Cross River, 76 oil wells and rule of law By: Uduak Edward Recently

The government of Cross River State approached the Supreme Court, appealing  that Akwa Ibom state should be made to pay N15.5billion, being the 13 per cent derivation from the disputed 76 oil wells returned to the latter in 2009.

To some analysts, the state ought to be commended for exercising its fundamental human rights. Yet, those who insist on facts, wave it aside as a mere academic exercise.

Indeed, the claim by Cross River appear to be a counter of the one sought by Akwa Ibom about two years ago. Then, Akwa Ibom had argued that: A total refund in the sum of N31.3 should be made by Cross River State in favour of Akwa Ibom State.

This represents payment of derivation revenues illegally made to Cross River State from November 2004 to April 2009 in contravention of the Supreme Court judgement of June 2005 which confirmed Cross River State as a non-littoral State with no maritime territory and therefore no oil resources to claim revenue therefrom.

That, it said, was beside an alleged  illegal receipt of derivation revenue in the sharing of excess crude funds from November 2004 to April 2009. Although some experts refuse to comment on the matter, as the case is in court, they however drew  attention to the undisputed reality.

Today, Cross River is challenging the decision of the Revenue Mobilisation, Allocation and Fiscal Commission (RMAFC) to return 76 oil wells to Akwa Ibom State.

But, according to a maritime lawyer  should the  principle of the rule of law be followed, and  all parties abide by the Supreme Court judgement of 24th June 2005, Cross River may not really have a case.

This is because, said the expert, the said judgement affirmed Cross River State as a non-littoral state. What that means is that Cross River is not contiguous to the sea; and so cannot lay claims to the oil wells.

The state, it was said, assumed the painful status shortly after the International Court of Justice handed over the Western part of Bakassi to Cameroon.

According to  the Supreme Court: The effect of the judgment of the International Court of Justice (ICJ) dated 10/10/2002 on the land and maritime boundary case between Nigeria and Cameroon is that it has wiped out what used to be the estuarine sector of Cross River State as a result of which the State (Cross River) is hemmedin by the new international boundary between Nigeria and Cameroon. That being the case, there seemsto be no longer any estuarine boundary between Akwa Ibom State and Cross River State.

It added that: If the median line or ˜thalweg principle is adopted in drawing the boundary line  between Akwa Ibom and Cross River States, the line must intersect the new maritime line (maroua line) between Nigeria and Cameroon with the result that Cross River State no longer has a seaward boundary.

Put another way, if a state does not abut the sea, therefore, it is simply not possible for it to access an oil well, which is about 200 meters isobaths into the sea. Yet, Cross River, in an originating summons filed by its counsel, Yusuf Ali, argues that following a boundary dispute between it and Akwa Ibom State, the then President Olusegun Obasanjo summoned the two states and amicably settled the matter. Subsequent demarcation of boundary, it added, showed that 90 oil wells war found to be in the territory of Cross River State.

However, they did not in any way dispute that it lost access to the sea, when Bakassi went to Cameroon. And, those who know argue that even if Obasanjo ordered away some oil wells from Akwa Ibom to Cross River, boundary disputes, especially one with international implications cannot be permanently settled by political fiats, without recourse to facts.

As argued by counsel to Akwa Ibom State, Chief Bayo Ojo and Paul Usoro, Cross River once qualified as a littoral state since it had access to the sea through Bakassi Peninsula and the estuarine part of the body of water ( inland waters) called Cross River.

But with the ceding of Bakassi to Cameroon, the state is now landlocked and no part of its territory lies contiguous to the sea. That, it was learnt, is the kernel of the matter.

This much was confirmed by Thisday newspaper on August 6, 2009, when it reported that: The kernel of the dispute between Akwa Ibom and Cross River States is hinged on the fact that prior to the apex courts ruling, Cross River State did not have the 76 oil wells attributed to it on account of the non-contiguity of its landmass to the oil wells which were at sea but adjacent to Akwa Ibom coastline.

Legal interpretation of the June 2005 Supreme Court judgment implied that by rejecting the second relief, Cross River State was no longer a littoral state except under the assumption that the western axis of the Bakassi Peninsular was going to be administered by Nigeria:

investigations revealed that one of the key arguments posed before Yardua by the NBC which compelled his directive to restore the oil wells to Akwa Ibom was the display of several maps which showed clearly that the riverine territory of Cross River proceeding to the sea, truncates at the  intersection of the median of Cross River with the median of Kwa Yafe River.

Kwa Yafe River is the northern limit of the Bakassi Peninsular which now separates Cameroon from Nigeria in accordance with the ICJ ruling and therefore is the international boundary with Cameroon .

It was also learnt that this new evidence informed the apex courts judgement declaring Cross River a non-littoral state since most of the oil wells under contention are at sea or offshore in the area where the international boundary between Nigeria and Cameroon is in effect between Akwa Ibom and the Bakassi Area of Cameroon to the exclusion of Cross River State administration.

Moreover, according to another expert, before April 2002 Supreme Court judgment and the promulgation of the offshore /onshore Dichotomy Abrogation Act 2004, there was no dispute whatsoever on the ownership of oil wells between Akwa Ibom State  and Cross River. 

Problem only started when  the National Boundary Commission NBC) suddenly evolved a new maritimedelineations that sparked surprise, confusion and shock. The worse victim of the new adjustment order was Akwa Ibom State.

The  delineation by the NBC (shown between the baseline/coastlinesof the littoral states and the 200 meter isobaths), produced a lot of lines that were not acceptable to the states for various reasons. 

Akwa Ibom State was the worst hit, as lines skewed against her on both flanks remained inexplicable. Several complaints by Akwa Ibom State were fruitless, until the  late President Umaru Musa Yar Adua directed that the various grievances from all the States be  addressed “based on the principle of the rule of law and devoid of sentiments.

Clearly, in 2005, sentiment, rather than hard historical facts led to the arbitrary expropriation of the 76 oil wells from one state to another.

However, while Cross River claims it had 90 oil wells before that time and even, for the sake of peace gave 14 of them to Akwa Ibom; the latter insists the disputed wells always belonged to it. In a position paper about two years back, Akwa Ibom said: Before the 75 oil wells were illegally transferred from Akwa Ibom to Cross Rivers State in January 2005, the Cross River State's share of derivation revenue in relation to Akwa Ibom State was basically insignificant.

For example, in the month of October 2000, Cross River State's share was N193,572.93 while in the same month, Akwa Ibom State received N1, 855,346,047.46  as derivation revenue.

Simply put, the high level of disparity is a proof that the wells had always been in Akwa Ibom and that the state had always enjoyed it derivation! Many have also scoffed at whatever principle NBC used in the said revised demarcation; saying it brought more problems than solutions to the country.

In fact, the Supreme Court sneered more, thus... it can be seen  that the revised boundary delimitation of the NBC dated 5/7/2004 which the plaintiff is urging this court to declare as the maritime boundary of the two states is predicated on the negotiation between Nigeria and Cameroun which negotiation is almost but not finally concluded...

It is therefore clear to me that the revised boundary delimitation by the 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...

Part of the reasons Cross River insists that it should be considered as owners of 76 oil wells is because the state suffers some effects from oil exploration. True, the effects can be devastating, hence every sane mind would back recommendations that the victims should be compensated.

In fact, I join well meaning patriots to urge the Federal Government to fashion out some long-over-due palliatives to cushion the effects of Bakassi lose on Cross River. It should be noted that the  stark reality of ceding Bakassi to Cameroon led to the lose of littoral status by the state!

Yes, indemnity is in order for Cross River. But that, in no way suggests that internationally recognized principles of boundary delineation should be jettisoned at the detriment of a sister state. While it is morally right to pay some damages to Cross River State on account of the effect of oil activities, it should not be at the expense of Akwa Ibom State.

This is because the same situation would not be considered for  Lagos State, for instance, on account of oil activities in Ondo State, which distances compare as in the case of Akwa Ibom/ Cross River States!

.Miss Edward, a journalist and teacher, writes from Lagos

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