The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-area expert postgraduate students from the University of Cape Town.
Read also JIFA's Environmental Country Reports for SADC
R v Molefe (CRI/A/18/82) (CRI/A/18/82) [1982] LSCA 73 (06 October 1982); 
EL Index Public interest in environment Environmental decision-making Environmental law Minerals, oil and gas Minerals and energy Environmental law Judicial Review Appeals and reviews Civil ProcedureThis case concerned an appeal to the High Court by the appellant who subsequently made no further effort to prosecute his appeal. However, the judge was not prepared to leave the matter in that unsatisfactory state and decided to have the appellant and the second accused before the lower court, appear before the court and show cause as to why their sentences should not be increased. The two had been charged with selling uncut diamonds in contravention of s 6 (1)(b) of the Precious Stones Order 1970 and subsequently convicted.
The law applied was s 6(4) of the Precious Stones Order which specified the maximum limit of fine and imprisonment for offenders in this case, for the practice of dealing in uncut diamonds without authority. The judge decided that in his case that justice sternly demanded that illegal schemes to get rich quickly could not be tolerated by the courts. The appellant’s fine was increased in addition to a sentence of 6 months' imprisonment in default of payment.
The court exercised its entitlement to revisional powers to correct the inadequate sentence imposed upon the other offender in the lower court. The judge ordered that in addition to the fine that he had paid, and month spent in prison, the original sentence to imprisonment for twelve months be wholly suspended for three years on the condition that he was not convicted of any offence under the same law.
Solicitor General v Lesotho Quality Aggregate Industries (Pty) Limited (CIV/T/50/83) [1983] LSCA 21 (24 March 1983); EL Index Locus standi in environmental litigation Litigation of environmental issues Environmental law Procedural Fairness Justice and fairness Civil Procedure Minerals, oil and gas Minerals and energy Environmental law Role of state in relation to environment Actors in environmental law Environmental law Administrative Action Administrative LawThe plaintiff instituted an action in the High Court for the eviction of the defendants from a piece of land. The plaintiff alleged that the defendants were carrying on mining operations at the site without holding a mining lease or a mining licence issued in terms of the Mining Rights Act 43 of 1967, hence acting illegally.
It was common cause that the defendants had not been granted a mining lease or a mining licence by the Mining Board. The defendants argued that the plaintiff did not have locus standi to bring an action of eviction because it did not own the land and that there was a likelihood that granite stone was not a base mineral that fell within the definition in the act.
The judge’s view was that granite stone fell within the definition of a base mineral and the defendants were therefore undertaking a mining operation requiring a lease or licence under the act. The court further held that the defendants held a bogus land grant from the chief. It also found that under s 2 of the Mineral Rights Act the right to minerals in any land were vested in the "Basotho Nation". The judge concluded that the case was not one between landlord and tenant but between landlord (or landowner) and squatter in a situation governed by a unique and unusual land law. Accordingly, a summary judgment was entered for the plaintiff as prayed.
R v Sephula (Rev.8/84 CR. 142/84) ([node:field-casenumber]) [1984] LSCA 57 (23 May 1984); EL Index Environmental damages Environmental remedies Minerals, oil and gas Minerals and energy Environmental law Environmental duties Concepts and principles Environmental law Rationality Principles Administrative LawThis High Court case involved an accused that was charged with contravening section 6(1) (a) (i) and section 33 (2)(i) read with (ii) of the Precious Stones Order of 1970 (“order”). The charges were that the accused was in possession of three rough and uncut diamonds without being duly licenced to deal in rough and uncut diamonds. The accused pleaded guilty and was sentenced to three months’ imprisonment. However, the High Court was tasked to review the sentence on the ground that the accused was wrongfully charged. The record showed that the accused was merely found possessing the diamond unlawfully and not selling the diamond.
Thus, the issue for review was whether the accused was correctly charged under section 6(1)(a)(i) and section 33(2)(i) read with (ii) of the order.
The High Court accepted that the accused was wrongfully charged under section 6(1)(a)(i) and section 33 (2)(i) read with (ii) of the order, after reviewing the submissions. The court held that the offence he committed was limited to possession of the diamond unlawfully. To the alternative, the court stated that the accused ought to have been charged under section 6(1)(c) of the order which deals with unlawful possession of the diamond. Finally, the court allowed the amendment of the charge and confirmed the three months’ sentence stating that the punishment was proportionate to either of the offences.
R v Matsumunyane (CRI/A/63/85) [1986] LSCA 40 (21 April 1986); EL Index Environmental damages Environmental remedies Minerals, oil and gas Minerals and energy Environmental law Environmental duties Concepts and principles Environmental law Rationality Principles Administrative LawThis was an appeal to the High Court involving an appellant who was co-charged for contravening Section 6(1)(a)(i) read with (4) of Precious Stones Order of 1970 (“order”) as well as theft. In the case, the appellant allegedly bought diamonds with money that he had stolen from the bank account of his employer. The Magistrate Court acquitted the appellant and the co-accused of the charge of contravening the order. However, the appellant was convicted and sentenced for theft. The appellant’s defence was that he withdrew the money for office use, but that it was then stolen from his wardrobe by an unknown person.
On appeal, the first issue on trial was whether the magistrate erred in finding that the explanation given by the appellant was far from being reasonably accurate. The second was whether there was enough evidence to establish the appellant’s guilt.
The High Court held that the prosecution showed that the appellant withdrew the amount of money alleged to have been stolen from the bank. It found that the conviction by the lower court was well based on (1) the remainder of the money that was unearthed from the appellant’s house; (2) the uncut diamond that was recovered from the appellant; (3) further evidence. The Magistrate Court’s decision was therefore upheld and the appeal dismissed.
Swissbourgh Diamond Mines (Pty) Ltd and Another v Commissioner of Mines and Geology N O and Others (CIV/APN/394/91) [1997] LSHC 95 (12 December 1997); EL Index Abuse of Process Conduct of proceedings Civil Procedure Minerals, oil and gas Minerals and energy Environmental lawThe court determined the test for applying its discretion to allow an application for an order for the production of documents during the course of proceedings as per rule 34(14) of the High Court Rules of 1980.
The applicants had previously requested for the production of some documents relating to the grant of mining leases before the trial started but made no attempt to enforce the discovery notice a year later into the proceedings. Thereafter, the applicants made a counter application for production of further documents but never pursued it. The reason for this was the belief that the fifth respondent was no longer represented in the proceedings. The applicants then launched this application against the fifth respondent.
The court made a consideration of the element of delay, insofar as it prejudiced the opposite party by preventing them to bring back their own witnesses and the materiality of the evidence in so far as it was practically conclusive.
It was held that the applicants failed to give an acceptable explanation for the delay for requesting the two sets of documents since they could not prove that they became aware of the documents sought at a later stage.
It was also held that the fifth respondent had not formally withdrawn from the case and would be prejudiced if the discovery was allowed,mainly because they could no longer bring back their witnesses and put the documents in cross-examination.
Accordingly, the application was dismissed.
R v Lebitsa and Another (CRI/A/29/80) [1980] LSHC 106 (17 October 1980); EL Index Minerals, oil and gas Minerals and energy Environmental law Administrative Action Administrative LawThe matter dealt with an appeal against the decision of the magistrate to sentence the first appellant and second appellant to 15 months and ten months imprisonment respectively, for theft of diamonds. The appellants had pleaded guilty to the charge but appealed against their sentences.
The main issue for the court’s consideration was whether the trial magistrate had erred in passing the respective sentences. The court found that the court below placed too much emphasis on the value of the diamonds and the deterrent nature of the sentences to the exclusion of the personal circumstances of the appellants. Further, it was held that the magistrate did not take into account the cooperation of the appellants or the fact that they were first offenders. The court went on to hold that the magistrate made an unjustified differentiation between the appellants’ sentences.
Accordingly, the court set aside the sentences and substituted them for the payment of a fine amounting to M250 and in default of payment of the fine, imprisonment for two years.
S v Sephula (CR. 142/84) (NULL) [1984] LSHC 46 (23 May 1984); EL Index Private prosecutions Criminal offences in environmental law Environmental law Minerals, oil and gas Minerals and energy Environmental law Administrative Review Administrative LawThe court had to review an earlier decision by the same court. The accused was charged with contravening the Precious Stones Order of 1970 for wrongful and unlawful dealing in rough and uncut diamonds as a buyer or seller and for possession of uncut diamonds without a licence. The accused had pleaded guilty to all charges and convicted.
The court at hand had to decide on whether the first count of wrongful and unlawful dealing was appropriate in the circumstances and whether the charge and conviction should be amended.
The prosecutor relied on the testimony of the member in charge of the digging area who stated that when he searched the accused, he found three rough and uncut diamonds in her possession and upon requesting a valid dealing license, she failed to do so. There was no indication that the accused was going to sell those diamonds.
The court held that at the time the accused was apprehended she was not dealing in diamonds, but she was merely in possession of them. For there to be a crime there must be an act or on omission, a mere subjective contemplation of future criminal conduct which does not find outward expression indeed or omission is not criminally punishable.
The court held that the correct charge ought to have been one of possession and nothing more and ordered that the charge be amended accordingly. It however maintained that the previous sentence was adequate.
Ketso v Minister of Mines and Geology and Attorney General (CIV/APN/28/94) (CIV/APN/28/94) [1995] LSHC 4 (01 January 1995); EL Index Abuse of Process Conduct of proceedings Civil Procedure Attribution of Costs Costs Civil Remedies Minerals, oil and gas Minerals and energy Environmental lawThe applicant approached the court by motion proceedings claiming that the suspension of the digging licence at Kao Diamond Mininq by the respondents be declared null and void. The applicant also prayed for damages and costs of the suit.
The respondents raised an objection on a point of law and submitted that the applicant was abusing court process by using motion proceedings to institute a case where there was a dispute of facts.
The court applied the rule that motion proceedings are preferred where the issues are clear. Further, the court held that matters brought by motion proceedings on disputed facts should be dismissed with costs. The court found that the applicant’s claim was based on issues of fact and law thus the difficulty in choosing how to institute the claim.
The court noted that it was required to examine the alleged dispute of fact and see whether in truth there was a real issue of fact which cannot be determined without oral evidence. Additionally, the court had the discretion to decide disputed claims by motion proceedings in appropriate cases.
It was held that the claim on license suspension by motion proceedings was correctly instituted and the damages claim was dismissed. The court applied its discretion as per rule 8 sub-rule (14) of the High Court Rules and ordered the matter to trial for the resolution of the license suspension. It was also ordered that the affidavits be considered as pleadings and the costs of the application be costs in the trial.
Swissbourgh Diamond Mines (Pty) Ltd and Others v Commissioner of Mines and Geology N.O. And Others (CIV/APN/394/91) (CIV/APN/394/91) [1999] LSHC 39 (28 April 1999); EL Index Attribution of Costs Costs Civil Remedies Land use Human exploitation of the environment Environmental law Minerals, oil and gas Minerals and energy Environmental law Legislative Amendment Constitutional LawThis was a counter-application by the fifth respondent (now applicant) against first and sixth respondents (respondents), for an order declaring a mining lease between the Basotho Nation and another company void. The applicants also prayed for costs in the event that the application was opposed. The applicant claimed that there was non-compliance with the procedures prescribed by sections 6 and 7 of the Mining Rights Act of 1967, as amended, when granting the lease.
The court determined whether Order No. 1 of 1970 which was enacted after the coup d'etat of 1970 abolished the office of the King and his executive power of allocating land or interest in land as contended by applicants.
The court noted that the applicant quoted Makenete v Lekhanya and others C of A (CIV) 17/1990 in support of the position that the order abolished the office of the king. However, it was noted that this position was only referred to in the obiter, (not the main holding) which failed to consider the effect of the Regent (Assumption of Office) Notice of 1970.
The court then interpreted the definition of regent to be “one who is invested with royal authority by”. Consequently, it was found that the notice appointed Queen Mamohato Seeiso to be regent for the duration of the King’s absence from Lesotho. It was further held that the king’s office had not been abolished since the queen was appointed to be his regent for the duration of his absence.
Accordingly, the application was dismissed.
Swissborough Diamond Mines Pty Ltd and Another v The Commsiioner of Mines and Geology and Others (CIV/APN/394/91) (CIV/APN/394/91) [1999] LSHC 40 (28 April 1999); EL Index Judicial Review Appeals and reviews Civil Procedure Minerals, oil and gas Minerals and energy Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental lawThe fifth respondent was created by statute for the purpose of implementing a project design to dam water. The dam was built and flooded the area that the appellant had obtained a mining lease for, making mining impossible. The government then unilaterally cancelled the appellants’ lease. The appellants filed an application to set aside this cancellation. Their application was granted.
The fifth respondent filed a counter-application to set aside as null and void the mining lease on the grounds that the mining lease was a nullity because it had allegedly been concluded without a recommendation by the Mining Board and without prior consultation with and approval of the Principal Chiefs within whose areas of jurisdiction the mining lease area fell. The fifth respondent further submitted that such recommendation and prior consultation and approval were peremptorily enjoined by s 6 of the Mining Rights Act No. 43 of 1967, so that non-compliance with both, or with either, of these requirements invalidated the granting of the mining lease by the government to the applicants and rendered it a nullity.
The court considered whether the mining lease complied with requirements of the Mining Rights Act. It found on the facts that the fifth respondent had successfully discharged the onus of proving that neither of the abovementioned requirements had been complied with before the lease was concluded. Accordingly, the lease was set aside. Costs were awarded in favour of the respondent herein.
Swissborough Diamond Mines (Pty) Ltd and Another Lesotho Highlands Development Authority (C. OF A. (CIV.) NO. 9 OF 1999) (NULL) [2000] LSHC 119 (01 January 2000); EL Index Locus standi in environmental litigation Litigation of environmental issues Environmental law Judicial Review Appeals and reviews Civil Procedure Minerals, oil and gas Minerals and energy Environmental law African customary law and rights of indigenous peoples Human and environmental rights Environmental law Attribution of Costs Costs Civil RemediesThe appellants in this case appealed against the decision of the High Court to uphold a counter-application by the respondents. The High Court upheld the respondent’s counter application on the basis that certain peremptory conditions had not been fulfilled and by its judgment set aside the appellants’ mining lease and awarded costs in favour of the respondent.
The applicants argued that the requirements that they failed to fulfill were not peremptory and that these requirements were only peremptory prior to the 1970 and 1986 coups. They contended further that the lease agreement having been concluded thereafter, it should not have been declared null and void. The argued further that the court below erred in awarding costs on the attorney and own client scale.
The Court of Appeal held that, while the coups suspended the 1966 Constitution, they did not set at nought all other legislative provisions. It held that the provisions of the Mining Rights Act, relating to the conclusion of mining leases, were still in place. The court further held that the conditions that the appellants failed to fulfill were grounded in long tradition and custom.
Consequently, the appeal was dismissed save on the issue of costs. The court held that the High Court was justified in making a special order as to costs on the issue of conspiracy but that the punitive costs were more appropriate in the circumstances and accordingly adjusted the costs order against the appellants whose conduct was deemed vexatious.
Seqhobane and 205 Others v Minister of Natural Resources and Others (CIV/APN/365/2000) (CIV/APN/365/2000) [2001] LSHC 105 (06 November 2001); EL Index Injunction Injuctions and interdicts Civil Remedies Writ of Mandamus Civil Remedies Minerals, oil and gas Minerals and energy Environmental lawIn this case, the applicants sought an interdict against an administrative decision not to renew short term mining leases. The applicants held mining licenses for several years which were renewable every six months. The Minister of Natural Resources, the first respondent sent the Acting Commissioner of Mines and two other officials to inform the applicants that their licenses would expire and not be renewed at the expiration of the six month duration. However, a two months extension was granted to enable final sifting and cessation of operations. Nevertheless, the applicants argued that the notice was too short and that they were legitimately expecting the leases to be renewed again.
The High court noted that the issue at hand was not one of cancellation or revocation, but one of non-renewal. Therefore, the issue that the court examined was whether the administrative decision not to renew the licenses was legal.
The court observed although that the applicants had a legitimate expectation to be heard before the decision not to renew their licences was made, they had been given time and opportunity to air their concerns. The court found that prior to the cancellation, the respondents were informed of the non-renewal on two occasions but made no attempt to persuade the respondents that the intended suspension was inappropriate or prejudicial. The court also held that there was insufficient evidence to show that the respondents had acting in bad faith and dismissed the application.
Ketso v Department of Mines and Geology and Another (CIV/APN/28/94) (CIV/APN/28/94) [2005] LSHC 166 (26 August 2005); EL Index Administrative Review Administrative Law Minerals, oil and gas Minerals and energy Environmental lawThe court considered an application against the decision to suspend the applicant’s license and for compensation as a result of the suspension or non-renewal of his digging license. The applicant was a diamond digger, who found a large diamond and upon enquiring from the mining advisor of the 1st respondent how to dispose of the diamond and to have it valuated, he decided to keep it, until the diamond went missing. The duty of the advisor was to issue digging licenses and to ensure diamonds were sold legally and correctly. Once the advisor noticed that the diamond was missing, he reported to the government representative.
In terms of his digging license, the applicant worked as part of a co-operative society and a mined diamond belonged to the co-operative to be sold. The applicant argued that the reason the diamond was not kept in a safe place, and rather in a grave, and not reported after it went missing was due to the advisor wanting to benefit from the sale.
The court found that there was no reason for the 1st respondent to lie, and in fact it was the applicant who wished to be the sole beneficiary and to gain from the black-market sale. It held further that there was no possibility that the diamond went missing by accident. Accordingly the application was dismissed.
Toro Diamonds Lesotho (Pty) Ltd and Another v Namakwa Diamonds Ltd and Others (CCA/21/2011) [2011] LSHC 103 (30 November 2011); EL Index Minerals, oil and gas Minerals and energy Environmental law Declaratory Relief Civil RemediesThe matter dealt with a claim by the appellants for an equal portion of shares in the 2nd respondent (a company).
The background to the case is that the 1st applicant and 1st respondent entered into an agreement to pursue a joint mining venture. The parties signed an MOU which stated that they would hold shares in the 2nd respondent. The applicants contended that the MOU implied that they would hold 50 per cent shares in the 2nd respondent.
The court considered the interpretation of the words in the MOU. The court gave the words their ordinary and natural meaning. It was concluded that in the absence of the usual qualifying or quantifying words, the natural and proper conclusion was that, at the time of signing the M0U, the 1st applicant and 1st respondent had not agreed as to the exact percentages of their respective holdings.
The court dismissed the application with costs to the respondents.
Abivams Limited v Platun Gas Oil Ghana Ltd (J4/29/2016) [2017] GHASC 29 (31 May 2017); CL Index Contract of Sale Types of contract Contract Law Contract Performance Performance of contract Contract Law Breach of Contract Contract Law Privity of Contract Parties to contract Contract Law Summary Judgment Civil Remedies Liquidated Claims Civil Remedies EL Index Minerals, oil and gas Minerals and energy Environmental law Administrative Action Administrative LawThe appeal stemmed from the denial of the appellant's right to defend on merits due to the lower court’s grant of an Order 14 summary judgement in favor of the respondent, without properly engaging with the merits of the matter.
Substantively, the court held that in a summary judgement application the plaintiff must bring a prima facie case for the claim, which includes showing the basis of the claim, before the burden shifts to the defendant to defend. However, a complete defence is not required but rather the defendant only needs to show that he has a reasonable defence to the claim and his defence is not a sham or intended to delay payment.
Since the respondent’s claim had been based on an agreement and an alleged assignment, the court reasoned that on assessment of the evidence the argument of assignment lacked the element of intent and thus could not stand. Further, the argument that the respondent was a beneficiary of the agreement in question was unfounded. The trial court therefore erred in its decision to grant summary judgment as the very basis of the claim was reasonably challenged on the facts.
The court thus concluded that the appellant had been unjustifiably been shut out of trial. It thus allowed the appeal setting aside the summary judgement.
Affenyi and Others Vrs Abosso Goldfields Limited (NO. J4/09/2017) [2018] GHASC 15 (08 March 2018); EL Index Minerals, oil and gas Minerals and energy Environmental law Environmental duties Concepts and principles Environmental law Judicial Review Appeals and reviews Civil Procedure Public interest in environment Environmental decision-making Environmental lawThis was an appeal against the validity of an order to the Land Valuation Board to assess the compensation payable in respect of buildings and farms belonging to inhabitants of an old village.
The facts of this case were that the appellant, a mining company, requested the respondents and other inhabitants of a village, which adjoined its mining area, to vacate the village and paid them compensation for their buildings, which were later demolished. Section 71 of the Minerals and Mining Act, 1986, provided for compensation for disturbances to owners and occupiers of lands affected by mineral operations. The appellant argued that this compensation was limited to areas within the mineral operations and that these areas were not land designated within its mining lease.
The Supreme Court considered the lawfulness of the board’s decision to award further compensation under s71 of the act. It found that since the mining operations of the appellant affected the owners or occupiers of land they were entitled to statutory compensation. The court stated that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, as permitted under s71(3) of the act, compensation for the disturbance of their farming activities at the old village was mandatory under the act.
The court, however, stated that the lower courts came to the right conclusion but their reasons were not sound in law. Accordingly, the appeal was dismissed but the reasons were substituted for the Supreme Court’s decision.
Tema Oil Refinery Vrs. African Automobile Ltd (H1/213/2009) [2010] GHACA 1 (11 March 2010); EL Index Minerals, oil and gas Minerals and energy Environmental law Transnational and international dispute resolution Public international law Public interest in environment Environmental decision-making Environmental law Attribution of Costs Costs Civil Remedies Government Contracting Administrative LawIn this Court of Appeal case, the court determined who breached the contract of oil supply between the appellant and the respondent. The contract ran into a deadlock after three deliveries of the product when the appellants refused to accept one of the respondents’ deliveries upon presentation. The reason given for the resultant stalemate was that the product was not of the specification ordered.
The court below had penalised the appellant for unnecessarily breaching a contract. The appellant felt aggrieved and appealed to seek an overturn of the trial court’s judgment entered in favour of the respondents.
The Court of Appeal thus determined if there was a variation in the contract, when did that occur and also what did the variation entail.
In response, the Court of Appeal held that there was nothing on record to persuade the court that the respondent product was not of the specification ordered. The court thus maintained the decision of the court below. However, the Court of Appeal noted that the cost granted in the court below was exorbitant. In the end, the court dismissed the appellant case, but the costs awarded in the court below was accordingly varied.
The Attorney General Vrs Balkan Energy Ghana Ltd And Others (J6/1/2012) [2012] GHASC 35 (16 May 2012); EL Index Government Contracting Administrative Law Constitutional Interpretation Constitutional Law Energy Minerals and energy Environmental lawThe matter arose from a power purchase agreement entered into by the Government of Ghana and the first defendant for the rehabilitation of a power barge.
The court considered whether the agreement constituted an international business transaction, within the meaning of Article 181(5) of the Constitution.
The court held that a business transaction is “international” within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international, in the sense of having a significant foreign element, or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries or, in the case of companies, the place of their central management and control is outside Ghana. Accordingly, the court held that the agreement constituted an international business transaction within the meaning of Article 181(5) of the Constitution.
The court considered whether or not the arbitration provisions of the agreement constituted an international business transaction within the meaning of article 181(5) of the Constitution. An international commercial arbitration is not by itself an autonomous transaction commercial in nature which pertains to or impacts on the wealth and resources of the country and is, therefore, difficult to conceive of as a transaction independent from the transaction that generated the dispute it is required to resolve.
Accordingly, the court found that the arbitration provisions did not constitute an international business transaction within the meaning of article 181(5) of the Constitution.
The case was remitted to the High Court to apply this court’s interpretation of article 181(5) in the proceedings before it.
Chief (Dr.) Pere Ajuwa & Anor. v. The Shell Petroleum Development Company of Nigeria Limited (SC.290/2007)[2011] NGSC 7 (16 December 2011) (SC.290/2007) [1960] NGSC 1 (15 December 2011); Injunction Injuctions and interdicts Civil Remedies Minerals, oil and gas Minerals and energy Environmental law Healthy environment Substantive rights Human Rights Environmental damages Environmental remedies EL Index HR IndexThe court considered an appeal against the decision of the House of Representatives. It passed a resolution directing the Respondent to pay to the Appellant compensation in the sum of $1.5 Billion for damages/compensation for environmental degradation of the Appellants' communities by oil drilling.
The High Court ordered the Respondent to comply with the resolution and pay to the Appellants the said sum. However, the respondent was able to obtain a stay of execution of the judgment in the trial court granted that the applicant deposits the outstanding amount pending the outcome of the subsequent appeal.
The Respondent wanted this varied and was successful. The applicant disputed this before this court pleading for unconditional stay of execution.
The court had to determine whether there were justifiable reasons to grant an unconditional stay of execution.
The court held that a stay of execution, conditional or unconditional, is granted at the discretion of the court and an appeal court will only interfere where the discretion was wrongly exercised or irregular.
The learned justices of the Court of Appeal took into consideration the consequences of an unsuccessful appeal and a successful one, and came to the conclusion that an unconditional stay of execution met the justice of the case since the Respondent (in this appeal) had assets within the jurisdiction of the court to defray the judgment sum. The facts and circumstances clearly did not support tying down $1.5 Billion to await judgment at the end of lengthy appeals.
The appeal was thereby dismissed.
NIGERIA AGIP OIL COMPANY LIMITED V. CHIEF GIFT NKWEKE & ANOR (SC.162/2013)[2016] NGSC 139 (22 January 2016) (SC.162/2013) [1960] NGSC 1 (21 January 2016); Minerals, oil and gas Minerals and energy Environmental law Supervisory Jurisdiction Jurisdiction Civil Procedure Jurisdiction International law Human Rights CL Index EL IndexThis was an appeal against the decision of the Court of Appeal to strike out the appellant’s appeal on the ground that it only paid a fraction of the filing fee.
The respondents had filled an action claiming monetary compensation for a diesel spill from the appellant's facility which polluted the respondents’ water. The appellant admitted the spillage and judgment was passed against it. On appeal it paid N200 instead of N5000 to file documents into the registry. The respondents urged the court to dismiss the appeal on the basis of this and other irregularities. The appeal arose from an attempt by the appellant to regularise the payment of fees prior to the filing of the appeal but this was dismissed as incompetent due to payment of inadequate fees.
The court considered whether the lower court was right to strike out the appeal. It observed that a discretionary decision based on a principle that inadequate filing fees was fatal to an appeal was a wrong exercise of discretion. The court differentiated non-payment of fees from payment of inadequate fees. It held that a court of law could not allow the provisions of an enactment to be read in a way that would deny citizens access to court, thereby denying a litigant access to justice. It found that the lower court’s striking out of the appeal denied the appellant access to court.
Accordingly, the appeal was upheld and the appellant ordered to pay the correct fees.
Alphonsus Nkuma v Joseph Otunuya Odili (SC. 244/2001)[2006] NGSC 129 (10 March 2006) (SC. 244/2001) [1960] NGSC 1 (09 March 2006); Injunction Injuctions and interdicts Civil Remedies Land use Human exploitation of the environment Environmental law Minerals, oil and gas Minerals and energy Environmental law Supervisory Jurisdiction Jurisdiction Civil Procedure EL IndexThe court considered a final appeal against a decision by the Court of Appeal to dismiss the plaintiff’s first appeal against the judgement of the Trial Court.
The origin of this matter was a writ of summons issued to the respondent for payment of money that was deposited as compensation by a third party for their mining operations. The respondent then filed a cross-action seeking a declaration that he was entitled to the compensation and an injunction restraining the appellant’s from claiming the money.
The suits were consolidated and the trial judge gave judgement in favor of the respondent after having found that land used for the third party’s mining operations belonged to him, not the appellant. The appellant then filed an appeal which was dismissed by the Court of Appeal. Still dissatisfied, the appellant filed this final appeal calling upon the Supreme Court to review the lower court’s decision and to finally determine the matter.
The court found that the lower court adequately considered all the relevant issues. It further found that the High Court of Imo State had requisite jurisdiction to hear the case. The court noted that the appellant stretched the meaning of s 7(1)(p) of Decree No. 60 of 199, beyond reasonable limit by purporting that it ousted the High Court’s jurisdiction in matters of compensating land owners.
The court concluded that the appeal was without merit and deserving of punitive costs. The appeal was dismissed.
Elemchukwu Ibator & Ors v. Chief Beli Barakuro & Ors (S.C. 243/2001) [2007] NGSC 124 (13 April 2007); (S.C. 243/2001) [1960] NGSC 1 (12 April 2007); Land use Human exploitation of the environment Environmental law Minerals, oil and gas Minerals and energy Environmental law Supervisory Jurisdiction Jurisdiction Civil Procedure EL IndexThe matter dealt with an appeal against the decision of the Court of Appeal that upheld a decision of the High Court to order that compensation be paid to the respondents for damage caused to economic crops, fish ponds and lakes by the activities of an oil company. The appellants contended that the respondents, despite being occupiers of the land, were customary tenants and that they (appellants) were exclusively entitled to compensation as the owners of the land. The Court of Appeal in upholding the decision of the High Court held that the matter was not predicated on title to land but rather one for entitlement to compensation and granted judgment in favour of the respondents.
The Supreme Court considered whether the lower court was wrong to have heldáthat title to the land, the subject of claim for compensation by the parties, was not in issue. The court held that the issue of claim of title was certainly not before the trialácourt and the learned trial judge was right in not consideringáand determining that issue in his judgment. Accordingly, it held that the court below was right in upholding the trial court's decision that the identity of the land in question was not an issue and claim was solely one for compensation and not title. Accordingly the court dismissed the appeal.
Chevron Nigeria Limited v Nwuche and Others (CA/PH/420/2005)[2016] NGCA 101 (15 December 2016) (CA/PH/420/2005) [2016] NGCA 101 (14 December 2016); CL Index Jurisdiction International law Human Rights Mining Law Mining and Resources Law EL Index Supervisory Jurisdiction Jurisdiction Civil Procedure Minerals, oil and gas Minerals and energy Environmental lawThe court considered whether the State High Court had jurisdiction to entertain a matter about mines and minerals.
The court held that according to s 251(1)(n) of the Constitution as amended, the Federal High Court had jurisdiction about mining operations.
The court found that the statement of claim showed that the cause of action accrued in 1996; therefore, the law that was in existence at that time is applicable. Further, the court found that the construction, operation and maintenance of an oil pipeline by a holder of oil prospecting license is an act of mining operations. The facts of the case therefore fell within s 230(1)(0) of the 1979 Constitution. The trial court lacked jurisdiction.
The court accordingly upheld the appeal.
SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. ISAIAH AND 2 OTHERS (SC 75/1997) [2001] 10 (18 May 2001); Constitutional Interpretation Constitutional Law Minerals, oil and gas Minerals and energy Environmental law Environmental damages Environmental remedies EL IndexThis was an appeal against a decision by the High Court to award the respondents compensation of N22 million, on the ground that the High Court did not have jurisdiction to try the case.
The facts of the case were that as a result of the applicant’s oil exploration activities, crude oil polluted the respondents’ farmlands, fish ponds and streams. The High Court awarded damages against the appellant who then unsuccessfully appealed to the Court of Appeal. The appellant contended that ss7(b), 7(3) and 7(5) of the Federal High Court (Amendment) Decree 60 of 1991 ousted the jurisdiction of the High Court on claims pertaining to mines and minerals, including oil fields, oil mining, geological surveys and natural gas.
The court considered whether the construction and maintenance of an oil pipeline constituted mining operations and whether the High Court lacked jurisdiction to hear such claims pertaining to mining and minerals.
The court found that the construction, operation and maintenance of an oil pipeline by a holder of an oil prospecting licence was an act pertaining to mining operations. As a result the court found that the claims fell within the exclusive jurisdiction of the Federal High Court as provided under s230(1)(a) of the Constitution (Suspension and Modification) Decree 107 of 1993. Accordingly, the court set aside the High Court decision on the ground that it was a nullity for want of jurisdiction.
ATTORNEY-GENERAL OF CROSS RIVER STATE v. ATTORNEY-GENERAL OF THE FEDERATION AND ANOTHER (SC 124/1999) [2005] 17 (24 June 2005); EL Index Judicial Review Appeals and reviews Civil Procedure Declaratory Relief Civil Remedies Injunction Injuctions and interdicts Civil Remedies Minerals, oil and gas Minerals and energy Environmental law Land use Human exploitation of the environment Environmental lawIN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 24TH DAY OF JUNE 2005
SC 124/1999
BETWEEN
ATTORNEY-GENERAL OF CROSS RIVER STATE .................................. PLAINTIFF
AND
ATTORNEY-GENERAL OF THE FEDERATION AND ANOTHER ........................ DEFENDANTS
BEFORE: Muhammadu Lawal Uwais, CJN; Aloysius Iyorgyer Katsina-Alu; Dahiru Musdapher; Dennis Onyejife Edozie; Ignatius Chukwudi Pats-Acholonu; George Adesola Oguntade; Sunday Akinola Akintan, JJSC
ISSUES
Extent of boundary between two neighbouring states viz, the northern land boundary between Itu Local Government Area Council in Akwa-Ibom State and Odukpani Local Government Area Council in Cross River State; and the southern estuarine boundary between Calabar municipality, Akpabuyo and until recently Bakassi Local Government in Cross River State and Oron, Udung-Uko and Mbo in Akwa-Ibom State.
Whether the jurisdiction of the Supreme Court in respect of boundary delimitation is exercisable subject to the prior determination of the boundary dispute by the National Boundary Commission?
FACTS
The plaintiff's claims in this matter were mainly against the second defendant, Akwa-Ibom State. The claims were inter alia, for declarations that the boundary between Cross-River State and Akwa-Ibom State is as shown in the boundary delimitation by Nigeria Boundary Commission and an order for refund to the plaintiff of a sum of money which the plaintiff claimed to be its entitlement but which was wrongly paid to the second defendant. The second leg of the claim related to boundary disputes between the plaintiff and the second defendant. The plaintiff sought inter alia, an order for the return of certain villages, communities and settlements which were currently being administered by the second defendant.
The plaintiff was essentially challenging the boundary delimitation published by the National Boundary Commission in 2002. In its monetary claim, the plaintiff contended that its entitlement to revenue accruing to the Federation Account from mineral oil exploration activities within its boundaries had been reviewed downwards as a result of the incorrect boundary delimitation.
HELD
1. On jurisdiction in respect of boundary delimitation disputes
The National Boundary Commission etc. Act Cap. 238 Laws of the Federation of Nigeria, 1990 does not clothe the National Boundary Commission with exclusive jurisdiction over boundary disputes and, therefore, the plaintiff was not obliged to await a determination by the Commission before approaching the Supreme Court for a determination of its boundary. Per Edozie, JSC at 147.
2. On the nature of a boundary
A boundary is an imaginary line which marks the confines or line of division of two contiguous parcels of land. The term is also used to denote the physical objects by reference to which the line of division is described as well as the line of division itself. In this sense boundaries may be classified as natural and artificial according as to whether or not such physical objects are man-made. Thus, while a boundary can be proved by delimitation by a body statutorily vested with authority to do so, like the National Boundary Commission, it is by no means exhaustive of the method of proving same. Per Edozie, JSC at 147.
3. On the determination of the boundaries between the respective States
The court found that the non-estuarine boundary between the two States was as depicted in the plaintiff's plan. The court's finding was influenced by its view that it was in the interest of both parties that the status quo as at 1987 when the two states were created be maintained.
However, the court declined to make a finding regarding the estuarine boundary, until negotiations between Nigeria and Cameroon regarding the two countries' international boundary had been finalised. Per Edozie, JSC at 147.
4. On the downward adjustment of revenue
The plaintiff had not adduced sufficient evidence to prove its entitlement to the amount claimed in consequence of the downward adjustment of its revenue allocation from the Federation Account. However, the court awarded a lesser amount than that claimed, as it was accepted that the plaintiff was entitled to that amount. Per Edozie, JSC at 147.
The following cases were referred to in the judgment:
Nigeria
A-G, Bendel State v A-G, Federation & others (1983) NSCC Vol. 14, 181
A-G, Federation v A-G, Abia State & others (2001) 11 NWLR (Part 725) 689
A-G, Federation v A-G, Abia State & others (2002) 6 NWLR (Part 764) 542
Ekpenyong & others v Nyong & others (1975) 2 SC 78
Felix Okoli Ezeonwu v Charles Onyechi & 2 others (1996) 3 NWLR (Part 438) 439
Ogundairo & others v Okanlawon (1963) 1 All NLR 358
Yalaju-Amaye v Association of Reg. Eng. Const. Ltd (1990) 21 NSLE (Part 2) 462
Foreign
Iowa v Illinois 147 US.1, 13 SCC 238, 37 L ED 55 (1893)
New Jersey v Delaware 291 US 361. 54 Sct 407, 78 L Ed.847 (1934)
The following statutes were referred to in the judgment:
Nigeria
Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004
Constitution of the Federal Republic of Nigeria 1979: S 149(1)
Constitution of the Federal Republic of Nigeria 1999: Ss 162(1); 232(1)
Constitution of the Republic of Nigeria 1963
Cross River State Law No 9 of 1983: S 4(1)(d)
National Boundary Commission etc. Act, Cap. 238 Laws of the Federation of Nigeria, 1990: S 3
States (Creation and Transitional Provisions) Act 12 of 1976
The following laws were referred to in the judgment:
Law No 12 of 1976: S 4
Law No 24 of 1987
The following books were referred to in the judgment:
Halsbury's Laws of England (4ed) at 390 et seq.
International Law Vol. I, Oppenheim's page 53 to para 1991
Edozie, JSC (Delivered the Leading Judgment):- Pursuant to the original jurisdiction conferred on the Supreme Court by Section 232(1) of the Constitution of the Federal Republic of Nigeria 1999, the plaintiff, the Cross River State (CRS for short) represented by its Attorney-General, by a writ of summons instituted this action in this Court against the defendants, the Federal Government of Nigeria (FGN) and the Akwa-Ibom State (AKS) respectively represented by their Attorneys-General. Pleadings were settled, duly filed, exchanged and subsequently amended. In the plaintiff's final pleadings that is, the fourth amended Statement of Claim, in paragraph 40 thereof, the reliefs sought against the defendants are formulated thus:-
"40 (1) The plaintiff's claim against the defendants is for:-
A declaration that the boundary between Cross River State (CRS) and Akwa-Ibom State (AKS) is as shown in the boundary delimitation by NBC dated 30 March 2004 and revised on 5 July 2004.
(2) Plaintiff's claim against the first defendant is for:
(a) an order of account of revenue that has accrued to the Federation Account from mineral oils derived from Cross River State on the basis of the derivation principle from 23 September 1987 to 28 May (sic) which Cross River State should have received but for the neglect, omission or wilful default of the Federal Government of Nigeria;
(b) an order for payment to Cross River State of any sums due from the Federation Account to Cross River State upon taking such account;
(c) an order of account of revenue due to the Cross River State from the revenue that has accrued to the Federation Account from mineral resources more particularly mineral oil derived from Cross River State from 29 May 1999 to date of judgment, being revenue which Cross River State should have received but for the neglect, omission or wilful default of the Federal Government of Nigeria;
(d) an order for payment forthwith of the admitted sum of N3,329,433,537.42 (sic) (three billion two hundred and thirty two million, four hundred and thirty-three thousand, five hundred and thirty-seven naira, forty-nine kobo) being areas of revenue due to CRS under the provisions of Section 162(2) of 1999 Constitution from May 29 to July 2002 and any additional sum due and thereafter until full payment thereof.
(3) The plaintiff's claim against the second defendant is for:-
(a) A declaration that (the) state (authority) to exercise administrative, executive, legislative and judicial powers or functions in or over:-
(i) all cities, towns and villages in Odukpani Local Government and more particularly in Obot Akapabio (sic), Ikot-Offiong Ebiti, Asang, Okpo, Afia Isong Plantation, Ikot Efa Bench, Etehentem, Idim Nkem, Nkpan Uruk, Ikot Essien Ekpe Inyang, Esuk Ediong, Mbiabo Ikot Edem, Mbiabo, Mbiabo Abasi Efiari, Mbiabo Ikoneto, Ikot Nya, Odu Mma-Edem, Ikot Akpana, Okoho, Akwa Efe, Akpa tre Efe, Odot Forest Reserve and Okpokong Bridge;
(ii) all cities, towns and villages in Calabar South Local Government Area (particularly Alligator Island, James Island and other unnamed Islands) and Akpabuyo Local Government Area; and
(iii) all cities, towns and villages in Bakassi Local Government Area, (particularly Bakassi Peninsular and its surrounding Islands) are vested in the Government of Cross River State (to the exclusion of the Government of Akwa-Ibom State); and
(b) an order of perpetual injunction restraining all arms of government, officer, employees, appointees, agents and servants of the Government of Akwa-Ibom State, or any persons or authority established by law in force in Akwa-Ibom State from exercising administrative, executive, legislative and judicial powers in or over any part of Cross River State and more particularly the areas set on in paragraph 40(3) (a) above."
In response to the plaintiff's fourth amended Statement of Claim (Statement of Claim for short) each of the two defendants filed a separate Statement of Defence with the second defendant sub-joining a counter-claim to his Statement of Defence wherein by paragraph 26 thereof, he counter-claimed thus:-
"26 (a) A declaration that the defendant is entitled to the revenue accruing onshore from the total production of Addax oil wells/fields of Abanga, Akam, Ebughu, Bogi, Ebughune, Ukpan, Mimbo, amounting to 4,532,608 barrels between June 1999 and June 2002; and the Monipulo oil wells/fields of Abana East and Abana West amounting to 25,198,556 barrels for the same period which by the clear and unambiguous admission of the Revenue Mobilisation and Fiscal Commission had never been accredited to the defendant.
(b) An order directing the first defendant to compute and pay to the second defendant its (sic) share of accrued revenue from Addax and Monipulo oil fields for the period June 1999 to June 2002 amounting to 29,731.164 barrels of crude petroleum.
(c) An order directing the second (error for first) defendant's agent RMAFC, to report on the production figures for Davy Bank, Obio, Efiat 1, Efiat 2, Okposo East, Tom Shot Bank 1, Tom Shot Bank 2, and Cross River which have never been assessed nor paid to the defendant for the purpose of computing the revenue due and payable to the state.
(d) A declaration that it was ultra vires the powers of the Governor of the old Cross River State to purport to alter the boundaries of the Local Governments in the state under the 1979 Constitution.
(e) A declaration that Obot Akpabio, Ikot Offiong Ebiti, Asang, Okpo, Afia Isong Plantation, Ikot Efa Beach, Etchentem, Idim Nkem, Nkpan Uruk, Ikot Essien, Ekpe Inyang, Esuk Ediong, Mbiabo Ikot Edem, Mbiabo, Mbiabo Abasi Efiari, Mbiabo Ikonet, Ikot Nya, Odu Mma-Edem, Ikot Akpana, Okoho, Akwa Efe, Akpatre Efe, Odot Forest Reserve and Okpokong Bridge have always been and remain part of Akwa-Ibom State."
In support of their pleadings, both the plaintiff and the second defendant tendered copious affidavit evidence and several documents which they relied upon to establish their respective cases. The plaintiff tendered the following affidavit evidence and exhibits:-
1. Affidavit of Ralph Idiku Uche, Surveyor-General CRS sworn on 24 June 2003 with Exhibits, 'CRSSG 2', 'CRSSG 3', 'CRSSG 4'.
2. Affidavit of Obu Kanu Uma, Deputy Surveyor-General CRS sworn on 24 June 2003 with Exhibits 'CRSDG 1', 'CRSDG 2', 'CRSDSG 3', 'CRSDSG 4', 'CRSDSG 5' and 'CRSG 1'.
3. Affidavit of Eyamba Henshaw, Accountant-General CRS sworn on 24 June 2003 with Exhibits 'CRSAG 1', 'CRSAG 2' and 'CRSAG 3'.
4. Affidavit of Mrs Rose Bassey, Accountant-General CRS sworn on 6 October 2004.
5. Additional Affidavit of Raphael Idiku Uche, Surveyor-General CRS sworn on 8 March 2005 with Exhibits 'CRSG 3', 'CRSG 4', 'CRSG 5', 'CRSG 6' and 'CRSG 7'.
6. Additional Affidavit of Mrs Rose Bassey, Accountant-General CRS sworn on 8 March 2005.
For the second defendant, the following affidavit evidence and exhibits were relied upon:-
1. Affidavit of Bassey Etim Akpan, Catographer AKS sworn on 23 October 2003 with Exhibits 'AK 1', 'AK 2', 'AK 3', 'AK4', 'AK 5', 'AK 6', 'AK 7', 'AK 8'.
2. Affidavit of Donatus Archibong Solicitor-General/Permanent Secretary AKS sworn on 29 March 2005.
Although there are two defendants in this case, the principal parties are the plaintiff and the second defendant. The bone of contention between them is the common boundary of their two states particularly:-
(a) their northern or non-estuarine boundary between Itu LGA in Akwa-Ibom State and Odukpani LGA in Cross River State and
(b) their Southern or estuarine boundary between Calabar municipality, Akpabuyo LGA and until recently Bakassi, LGA all in Cross River State and Oron, Udung and Mbo in Akwa-Ibom State.
While the plaintiff maintains that the Cross River which takes its source from Cameroon mountains, and flowing southwards empties itself into the Atlantic Ocean forms a natural boundary between the two riparian states, the second defendant contends that at some points the Cross River cuts across Akwa-Ibom State.
From the plaintiff's pleadings and the affidavit evidence of Mr R.I. Uche, Surveyor-General and Mr O.K. Umar, Deputy Surveyor-General both sworn on 24 June 2003, the plaintiff's case may be summarised thus:-
In 1967, the South Eastern State was created out of the Eastern Region of Nigeria and it comprised 14 divisions. The boundaries of the 14 divisions remained the same as depicted in the administrative map of South Eastern State (Exhibit 'CRSSG 2') which was changed to Cross River State in 1976 and comprised the area as set out in the Schedule to the Sates (Creation and Transitional Provisions) Act No 12 of 1976. As at October 1 1979 and up till 22 September 1987, Cross River State comprised the following 17 Local Government Areas: Calabar municipality, Abak, Ukanafun, Akamkpa, Odukpani, Eket, Etinan, Ikom, Ikot Abasi, Ikot-Ekpanem, Itu, Ikono, Obubra, Ogoja, Obudu, Oron and Uyo, with the boundaries of the constituent LGAs as reflected in the Administrative map of Cross River Exhibit 'CRSSG3'. On 23 September 1987, Akwa-Ibom State was created out of the then or old "Cross River State" and comprised 10 of the 17 of the aforesaid LGAs namely: Ikot-Ekpene, Abak, Eket, Ukanafun, Ikot-Abasi, Uyo, Etinam, Ikono, Oron and Itu. Before the creation of additional LGAs in the two states, the LGAs of the present Cross River Sate bounding Akwa-Ibom State were Calabar Municipality from which Calabar South LGA was created and Odukpani LGA out of which Odukpani, Akpabuyo and Bakassi LGAs were carved out.
It is the plaintiff's case that on 11 March 2002, the National Boundary Commission (NBC) announced and published a boundary delimitation showing distances and bearings of the boundary line between the two states. This delimitation as reflected in Exhibit 'CRSSG 4' tallies with the non-estuarine boundaries of the two states as described in Exhibit 'CRSSG 3' and this shows that the disputed communities mentioned in paragraph 40(3)(a)(i) of the Statement of Claim lie within Odukpani LGA of Cross River State.
With respect to the estuarine boundary, it is the plaintiff's case that the NBC's delimitation of 11 March 2002 Exhibit 'CRSSG 4' is not correct because the NBC based the delimitation on the median principle, that is, by taking the median of the Cross River. It is the plaintiff's case that the estuarine boundary between two states bounded by a river accessible to container and other ocean vessels (that is, a navigable river) is determined by taking the middle line of the deepest part of the navigable channel of such river (otherwise referred to as the navigable channel line or the thalweg). Adopting this principle and using the report of the Nigerian Navy which sets out the co-ordinates, width and average depths of the navigable part of the Cross-River, the boundary of the two states in the estuarine sector is as depicted in Exhibit 'CRSDSG 3'. It is further the contention of the plaintiff that as a matter of settled practice, the extent of the width of the sea abutting Cross River State and Akwa-Ibom State is determined by taking a perpendicular line from the meeting point of the "thalweg line" and "base line" up to the point permitted by law to the open sea as reflected in Exhibit 'CRSDSG 3' as a result of which the oil block OPL 98 containing the oil fields known as Adanga, Mimbo, Anta, Bogi and Ebughu now lie within Cross River State.
In the additional affidavit evidence of Mr R.I. Uche, Surveyor-General, CRS, sworn to, on 8 March 2005, it was averred thus:-
That following the enactment in 2004 of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act 2004, the NBC produced the Well Dichotomy Study Map (Map B6) Exhibit 'CRSG 1' which map depicted the maritime boundaries between the littoral states including the plaintiff and the second defendant as well as the location of oil wells within each state's maritime boundary up to the 200 metre isobaths; that sometime in 2002, following the judgment of the International Court of Justice in the case between Nigeria and Cameroon which gave sovereignty of Bakassi over Cameroon, the Presidents of Nigeria and Cameroon set up a mixed commission resulting in an agreement between Nigeria and Cameroon over the Bakassi peninsular; that on 14 January 2005 the President of Nigeria approved the review of the maritime boundary between the plaintiff and the second defendant which review is in substantial conformity with Exhibit 'CRSG 1' and as a result of this, new indices were to be used in calculating the oil revenue accruing to the plaintiff. In consequence of the revised boundary aforesaid, the second defendant commenced proceedings in the Federal High Court, Abuja in Suit No FHC/ABJ/CS/64/2005 but the suit was subsequently- withdrawn and struck out.
In respect of the plaintiff's monetary claim for N3,232,433,537.49k it is the plaintiff's case that the amount was admitted by the RMAFC as being the state's entitlement of Revenue accruing to the Federation Account from mineral oil exploration activities within its boundary for the period May 1999 to July 2002, but that subsequently the RMAFC stated that the said amount had been reviewed downward to N2,455,888,820.14k.
The case of the first defendant as pleaded in its Statement of Defence may be summarised thus:-
1. That the internal boundaries of Nigeria as set out in the (10ed) of the Administrative Map of Nigeria is at best approximate as the internal boundaries of Nigeria are being surveyed and demarcated by the NBC and
2. That the case of the plaintiff which is substantially a boundary dispute is presently being handled by the NBC and that since the internal boundaries of Nigeria are only just being surveyed/demarcated and the NBC is making "frantic effort" to resolve the boundary dispute between CRS and AKS, the plaintiff's action is pre-emptive of the outcome of the demarcation and survey of the boundary by the NBC and thus premature and speculative.
The case of the second defendant as set out in the affidavit of Mr Etim Akpan a Cartographer in the Ministry of Lands and Housing Akwa-Ibom State runs thus:-
The origin of the dispute of Akwa-Ibom and Cross River States over their boundary dates back to 1983 when the Governor of the Old Cross River State, purported to vary the boundaries of Itu and Odukpani Local Government areas of the then Cross River State by an Executive Order which act transferred some of the communities of Itu LGA to Odukpani LGA. At the creation of Akwa- Ibom State in 1987, the members of these communities refused to be bound by the Order until March 11 2002 when the NBC by fiat purported to acquiesce to the illegality by delimiting the boundary on the North-eastern end of Akwa-Ibom to exclude the disputed communities and their lands.
Since the creation of the two states in 1987, the boundaries of the two states, at the time the old Cross River State was split, have remained the boundaries of the South Eastern State renamed Cross River State in 1976. The boundaries of the Eastern Region as set out in Legal Notice 126 of 1954 was used in determining the boundaries of south Eastern Sate or Old Cross River State and from there both CRS and AKS. At the creation of Akwa-Ibom and the present Cross River States all communities existing in each of the Local Government Areas were deemed to continue to so exist, remain and form part of the states as presently constituted.
The only alteration to the boundary of the two states is at the estuary, which, as a result of the recent judgment of the International Court of Justice, Bakassi now belongs to the Republic of Cameroon. The ICJ established the coordinates which mark the new boundary between Nigeria and Cameroon as indicated in the British Admiralty Chart No 3433b - Exhibit 'AK1' and based on this, a chart showing the delineated boundaries and oil well locations are depicted in Exhibit 'AK 2'.
It is the second defendant's case that the Administrative Map referred to by the plaintiff as Exhibit 'CRSSG 2' was contrived and does not represent the official maps of the two states at the relevant time. The map, Exhibit 'AK3' produced by the second defendant's cartographer is a true reflection of the boundaries of the two states.
The NBC, on 11 March 2002, published a provisional boundary delimitation showing the co-ordinates of the boundary of the two states but the second defendant was totally dissatisfied with the exercise at the Northern end.
On 30 March 2004, the NBC also published the Well Dichotomy Study Map (Map B6) referred to by the plaintiff as Exhibit 'CRSG 1'. It is merely a working document used to study the probable effect of the ICJ's judgment on the location of oil wells in CRS and AKS and was never intended to delimit the maritime boundary of the two states.
The second defendant is aware that consequent upon the ICJ's judgment, negotiations had been going on between Nigeria and Cameroon but is not aware that the President has taken any decision in respect of the maritime boundary between CRS and AKS. In any case, the matter being sub judice any action taken in derogation of the authority of the court would amount to contempt.
Finally, the second defendant contends that the oil wells/fields at the estuary of the Cross River are located in AKS but are wrongly credited to CRS. These are Adax oil wells/fields of Adanga, Akan, Ebughu, Bogi, Ebughu ne, Ukpan, Mimbo and the Monipolo oil wells/fields of Abana-East and Abana West. Also located in AKS are the oil wells of Davy Bank, Obio, Efiati, Efiat 2, Okposo East, Tom Shot Bank 1, Tom Shot Bank 2 and Cross River.
In the advancement of their respective cases, the learned leading Counsel for the plaintiff, Mrs Nelly Andem-Ewa and Chief Assam E.A. Assam, learned Counsel for the second defendant, submitted written addresses and in addition proffered oral addresses in amplification of their written submissions. Learned Counsel for the first defendant did not file his written address timeously and on account of that, he did not present oral argument.
In the plaintiff's written address or brief, the following three issues are identified for determination:-
"(1) Whether by reason of the 'frantic effort' of the National Boundary Commission to resolve the boundary dispute between CRS and AKS and to demarcate and survey internal boundaries of Nigeria, the claim of the plaintiff is premature, speculative or otherwise incompetent?
(2) Whether the boundaries of CRS (and more particularly the boundary between CRS and AKS) are as set out in Exhibit 'CRSDSG 2', and if so whether it is competent of any state government, other than the government of Cross River State, to exercise executive, administrative or judicial power in or over the areas comprising CRS and more particularly in or over the cities, towns and villages set out in paragraph 42.3(a)(i), (ii) and (iii) of the plaintiff's third amended Statement of Claim.
(3) Whether CRS is entitled to the orders of account sought in this suit, and/or to judgment for the admitted sum of N3,232,433,537.49."
Issue 1 relates to the original jurisdiction of the Supreme Court as spelt out in Section 232(1) of the 1999 Constitution and the function of the National Boundary Commission established by the National Boundary Commission etc. Act, Cap. 238 Laws of the Federation of Nigeria, 1990 to, among other things, determine and intervene in boundary disputes. The issue raised is whether the jurisdiction of the Supreme Court in respect of boundary delimitation is exercisable subject to the prior determination of the boundary dispute by the National Boundary Commission. The contention of learned Counsel for the plaintiff on this issue is that there is nothing in the NBC Act which vests it with exclusive jurisdiction over boundary disputes and, therefore, the plaintiff is not obligated or otherwise bound to await a determination by the NBC before approaching this Court for a determination of its boundary with Akwa-Ibom State. Reference was made to the case of Attorney-General of the Federation v Attorney-General of Abia State & others (2001) 11 NWLR (Part 725) 689 at page 732 where it was held that in exercising its original jurisdiction, the jurisdiction of the Supreme Court can be the same or concurrent with that of the NBC. It was further argued that since the plaintiff's claim discloses a dispute between states, it falls within the ambit of the original jurisdiction of the Supreme Court and therefore not incompetent or premature.
Learned Counsel for the second defendant has not advanced a contrary view to the contention of the plaintiff's Counsel which I consider unassailable. Section 232(1) of the Constitution of the Federal Republic of Nigeria 1999 provides:-
"The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a state or between states if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends."
Under Section 3 of the NBC Act Cap. 239, Laws of the Federation 1990, the functions of the NBC are stated to be:-
"(a) To deal with, determine and intervene in any boundary disputes that may arise between Nigeria and any of her neighbours or between any two states of the Federation with a view to settling such disputes;
(b) To entertain any recommendations from the Technical Committee and to advise the Federal Government on such recommendations."
As can be seen from the above two provisions, it cannot be seriously suggested that before the jurisdiction of the Supreme Court is invoked in a boundary dispute between states, the NBC should have determined the dispute or completed its exercise in delineating the disputed boundary. No doubt, the completion of such exercise would be of tremendous assistance to the court. A boundary is an imaginary line which marks the confines or line of division of two contiguous parcels of land. The term is also used to denote the physical objects by reference to which the line of division is described as well as the line of division itself. In this sense boundaries may be classified as natural and artificial according as to whether or not such physical objects are man-made. Boundaries are fixed either:
(1) by proved acts of the respective owners as for example by agreement, assurance, undisturbed possession and estoppel;
(2) by statutes, or orders of the authorities having jurisdiction; and
(3) by legal presumption.
See Halsbury's Laws of England (4ed) page 390 et seq.
Thus, it is clear that while a boundary can be proved by delimitation by a body statutorily vested with authority to do so, like the NBC, it is by no means exhaustive of the method of proving same. If there is a statutory instrument that defined the boundaries of the affected LGAs of disputing parties, that will be credible evidence upon which the court can rely to make a declaration in respect of the disputed boundary. It is, therefore, my view that it is immaterial whether or not the NBC had concluded its exercise in delimiting the boundaries of CRS and AKS before the plaintiff can invoke the original jurisdiction of this Court provided that other credible evidence of proving the boundary is available.
Issue No2
Whether the boundaries of Cross River State (and more particularly the boundary between Cross River State and Akwa-Ibom State) are as set out in Exhibit 'CRSDSG 2', and, if so, whether it is competent of any State Government other than the Government of Cross River State to exercise executive, administrative and judicial power in or over the areas comprising Cross River State and more particularly in or over the cities, towns and villages set out in paragraph 42.3(a)(i), (ii) and (iii) of the plaintiff's third amended Statement of Claim (that is, paragraph 40(3)(a)(i), (ii) and (iii) of the fourth amended Statement of Claim).
Argument on this issue are advanced under two broad compartments, viz: (1) The non-estuarine boundary and (2) estuarine boundary.
In respect of the non-estuarine boundary, the learned Counsel for the plaintiff, Mrs Nelly Andem-Ewa in her written address, recounted the constitutional history of the two states from 1951 when as Calabar, Uyo and Ogoja provinces, they formed part of Eastern Nigeria, to 26 May 1967 when they were created as South Eastern State, then to 1976 when they were constituted as Cross River State with 17 LGAs and finally to 22 September 1987 when they were split into Cross River Sate with 7 LGAs and Akwa-Ibom with 10 LGAs. It is the contention of learned Counsel, that the boundaries of the LGAs before the creation of the two states remained unaltered after the creation and that Calabar Municipality and Odukpani LGAs of Cross River State share common boundaries with Akwa-Ibom State as shown on the maps Exhibits 'CRSSG 2' and 'CRSSG 3'. The boundaries as depicted in these exhibits are said to coincide with the report of the National Boundary Commission published on March 11 2002. With the boundaries as delineated, the disputed communities lie to the eastern flank of the Cross River as part of Odukpani LGA.
With regard to the estuarine boundary, the plaintiff contends that from point F to point L on Exhibit 'CRSDSG 2', the Cross River forms the natural divide between CRS and AKS with Cross-River, (Calabar South, Akpabuyo and of recent Bakassi LGAs) lying to the eastern bank of the Cross River while AKS (Oron, Uduong Uko and Mbo LGAs) is located to the western bank of the Cross River. It was further explained that from points OKL to the open sea as depicted in Exhibit 'CRSDSG 2' is an estuary which is a navigable body of water with its navigable channel indicated therein. Learned Counsel then submitted that it is the law that when, as in the instant case, the natural boundary between two states, is a navigable river, the line defining the boundary between the two states is the middle of the navigable (or main) channel of the river (otherwise called the middle of the thalweg). This rule of law, it is said, operates as a presumption of law and seeks to preserve the right of navigation of both states in the river. Reference was made to Oppenheim's International Law Vol. 1 at page 53 to paragraph 1991 where the learned author stated the principle thus:-
"Boundary rivers are such rivers as separate two different states from each other. If such a river is not navigable, the imaginary boundary line as a rule runs down the middle of the river, following all turnings of the border line of both banks of the river. If navigable, the boundary line as a rule runs through the middle of the so-called Thalweg, that is, the middle channel of the river . . ."
As instances where the Thalweg principle was followed by the United States Supreme Court, the following cases were cited:- Iowa v Illinois 147 US.1, 13 SCC 238, 37 L ED 55 (1893), New Jersey v Delaware 291 US 361. 54 Sct 407, 78 L Ed.847 (1934).
It is submitted that the principle of the thalweg is part of the jurisprudence of Nigeria's legal system for in defining the boundaries of the Eastern Region, the Cross River was mentioned with reference to its thalweg.
Adopting the thalweg principle, learned Counsel submitted that the boundaries of the land mass on either side of the part of the Cross River is as represented in Exhibit 'CRSDSG 3'. Finally it was urged that the width of the sea abutting CRS is measured by taking a perpendicular line from the meeting point of the base line and the thalweg line of the Cross River to the open sea up to the limit permitted by law as shown in Exhibit 'CRSDSG 3'.
In response to the above submission, learned Counsel for the second defendant, with respect to the non-estuarine boundary noted that under the Local Government Law 1976, Itu LGA was one of the 17 LGAs of the old Cross River State. One of the constituent wards of the said Itu LGA was Oku/Mbiabo/Ayadehe which comprises the disputed communities referred to in paragraph 40(3)(a)(i) of the Statement of Claim. Learned Counsel further noted that upon the creation of the present Cross River and Akwa-Ibom States in 1987, Itu Local Government Area with the said Oku/Mbiabo/Ayanehe ward became part of AKS and inconsequence the disputed communities are in AKS. Citing the case of Yalaju-Amaye v Association of Reg. Eng. Const. Ltd (1990) 21 NSLE (Part 2) 462 on the grant of equitable relief in support of a legal right, learned Counsel submitted that the plaintiff has not established any legal right to be entitled to the declaration sought in regard to those communities and that the NBC was in error in purporting to delineate the second defendant's North Eastern border to exclude them. With respect to the estuarine border, learned Counsel contends that the situation in America with independent states is not the same as the Nigerian situation; that the authorities referred to by plaintiff's Counsel were cited out of context and that the thalweg principle is not a universal and equitable method applicable in boundary delineation between riparian states as demonstrated in the judgment of ICJ in the case of Cameroun v Nigeria (supra). Learned Counsel further submitted that by the decision of that court whereby sovereignty over Bakassi is vested in Cameroon, CRS no longer has a seaward boundary and therefore does not share an estuarine boundary with Akwa-Ibom State.
Under the second issue for determination, the communities over which the plaintiff claims right to exercise executive, administrative and judicial power are set out in paragraphs 40(3)(a)(i), (ii) and (iii) of the fourth amended Statement of Claim. Paragraphs 40(3)(a)(i) relates to the non-estuarine boundary while paragraphs 40(3)(ii) and (iii) relate to the estuarine boundary. I propose to deal with them separately.
Communities in paragraphs 40(3)(a)(i):
The communities listed thereunder are:-
"all cities, towns and villages in Odukpani Local Government Area and more particularly in Obot Akpabio, Ikot Offiong Ebili, Asang, Ebiti Okpo, Afia Isong Plantation, Ikot Efa Beach, Etahentem, Idun Nkem, Nkpan Umik, Ikot Essien Ekpe Nyang, Esuk Ediong, Mbiabo Ikot Edem, Mbiabo, Mbiabo Abasi Efiari, Mbiabo Ikoneto, Ikot Nya, Odu Mma-Edem, Ikot Akpana, Okoho, Akwa Efe, Akpatre Efe, Odot Forest Reserve and Okpokong Bridge."
These disputed communities lie in between Itu LGA of AKS and Odukpani LGA of CRS. It seems the Cross River lies to the west of these communities. The plaintiff claims that the Cross River is the natural boundary of the two states and therefore the disputed communities on the East of that River are part of Odukpani LGA of CRS hence in their map Exhibit 'CRSDSG 2' the common boundary of the two states runs along the Cross River. The second defendant state on the other hand takes the opposite view, that is, that at some points the boundary does not lie along the Cross River but extends for a distance east of the river to encompass the disputed communities and it has tailored its boundary plan Exhibit 'AK 4' to that effect. The crucial issue is whether the disputed communities are in Itu LGA of AKS or Odukpani LGA of CRS.
It is common knowledge that every Local Government Area has a Local Government Council established to administer its area. The councils are made up of constituent wards. I think the best method of determining the Local Government Area to which the disputed communities belong and in resolving the boundary dispute is by reference to the instruments establishing Itu and Odukpani Local Government Councils as such instruments would define the extent of their areas of authority. From the submissions of learned Counsel for the second defendant and affidavit evidence, it seems that the disputed communities originally formed a ward known as Oku/Mbiabo/Ayadehe in Itu Local Government Council. Learned Counsel explained that by an Order of the Governor of the Old Cross River State made in 1983, the disputed communities were transferred from Itu LGA to Odukpani LGA pointing out that the transfer was ultra vires the power of the Governor as a result of which the transfer was null and void. It is apt to quote the submission of learned Counsel in this regard. At page 38 paragraph 70 of his brief, he said:-
"70 In 1983, the Governor of (Old Cross River State) purporting to act under the Cross River State Traditional Rulers' Law 1978 pretended to vary the villages which made up some of the clans in the state and in the process moved villages and clans across Local Government borders and put in other Local Government thereby giving the impression that these communities had been moved from one Local Government to another without an express amendment to the political composition of the Local Government and the wards."
Earlier, at paragraph 69 of the said brief, it was stressed that there was no Act of Parliament altering the composition and structure of the LGA. The 1983 Order referred to by learned Counsel was published as CRLN No 5 of 1983 in the Supplement to Cross River State of Nigeria Gazette No 34 Vol. 10 of 25 August 1983 and is titled "Local Governments, Clans, villages (variation) Order No 1 of 1983." It was made by the then Governor of Old Cross River State, Dr Clement Isong, pursuant to the Traditional Rulers Law 1978 (Edict No 14 of 1978). The contention of the second defendant appears to be that when the disputed communities were transferred from Itu to Odukpani Local Government Area, the relevant instruments creating the Local Government Councils of the two Local Government Areas were not amended in consequence of which the disputed communities continued to be part of Itu Local Government Area of Akwa-Ibom State.
It is my view, that whatever flaws that might have been attendant with in the transfer of the communities concerned, they were de facto transferred from Itu Local Government Area to Odukpani Local Government Area. The transfer was effected in 1983 before the old Cross River State was split. There is no evidence that at the time of the transfer the disputed communities or the people of Itu LGA protested. It does not seem that the Governor could wake up one morning and proceed to alter indiscriminately the existing local government structure without justification. The presumption is that the Governor in making the 1983 order acted in the best interest of the people of the entire area of the old Cross River State. There is a provision in Section 4(1)(d) of the Cross River State Law No 9 of 1983, for the alteration of the composition of a Local Government Council. It seems to me too late in the day for Akwa-Ibom State to complain about the transfer of the disputed communities which was effected more than 20 years ago. It is in the interest of both parties that the status quo as at 1987 when the two states were created be maintained. That position is that the disputed communities together with Odot Forest Reserve and Okpokong bridge are in Odukpani Local Government Area of the present Cross River State. It is my view that the reference to Odukpani LGA in Part 1 of the First Schedule of the 1999 Constitution includes the disputed communities and since the geographical boundary of the disputed communities extends to the Cross River, it is my judgment that the boundary between Akwa-Ibom State and Cross River State in the non-estuarine sector lies along the Cross River as depicted in the plaintiff's plan Exhibit 'CRSDSG 2'.
Estuarine Boundary
Communities mentioned in paragraphs 40(3)(a)(ii) and (iii) of the fourth amended Statement of Claim:
"(ii) All cities, towns and villages in Calabar South Local Government Area (particularly Alligator Island, James Island and other unnamed Islands) and Akpabuyo Local Government Area and
(iii) All cities, towns and villages in Bakassi Peninsular and its surrounding islands)."
These communities are located at the vicinity of the estuary of the Cross River. As stated in the plaintiff's Reply brief, filed on 8 March 2005, the claim in respect of the said communities has been abandoned and substituted with the claim in paragraph 40(1)(a) which reads thus:-
"(a) a declaration that the boundary between Cross River State and Akwa- Ibom State is as shown in the boundary delimitation by the NBC dated 30 March 2004 and revised on5 July 2004."
The contention of the plaintiff is that notwithstanding the judgment of the ICJ in the dispute between Nigeria and Cameroon whereby Cameroon was adjudged to have sovereignty over Bakassi peninsular, a decision which adversely affected the seaward boundary of Cross River Sate, Nigeria and Cameroon through their mixed commission have almost concluded agreement with regard to Bakassi peninsular. In consequence of that agreement, the NBC, reviewed the maritime boundary between CRS and AKS in terms substantially in accord with the Well Dichotomy Map (Map 6) of 30 March 2004 revised as at 5 July 2004. The revised boundary map Exhibit 'CRSG 1' was said to have been approved by the President on 24 January 2005.
In considering the merit of the plaintiff's case, it is important to bear in mind, that the effect of the judgment of ICJ dated 10 October 2002 on the Land and Maritime boundary case between Nigeria and Cameroon is that it has wiped off what used to be the estuarine sector of Cross River State as a result of which the state is hemmed in by the new international boundary between Nigeria and Cameroon. That being the case, there seems to be no longer any estuarine boundary between Akwa-Ibom State and Cross River State. If the "median line" principle or the thalweg principle is adopted in drawing the boundary line along the Cross River between CRS and AKS, the line must intersect the new maritime boundary line (maroua line) between Nigeria and Cameroon with the result that Cross River no longer has a seaward boundary. For the foregoing reason, it seems to me unnecessary to consider the question about the applicable principle in determining the maritime boundary between the two states.
Notwithstanding the judgment of the ICJ, the plaintiff relies on an agreement said to have been reached between Nigeria and Cameroon. In this regard, paragraphs 16, 17, 18, 19, 20, 21 and 22 of the affidavit of Rephael Idiku Uche are pertinent and are reproduced hereunder:-
"16 That sometime in 2002 the Presidents of Nigeria and Cameroon set up the Cameroon/Nigeria Mixed Commission with the United Nations as facilitators, to address any difficulties arising from the implementation of the judgment of the ICJ.
17. That negotiations have almost been concluded with regard to the Bakassi Peninsular.
18. That on 4 January 2005 National Boundary Commission wrote to the President to approve the reviewed maritime boundary between the plaintiff and the second defendant, which review is in substantial conformity with Exhibits 'CRSG 1' . . .
19. That on 14 January 2005, the President approved the review . . .
20. That on 24 January 2005, the NBC wrote to the RMAFC conveying the President's approval of the reviewed maritime boundary between the plaintiff and the second defendant.
21. That I am informed by the plaintiff and I verily believe him that on the 8 February 2005, the second defendant's Government instituted a suit at the Federal High Court holden at Abuja in Suit No FHC/ABJ/CS/64/2005 against the NBC, DPR, RMAFC, Accountant-General of the Federation, the plaintiff herein . . .
22. That I am informed by the plaintiff and I verily believe him that in paragraph 22 of the affidavit in support of the Exhibit 'CRSG 7' (second defendant's Originating Summons)
That the second defendant's Government has stated that it does not oppose the return of the plaintiff's oil wells . . . which oil wells are in the oil fields known as Abana, Adanga, Bogi, Ebughu, Etoro, Mimbo, Okwok and Oron."
It can easily be seen from paragraph 17 of the above affidavit, that the Revised Boundary delimitation of the NBC dated 5 July 2004 which the plaintiff is urging this Court to declare as the maritime boundary of the two states is predicated on the negotiations between Nigeria and Cameroon which negotiation is almost but not finally concluded. By paragraph 22 of the said affidavit, the plaintiff gave the impression that the second defendant is not opposed to the plaintiff's claims to the oil fields stated therein. But from the second defendant's counterclaim, most of those oil fields are claimed by the second defendant in paragraph 26 of his counterclaim. It is, therefore, clear to me that the Revised boundary delineation by NBC is not a product of an agreement between CRS and AKS contrary to the representation of the former. It also needs to be stressed that the NBC revised Boundary Map was made and allegedly approved by the President at a time when the boundary dispute was sub judice. It has been said that the making of a declaratory order is within the discretion of the trial court and that such discretion should not be readily exercised, see Ogundairo & others v Okanlawon (1963) 1 All NLR 358, per Taylor, JSC.
In the light of the observations I have expressed above regarding the NBC Revised boundary delimitation, I do not feel comfortable to grant the declaration sought. Until both Nigeria and Cameroon conclude their negotiation to finality and the international boundary fixed by the ICJ is modified and published, in line with the agreement, it will be premature for this Court to determine the maritime boundary of the two states.
Issue 3
Whether Cross River is entitled to the orders of account sought in this suit, and/or to judgment for the admitted sum of N3,232,433,537.49 (three billion, two hundred and thirty-two million, four hundred and thirty-three thousand, five hundred and thirty-seven naira, forty-nine kobo.)
The circumstances relating to the plaintiff's claim to the sum of N3,232,433,537.49k are set out in the affidavit evidence of Mrs Rose Bassey, Accountant-General Cross River State. Paragraphs 21 to 24 are pertinent and are reproduced hereunder:-
"21 By a letter dated 15 July 2003 ref GO/3/19 Vol. 11/346 (Exhibit 'CRSAG 1') Cross River State made a demand on the Federal Government of Nigeria, through RMAFC, for a proper account of its entitlement of the revenue accruing to the Federation Account from mineral resources within the boundary of Cross River state.
22. In consequence of Exhibit 'CRSAG 1' above, the RMAFC by letter dated 2 September 2002, ref. RMC/SEG/613/Vol. I/178, (Exhibit 'CRSAG 2') wrote to the office of the Accountant-General of the Federation admitting that Cross River State was entitled under the derivation principle from May 1997 to July 2002 to the sum of N3,232,433,537.49 being its entitlement of revenue accruing to the Federation Account from mineral oil exploration activities within its boundary for the said period.
23. By another letter dated 30 March 2003, (Exhibit 'CRSAG 3') RMAFC wrote to the Minister for Finance advising that the amount due to Cross River State as its entitlement from revenues accruing to the Federation Account from mineral oil exploration activities within its boundaries under the derivation principle for the period May 1997 to July 2002 had been reviewed downward to N2,455,888,820.14."
In an endorsement of Exhibit 'CRSAG 3' to the Governor of Cross-River State, RMAFC explained the reason for the downward review in paragraphs 2 and 3 of the endorsement thus:-
"2. You would have observed that in our letter reference RMC/SEC.013/Vol. 1/178 of 2 September 2002 addressed to the Accountant-General and endorsed to you in response to your letter No 90/S/18/Vol. 2/345 of 15 July 2002 . . . we did advise the Accountant-General of the Federation to refund to your state, the sum of N3,232,488,537.49 (three billion, two hundred and thirty-two million, four hundred and thirty-three thousand five hundred and thirty-seven naira and forty-nine kobo only based on the old indices used before the Supreme Court judgment in suit No SC/28/2001 of 5 April 2003.
3. However, with the Supreme Court judgment on offshore and onshore dichotomy and the revision of the indices arising from the verification of oil wells that fall within the boundaries of littoral states, new indices have had to be computed, thereby reducing the amount due for refund to your state to N2,455,888,820.14 (two billion, four hundred and fifty five million, eight hundred and eighty-eight thousand, eight hundred and twenty naira, fourteen kobo only)."
It is manifest from the above explanation that the downward revenue of the revenue accruing to the plaintiff was as a result of the implementation of the judgment of this Court in which new indices were used to re-calculate the plaintiff's entitlement. The plaintiff has not placed before this Court evidence to fault the new indices used. It is, therefore, my view that the plaintiff has not established its entitlement to the sum of N3,232,433,537.49 as claimed but the entitlement of the lesser sum of N2,455,888,820.14 has been proved. While a court cannot award more than what a plaintiff claims, it can award less, see Ekpenyong & others v Nyong & others (1975) 2 SC 78 at 80-81; Felix Okoli Ezeonwu v Charles Onyechi & 2 others (1996) 3 NWLR (Part 438) 439. In the instant case, since there is uncontradicted evidence of the admission by the RMAFC that the plaintiff is entitled to the lesser sum of N2,455,888,820.14, judgment will be entered in favour of the plaintiff in respect of that sum.
With respect to the prayer for an order of account, it is conceded that by virtue of Section 162(1) of the Constitution of the Federal Republic of Nigeria 1999, that the Federal Government holds the position of a trustee in respect of all monies paid into the Federation Account on behalf of the states from which the revenue was generated. As was decided by this Court in the case of Attorney-General Bendel State v Attorney-General of the Federation & others (1983) NSCC Vol. 14, 181 at page 193 this Court, per Uwais, JSC as he then was, while interpreting Section 149(1) of the 1979 Constitution, which is in pari materia with Section 162(1) of the 1999 Constitution observed thus:-
"It is settled that it is the duty of a trustee to keep a proper account of the trust he administers. And the beneficiary has a right to call upon the trustee for accurate information as to the state of the trust. Consequently, it is imperative for the Federal Government to render accurate and regular account to the beneficiaries of all monies paid into the Federation Account when requested to do so."
See also, the case, of Attorney-General of the Federation v Attorney-General Abia State & others (2002) 6 NWLR (Part 764) 542. In the instant case, however, plaintiff's claim for an account in paragraphs 40(2)(a), and (c) is on the allegation that the Federal Government neglected, omitted or wilfully defaulted in furnishing such account to the plaintiff. There is no evidence placed before this Court to substantiate the allegation. Consequently the plaintiff is not entitled to the order of account.
It is convenient at this stage to advert to the second defendant's counterclaim. In considering the counterclaim, it is well to bear in mind that a counterclaim is a claim by the defendant against the plaintiff's claim. In the case in hand, paragraphs 26(a), (b), and (c) of the second defendant's counterclaim do not refer to the plaintiff and as such are incompetent. With respect to paragraphs 26(d) and (e) of the counterclaim, the declaration prayed for cannot be granted having regard to the views I have expressed to the effect that the disputed communities transferred to Odukpani LGA now belong to Cross River State.
Consistent with the several reasons given above, it is hereby ordered as follows:-
(1) Relief 40(1) of the plaintiff's claims is refused and struck out.
(2) Reliefs 40(2)(a), (b) and (c) of the plaintiff's claim are refused.
(3) The sum of money claimed in paragraph 40(2)(d) is refused but judgment is entered for the plaintiff against the first defendant in the sum of N2,455,888,820.14 (two billion, four hundred and fifty-five million, eight hundred and eighty-eight thousand, eight hundred and twenty-naira, fourteen kobo only).
(4) Reliefs 40(3)(a)(i) and (b) limited to 40(3)(a)(i) are granted.
(5) Reliefs 26(a), (b) and (c) of the counter-claim are struck out.
(6) Reliefs 26(d) and (e) of the counter-claim are dismissed.
As each party has equally failed and equally succeeded, the order of this Court is that costs shall remain where they were incurred.
Uwais, CJN:- I have had the opportunity of reading in draft the judgment read by my learned brother Edozie, JSC I entirely agree with him that as each party succeeds in part there should be no order as to costs. Each party should bear its costs.
Katsina-Alu, JSC:- I have had the advantage of reading in draft the judgment delivered by my learned brother Edozie, JSC. I entirely agree with it.
It is not in dispute that the disputed communities originally formed a ward known as Oku/Mbiabo/Ayadehe in the Itu Local Government Area. The parties are also agreed that by an order of the Governor of the old Cross River State made in 1983, the disputed communities were transferred from Itu Local Government Area to Odukpani LGA. The transfer was effected before the old Cross River State was split. It is only right that the status quo as at 1987 when the two states were created be maintained. It follows therefore that the communities which the plaintiff claims in the instant case, should remain where they were immediately before the old Cross River State was split.
As regards the monetary claim, I am in total agreement that the sum of N2,455,888,820.14 has been clearly established as the amount due to the plaintiff. It should be paid forthwith to the plaintiff.
I also agree, for the reasons stated by my learned brother, Edozie, JSC that the counterclaim fails. I also abide by all the orders made in the leading judgment, including the order as to costs.
Musdapher, JSC:- I have had the honour to read in advance, the judgment of my Lord Edozie, JSC just delivered with which I entirely agree. The dispute in this matter is mainly on the extent of the boundary between the two neighbouring states to wit (i) the northern land boundary between Itu Local Government Area Council in Akwa-Ibom State and Odukpani Local Government Area Council in Cross River State. (ii) The Southern estuarine boundary between Calabar Municipal, Akpabuyo and until recently Bakassi Local Government, Area Councils in Cross River State and Oron, Udung-Uko and MBO Local Government Area Councils in Akwa-Ibom State. While the claim of the plaintiff against the first defendant is mainly for an order to account and pay the revenue accruable and payable from the Federation Account to the plaintiff in view of the boundary adjustment.
In support of their pleadings the parties filed copious affidavit evidence with several document including maps, charts and letters. At the hearing of the matter the parties in addition to the written address made oral submissions in support and defence of their cases. Based purely on the facts, his Lordship in the judgment aforesaid, Edozie, JSC, has painstakingly lucidly and comprehensively examined, appraised and evaluated all the available evidence tendered in this matter and in my view came to the right conclusion. I adopt his reasoning as mine and I also, accordingly, order, as follows:-
(1) Relief 40(1) is refused and struck out.
(2) Relief 40(2)(a), (b) and (c) are refused.
(3) The sum of money claimed in paragraph (40)(2)(a) is refused but judgment is entered for the plaintiff against the first defendant in the sum of N2,455,888,820.14k (two billion four hundred and fifty five million eight hundred and eighty eight and twenty naira and fourteen kobo) only.
(4) Reliefs 40(3)(a)(i) and (b) limited to 40(3)(a)(i) are granted.
(5) Reliefs 26(a), (b) and (c) of the counter-claim are struck out.
(6) Reliefs 26(d) and (e) of the counter-claim are dismissed.
Each party to hear its costs.
Pats-Acholonu, JSC:- I have read in draft the judgment of my noble and learned Lord Edozie, JSC and I agree with him. This case has not much to do with law strictly speaking. In my view this should be a matter that ought to be settled politically. Access to the court is one of the principal pillars of democracy but for any matter relating to boundary dispute that can be resolved decently and easily with the assistance of the Boundary Commission, it is proper and just that resort to such resolution be made through that organ.
I abide by the orders in the leading judgment.
Oguntade, JSC:- The plaintiff, the Honourable Attorney-General of Cross-River State (hereinafter abbreviated as the 'CRS') commenced his suit on behalf of the Government of his State claiming against the Attorney-General of the Federation and the Attorney-General of Akwa-Ibom State (hereinafter abbreviated as 'AKS'). The dispute arose in connection with the northern or non-estuarine and the southern estuarine boundaries between the CRS and the AKS. The plaintiff in paragraph 40 of its fourth amended Statement of Claim seeks the under-mentioned reliefs:-
"40 (1) The plaintiff's claim against the defendants is for:
A declaration that the boundary between Cross-River State (CRS) and Akwa-Ibom State (AKS) is as shown in the boundary delineation by NBC dated 30 March 2004 and revised on 5 July 2004.
(2) Plaintiff's claim against the first defendant is for:
(a) an order of account of revenue that has accrued to the Federation Account from mineral oils derived from Cross River State on the basis of the derivation Principle from 23 September 1987 to 28 May (sic) which Cross River State should have received but for the neglect, omission or wilful default of the Federal Government of Nigeria;
(b) an order for payment to Cross River State of any sums due from the Federation Account to Cross River State upon taking such account;
(c) an order of account of revenue due to the Cross River State from the revenue that has accrued to the Federation Account from mineral resources more particularly mineral oil derived from Cross River State from 29 May 1999 to date of judgment, being avenue which Cross River State should have received but for the neglect, omission or wilful default of the Federal Government of Nigeria;
(d) an order for payment forthwith of the admitted sum of N3,329,433,537.42 (sic) (three billion two hundred and thirty-two million, four hundred and thirty-three thousand, five hundred and thirty-seven Naira, forty-nine kobo) being areas of revenue due to CRS under the provisions of Section 162(2) of 1999 Constitution from May 29 to July 2002 and any additional sum due and thereafter until full payment thereof.
(3) The plaintiff's claim against the second defendant is for:
(a) A declaration that (the State (authority to exercise administrative, executive, legislative and judicial powers or functions in or over:
(i) all cities, towns and villages in Odukpani Local Government and More particularly in Obot Akapabio (sic), Ikot-Offiong Ebiti, Asang, Okpo, Afia Isong Plantation, Ikot Efa Bench, Etehentem, Idim Nkem, Nkpan uruk, Ikot Essien Ekpe Inyang, Esuk Ediong, Mbiabo kot Edem, Mbiabo, Mbiabo Abasi Efiari, Mbiabo Ikoneto, Ikot Nya, Odu Mma-Edem, Ikot Akpana, okoho, Akwa Efe, Akapa Tre Efe, Odot Forest Reserve and Okpokong Bridge;
(ii) all cities, towns and villages in Calaba South Local Government Area (particularly Alligator Island, James Island and other unnamed Islands) and Akpabuyo Local Government Area; and
(iii) all cities, towns and villages in Bakassi Local Government Area, (particularly Bakassi Peninsular and its surrounding Islands) are vested in the Government of Cross River State (to the exclusion of the Government of Akwa-Ibom State); and
(b) an order of perpetual injunction restraining all arms of government, officer, employees, appointees, agents and servants of the Government of Akwa-Ibom State, or any persons or authority established by law in force in Akwa-Ibom State from exercising administrative, executive, legislative and judicial powers in or over any part of Cross River State and more particularly the areas set on in paragraph 40(3)(a) above."
The second defendant, the AKS raised a counterclaim against the plaintiff. The counter-claim reads:
"26 (a) A declaration that the defendant is entitled to the revenue accruing onshore from the total production of Addax oil wells/fields of Abanga, Akam, Ebughu, Bogi, Ebughune, Ukpan, Mimbo, amounting to 4,532,608 barrels between June 1999 and June 2002; and the Monipulo Oil wells/fields of Abana East and Abana West amount to 25,198,556 barrels or the same period which by the; clear and unambiguous admission of the Revenue Mobilisation and Fiscal Commission had never been credited to the defendant.
(b) An order directing the first defendant to compute and pay to the second defendant its (sic) share of accrued revenue from Addax and Monipulo oil fields for the period June 1999 to June 2002 amounting to 29,731.164 barrels of crude petroleum.
(c) An order directing the second (error for first) defendant's agent RMAFC, to report on the Production figures for Davy Bank, Obio, Efiat 1, Efiat 2, Okposo East, Tom Shot Bank 1, Tom Shot Bank 2, and Cross River which have never been assessed nor paid to the defendant for the purpose of computing the revenue due and payable to the State.
(d) A declaration that it was ultra vires the powers of the Governor of the old Cross River Stat to purport to alter the boundaries of the Local Governments in the State under the 1979 Constitution.
(e) A declaration that Obot Akpabio, Ikot Offiong Ebiti, Asang, Okpo, Afia Isong Plantation, Ikot Efa Beach, Etchentem, Idim nkem, Nkpan Uruk, Ikot Essien, Ekpe Inyang, Esuk Ediong, Mbiabo Ikot Edem, Mbiabo, Mbiabo Abasi Efiari, Mbiabo Ikonet, Ekot Nya, Odu Mma-Edem, Ikot Akpana, Okoho, Akwa Efe, Akpatre Efe, odot Forest Reserve and Okpokong Bridge have always been and remain part of Akwa-Ibom State."
My learned brother, Edozie, JSC has in the lead judgment, which I consider comprehensive in the manner it has dealt with the issues in the case, and expressed views and conclusions with which I entirely agree. I have nonetheless found it necessary to express my views by way of emphasis, on the plaintiff's claim as to the northern boundary and the second defendant's counter-claim thereto.
The plaintiff's claim as to the northern boundary between him and the second defendant is simple and easy to understand. The CRS was created a State in 1976 by Act No 12 of the same year. On 1 October 1979 and up till 22 September 1987, the Local Government Areas together constituting the land area of CRS were (1) Calabar Municipality, (2) Abak, (3) Ukanfun, (4) Akamkpa, (5) Odukpani, (6)Eket, (7) Etinan, (8) Ikom, (9) Ikot Abasi, (10) Ikot Ekpene, (11) Itu, (12) Ikono, (13) Obubra, (14) Ogoja, (15) Obudu, (16) Oron and (17) Uyo. On 23 September 1987 however, the AKS was carved out of the CRS and ten of the Local Government Areas constituting CRS were transferred to the new AKS. The ten Local Government Areas (hereinafter abbreviated as 'LGA') were (1) Ikoto Ekpene, (2) Abak, (3) Eket, (4) Ukanfun, (5) Ikot Abasi, (6) Uyo, (7) Etinan, (8) Ikono, (9) Oron and (10) Itu. The present CRS shares boundary with AKS at the old Calabar Municipality and Odukpani, LGAs. It was plaintiff's case that the areas or communities referred to in its claim 40(3)(1) were all in Odukpani Local Government Area which had been a constituent part of CRS since its creation in 1976.
The case of the second defendant, which serves both as an answer to plaintiff's claim 40(3)(1), and the arrowhead of its counter-claim is succinctly stated in paragraphs 9, 10 and 11 of the affidavit evidence of second defendant deposed to on 23 October 2003 by Bassey Etim Akpan, cartographer and Head of Department of Cartography, Ministry of Lands and Housing Akwa-Ibom State. The paragraphs read:-
"(9) The origin of the dispute of the Akwa-Ibom and Cross River States over their boundary has its origin in 1983 when the Governor of the old Cross River State, purported to vary the boundaries of Itu and Odukpani Local Government areas of the then Cross River State by an Executive Order, which act put some of the communities of Obot Akpabio, Ikot Offiong Ebiti, Asang, Okpo, Afia Isong Plantation, Ikot Efa Beach, Etechentem, Idim Nkem, Nkpan uruk, Ikot Essien Ekpe Inyand, Esuk Ediong, Mbiabo Ikot Edem, Mbiabo, Mbiabo Abasi Efiari, Mbiabo ikoneto, Ikot Nya, Odu Mma-Edem, Ikot Akpana, Okoho, Akwa Efe, Akpatre Efe, Odot Forest Reserve and Okpokong Bridge) in Okukpani Local Government Area of Cross River State.
(10) At the creation of Akwa-Ibom State in 1987, the members of those communities refused to be bound by the order until when on 11 March 2002 the National Boundary Commission, by fiat purported to acquiesce the illegality by delimiting the boundary on the North Eastern end of Akwa-Ibom Stat to exclude its people and lands underlined in paragraph 9 above.
(11) Since the creation of the two States in 1987, as admitted by the plaintiff, the boundaries of the two States at the time of the split of the old Cross River State into the new Cross River and Akwa-Ibom States have remained the boundaries of the South Eastern State which in 1976 was renamed Cross River Stat. The boundaries of the Eastern Region, (set out in Legal Notice 126, of 1954), was used in determining the boundaries of South Eastern State and in consequence the old 'Cross River States', and from there both CRS and AKS. At the creation of Akwa-Ibom and the new Cross River States, all communities existing in each of the Local Government Areas wee deemed to continue to so exist remain and form part of the States as presently constituted."
It is apparent that whilst the plaintiff bases the claim on the Laws which created the CRS and AKS in 1976 and 1987 respectively, the second defendant relies on the same laws with the extrapolation that the adjustment made in the areas or communities constituting Odukpani LGA in 1983 by the Governor of the old CRS could not be recognised as it was invalidly done. In effect, the second defendant contends that Odukpani LGA is indeed part of CRS provided the adjustment of 1983 is not recognised or taken into account. It was this adjustment, which moved some areas or communities from Itu LGA now in AKS to Odukpani LGA now in CRS. It is thus seen that the second defendant's resistance to plaintiff's claim is substantially premised on an alleged invalidity of a 1983 order made by the incumbent Governor of CRS which at the time included the LGAs now constituting AKS.
There is no doubt that CRS was created by Law No 12 of 1976. The said Law sets out the LGAs constituting the State. Section 4 of the Law No 12 of 1976 makes provisions for setting up a States Boundaries Adjustment Commission, which was charged with responsibility for adjusting the boundaries of any State created under the said Law. The boundary of CRS was however not altered or adjusted at anytime before the creation of AKS by Law No 24 of 1987.
Under the 1963 Constitution of the Republic of Nigeria, Local Government was a matter within residual list and a matter within the competence of the Regional Governments. In the exercise of that power the Regional Governments constituted area or communities into specific Local Government Areas. Following the advent of Military rule in Nigeria, States were created from the existing regions. The practice followed in the creation of these States was that Local Government Divisions or Areas, which existed, were identified and grouped together to constitute the new States being created. What actually happened was that some LGAs were excised from an existing Region or State to constitute a new State as the need arose.
In the case of CRS and AKS, the South Eastern State was created in 1967 and it comprised of 14 divisions. In 1976, when the CRS was created by Act No 12, the 17 LGAs constituting the new CRS were identified and named.
In 1987, ten of the LGAs of CRS were excised to form AKS. The Law creating AKS in 1987 had not named the areas or communities that were to constitute AKS. Neither did the Law concern itself with the internal administrative engineering, which had taken place within CRS between 1976 when CRS was created and 1987 when AKS was excised out of CRS. There is no doubt that in 1983, the incumbent Governor of CRS transferred some areas or communities from Itu LGA to Odukpani LGA but the impropriety or invalidity of such transfer was never brought to the attention of the then Military Government when in 1987 AKS was created. The AKS was therefore created by reference to the LGAs as they stood immediately before 1987. In any case, it is doubtful if an area or community would have been able to contend successfully that it did not wish to be placed in a particular LGA.
The result is that the towns, villages and communities in Odukpani Local Government Area as at 22 September 1987 when AKS was created from CRS must continue to be a part of the same LGA and consequentially a part of CRS. The plaintiff's claim No 40(3)(a)(i) must therefore succeed.
With respect to plaintiff's claim for N3,329,433,537.42 being arrears of revenue due to CRS under the provisions of Section 162(2) of the 1999 Constitution from 29 May to July 2002, I am satisfied that the first defendant has shown satisfactorily why that amount was reviewed downward to N2,455,888,820.14. The need to review the amount downward arose because of the necessity to comply with the judgment of this Court in an earlier dispute concerning the States of the Federation and the first defendant. I also agree with the lead judgment that the plaintiff is not entitled to more than N2,455,888,820.14.
And finally is the dispute concerning the estuarine boundary between CRS and AKS. There was the judgment of the International Court of Justice on 10 October 2002. The judgment in its effect wiped off what used to be the estuarine sector of Cross River State. That occurrence has made any attempt to apply either the "median line" principle or the "thalweg" principle unrealistic until a new maritime boundary between Nigeria and Cameroon is agreed and identified.
In the final conclusion, I agree with the lead judgment of Edozie, JSC. I would also make the same orders as in the lead judgment. I subscribe to the order on costs.
Akintan, JSC:- The disputes that led the plaintiff to institute this action in this Court under the original-jurisdiction of this Court are mainly between the plaintiff and the second defendant. The claims are, inter alia, for declarations and an order for refund to the plaintiff a specified sum of money which the plaintiff claimed to be its entitlement but which was wrongly paid to the second defendant. The first defendant was joined as the trustee through whom disbursements due to the states are made. The second leg of the claim relates to boundary disputes between the plaintiff and the second defendant. The plaintiff is seeking, among others, for an order of this Court for a return of certain named villages, communities and settlements which are at present being administered by the second defendant.
I had the privilege of reading before now the leading judgment just delivered by my learned brother, Edozie, JSC. He has painstakingly set out all the issues raised in the case, discussed them extensively and came to conclusions which are entirely agreeable to me. I therefore adopt them.
I entirely agree with the views expressed in the leading judgment that the boundaries of states created as a result of carving out new states from existing states should be in line with what were in existence immediately before the carving out of portions of the state from which the newly created states emerged. It follows therefore that the communities being claimed in the instant case, should remain where they were immediately before the plaintiff and the second defendant states were split into two states. I also believe and hold that the sum of N2,455,888,820.14 which has been clearly established as an amount due to the plaintiff, should be paid forthwith to the said plaintiff.
As regards the counterclaim, I share the same views as expressed in the leading judgment that Reliefs 26(a), (b) and (c) of the counterclaim should be refused and struck out while Reliefs 26(d) and (e) should be dismissed and I make the same orders. I also abide by all the orders made in the leading judgment, including that on costs.
Claims partly allowed.
ALHAJI YINUSA DAODU (T/A ALHAJI YINUSA DAODU & SONS) v. NIGERIAN NATIONAL PETROLEUM CORPORATION AND 3 OTHERS (SC 220/1994) [1998] 1 (23 January 1998); Injunction Injuctions and interdicts Civil Remedies Energy Minerals and energy Environmental law Environmental damages Environmental remedies EL IndexThis matter dealt with an appeal from the appellate court. The applicant questioned whether an appellate court could rightly formulate issues arising from a dismissed appeal in the determination of a separate appeal in the same case.
The appellant, discovered that the access road to his garage had been blocked by a trench that had been dug across it by the 1st respondent. He claimed to have suffered damages in lost revenue during the closure of the access road and was awarded special damages jointly, against the second and third respondents.
He appealed this decision claiming to have suffered more than the general public but was denied the appeal. He claimed that that the refusal of the trial court Judge to visit the place of interest affected the outcome and that the latter court had been wrong in formulating that particular issue.
This court determined that the Court of Appeal had merely referred to the fact that a visit to the place of interest would have assisted the trial court in determining whether the trench had really caused an obstruction of such immense proportions, as alleged. The court was assessing the appellant's evidence as a whole in order to decide whether he, had in fact suffered over and above what was possibly suffered by the general public
Further that the appellant had failed to prove that he had suffered damages over and above that possibly suffered by the public, or that the first respondent had caused such damage.
Appeal dismissed.
S v Nangombe (SA 2/93) [1994] NASC 3 (07 October 1994); EL Index Minerals, oil and gas Minerals and energy Environmental lawThis matter dealt with an appeal against both conviction and sentence of the contravention of ss 30(1) and 28 of Proclamation 17 of 1939 pertaining to the theft of diamonds.
The Supreme Court considered whether contradictions in the state case raised reasonable doubt. The court considered that the failure to testify when there is direct evidence of an offence, tends to strengthen the direct evidence, because there is nothing to contradict it. In this case the state witness gave evidence implicating the appellant which called for an answer but did not receive one.
The court considered whether the state witness was a trap. The definition of a trap is someone who proposes criminal conduct to someone else with the intention of securing the conviction of that other person whilst ostensibly taking part himself. The court considered that the state witness took part in the commission of the offence, knowingly stood to gain from the appellant’s arrest and had broached the subject. However, the appellant should have challenged the truth of the assertions made by the witness which he did not. Accordingly, the court held that the appeal against conviction had no merit.
The court considered mitigating factors, particularly entrapment. The court determined that the interests of society are safeguarded by a system of justice that excludes the false entrapping of innocent people because it may bring to court people who had no interest in stealing diamonds. Accordingly, the court upheld the appeal against sentence.
Moly-Copper Mining and Exploration Company (SWA) Limited v IMCOR Zinc (Pty) Ltd and Another (SA 3/94) [1994] NASC 7 (08 December 1994); EL Index Declaratory Relief Civil Remedies Minerals, oil and gas Minerals and energy Environmental law Injunction Injunctions and interdicts Civil RemediesThe matter dealt with the interpretation of particular terms of a prospecting agreement which arose from the mining of a grant area.
The Supreme Court considered whether to declare that clause 8 (a) created an obligation to provide sufficient funds on a continuing basis. The test was whether the obligation to fund was limited. The appellant’s argument was based upon a literal reading which the court held was absurd as it would result in regarding the obligation as an unlimited one. Accordingly, the court held that the express terms of the clause contemplated further funding to be determined by a further mutual agreement.
The court considered whether clause 10 entitled the second respondent to call up its loan. The court reasoned that if the loan was never repayable it would not be a loan. The court held that the respondent, Iscor, was not precluded from calling up its loan and to say that it would be is far too wide.
The court considered whether to grant the declaratory order in terms of clause 9. The court found the prayer to be too vague to warrant a declaration. Accordingly, the court held that the declarator sought was without substance.
In order for a declarator to be granted the issue which the declarator seeks to address must be in dispute between the parties. In the circumstances there was no material time when there had been a dispute about the continued existence of the agreement. Accordingly, the court held that it would not grant the declarator sought.
The appeal was dismissed with costs.
Trade Line Namibia (Pty) Ltd v Nambib Resources (Pty) Ltd and Another (SA3/03) [2003] NASC 14 (12 August 2003); Judicial Review Appeals and reviews Civil Procedure Attribution of Costs Costs Civil Remedies Declaratory Relief Civil Remedies Minerals, oil and gas Minerals and energy Environmental law EL IndexThis was an appeal against the decision of the court a quo, which dismissed an urgent application on the ground that the application was not urgent.
The court dealt with the requirements for a judgment to be appealable. The court relied on the Erasmus Superior Court Practice, A1 – 43 in formulating the requirements. First, the decision must be final in nature and not capable of alteration by the court hearing the matter. Secondly, the decision must be definitive of the rights of the parties, through granting a definite and distinct relief. Lastly, it must have the effect of disposing a substantial portion of the relief claimed in the main proceedings.
Relying on Lubambi v Presbyterian Church of Africa, the court further found that the ruling that a matter is urgent and must procced on that basis, was found not to be an appealable ‘judgment or order’ and such an order is similar to an order giving direction in regard to evidence, or referring a matter to trial. It is therefore not appealable.
In removing the matter from the roll with costs, the court held that the case was concerned with procedure and not the substance of the application.
Namibia Grape Growers and Exporters Association and Others v Ministry of Mines and Energy and Others (SA14/02) [2004] NASC 6 (25 November 2004); EL Index Injunction Injunctions and interdicts Civil Remedies Locus standi in environmental litigation Litigation of environmental issues Environmental law Procedural Fairness Justice and fairness Civil Procedure Minerals, oil and gas Minerals and energy Environmental lawThis case was an appeal in the Supreme Court of Namibia against a judgment that dismissed the application brought by the appellants on an urgent basis and discharging a court order issued on 5 May 2000. This matter concerned provisions of the Minerals (Prospecting and Mining) Act No. 33 of 1992. An Exclusive Prospecting Licence 2101 (EPL 2101) was transferred to the third respondent, involved in diamond mining, on 25 June 1997 but it was alleged that its renewal happened without any notice to the landowner, involved in growing and marketing grapes, and who is one of the appellants in the case. The third respondent intended to excavate four pits of which two were situated within the area demarcated for further grape cultivation.
The appeal focused on three main issues, namely the constitutionality of Part XV of the Minerals Act, the review application regarding the renewal of EPL 2101 in 1998 and the application based on the provisions of section 52 of the same act.
The court concluded that Part XV was enacted in the public interest and for a legitimate object and is a reasonable mechanism whereby similar contesting rights are balanced to ensure equal protection of those rights in terms of the Constitution. It was on this basis that it could not be said that the provisions of Part XV of the Minerals Act are unconstitutional. Accordingly, the appellants’ appeal was dismissed with costs including those for the postponement of the appeal and further argument.
 |
 |
 |