Lagos — For the second time in as many weeks, the Supreme Court yesterday ruled on a major constitutional issue when it pronounced judgement in the long-drawn legal tussle between the federal government and the 36 states over the determination of the seaward boundary of a littoral state within the country.

The judgement which has literally helped to structure the Federation Account is coming barely 10 days after the apex court delivered judgement on the vexed issue of the now repealed 2001 Electoral Act.

Delivering the lead judgement in the suit brought by the Federal Government against 36 states of the Federation, Justice Michael Ekundayo Ogundare, on behalf of the Supreme Court, declared that "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 that state pursuant to section 162(2) of the Constitution of the Federal Republic of Nigeria 1999, is the low water mark of the land surface thereof".

In the case of Cross River State which the court acknowledged, had an archipelgo of islands, the apex court ruled that is seward boundary would remain "the seaward limits of inland waters within the state."

This judgement which upholds the case of the plaintiff effectively defeats the arguments of the littoral States that whatever is offshore falls within their states.

Ogundare whose judgement was unanimously assented to by the Chief Justice of Nigeria, Muhammadu Lawal Uwais, Justices Abubakar Bashir Wali, Idris Legbo kutigi, Emanuel Obiora Ogwuegbu, Sylvester Umaru Onu and Anthony Ikechukwu Iguh however stated that the 6th defendant's (Bayelsa) claim (a) succeeds.

There he held "the Constitution of the Federal Republic of Nigeria came in force on 29/5/99, the principle of derivation under the proviso to section 162(2) of the Constitution came into operation on the same day. That is to say, 29/5/99 and the plaintiff is obliged to comply from that date".

What this means is that the Federal government would now be compelled, by law, to pay arreas of 13% derivation beginning from May 29, 1999 when the subsisting constitution came into effect.

To further give direction to the transaction of government business across the various tiers of government, the Supreme Court also declared the following government policies and/or practices of the Federal Government as unconstitutional and being in conflict with the 1999 constitution.

Exclusion of natural gas as constituent of derivation for the purposes of the proviso to section 162(2) of the 1999 Constitution.

Non-payment of the shares of the 10th defendant (Delta state) in respect of proceeds from capital gains taxation and stamp duties.

Funding of the judiciary as a first line charge on the Federation Account.

Servicing of external debts via first line charge on the Federation Account.

Funding of Joint Ventures Contracts and the Nigeria National petroleum Corporation (NNPC) Priority Projects as first line charge on the Federation Account.

Unilaterally allocating 1% of the revenue accruing to the Federation Account to the Federal Capital Territory.

He also granted an injunction restraining the Federal government from further violating the Constitution in the above-mentioned manner.

Ending the judgement, Ogundare, expressed appreciation to all learned counsel who filed briefs and proffered oral submissions for "the tremendous assistance rendered to the Court and which enabled us arrive at what, we believe, to be a just and equitable resolution of the dispute raised in this case.

Analysing the arguments, Ogundare said Chief Rotimi Williams who led the Federal Government was right in stating that the seaward limit of Nigeria is the low - watermark.

"I think Chief Williams is right. I have shown earlier in this judgement that the Imperial Power that created the country Nigeria put as her southern boundary the sea - the Atlantic Ocean. I have also found that where the sea is a boundary, the boundary - mark is the low water mark. The low -watermark, therefore, forms the boundary of the land territory of, not only the eight littoral States of Nigeria, but of Nigeria as well.

"One may then ask the question: what gives validity to such legislation as the Territorial waters Act. Cap. 428, Exclusive Economic Zone Act, cap. 110 and Sea Fisheries Act, cap. 404, Laws of the Federation of Nigeria 1990?

"Chief Williams has submitted that each of these enactments was validly made by the Federal Legislature 'pursuant to its power to make laws for the Federal republic of Nigeria with respect to external affairs.'"

Again he stated that the Convention on the High Seas further debunks the claims of the littoral defendant states in this case to ownership of the land and sea far beyond the territorial sea.

He further pointed out that the Convention on the Territorial sea and the Contiguous Zone grants only limited sovereignty to coastal states over their territorial seas.

Additionally, he averred "it is unlike the sovereignty such states have over their land territory. That being so, therefore, the claim by the plaintiff of sovereignty over territorial sea of Nigeria and the exclusive economic Zone does not extend the land territory of Nigeria beyond what is provided for in sections 2 and 3 of the Constitution."

The Supreme Court further noted that there has been no precedence in the country's history to suggest that the central government has at any time given up its claim to the areas in contention.

"Given the zig-zag history of revenue allocation vis-a-vis the derivation principle since, at least, I960 to date, it cannot be said that the plaintiff at any time admitted that the area of the sea beyond the lower water mark belonged to the coastal Regions or States contiguous to it".

Ogundare disclosed it is incorrect to allege that the Plaintiff is claiming for himself the revenue on natural resources derivable otherwise than from a state.

"The principle of derivation does not apply to the government of the Federation. Rather, what the plaintiff appears to be saying is that whatever remains in the federation account after the application of the principle of derivation, is for distribution among the beneficiaries listed in subsection (3) of section 162 and in accordance with the formula approved by the National Assembly." Said Ogundare.

However, while it is argued that the yesterday's judgement produced no clear winner or loser, it would appear that Abuja, Nigeria's Federal Capital Territory (FCT) appears to be one of the biggest loser of the Supreme Court pronouncements on resource control. This is because apex court voided the one per cent revenue derived from federation account which is allocated to the territory and which is believed to have been responsible for its rapid development.

In the ruling the court noted that the allocation was inconsistent with the spirit of the Nigerian Constitution. The contention was whether Federal Government was legally right to appropriate 1% of the revenue accruing to federation account derived from minerals to the FCT. Apart from internally generated revenue, bulk of the revenue of the FCT is drived from this allocation.

In a unanimous decision, the Supreme Court noted that "By virtue of section 313, the provisions of section 1 (d) (1) and 4a (1) allocating one per cent of the federation Account to FCT are inconsistent with section 162 (3) of the constitution and are therefore void.

The court ruled that the provision are undoubtedly inconsistent provision, which cannot be sustained as it negates other aspects of the constitution.

Notable section of the constitution include that which provides for "not less than 13 per cent of the revenue accruing to the federation Account directly from any natural resources to be distributed on the principle of derivation.

"Cap 16 says of " 1 per cent of the revenue accruing to the federation accounted deducted from minerals is to be distributed. These are undoubtedly in constitutional provision.

The Supreme Court penal contended that in such conflict the provision of section 1(3), 313 and 315 (1) of the constitution all bordering on revenue formula, provision of section 1 of Cap 16 on the one per cent becomes inconsistent, and must give way to the constitution.

Where exist such inconsistency and appropriate authority which in this case, is the president according to Supreme Court, make such modification in the text of the existing laws as if considered necessary or expedient to bring the law to conforming with the provision of the constitution.

The court declared that the president had not utilised the power even as the issue of one percent allocation could not be maintained.

On the issue of the 13% derivation, the court upheld it saying that it was within the framework of the constitution. But noted that the derivation could only be obtained from the resources found in the soil within a particular state. However other resources found in the water remains the property of the Federal Government.