Attorney General, Rivers State V. Attorney- General, Akwa Ibom State (2011)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, C.J.N.

The facts of this case are simple and straight forward. These can be gleaned from paras. 4 – 12 of the Statement of Claim which state as follows:

4. The Plaintiff states that upon the Implementation of the Onshore/Offshore Dichotomy Abrogation Law 2004 pursuant to the decision of this Honourable Court in suit No. SC/28/2001 between A.G. Cross Rivers State Vs A.G. Federation a dichotomy separating onshore and offshore production and restricting oil producing states to drawing their 13% derivation funds from revenue produced onshore only was introduced.
5. The Plaintiff avers that the 2nd Defendant thereafter directed its agency- the National Boundary Commission (NBC) to produce maps littoral states to determine the attribution of oil wells based thereon with a view to demarcating the maritime boundaries of littoral states me including the Plaintiff and 1st Defendant.
6. Further to the above, the Plaintiff states that the NBC was directed to submit the maritime maps produced to the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) for purposes of preparing indices for the sharing of the 13% derivation funds to the littoral states on a monthly basis.
7. The Plaintiff avers that upon the drawing up of the relevant maps by the NBC and submission of same to the RMAFC for necessary action, the RMAFC started to receive complaints from littoral states challenging the Boundary Demarcation and one of these complaints was lodged by the 1st defendant.
8. The Plaintiff avers that the complaint of the 1st Defendant was that its boundary with the Plaintiff showed a disputed annexation of a triangular portion of the sea from Akwa Ibom to Rivers State and requested for the application of the Historical Titles Method as against the use of the Strict Technical Equidistance lines method used by the NBC in drawing up the maritime maps on the ground that in accordance with Articles 15 and 7.1 of the United Nations Convention on the Law of the Sea (UNCLOS) 1982, only the Historical Titles Method is applicable.
9. The Plaintiff avers that apart from that Article 15 of UNCLOS 1982, recognizes the Strict Technical Equidistance Lines Method as the applicable method for use in drawing up maritime maps, this Honourable Court in the case of Attorney General of the Federation VS Attorney General of Abia State (2002) FWLR (pt 10) 1 specifically excluded the use of the Historical Titles Method for use in boundary demarcation between littoral states.
10. The Plaintiff avers that sometime in 2006, the 2nd Defendant intervened and the plaintiff and 1st Defendant represented by their respective executive Governors met and agreed to a Political Solution Method which led to the weighting of 50% of the disputed areas comprising 172 oil wells with each of the two littoral states receiving 86 oil wells and the revenue accuring therefrom with effect from November,2006.

This agreement which was reduced into writing and dated 31st October, 2006 will be relied upon at the trial.

11. The Plaintiff avers that it accepted the Political Solution Method Agreement in the interest of peace and stability of the Niger Delta Region and further states that the Agreement which was freely and willingly agreed to by the two states regulated the attribution of the 172 oil wells and 13% derivation funds payable therefrom until the tail end of 2007 when the 1st Defendant unilaterally sought to rescind the agreement and commenced his agitation for the application of the Historical Titles Method contrary to the Supreme Court decision and Article 15 of UNCLOS, 1982 aforesaid.

It is not in dispute was reduced into writing and dated 31st October 2006, It is exhibit AMBI. It is indeed embodied in the letter written by the then President of the Federal Republic of Nigeria, Olusegun Obasanjo. The letters reads: ‘You will recall that I presided over a meeting on the above subject Friday, 27th October, 2006 at the Presidential Villa with Governors of Akwa Ibom and Rivers States present among other stakeholders. You will recall that in the course of the meeting which was to finding a lasting solution to the lingering problems over the oil wells between the three states concerned i.e, Akwa Ibom, Cross River and Rivers, three options were considered viz: Technical Solution, Historical Solution and Political Solution. After exhaustive deliberations, the meeting opted for and upheld the political solution in line with the earlier advice given by the Attorney-General of the Federation and Minister of Justice. Subsequently, a consensus was reached and the meeting agreed on the following sharing formula for the affected oil well with effect 1st November, 2006. (i) Cross River/Akwa Ibom States

(a) Cross River – 70 wells

(b) Akwa Ibom – 14 Wells (ii) Akwa Ibom/Rivers States Akwa Ibom – 86 Wells Rivers – 86 Wells Total Cross River 70 Wells; Akwa Ibom 100 Wells and Rivers 86 Wells. Accordingly, the purpose of this letter is to formally convey the decision reached at the meeting which has brought the matter to a final end for implementation by all concerned with effect from the said date 1st November,2006. OLUSEGUN OBASANJO It can be seen clearly from this letter that the parties have voluntarily jettisoned Technical and Historical Solutions; this is so because these Solutions were considered at the meeting before opting for the Political Solution. The parties faithfully implemented the terms of the agreement till the tail end of 2007 when the 1st Defendant unilaterally sought to rescind the agreement and commenced his agitation for the application of the Historical Solution. Having regard to the nature of the claim before this court the only relevant issue for the determination by this court is simple. It whether the Defendants can unilaterally jettison the Political Solution Agreement agreed between the 2 States and revert to the Historical Solution in demarcating the maritime map of the littoral states contrary to the decision laid down by this court in the case of A.G. Federation v. A.G. Abia State & 35 Ors (2002) FWLR (Pt 10) 1 and provision of Article 15 of UNCLOS:982. The Plaintiff avers that it accepted the Political Solution Method Agreement. So did the Defendants. Each of them received 86 oil wells and the revenue accruing therefrom with effect from November, 2006.

The Presidents letter ended in an emphatic term. It said: ‘Accordingly, the purpose of this letter is to formally convey the decision reached at the meeting which has brought the matter to a final close, for implementation by all concerned with effect from the said date- 1st November, 2006.” As I have already pointed out the parties faithfully implemented the Agreement for sometime before the Akwa Ibom opted out. The agreement it can be seen above, brought the dispute to an end the parties bound by the agreement. The parties estopped by their conduct from disclaiming their Acts. The doctrine of estoppel by conduct, though a common law principle has been enacted into our body of laws as section 151 of the Evidence Act. It is in these terms: “When one person has, by his declaration, Act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief ),neither he nor his representative in interest shall be allowed in any proceedings between himself and such persons representative in interest to deny the truth of that thing.’ Also called stopped in pais, this common law principle, which as shown above has gained statutory acceptance in Nigeria, forbids a person from leading his opponent from believing in and acting upon a state of affairs, only for the former to turn around and disclaim his act or omission. Both the common and statutory law do not permit this conduct; that is why section 151 of the Evidence Act has used the emphatic phrase “neither he nor his representative in interest shall be allowed” This explained better in Ude v. Osuji (1998) 10 SCNJ 75 at 22 thus: ‘The principle of estoppel by conduct is that where one party has by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous, legal relations as if no such promise or assurance bas been made by him. He must accept their legal relation as modified himself even though it is not supported in point of law by any consideration, but only by his word or conduct. See Combe v. Combe (1951) 1 All ER & 69 at 770,’ See also Buhari v. lNEC (2009) All FWLR (Part 459)419 at 517. In the present case, the defendant must accept the legal relations as modified by them in the agreement they voluntarily entered into with the plaintiff. Surely it will be inequitable to permit the defendants to walk out of the agreement which on the evidence before me was not obtained by fraud, misrepresentation or deception. In law, estoppel is an admission or something which the law views as equivalent to an admission. By its very nature, it is not important and conclusive that the party whom it affects will not be allowed to plead against it or adduce evidence to contradict it See Yoye v. Olubode (1974) All NLR 657; Ukaegbu v. Ugoji (1991)6 NWLR (Pt.196) 127 and Koiki v. Magunusson (2001) FWLR (Pt.63)167. In the present case, the defendants are estopped from resiling from the terms of the agreement they entered into with the plaintiff; they are strictly bound by them and yhis court will not allow them either to plead against them or to adduce evidence in their possession against them I must stress here and this is also settled law that if parties enter into an agreement, they are bound its terms. See also Hilary Farms Ltd. V. M/V Mahtra (2007)All FWLR (Pt.390)1417 at 1438. It does not matter in the instant case the defendants have suddenly released that the terms of the agreement they had entered into with the plaintiff are not favourable to them. Thus, Arjay v. Airline Management Support Ltd (2003) FWLR(Pt.156)943 at 990, this court held as follows:

‘It is elementary law that where parties have entered into a contract or an agreement, they are bound by the provision of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions the contract or of the agreement are not favourable to him, This is the whole essence of the doctrine of sanctity of the contract or agreement.” The Defendants in the instant case have, by amassing further evidence, evinced an intention to, after setting aside the terms of agreement, they voluntarily entered into, substantive matter to a logical determination on the merits. This smart move is not sanctioned by the law, Thus in the owners of the M.V, Lupex v . Nigerian Overseas Chatering & Shipping Ltd.(2003)FWLR (Pt.170)14-28 at 1445, this Court held thus: ‘The law is also settled that the mere fact that a dispute is of a nature eminently suitable for trial court is not a sufficient ground for refusing to give effect to what the parties have, by contract, expressly agreed to. See an Application by the Phoenix Timber Company Ltd.(Appeal of V/O Sovfracht (1958)1 Lloyd’s Rep. 305 at 308.’ Akin to this the law of contract which I shall explore to see whether both parties had entered into a binding contractual relation by virtue of the terms or the agreement in question. In the case of a simple contract, the parties, in order to be bound by the agreement, must be ad idem on its terms at the tune of execution; In which case they cannot be allowed to escape from its terms thereafter. In Sparkling Breweries Ltd V. Union Bank of Nigeria Ltd (2001) FWLR(Pt.71 ) 1682 at 1702 this court described how parties to a contract are said to be ad idem thus: ‘Whether or not there is a semblance of a legally binding agreement between the parties, that is, a situation where the parties to the contract confer rights and impose liabilities on themselves will largely depend on whether there exists a mutual assent between them The mutual assent must be outwardly manifested. The test of the existence of such mutuality is objective. See Norwich Union Fire Insurance Society v. Price (1943)A.C.455,p.463, When there is mutual consent the parties are said to be ad idem.’ In the present case, the terms of agreement which I hold to be a valid contract, were reduced into writing; they can only be varied by another agreement also in writing; C.B.N. V. Iguillo (2007) All FWLR (Pt.379) 1385 and John Holt Co. Ltd v. Lafe (1938) 15 NWLR 14. The Defendants have armed themselves with extraneous documentary evidence, not to form the basis of a new or a variation contract, but to form the basis for a judicial determination. The law forbids that and I so hold. No court, a fortiori the Supreme Court, will allow itself to be used as an instrument of bad faith and breach of contractual obligations voluntarily entered into by parties before it. This court will be shirking in its judicial responsibility as the last court of the land if it refuses to intervene to stop party before it from foisting bad faith and subterfuge on the other party or even the court itself. This is a proper case calling for this court’s intervention; because this is a court of justice, where justice is not only to be done but also to be seen to be done the hilt. Before I end this judgment, there is the issue of the preliminary objection raised and filed by the 2nd Defendant. It is to the effect that the Plaintiffs case does not disclose a dispute between a State and the Government of the Federation within the meaning of Section 232 of the Constitution I think the objection is misplaced. It will be seen clearly from the Statement of Claim that the dispute in this action is between the plaintiff and Akwa-Ibom state and the plaintiff and the federal Government represented by the Attorney-General of the Federation, See paragraphs 12,13,17,18,21 and 22 of the Statement of Claim which read as follows:

12. The Plaintiff avers that it accepted the Political Solution Method Agreement in the interest of peace and stability of the Niger Delta Region and further states that the Agreement which was freely and willingly agreed to by the two states regulated the attribution of the 172 oil wells and 13% derivation funds payable therefrom until the tail end of 2007 when the 1st Defendant unilaterally sought to rescind the agreement and commenced his agitation for the application of the Historical Titles Method contrary to the Supreme Court decision and Article 15 of UNCLOS, 1982 aforesaid,
13. The Plaintiff avers that in response to this fresh agitation by the 1st Defendant, it has supplied cogent reasons why the Historical Titles Method (which has never been applicable) was not feasible and requested for the reversal to the acceptable Strict Technical Equidistance Lines Method judicially approved by this Honorable Court in the case of A.G. Federation Vs A,G. Abia State & 35 Ors (supra) and UNCLOS, 1982. The Plaintiff will rely on both the 1st Defendant’s complaint and his response at the hearing
14. The Plaintiff avers that the Defendants particularly the 2nd Defendant acting in concert with the Revenue Mobilization and Fiscal Commission and the Accountant General of the Federation have since jettisoned the Political Solution Agreement and recommended that the President of the Federal Republic of Nigeria approves the report pursuant to which a 2009 Revised 13% Derivation Indices has since been produced by the RMAFC to the detriment of the Plaintiff and in favour of the 1st Defendant. The Revised Indices and the RMAFC letter forwarding it to the Accountant General of the Federation dated 12th March, 2009 will be relied on at the hearing.
15. The Plaintiff avers that as a result of the above facts, the 2nd Defendant through the aforesaid agencies and parastatals have ceded the entire 172 oil wells and have since April, 2009 been paying huge revenue accruing therefrom to the 1st Defendant unlawfully despite the pendency and subsistence of the Political Solution Agreement freely entered into by the 1st Defendant and Plaintiff in 2006, 21, The Plaintiff avers that the Defendants have since jettisoned the Political Solution Agreement unilaterally and reverted to the use of the Historical Titles Method in ceding the entire 172 oil wells to the 1st Defendant thus introducing a new revenue formula without complying with Section 162(2) of the 1999 Constitution. 22, The Plaintiff shall contend that the 2009 Revised Derivation Indices made pursuant to the RMFAC Report 2008 and based on the Historical Titles Method was approved by the 2nd Defendant without the approval of the National Assembly first being sought and obtained pursuant to Section 162(2) of the 1999 Constitution, These paragraphs, in my view, show clearly that the Federal Government was directly concerned and the reliefs sought were all against the Federal Government. The National Boundary Commission and the Revenue Mobilisation Allocation and Fiscal Commission are undeniably the agencies of the Federal Government and the Attorney-General of the Federation as the Chief Law Officer has the capacity to represent them. It is clearly the undisputed right of the Plaintiff to choose the person or persons he wishes to sue. The Plaintiff could have brought this action against the Federal Government. Simiplicter, But it is like. The National Boundary Commission and the Revenue Mobilisation Allocation and Fiscal Commission are the hands and feet of the Federal Government as it relates to their functions in this respect. I think one does not need a magnifying glass to see that they have taken these actions as agents of 2nd Defendant. (Federal Government) In the result the Preliminary objection fails and is overruled, . In the light of foregoing, I hold that the defendants are bound by the agreement between them and the Plaintiff. Consequently I enter judgment in favour of plaintiff in the following terms.

1, The plaintiff is the owner of the 86 oil wells by virtue of the political solution agreement between the plaintiff and the 1st defendant the terms of which are contained in exhibit AMBI and therefore entitled to be paid revenue derivable therefrom under the provisions of the 1999 Constitution from April, 2009 till date and subsequently.

2. The defendants are hereby directed to themselves and/or their appropriate agencies to forthwith compute and calculate all such sums of money accruing from 86 oil wells belonging to the plaintiff by virtue of the subsisting and binding Political Solution Agreement which sums has been unlawfully paid to this 1st defendant with effect from April 2009 till date of this Judgment and payment of all such sums to the plaintiff by the 1st defendant forthwith.
3. There shall be interest at the prevailing commercial rate per annum on the total sums calculated as due the plaintiff from April 2009 till date of this judgment thereafter at 8 percent interest per annum on the judgment debt until full liquidation of the judgment sum and interest
4. I make no order as to costs. A.L.KATSINA-ALU CHIEF JUSTICE OF NIGERIA A.O Okeaya-Inneh SAN with him K. Ibikunle-Awopetu (Mrs) PAGE| 9 O.I. Okeaya-Inneh for the Plaintiff. Paul Usoro SAN with him Chief Duro Adeyele SAN, Augustine Odokwo DCL, M. Udoh, Fola Ojibara, Ayodele Babalola, Gloria Nwamu, J. Abiola, F. Fayokun (Miss) and Joseph Akpan for the 1st Defendant. Audu Anuga with him I Gbashima and Luter Atagher for 2nd Defendant.

SC. 27/2010