Attorney-general Of The Federation V. Attorney-general Of Abia State & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N.

Pursuant to the provisions of Order 3 rule 3 of the Supreme Court Rules, 1985, the Attorney-General of the Federation filed a statement of claim in this court in order to commence proceedings in the original jurisdiction of this court under section 232 of the Constitution of the Federal Republic of Nigeria 1999, against the thirty six Attorneys-General of all the States of the Federal Republic of Nigeria. The statement of claim avers as follows:-

1. The plaintiff is the Attorney-General of the Federation and brings this action as the representative of the Government of the Federal Republic of Nigeria.
2. The 1st to the 36th defendants are the Attorneys-General of each of the 36 States which along with the Federal Capital Territory Abuja, comprise the Federal Republic of Nigeria. Each defendant is sued as the representative of the Government of each state.

3.Section 162(1) of the Constitution of the Federal Republic of Nigeria, 1999 (hereafter referred to as “the Constitution”) provides that the Federation shall maintain a special account to be called” the Federation Account” into which shall be paid all revenue subject to certain exceptions which are not material to this case collected by the Federation.

4. Pursuant to the provisions in section 162(2) of the Constitution and subject to certain conditions therein specified, the President of the Federal Republic of Nigeria is required to table before the National Assembly proposals for revenue allocation.
5. By a proviso to the aforementioned section 162(2) of the Constitution, the principle of derivation must be reflected in any approved formula for revenue allocation.
6. The plaintiff states that in the con of section 162(2) of the Constitution the expression “principle of derivation” means the principle that revenue accruing to the Federation Account from any natural resources shall be deemed to have been derived from the State or territory where such resources are located.
7. The plaintiff further states that the proviso to section 162(2) of the Constitution requires that any approved formula for revenue allocation from the Federation Account shall reflect the fact that not less than 13% of revenue accruing to the said federation account from any natural resources are allocated to the Government of the State or territory where such resources are located.
8. By reason of the facts pleaded in paragraphs 5, 6 and 7 of this statement of claim, the plaintiff states that for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from any State or territory pursuant to the proviso to section 162 of the Constitution:-

(a) The natural resources located within the boundaries of any State are deemed to be derived from that state;

(b) In the case of the littoral States comprised in the Federal Republic of Nigeria (i.e. the States of Akwa-Ibom, Bayelsa, Cross River, Delta, Lagos, Ogun, Ondo and Rivers) the Seaward boundary of each of the said States is the low water mark of the land surface thereof or (if the case so requires) the seaward limits of inland waters within the State;

(c) The natural resources located within the territorial waters of Nigeria and the Federal Capital Territory are deemed to be derived from the Federation and not from any State;

(d) The natural resources located within the Exclusive Economic Zone and the Continental Shelf of Nigeria are subject to the provisions of any treaty or other written agreement between Nigeria and any neighbouring littoral foreign State, derived from the federation and not from any State.

9. In further support of the averments in paragraph 8 of this statement of claim the plaintiff will contend at the trial of this action that under the provisions contained in the Constitution it is only the Federal Government of Nigeria and not the Government of any of the States comprised in the Federal Republic of Nigeria that has power to:-

(i) exercise legislative, executive, or judicial powers over the entire area designated as the “territorial waters of Nigeria” pursuant to the provisions of the Territorial Waters Act, Cap. 428, Laws of the Federation of Nigeria 1990, as amended.

(ii) exercise any of the sovereign rights exercisable by Nigeria over the entire area designated as the “Exclusive Economic Zone” pursuant to the provisions of the Exclusive Economic Zone Act, Cap. 110, Laws of the Federation of Nigeria, as amended.

10. The States of Akwa-Ibom, Bayelsa, Cross River, Delta, Lagos, Ogun, Ondo and Rivers dispute the averment of the Federal Government of Nigeria as pleaded in paragraph 8 hereof and claim that natural resources located offshore ought to be treated or regarded as located within their respective States.

WHEREUPON the plaintiff claims:-

A determination by this Honourable court of the seaward boundary of a Littoral State within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from the State pursuant to the proviso to section 162(2) of the Constitution of the Federal Republic of Nigeria, 1999.”

All the defendants except the 29th and 30th have filed statements of defence.

Eleven out of the 36 defendants have raised preliminary objections in their statements of defence challenging the jurisdiction of this court to hear the suit. These are the 1st, 3rd, 4th, 6th 9th, 10th, 11th, 12th, 27th, 28th, and 32nd defendants. The grounds of the preliminary objections varied. They however include the following:-

(1) That the suit is academic, frivolous, vexatious and speculative;