Daily Independent Online.
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Wednesday, June 30, 2004.
Bunkering: Nwabueze faults Supreme Court, testifies for
Russians
By Alex Oni
Correspondent, Lagos
Foremost
Constitutional lawyer, Prof. Ben Nwabueze (SAN), on Tusday picked holes in the
resource control judgment of the Supreme Court of Nigeria as he begins his
testimony in the N346 million crude oil bunkering case against 13 Russians.
In a 17-page
amicus-curia (friend of the court) brief on the jurisdiction of the Federal
High Court, sitting in Lagos to try the Russians in charge No FHC/L/39c/2004,
filed on Tuesday on his behalf by lawyer to the Russians, Chief Emefo Etudo,
Nwabueze said the decision of the Supreme Court, in a lead judgment delivered
by Justice Osundare, which was unanimously upheld by all the other justices was
“demonstrably wrong.”
The Supreme Court
held that the seaward boundary of Nigeria ends at the low-water mark of the
sea; that the Territorial Water Act does not extend the territory of Nigeria;
and accordingly, the territorial sea with its bed and subsoil is not part of
Nigeria’s territory.
Said Prof.
Nwabueze, “The implication is that the territorial sea, with its bed and
subsoil, that is 12 nautical miles from low water mark, is foreign territory in
which the Federal Government is authorised by the Territorial Water Act to
exercise power, that is, foreign jurisdiction.”
He said the
decision was based on “a misconception” of the nature of
sovereignty and runs counter to decisions of courts in other common law
jurisdiction, especially the decision of the Supreme Court of Canada.
Nwabueze said being
a decision of the Supreme Court, it is the law on the matter and is binding on
all other courts in Nigeria, including the Federal High Court.
In the brief,
Nwabueze narrowed the issues to be determined to five: Whether at common law
the territorial jurisdiction of the court extended beyond Nigeria’s
territory; whether the territorial jurisdiction of the court is extended by the
Territorial Waters Act beyond Nigeria’s territory to the territorial
water; whether the court has jurisdiction over persons who are not Nigerian
citizens, who were outside Nigeria’s territory and outside its
territorial waters at the time of the offence; and whether the court has
jurisdiction over a foreign ship M/T African Pride, which was in anchor outside
Nigeria’s internal waters and outside its territorial waters at the time
it was boarded and arrested by NNS Nwamba.
Nwabueze said the
jurisdiction of the courts in Nigeria at common law, is limited to, and does
not extend beyond Nigeria’s territory, which by the decision of the
Supreme Court in Attorney-General of the Federation vs Attorney-General of Abia
State and 35 others, ends at low-water mark.
He insisted that
the Territorial Water Act, as amended, which the prosecution in this case
relied on, has extended the jurisdiction to twelve nautical miles from low
water mark.
He referred to the
written statement made to the police by Captain Joe Aikhomu of the Nigerian
Navy, which forms part of the proof of evidence, gave the location of M/T
African Pride as about 31NM off the forcados River entrance.
“So the M/T
African Pride was at last some 18 nautical miles away from Nigeria’s
territorial waters, 12 nautical miles from low water mark, being the limits of
Nigeria’s territorial waters, as prescribed by the Territorial Water
(Amendment) Decree, 1998.
He submitted that
the court has no jurisdiction over the accused persons who are foreigners and
are not under the protection of Nigerian government and owe no reciprocal duty
of obedience to its criminal laws, especially when the alleged offence took
place outside Nigeria’s territorial waters.
Finally, Professor
Nwabueze said the court lacks jurisdiction over the ship M/T African Pride
which allegedly conveyed the N346 million crude oil.
Said Professor
Nwabueze, “If M/T African Pride is a foreign ship, it cannot be subjected
to the criminal jurisdiction of Nigerian courts for an offence that took place
outside Nigeria’s territorial waters, at a place 18 nautical miles
outside her territorial waters.”
