A-G., Imo State V. A-G., Rivers State (1983)

SOWEMIMO, J.S.C.

In this action the plaintiff claims:

i. A declaration that the authority to exercise legislative, executive and judicial powers in or over the villages of Obunku, Ayama Umuosi, Egberu, Okokoma Afam Uku, Afam Nta, Mgboji, and Obeakpu, (in the Unilhueze 1 Local Council Area) and Umuagba, Okpontu, Maraihu Azuogu and Obete (in the Umuokobo Local Council Area) is vested in the Government of Imo State of Nigeria to the exclusion of the Rivers State of Nigeria;

ii. A declaration that the authority to exercise legislative, executive and judicial powers in or over the villages of Obigbo, Komkon and Obeama is vested in the Government of Imo State of Nigeria to the exclusion of the Government of Rivers State of Nigeria;

iii. An Injunction restraining all officers agents and servants of the Government of Rivers State from exercising legislative, executive or judicial powers in or over any of the villages mentioned under items (i) and (ii) above;

iv. A declaration that the area described as Ukwa in the First Schedule to the Constitution of the Federal Republic of Nigeria is the identical area comprising the Local Government described by that name in the First Schedule to the Imo State Local Government Edict No. 20 of 1976;

v. A declaration that the Ukwa Local Government established by the Imo State Local Government Edict No. 20 of 1976 is the proper lawful authority to exercise the powers and functions conferred by law on local governments in or over the villages mentioned under items (i) and (ii) above;

vi. An injunction restraining all other persons or authorities established by law in force in Rivers State from exercising any powers or functions in or over the villages mentioned under items (i) and (ii) above or any of them.

Pleadings were exchanged and evidence was called by both parties.

For the plaintiff the Governor of that State was one of the witnesses who have evidence. His Excellency became Governor of Imo State on 1st October, 1979.

Before then Imo State, which was created in 1976, was under Military Administration until 30th September, 1979. On the defendant’s side, the Military Administrator, who was in control of the Administration of Rivers State up till 30th September, 1979, gave evidence for the defendant. Several documents were tendered by both parties. Some of the other witnesses who gave evidence on either side were, in the main, merely technical witnesses, in short, all that they had to do was either to tender plans, or official documents of the former Military Administration relating to the boundaries of the two States.

The case of the plaintiff was based principally on what constituted the area known as Ukwa Local Government under the Imo State. The defendant, on the other hand, claimed that certain areas of Ukwa, mainly Ndoki and Asa, which were formerly in the East Central State, from which Imo State was excised, were merged with the Rivers State as a result of the decision of the Military Administration, following the reports of the Irikefe Commission on Creation of States, and the Nasir Commission Report on Boundary Adjustments.

For the purpose of this case, it is not necessary to deal in detail the constitutional history of Nigeria. I shall however mention in general the relevant Orders in Council and Constitutions. This is for the purpose of setting out the constituent units of the country. Before 1951, Nigeria was ruled under a unitary government with a Governor at its head. For administrative purposes it was divided into Eastern Provinces, Northern Provinces, Western Provinces with the then Southern Cameroons and Lagos. By an order made under the Nigeria (Constitution) Order-in-Council 1951, No. 47 of 1951 and Public Notice No. 118 of 1951, the Provinces were changed into Regions with Southern Cameroons administered with the Eastern Region and Lagos as a Federal Territory. The boundaries of the regions were the same as the former constituent boundaries of the Provinces. By the Nigeria (Constitution) Order in Council 1954 further devolution of powers were made to the regions to make them semi- autonomous. This was Legal Notice No. 128 of 1964, but the boundaries of the regions remained the same, save that the Southern Cameroons was excised from the Eastern Region and treated as a Region.

Lagos remained as a Federal Territory and was treated as a region for administration purposes and as capital of Nigeria. Nigeria became an independent sovereign state by virtue of Nigeria (Constitution) Order in Council 1960, No. 1652, Legal Notice No. 159 of 1960. The boundaries of the constituent regions remained the same. The Constitution was replaced by the Constitution of the Federation in 1963, by which the country became a Republic. A new region excised from the Western Region, was created and this was the former Mid-Western Region, which became what is now known as the Bendel State. Throughout all these periods, except for minor adjustment of boundaries, where small areas were excised from some regions, the original boundaries which were formerly provinces, and later divisions remained unaltered.

Local governments were created in the regions. In January 1966, military administration took over the government of Nigeria. By virtue of the States (Creation and Transitional Provisions) Decree No. 14 of 1967, the Federation of Nigeria was divided into twelve states viz six states out of the former Northern Region, three states out of the former Eastern Region, Western and Mid-Western Regions remained unaltered and Lagos remained the capital. The area constituting the East-Central State is described as the present Eastern Region (excluding Calabar, Uyo and Ogoja Provinces and the Ahoada, Brass, Degema, Ogoni and Port Harcourt Divisions). The Rivers State areas comprised Ahoada, Brass, Degema, Ogoni and Port Harcourt Divisions.

In 1976, by Decree No. 12, the Federation was further divided into 19 States by virtue of states (Creation and Transitional Provisions) Decree 1976. It is significant that whilst Ukwa remains as part of Imo State, the following areas, Tai Eleme, Bori, Okrika and Bonny were made parts of the Rivers State. This would be shown later as the reason behind the remarks quoted in the Government White Paper of 1976 which will be referred to later in dealing with other areas of Imo State, its constituent included inter alia:

“Part of Ukwa”

The case of the plaintiff is that by construction of the Constitution of 1979, which came into operation on 1st October, 1979, Ukwa Local Government Area still forms part of Imo State. Historically, Ukwa comprises of Ndoki and Asa County Council Areas and these areas, the subject of the claim, comprised all the 17 villages named in the first and second claims. All of them are now merged with the Rivers State. When Imo State was created in 1976, out of the former East Central State, which area originally was part of the Eastern Region of Nigeria (better called Eastern Nigeria) the territorial area called Ukwa, fell within the Imo State. The whole of the Ndoki County Council and ASA County Council were therefore in Imo State.

Learned counsel, therefore, contends that so far as the present Constitution is concerned, the area of Imo State has never been split, nor, was any of the areas merged with the Rivers State. He then referred to an area called Otega in the constituent local government areas of the Rivers State, and submitted, that this did not mean or constitute any known geographical area.

The defendant, on the other hand, contended that when Imo State was created in 1976, it was only “part of Ukwa” that formed part of the areas within that State.

Reliance for this was placed on the Government White Paper, titled, “Federal Military Government views on the Report of the Panel on Creation of States”, to which was attached a Schedule, setting out the local government areas of each State.

Under item 11 is set out the local government areas constituting Imo State. The last division was then described as “part of Ukwa”. This was what the Federal Military Government accepted and approved, and thus, therefore, the question which remains for consideration is what part of Ukwa has been excised. May be it is relevant to quote this comment of the Federal Military Government dealing with Rivers State in paragraph 92 which reads inter alia:

”The Panel’s other recommendations should also be accepted that the Rivers State should remain as it is subject to the minor boundary adjustment proposed”.

The Nasir Boundary Adjustment Commission was later appointed and its recommendation under “The Ndoki Areas in Rivers State, Cross River State and Imo State” was published in the White Paper titled, “Federal Military Government’s Views on the Reports of the Boundary Adjustment Commission “. Paragraphs 6 and 7 are relevant. They read:

“6. The Ndoki Clan straddles three States Imo, Rivers and Cross River – with the bulk of the Clan living on either side of the Imo River in the Imo State.

The Commission found that the Ndokis have consistently been treated as a minority. The bulk of the people living south of the Imo River were more inclined to accede to the Rivers State but the creation of the Imo State appeared to have changed several minds in favour of remaining in Imo State;

7. Besides there was the issue of peace and stability in the area. The Commission was convinced that the situation in this area was unstable and could easily get out of hand. In the circumstances, it felt that consideration of stability should transcend the wishes to keep all the Ndokis under one State.

Adoption of Imo River as the natural boundaries in this area, while having the effect of leaving some of the Ndokis in the Imo and Cross River States, would enhance stability. The commission accordingly recommends that the Imo River should be the boundary in this area between the two States”.

It is therefore clear, that the Federal Military Government, in accepting this recommendation, decided, that the Imo River should form the natural boundary between Imo and Rivers States in respect of such part of Ukwa that is, Ndoki areas, as fall within the Rivers State. On examination of all the plans tendered in this case, all the 17 villages of Ndoki and Asa fall within the Rivers State south of the Imo River. Imo River has never formed a boundary between Imo and Cross River States. Plaintiff has submitted that under Edict No. 8 of 1976, which established the local government of Rivers State, there were only 9 spaces provided in the Schedule for the local governments to be created within that State. Learned counsel therefore contended that the creation of the 10th local government was ultra vires. This point can easily be dismissed; there is no provision, whatsoever, in the Edict limiting the number of local government areas that can be created under the Rivers State Local Government Edict.

In the 1979 Constitution in the First Schedule, Part 1, there is set out the 19 States of the Federation. In the second column, setting out the areas under Rivers State, is the 10th local government area, named Otega. This name is derived from the provisions of the Constitution of the Federal Republic of Nigeria (Amendment) Decree 1979 No. 104 section 9(2) of which reads:

“In the Second column of the entries in the said Schedule relating to Rivers State, there shall be inserted an additional entry i.e. ‘Otega’.”

As was deposed to in evidence before us, the word Otega or (Otelga) is the name of the Okrika, Obigbo, Tai-Eleme Local Government Area which is otherwise spelt Otega.

As an alternative to the plaintiff’s case in the first part of the submission, based on paragraph 15 of the Statement of Claim, it is averred:

“15. Further and in the alternative, the plaintiff states that if (as plaintiff will contend) the court decides that in interpreting the true meaning and effect of the provisions of the First Schedule to the Constitution it is permissible to consider extraneous evidence such as:

a. Boundary Adjustment Problems identified by The Irikefe Panel on Creation of States;

b. Report of the Boundary Adjustment Commission;

c. Government Views on the Report of the Boundary Adjustment Commission; or other extraneous evidence, the plaintiff will rely on the averments in paragraphs 16 at 23 hereof.”

The averments in support of these alternative contentions are set out in paragraphs 16-23. As earlier on stated the submission of learned counsel for plaintiff, with regard to the local government council areas, that is the Local Government Edict of Rivers State NO.8 of 1976, that the Rivers State Government is precluded from creating a 10th local government cannot be sustained. There is no such express provision. He further submitted that the Nasir Boundary Adjustment Commission Report, and the Government White Paper thereon, dealt with Ndoki areas and nothing was said about Obigbo. He suggested as a reinforcement of this argument, that the Imo River must be regarded only as a natural boundary between Imo and Cross River States. With respect, this submission is against the con of the acceptance and approval given to the recommendation by the Federal Military Government. It is quite clear that the Imo River was accepted and acted upon, as the natural boundary between the Imo and Rivers States. On that ground Obigbo therefore falls clearly within the Rivers State as well as the Ndoki areas in the Report.

Minutes of a meeting on 16th May, 1977 between:

a. Chief of Staff (Supreme Headquarters);

b. His Excellency, Col. P.O. Omu – Military Governor of Cross River State;

c. His Excellency, Commander Kanu – Military Governor of Imo State;

d. His Excellency, Col. Samani Lekwot – Military Governor of Rivers State,

on Boundary Adjustment Implementation and Problems, were tendered as exhibits D38 to D41 of defendant’s documents and admitted in evidence.

At page D40 the decision taken reads:

“Imo and Rivers States”

iv. The Ndoki Areas

The problem here was to determine whether some Asa towns and villages form part of the Ndoki areas which should be administered by the Rivers State. It was agreed that the Imo River as indicated in the White Paper is the natural boundary between Imo and Rivers States and consequently the Asa towns and villages even where the inhabitants are not of Ndoki stock, should be administered by the Rivers State”.

3. In his closing remarks, the Chief of Staff thanked the Governors and urged them to work together to ensure that there were no problems in implementing Supreme Military Council’s decisions regarding boundary adjustments”.

In conformity with those decisions R.S.L.N. No. 18 of 1977 established the “Bonny Local Government Authority” by instrument and the areas were:

1. Andoi
2. Bonny
3. Okrika
4. Opobo

and by R.S.L.N. No. 19 of 1977 ”The Bori Local Government Authority” was established by instrument dated 13/5/77 and the areas are:

1. Bori
2. Khama
3. Obigbo
4. Tai-Eleme

In further consideration, and on the approval of the Federal Military Government, a 10th Local Government Area was established by reconstituting from the then existing 9 Local Governments of Rivers State a re-grouping of three areas made up of:

i. Okrika

ii. Obigbo, and

iii. Tai-Eleme

and by instrument dated 6/9/79, in exercise of the powers conferred on him, the Military Administrator, then His Excellency Commander S. Sa’idu who gave evidence before us, established the “Okrika, Tai-Eleme, Obigbo” Local Government, and, in the handwriting of this witness, the Local Government was styled as “Otelga”. By Decree No.104 of 1979 to which reference had earlier been made, this 10th Local Government Area was added to the areas of territorial limits of the Rivers State but the spelling omitted the letter ‘L’.

25 The plaintiff filed a reply and joined issue on the creation or establishment of the 10th Local Government Area. I wish first to emphasize that no objection was raised, that all the areas which constituted the new local government area had all been previously in the Rivers State, before the 1st October, 1979.

The reply filed by the plaintiff averred inter alia:

a. that although instrument establishing Otelga was signed and validly made on the 6th September, 1979 with effect from 1/9/79, it was not published as a legal notice until after 1/10/79 and that after such subsequent Legal Notices, i.e. No. 30 of 1980; No. 31 of 1980 and No.32 of 1980 were each illegal, unconstitutional and of no effect whatsoever;

b. that the instrument establishing the Bori Local Government, i.e. R.S.L.N. No. 19 of 1977 in so far as it purported to include Obigbo within its area was ultra vires and illegal.

On these averments learned counsel’s attention was drawn to the instruments creating the local government councils of Bori and Bonny in 1977, and Otelga in 1979, and the consequential provision of section 6(6)(d) of the Constitution of the Federal Republic of Nigeria. The establishment of the Local Governments especially that of Otelga cannot, to the extent provided by that section, be questioned as being unconstitutional, illegal and of no effect nor that of Bori as ultra vires. It may be pointed out that the publication of the Legal Notices of 1980 has no effect whatsoever on their establishment, because Otelga – Okrika, Tai-Eleme, Obigbo – Local Government Area had been validly and effectively established on 6/9/79 and for the purpose of this case such notices are quite irrelevant. All that this case is concerned with is that a 10th Local Government Area was validly included in the Constitution of Nigeria 1979 with regard to the territorial limits of the Rivers State.

I wish to comment on the great assistance which His Excellency Chief Mbakwe gave to the court in his evidence on the Irikefe Panel on Creation of States and Nasir Boundary Adjustment Commission. He appeared before those panels, in his private capacity as a legal practitioner, and argued the case of Imo State. He conceded the merger of some areas of Imo State to the Rivers State, but in his own opinion, it was due to inexperience in administration and insensitive military discipline of those who were in charge of these two States as Governors and later Military Administrators.

He also conceded that the area Obigbo has assumed some importance, because of the discovery of oil in the area. That, basically, may be said to have encouraged this suit. On the other hand, I am also grateful to the former Military Administrator of Rivers State, Commander S. Sa’idu, for the assistance which he also gave to the court in this matter, in setting all records right. It is to be hoped that the conclusion that has been reached in this matter will be of some satisfaction to both sides.

In view of all that had been said above, it is quite clear that the plaintiff’s claims cannot succeed and are therefore dismissed. I will, in the interest of a continued friendly relations between the two States, make no award as to costs.

FATAI-WILLIAMS, C.J.N.: I agree with the judgment which has just been delivered by my learned brother, Justice Sowemimo, J.S.C. Having had the advantage of reading the judgment in draft, for the reasons which he has given therein, I too would dismiss the plaintiff’s claims in their entirety. I also agree with the order made as to costs.

In accordance with the provisions of section 258 subsections (2) and (3) of the Constitution of the Federal Republic of Nigeria 1979, I would also pronounce the opinion of the late Justice Idigbe that the claims should be dismissed for the reason stated by Justice Sowemimo in his judgment. The late Justice Idigbe was a member of the panel which heard the case and which later agreed that the claims should be dismissed for those reasons.

Subsections (2) and (3) of section 258 of the Constitution to which I have referred read:

“2. Each Justice of the Supreme Court or of the Federal Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion-

Provided that it shall not be necessary for all the Justices who heard the cause or matter to be present when judgment is to be delivered, and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

3. A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its member’. (Italics mine)

To my mind, the phrase “may be pronounced” used in subsection (2) above can only mean, in the con, ”to utter, speak, declare aloud, or proclaim”. Moreover, since the phrase is obviously intended to distinguish what “may be pronounced” from what “may be read”, what is pronounced cannot be the same as what is read from a typewritten or handwritten script. It must mean, and I so hold, what is orally proclaimed or declared aloud from personal knowledge.

In view of the interpretation which I have put on the phrase “may be pronounced”, I also hold that any of the Justices of the Supreme Court who heard any cause or matter can, after a decision has been arrived at by all the Justices, pronounce the opinion of another Justice who, for one reason or another, is unable to reduce his opinion into writing or be present when the judgment in the case is being delivered by each of the other Justices.

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SC.82/1982