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

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. That upon the creation of Ekiti State on 1st October, 1996, I served the new State as its first Attorney-General and Commissioner for Justice from 1st October, 1994 till 21st November, 1997 when I left the service to return to my professional practice.
3. That because the Government of Ekiti State had seven ministries on inception and there were four commissioners of Ekiti State Origin serving in the seven ministries, I also functioned as Commissioner for Education, Ekiti State from 1st October, 1996 till 21st November, 1997.
4. That between November, 1996 and November, 1997, I was also the leader of the Ekiti team on the Joint Assets and Liabilities Sub-Committee responsible to the Federal Government Assets and Liabilities Committee and I was involved in the exercise of sharing of the assets held by the old Ondo State as at 30th September, 1996 between the plaintiff and defendant.
5. That in all these capacities, I became very familiar with the facts and circumstances relevant to this case.
6. That I have the authority and consent of the Government of Ekiti State to swear to this affidavit in further opposition to the claims of the plaintiff in the case.
7. That the defendant was created out of what used to be known as Ondo State by announcement by the Head of State and Commander in Chief of the Armed Forces to the Federal Republic of Nigeria, General Sani Abacha in his broadcast to the nation on 1st October, 1996.
8. That subsequently a Decree was promulgated by the Federal Military Government headed by General Sani Abacha to give legal backing to the creation of Bayelsa, Ebonyi, Ekiti, Gombe, Nasarawa and Zamfara States.
9. That following the creation of the states, Military Administrators were appointed for the new states and sworn in by the Head of State and Commander-in-Chief of the Armed Forces.
10. That on 13th October, 1996, the new Military Administrator for Ekiti State Lt. Col. Mohammed Inua Bawa arrived at Akure and was met on arrival by the Military Administrator for Ondo State Navy Captain Anthony Onyearugbulem, who introduced the four commissioners in his cabinet from Ekiti State, (including myself) to him as those who would join him in forming the foundation of the new administration in Ekiti State.
11. That the two Administrators formally met the members of the cabinet of the Ondo State and at that meeting, Navy Captain Onyearugbulem in my presence assured the new Administrator of Ekiti State that in view of the policy of the Federal Military Government not to give new states any take off grants, he would make available to the Ekiti State Administrator sufficient proportionn of the human and material assets of the old Ondo State to enable him have a smooth take off pending the formal arrangements for the sharing of the assets of old Ondo State between Ondo and Ekiti States for which the Federal Military Government promised to set up its own assets sharing committees for each of the new States and the old States from which they were created.
12. That in my presence, Col. Mohammed Inua Bawa, the Administrator for Ekiti State thanked Navy Captain Onyearugbulem for his encouraging words, complaining about the new policy of not giving take-off grants and expressing hope that the promised early setting up of committee to share assets between the old and new states would be carried out expeditiously.
13. That in keeping with this promise, Navy Captain Onyearugbulem made available necessary human resources by the deployment to Ekiti state of personnel necessary for immediate take-off of Ekiti State, mostly indigenes of the new state.
14. That furthermore, he directed that some movable assets, including cash, vehicle, office furniture and equipment be made available to Ekiti State and proper inventory therof taken so that they could be taken account of when Assets and liabilities Sharing Committee arrived to do its wok.
15. That later in October, 1996, the Head of State and Commander-in-Chief of the Armed Forces of the Federation of Nigeria set up a committed of five persons to inter alia “articulate acceptable formula for the sharing of all assets and liabilities between the affected states.”
16. That the same committee was assigned the responsibility of sharing the assets of Rivers and Bayelsa States as well as Ondo and Ekiti States.
17. That Air Commodore A. Salihu was the Chairman of the Committee while Dr. Adamu M. Fika was the Secretary and the other members were M.B.A Mbah, Hajia Aisat Abduraman and Engineer S.A Ashon Imerea.
18. That on the 18th of November, 1996, members of the committees arrived at Akure and held an inaugural meeting with the Administrators of the two states at the Ondo State Executive Council Chambers. I and other members of the Executive Councils of Ondo and Ekiti State as well as the Secretaries of the Governments of the two States were in attendance.
19. That that day the Federal Assets and Liabilities Sharing Committee gave guidline covering all conceivable assets to be shared which guideline were attached to their letters to the Administrators a copy of which has been attached to Exhibit EK 1 to the affidavit of L. B. Ojo sworn to on 2nd August, 2000.
20. That during the assets and liabilities sharing exercise, a copy of the gazette containing the Decree 1996 was available to guide the Federal Assets and Liabilities Sharing Team and the joint committee of the two states on the terms to be shared and the ones to leave out.
21. That the joint committee discussed in particular the provisions of section 7(1) of the Decree and sought clarification as to the intention of government in promulgating that sub-section, from the Federal Government committee members.
22. That the Chairman of the Assets and Liabilities Sharing Committee told us that the intention of Government as outlined to the committee by the Head of State was that all immovable assets and chattels of all statutory corporations, i.e. all bodies created by the laws of Ondo State before 30th September, 1996 should be shared to the state where it was located at that date so that those in Ekiti area would remain in Ekiti State while those in Ondo area would remain vested in Ondo State.
23. That at the joint committee level, I and the Attorney General of Ondo State also explained to the other members of the committee that in the sharing of the assets of all statutory corporations created by and under the laws of Ondo State, we were to ensure that those immovable assets and chattels located within Ekiti State up to 30th September 1996 would remain vested in Ekiti State while those in Ondo State area would remain vested in Ondo State.
24. That this provision and the explanation of the intention of government in enacting it as well as its interpretation as given to the committee by the Attorneys General of the two states guided the work of the joint assets and liabilities committee and its technical sub-committee which ensured due compliance with it, even when compliance with it distorted the sharing ratio agreed by the committee, and directed to be applied and actually applied to other assets outside those of these statutory corporations.
25. That some of the Statutory corporations which were given special treatment in the sharing of their assets because of the provisions of section 7(1) of Decree No. 36 of 1996 were:

(a) The Ondo State Housing Corporation where its Housing Estates at Oke-Ila,Ado- Ekiti was taken over by Ekiti State while its estates at Ijaro and Oba- Ile in Akure remained vested in Ondo state irrespective of the values of the assets vis-a-vis the agreed sharing formula.

(b) The Ondo State Primary Education Board in which the small area office in Ado became the take off office of the Ekiti State Primary Education Board while the gigantic building housing its state headquarters at Akure remained vested in the Ondo State government without the relative values of the assets being taken account of for the purpose of their sharing.

(c) The Ondo State Library Board which had its branch library at Ado Ekiti vested in Ekiti State while the headquarters library at Akure and other branch libraries elsewhere in Ondo State became vested in Ondo State without any rehard to their values vis-a-vis the sharing formula.

(d) The Ondo State Civil Service Commission which had all its immovable property at Akure and all of them remained vested in Ondo State without regard to the sharing arrangement in respect of other assets of the Ondo State Government apart from Statutory corporations.

(e) The Ondo State Health Management Board which had all its hospitals health centres training institutions and zonal offices in Ekiti States and all the equipment therein vested in Ekiti State while all those in Ondo State and all Ondo state remained vested in Ondo State without regard to their relative values vis-a-vis the sharing formular.

(f) The Ondo State Teaching Service Commission which had all its immobavle properties in Ondo state and none in Ekiti State had nothing to vest in the government of Ekiti State irrespective of the sharing arrangement.

(g) The Ondo State Local Government Service Commission had its head office in Akure and offices or other immovable properties in Ekiti State and the Ekiti State government had nothing vested in it while all the immovable property situate in Ondo State remained vested in the government of Ondo State irrespective of the sharing arrangement in respect of other assets.

(h) The Ondo State afore station project multi-billion naira industry, being a project established by a law of Ondo State in collaboration with foreign bodies including the World Bank had all its industrial establishments, forest reserves and offices at Epemakinde in Ondo State and no immovable or other assets in Ekiti State and all these remained vested in Ondo State with nothing shared to Ekiti inspite of the sharing arrangement for assets and liabilities.

(i) The Ondo State Agricultural Development Project had its head office at Akure and zonal offices at Owo, Ondo, Ikare, and Okitipupa in Ondo State as well as Ado-Ekiti and Ikole in Ekiti state. The immovable assets in Ekiti State were vested in the government of Ekiti State while all the immovable assets in Ondo State remained vested in Ondo State irrespective of their valuation vis-a-vis the sharing formula.

26. That in all these instances of properties of statutory corporations, the government of Ekiti state raised issues with the Federal Government assets sharing committee members and the Ondo States representative on the joint committee about the lopsidedness in the relative values of the assets of these statutory corporations with most of them in Ondo State and very little in Ekiti State but the Federal Assets Sharing Committee and the Ondo State representatives on the committee maintained that there was nothing that could be done about it in view of the provisions of section 7(1) of Decree No. 36 1996 and the guide lines issued by the Federal Government to implement the Decree in respect of statutory corporations.
27. That the plaintiff in this case, the Attorney- General of Ondo State was a member of the joint committee which took the decisions and so was the director of civil litigation of Ondo State who is the deponent to the affidavit in support of this summons.
28. That the Federal Assets and Liabilities sharing committee representatives of Ondo and Ekiti States gave the statutory bodies created by and under the laws of Ondo State a special treatment in the sharing of the assets and liabilities of the government of Ondo State in obedience to the provisions of section 7(1) of Decree No.36 of 1996 and carried out detailed sharing of other assets without such special treatments as was accorded to those of the statutory bodies
29. That in relation to the assets of limited liability companies, the Federal Government appreciated that the interest of Ondo State in them were to be shared within the provisions of Decree No. 36 of 1996 and gave guidelines for the sharing which was carried out by the Federal Assets and Liabilities Sharing Committee and the two states with the assistance of a consultant, appointed by the joint committee as reflected in Exhibit EK 2 to the counter affidavit of L.B. Ojo.
30. That the consultant who carried out the exercise on behalf of both States and made recommendations which guided the decision of the committee was an indigene of Ondo State.
31. That the terms of the sharing arrangement were respected and implemented by the two states until the civilian administration came into office and the Ondo State government excluded the nominees of Ekiti State from participation in the running of the companies, and there was disagreement on the running of tertiary institutions.
32. That for the purpose of implementing the decisions of the Assets and Liabilities Sharing committee, ministerial committees comprising equal representatives of Ondo and Ekiti States were set up at the level of each ministry to effect the physical sharing and these committee made detailed returns to the Joint Assets and Liabilities Committee.
33. That all the sharing items were immediately taken over by the states to which they were shared and such items as alum and chlorine for water treatment, school chalks, agriculture chemical, typing sheet, computer papers, duplicating ink and papers, photo-copying papers, drugs and dressing, petrol, diesel, lubricants, Carbon papers, etc. were shared and each state has since used up these consumables.
34. That such item of equipment as motor vehicles, office typewriters, duplicating machines, architectural drawing boards, computer sets and software, generating plants, survey equipment, Library books, hoes, cutlasses, tractors, commercial buses, trailers, motor cars, including those in Saudi Arabia and Jerusalem for pilgrimages and at the liaison offices in Lagos, and Kaduna have since been shared and used by the states to which they were given.
35. That at the end of the exercise, all the members of the joint committee expressed satisfaction with the exercise in their report to the Military Administrators of the two states as shown in Exhibit EK 2.
36. That the joint committee headed by the Ondo State Commissioner for Finance and having its Attorney-General and its Secretary to the Government as members said at page 9 of its report:

“We are happy to place on record that the exercise which started on an acrimonious note, with both sides maintaining extreme positions on issues, has ended on a very happy, co-operative and collaborative posture, as reflected in the recommendation on the tertiary institutions, companies and some other area of joint endeavours.”

37. That in concluding their report, the joint committee comprising key functionaries of the two states wrote:

“We are convinced that the recommendation contained in this report on some of our public undertakings and ventures could form the basis of continuing socio-political harmony between the two states.”

38. That the governments of the two states accepted the recommendations and faithfully executed it until sometime late in 1999 when disagreements surfaced in connection with the management of Ondo State Investment Company and its subsidiaries.
39. That the plaintiff did not disclose to this honourable court the following facts about the issues involved in this case in relation to the limited liability companies which is leg (iii) of its claim before this court.

(a) That there is a pending litigation between the two States in respect of the shares held by Ondo State in companies incorporated under the companies and Allied Matters Act; as at 30th September, 1996.

(b) That the plaintiff herein has contended in that case that the Federal High Court before which that case is pending has no jurisdiction to hear the matter and that is the Supreme Court which has such jurisdiction.

(c) That the Federal Court determined that the matter being one dealing with the management and operation of a company or companies incorporated under the Companies and Allied matters Act, it is within its jurisdiction to the exclusion of the Supreme Court which it held has no original jurisdiction in the matter.. A copy of the ruling of the court is attached herewith as Exhibit EK 8.

(d) That the plaintiff thereafter appealed to the Court of Appeal where the appeal is still pending (copy of notice of appeal has been exhibited to the counter-affidavit of L.B. Ojo as Exhibit EK 5.)

(e) That the plaintiff herein later filed an application for the Federal High Court to refer the matter to the Supreme Court for a decision on the issue of the relative jurisdictions of the Federal High Court and the Supreme Court. A copy of the application is attached herewith as Exhibit EK 9.

(f) That the defendants herein objected to the application for reference on the grounds that the Federal High Court having decided that it is the proper forum and the appeal on the issue being still pending in the Court of Appeal, it was an abuse of the process of the to seek reference to the Supreme Court other than through the process of an appeal from the decision of the Court of Appeal.

(g) That the plaintiff withdrew the application only to come to this court to raise the same issue by way of originating summons.

(h) That the plaintiff herein has, in a preliminary objection to the competence of the winding up proceeding before the Federal High Court Akure contended that the defendant herein has no interest in the companies as all the shares belong to it. The court held that the defendant herein had disclosed sufficient interest in the companies to clothe it with locus standi to file a petition in respect thereof. A copy of the ruling is attached herewith as Exhibit EK 10.

(i) That in that court, the plaintiff herein had contended that it was entitled to all the shares in the companies by virtue of section 7(1) of Decree. No. 36 of 1996 and the court had rejected that contention.

(j) That all other issues in relation to other properties other than the Ondo state Investment Holding Company and all its associated or subsidiary companies which is subject of litigation in the Federal High Court had been settled and in most cases each state has got what was shared to it and used it as it wished.

(k) That it is the dissatisfaction with the decisions of the Federal High Court that led the plaintiff herein to bring an originating summons before this court to determine the issues that have been determined or are still pending for determination before the Federal High Court.

40 That in respect of Owena Bank Plc and the Confidence Insurance Plc, both States have their representatives on the board of the companies to succeed to the interests formerly held by Ondo State in the companies and when the share capitals were to be increased, both states decided to invest more in the companies to meet up with the equity participation proportion formerly held in the company by Ondo State, vis-a-vis other subscribers.

41. That in respect of properties vested in Ondo State outside Ondo and Ekiti States, there has so far not been any dispute about the sharing of those to be shared and the joint ownership of the one to be jointly owned.
42. That it was decided that both states should jointly protect the interest of old Ondo State in the Owena Towers which is situated at Bourdillion Road, Ikoyi and being managed by a developer who procured a loan from a bank now distressed and had a lien on the property for 12 years.
43. That in furtherance of the decision to jointly own and, managed the property, after the creation of Ekiti State, Ondo State requested Ekiti State to join it in the arbitration proceeding was changed to reflect the joint interest of Ondo and Ekiti State.
44. That the Attorneys-General of the two States jointly fought the arbitration proceedings until an award was made in favour of the two owner states by the Arbitrator.
45. That when the bill for the fees of the Arbitrator was demanded from Ondo State, it requested Ekiti State to pay its own half of the fees and the Ekiti State paid half of it while Ondo State paid half of the fees as joint owners.
46. That a report of the decisions of the Ondo/Ekiti States Joint Assets/Liability Sharing Committee on ownership and management of the investment’s of the Old Ondo State is attached herewith as Exhibit EK.11 particularlly pages 2-3 and 6-7
47. That in respect of the properties jointly owned with other states of the old western region, it was decided that the interests of Ondo State in the properties be succeeded by both Ondo and Ekiti States under the umbrella of the O’dua Investment Company Limited. This arrangement has enabled the two States to participate equally with the other states of Osun, Ogun and Oyo in the management of the O’dua Investment Holding Company and all its subsidiaries.
48. That the only other properties held by Ondo State at 30th September, 1996 is the Ondo State wing of Oduduwa House at Victoria Island, Lagos which houses the Ondo State liaison office in Lagos, the Ondo State Guest House, at Ikeja, Lagos, and the uncompleted building in Abuja.
49. That in realisation of the fact that these are assets of Ondo State the Federal Assets Committee and the joint committee, shared the Oduduwa House to Ondo State and the Guest House at Ikeja to Ekiti State and both parties have implemented this decision without any dispute. The committee decided that the uncompleted building in Abuja be left for Ondo State while Ekiti State should apply for land in Abuja.
50. That I verily believe that from the facts deposed herein the plaintiff is estopped from contending that all the properties of the Ondo State Government held as at 30th September, 1996 should solely be vested in it to the exclusion of Ekiti State.
51. That I also verily believe from the facts stated herein that the action as presently constituted will have the effect of pre-empting the actions now pending before the Federal High Court, Akure and appeal before the Court of Appeal, Benin in relation to the rights of Ekiti State in the shares and the management of all companies registered by Ondo State before 30th September, 1996.”

It should be borne in mind that I decided to reproduce not only the affidavit in support but almost all the paragraphs of both the counter-affidavit and further counter-affidavit above mainly because they are the evidence on which I can base my judgment. I shall mention too that the plaintiff did not find it necessary to file a further and or better affidavit in respect of anything deposed to by the defendant in its counter affidavit and or further counter-affidavit. The proper and only conclusion therefore is that the defendant’s story remained unchallenged and uncontraverted. It is necessary for the court to be appraised of all necessary and material facts for it to be able to properly consider the case of the parties which I believe is what the defendant’s counter-affidavits are intended to achieve. That much is appreciated because without the counter affidavits herein one cannot even really see what the dispute between the parties is, looking at the plaintiffs 6 paragraphs affidavit alone. The counter-affidavits fortunately provided all the missing links in the plaintiffs case. That will lead to Justice. It is proper. I can therefore safely start by saying that I believe the affidavit evidence in this case there being no conflict to be resolved (see Uzondu v. Uzondu (1997) 9 NWLR (Pt.521) 466; Agwuneme v. Eze (1990) 3 NWLR (Pt.137) 242; Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391 and I shall accord them due weight in the judgment.

In compliance with the order of court, the parties filed and exchanged briefs of argument. The plaintiff filed plaintiff’s brief and a reply brief, while the defendant filed defendant’s brief. These briefs were adopted by the parties at the hearing of the suit during which time additional oral submissions were made by counsel to amplify the briefs.

The plaintiff in its brief has made submissions on the four reliefs or claims taken together as contained in the originating summons. The defendant on the other hand has formulated in its brief ten (10) issues or questions as calling for decisions by this court. I would prefer to adopt the plaintiffs approach here and go by the reliefs or claims sought. I will endeavour to try to bring under each relief the relevant question or questions posed by the defendant in respect of that relief. I shall now proceed to do just that. Once again the reliefs sought by the Plaintiffs are.

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

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

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

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

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

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

Section 7 subsection (1) of the States (Creation and Transitional Provisions) Decree No. 36 of 1996 enacts thus:

“7(1) Subject to subsection (2) of this section, any immovable property and any chattel which immediately before the commencement of this Decree, was situate in the area comprised in a new State created by this Decree and was held by a body corporate directly established by an Edict of the Military Administrator of the State out of which the new State is created or an instrument having effect as such Edict shall, by virtue of this section and without further assurance than this section, vest in the Military Administrator of the new State concerned and be held by him for purpose of the Government of that State and no compensation shall be payable in respect of any transfer effected by this section,”

By way of introduction Chief Williams, S.A.N. learned counsel for the plaintiff said that by Decree 36 of 1996 the Federal Military Government created a number of States including the defendant, Ekiti State. That Ekiti State was created by carving out the area comprising that State out of the old Ondo State. That by this legislative action, Ondo State though territorially diminished in size, continued to exist as a juridical entity. That since States comprised in the Federal Republic of Nigeria, were established by the Constitution of the Federal Republic of Nigeria it follows therefore that Decree 36 of 1996 was in reality and in effect an amendment to the Constitution of Nigeria and became part and parcel of the Constitution. Reliance was placed on sections 1, 2 & 3 of the same Decree. I completely agree with these preliminary submissions.

Coming to the interpretation of section 7(1) above, Chief Williams submitted that the subsection transferred property to each of the new States including the defendant Ekiti State, created by the Decree. He said the properties transferred are limited to those mentioned in the subsection, thus:

“any immovable property and any chattel which immediately before the commencement of this Decree, was situate in the area comprised in a new State created by this Decree and was held by a body corporate directly established by an Edict of the Military Administrator of the State out of which the new State is created or an instrument having effect as such Edict.”

He said the provisions are clear and unambiguous and that the properties so transferred do not extend to any movable or immovable property directly owned by Ondo State and that they are limited to only properties:

“held by a body corporate directly established by an Edict of the Military Administrator of the State out of which the new State is created or an instrument having effect as such Edict.” so long as such property is located in Ekiti State.

It was further submitted that because the Decree transfers only property “held by a body corporate … , in the absence of any consideration or material fact which produces some other legal consequences, this Court ought to have no difficulty in entering Judgment for the plaintiff on Claims (i), (iii) and (iv) . It was contended that the counter-affidavits filed on behalf of the defendant to the effect that certain events and or occurrence after the enactment of the Decree had resulted in the sharing of all movable and immovable properties between the parties herein, is untenable because none of the facts and matters contained in the counter-affidavits are capable of enabling any person or authority to transfer property vested in Ondo State as at 30th September 1996, to Ekiti State, otherwise than in accordance with section 7(1) above. That the parties herein cannot contract out of the provisions of section 7(1) relating to the transfer of property to Ekiti State, accordingly, any decision, agreement or arrangement reached or made between the two States or their agents, which are inconsistent with the provisions of section 7(1) cannot stand. That in the absence of any amendment to the Constitutional provisions relating to the transfer of assets to Ekiti State, any agreement or arrangement which are inconsistent with the Constitution as amended by Decree 36 of 1996 are unconstitutional and void as the governments cannot contract out of their constitutional rights. Consequently, no agreement or arrangement can be pleaded to operate as estoppel or waiver against the plaintiff from claiming the reliefs in this suit. The cases of Attorney-General of Bendel State v. Attorney-General of The Federation (1982) 3 NCLR 2, (1981) 12 NSCC 314 at 338 per Fatai-Williams C. J. N., 396 per Eso J.S.C., Ojo Ajao & Ors v. Opaola Alao & Ors. (1986) 5 NWLR (Pt.45) 802; Raimi Oloriegbe v. Omotesho (1993) 1 NWLR (Pt.270) 386 were relied upon.

As I have earlier stated the defendant in its brief has submitted ten (10) questions for decision by the Court. I will only treat such of the questions as I deem relevant to the reliefs sought by the plaintiffs and which I feel will lead to a just decision in the case.

On the interpretation of section 7(1) of the Decree above, Mr. Obafemi Adewale learned Attorney-General for the defendant, submitted that a principle of interpretation is that where the words of a statute are clear and free from ambiguity, they should be accorded their ordinary plain meaning and it will not be necessary to put glosses on them or to read into them meanings which render them artificial. And that if this principle is applied to section 7(1), it will be seen that the plaintiff was not vested with any property or with any interest in property. That it is only the defendant that was vested with property or interest in property of statutory corporations located in

Ekiti State out of properties of statutory corporations created by the laws of the old Ondo State up to 30th September 1996. Reliance was placed on the cases of Attorney-General of Anambra State v. Attorney General of the Federation (1993) 6 NWLR (Pt.302) 692 at 726,732; Egwuamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 35.

He said further that the only inference that may be drawn in favour of the plaintiff is that the properties of statutory corporations which are located in its area, should be vested in it just like those in Ekiti State by operation of section 7(1) (Ibid). It was then submitted that all the properties of the old Ondo state which are not covered by the provisions of section 7(1) would vest jointly in the plaintiff and defendant herein until they are shared out by them or between them as has been done in this case already and disclosed in the counter-affidavits before the Court. We were urged to take judicial notice of the fact that in numerous exercises of States creation in this Country, assets and liabilities of the old States from which new states were created had always been shared among the new states created out of them, and that the plaintiff and the defendant cannot be an exception from this judicially noticed rule of practice since there is no statutory enactment by any competent authority to the contrary. We were referred to the cases of Olowofoyeku v. Attorney General of Oyo State (1996) 10 NWLR (Pt.477) 190; Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (Pt.265) 335 at 362. We were urged to hold that there is no basis for granting the reliefs claimed by the plaintiff on a proper interpretation of section 7(1) (ibid).

On the plaintiffs claim (iii) in particular the defendant contended that there is now a pending appeal by the plaintiff in the Court of Appeal Benin, on the question of which court (the Federal High Court or the Supreme Court) has Jurisdiction to determine the ownership and rights to manage the limited liability companies owned by the old Ondo State government which is a result of the suit commenced by the defendant at the Akure Federal High Court in January 2000 seeking inter alia for a declaration that the companies were jointly owned by the parties herein and that the defendant was entitled to participate in their management. It is therefore an abuse of process when the plaintiff on 6th July 2000 filed this suit in this court seeking for reliefs on the same subject matter pending before the Federal High Court and the Court of Appeal and that the purpose of this suit is to render ineffective the decision of the Federal High Court without pursuing its appeal in the Court of Appeal. The plaintiff could on the other hand have pursued its appeal and ultimately secure the decision of this court on the issues but it chose to commence another action here. That this is a glaring example of bad faith and abuse of court process on the part of the plaintiff which actions this court has a bounden duty to prevent. We were urged to dismiss the claims once again. We were referred to a number of cases including –

Ezegbu v. F.A.T.B. Ltd (1992) 1 NWLR (Pt. 220) 699 at 724; Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 142; Okorodudu v. Okoromadu (1977) 3 SC 21.

It was further submitted that even if the plaintiff would have been entitled to the reliefs claimed, the dictates of public policy or public interest do not favour the granting of the reliefs. That it is a notorious fact that six new states were created by Decree 36 of 1996 and that the properties of the old states from which they were created have long been completely shared out with each state taking possession of what was shared to it and using it as it likes and in many cases even used up. And that the reliefs in this case which are couched in general terms would if granted affect all the other states created by the Decree as they may be called upon to return or refund all or some or any of the assets which had been shared to them. That the confusion which will inevitably result from the bandwagon effect of any judgment which the plaintiff may receive against the defendant in this case, will be far reaching and may not even be limited to the six states created by the Decree alone. That in the circumstances of this case public interest which overrides the interest of the Plaintiff, dictates that the claims be dismissed absolutely. The cases of Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15 at 41. And Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513 at 580 were cited in support.

Now, all the parties are agreed and I agree with them too, that the claims before the court relate to the true interpretation of the provisions of section 7(1) of Decree 36 of 1996. It was as rightly submitted by counsel on both sides a constitutional provision. It is clear to me that although the plaintiff appeared to have couched its claims in such a way that they look like four different claims, the true position is that all the claims directly or indirectly depend on the out come of the proper interpretation of section 7 (1) above as we shall soon see. Put in another way, the reliefs (ii), (iii) and (iv) depend on the success or failure of relief (i).

I have already set out the provision” of section 7(1) earlier on in this judgment. I do not need to repeat it. I say straight away that I agree with Chief Williams and Mr. Adewale that the provisions are clear and unambiguous and that the properties transferred to each of the six new States (including the defendant, Ekiti State) created under the Decree are –

“any immovable property and any chattel which immediately before the commencement of this Decree, was situate in the area comprised in a new state created by this Decree and was held by a body corporate directly established by an Edict of the Military Administrator of the State out of which the new State is created or an instrument having effect as such Edict” (See section 7 (1) ).

It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous effect must be given to them without resorting to any aid internal or external. It is the duty of the court to interpret the words of the law maker as used. Those words may be ambiguous, but even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited (see for example Magor And St. Mellon R.D. C. v. Newport Corporation (1951) 2 All E.L.R. 839, London Transport Executive v. Betts (1959) AC 231, Attorney General of Bendel State v. Attorney-General of The Federation & Ors (1981 ) 10 S. C. 1, (1981) 12 N.S.C.C. 314). Being guided by the above principles of interpretation, it is not difficult for me to see that the property or properties transferred to the Defendant Ekiti State are as provided for tinder section 7(1) as set out above. The transfers in this case are to the new State defendant only. There is clearly no transfer of any property to the plaintiff Ondo State, under the subsection. I have strenuously read through the whole of Decree 36 of 1996 over and over again and I am unable to find any provision anywhere, whereby any property or chattel was vested in the plaintiff as was done for the defendant under section 7(1). What I am saying in short is that section 7(1) does not or did not vest, transfer or give any immovable property or chattel anywhere to the plaintiff as at 30th September 1996 or at any time at all.

There is equally no provision under section 7 or anywhere in Decree 36 of 1996 that the defendant is not entitled to any other immovable property or chattel elsewhere apart from those provided for under section 7(1). That will amount to reading into the section or Decree what is not provided therein. I cannot do that. I repeat that section 7(1) vested no immovable property or chattel in the plaintiff anywhere. That being so claim (1) must therefore fail. It is accordingly dismissed.

Claims (ii), (iii) and (iv) as indicated above naturally flow from claim (i). If as I have held above that the plaintiff is not vested with any property immovable or movable by section 7(1), it follows that it is not competent for it to say that any arrangement, compromise, decision or resolution made between the parties herein are unconstitutional, null and void, simply because according to the plaintiff the parties cannot contract out of the provisions of section 7(1). The compromises or decisions or resolutions in this case are not in respect of properties covered by section 7(1), but in respect of properties not covered or provided for under the Decree and section 7(1) in particular. The same treatment goes for rights, titles or interests in companies incorporated or deemed to be incorporated under the Companies and Allied Matters Act which again are not covered by section 7(1). Claim (iv) clearly in my view presupposes that the plaintiff has properties movable and immovable vested in it by section 7(1). I have already found that no such property was ever vested in it under the subsection, it follows therefore that it has nothing to protect by way of injunction against the defendant as arising by operation of the subsection. Claims (ii), (iii) and (iv) also fail. I hereby dismiss each and everyone of them.

Before I close, let me say this. Clearly section 7(1) vests certain properties in the defendant. It did not vest anything in the plaintiff. So when the plaintiff realised this, if it was a realization at all, the remedy in my view lay in an amending Decree and not by reading the clear provisions of section 7(1) up side down or by trying to insert or smuggle in the plaintiff into the subsection. That is not permissible (see London Transport Executive v. Betts (supra). But I think that much was realised by the parties themselves and the law maker as well. The affidavit evidence which I believe, clearly shows that the then Head of State and Commander-in-Chief of the Armed Forces, set up a Committee to inter alia articulate acceptable formula for the sharing of all assets and liabilities between the States affected by Decree 36 of 1996 (see Exhibit EK. 1). The Federal Assets and Liabilities Sharing Committee worked with a sub-committee made up of equal representation of plaintiff State and defendant State (see Exhibit EK.2). The committee and the sub-committee worked together as a team and arrived at an acceptable formula for sharing the assets and agreed on a proportion of 46% to Ekiti State (defendant) and 54% to ONDO State (plaintiff). The formula was approved by the Head of State and was duly executed in respect of all movable and immovable properties. At the end of the exercise the sub committee members issued a joint report to their respective Military Administrators showing appreciation for the successful completion of the exercise (see Exhibits EK.2 & EK. 11). Evidence shows that this problem or dispute did not start until 29th May 1999 when Military Administration ended and the civilian administration came on board. The plaintiff made it impossible for the defendant’s nominees to participate in the management of certain companies and or ventures jointly owned by them as decided by the Joint Assets and Liabilities Committee.

Assets and Liabilities Sharing Committees have always been known to exist in this country each time new States are created since 1967. These committees have always shared assets and liabilities between the concerned states and consequently decisions, resolutions or agreements are reached or made. Chief Williams now says any agreement or decision contrary to or inconsistent with the provisions of section 7(1) are unconstitutional null and void and of no effect because according to him no government or, individual can contract out of the provisions of the Constitution citing forcefully the case of Attorney-General of Bendel State v. Attorney-General of The Federation & Ors (supra) in support. I agree with Chief Williams that in law no government or individual can contract out of the provisions of the Constitution. But I make bold to say that is if you are a party to the provision of the Constitution in question. The case before us here is not that of “contracting out” but rather that of “contracting in”. Section 7(1) vests no property in the plaintiff anywhere and it will be wrong and unacceptable to give it that meaning which the plaintiff seeks in this suit. Just as the parties cannot contract out of the provisions of section 7(1) as far as the properties vested in the defendant are concerned, so also the plaintiff cannot “contract into” the subsection which vested nothing in it by claiming that it vested something in it. The Plaintiff must not be allowed to “contract in” when it has been clearly “contracted out.”

I say it again that I believe the affidavit evidence in this case. I believe that all the properties of the old Ondo State have been shared between the plaintiff and the defendant with each taking possession of whatsoever was shared to it. At the risk of repetition I reproduce once more paragraphs 20, 21, 22, 23, 24 & 25 of the further counter affidavit as follows:

“20. That during the assets and liabilities sharing exercise, a copy of the gazette containing the Decree, 1996 was available to guide the Federal Assets and Liabilities Sharing Team and the Joint Committee of the two States on the items to be shared and the ones to leave out.

21. That the Joint Committee discussed in particular the provisions of section 7(1) of the Decree and sought clarification as to the intention of government in promulgating that sub-section, from the federal government committee members.
22. That the Chairman of the Assets and Liabilities Sharing Committee told us that the intention of Government as outlined to the committee by the Head of State was that all immovable assets and chattels of all statutory corporations, i.e. all bodies created by the laws of Ondo State before 30th September, 1996 should be shared to the state where it was located at that date so that those in Ekiti area would remain in Ekiti State while those in Ondo area would remain vested in Ondo State.
23. That at the joint committee level, I and the Attorney General of Ondo State also explained to the other members of the committee that in the sharing of the assets of all statutory corporations created by and under the laws of Ondo State, we were to ensure that those immovable assets and chattels located within Ekiti State up to 30th September 1996 would remain vested in Ekiti State while those in Ondo State area would remain vested in Ondo State.
24. That this provision and the explanation of the intention of government in enacting it as well as its interpretation as given to the committee by the Attorneys General of the two States guided the work of the Joint Assets and Liabilities Committee and its Technical Sub-committee which ensured due compliance with it, even when compliance with it distorted the sharing ratio agreed by the committee, and directed to be applied and actually applied to other assets outside those of these and actually applied to other assets outside those of these statutory corporations.
25. That some of the statutory corporations which were given special treatment in the sharing of their assets because of the provisions of section 7(1) of Decree No. 36 of 1996 were:

(a) The Ondo State Housing Corporation where its Housing Estates at Oke-Ila Ado- Ekiti was taken over by Ekiti State while its estates at Ijaro and Oba-Ile in Akure remained vested in Ondo state irrespective of the values of the assets vis-a-vis the agreed sharing formula.

(c) The Ondo State Primary Education Board in which the small area office in Ado became the take off office of the Ekiti State Primary Education Board while the gigantic building housing its state headquarters at Akure remained vested in the Ondo State government without the relative values of the assets being taken account of for the purpose of their sharing.

(d) The Ondo State Library Board which had its branch library at Ado Ekiti vested in Ekiti state while the headquarters library at Akure and other branch libraries elsewhere in Ondo State became vested in Ondo State without any regard to their values vis-a-vis the sharing formula.

(e) The Ondo State Civil Service Commission which had all its immovable property at Akure and all of them remained vested in Ondo State without regard to the sharing arrangement in respect of other assets of the Ondo State Government apart from statutory corporations.

(d) The Ondo State Health Management Board which had all its hospitals health centres training institutions and zonal offices in Ekiti State and all the equipment therein vested in Ekiti State while all those in Ondo State and all Ondo state remained vested in Ondo State without regard to their relative values vis-a-vis the sharing formula.

(f) The Ondo State Teaching Service Commission which had all its immovable properties in Ondo state and none in Ekiti State had nothing to vest in the government of Ekiti State irrespective of the sharing arrangement.

(g) The Ondo State Local Government Service Commission had its head office in Akure and offices or other immovable properties in Ekiti State and the Ekiti State government had nothing vested in it while all the immovable property situate in Ondo State remained vested in the government of Ondo State irrespective of the sharing arrangement in respect of other assets.

(h) The Ondo State aforestation project multi-billion naira industry, being a project established by a law of Ondo State in collaboration with foreign bodies including the World Bank had all its industrial establishments, forest reserves and offices at Epemakinde in Ondo State and no immovable or other assets in Ekiti State and all these remained vested in Ondo State with nothing shared to Ekiti inspite of the sharing arrangement for assets and liabilities.

(i) The Ondo State Agricultural Development Project had its head office at Akure and zonal offices at Owo, Ondo, Ikare, and Okitipupa in Ondo State as well as Ado-Ekiti and Ikole in Ekiti State. The immovable assets in Ekiti State were vested in the government of Ekiti State while all the immovable assets in Ondo State remained vested in Ondo State irrespective of their valuation vis-a-vis the sharing formula.”

That is as it should have been. I venture to say that the provisions of section 7(1) are not exhaustive, and to declare the works or decisions of the Assets and Liabilities Sharing Committee as unconstitutional, null and void as the plaintiff would want us to do, will in my view be tantamount to an act of subversion considering that we have had these committees since States were first created in this country in 1967. It will result in chaos and confusion all over the country. That must not be allowed to happen. The plaintiff is certainly estopped or precluded from contesting the issue of the sharing of assets and liabilities of the old Ondo State which had long been settled with it as a participant. (See Ladega & Ors v. Durosimi & Ors (1978) NSCC 175, (1978) 3 SC 91.

In conclusion the Plaintiffs claims are hereby all refused. They are dismissed. I shall make no order as to costs the parties being sisters and brothers from time preceding the creation in my view even of the old Western Region of Nigeria by the white men. They will remain as sisters and brothers especially now that they have to run certain companies or ventures, jointly together. This is to be encouraged. It is quite possible that this suit which should never have surfaced in the first place, was merely a manifestation of what, if you may pardon me, may be called “executive psychosis” on the part of the plaintiff, which I hope should have by now subsided! Did I hear you say why or how If not, then how do you explain it The evidence is that the plaintiff was also given the equivalent of what the defendant got by virtue of the provision of section 7(1) through the Assets and Liabilities Sharing Committee amongst others. Why then file this suit To deny the defendant everything Or do You just call it bad faith And you will be right! I leave it there.

---

SC.136/2000