This case involves a dispute between plaintiff, the Federal Government, on the one hand, and the eight littoral States of Akwa-Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Ondo and Rivers State on the other hand as to the southern (or seaward) boundary of each of these States. The Federal Government contends that the southern (or seaward) boundary of each of these States is the low-water mark of the land surface of such State or, the seaward limit of inland waters within the State, as the case so requires. The Federal government, therefore, maintains that natural resources located within the continental shelf of Nigeria are not derivable from any State of the Federation.

The eight littoral States do not agree with the Federal Government’s contentions. Each claims that its territory extends beyond the low-water mark onto the territorial water and even onto the continental shelf and the exclusive economic zone. They maintain that natural resources derived from both onshore and offshore are derivable from their respective territory and in respect thereof each is entitled to the 'not less than 13 per cent' allocation as provided in the proviso to s 162(2) of the Nigerian Constitution.

Held: Plaintiff's case succeeds.

The seaward boundary of a littoral State within the Federal Republic of Nigeria for the purpose of calculating the amount of revenue accruing to the Federation Account directly from any natural resources derived from that State pursuant to s 162(2) of the Constitution of the Federal Republic of Nigeria 1999, is the low water mark of the land surface thereof or (if the case so requires as in the Cross River State with an archipelago of islands) the seaward limits of inland waters within the State.

At international law the baseline for measuring the breadth of the territorial sea is the low water mark along the coast. See art 3 of the Geneva Convention on the Territorial Sea and Contiguous Zone 1958 (binding on Nigeria) which provides: 'Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast as marked on large-scale charts officially recognized by the coastal state.' See now art 5 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS).

UNCLOS is a comprehensive treaty on the sea. It supersedes the 1958 Convention. UNCLOS 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 navigation, archipelagic states, exclusive economic zone, continental shelf, high seas and the rights 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 in the area, protection and preservation of the marine environment, marine scientific research, development and transfer of marine technology and, finally, settlement of disputes.

The Exclusive Economic Zone is defined in art 55 of the UNCLOS as meaning 'an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this part, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other state are governed by the relevant provisions of this convention.' And by art 57, the zone 'shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured'.

None of the Territorial Waters Act, Sea Fisheries Act and Exclusive Economic Zone Act has extended the land territory of Nigeria beyond its constitutional limit, although the Acts give municipal effect to international treaties entered into by Nigeria by virtue of its membership, as a sovereign state, of the comity of nations. These treaties confer sovereignty and other rights on Nigeria over certain areas of the sea (the Atlantic Ocean) adjacent to its coastline. 

To the extent that the littoral defendant States seek, by affidavit evidence, to prove that these areas of the sea belonged in the past to communities indigenous to these States, such evidence is nebulous. It falls far short of the nature and quality of the evidence required in a case like this where the claim of the indigenous community to ownership of the sea runs against the grain of statutory instruments (Orders in Council) and the common law and international law too. It is not the case of the littoral defendant States that, like the original American States, the Crown made a grant of the offshore to them or their predecessors in title (that is, the Eastern and Western Regions of Nigeria or the Colony and Protectorate of Southern Nigeria). The mere fact that oil rigs and/or wells located in the offshore areas bear names of indigenous communities on the coastline adjacent to such offshore areas is of no moment in proving ownership to such offshore areas. Such naming, as well as provisions in the various acts for registration, etc, to be in the states adjacent to these areas, is only an internal administrative arrangement made by the plaintiff.

Article 76 of UNCLOS defines a continental shelf thus: 'The continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas that extend beyond its territory sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.'

The rights a coastal state has over its continental shelf and the limits of those rights are set out in arts 77 and 78 of UNCLOS. These provisions indicate that though a coastal State exercises certain sovereign rights over its continental shelf, that does not make the shelf part of its land territory over which it has absolute and exclusive control. Its sovereign right over the continental shelf is of a limited kind only.