A-G., IMO STATE V. A-G., RIVERS STATE
A-G., IMO STATE V. A-G., RIVERS STATE
- (1983)NSCC 370
In The Supreme Court of Nigeria
On Friday, the 12th day of August, 1983
Suit No: SC.82/1982
Before Their Lordships
ATANDA FATAYI-WILLIAMS -Justice of the Supreme Court
GEORGE SODEINDE SOWEMIMO – Justice of the Supreme Court
MOHAMMED BELLO – Justice of the Supreme Court
CHUKWUWEIKE IDIGBE -Justice of the Supreme Court
ANDREWS OTUTU OBASEKI – Justice of the Supreme Court
KAYODE ESO -Justice of the Supreme Court
MUHAMMADU LAWAL UWAIS – Justice of the Supreme Court
A-G., IMO STATE Appellant
A-G., RIVERS STATE Respondent
Chief F.R.A. Williams, S.A.N. (with him L.C. Alinnor, Legal Adviser, Imo State, L.
Williams, O.K Aderinokun (Mrs.) and P. Umeadl) For the Appellant
K Sofola, S.A.N. (with him Dr. M. Odje, S.A.N., M.O. Jinadu (Mrs.), K.S. Sofola) For the Respondent
SOWEMIMO, J.S.C.: (Delivering the Leading Judgment): In this action the plaintiff claims:
i. A declaration that the authority to exercise legislative, executive and judicial powers in or over the villages of Obunku, Ayama Umuosi, Egberu, Okokoma Afam Uku, Afam Nta, Mgboji, and Obeakpu, (in the Unilhueze 1 Local Council Area) and Umuagba, Okpontu, Maraihu Azuogu and Obete (in the Umuokobo Local Council Area) is vested in the Government of Imo State of Nigeria to the exclusion of the Rivers State of Nigeria;
ii. A declaration that the authority to exercise legislative, executive and judicial powers in or over the villages of Obigbo, Komkon and Obeama is vested in the Government of Imo State of Nigeria to the exclusion of the Government of Rivers State of Nigeria;
iii. An Injunction restraining all officers agents and servants of the Government of Rivers State from exercising legislative, executive or judicial powers in or over any of the villages mentioned under items (i) and (ii) above;
iv. A declaration that the area described as Ukwa in the First Schedule to the Constitution of the Federal Republic of Nigeria is the identical area comprising the Local Government described by that name in the First Schedule to the Imo State Local Government Edict No. 20 of 1976;
v. A declaration that the Ukwa Local Government established by the Imo State Local Government Edict No. 20 of 1976 is the proper lawful authority to exercise the powers and functions conferred by law on local governments in or over the villages mentioned under items (i) and (ii) above;
vi. An injunction restraining all other persons or authorities established by law in force in Rivers State from exercising any powers or functions in or over the villages mentioned under items (i) and (ii) above or any of them.
Pleadings were exchanged and evidence was called by both parties.
For the plaintiff the Governor of that State was one of the witnesses who have evidence. His Excellency became Governor of Imo State on 1st October, 1979.
Before then Imo State, which was created in 1976, was under Military Administration until 30th September, 1979. On the defendant's side, the Military Administrator, who was in control of the Administration of Rivers State up till 30th September, 1979, gave evidence for the defendant. Several documents were tendered by both parties. Some of the other witnesses who gave evidence on either side were, in the main, merely technical witnesses, in short, all that they had to do was either to tender plans, or official documents of the former Military Administration relating to the boundaries of the two States.
The case of the plaintiff was based principally on what constituted the area known as Ukwa Local Government under the Imo State. The defendant, on the other hand, claimed that certain areas of Ukwa, mainly Ndoki and Asa, which were formerly in the East Central State, from which Imo State was excised, were merged with the Rivers State as a result of the decision of the Military Administration, following the reports of the Irikefe Commission on Creation of States, and the Nasir Commission Report on Boundary Adjustments.
For the purpose of this case, it is not necessary to deal in detail the constitutional history of Nigeria. I shall however mention in general the relevant Orders in Council and Constitutions. This is for the purpose of setting out the constituent units of the country. Before 1951, Nigeria was ruled under a unitary government with a Governor at its head. For administrative purposes it was divided into Eastern Provinces, Northern Provinces, Western Provinces with the then Southern Cameroons and Lagos. By an order made under the Nigeria (Constitution) Order-in-Council 1951, No. 47 of 1951 and Public Notice No. 118 of 1951, the Provinces were changed into Regions with Southern Cameroons administered with the Eastern Region and Lagos as a Federal Territory. The boundaries of the regions were the same as the former constituent boundaries of the Provinces. By the Nigeria (Constitution) Order in Council 1954 further devolution of powers were made to the regions to make them semi- autonomous. This was Legal Notice No. 128 of 1964, but the boundaries of the regions remained the same, save that the Southern Cameroons was excised from the Eastern Region and treated as a Region.
Lagos remained as a Federal Territory and was treated as a region for administration purposes and as capital of Nigeria. Nigeria became an independent sovereign state by virtue of Nigeria (Constitution) Order in Council 1960, No. 1652, Legal Notice No. 159 of 1960. The boundaries of the constituent regions remained the same. The Constitution was replaced by the Constitution of the Federation in 1963, by which the country became a Republic. A new region excised from the Western Region, was created and this was the former Mid-Western Region, which became what is now known as the Bendel State. Throughout all these periods, except for minor adjustment of boundaries, where small areas were excised from some regions, the original boundaries which were formerly provinces, and later divisions remained unaltered.
Local governments were created in the regions. In January 1966, military administration took over the government of Nigeria. By virtue of the States (Creation and Transitional Provisions) Decree No. 14 of 1967, the Federation of Nigeria was divided into twelve states viz six states out of the former Northern Region, three states out of the former Eastern Region, Western and Mid-Western Regions remained unaltered and Lagos remained the capital. The area constituting the East-Central State is described as the present Eastern Region (excluding Calabar, Uyo and Ogoja Provinces and the Ahoada, Brass, Degema, Ogoni and Port Harcourt Divisions). The Rivers State areas comprised Ahoada, Brass, Degema, Ogoni and Port Harcourt Divisions.
In 1976, by Decree No. 12, the Federation was further divided into 19 States by virtue of states (Creation and Transitional Provisions) Decree 1976. It is significant that whilst Ukwa remains as part of Imo State, the following areas, Tai Eleme, Bori, Okrika and Bonny were made parts of the Rivers State. This would be shown later as the reason behind the remarks quoted in the Government White Paper of 1976 which will be referred to later in dealing with other areas of Imo State, its constituent included inter alia:
"Part of Ukwa"
The case of the plaintiff is that by construction of the Constitution of 1979, which came into operation on 1st October, 1979, Ukwa Local Government Area still forms part of Imo State. Historically, Ukwa comprises of Ndoki and Asa County Council Areas and these areas, the subject of the claim, comprised all the 17 villages named in the first and second claims. All of them are now merged with the Rivers State. When Imo State was created in 1976, out of the former East Central State, which area originally was part of the Eastern Region of Nigeria (better called Eastern Nigeria) the territorial area called Ukwa, fell within the Imo State. The whole of the Ndoki County Council and ASA County Council were therefore in Imo State.
Learned counsel, therefore, contends that so far as the present Constitution is concerned, the area of Imo State has never been split, nor, was any of the areas merged with the Rivers State. He then referred to an area called Otega in the constituent local government areas of the Rivers State, and submitted, that this did not mean or constitute any known geographical area.
The defendant, on the other hand, contended that when Imo State was created in 1976, it was only "part of Ukwa" that formed part of the areas within that State.
Reliance for this was placed on the Government White Paper, titled, "Federal Military Government views on the Report of the Panel on Creation of States", to which was attached a Schedule, setting out the local government areas of each State.
Under item 11 is set out the local government areas constituting Imo State. The last division was then described as "part of Ukwa". This was what the Federal Military Government accepted and approved, and thus, therefore, the question which remains for consideration is what part of Ukwa has been excised. May be it is relevant to quote this comment of the Federal Military Government dealing with Rivers State in paragraph 92 which reads inter alia:
''The Panel's other recommendations should also be accepted that the Rivers State should remain as it is subject to the minor boundary adjustment proposed".
The Nasir Boundary Adjustment Commission was later appointed and its recommendation under "The Ndoki Areas in Rivers State, Cross River State and Imo State" was published in the White Paper titled, "Federal Military Government's Views on the Reports of the Boundary Adjustment Commission ". Paragraphs 6 and 7 are relevant. They read:
"6. The Ndoki Clan straddles three States Imo, Rivers and Cross River – with the bulk of the Clan living on either side of the Imo River in the Imo State.
The Commission found that the Ndokis have consistently been treated as a minority. The bulk of the people living south of the Imo River were more inclined to accede to the Rivers State but the creation of the Imo State appeared to have changed several minds in favour of remaining in Imo State;
7. Besides there was the issue of peace and stability in the area. The Commission was convinced that the situation in this area was unstable and could easily get out of hand. In the circumstances, it felt that consideration of stability should transcend the wishes to keep all the Ndokis under one State.
Adoption of Imo River as the natural boundaries in this area, while having the effect of leaving some of the Ndokis in the Imo and Cross River States, would enhance stability. The commission accordingly recommends that the Imo River should be the boundary in this area between the two States".
It is therefore clear, that the Federal Military Government, in accepting this recommendation, decided, that the Imo River should form the natural boundary between Imo and Rivers States in respect of such part of Ukwa that is, Ndoki areas, as fall within the Rivers State. On examination of all the plans tendered in this case, all the 17 villages of Ndoki and Asa fall within the Rivers State south of the Imo River. Imo River has never formed a boundary between Imo and Cross River States. Plaintiff has submitted that under Edict No. 8 of 1976, which established the local government of Rivers State, there were only 9 spaces provided in the Schedule for the local governments to be created within that State. Learned counsel therefore contended that the creation of the 10th local government was ultra vires. This point can easily be dismissed; there is no provision, whatsoever, in the Edict limiting the number of local government areas that can be created under the Rivers State Local Government Edict.
In the 1979 Constitution in the First Schedule, Part 1, there is set out the 19 States of the Federation. In the second column, setting out the areas under Rivers State, is the 10th local government area, named Otega. This name is derived from the provisions of the Constitution of the Federal Republic of Nigeria (Amendment) Decree 1979 No. 104 section 9(2) of which reads:
"In the Second column of the entries in the said Schedule relating to Rivers State, there shall be inserted an additional entry i.e. 'Otega'."
As was deposed to in evidence before us, the word Otega or (Otelga) is the name of the Okrika, Obigbo, Tai-Eleme Local Government Area which is otherwise spelt Otega.
As an alternative to the plaintiff's case in the first part of the submission, based on paragraph 15 of the Statement of Claim, it is averred:
"15. Further and in the alternative, the plaintiff states that if (as plaintiff will contend) the court decides that in interpreting the true meaning and effect of the provisions of the First Schedule to the Constitution it is permissible to consider extraneous evidence such as:
a. Boundary Adjustment Problems identified by The Irikefe Panel on Creation of States;
b. Report of the Boundary Adjustment Commission;
c. Government Views on the Report of the Boundary Adjustment Commission; or other extraneous evidence, the plaintiff will rely on the averments in paragraphs 16 at 23 hereof."
The averments in support of these alternative contentions are set out in paragraphs 16-23. As earlier on stated the submission of learned counsel for plaintiff, with regard to the local government council areas, that is the Local Government Edict of Rivers State NO.8 of 1976, that the Rivers State Government is precluded from creating a 10th local government cannot be sustained. There is no such express provision. He further submitted that the Nasir Boundary Adjustment Commission Report, and the Government White Paper thereon, dealt with Ndoki areas and nothing was said about Obigbo. He suggested as a reinforcement of this argument, that the Imo River must be regarded only as a natural boundary between Imo and Cross River States. With respect, this submission is against the context of the acceptance and approval given to the recommendation by the Federal Military Government. It is quite clear that the Imo River was accepted and acted upon, as the natural boundary between the Imo and Rivers States. On that ground Obigbo therefore falls clearly within the Rivers State as well as the Ndoki areas in the Report.
Minutes of a meeting on 16th May, 1977 between:
a. Chief of Staff (Supreme Headquarters);
b. His Excellency, Col. P.O. Omu – Military Governor of Cross River State;
c. His Excellency, Commander Kanu – Military Governor of Imo State;
d. His Excellency, Col. Samani Lekwot – Military Governor of Rivers State,
on Boundary Adjustment Implementation and Problems, were tendered as exhibits D38 to D41 of defendant's documents and admitted in evidence.
At page D40 the decision taken reads:
"Imo and Rivers States"
iv. The Ndoki Areas
The problem here was to determine whether some Asa towns and villages form part of the Ndoki areas which should be administered by the Rivers State. It was agreed that the Imo River as indicated in the White Paper is the natural boundary between Imo and Rivers States and consequently the Asa towns and villages even where the inhabitants are not of Ndoki stock, should be administered by the Rivers State".
3. In his closing remarks, the Chief of Staff thanked the Governors and urged them to work together to ensure that there were no problems in implementing Supreme Military Council's decisions regarding boundary adjustments".
In conformity with those decisions R.S.L.N. No. 18 of 1977 established the "Bonny Local Government Authority" by instrument and the areas were:
and by R.S.L.N. No. 19 of 1977 ''The Bori Local Government Authority" was established by instrument dated 13/5/77 and the areas are:
In further consideration, and on the approval of the Federal Military Government, a 10th Local Government Area was established by reconstituting from the then existing 9 Local Governments of Rivers State a re-grouping of three areas made up of:
ii. Obigbo, and
and by instrument dated 6/9/79, in exercise of the powers conferred on him, the Military Administrator, then His Excellency Commander S. Sa'idu who gave evidence before us, established the "Okrika, Tai-Eleme, Obigbo" Local Government, and, in the handwriting of this witness, the Local Government was styled as "Otelga". By Decree No.104 of 1979 to which reference had earlier been made, this 10th Local Government Area was added to the areas of territorial limits of the Rivers State but the spelling omitted the letter 'L'.
25 The plaintiff filed a reply and joined issue on the creation or establishment of the 10th Local Government Area. I wish first to emphasize that no objection was raised, that all the areas which constituted the new local government area had all been previously in the Rivers State, before the 1st October, 1979.
The reply filed by the plaintiff averred inter alia:
a. that although instrument establishing Otelga was signed and validly made on the 6th September, 1979 with effect from 1/9/79, it was not published as a legal notice until after 1/10/79 and that after such subsequent Legal Notices, i.e. No. 30 of 1980; No. 31 of 1980 and No.32 of 1980 were each illegal, unconstitutional and of no effect whatsoever;
b. that the instrument establishing the Bori Local Government, i.e. R.S.L.N. No. 19 of 1977 in so far as it purported to include Obigbo within its area was ultra vires and illegal.
On these averments learned counsel's attention was drawn to the instruments creating the local government councils of Bori and Bonny in 1977, and Otelga in 1979, and the consequential provision of section 6(6)(d) of the Constitution of the Federal Republic of Nigeria. The establishment of the Local Governments especially that of Otelga cannot, to the extent provided by that section, be questioned as being unconstitutional, illegal and of no effect nor that of Bori as ultra vires. It may be pointed out that the publication of the Legal Notices of 1980 has no effect whatsoever on their establishment, because Otelga – Okrika, Tai-Eleme, Obigbo – Local Government Area had been validly and effectively established on 6/9/79 and for the purpose of this case such notices are quite irrelevant. All that this case is concerned with is that a 10th Local Government Area was validly included in the Constitution of Nigeria 1979 with regard to the territorial limits of the Rivers State.
I wish to comment on the great assistance which His Excellency Chief Mbakwe gave to the court in his evidence on the Irikefe Panel on Creation of States and Nasir Boundary Adjustment Commission. He appeared before those panels, in his private capacity as a legal practitioner, and argued the case of Imo State. He conceded the merger of some areas of Imo State to the Rivers State, but in his own opinion, it was due to inexperience in administration and insensitive military discipline of those who were in charge of these two States as Governors and later Military Administrators. He also conceded that the area Obigbo has assumed some importance, because of the discovery of oil in the area. That, basically, may be said to have encouraged this suit. On the other hand, I am also grateful to the former Military Administrator of Rivers State, Commander S. Sa'idu, for the assistance which he also gave to the court in this matter, in setting all records right. It is to be hoped that the conclusion that has been reached in this matter will be of some satisfaction to both sides.
In view of all that had been said above, it is quite clear that the plaintiff's claims cannot succeed and are therefore dismissed. I will, in the interest of a continued friendly relations between the two States, make no award as to costs.
FATAI-WILLIAMS, C.J.N.: I agree with the judgment which has just been delivered by my learned brother, Justice Sowemimo, J.S.C. Having had the advantage of reading the judgment in draft, for the reasons which he has given therein, I too would dismiss the plaintiff's claims in their entirety. I also agree with the order made as to costs.
In accordance with the provisions of section 258 subsections (2) and (3) of the Constitution of the Federal Republic of Nigeria 1979, I would also pronounce the opinion of the late Justice Idigbe that the claims should be dismissed for the reason stated by Justice Sowemimo in his judgment. The late Justice Idigbe was a member of the panel which heard the case and which later agreed that the claims should be dismissed for those reasons.
Subsections (2) and (3) of section 258 of the Constitution to which I have referred read:
"2. Each Justice of the Supreme Court or of the Federal Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion-
Provided that it shall not be necessary for all the Justices who heard the cause or matter to be present when judgment is to be delivered, and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
3. A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its member'. (Italics mine)
To my mind, the phrase "may be pronounced" used in subsection (2) above can only mean, in the context, ''to utter, speak, declare aloud, or proclaim". Moreover, since the phrase is obviously intended to distinguish what "may be pronounced" from what "may be read", what is pronounced cannot be the same as what is read from a typewritten or handwritten script. It must mean, and I so hold, what is orally proclaimed or declared aloud from personal knowledge.
In view of the interpretation which I have put on the phrase "may be pronounced", I also hold that any of the Justices of the Supreme Court who heard any cause or matter can, after a decision has been arrived at by all the Justices, pronounce the opinion of another Justice who, for one reason or another, is unable to reduce his opinion into writing or be present when the judgment in the case is being delivered by each of the other Justices.
BELLO, J.S.C.: I had the advantage of reading the judgment of my learned brother, Sowemimo, J.S.C. For the reasons stated by him, I agree the claim should be dismissed.
The case in the main turned out to hinge on the questions: firstly, what are the meanings of the words "Ukwa" and "Otega" opposite Imo State and Rivers State respectively in the First Schedule Part I to the Constitution and secondly, what are the extents of the geographical areas of the said "Ukwa" and "Otega"? All these were questions of facts which have been adequately considered in the judgment of my learned brother, Sowemimo, J.S.C. The evidence is overwhelming that the area in dispute is situated in the OkrikaJObigbo/Tai/Eleme Local Government Area, otherwise referred to as Otelga which is designated in the said Schedule to the Constitution as Otega, and forms part of the area of the Rivers State in accordance with the provisions of section 3(2) of the Constitution.
OBASEKI, J.S.C.: The plaintiff's claim to four declarations and two orders of injunction has clearly and definitely raised the issue of competence of the Federal Military Government to promulgate the Constitution of the Federal Republic (Amendment) Decree 1979 Decree No. 104 of 1979 which added Otega to the area comprising the Rivers State under the Constitution of the Federal Republic of Nigeria 1979. I agree with my learned brother, Sowemimo, J.S.C. in his judgment delivered a short while ago, the draft of which I had had a preview of, that section 6(6) (d) of the 1979 Constitution deprives us of the jurisdiction to entertain this issue.
We had occasion to examine this section in the case of Uwaifo v. The Governor of Bendel State (1982) 7 SC. 139 and nothing said before us in this matter has swayed me from the view I held then that section 6(6) (d) is a complete bar to any enquiry into the competence of the Federal Military Government to promulgate any Decree in the years from 16th January, 1966 to 30th September, 1979 inclusive.
The plaintiff's claim also indirectly, though, raises the question of the competence of the Federal Military Government which promulgated Decree No. 25 of 1978 Constitution of the Federal Republic of Nigeria (Enactment) Decree into law.
This Decree promulgated the 1979 Constitution of the Federal Republic. Section 1 of Decree No. 25 of 1978 expressly provides that:
"1. There shall be for Nigeria a Constitution which shall be as set out in the Schedule to this Decree.
2. The Constitution set out in the Schedule aforesaid shall have the force of law and shall come into operation as therein stated."
The Constitution of the Federal Republic of Nigeria came into force on 1st October, 1979. See section 279 of the Constitution which provides:
"1. The provisions of this Constitution except section 262 thereof shall come into force on the 1st day of October, 1979
2. The provisions of section 262 of this Constitution shall come into force on a date to be specified by the President by Order and confirmed by the resolution of each of the Houses of the National Assembly." and
section 262 which deals with the Federal Capital Territory provides:
"The Federal Capital Territory shall be the capital of the Federation and seat of the Government of the Federation."
The Constitution is the supreme law of the land and to emphasise this, section 1 (1) states:
"This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria."
Section 2 defines Nigeria as one indissoluble sovereign State [section 2(1)] but that it shall be a Federation consisting of 19 States and a Federal Capital Territory [section 2(2)]. Section 3 provides that there shall be 19 States in Nigeria and proceeded to enumerate and name them. Imo State is one of them. Rivers State is another. The territorial area of each State was defined in section 2(2) by reference to the 2nd column of Part 1 of the First Schedule which named the local government areas comprising each State.
The area covered by the Rivers State in extent covers Port Harcourt, Bonny, Bori, Ikwerre/Etche, Degema, Brass, Ahoada, Yenagoa, Sagbama Local Government Areas – 9 local government areas in all.
The area covered by Imo State in extent covers Aba, Aboh- Mbaise, Afikpo, Ahiazu-Mbaise, Arochukwu/Ohafia, Bende, Etiti, Ideato, Isiala-Ngwa, Mbaitoli/Ikeduru, Mbano, Nkwerre/Isu, Obioma-Ngwa, Ohaji/Egbema/Oguta, Ohaozara, Isuikwuato/Okigwe, Orlu, Oru, Owerri, Kwa, Ikwuano/Umuahia Local Government Areas.
In September, 1979, a tenth local government area was added and given the acronym name 'Otelga' (See section 9(2) of Decree No. 104 of 1979). 'Otega' an additional entry to the local government areas comprising the geographic area of the Rivers State was inserted in the 2nd column of the First Schedule Part 1 of the Constitution of the Federal Republic of Nigeria 1979. It should have been 'Otelga' but it is clear to me that from the evidence that Otelga was created in September, 1979, it was that 'Otelga' that was wrongly spelt as Otega. It is part of the area comprising Otelga particularly the areas which were part of the Ukwa Local Government Area of Imo State before the promulgation of the 1976 States (Creation and Transitional Provisions) Decree 1976 No. 12. By section 1 of Decree No. 12 of 1976 States (Creation and Transitional Provisions) Decree 1976, it is provided that:
''There shall on the commencement of this Decree be created States to be known by the names in column 1 of the Schedule to this Decree the respective areas of which shall be those provinces, divisions or districts named in column 2 of that Schedule and the capitals of which shall be those respectively named in column 3 of that Schedule." (Italics mine)
Section 6(1) of the Decree named 19 States in its provisions which read:
"For section 3 of the Constitution of the Federation, there shall be substituted the following new section -
3. There shall be nineteen States that is to say, Anambra, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Imo, Kaduna, Kano, Kwara, Lagos, Niger, Ogun, Ondo, Oyo, Plateau, Rivers and Sokoto."
Imo and Rivers were among the States created in 1976. Imo State then comprised of the following ares: Afikpo, Oguta, Nkwerre, Mbano, Mbiase, Bende, Arochukwu, Umuahia, Okigwe, Ortu, Oru, Mbaitoli/Ikeduru, Etiti, Ohafia, Northern Nkwa, Owerri, Aba and Ukwa – 18 areas.
The areas covered by the Rivers State in 1976 as stated in the Schedule are:
Ogba-Egbema, Yenagoa, Ahoada, Ndoni area; Ikwerre, Etche, Kulama, Oporoma, Ogbia, Abua/Oduel, Obio, Tai-Eleme, Port Harcourt, Khana, Bori, Okrika, Bonny plus the rest of Opobo Division not included in Cross River State, Kalaba-ri and Brass.
From the evidence adduced before us, it is common ground that the Asa and Ndoki areas of vii/ages now south of the Imo River i.e. Obigbo and the outlying area were formerly, i.e. up to 1976, part of the Ukwa division in Imo State. The evidence established that, following the Nasir Boundary Commission Report and Recommendations which were accepted by the Supreme Military Council in 1976, the Federal Military Government transferred the administration of the areas between the Imo River in Imo State and the boundary between Imo State and the Rivers State to the Rivers State Government. The Rivers State Government incorporated these areas (in the local government it created in the Rivers State) first in the Bori Local Government Area and later in the Okrika Obigbo Tai Eleme Local Government Area otherwise known as Otelga.
These were formalised by Edicts promulgated by the Rivers State first by the Military Governor and later by the Military Administrator of the Rivers State and finally confirmed by Decree No. 104 of 1979 promulgated by the Federal Military Government.
Therefore, the 1979 Constitution creates a formidable constitutional bar to the action. It is not just depriving the court of jurisdiction to entertain the matter. It goes beyond that. It is that the judicial powers vested in the courts by section 6(1) and (2) "shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law." In other words, in such matters, the court cannot exercise any judicial power. See section 6(6) (d) of the 1979 Constitution.
In view of the provisions of section 6(6)(d) which reads:
"The judicial powers vested in accordance with the foregoing provisions of this section shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the Competence of any the authority or person to make any such law". (Italics mine) this court cannot entertain the action.
For the above reasons and the reasons stated in the judgment of my learned brother, Sowemimo, J.S.C. I hereby dismiss the claims and adopt the order as to costs made by Sowemimo, J.S.C.
ESO, J.S.C.: I agree with the judgment which has just been delivered by my learned brother, Sowemimo, J.S.C. I would also dismiss the plaintiff's claims for the reasons which he has given in the judgment.
I am also in agreement with the interpretation placed upon section 258 sub-sections (2) and (3) of the Constitution of the Federal Republic of Nigeria by the learned Chief Justice of Nigeria in the judgment which he too has just read.
I agree with the order as to costs made in the judgment of my learned brother, Sowemimo, J.S.C.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Sowemimo J.S.C. I agree that the plaintiff's claims against the defendant should be dismissed.
After we heard the addresses of the learned Senior Advocates for the plaintiff and the defendant it emerged that the dispute between the parties narrowed down to what is the extent of the areas called "Ukwa" and "Otega" which appear under Imo and Rivers States respectively, in Part I of the First Schedule to the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as ''the Constitution").
The plaintiff's contention is briefly that "Ukwa" has at all material time been part of Imo State and that the Government of Imo State has the constitutional right to exercise executive, legislative and judicial powers over the whole of the said area.
But that the Government of Rivers State has denied the Government of Imo State the right to exercise the powers over a portion of the area in question. This portion constitutes a section of the area which the defendant calls "Otelga", but which is referred to in Part 1 of the First Schedule to the Constitution as "Otega".
The defendant's case is simply that the area referred to as "Otega" in the First Schedule to the Constitution is the same as "Otelga" which is the description of one of the Local Government Areas that constituted the Rivers State.
Now, the present 19 States of the Federation as defined under section 3 subsections (1) and (2) of the Constitution were first created by the States (Creation and Transitional Provisions) Act. 1976 (1976 No. 12). The area that constituted each state was made up of "provinces' divisions or districts" (See section 1 thereof). The "provinces, divisions or districts" are specifically mentioned against each State in the Schedule to the Act. "Ukwa" appears under Imo State in the Schedule but "Otega" does not so appear under the Rivers State.
By the provisions of section 4 sub-section (1) of Act No. 12 of 1976 the supreme Military Council was given the power to appoint a body called the "States Boundaries Adjustment Commission" which was to be charged with the responsibility for adjusting the boundaries of any of the 19 States created under the Act.
Pursuant to this power the Supreme Military Council appointed the Commission by Legal Notice No. 21 of 1976. The Commission (which was otherwise known as Nasir Commission) was, to examine boundary adjustment problems in various areas of the States created by the Act, including the Ndoki areas in Rivers, Cross River and Imo States. The Commission undertook the exercise and submitted its report to the Head of the Federal Military Government on 22nd June, 1976 with a recommendation that the Imo River should be the boundary between the Imo State and Cross River State. Thus the Ndoki people were to be found on each side of the Imo River; that is to say, in Imo State and Cross River State. No reference as such was made to the Rivers State in the recommendation. I think it is necessary to quote paragraphs 42 and 43 of the Report in order to show clearly the recommendation made by the Commission. These read:
"42. A lot of fear as to the fate of some Nigerians particularly the Ibos in the Rivers State has been strongly expressed. We share this concern and we believe the fear is real. The question of security on this border is so important as to overweigh the wishes to keep all Ndokis under one State and that is why we recommend the Imo River as the boundary in this area. The Ndokis are not the majority tribe south of the Imo River ….
43. While admittedly the use of the Imo River as the natural boundary will have the effect of leaving some of the Ndokis in the Imo and Cross River States, we are on balance of the opinion that in this area this boundary would be more in the interest of peace than any other boundary. We have carefully considered the issue involved and have come to the inescapable conclusion that the Imo River should be the boundary in this area between the two States. And we so recommend. See map BAC. ii." (Italics mine)
The map mentioned by the Report was not tendered in evidence; we therefore do not have a vivid picture of the delineation of the boundary made by the Commission.
The view of the Federal Military Government on the Report was made known in a White Paper which was issued sometime in 1976. Its paragraphs 6 and 7 read thus:
"6. The Ndoki Clan straddles three States – Imo, Rivers and Cross River – with the bulk of the Clan living on either side of the Imo River in the Imo State. The Commission found that the Ndokis have consistently been treated as a minority. The bulk of the people living south of the Imo River were more inclined to accede to the Rivers State but the creation of the Imo State appeared to have changed several minds in favour of remaining in Imo State.
7. Besides, there was the issue of peace and stability in the area. The Commission was convinced that the situation in this area was unstable and could easily get out of hand. In the circumstances, it felt that considerations of stability should transcend the wishes to keep all the Ndokis under one State. Adoption of Imo River as the natural boundary in this area, while having the effect of leaving some of the Ndokis in the Imo and Cross River States, would enhance stability. The Commission accordingly recommends that the Imo River should be the boundary in this area between the two states.
This recommendation is accepted by Government."
It would appear, from the foregoing, that the consequence of simply declaring the Imo River as the boundary between Imo and Cross River State was that the Ndoki area south of the River remained unscathed as part of Imo State.
Nevertheless a memorandum dated 29th November, 1976 which was submitted to the Executive Council of the Rivers State by the Military Governor of the Rivers State was put in evidence. The memorandum as relevant, reads as follows:
"Council will recall that in our Local Government re- organisation plans, we suspended action on the areas affected by the Nasir Commission (of) Inquiry (sic), pending the publication of the Federal Government decision on that enquiry. Council is aware that the Report had been submitted and that the Federal Government's decision on it has just been announced. The following areas are to be merged with the Rivers State:
b. Obigbo and its neighbourhood, south of the Imo River, formerly within Imo State (Estimated population 20,000);
The memorandum went on to suggest the merger of the areas mentioned in (a) to (d) above with the existing Local Governments of the Rivers State. It stated as follows in respect of the area that was purported to be formerly part of Imo State:
"b. Obigbo and Neighbouring Areas, South of the Imo River, Formerly within Imo State:
This area is continuous to the Bori Local Government Authority (BOLGA) area and the extended Port Harcourt City Council area. However, apart from Obigbo, the bulk of the area is rural and is likely to remain so for a long time. Besides, the rural parts of the new area are certainly too far away from Port Harcourt to be associated with the Port Harcourt City Council. It is therefore proposed to constitute the area into District within the Bori Local Government Authority (SOLGA) area with headquarters at Obigbo. This would increase the population of SOLGA to 283,000."
It is not clear how the Military Governor of River State came by the view that "Obigbo" (Known as "Abigbo" in Imo State) and its neighbouring areas became part of the Rivers State, since the white paper as quoted above made no mention of Obigbo and its neighbouring areas.
Be that as it may, on 13th May, 1977, the Military Governor of Rivers State issued an instrument, namely, Rivers State Legal Notice No. 19 of 1977, creating Bori Local Government Authority with retrospective effect to 3rd September, 1976.
Obigbo appeared in the Schedule to the Instrument as one of the areas that constituted the Bori Local Government Authority.
Not unexpectedly, it seems that after the white paper was issued some problems accompanied the implementation of the boundary adjustments between the Imo, Cross River and Rivers States. A meeting was therefore held on 16th may, 1977 between the Military Governors of the States concerned and the Chief of Staff, Supreme Headquarters. The minutes of the meeting were put in evidence by the learned counsel for the defendant. The minutes read in part as follows:
"2. The meeting discussed the various boundary problems existing among the three states and agreed as follows:
IMO AND RIVERS STATES
vii The Ndoki Areas 25
The problem here was to determine whether some Asa towns and villages form part of the Ndoki areas which should be administered by the Rivers State. It was agreed that the Imo River as indicated in the White Paper is the natural boundary between Imo and Rivers States and, consequently the Asa towns and vii/ages even where the inhabitants are not Ndoki stock, should be administered by the Rivers State". (Italics mine)
It is significant that the meeting not only agreed that Obigbo and its surrounding areas should be part of Rivers State but also that the Imo River constituted the boundary between Imo and Rivers States.
Prior to the meeting held by the Chief of Staff and the Military Governors nine Local Government Authorities were created for the Rivers State with effect from 3rd September 1976 by Rivers State Legal Notices Nos. 17-25 of 1976. The areas of Imo State which were merged with the Rivers State were made parts of the new Local Government Authorities. Later the Local Government Authorities were renamed "Local Government Areas" to correspond with the provisions of S.5
(1) of the Rivers State Local Government Edict, 1976 (No. 8 of 1976) (See Rivers State Legal Notice No.8 of 1978).
In 1979, the Military Administrator of the Rivers State, Captain Suleiman Saidu (who was the 1stdefence witness) created a tenth Local Government Area for the State with effect from 1st September, 1979 in obedience to the directive issued to him by the Supreme Military Council. This he did by transferring Okrika from Sonny Local Government Area and Tai/Eleme and Obigbo from Sori Local Government Area to constitute the new Local Government Area which came to be known as "Okrika, Tai/Eleme, Obigbo Local Government Area". He issued the Instrument creating the new Local Government Area under his hand on 6th September, 1979. and had it sent to the Rivers State Government Printer for Publication in the State Gazette. It was later published as Rivers State Legal Notice No. 32 of 1980. The acronym "Otelga" was given to the new Local Government Area by the Military Administrator.
He said that he invented the word by adopting the first alphabet "O" from Okrika and Obigbo, ''T'' from Tai, "E" from Eleme, "L" from Local, "G" from Government and "A" from Area. He explained further that "Otega" which appears against Rivers State in the second column of Part 1 of the First Schedule to the Constitution had no meaning unless it was read to mean "Otelga".
In 1978 the Constitution was enacted by the Constitution of the Federal Republic of Nigeria (Enactment) Act, 1978 (1978 No. 25). Part 1 of the First Schedule to the Constitution as so enacted, did not contain "Otega" as part of the Rivers State.
10 However it was in 1979 that the word "Otega" was added to the First Schedule by section 9 subsection (2) of the Constitution of the Federal Republic of Nigeria (Amendment) Act 1979 (1979 No. 104) which reads:
"2. In the second column of the entries in the said Schedule relating to River State, there shall be inserted an additional entry, that is, "Otega"."
Now learned counsel for the plaintiff contended that "Ukwa" which appears under Imo State in Part I of the First Schedule to the Constitution of the Federal Republic of Nigeria, 1979 consisted of two areas, namely Ndoki and Asa and that Obigbo was part of Asa. He said, by reference to the Legal Notice which established the Nasir Commission, that the Commission was, by its terms of reference, not asked to look into the boundary problems of Asa but Ndoki areas in Rivers Cross River and Imo States. It was argued also that section 4 of the States (Creation and Transitional Provisions) Act, 1976 conferred on the Boundaries Adjustment Commission legislative power to alter or modify the States' boundaries as laid down by section 1 of the 1976 Act. Learned counsel referred to section 3(1) of the Rivers State Local Government Edict, 1976 (No.8 of 1976) which provides:
"3(1) The Military Governor may by instrument under his hand, establish Local Governments to be known by the names in column A of the First Schedule to this Edict the respective areas of which shall be those divisions or parts thereof named in column B and the Headquarters of which shall be those respectively named in column C of that Schedule."
and submitted that the Schedule to the Edict provided for 9 Local Government Areas only; and therefore the Military Administrator had no power to create the tenth Local Government Area, viz Okrika, Tai/Eleme, Obigbo Local Government Area, when he did so in 1979. He argued further that the new Local Government did not therefore exist in law and a fortiori "Otelga".
These submissions, which learned counsel for the plaintiff was at pains to make, are cogent. But that notwithstanding I do not think we should consider them in view of the ouster of the jurisdiction of the Court by section 6 subsection (6)(d) of the Constitution which provides:
"6. The judicial powers vested in accordance with the foregoing provisions of this section -
d. shall not, as from the date when this section comes into force, (i.e. 1st October, 1979) extend to any action or proceedings relating to any existing law made on or after 15th January, 1976 for determining any issue or question as to the competence of any authority or person to make any such law."
and our decision in Uwaifo v. Attorney-General of Bendel State & Ors. (1982) 7 S.C. 139.
What remains therefore to be considered is the submissions of learned counsel for the plaintiff on the construction to be given to the word "Otega" in Part 1 of the First Schedule to the Constitution. His argument in this respect is that we can look at paragraphs 6 and 7 of the White Paper issued by the Federal Military Government on the Report of Nasir Commission; but by no stretch of imagination can the White Paper be said to have transferred Ndoki area as well as Obigbo and other villages under Asa to the Rivers State, since no mention of those areas was made by either the Report or the White Paper.
It is true that neither the Report not the White Paper provided for the merger of Ndoki area and Obigbo area of Asa with the Rivers State. But it is clear from the memorandum of the Military Governor of 29th November, 1976 and the Rivers State Legal Notice No. 19 of 1977 that Obigbo and its neighbouring areas south of the Imo River were with effect from 3rd September, 1976 made part of the then Bori Local Government Authority and thereby part of the Rivers State. There is also evidence which shows that the areas of Ndoki and Abigbo now in dispute had been regarded and indeed treated by all concerned as part of the Rivers State since May, 1977. Furthermore, there is uncontroverted evidence that the Okrika. Tai/Eleme, Obigbo Local Government Area of the State is synonymous with "Otelga". It therefore seems to me logical to conclude that the amendment made by the Constitution of the Federal Republic of Nigeria (Amendment) Act, 1979 to Part 1 of the First Schedule to the Constitution by adding "Otega" to the area of Rivers State was as a result of the creation of the Okrika, Tai/Eleme, Abigbo Local Government Area on 6th September, 1979.
Consequently the conclusion that one is irresistibly driven to, is in my opinion, that "Otega" in Part I of the First Schedule to the Constitution was intended to read "Otelga" which in turn means Okrika, Tai/Eleme, Obigbo Local Government Area of Rivers State. Therefore, "Ukwa" under Imo State in Part I of the First Schedule to the Constitution means the area of "Ukwa" as indicated under the Schedule to the States (Creation and Transitional Provisions) Act, 1978 but less Ndoki area south of the Imo River and Abigbo or Obigbo together with the surrounding areas in question all of which were part of Asa. I accordingly so hold.
In the result I agree that all the plaintiff's claims fail in toto and that the case be dismissed with no order as to costs.