The court said that the seaward boundary of Nigeria is coterminous with those of the littoral states. (See page 9 of the lead judgment.) That of course is to say that the seaward boundaries of the littoral states make up the seward boundary of Nigeria.

Let us remind ourselves that 'Littoral' means 'Coastal.' 'Littoral' is not a legal term. To say that a state is a littoral state simply means that the state is a coastal State.

Adjoining the dry land of a coastal or littoral state is water. In the case of the littoral or coastal states of Nigeria that water is the Atlantic Ocean referred to in the judgment as the "Sea". We know that the Atlantic Ocean is a wide expanse of water between Nigeria and the continent of America.

The Supreme Court in page 9 of its lead judgment says that several orders-in-council and proclamations place the 'Sea', "The Atlantic Ocean", as the southern boundary of the littoral states. Where on the sea or Atlantic Ocean is that boundary mark? That is the question. I quote the Supreme Court in its lead judgment. "What is the boundary mark between Western Nigeria, Mid-Western Nigeria and Eastern Nigeria (and indeed Nigeria for that matter) on one hand and the "Sea" on the other? The orders-in- council and the proclamations are silent on this." (Western, Midwestern and Eastern Nigeria are the old regions which have these littoral states). The Supreme Court went on to conclude as follows "If the boundary, (that is of these littoral states) is with the Sea then by logical reasoning the Sea cannot be part of the regions. For this reason therefore I have no hesitation in rejecting the contention of the eight littoral defendant states that their boundary extend to the Exclusive Economic Zone and Continental Shelf of Nigeria."

With respect I submit that, that conclusion also applies to Nigeria. If the boundary of Nigeria is with the "Sea" then by the Supreme Court reasoning, the sea cannot be part of Nigeria and Nigeria cannot contend that its boundary extends to the Exclusive Economic Zone and Continental Shelf on or in the sea.

But there are what are called Exclusive Economic Zone and Territorial Sea to which Nigeria can lay claim. And there is the Continental Shelf. These are matters regulated and defined by a body of laws termed by lawyers as International Law, being laws that have been evolved through customs, practices, treaties, conventions etc over the years by the international community to avoid chaos arising from disputes and conflicting claims on the seas.

The current law is the 1982 United Nations Convention on the Law of the Sea signed into law on December 10, 1982 at Montego Bay, Jamaica. It is also called UNCLOS 111 from its acronym. But before going into that let us look at the claim of the Federal Government, the plaintiff in the case.

The Supreme Court set it out on page 3 of its lead judgment. It is for: -

"a determination of the seaward boundary of a littoral state within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account derived from the State pursuant to section 162 (2) of the Constitution of the Federal Republic of Nigeria 1999" (Underscoring mine)

I have underscored the purpose for which the Federal Government wants the Supreme Court to determine the boundaries of the littoral or coastal states. It is the case of the Federal Government that the seaward boundary of a littoral state for that purpose is the low water mark of the land surface of the State.

What is low water mark? According to the Concise Oxford Dictionary it is the "lowest points reached at low tide:" and low tide is "the time when the tide is out and far from the shore or river bank." The contention of the Federal Government therefore is that the seaward boundary of a littoral state is the place where the sea water level is lowest at the time when the tide is out and far from the shore or river bank. Where that place is, where that low water mark is, was not in evidence and therefore is not known. The Federal Government also contends that in the case of Cross River State, a state with islands, the seaward boundary is the seaward limit of the inland waters of the state. Again where that seaward limit of the inland water is, was not in evidence and so is not known. The littoral states, at least some of them, therefore argued that since there is no evidence of the actual location of where the Federal Government contends is the seaward boundary of the littoral states, the Supreme Court should dismiss the Federal Government's case. The law is he who alleges must prove. The Federal Government alleged that the seaward boundary of littoral states is their low water mark. The Federal Government did not indicate where that low water mark is in any of the eight littoral states nor where the seaward limit of the inland water is in the case of Cross River state.

Chief Williams SAN for the Federal Government however countered by saying that the case is about the interpretation of the constitution and therefore no evidence is required. The Supreme Court accepted Chief Williams' counter argument.

Let us go back and take another look at the claim of the Federal Government. It is for a "determination of the seaward boundary of a littoral state for the purpose of calculating the amount of revenue accruing to the Federation Account directly from natural resources derived from that state pursuant to Section 162(2) of the Constitution of the Federal Republic of Nigeria 1999." It is clear from that claim that what the Supreme Court was asked to do was to determine the seaward boundary of a littoral state. What is the meaning of the word "determine." According to the Oxford Dictionary "determine" means "to decide to fix precisely; calculate, find out precisely, to ascertain precisely' Has the Supreme Court done that.) Has the Supreme Court fixed precisely, has it ascertained precisely the seaward boundary of a littoral state? With respect, I submit that it has not. It could not because there was no evidence before it on which it could. It says it is the low water mark. That is not precise because we the people of Nigeria still have something more to do in order to fix precisely or ascertain precisely the actual location of that low water mark. We must get our surveyors and other experts to carry out the exercise to determine, to ascertain, or fix precisely the low water mark of each of our littoral or coastal states. The Supreme Court knew that that evidence must be before it. It said so quite clearly. "In my view" it said on page 10 of the lead judgment "and as I shall presently show, the seaward boundary of a littoral state as we are called upon to determine is a matter of law. What becomes factual and on which evidence will be required to prove is the actual location of the boundary. That later situation is not the issue before us."

With respect, I submit that that was the very issue before the Supreme Court. The court was called upon to determine, to fix precisely to decide precisely, to ascertain precisely the seaward boundary of a littoral state. That raises an issue of fact: not of law. The mere fact that the seaward boundary was to be determined for the purpose of calculating some money payable under Section 162(2) of the 1999 Constitution does not make the issue a matter of the interpretation of the constitution and so of law. To say it does, is with respect, specious argument: indeed very wrong. And the Supreme Court should not have accepted it. The Supreme Court was not called upon to interpret the provision of Section 162 (2) of the constitution but to ascertain precisely, fix with precision the seaward boundary of littoral states. I repeat if the court did that we would have known precisely the actual location of the low water mark of each of the littoral states and there would be no need to call on surveyors and other experts to carry out a further exercise to determine the low water mark of a littoral state. In my view, with respect, the plaintiff's case, that is the case of the Federal Government, should have been dismissed for failure to prove the actual location of the low water mark it alleges is the seaward boundaries of littoral states.

But there is another reason why the case of the Federal Government should in my view have been dismissed. And that has to do with the International Law applicable thereto. The Supreme Court said on page 5 of its lead judgment that to determine the southern or seaward boundary of each of the eight littoral defendant states "one would need to wade through past constitutions, statutes and statutory instruments, evidence, common law and international law to come to an answer." True there were such statutes, past constitutions, and statutory instruments etc.

My answer, however, is that all those give way to international law. And the current international law on the issue in this case is the 1982 United Nations Convention on the Law of the Sea. Nations whose territories are adjacent to the sea are by international custom and practices granted 'sovereignty 'over and beyond their territorial waters or sea. Supreme Court said it on page 14 of the lead judgment, thus: "Chief Williams in reply contends that the seaward limit of Nigeria is the low water mark but Nigeria in its sovereignty and by custom of the International community exercises jurisdiction beyond that limit. I think Chief Williams is right"

With respect, I agree Chief Williams is indeed right. It is because of the sovereignty conceded to Nigeria by International Law and Customs that it exercises jurisdiction beyond the territorial waters of the littoral or coastal states of Nigeria. On this issue I quote the Supreme Court on page 15 of its lead judgment:

"The rules of lnternational Law that evolved over the centuries are now crystallised in the Geneva Convention on:

(a) The Territorial Sea and Contiguous Zone, 1958 

(b) The Geneva Convention on the Continental Shelf 1958 and

(c) The Geneva Convention on the High Sea 1958 among others."

"All the 1958 Geneva Conventions relating to the sea are now superceded by the 1982 United Nations Convention on the Law of the Sea. The Geneva Conventions provide for limits of the territorial sea, the right of innocent passage through the territorial sea and the use of the high sea. Articles 1 and 2 of the Geneva Convention on the territorial sea and the contiguous zone 1958 are relevant to the case on hand and I therefore quote them."

(1) The sovereignty of a state extends beyond its land territory and internal waters to a belt of sea adjacent to its coast described as the territorial sea."

(2) This sovereignty is exercised subject to the provisions of these Articles and to other rules of International Law."

(1) This sovereignty of a coastal state extends to the air space over the territorial sea as well as to its bed and sub soil.

(2) The area of the sea beyond the territorial water is known in International Law as the high sea. While the convention on the territorial sea and the Contiguous Zone confer sovereignty on a coastal state over the territorial sea, convention on the high sea denies sovereignty to such a nation.

The Supreme Court then set out Articles 1 & 24 of the convention on the high sea and concluded as follows:

"The convention on the high sea further debunk the claims of the littoral defendant states in this case to ownership of the land and sea far beyond the territorial sea. The convention on the territorial sea and the contiguous zone grants only limited sovereignty to coastal states over their territorial sea. It is unlike the sovereignty such states have over their land territory. That being so, therefore, the claim by the Plaintiff (Federal Government) of sovereignty over the territorial sea of Nigeria and the Exclusive Economic Zone does not extend the land territory of Nigeria beyond what is provided for in Section 2 and 3 of the Constitution. Nigeria on attainment of independence ratified these Conventions..." "

With respect the Supreme Court appears to me to be in error. In the first place it does not appear to advert its mind to the fact that the 1958 United Nations Conference on the Law of the Sea adopted and came out with four Conventions namely:

(1) The Convention on the Territorial Sea and Contiguous Zone 

(2) The Convention on the High Sea

(3) The Convention on Fishing and Conservation of the Living Resources of the High Seas and

(4) The Convention on the Continental Shelf. (See Stark's on International Law 11th Edition page 226, a world wide Authority on International Law)

In the passages of the lead judgment quoted above and the conclusion it reached thereon the Supreme Court considered only the Convention on the Territorial Sea and Contiguous Zone and that of the High Sea. It did not consider the Convention on the Continental Shelf which I submit with respect is the law that is specifically relevant to the case in hand. Before the Supreme Court, the defendant coastal littoral states laid claim to the mineral resources on and in the Continental Shelf. The 1958 Law on the sea had provisions on the Continental Shelf. (See Article 2, of the 1958 Law) It appears to me that the Supreme Court should have considered those provisions before concluding that the Convention on the High Sea "further debunk the claim of the littoral states "

In the second place the Supreme Court admits that the 1958 Law on the Sea has been superceded by the 1982 Law of the Sea. That law also has provisions on the Continental Shelf. The 1982 Law of the Sea therefore is in my view what the Supreme Court should have considered and applied in the case before making comparisons and indicating differences between the 1958 and the 1982 laws if any.

The truth however is that "the four conventions of 1958 provided a regime for the use of and rights to the sea and the Continental Shelf. Most of those provisions have been incorporated with little or no change in the 1982 United Nations Convention of the Sea. (See page 227 paragraph 2 of Stark's on International Law).

The Supreme Court on page 17 of its lead judgment spoke of ratification of these conventions by Nigeria on attainment of independence. It may well be that the 1982 Law of the Sea has not been expressly ratified by Nigeria. But there is little or no difference, as stated above, between the 1958 Law, which has been ratified, and the 1982 Law on the Continental Shelf. Indeed Supreme Court recognises and acknowledges the 1982 Law on the Continental Shelf, set it out and considered it on page 17 of its lead judgment thus:

"The 1982 United Nations Convention on the Law of the Sea is a comprehensive treaty of the sea. It supercedes the 1958 Conventions. The new convention covers a number of subjects relating to the sea which are usually found in a number of separate conventions and deals with such subjects as the territorial sea and the contiguous zone, straits used for international navigator, archipelagic states, exclusive zone, continental shelf? high seas and the right of nations thereto, (including the right to fish on the high seas), regime of islands, enclosed or semi-enclosed seas, right of access of land locked states to and from the sea and freedom of transit, the area, protection and preservation of the marine environment, marine scientific research, development and transfer of marine technology and finally settlement of disputes."

Of all the subject matters mentioned above by the Supreme Court, I have underlined continental shelf. This is because it is the real bone of contention between the Federal Government and the littoral states. Who has the right to the natural resources in the continental shelf? Is it the Federal Government or the littoral states? What is the law on the continental shelf as set out in the 1982 Law of the Sea to which Nigeria is a party and which the Supreme Court recognises and acknowledges in its wisdom.

Sir, before going on to the 1982 law on the continental shelf however, I would like to refer to an interview I granted THISDAY and that was published April 6 2001 edition.

I quote from page 4 columns, 3 & 4. He 'Atake' spoke on the offshore/onshore dichotomy saying the distinction was not equitable, considering what the Niger Delta people were suffering as a result of oil exploration and exploitation in the continental shelf. "We are there and we are the ones who suffer. Why do you want to put a screen between offshore and onshore oil? Our oil flows in the continental shelf. I emphasise 'our oil flows in the continental shelf.' That is to say that the oil of the Niger Delta people flows in the continental shelf

On page 46 of THISDAY's May 16, 2001 edition it was published in column five, "Atake also said the dichotomy is not equitable considering what Niger Delta people suffer as a result of oil exploration and exploitation in the continental shelf. Our oil flows in the continental shelf." I also said in that interview that the case brought by the Federal

Government against the States of the Niger Delta though a constitutional one requires a political solution.

Now to the 1982 United Nation Law of the Sea on the continental shelf. But first as this piece is written particularly for non lawyers let us look up the dictionary meaning of continental shelf. The Little Oxford Dictionary says that continental shelf is the "shallow seabed bordering the continent." In the context of the Coastal or littoral states of Nigeria it is the shallow sea bed bordering those states. We know from our Geography lesson at school, that the continental shelf of a state is the coastal land of that state which over centuries have been submerged by water. In the context of the littoral or coastal states of Nigeria the continental shelf is actually the land of the littoral or coastal states of Nigeria under the sea. The land extends or stretches from the coastal dry land into the sea. And because it is land it is vested in my view by our Land Use Act in the governors of the coastal states in trust for the people. Part VI, Article 76 paragraph 1 of the 1982 United Nation Convention on Law of the Sea defines the continental shelf thus:- "The Continental Shelf of a Coastal State comprises the seabed and sub soil of the sub marine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or a distance of 200 nautical miles from the base line from which the breath of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance." (Underscoring mine)

You will observe that this definition of a continental shelf "recognizes both a fictitious and an actual continental Shelf." The actual or geographical one is where the continental shelf actually extends to a distance of 200 nautical miles into the sea. The fictitious or legal one is where the continental shelf of the coastal state does not extend up to 200 nautical miles: in which case by operation of law, (paragraph 1 of Article 76 of the 1982 United Nations Convention of the Laws of the Sea) it is deemed to stretch for 200 nautical miles from the prescribed base line of the coastal state into the sea.

Indeed paragraph 3 of Article 76 of the 1982 Law {UNCLOS 1 11 } defines the "continental margin" referred to in paragraph 1 of Article 76 as "comprising the submerged prolongation of the land mass of the coastal state" and as consisting of "sea bed and sub soil of the shelf, the slope and rise but not including the deep ocean floor with its oceanic ridges or the sub soil thereof."

Did the Supreme Court eventually consider the law on the continental shelf as enacted in the 1982 United Nations Law of the Sea? Yes it did on pages 21 and 22 of its lead judgment. After setting out the definition of continental shelf as above, Supreme Court proceeded to Article 77 to state the rights of a coastal state over the continental shelf, thus:

(1) The coastal state exercises over the continental shelf the sovereign rights for the purpose of exploring it and exploiting its natural resources. (Underscoring mine)

(2) The rights refer to in paragraph 1 are exclusive in the sense that if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake those activities without the express consent of the coastal state

(3)The rights of the coastal state over the continental shelf do not depend on occupation, effective or notional or any express proclamation.

(4)The natural resources referred to in this part consist of the mineral and other non-living resources of the sea-bed and sub soil together with living organisms belonging to sedentary species, that is to say organism which at the harvestable stage either are immobile on or under the sea bed or are unable to move except in constant physical contact with the sea-bed or sub soil"

Having stated the rights of the coastal state over the continental shelf, the Supreme Court proceeded to set out Article 78 of the 1982 UNCLOS 111 thus:

"Legal status of the superjacent water and air space and the rights and freedom of other states"

(1) The rights of the coastal state over the continental shelf do not affect the legal status of the superjacent waters or air space above these waters.

(2) The exercise of the rights of the coastal states over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedom of other states as provided in this Convention.

The Supreme Court then concluded thus:

"It can be seen from above that though a Coastal State exercises certain sovereign rights over its continental shelf that does not make the shelf part of the land over which she has absolute and exclusive control: her sovereign right over the continental shelf is of a limited kind only."

My answer is that this conclusion ignores Article 76 paragraphs 1 and 3 of the 1982 United Nations Convention on the Law of the Sea which define the continental shelf of a coastal state and its continental margin as the submerged prolongation into the sea of the land mass of the coastal state and as consisting of the sea-bed and sub soil of the shelf, the slope and rise" thereof. The conclusion also refuses to recognise Article 77 of the 1982 United Nations Law of the Sea which says that a coastal state has sovereign and exclusive rights over the shelf for the purpose of exploring and exploiting its natural resources. Those natural resources include the mineral and other non living resources of the sea bed and sub soil; for example crude oil and gas to mention just two. In my view it follows therefore that oil and gas obtained from the continental shelf of a coastal state is derived from the state.

This in my view settles the issue in controversy between the Federal Government and the Coastal States.

All paragraphs 1 and 2 of Article 78 say is that the sovereign rights of the coastal state do not affect the legal status of superjacent water and air space over the superjacent waters and that the rights must be exercised n a manner not to infringe or result in any unjustifiable interference with navigation and the rights and freedom of other States.

It is perhaps apposite at this stage to quote from: Starke's International Law, 1 11th Edition as edited by Shearer, Challis Professor of International Law at University of Sydney, the bottom of page 243 to 244. "Articles 78-81 clarify some of the limits of these rights. They are not to affect the legal status of the superjacent waters or the air space above these nor is their exercise to impair navigation or other rights and freedoms of other states under the convention, such as specifically the laying of sub marine cables and pipelines, although the delineation of the course of the pipelines is subject to the coastal states consent. As in the case of the EEZ (Exclusive Economic Zone) under article 60, the coastal state is to have the exclusive right to construct, etc artificial Island installations and structures on the continental shelf and the provisions otherwise of Article 60 are to apply Mutatis Mutandis in respect of these. Moreover the coastal state is to have the exclusive right to authorise and regulate drilling on the continental shelf for all purposes."

All these are rights of the coastal states of Nigeria which Nigeria exercises for and on behalf of the coastal states of the Niger Delta.

What I have said about coastal states like Delta State apply with equal force to Cross River State. Article 121 of part V1II of 1982 Law deals with the Regime of Islands. An island is there defined as a naturally formed area of land, surrounded by water and which is above water at high tide. The Territorial Sea, the contiguous zone, the EEZ and the continental shelf are determined for Island in the same way as the provisions of the convention otherwise make such determination in respect of land territory, but mere rocks which cannot sustain human habitation or economic life of their own are not to have an EEZ or a continental shelf"

Before I summarise and proceed to other matters relative to the Supreme Court judgment I respectfully draw attention to what I said of the rights of coastal states and Nigeria to wit: "All these are rights of the coastal states of Nigeria which Nigeria exercises for and on behalf of the coastal states of the Niger Delta."

That statement leads to the consideration of the Exclusive Economic Zone Act Cap 116 Laws of the Federation of Nigeria 1990 which has its long title as follows:

"An Act to delimit the Exclusive Economic Zone of Nigeria being an area extending up to 200 nautical miles seawards from the coasts of Nigeria. Within that Zone and subject to universally recognised rights of other states (including land locked states), Nigeria would exercise certain sovereign rights especially in relation to the conservation or exploitation of the natural resources (mineral, living species etc) of the sea bed, its sub soil and superjacent waters and the right to regulate by law the establishment of artificial structures and installations and marine scientific research amongst other things."

I quote Iguh JSC on page 10 of his Lordship's judgment. "Pursuant to Section 1 (1) of the said Exclusive Economic Zone Act, the 200 nautical miles therein mentioned is defined as an area ... extending from the external limits of the territorial waters of Nigeria up to a distance of 200 nautical miles from the baseline from which the breath of the territorial waters of Nigeria is measured."

The area of the Exclusive Economic Zone in the Act tallies with that of continental shelf as set out in the 1982 Law of the Sea. It would appear at first sight therefore that the Exclusive Economic Zone Act 1990 vests mineral resources in the zone in Nigeria. But a look at the long title of the Act negates that view. What is there said is that subject to universally recognised rights of other states, Nigeria would exercise certain rights especially in relation to the conservation or exploitation of the natural resources (minerals living species etc) of the sea bed, its sub soil and superjacent water."

The wording of the Exclusive Economic Zone Act namely: Nigeria would exercise, is very important. That in my view is a declaration of intention, a statement of what Nigeria would do.

By the 1982 Law on the Continental Shelf, the coastal states have the exclusive sovereign rights of exploration and exploitation vested in them. What Nigeria appears to me to have done therefore is to declare in the Exclusive Economic Zone Act its intention to exercise the rights vested in the coastal or littoral states by the 1982 Law of the Sea. Nigeria has no land of its own apart from that of the Federal Capital Territory, Abuja. All other parcels of land in Nigeria belong to the constituent states which make up Nigeria. And it is the coastal or littoral states of Nigeria which have all the land along the coast of Nigeria. It is their land submerged under the Sea over the years that is the continental shelf. Indeed the process by which the sea submerges the land of the coastal states is a continuing one. It is on as you read this piece. The inhabitants of some towns and villages of Coastal States are at this very moment crying for help to stem the sea from further eroding and submerging their land. Constitute the eight coastal or littoral states into a country or nation and Nigeria automatically becomes a landlock Country with earnings from both on and off shore oil and gas lost to her. Nigeria has accordingly in the Economic Zone Act declared its intention and said it would exercise the rights of conservation and exploitation of the continental shelf which is vested exclusively on the Coastal States. Nigeria is in fact now doing so. The rights do not belong to Nigeria which has no land apart from that of the Federal Capital Territory. Any right therefore exercised by Nigeria in the Economic Zone is exercised as the self appointed agent, the almighty agent, of the coastal states.

Let me summarise.

(l)The Federal Government alleged that the seaward boundary of a coastal state is the low water mark of the land surface of the State. The Federal Government did not adduce evidence either orally or by affidavit to indicate the actual location of the alleged low water mark. It was said that it was not necessary to adduce such evidence because the case is one of the interpretation of the constitution. In my view it is not, because the Supreme Court was not called upon to interpret the provisions of Sec. 162(2) of constitution but to fix precisely, to ascertain precisely, the seaward boundary of a coastal state. That raises an issue of fact which requires evidence, the Federal Government having failed to adduce that evidence the Supreme Court should in my view have dismissed its case.

(2)The coastal states have a sea-bed border which is called in ordinary language a continental shelf. The continental shelf is a natural prolongation of the land mass of the coastal state into the sea. It is coastal land under the sea. Being land, it is my view that, the land, the continental shelf, is vested under our Land Use Act in the governors of coastal states in trust for the people. And its control and management are under the military governor of each of the costal states or the local governments of the state. And accordingly revenue derived from the oil and gas and other mineral resources on and in the sub soil of the continental shelf is derived from the Land of the coastal state. And this is so notwithstanding the provisions of Sec. 44(3) of the constitution as those provisions cannot invalidate provisions of the Land Use Act by reason of Sec. 315(5) of the Constitution.

(3)The continental shelf has assumed a prominent and settled place in international law. It is defined in the current law, the 1982 United Nations Law of the Sea, as comprising of the sea bed and sub soil of the marine area of a coastal state that extends into the sea for a minimum distance of 200 nautical miles from the baseline where the breath of the territorial sea is measured. That law vests on coastal states the sovereign and exclusive rights to explore and exploit the mineral resources on and in the continental shelf.

(4) The distance of the extension or prolongation of the continental shelf into the sea from the baseline prescribed by international law being 200 nautical miles, the seaward boundary of a coastal state for the purpose of calculating the revenue derived from the natural resources of that state cannot be the low water mark of the land surface of the State. The boundary in my view is the outer edge of the continental