(3) of the Constitution of the Federal Republic of Nigeria, 1999, and the Allocation of Revenue (Federation Account etc.) Act, Cap. 16, Laws of the Federation of Nigeria, 1990 as amended by the Allocation of Revenue Federation Account etc. (otherwise known as Decree No. 106 of 1992) Amendment Act of 1992 which became applicable hitherto by virtue of the provisions of sections 313 and 315 of the constitution of the Fedral Republic of Nigeria, 1999.
9. That paragraph 8 of the plaintiffs’ affidavit in support of their originating summons is specifically denied as being false, baseless and deliberately misleading.
10. That further to the said paragraph 8 of the plaintiffs’ affidavit in support of their originating summons, the 9th defendant states and avers that consistent with the provisions of section 162(1) of the Constitution of the Federal Republic of Nigeria, 1999, all Revenues collected by the Government of the Federation except the proceeds from the personal income tax of the personnel of the armed forces of the Federation, the Nigeria police, the ministry or department of government charged with the responsibility for foreign affairs and the residents of the Federal Capital Territory, Abuja are paid into a special account known as the “Federation Account.”
11. That further to the foregoing paragraph, all accruals whether from on-shore or off-shore natural resources exploration are all paid into the said Federation Account.
12. That further to the said paragraph 9 of the plaintiffs’ affidavit in support of their originating summons and shall put the plaintiffs at the hearing of the application to the strictest proof thereof.
13. That further to the said paragraph 9 of the plaintiffs’ affidavit in support of their originating summons, 9th defendant states and avers as follows:

(a) That it is correct that “The Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 has by implication ceded part of the shore coastline of Nigeria to the 2nd to 9th defendants.

(b) That the coastline of Nigeria has already been determined and established by international treaties entered into by Nigeria by virtue of its membership as a sovereign state of the comity of nations.

(c) That the implication of the Act complained of by the plaintiffs is that natural resources, including crude oil derived from the waters and sub soil contiguous to the coastline or seawards limits of inland waters of an oil producing state and extending to the 200 metre waters of an oil producing state and extending to the 200 metre water depth (Isobath) is deemed part of the state for the purpose of computing revenue accruing to the state under the principle of derivation.

(d) That the further implication is that for the purposes of application of the principle of derivation, it shall be immaterial whether the revenue accruing to the Federation Account from a state is derived from natural resources located on-shore or off-shore.

(e) That the provisions of the Act are not limited to littoral states alone but to all states within the Federation of Nigeria from which revenue is derived from their natural resources.

(f) That the Act is in line with the principle of natural justice, equity and good conscience, sequel to the fact that the activities of natural resources exploration and exploitation negatively impact the socio-economic activities of the affected surrounding states to the extent of totally destroying their ecosystem, economy and livelihood. Thus the Act will help as intended by the law makers to repair some of the devastating effect of natural resources exploration.

(g) That the said Act was promulgated, pursuant to the powers reposed in the President, the Revenue Mobilization Allocation and Fiscal Commission and the National Assembly as stipulated under section 162(1) of the Constitution of the Federal Republic of Nigeria, 1999.

14. That 9th defendant denies paragraph 10 of the plaintiffs’ affidavit in support of its originating summons and shall at the hearing of this application in court put the plaintiffs to the strictest proof thereof:

(a) That further to the said paragraph 10 of the plaintiffs’ affidavit in support of their originating summons, the 9th defendant states and avers that the territorial waters of Nigeria have already been determined and established by the Territorial Waters Act, Cap 428, Sea Fisheries Act, Cap. 404, and Exclusive Economic Zone Act, Cap. 110 which Acts gave municipal effect to international treaties entered into by Nigeria by virtue of its membership as a sovereign state of the comity of nations.

15. That paragraph 11 of the plaintiffs’ affidavit in support of their originating summons is denied emphatically by the 9th defendant and the plaintiffs are hereby put to the strictest proof thereof.
16. That the 9th defendant in further reference to paragraph 11 of the plaintiffs’ originating summons states and avers as follows:

(a) That it is not true that the Act, if implemented, will work to the disadvantage of the plaintiffs.

(b) That the provisions of the Act in abolishing the dichotomy in the application of the principle of derivation is consistent with section 162(1) of the Constitution of the Federal Republic of Nigeria which mentioned Natural Resources in the proviso.

(c) That the provisions of the Act are consistent with the provisions of the Allocation of Revenue (Federation Account etc.) Act, Cap 16, Laws of the Federation Account etc. Amendment Act of 1992 (otherwise known as Decree No. 106 of 1992) which also abolished the dichotomy in on-shore revenue in the application of the principle of derivation in sharing the revenue in the Federation Account among the states that produce mineral resources.

(d) That the Allocation of Revenue (Federation Account etc.) Act, Cap. 16. Laws of the Federation of Nigeria, 1990 as amended by the Allocation of Revenue Federation Account etc. Amendment Act, 1992 (otherwise known as Decree No. 106 of 1992) which also abolished the dichotomy in on-shore and off-shore revenue in the application of the principle of derivation in sharing the revenue in the Federation Account among the States that produce mineral resources.

(e) That the Allocation of Revenue (Federation Account etc.) Act, Cap. 16, Laws of the Federation of Nigeria, 1990 as amended by the Allocation of Revenue Federation Account etc Amendment Act of 1992 (otherwise known as Decree No. 106 of 1992) was applied in the sharing of revenue from the Federation Account among mineral resources producing state for many years until it was amended by the Allocation of Revenue Federation Account etc. Modification Order, 2002 which introduced the dichotomy between on-shore and off-shore in the application of the principle of derivation in the sharing of revenue among the natural resources producing States from the Federation Account.

(f) That one of the consequences of the promulgation of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 is the repeal of the application of the Revenue Federation Account etc. modification Order 2002 and its provisions.

(g) That under section 44(3) of the 1999 Constitution, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall rest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.

(h) That the provisions of 162(2) 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.”

Now Order 3 rule 6(1) and (3) of the Supreme Court Rules, 1985 (as amended) provides:-

“6.(1) In any proceedings where the court has original jurisdiction, any party claiming any legal or equitable right and the determination of the question whether he is entitled to the right depending on the construction of the Constitution or of any other enactment may apply for the issue of an originating summons for the determination of such question of construction and for a declaration as to the right claimed and for any further or other relief.

(3) The application shall be made in Form 2 in the First Schedule to these rules and shall be supported by such evidence as the court may require.”

The aim of an action being commenced by originating summons is to simplify and speed up procedure since it is envisaged that there is no serious dispute as to the facts in the case because what is in dispute is the construction of an enactment or instrument made under any law upon which the plaintiff is basing his right to a declaration or a claim in his favour. Where there is a serious dispute as to the facts then a writ of summons must be issued under Order 3 rule 3 of the Supreme Court Rules, which states-

“3. The following proceedings must be begun by filing a statement of claim-

(a) proceedings in which the facts in issue are disputed or are likely to be disputed; and

(b) proceedings in which a claim made by the plaintiff is based on an allegation of fraud.”

The present case is based largely on the validity and effect of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004, which, clearly, are not issues or facts in dispute as to warrant the filing of counter-affidavits by the 2nd, 4th, 7th and 9th defendants. The counter-affidavits not only contradict the avertments in the plaintiffs’ affidavit but also offend the provisions of sections 86 and 87 of the Evidence Act, Cap. 112 to the effect that –

“86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.

87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.”

Therefore, a counter-affidavit is not intended to take the place of a statement of defence or a brief of argument as in this case. Where the conflicts in affidavit evidence are not material to case or where the facts therein are inadmissible in evidence, the court should not be saddled with the responsibility of calling oral evidence to resolve the conflict. The need to call oral evidence would also not arise if the areas of conflict are so narrow and are not significant See Falobi v. Falobi (1976) 9-10 S.C. 1; Okupe v. F. B.I.R. (1974) 1 All NLR 314; Garba v. University of Maiduguri (1986) 1 N.W.L.R. (Pt. 18) 550 and L.S.D.P.C. v. Adold/Stamm Int. Ltd. (1994) 7 N.W.L.R. (Pt.358) 545 at p. 560 B-D.

I, therefore, see no necessity in this case to call for oral evidence in order to resolve the conflict between the plaintiffs’ affidavit and the counter-affidavits of the 2nd, 4th, 7th and 9th defendants, respectively.

Preliminary objections

Next, notices of preliminary objections have been filed by the 5th and 9th defendants. The latter was rejected and discountenanced by the court as it was filed late. In addition, preliminary objections were also raised in the briefs of argument of the 1st, 2nd and 7th defendants. The 1st defendant objects to the plaintiffs action on the following grounds –

“(i) plaintiffs lack the locus standi to bring the action;

(ii) the plaintiffs are estopped to bring the action;

(iii) the plaintiffs have failed to disclose their cause of action; and

(iv) the action was improperly constituted.

The 2nd defendant objects to the action on the grounds that –

(i) the plaintiffs lack standing, and

(ii) the 10th defendant – the Revenue Mobilisation Allocation and Fiscal Commission was wrongly joined contrary to section 232 of the Constitution of the Federal Republic of Nigeria, 1999, and

(iii) the plaintiffs are estopped from bringing the action since their representatives in the National Assembly participated in passing the Act being challenged by them.”

The objection by the 5th defendant in both the notice of preliminary objection, which he filed, and his brief of argument, is that the 10th defendant was wrongly joined in the action and as such the court lacked the jurisdiction to determine the suit as constituted.

The 7th defendant’s preliminary objection is based on the following grounds –

“(i) paragraphs 9, 10 and 11 of the plaintiffs’ affidavit in support of their originating summons offend against the provisions of section 87 of the Evidence Act;

(ii) the plaintiffs lack the locus standi to institute this action; and

(iii) the action does not disclose any reasonable cause of action against the 7th defendant.”

As can be seen, there is overlapping in some of the grounds for the preliminary objections raised. I intend to treat the objections by each defendant one after the other and where the point has been dealt with earlier I will so point out.

Learned counsel for the 1st defendant argues, in the 1st defendant’s brief of argument, as follows. The plaintiffs lack the necessary locus standi to institute the action. He refers to the case of Owodunni v. Reg.Trustees Celestial Church of Christ (2000) 6 S.C. (Pt.111) 60 at p. 73, (2000) 10 NWLR (Pt. 675) 315 per Ogundare, J.S.C., to submit that in the determination of the question whether locus standi is disclosed or not, only the statement of claim or in this case, the affidavit in support of the originating summons should be resorted to. He argues that only paragraphs 8-11 inclusive, of the affidavit in support of the plaintiffs’ originating summons, relate to their locus standi and the injury suffered or to be suffered by them that purportedly give them the cause of action. That the plaintiffs have failed in those paragraphs of the affidavit to disclose their civil rights and obligations have been affected by the 2004 Act in consonance with the requirements of section 6(6)(d) of the 1999 Constitution. He contends that the paragraphs of the affidavit in question complain mainly about injury or loss to the Federal Republic of Nigeria and a collateral, remote or anticipatory loss (which is unsubstantiated) to the plaintiffs, along with the generality of Nigerians including all the defendants. He submits that the plaintiffs have not disclosed sufficient interest to clothe them with the necessary locus standi to institute the action against the defendants and cited in support of the contention the cases of – Oloriode v. Oyebi (1984) 1 SCNLR 390; Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669 and Adefulu v. Oyesile (1989) 5 NWLR (Pt 122) 377.

The plaintiffs do not reply to this submission in their brief of argument. Be that as it may, a person is said to have locus standi if he has shown sufficient interest in the action and that his civil rights and obligations have been or are in danger of being infringed – See Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501; Ogbuehi v. Gov. of Imo State (1995) 9 NWLR (Pt. 417) 53 at pp. 52-90 and Okafor v. Asoh (1999) 3 NWLR (Pt.593) 35 at pp. 53-57. Under section 162 subsections (3), (4) and (5) of the 1999 Constitution, the plaintiffs have the right and obligation to receive funds from or share in the Federation Account. Therefore, if any action is being taken or has been taken to affect their interest in the Federation Account, surely, the plaintiffs have the locus standi to sue. I think this is the short answer to the objection raised by the 1st defendant on standing.

The next preliminary objection is that since the National Assembly consists of representatives from all the states of the federation who passed the 2004 Act, the plaintiffs are estopped from challenging the validity of the Act. Nothing can be further from the truth. There is a fallacy in this argument. It is true that the members of the National Assembly have been elected to the Assembly as members but they cannot be described as members of all the states because each member, whether as a senator or representative, even as a representative of his state, was not elected by the whole of the state but a section of it, and though elected, might not have been given vote by all the electorates in his or her constituency. Such members might or could have opposed the passing of the 2004 Act, in that case, can their states be held responsible for the passing of the Act The 1999 Constitution, in section 232(1) thereof, permits any state that has controversy or dispute with the Federal Government to institute an action in the Supreme Court, can the principle of estoppel apply to prevent such state from suing It has to be remembered that estoppel is a subject under sections 151-154 of the Evidence Act, Cap. 112. If it indeed applied in this case, would it not be in conflict or inconsistent with section 232(1) of the Constitution and therefore null and void to that extent by virtue of section 1 subsection (3) of the 1999 Constitution In my opinion, the answers to all these questions are against the argument by the 1st defendant. I, therefore, hold that estoppel does not operate against the plaintiffs in bringing this action.

It is also argued that the plaintiffs have failed to depose, in their affidavit, to any matter in dispute between them and the 1st defendant since it is not alleged that the 1st defendant qua the Attorney-General of the Federation was the author of the 2004 Act, neither did he assent to it since he has no constitutional responsibility or power to do that. Consequently, it is submitted that the plaintiffs’ suit discloses no cause of action.

I think this contention is oblivious of the provisions of section 20 of the Supreme Court Act, Cap. 424 which states-

“20. Any proceedings before the Supreme Court arising out of a dispute referred to in section 212(1) (now section 232(1) of the Constitution and brought by or against the Federation or a State shall-

(a) in the case of the Federation be brought in the name of the Attorney-General of the Federation;

(b) in the case of a State be brought in the name of the Attorney-General of the State.”

Surely, when the President of the Federal Republic of Nigeria or the National Assembly acts, they do so on behalf of the Federation or the Federal Government. Section 318 of the 1999 Constitution defines “Federation” as the Federal Republic of Nigeria.

The foregoing disposes of the preliminary objection by the 1st defendant, which has failed and is hereby dismissed.

The 2nd defendant raises the issues of locus standi, joinder of the 10th defendant and estoppel. I have already dealt with the issues of locus standi and estoppel, which are the same points as raised by the 1st defendant. With respect, there is no substance in them. With regard to the issue of mis-joinder of the 10th defendant, this has been overtaken by events because learned counsel for the plaintiffs conceded in the course of his argument that the 10th defendant was wrongly joined. As a result, the 10th defendant was struck out from the suit in a ruling which we delivered on the 29th September, 2005.

It follows that all the points in the preliminary objection by the 2nd defendant have failed and they are hereby dismissed. The only point raised by the 5th defendant in his preliminary objection relates to the misjoinder of the 10th defendant in the suit in view of the provisions of section 232 subsection (1) of the Constitution. As I have already treated the point above, I need not say anymore. The objection is overtaken by events and it is hereby dismissed.

There is finally, the preliminary objection by the 7th defendant. It is based on the following grounds. That paragraphs 9, 10 and 11 of the affidavit in support of the plaintiffs’ originating summons offend against the provisions of section 87 of the Evidence Act. That the plaintiffs lack the locus standi to institute the action. That the action does not disclose any reasonable cause of action.

Arguing the first point, it is submitted that the depositions in the paragraphs of the affidavit in question have raised legal argument and/or conclusions contrary to the provisions of the Evidence Act and the decisions in the following cases – Josien Holdings Ltd. v. Lornamead Ltd. & Anor. (1995) 1 NWLR (Pt.371) 254 at p. 255; Nigeria L.N.G. Ltd. v. African Development Insurance Co. Ltd. (1995) 8 NWLR (Pt.416) 677 at p. 701; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 at p. 641 and Bamaiyi v. State & Ors. (2001) 8 NWLR (Pt.715) 270 at p. 289. We are being urged to strike out the depositions or in the alternative not to attach any weight thereto. It is true that the avertments in paragraphs 9, 10 and 11 of the affidavit offend section 87 of the Evidence Act and should be struck out. I, therefore, hereby strike them out. However, I must point out that this objection, though successful, is in substance a mere technicality because it does not affect the validity of the originating summons since the remaining paragraphs of the affidavit in support of the summons are sufficient to sustain it.

Arguing the point on locus standi, it is contended that it is an established principle of constitutional law that before any party can invoke the judicial power entrenched in section 6 subsection (6)(b) of the 1999 Constitution, he must not only show that he has personal interest or has stake in the subject matter of dispute or outcome of the controversy or threatened injury, he must also establish that the asserted injury was the consequence of the defendant’s conduct. In other words, there must be nexus between the plaintiffs action and the 7th defendant’s conduct. The cases of Thomas v. Olufosoye & Ors. (1986) 1 NWLR (Pt.18) 669; Adesanya v. President of Nigeria, (1981) 2 NCLR 358 and Olawoyin v. A -G., Northem Nigeria (1961) 2 SCNLR 5 were cited to buttress the contention. It is further argued that the Act being challenged was validly passed by the National Assembly and therefore for the plaintiffs to have locus standi they must establish that –

(a) the Act is valid;

(b) each of the plaintiffs must show that it has sustained or suffered or is in danger of sustaining some direct injury as a result of the enforcement of the Act;

(c) each plaintiff must show that by the resultant hardship or injury it stands to suffer by the enactment and operation of the Act is greater than that affecting the other non-littoral states not joined as parties to the suit; and

(d) the plaintiffs must establish that the injury they suffer is the consequence of the action by the 7th defendant.

It is canvassed that the representatives of the plaintiffs in the National Assembly took part in the debate which led to the enactment of the Act and that the affidavit in support of the originating summons has not disclosed what each plaintiff will suffer or that it has indeed suffered greater hardship than the other non-littoral states that are not parties to the action.

Some aspects of the argument by the 7th defendant go to the merit of the action rather than the preliminary objection being raised. Suffice it to say that the issue of locus standi has been dealt with in the foregoing while considering the same point as raised by the 1st defendant. Similarly, I see no merit whatsoever in the objection being raised here. Accordingly, I reject it and hold that the plaintiffs have the standing to institute the case.

The final point of the objection is that the plaintiffs have failed to disclose any reasonable cause of action against the 7th defendant. It is argued that plaintiffs by the relief they are seeking claimed that the Act in dispute is ultra vires the defendants and therefore it is null and void. However, the affidavit in support of the originating summons has not disclosed the role displayed by the 7th defendant either in the enactment of the Act or in its implementation. It is submitted that no reasonable cause of action can therefore be sustained against the 7th defendant for the reliefs being sought by the plaintiffs.

I have already treated the points being raised here earlier on in this judgment when considering the same issue that was raised by the 1st defendant. Paragraph 8 of the affidavit in support of the originating summons has clearly shown the fear and complaint of the plaintiffs, which is that the Act in dispute if implemented “will impact negatively on the amount that will accrue to the Federation Account and this will in turn reduce the shareable revenue due to the plaintiffs.” The 7th defendant is, indeed, as a matter of judicial notice, one of the littoral states to which the Act refers. I therefore hold that the plaintiffs have disclosed sufficient cause of action against the 7th defendant.

On the whole, the preliminary objection by the 7th defendant has failed and it is hereby dismissed. This now clears the way for the substantive action to be considered.

Claim by the plaintiffs

The plaintiffs, in their brief of argument, formulate three issues for the court to determine. They read thus –

“(1) Whether having regard to the provisions of sections 16 and 44(3) of the Constitution of the Federal Republic of Nigeria, 1999, the provisions of the Territorial Water Act, Cap. 248, Laws of the Federation 1990, the provisions of the Exclusive Economic Zone Act, Cap. 116, Laws of the Federation, 1990, and Binding International Convention to which Nigeria was a signatory, the 1st defendant did not act ultra vires its powers in making and implementing the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 under which the 1st defendant purported to cede or give away or concede any part of the territorial waters or seaward boundaries of Nigeria to the 2nd – 9th defendants in any way or manner or guise whatsoever.

(2.) Whether having regard to the provisions of sections 4, 6(6),44(3), 162, 232, 235 and 315 of the Constitution of the Federal Republic of Nigeria, 1999, the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 is not unconstitutional, ultra vires, null, void and of no effect whatsoever.

(3) Whether in view of the decision of this Honourable court in suit No. SC.28/2001, A-G., Federation v. A-G., Abia State and 35 Ors. delivered on 5th April, 2002, the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 is not a legislative judgment thereby making it unconstitutional, null, void and without any effect.”

The 1st defendant raises only one issue for determination, which –

“Having regard to the relevant provisions of the 1999 Constitution and existing laws, whether the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004 is valid and subsisting.”

The 2nd defendant has formulated 2 issues for determination in his brief, which read –

“(i) Whether the plaintiffs’ action is competent, and

(ii) Whether the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004, is inconsistent with the provisions of the Constitution, 1999.”

The 3rd defendant has not formulated any issue but adopts the issues formulated by the plaintiffs. The 4th defendant, on the other hand, has formulated 2 issues in his brief of argument: They are:-

“i. Whether by virtue of the provisions of section 4(2,) 4(4), 44(3), 162(2) and paragraph 32(b) (Part 1 of the Third Schedule, to the 1999 Constitution, the 1st defendant possessed the vires to enact and implement the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004. Whether in view of the decision of this Honourable Court in suit No. SC/28/2001-A-G., Federation v. A.G., Abia State and 35th Ors. delivered on 5th April, 2002, the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004, is a legislative judgment thereby making it unconstitutional, null, void and without any effect.”

The 5th defendant adopts the issues formulated by the plaintiffs. While the 7th defendant adopts the singular issue formulated by the 1st defendant.

Learned counsel for the plaintiffs argues, in the brief of argument, all the 3 issues formulated. He begins by general reference to the concept of federalism and public international law, as the point in controversy in the case impinges on the essence of federalism and the sovereignty of states on their territorial waters under international law. He argues that it is universally accepted that the federating units in a federal set up should enjoy absolute equality in all matters of resource and resource control. He contends that the same applies to the distribution of Federation Account or central purse. He submits that the acts of the defendants being complained about in the present case clearly negate the principles of equality of the component parts of the federating units as expounded by Prof. B. O. Nwabueze in his works – The Presidential Constitution of Nigeria, 1982 Edition, on pp. 37 – 51 and Constitutional Democracy in Africa, Volume 1, 2003 Edition, Chapter 4 on Pg. 93 – 98.

He contends that in order to resolve the plaintiffs’ issue No.1 the provisions of sections 16 and 44(3) of the 1999 Constitution, section 1 subsection (1) and section 3 of the Territorial Waters Act. Cap. 428, section 2 subsection (1) and section 6 of the Exclusive Economic Zone Act, Cap. 116 together with those of the United Nations Convention on Law of the Sea, 1982; General Convention on the Territorial Sea and the Contiguous Zone, 1958 as well as the Vienna Convention of 1969 which became operational on 27th January, 1980, will have to be interpreted by the court.

He argues that section 44(3) of the Constitution unequivocally vests in the government of the federation the entire property in and control of all minerals, mineral oils, and natural gas in, under or upon any land in Nigeria. Also in, or under or upon the territorial waters of Nigeria and the Exclusive Economic Zone, with management power in such manner as prescribed by an Act of the National Assembly. He submits that section 1 subsection (3) of the Territorial Waters Act is intended to bring the definition of territorial waters of Nigeria in any enactment to correspond with the extension incorporated in section 1 subsection (1) of the Territorial Waters Act. He refers to the long title of the Exclusive Economic Zone Act, Cap. 116, sections 1(1), 2(1) thereof and section 1 of the Allocation of Revenue (Abolishing of Dichotomy in the Application of Principle of Derivation) Act, 2004 (hereinafter referred to as the 2004, Act) and submits that the natural resources or minerals in the territorial waters of Nigeria and the Exclusive Economic Zone belong to the Federation of Nigeria and not to a constituent part thereof. Afortiori. he argues, revenue derived or derivable therefrom belongs to the Federation and is not subject to derivation principles.

He contends that the purport of section 1(1) of the 2004 Act, is to adjust the boundaries of the littoral states of Nigeria without complying with the prescriptions stipulated in section 8 subsection (2) of the 1999 Constitution. In that respect, he argues, the 2004 Act is liable to be struck down. He submits further, by citing the case of A-G., Fed. v. A-G., Abia State (No.2) (2002) 6 NWLR (Pt. 764) 542, that to the extent that the 2004 Act is intended to make the principles of derivation in respect of natural resources derived outside of the boundaries of the littoral States applicable, the 2004 Act is liable to be declared null and void. He canvassed that by its decision in the case of A-G., Fed. v. A-G., Abia State (supra) this court determined the boundary of a littoral State to be the low water mark along the coast and seaward limits of inland waters. That the decision corresponds with the provisions of section 1 subsection (1) of the Territorial Waters Act.

Learned counsel contends that the right conferred or vested in the Federation by the Constitution, cannot be taken away or interfered with by any other legislation. He argues that such legislation is void for its inconsistency with the Constitution -Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116. Therefore, the provisions of section 1 subsection (1) of the 2004 Act, is void for being inconsistent with the provisions of the Constitution; and for interfering with the rights conferred on the plaintiffs with regard to the 200 meter water depth isobaths contiguous to the 2nd to 9th defendants. He further argues that the said provisions of the 2004 Act are void by reason of their being inconsistent with section 8 subsection (2) and section 6 of the 1999 Constitution.

He submits further that it is now an accepted part of our jurisprudence that obligations under an international convention must be respected and that it is beyond the powers of a sovereign state like Nigeria to enact any law which derogates from its obligations under an international convention. He cites in support the case of Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 at pp. 344-345.

He argues that Nigeria is a signatory to many conventions including the United Nations Convention on the Law of the Sea, 1982; the General Convention on the Territorial Sea; the Contiguous Zone, 1958 and the General Convention of the High Seas, 1958. He submits that the provisions of the 2004 Act have contravened the provisions of the aforesaid Conventions and therefore the 2004 Act is liable to be declared a nullity.

On issue No.2, learned Senior Advocate, for the plaintiffs, refers to sections 4, 6(6), 16, 44(3), 162, 232 and 315 of the 1999 Constitution to submit that having shown that the 2004 Act is a nullity, this court has the inherent power to declare the Act null and void and of no effect whatsoever. He relies, further, on his earlier argument on issue No.1. He submits that once section 1 subsection (1) and (2) of the 2004 Act is struck down, the rest of the Act cannot stand on its own and therefore the whole of the Act would need to be struck down.

On issue No.3, learned counsel has referred to the decision of this court A.-G., Fed. v. A.-G., Abia State & 35 Ors. (supra) to argue that it was held therein that there was a difference between internal waters and territorial waters, that territorial sea cannot belong to any indigenous community, as that will be contrary to both the common law and international law; that only the Federal Government, and not the littoral States can lawfully exercise legislative, executive and judicial powers over the territorial waters and the exclusive economic zone; that boundaries of the littoral States do not extend to the Exclusive Economic Zone or the continental shelf of Nigeria; that none of the littoral State has ownership over the natural resources situated off-shore even if oil right and/or wells bear indigenous names, and that the littoral States are not entitled under the provisions of section 162(2) of the 1999 Constitution to a special share in the revenue accruing to the Federation Account from natural resources derivable from the continental shelf of Nigeria. That the court, it is argued, based its decision in the case on the interpretation of the Constitution, the Exclusive Economic Zone Act, and the various international conventions earlier mentioned. That all these legislations remained unrepealed up to the time when the 2004 Act was enacted. Therefore, it is submitted, it is beyond the powers of the National Assembly to purport to enact the 2004 Act and that we should declare section 1 of the 2004 Act a nullity.

Learned Senior Advocate, for the plaintiffs refers to the case of Adegbenro v. Akintola (1962) 1 All NLR (Reprint) 465, (1963) 2 SCNLR 6 to submit that although the legislature possesses the vires to legislate post the judgment in order to render the continuous application of the decision ineffective, the situation here is different, because the National Assembly is yet to carry out the necessary repeal of the legislations that impede the survival of the 2004 Act. The court is urged, on this account, to hold that it is ultra vires the National Assembly to enact the 2004 Act and the 1st defendant to seek to implement its provisions.

Replying, learned Senior Advocate, for the 1st defendant states in the brief of argument that by virtue of section 12 of the 1999 Constitution, any convention or treaty, to which Nigeria is a party does not become operative and binding unless it has gone through legislative procedure in the National Assembly and becomes enacted as a municipal law. That no such treaty or convention is identified by the plaintiffs and nor have they adduced evidence to that effect. Therefore, it is submitted on the authority of Yoye v. Olubode (1974) 9 NSCC 409 at p. 412, that the plaintiffs’ argument on the point goes to no issue as the argument is not based on the facts pleaded by them. He argues that there is nothing in the 2004 Act which can be interpreted as amounting to cession of part of Nigeria to the 2nd to 9th defendants. That if section 16 of the Constitution is read together with section 6 subsection (6)(c) thereof, it would be seen that the plaintiffs have no justiciable right to bring this action.

Learned counsel contends that the 2004 Act does not purport to cede to any State or any part of Nigeria, minerals or non-minerals. That the word “deem” used in the 2004 Act has nothing to do with the word “cede” which the plaintiffs imported to interpret the Act. He argues further that there is no conflict whatsoever between the 2004 Act and the Territorial Waters Act, Cap. 428, (TWA) and the Exclusive Economic Zone Act, Cap. 116 (EEZA) since each Act was enacted for a purpose different from those of the others. That while the TWA exists to determine the limits of Nigeria’s territorial waters, and the EEZA limits the exclusive economic zone of Nigeria, the 2004 Act provides a formula for the allocation of revenue accruing to the Federation Account as envisaged by section 162 subsection (2) of the 1999 Constitution. It is further argued that even if the 2004 Act is inconsistent with the earlier Acts, it is established principle of interpretation of statutes, that the 2004 Act being the later Act would be presumed to have repealed the earlier Acts because the National Assembly is presumed to be aware of all existing laws before enacting the later one. He cites in support the cases of Kaduna State Governor v. Kagoma (1982) All NLR 150 at 172; Onyema v. Oputa (1987) 18 NSCC (Pt. 2) 900 p. 909; (1987) 7 NWLR (Pt. 60) 259; A-G., Anambra v. A-G., Fed. (1993) 6 NWLR (Pt. 302) 692 at p. 726 and Flannagan v. Shaw (1920) 3 KB 96 at p. 105.

In the brief of argument of the 2nd defendant, learned Senior Advocate of Nigeria, for the 2nd defendant, argues in favour of the 2nd defendant’s issue No.1 and against the plaintiffs’ issues Nos. 1 and 2. He contends that there is no principle of law which nullifies a statute on the ground that it is contrary to or inconsistent with an earlier statute enacted by the legislature. On the contrary, he argues, the later statute in point of time must be preferred to the earlier statute in the light of the inconsistency between them, on the authority of Crownstar & Co. Ltd. v. The Vessel M.V Vali P. (2000) 1 NWLR (Pt. 639) 37 and A-G., Fed. v. A-G., Abia State (No.2) (2002) 6 NWLR (Pt. 764) 542. On the point made by the plaintiffs that the 2004 Act ceded part of Nigeria to the 2nd – 9th defendants, counsel argues that the 2nd – 9th defendants are part of the Federation of Nigeria which is made up of 36 component States. Therefore, there is no separate territory known as Nigeria and territories separate therefrom that are known as States. Consequently, it is submitted further that the 2004 Act does not offend the provisions of sections 16 and 44(3) of the 1999 Constitution, as argued by the plaintiffs, but rather complements and fulfils the principle of economic and social justice under section 16. The Act, it is contended, has not also derogated from section 44(3) of the Constitution because there is nothing in any of its sections that gives ownership in the property of or control of any minerals, mineral oil and natural gas to the 2nd – 9th defendants.

On the 3rd issue formulated by the plaintiffs, it is argued, by learned counsel for the 2nd defendant, that there is nothing in the laws of this country which indicates that once a court made a decision on a particular subject matter, then the legislature is precluded from deliberating on other issues touching on the subject matter. It is submitted that the powers of the courts to pronounce on the status of an existing law do not foreclose the powers of the legislature, in pursuit of its function, as provided by section 4 of the 1999 Constitution.

In his brief of argument, the Attorney-General of Bayelsa State – 3rd defendant, contends that the crux of this case is whether the provisions of the 2004 Act apply to cession of territory. He submits that international treaties or conventions to which Nigeria is a signatory do not come into force in Nigeria unless they have been made part of our municipal laws pursuant to section 12 subsection (1) of the 1999 Constitution. He contends that it is difficult to see how the provisions of section 16 and 19 of the 1999 Constitution could be claimed to have been violated by the 2004 Act. He refers to the provisions of section 6 subsection (6)(c) of the Constitution and submits that the plaintiffs cannot sue on any violation of the provisions of sections 16 and 19 of the Constitution because the provisions are non-justiciable. With regard to the Territorial Waters Act and the Exclusive Economic Zone Act, he contends that these are municipal laws with international complexion since they were enacted to give effect to treaties to which Nigeria was a signatory. He argues that the plaintiffs have not shown or demonstrated how the Acts have been violated by the 2004 Act, as claimed. On whether the 2004 Act has ceded part of Nigeria to the 2nd – 9th defendants, he canvasses that the cession of a territory is an internationally recognised method of acquisition of territories and it involves the transfer of territory from one state to another, and this is accomplished by a treaty. He argues that this is not what has happened in the present case because the 2nd – 9th defendants having been created by section 3 of the 1999 Constitution, have no independent existence from Nigeria under the 1999 Constitution. He argues further that the 200 metre water depth isobath mentioned in the 2004 Act as deemed to be part of the States contiguous to it, which is claimed by the plaintiffs to have been ceded, is an area within which the legislative and executive competence of the 2nd – 9th defendants does not extend. In other words, the 2nd – 9th defendants, he submits, cannot exercise de facto or de jure authority over the area evinced by the 2004 Act and therefore the sovereignty of the 1st defendant over the said area remains unaffected along with its incidences.

Again, on the contention that the 2004 Act amounts to cessation of the territorial waters or seaward boundaries of Nigeria to the 2nd – 9th defendants, the learned Attorney-General states that under international law, the territory of the Federal Republic of Nigeria does not extend beyond its low water marks and that beyond those points, international law merely confers limited rights on Nigeria for certain purposes. He cites in support, the case of Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305 which defines the word “deem” and A-G., Fed., v. A-G., Abia State & 35 Ors. (No.2) (supra); (2002) Vol. 6 MJSC 1 at p. 33 F-G, pp. 36E – 37.

On the point that the 2004 Act constitutes a legislative judgment, learned Attorney-General has referred to the case of Lakanmi v. A.G. (West) (1970) NSCC Vol. 6 p. 143 and argues that an Act is a legislative judgment where it names a particular individual and adjudges him guilty of an offence or a wrong without recourse to the affected person’s constitutionally guaranteed right to judicial trial. He submits that the 2004 Act, does not meet that requirement because it neither deprives identifiable persons or states or their property without recourse to judicial determination, nor contains express or implied provisions ousting the jurisdiction of the courts. He states that the 2004 Act merely extends the principle of derivation to the areas that it (the Act) evinces.

The 4th defendant refers to the long title of the 2004 Act, and the explanatory memorandum to the Act, to submit that the act was enacted pursuant to and in conformity with section 162 subsection (2) of the 1999 Constitution. He argues that any revenue derived whatsoever accrues directly to the Federation Account and is subject to the derivation principle stated under the section 162 subsection (2). He cites the cases of A-G., Abia State & 35 Ors. v. A-G., Federation (2003) FWLR (Pt. 152) 131 at pp. 147 and 1999 B-C (2002) 6 NWLR (Pt. 763) 264; A-G., Fed. v. A-G., Abia State & 35 Ors. (1983) NSCC (Vol. 14) 181 at p. 183 and 192; Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587 at pp. 620 an 635 F-H and Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 and submits that by virtue of the provisions of sections 4(2), 4(4), 44(3), 162(2) and paragraph 32(b) of Part 1 of the Third Schedule to the 1999 Constitution, the 1st defendant possesses the vires to enact and implement the 2004 Act.

On whether the 2004 Act is a legislative judgment, he refers to the cases of A-G., Fed. v. A-G., Abia State & 35 Ors. (supra); Uwaifo v. A-G., Bendel State, (1982) NSCC (Vol. 13) 221 at pp. 249 – 250; (1983) 4 NCLR 1,A-G., Fed. v. Guardian Newspapers (2001) FWLR (Pt. 32) 37 at pp: 100 and 138 C-F; (1999) 9 NWLR (Pt. 618) 187 and Lakanmi & Anor. v. A-G. (West), (supra) to submit that going by the dicta of this court in the cases, the plaintiffs have misconceived the concept of legislative judgment. He contends that although the plaintiffs rely on the Territorial Waters Act, the Exclusive Economic Zones Act and other provisions of international conventions, the Act and the conventions are in fact not in conflict with the 2004 Act. He concludes by submitting that the 2004 Act, either by its wording or effect, is not a legislative judgment. The 5th defendant argues in his brief of argument that it is misleading for the plaintiffs to contend that section 1 of the 2004 Act is designed to undermine, directly or by implication, the provisions of section 44(3) of the 1999 Constitution, section 1 of the Territorial Waters Act, and section 1 of the Exclusive Economic Zone Act. He canvasses that section 44 of the Constitution is mainly concerned with making provisions to protect the fundamental right of individuals to property with regard to compulsory acquisition of movable or immovable properties as stated in subsections (1) and (2) thereof. That the purpose of subsection (3) thereof is to exclude minerals, mineral oils and natural gas from the notion of such fundamental right, so that no individual can lay claim to those natural resources. That with regard to the plaintiffs’ argument that the 2004 Act in section 1 thereof adjusts the boundaries of 2nd – 9th defendants without complying with section 8 subsection (2) of the 1999 Constitution, there is no such adjustment of boundaries because section 1 of the 2004 Act merely refers to 200 meters depth isobath contiguous to the sea but makes no mention of any measurement width-wise to entail any extension of the boundaries that are seaward.To buttress the point, A-G., Fed. v. A-G., Abia State (No.2) (supra) at pp. 644 and 646, per Ogundare, JSC, is cited.

Learned Attorney-General, argues that the decision by the 1st defendant to abolish dichotomy in the application of the principle of derivation, for the purpose of allocation of revenue accruing to the Federation Account under the Constitution, is political. Therefore, the plaintiffs’ case raises a political question, which is not justiciable, per A-G., Eastern Nigeria v.A-G., Fed. (1964) 1 All NLR 224 at p. 226; A-G., Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396 at pg. 430 E-F; Coleman v. Miller (1938) SC reporter 307 US 972 and Baker v. Carr 369 US 186 (1962).

The 7th defendant contends that it is beyond dispute that the National Assembly has, pursuant to section 4 subsection (2) of the 1999 Constitution, the power to make laws for the peace, order and good government of the Federation of Nigeria or any part thereof in respect of any subject under the Exclusive Legislative List in the Second Schedule to the Constitution. That it is in exercise of this power together with the power given to the National Assembly under section 162 subsection (3) of the Constitution, that it enacted the 2004 Act. He submits that the Act, being merely a fiscal enactment, has not ceded or annexed to the 2nd – 9th defendants the area specified in the Act; hence compliance with section 8 of the Constitution does not arise.

The defendant states that on the issue of legislative judgment the plaintiffs merely adverted to the decision in A-G., Fed. v. A-G., Abia State (No.2) (supra) and failed to advance any argument in support of the point. He argues, in the alternative that on the authority of Lakanmi’s case (supra) and Uwaifo v. A-G., Bendel State, (supra) the 2004 Act does not have the attributes of a legislative judgment.

Now the 2004 Act, which consists of only two sections, reads as follows:

“1(1) As from the commencement of this Act, the two hundred metre water depth isobath contiguous to a State of the Federation shall be deemed to be a part of that State for the purposes of computing the revenue accruing to the federation account from the state pursuant to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 or any other enactment.

(2) Accordingly, for the purposes of the application of the principle of derivation, it shall be immaterial whether the revenue accruing to the Federation Account from a State is derived from natural resources located onshore or offshore.

2. This Act may be cited as the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004.”

A careful reading of section 1 subsection (1) of the Act shows that the extension deemed to have been given to the seaward boundary of the littoral states is specifically for the “purposes of computing the revenue accruing to the Federation Account from the “littoral states and nothing else. The boundary is to be “deemed” to be “the two hundred metre water depth isobath contiguous” to the littoral States. It is clear, therefore, that the extension given to the littoral States’ seaward boundary is neither real since it is to be “deemed” nor is it for any other purpose than for calculating the revenue which accrues to the littoral States from the Federation Account. Subsection (2) of the section further provides that in the application of the principle of derivation of revenue, it is immaterial whether the revenue accruing to the Federation Account from a littoral State is derived from the natural resources located either onshore or off-shore the littoral state. The plaintiffs have argued that the effect of the 2004 Act is that it has extended the boundaries of the littoral states (2nd – 9th defendants) contrary to section 8 of the 1999 Constitution. This, with respect is not a correct interpretation of the provisions of the Act, because the Act specifically states that the extension is only to be deemed, in other words it is not real but notional, and it is specifically intended for the purpose of computing the revenue which accrues to the Federation Account from the littoral states. This court had had the opportunity in the case of A.-G., Fed. v. A.-G., Abia State & 35 Ors. (No.2) (supra) to determine the actual boundary of the littoral states by virtue of section 3 of the 1999 Constitution and to explain the implication of the 200 metre water depth isobath contiguous to Nigeria with reference to the United Nations Convention on the Law of the Sea, 1982. On pp. 728H 729C thereof I observed as follows:

“Perhaps I need to explain here that ‘Coastal State’ in the convention means nation State and not internal State of a country like the littoral states in the present case. In a Federation, it applies to the Federation and not the constituent or Federating States that comprise the Federation. This is necessarily so, because international law applies to countries that are members of the comity of nations … The 36 constituents States of Nigeria are not members of the comity of Nations and so the provisions of international law in a convention do not directly apply to them but the federation.”

And on p. 731B -C thereof I continued thus:

“From the foregoing, the provisions of the Conventions which enable the Federation of Nigeria to enact laws such as the Territorial Waters Act, Cap. 428, the Sea Fisheries Act, Cap. 404 and the Exclusive Economic Zone Act, Cap. 116 can be seen. What the federation has over the territorial waters and air space is the power to exercise sovereignty over the territorial waters and air space and not that they constitute extension of the boundary of Nigeria or indeed the littoral states.”

It follows that the argument by the plaintiffs that the effect of the 2004 Act is to extend the seaward boundaries of the littoral states in contravention of section 8 of the 1999 Constitution cannot, with respect, be correct.

Section 16 of the Constitution deals with the economic objectives of Nigeria under the Fundamental Objectives and Directives Principles of State Policy. It provides in subsection (1)(a) thereof as follows:

“16(1) The State, shall, within the con of the ideals and objectives for which provisions are made in this Constitution –

(a) harness the resources of the nation and promote national prosperity and efficient, a dynamic and self-reliant economy.”

I am unable to see the connection between these provisions and those of the 2004 Act, because the latter is not concerned with the harnessing of resources of the nation or promoting national prosperity or promoting efficient, dynamic and self-reliant economy but the computation of revenue that accrues to States from the Federation Account. Therefore, it cannot validly be argued that the 2004 Act is in conflict with the provisions of section 16 of the Constitution. Even if it were, such act is not justiciable by virtue of the provisions of section 6 subsection (6)(c) of the 1999 Constitution, which provides:

“6(6) The judicial powers vested in accordance with the foregoing provisions of this section -……

(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution.”

Section 44 subsection (3) of the Constitution provides –

“44(3) Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.”

Again, while the 2004 Act is concerned with the computation of revenue accruing to the Federation Account and notional extension of the states boundaries, the foregoing provision is about the ownership, control and management of natural resources by the Government of the Federation. Here too, since the objects are at variance, I see no conflict between the Act and section 44(3) of the Constitution.

Sections 1 and 3 subsection (1) of the TWA provide:

“1(1) The territorial waters of Nigeria shall for all purposes include every part of the open sea within thirty nautical miles of the coast of Nigeria (measured from low water mark) or of the seaward limits of inland waters.

(2) Without prejudice to the generality of the foregoing subsection, that subsection shall in particular apply for the purposes of any power of the Federal Government to make, with respect to any matter, laws applying to or to any part of the territorial waters of Nigeria.

Accordingly –

(a) in the definition of territorial waters contained in section 18(1) of the Interpretation Act, 1964, for the words “twelve nautical miles” there shall be substituted the words “thirty nautical miles”;and

(b) references to territorial waters or to the territorial waters of Nigeria in all other existing Federal enactments (and in particular the Sea Fisheries Act) shall be construed accordingly.

(4) In subsection (3) of this section, existing “Federal enactment” means –

(a) any Act of the National Assembly passed or made before the commencement of this Act or 26th August, 1971 (which is the date of commencement of the amendment to this Act) including any instrument made before 1st October, 1960 in so far as it has effect as an Act; or

(b) any order, rules, regulations, rules of court or bye-laws made before the commencement of this Act or 26th August, 1971 aforesaid in exercise of powers conferred by any such Act or instrument.

(5) Nothing in this section shall be construed as altering the extent of or the area covered by any lease, licence, right or permit granted under any enactment or instrument before the commencement of this Act or 26th August, 1971 (which is the date of commencement of the amendment to this Act).

3(1) Subject to the provisions of this section, a Nigerian court shall not try a person who is not a citizen of Nigeria for any offence committed on the open sea within the territorial waters of Nigeria unless before the trial the Attorney General of the Federation has issued a certificate signifying his consent to the trial of that person for that offence.”

I fail to see any connection or conflict between these provisions and those of the 2004 Act. For each deals with a different subject.

Section 2 subsection (1) and section 6 of the EEZA provide as follows –

“2(1) Without prejudice to the Territorial Waters Act, the Petroleum Act or the Sea Fisheries Act, sovereign and exclusive rights with respect to the exploration and exploitation of the natural resources of the sea bed, subsoil and superjacent waters of the Exclusive Zone shall vest in the Federal Republic of Nigeria and such rights shall be exercisable by the Federal Government or by such Minister or agency as the government may from time to time designate in that behalf either generally or in any special case.

……

6. In this Act, unless the con otherwise requires”-

“the appropriate authority” means the Federal Government or any other person or authority designated in that behalf by the Federal Government by virtue of section 2 of this Act; “designated area’ has the meaning assigned thereto by section 3(4) of this Act;

“the Exclusive Zone” means the Exclusive Economic Zone of Nigeria as delimited by section 1 of this Act;

“territorial waters of Nigeria” has the meaning assigned thereto by the Territorial Waters Act.”

Section 2 subsection (1) hereof is concerned with the exploration and exploitation by the Federal Government of the natural resources in the territorial waters of Nigeria which vest in the Federal Government. Section 6 simply defines phrases as used in the EEZA. I see no conflict whatsoever between these provisions and those of the 2004 Act.

With regard to the purported conflict between the 2004 Act and the various international conventions mentioned by the plaintiffs, namely, United Nations Convention on the Law of the Sea, 1982, the General Convention on the Territorial Sea, the Contiguous Zone, 1958 and the General Convention of the High Seas, 1958; learned Senior Advocate for the plaintiffs has not shown specifically in his argument, in their brief, how the alleged conflict comes about. With respect, it is not therefore easy for us nor is it our duty to suo motu fish out what the conflict is.

On the whole the plaintiffs’ issue No.1 has failed and I answer it in the negative.

Next the plaintiffs raise the issue whether by virtue of sections 4, 6(6), 44(3), 162,232,235 and 315 of the Constitution, the 2004 Act is not unconstitutional, ultra vires, void and of no effect.

Section 4 of the Constitution deals with the legislative powers of the National Assembly, section 6 subsection (6) quoted in part above, deals with the extent of the judicial powers vested in the courts established by the Constitution, section 162 deals with the Federation Account; section 232 deals with the original jurisdiction of this court; section 235 provides for the finality of the decision of the court and section 315 relates to existing laws. Learned counsel for the plaintiffs relies on his argument in respect of issue No.1 above and submits that having shown that the 2004 Act is a nullity, this court has the inherent power to declare it null and void and of no effect whatsoever. He also submits that once the section 1(2) and (3) of the Act is struck down the rest of the Act cannot stand on its own and should also be struck down. With respect, the whole of this argument is based on the premise that issue No.1 is answered in the affirmative, but as aforeseen the contrary is the case. Therefore, issue No. 2 has no base upon which it could stand. The simple answer to the issue is that it has failed and therefore it must be answered in the affirmative because it is couched in the negative. In other words, the 2004 Act is constitutional, intra vires and not null and void and not of no effect whatsoever.

On whether the 2004 Act is a legislative judgment, learned counsel for the plaintiffs argues that the effect of the 2004 Act is to reverse the decision of this court in A.-G., Fed. v. A.-G., Abia State & 35 Ors. (No.2) (supra) and that for the National Assembly to act intra vires in enacting the 2004 Act, it would have to repeal the TWA, the EEZA and the various international conventions that apply to the territorial waters of Nigeria.

Now by section 162 subsection (3) of the 1999 Constitution –

“(3) Any amount standing to the credit of the Federation Account shall be distributed among the Federal and State Governments and the Local Government councils in each State on such terms and in such manner as may be prescribed by the National Assembly.

(4) Any amount standing to the credit of the States in the Federation Account shall be distributed among the States on such terms and in such manner as may be prescribed by the National Assembly.

“It is clear, by virtue of these provisions, that the National Assembly has absolute power under the 1999 Constitution to enact a legislation or a statute that deals with the manner in which revenue accruing to the Federation Account is to be distributed amongst the beneficiaries. The power is not limited since it is to be exercised by the National Assembly in such terms and manner as it may prescribe except as provided in the proviso to subsection 2 of section 162 of the Constitution. The subsection reads –

“(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 the natural resources.”

On whether the 2004 Act is a legislative judgment, I accept the argument by the defendants’ counsel, that based on the decision of this court in the following cases – Lakanmi & Anor. v. A-G. (West) (supra); Uwaifo v. A-G., Bendel State (supra) and A-G., Fed. v. Guardian Newspapers (supra) – the 2004 Act is not a legislative judgment because it has not in anyway usurped the function of the court or the judiciary.

Issue No.3 therefore fails and I answer it in the negative by holding that the 2004 Act is not a legislative judgment and as such it is not null and void or without effect.

Finally, the plaintiffs’ action, as a whole, fails in its entirety and it is hereby dismissed with no order as to costs.

SC.144/2004