Who owns the Nigerian offshore seabed: Federal or states? An examination of the Attorney General of the Federation v. Attorney General of Abia State & 35 Ors Case

Journal of African Law

Volumn 49, Issue 1, 2005, Pages 73-93

  Egede, Edwin ^a  

^a CARDIFF UNIVERSITY   (United Kingdom)

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EID: 50249135100     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855305000069     Document Type: Article

References (185)

1. See C.I.A.-the World Factbook 2003. http://www.odci.gov/cia/publications/factbook/index.html [Accessed 1 February, 2005]. All url references in this article are as at 1 February, 2005 unless otherwise stated.
2. See ss. 2 and 3 of the 1999 Constitution of the Federal Republic of Nigeria.
3. See generally P.C. Underwood, “Ocean boundaries and resource development in West Africa” in D.M. Johnston and P.M. Saunders (eds.), Ocean Boundary Making: Regional Issues and Development, London, Croom Helm, 1988, 229–267. Also for map identifying Nigerian offshore oil wells see http://www.equatorialoil.com/pages/techreview.html
4. See the NNPC Act, Cap. 320
5. Laws of the Federation of Nigeria, 1990.
6. See s. 44 (3) of the 1999 Constitution and s. 1 (1) of the Minerals and Mining Act No. 34 of 1999.
7. This Constitution came into force on 29 May, 1999 when the military regime of General Abubakar handed over to the civilian government of President Olusegun Obasanjo. Nigeria has had a chequered constitutional history replete with military interventions in governance resulting so far in five different Constitutions: 1960 (Independence); 1963 (1st Republic); 1979 (2nd Republic); 1989 (3rd Republic) and 1999 (4th Republic).
8. See K. Ebeku, “Nigerian Supreme Court and ownership of offshore oil”, (2003) 27 Natural Resources Forum 291–299, for an analysis of the historical setting of the derivation principle.
9. [2002] 6 N.W.L.R. (part 764), 542.
10. Filed as Suit No. SC. 28/2001.
11. Paras. 8(c), (d), and 9 of the Statement of Claim of the Federal Government filed on 6 February, 2001. Despite these provisions of the Plaintiff's Statement of Claim, the Supreme Court, after stating that the principle of derivation did not apply to the Federal Government, observed somewhat contrary to the Plaintiff's case as contained in its claim that, “… 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 beneficiaries listed in subsection (3) of section 162 [the Federal Government, the State Governments and the Local Governments] and in accordance with the formula approved by the National Assembly.” See Ogundare, J.S.C., above, n. 11, at 653.
12. Cap. 428, Laws of the Federation of Nigeria, 1990, as amended by Territorial Waters (Amendment) Act No. 1 of 1998. The effect of this amendment was to reduce the breadth of Nigeria's territorial sea from 30 nautical miles to 12 nautical miles. See generally Edwin Egede, “The New Territorial Waters (Amendment) Act, 1998-comments on the impact of international law on Nigerian law”, (2000) 12 African Journal of International and Comparative Law 84–104.
13. Cap. 116, Laws of the Federation of Nigeria, 1990.
14. Cap. 404, Laws of the Federation of Nigeria, 1990.
15. Nigeria gained its independence from Britain on 1 October, 1960.
16. Uwais, C.J.N., above, n. 11, at 721–722.
17. However some of the Justices, Iguh and Ogwuegbu, J.J.S.C., were of the view that though these pieces of legislation did not expressly deal with the issue they were useful in deducing such by inference or implication. See n. 96 below.
18. The 1960 Constitution of Nigeria in s. 134(6) dealing with revenue allocation provided, “For the purposes of this section the continental shelf of a Region shall be deemed to be part of that Region.” This Constitution is defunct and no similar provision is contained in the current Constitution.
19. To the extent permitted by international law. The Court made extensive reference to the 1982 United Nations Convention on the Law of the Sea, 21 ILM 1245 (1982), which Nigeria ratified on 14 August, 1986.
20. See A-G of the Federation v. A-G of Abia & Ors, above, Ogundare, J.S.C. (lead judgement), at 642–643 and 648
21. Uwais, C.J.N., at 726–728
22. Wali, J.S.C., at 771
23. Kutigi, J.S.C., at 792–795
24. Ogwuegbu, at 823
25. Onu, J.S.C., at 860
26. Iguh, J.S.C., at 892–893.
27. J.S.C.
28. Ogundare, J.S.C., at 647–653
29. Uwais, C.J.N., at 729–731
30. Wali, J.S.C., at 771–772.
31. See, J.S.C.
32. Ogwuegbu, J.S.C., at 828–829
33. Onu, J.S.C., at 856–857.
34. J.S.C.
35. Iguh, J.S.C., at 889–892
36. Onu, J.S.C., at 854–856.
37. J.S.C.
38. per Ogundare, J.S.C., at 646–647
39. Uwais, C.J.N., at 722
40. per Ogwuegbu, J.S.C., at 828–829
41. per Onu, J.S.C. at 857
42. Iguh, J.S.C., at 892.
43. See, for example, Uwais, C.J.N., above, n. 11, at 725, who argued that because the 1979 and 1999 Constitutions did not anywhere repeal the definition of the boundaries contained in the colonial legislation these Orders in Council were still valid.
44. See Ogundare, J.S.C., at 642–643
45. Uwais, C.J.N., at 726–728, above, n. 11.
46. See Uwais, C.J.N., above, n. 11, at 728.
47. See E.I. Nwogugu, “Problems of Nigeria's international offshore jurisdiction”, (1973) 23 I.C.L.Q. 349 at 352.
48. In Emelogu v. the State [1988] 2 N.W.L.R. 524 at 557, a learned Justice of the Supreme Court emphasized the importance of putting a legislation in its proper historical background in order “to correctly comprehend the true import” of the legislation.
49. Yearbook of the International Law Commission, 1953, vol. II, New York, United Nations, 1959, at 267–268
50. C. Hurst, “Whose is the bed of the sea?” (1923–1924) IV B.Y.I.L. 34–43.
51. Yearbook of the International Law Commission, B.Y.I.L., 266–267.
52. See also G. Marston, “The extension of the maritime boundaries of certain British colonies under the Colonial Boundaries Act, 1895: a special case?” in Carl Grundy-Warr (ed.), International Boundaries and Boundary Conflict Resolution-Proceedings of the 1989 IBRU Conference,University of Durham, U.K., Durham, Boundaries Research Press, 1990, 255.
53. See G. Marston, “The incorporation of continental shelf rights into United Kingdom law”, (1996) 45 I.C.L.Q. 13, at 21–22
54. See the Grisbadarna Case (Norway v. Sweden), Scott (1909), Hague Court Reports 121 at 127, which describes the territorial waters as an “inseparable appurtenance” of the land territory.
55. Marston, Hague Court Reports, at 27.
56. See also s. 1 of the Petroleum Act, Cap. 350
57. Laws of the Federation of Nigeria 1990.
58. See n. 7 above on ownership of mineral resources in Nigeria.
59. See above, n. 11: Ogundare, J.S.C., at 647–651
60. Uwais, C.J.N., at 729–731.
61. Above, n. 11, at 652. See also decision of Uwais, C.J.N.
62. C.J.N., at 731.
63. (1975–1976) 135 C.L.R. 337 at 363.
64. C.L.R.
65. quoted by Ogundare, J.S.C., above, n. 11, at 652.
66. See P. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, New York, Kraus Reprint, 1970, 115–119
67. Hurst, above, n. 34
68. V. Prescott and S. Davis, “Aboriginal claims to seas in Australia”, (2002) 17(1) International Journal of Marine and Coastal Law 1–31.
69. Art. 2(1) of the 1982 United Nations Convention on the Law of the Sea, 21 ILM 1245 (1982), states that “The Sovereignty of a coastal State extends beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea described as the territorial sea.” Art. 2 (2) extends such sovereignty to the airspace and bed and subsoil of the territorial sea.
70. See also art. 2 of the 1958 Convention on the Territorial Sea and Contiguous Zone.
71. In the Grisbadarna Case (1909) Hague Reports, 121 at 127, the Permanent Court of Arbitration held that when territory was ceded to Sweden: ‘the radius of maritime territory constituting an inseparable appurtenance of this land territory must have automatically formed a part of this cession.’
72. See also Judge Sir Arnold McNair's dissenting judgement in the Anglo-Norwegian Fisheries Case ICJ Reports (1951) 116 at 160
73. G. Marston, “The evolution of the concept of sovereignty over the bed and subsoil of the territorial sea” (1976–1977) XLVIII B.Y.I.L. 321–332.
74. 482 U.S. 193 at 195 (1987).
75. See also United States v. Texas,339 U.S.707 at 717 (1950).
76. See on this D.P. O'Connell, “The juridical nature of the territorial sea”, (1971) 45 B.Y.I.L. 304–383
77. Marston, above, n. 46.
78. Above, n. 11, per Ogundare, J.S.C., at 652–653
79. Uwais, C.J.N. at 722–724.
80. [2003] NZCA 117 (19 June, 2003).
81. For an examination of this case when it initially came up before the Maori Land Court see J.S. Davidson, “New Zealand: ownership of the foreshore and sea-bed”, (1998) 13(4) International Journal of Marine and Coastal Law 617–622.
82. Also see Australian case of Mabo v. Queensland [No. 2] (1992) 175 CLR 1.
83. Such as the New Zealand Territorial Sea and Fishing Zone Act, 1965
84. the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act, 1977
85. Foreshore and Seabed Endowment Revesting Act, 1991
86. Resource Management Act, 1991
87. the Harbours Acts 1878 and 1950.
88. See Laoye & Ors v. Oyetunde [1944] A.C. 170 at 172–173, where Lord Wright stated: “The policy of the British Government… is to use for purposes of the administration of the country [Nigeria] the native laws and customs in so far as possible and in so far as they have not been varied or suspended by statutes or ordinances affecting Nigeria. The courts which have been established by the British Government have the duty of enforcing these native laws and customs, so far as they are not barbarous, as part of the law of the land.”
89. [1921] 2 AC 399.
90. AC, at 404.
91. AC, at 402–403.
92. AC.
93. See Prescott and Davis, above, n. 45, at 16–18, where the writers suggested that such evidence should include detailed knowledge of current and past members of the clan about reefs, rocks, channels, currents and tides as well as precise knowledge about seasonal variations that occur in the type, quantity and amount of food that can be obtained from the sea.
94. S. 1 of the Land Use Act, Cap. 202, Laws of the Federation of Nigeria 1990 states that “subject to the provisions of this Act, all land comprised in the territory of each State in the Federation is hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act.”
95. See the Continental Shelf (Libyan Arab Jamahiriya/Malta) Case, ICJ Reports (1984), 3, paras. 33 and 34. While the EEZ goes beyond the seabed aspects to include the water column resources and issues, this article shall not give prominence to the latter because the central focus of the dispute before the court was in respect of revenue from oil and gas resources located in the offshore seabed of Nigeria.
96. Above, per Ogundare, J.S.C., at 655–656.
97. See the interesting analysis on the basis of a coastal States' title to these offshore seabeds in M. Evans, Relevant Circumstances and Maritime Delimitation, Clarendon Press, Oxford, 1989, 44–62
98. P.A. Symonds et al.,“Characteristics of continental margins” in P.J. Cook and C.M. Carleton (eds.), Continental Shelf Limits: The Scientific and Legal Interface, Oxford, 2000, 25–63.
99. For the text of the Truman Proclamation of 28 September, 1945 see (1946) 40 A.J.I.L., suppl., 45–48.
100. I.C.J. Reports (1969), 3.
101. There were some glaring errors in the statements of some of the justices in respect of international law, e.g. of such statements are per Ogundare, J.S.C., at 651
102. “By the 1958 Convention the breadth of the territorial sea is a maximum of 3 miles.” Per Uwais, C.J.N., at 731: “It is noted that the 3 nautical miles mentioned in the case were later extended to 12 nautical miles by the 1958Geneva Convention on the Territorial Sea and Contiguous Zone, which preceded the 1982 United Nations Convention on the Law of the Sea.” It is trite under international law that the issue of the breadth of the territorial sea, one of the major issues that led to the convening of UNCLOS III, was not dealt with by the Geneva Convention but rather by the 1982 United Nations Convention on the Law of the Sea.
103. See R. Churchill and V. Lowe, The Law of the Sea, Manchester, 1999, 77–81.
104. R. Higgins, Problems and Process: International Law and How We Use It, Oxford, 1994, 206.
105. See, e.g., the North Sea Continental Shelf Cases, n. 64, above
106. arbitration between the UK and France UNRIAA Vol. XVIII(1977), 49 at para. 79 and 92 at para. 194
107. the Continental Shelf (Tunisia/Libya) Case, ICJ Reports(1982), 18
108. Continental Shelf (Libya/Malta) Case, ICJ Reports (1985), 13.
109. ICJ Reports.
110. ICJ Reports, 51 at para. 95.
111. ICJ Reports, 22 at para. 19.
112. ICJ Reports, 31 at para. 43.
113. Art. 77 of LOSC.
114. The Supreme Court of Appeal of South Africa, Case no. 165/2001, Judgement delivered on the 20 May, 2002. See http://wwwserver.law.wits.ac.za/sca/files/16501/16501.pdf
115. Act No. 15 of 1994.
116. S. 5(b) of the Customs and Excise Act No. 92 of 1964.
117. Ss. 3(4), 297 and Part II of the First Schedule.
118. Ss. 3(1) and (2) and Part I of the First Schedule.
119. For comprehensive summary of arguments of counsel see Uwais, C.J.N., above, n. 65, at 699–722.
120. Kutigi, J.S.C., above, n. 11, at 791–792.
121. Art. 8 of LOSC 82.
122. S. 3 (1) and First Schedule Part 1 of the 1999 Constitution.
123. Ogundare, J.S.C., above, n. 65, at 654–655.
124. See s. 134 of the 1960 and s. 140 of the 1963 Constitutions. Refer to nn. 2 and 20 above.
125. Cap. 336, Laws of the Federation of Nigeria, 1990.
126. See Uwais, C.J.N., above, n. 65, at 714, for argument of counsel to the 3rd Defendant, Akwa Ibom State, in this regard.
127. See E. Egede, “The Nigerian territorial waters legislation and the Law of the Sea Convention (LOSC) 1982”, (2004) 19(2) The International Journal of Marine and Coastal Law 147–172.
128. See s.1 (2) of the Territorial Waters Act, No. 5 of 1967.
129. See para. 2 of the Schedule to the Territorial Waters (Amendment) Act No. 38 of 1971.
130. Act No. 42 of 1998.
131. The Territorial Waters Act merely states “Nigerian Court” without specifying the exact Court having jurisdiction to try offences committed in the territorial waters of Nigeria. See ss. 2 and 3.
132. Ss. 4 and 5. See ss. 249–254 (Federal High Court) and ss. 270–274 (State High Courts) of the 1999 Constitution.
133. See above, “Nature of offshore seabed and subsoil within Nigeria's national jurisdiction” section of this article.
134. See s. 4 (7) and para. 3 of Part II of the Second Schedule of the Constitution.
135. See R. v. Keyn (1876) 2 Ex.D.63 (British)
136. United States v. Louisiana 394 US 11, 699 (1950)
137. United States v. State of California 332 US 19 (1947)
138. United States v. State of West Virginia 295 US 463 (American)
139. New South Wales v. Commonwealth 8 ALR (1975–1976) 1 (Australian)
140. Re. Ownership Offshore Mineral Rights, Vol. 65 DLR 2nd, 354, 1967 (Canadian).
141. See, e.g., O'Connell, above, n. 49, at 304–383
142. J. Gibson, “The ownership of the sea-bed under British territorial waters”, VI(2) International Relations (1978) 474–499.
143. (1876) 2 Ex.D 63.
144. For a detailed account of the case including arguments at the hearing, see G. Marston, The Marginal Seabed: United Kingdom Legal Practice, Oxford, Clarendon Press, 1981, 114–151.
145. See O'Connell, above, n. 49, at 328–331
146. Marston, The Marginal Seabed: United Kingdom Legal Practice, 137.
147. See Marston, above, n. 113, at 192–219
148. See also Reference Re. Ownership of Off-Shore Mineral Rights, above, n. 111, at 2027.
149. See Preamble 7 of the LOS Convention 1982, which recognizes that part of the Convention, is merely codification of existing customary international law. Quite a number of the provisions of the Convention, which initially could be said to be progressive development, could be said to have crystallized into customary international law as a result of the overwhelming number of States that have ratified the Convention: as at 1 February, 2005, 148States had ratified the Convention. See http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm. See also North Sea Continental Shelf Cases, and L.T. Lee, “The Law of the Sea Convention and Third States”, (1983) 3 A.J.I.L. 541–568 on how Convention provisions can crystallize into customary international law.
150. See s. 12(1) of the 1999 Constitution
151. Abacha v. Fawehinmi [2000] 6 N.W.L.R. (Part 660), 228.
152. See Wali, J.S.C.
153. in Ibidapo v. Lufthansa Airlines [1997] 4 N.W.L.R. (Part 498) 124 at 150 who points out that Nigeria inherited the English common law rules on the municipal application of international law. Under the English common law rules customary international law has automatic application in the municipal setting.
154. See Buvot v. Babuit (1737) Cases t. Talbot. 281
155. Triquet v. Bath (1764) 3 Burr. 1478
156. Trendex Trading Corporation v. Central Bank of Nigeria [1977] Q.B. 529.
157. Q.B. at 578.
158. See n. 48 above and the discourse of the New Zealand case of Ngati Apa & Ors v. Ki Te Tau Ihu Trust & Ors. Above.
159. See, e.g., Ogwuegbu, J.S.C., above n. 11, at 828–829
160. Onu, J.S.C., above at 856–857
161. referring to such cases as U.S. v. Louisiana, above
162. Reference Re. Ownership of Offshore Minerals Rights, above, and New South Wales & Ors. v. Commonwealth, above, note 111.
163. See in the case of Australia, s. 6 of the Seas and Submerged Lands Act, 1973, as amended by the Maritime Legislation Amendment Act, 1994, which clearly vests sovereignty in respect of the territorial sea, airspace, seabed and subsoil thereof in the Commonwealth.
164. See para. 26 of the Exclusive Legislative List, Second Schedule Part I of the 1999 Constitution.
165. A.V. Lowe, “International law and Federal offshore lands disputes”, (1977) Marine Policy 311–317.
166. Marine Policy at 312.
167. Marine Policy at 313.
168. See also The United States v. Louisiana, above
169. United States v. State of Alaska, 117 S.Ct.1888 (1997)
170. Idaho v. United States, 533 U.S. (2001).
171. Nwogugu, “Problems of Nigerian offshore jurisdiction”, above, n. 32, at 360.
172. By excluding offshore seabed from the ambit of the derivation formula certain littoral States such as Akwa Ibom, Bayelsa, Cross River, Rivers and Ondo State, which have virtually no onshore oil deposits but mainly offshore, are adversely affected financially by the Supreme Court's decision. See “Supreme Court Ruling: How Does It Affect the States?” THISDAY newspaper, 8 April, 2002.
173. The Committee however felt that a long-term solution to the onshore/offshore issue raised by the Supreme Court would require constitutional amendment. See Oma Djebah (2002) “Resource Control: How Long Can Obasanjo Hold Out?” http://www.nigerdeltacongress.com/rarticles/resource_control_how_long_can_ob.htm. Under S.9 of the 1999 Constitution constitutional amendment involves a long and complicated procedure.
174. The National Assembly of Nigeria, consisting of the Senate and the House of Representatives, has the power under s. 4 (2) of the 1999 Constitution to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List.
175. Marston, above, n. 114, at 138–149.
176. See Oma Djebah and Bature Umar (2002), “Obasanjo moves against Onshore/Offshore Dichotomy: Sends abolition bill to N/Assembly”, http://www.thisdayonline.com/archive/2002/09/05/20020905news01.html
177. “Obasanjo proposes new way out of Onshore/Offshore crisis”, The Nigerian Guardian, 26 February, 2003.
178. The Nigerian Guardian.
179. See art. 1 of the 1958 Geneva Convention on the Continental Shelf (1958) 53 A.J.I.L. 858–862.
180. See, e.g., Mauritius' Maritime Zones Act No. 13 of 1977
181. Ghana's Maritime Zones (Delimitation) Law 1986
182. Namibia's Territorial Sea and Exclusive Economic Zone Act No. 3 of 1990
183. South Africa's Maritime Zones Act No. 15 of 1994.
184. Kola Ologbondiyan, “Senate Passes Onshore/Offshore Bill”, THISDAY newspaper, 21 January, 2004.
185. See Schedule to the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act, 2004.