Section 162(1) of the Constitution of Federal Republic of Nigeria 1999 (hereinafter is referred to as the Constitution or the 1999 Constitution) establishes the Federation Account into which shall be paid all revenues collected by the Government of the Federation, with a few exceptions not relevant to the case in hand.

Sub-section (2) of section 162 of the Constitution empowers the National Assembly to determine the formula for the distribution of funds in the Federation Account. Sub section (2) provides:

"162(2)     The President, upon the receipt of advice from the Revenue Mobilisation Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density;

The proviso to the sub-section entrenches, with respect to natural resources, the principle of derivation in any formula the National Assembly may come up with. By this principle "not less than thirteen per cent" of the revenue accruing to the Federation Account directly from any natural resource shall be payable to a State of the Federation from which such natural resources are derived. For a State to qualify for this allocation of funds from the Federation Account, the natural resources must have come from within the boundaries of the State, that is, the resources must be located within that State.

There arose a dispute between 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 subsection (2) of section 162 of the Constitution.

In order to resolve this dispute, the Plaintiff took out a writ of summons praying for:

               "A determination of the seaward boundary of a littoral States 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 section 162(2) of the constitution of the Federal Republic of Nigeria 1999."

All the States in the Federation are joined as defendants in the action. The parties, except the 29th and 30th Defendants, that is, Osun and Oyo States, filed and exchanged their respective pleadings. Some of the Defendants raised counter-claims against the Plaintiff. The pleadings of the Plaintiff and the eight littoral Defendant States reflect their respective viewpoints in the dispute. Some of the defendants raised in their pleadings, a number of objections such as there being no dispute, misjoinder, lack of jurisdiction etc. All these objections were taken at an earlier hearing and disposed of. See Attorney General of the Federation v. Attorney General of Abia State & 35 Ors. (2001) 11NWLR689.

Notwithstanding the decision of this Court rejecting the preliminary objections, the 3rd Defendant in the affidavit evidence in support of their case still maintains that they have no dispute with the plaintiff. In paragraph 16 of the affidavit evidence of Ifiok Uleana, a legal practitioner and Acting Director of Civil Litigation in the Ministry of Justice, Uyo, Akwa Ibom State, the deponent testified thus:

"That the 3rd defendant has never had any dispute with the plaintiff regarding on-shore or off-shore derivation since as our counsel has advised and I verily believe that question has been settled by Decree No.106 of 1992."

In paragraphs 27 and 29, however, the deponent deposed:

"27.         That the Federal Government has been paying to defendant Akwa-Ibom State the amount due to it on derivation but in paying, the Federal Government has unjustly withheld 40 per cent of the 13 per cent due and the plaintiff has held on to such amounts and has refused to pay despite repeated demands by the 3rd defendant."

29.          That the total amount due to Akwa-Ibom State Government and wrongly withheld by the plaintiff’s N15,006,418,955.28 covering the period indicated in paragraph 28 above and the plaintiff has not denied owing this amount."

If there was no dispute between him and the plaintiff, why the underpayment complained of by him. I stand by our earlier decision that on the pleadings of the parties in this case there is a serious dispute between the plaintiff and the littoral states as to the seaward limit of the latter's territories.

In a similar situation in United States v. State of California, 332 US 19, 24-25;US Reporter 1658, 1661, the US Supreme Court, per Black J, had this to say:

"It is contended that the pleadings present no case or controversy under Article III, 2 of the Constitution. The contention rests in the first place on an argument that there is no case or controversy in a legal sense, but only a difference of opinion between Federal and State officials. It is true that there is a difference of opinion between Federal and State officers. But there is far more than that. The point of difference is as to who owns, or has paramount rights in and power over several thousand square miles of land under the ocean off the coast of California. The difference involves the conflicting claims of Federal and State officials as to which Government, State or Federal, has a superior right to take or authorise the taking of the vast quantities of oil and gas underneath that land, much of which has already been, and more of which is about to be taken by or under authority of the State. Such concrete conflicts as these constitute a controversy in the classic legal sense, and are the very kind of differences which can only be settled by agreement, arbitration, force, or judicial action. The case principally relied upon by California, United States v. State of West Virginia, 295, U.S. 463 55SC 789, 79 L.Ed. 1546, does not support its contention. For here, there is a claim by the United States, admitted by California, that California invaded the title or paramount right asserted by the United States to large area of land and that California has converted to its own, oil which was extracted from that land. United States v. State of West Virginia, supra, 295, U.S. at page 471, 55 SC at page 792, 79 L.Ed. 1546. This alone would sufficiently establish the kind of concrete, actual conflict of which we have jurisdiction under Article III. The justifiability of this controversy rests therefore on conflicting claims of alleged invasions of interest in property and on conflicting claims of governmental powers to authorise its use."

Here, the Federal Government contends that natural resources derivable from Nigeria’s territorial water, continental shelf and exclusive economic zone are not derivable from any littoral State. The littoral States contend to the contrary; they claim those areas as part of their respective territories.

Can it still reasonably be suggested that there is no concrete dispute between the parties as to entitle either side to invoke the original jurisdiction of this Court in section 232(1) of the 1999 Constitution to resolve same? I rather think not.

The Court had earlier ordered that parties willing to adduce evidence should do so by filling affidavit evidence. Only the 3^rd, 8^th, 9^th, 10^th, 24^th and 32^nd Defendants did so; the others did not. Nor the plaintiff either.

The parties (except, again, some of the Defendants) filed and exchanged their briefs of arguments as well. At the hearing of the case, learned counsel proffered oral submission. The defendants, who, however, failed to file briefs were not heard in oral arguments.

The simple question that arises in this case is: what is the southern (or seaward) boundary of each of the eight littoral Defendant States of Akwa-Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Undo and Rivers ? The answer to the question is not, however, as simple. One would need to wade through past constitutions, statutes and statutory instruments, evidence, common law and international law to come to an answer. To get a clear picture, I will start by giving a brief political history of the Federal Republic of Nigeria.

There is evidence before us in the affidavit evidence of Professor Ayodeji Oladimeji Olakoju, His Royal Highness Oba Adeyinka Oyekan of Lagos (both filed by the 24th Defendant, Lagos State) and His Royal Highness Edidem (Professor) Nta Elijah Henshaw VI, Obong of Calabar (filed by the 9th Defendant, Cross River State), from which a brief political history of Nigeria can be traced.

Until the advent of the British colonial rule in what is now known as the Federal Republic of Nigeria (Nigeria, for short), there existed at various times various sovereign states known as emirates, kingdoms and empires made up of ethnic groups in Nigeria. Each was independent of the other with its mode of government indigenous to it. At one time or another, these sovereign states were either making wars with each other or making alliances, on equal terms. This position existed throughout the land now known as Nigeria. In the Niger Delta area, for instance there were the Okrikas, the Ijaws, the Kalabaris, the Efiks, the Ibibios, the Urhobos, the Itsekiris, etc. Indeed certain of these communities (e.g. Calabar) asserted exclusive rights over the narrow waters in their area. And because of the terrain of their area, they made use of the rivers and the sea for their economic advancement in fishing and trade -and in making wars too! The rivers and the sea were their only means of transportation. Trade then was not only among themselves but with foreign nations particularly the European nations who sailed to their shores for palm oil, kernel and slaves.

The area now known as Lagos was an amalgam of several communities, such as Aworis and Eguns, to mention a few. All the coastal communities took advantage of the sea and the network of rivers and lagoons as their means of transportation in traveling far and wide along the coastline on trading expeditions, fishing and waging wars.

The British colonial rule commenced with the cession of Lagos to the British monarch in 1861. By the Treaty of Cession entered into on 6th August 1861, King Dosumu (otherwise spelt Docemo) of Lagos and his chiefs ceded to the British Crown the Port and Island of Lagos. For the full text of the treaty, see The Attorney-General v. John Holt & Co. & Ors. and The Attorney General v. W .B. McIver & Co. & Ors. 2NLR at pp.4-5

At about the same time some British firms had established trading ports around the Niger and subsequently extended their operations from the middle of the Niger valley into what is now known as Northern Nigeria. The companies later merged and formed a company known as the Royal Nigeria Company which was granted a charter by the British Monarch not only to trade but also to administer the area from the middle of the Niger valley to present day Northern Nigeria. On the revocation of the charter of the Royal Niger Company on 31 December 1899, the area under its sphere of administration was renamed Protectorate of Northern Nigeria.

With effect from 1st January 1900, also, the remaining part of the present day Nigeria that did not form part of the Protectorate of Northern Nigeria was added to the Niger Cost Protectorate which had earlier been established for the communities of the Niger Delta, to form the Protectorate of Southern Nigeria. It was the British colonial rule that provided the central authority that bound together all the erstwhile separate states, emirates, empires and kingdoms that were dotted all over the land now known as Nigeria.

The case of the Attorney -General v. John Holt &Co. & Ors. (supra) shows that the political history of Lagos was more chequered. By commission under the Great Seal dated 13th March 1862, the ceded territories were formed into a separate Government with a Legislative and Executive Council under the title of the Settlement of Lagos. This arrangement lasted but only a short time, for by another Commission dated the 19th day of February 1866, Lagos became part of the Government of the West African Settlements, with a separate Legislative Council but subject to the Governor-General-in-Chief at Sierra Leone. By 24th July 1874 the Gold Coast and Lagos were separated from the other settlements and constituted into one Colony known as the Gold Coast Colony. On 13th January 1886, by Letters Patent, Lagos became a separate Colony. Twenty years later, by Letters Patent dated 28th February 1906, the Colony of Lagos, on 1st May 1906, was merged with the Protectorate of Southern Nigeria to form the Colony and Protectorate of Southern Nigeria.

And on 1st January 1914, the Protectorate of Northern Nigeria was merged with the Colony and Protectorate of Southern Nigeria to form the Colony and Protectorate of Nigeria. Thus emerged the country Nigeria which gained independence from British Colonial rule on 1st October 1960 and is today known as the Federal Republic of Nigeria.

Boundaries

It is interesting to know the boundaries of the country the British created in 1914. By The Nigeria Protectorate Order in Council, 1913 made at the Court at Windsor Castle on 22nd November 1913 but to take effect on 1st January 1914, the boundaries of the new country were defined. The boundaries of the Protectorate of Nigeria were again reaffirmed in The Nigeria Protectorate Order in Council 1922 made on 21st November 1922 at the Court at Buckingham Palace. See Laws of Nigeria 1923. Vol.4 at page 355 et seq. In section II of the said Order in Council, the Protectorate of Nigeria was defined as "the territories of Africa which are bounded on the South by the Atlantic Ocean, on the west, north and north-east by the line of the frontier between the British and French territories and on the east by the territories known as the Cameroons".

By another order in Council - the Colony of Nigeria (Boundaries) Order in Council, 1913 made the 22nd November 1913 the boundaries of the Colony of Nigeria (that is, Lagos) were also described with the Bight of Benin as the southern boundary. See also The Lagos Local Government (Delimitation of the Town and Division into wards) Order in Council 1950 No. 34 of 1950 which put the southern boundary of Lagos as "The sea". That remains the boundaries of Nigeria, and of Lagos, to this date. The Southern boundary of Nigeria is the Atlantic Ocean, that is, the sea. The Bight of Benin is a long inward curve on the Coast of the Atlantic Ocean.

By further constitutional changes - see: Nigeria (Constitution) Order in Council, No.1172 of 1951 - Nigeria was divided into Northern, Western (including Lagos) and Eastern Regions. By L.N 126 of 1954 titled The Northern Region, Western Region and Eastern Region (Definition of Boundaries) Proclamation, 1954 , made pursuant to section 5(2)(a) of the said Nigeria (Constitution) Order in Council 1951, the boundaries of the three Regions to which the Country had been divided, were given in one proclamation. The boundaries of Western and Eastern Regions were described in the Second and Third Schedules respectively, to the said Proclamation. Of relevance to this case are the southern boundaries of these two Regions which are given in each case as "The Sea", which is the Atlantic Ocean.

Nigeria remained divided into three Regions up to and after independence in October 1960. In 1964, however, a fourth Region - the Mid-West Region was carved out of the Western Region. In May 1967, the Federal Military Government scrapped the regional arrangement and divided the country  into twelve states. By 1996, a 36 States structure had emerged in the country. All the eight littoral Defendant States were carved out of the old Western, Mid-West and Eastern Regions and constitute the coastal areas of those Regions. It goes without saying that the southern boundaries of all these littoral Defendant States must be the Southern boundaries of the Western and Eastern Regions as defined in LN 126 of 1954, that is, "The Sea". And this is coterminous with the Southern boundary of Nigeria as defined in Section 11 of The Nigeria Protectorate Order in Council l922 and of Lagos as defined in The Colony of Nigeria (Boundaries) Order in Council, 1913.

This conclusion would have provided the answer to the simple question that calls for determination in this action. But the conclusion raises yet another question: what is the boundary mark between Western, Mid-West and Eastern regions (and indeed Nigeria for that matter) on the one hand and the sea, on the other ?

The Orders-in-Council and Proclamations are silent on this. And this is the next question I now have to resolve in this judgment. One thing, however, is clear. If the boundary is with the sea, then by logical reasoning, the sea cannot be part of the territory of any of the old Regions. For this reason, therefore, I have no hesitation in rejecting the contentions of the eight littoral Defendant States that their boundaries extend to the exclusive economic zone or the continental shelf of Nigeria. The position of the territorial waters of Nigeria, the continental shelf and the exclusive economic zone shall be considered later in this judgment.

Coming back to the new question posed by me in the paragraph above I must observe that the Plaintiff led no evidence in this case. Some of the Defendants have argued that Plaintiffs case ought to be dismissed on this ground alone. But Chief Williams, SAN learned leading counsel for the Plaintiff has submitted that the issue before the Court is one of law that needs no evidence to resolve. He referred to the Court's earlier ruling on the preliminary objections of some of the Defendants and pointed out that the Court had then observed that the action was about the interpretation of the Constitution. In learned Senior Advocate's view the Plaintiff does not need any evidence to interpret the Constitution and prove his case. He cited in support of his submission the English case of Pioneer Plastics Contractors Ltd. v. Commissioners of Customs & Excise (1967) Ch 597.

I think Chief Williams is right as the new question now under consideration can be resolved as a matter of Law. Both Messrs Akpamgbo, SAN and Okpoko, SAN learned counsel for the 1st and 6th Defendants respectively made oral submissions to the same effect. In my humble view, and as I shall presently show, the seaward boundary of a littoral State as we are called upon to determine in this case, is a matter of law. What becomes factual, and on which evidence will be required to prove, is the actual location of that boundary. The latter situation is not the issue before us. If, however, a Defendant State claims territory beyond the boundary as determined by law, such a Defendant will need to adduce evidence, such as Crown grant, to establish her case. That plaintiff has not adduced affidavit evidence in this case is not fatal to Plaintiffs case. See: Pioneer Plastic Containers Ltd. v. Commissioners of Customs and Excise (supra) where the Court in England (Chancery Division) held, rightly in my view, that where there are no issues of fact on the pleadings, no evidence need be adduced.

What then is the position in law, as Chief Williams relies on law? As I have found earlier in this judgment, the southern boundaries of the littoral States of Nigeria are the sea. This makes them riparian owners. And as riparian owners the seaward extent of their land territory, at common law, is the low-water mark or the seaward limit of their internal waters. This is so, because at common law, the sea shore or foreshore (both mean the same thing) belongs to the Crown. See: Hales: DeJure Maria (Hargrave's Tracts. pp 12,25 &26) where it is written:

"The shore is that ground that is between the ordinary high-water and low-water mark. Thus both prima facie and of common right belong to the King, both in the shore of the sea, and the shore of the arms of the sea."

The learned author of Halsbury’s Laws of England 4th Edition has this to say in Vol.4(l) paragraph 921:

"Seashore or foreshore ...  The boundary line between the seashore and the adjoining land is in the absence of usage or evidence to the contrary, the line of the median high tide between the ordinary spring and ebb tides."

Again, in Vol.49(2), paragraph 1, the learned author explains further:

"l.    Meaning of 'high seas' and 'territorial waters'.   At common law, 'high seas' includes the whole of the sea below low-water mark where great ships can go, except for such parts of the sea as are within the body of a county, for the realm of England only extends to the low-water mark, and all beyond is the high seas. In international law ‘high seas’ means all parts of the sea not included in the territorial sea and internal waters of any state."

Writing in Volume 18, paragraph 1453, the learned author defines the land territory of a State as consisting of the land within its boundaries, including islands. This is "within the exclusive jurisdiction of the territorial State." In paragraph 1454, he has the following on the internal waters of a territorial State:

"1454.  Internal waters.  Internal or national waters are those areas of water, including parts of the sea, which are under the full sovereignty of the territorial state. They include inland waters, ports, anchorages and roadsteads, bays, gulfs and estuaries, sea separated by islands and all sea area which are to the landward side of the baselines from which the territorial sea is delimited. Internal waters differ from territorial waters in that there exists in territorial waters but not in internal waters, a right of innocent passage for foreign vessels. Foreign warships require permission to enter internal waters, and merchant vessels enter on conditions determined by the territorial state."

Now, at international law the baseline for measuring the breadth of the territorial sea is the low water mark along the coast. See Article 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 Article 5 of the United Nations Convention on the Law of the Sea, 1982.

In R v. Keyn (1876) 2 Ex.D 63 at p.67 Sir Phillimore declared:

"The county extends to low-water mark, where the "high seas" begin: between high and low-water mark, the Courts of oyer and terminer had jurisdiction when the tide was out, the Court of the admiral when the tide was in.

There appears to he no sufficient authority for saying that the high sea was ever considered to be within the realms, and, notwithstanding what is said by Hale in his treatises De Jure Maris and Pleas of the Crown, there is a total absence of precedents since the reign of Edward III, if indeed any existed then, to support the doctrine that the realm of England extends beyond the limits of counties."

See also: The Mecca (1895) P 95 at p.107 per Lindley L.J applied in R v. Liverpool Justices, ex-parte Molyneux(1972) 2 QB384; (1972) 2 All E.R. 471; Att. Gen of Southern Nigeria V. John Holts & Co. (Liverpool) Ltd. &Ors. (1915) AC 599 (PC): 2 NLR 1 (Full Court).

Chief Williams has referred us to a number of cases decided in other common law jurisdictions and has urged us to apply the principles enunciated in those cases to the present case. These cases are: US v. Louisiana L.Ed 1025; (USA), Reference Re Ownership of Offshore Mineral Rights, (1968) 65 DLR 2^nd, 354 (Canada); New South Wales & Ors v. Commonwealth (1975-6) 8 LR I (Australia). The Littoral Defendant States, however, urged us not to follow those cases as, according to them, the facts and circumstances in those cases.

I have read all these cases. True enough, the facts and circumstances may not be the same. But the principles of the common law and international law pronounced in those cases are applicable equally here. I have already discussed the common law principles and their application to this case. I shall later in this judgment discuss in depth the international law relating to the matter on hand.

Thus, at common law, the boundary-mark between a riparian owner, such as the littoral states are in this case, and the sea is the low-water mark. See: Bonze v. LA Mackie (1969-70) 122 CLR 177; Reference ownership of offshore Minerals Rights (supra); New south Wales & Frs. Commonwealth (supra), (1975)-76) 135 CLR 337; United States v. Louisiana (supra); 332 US 19;67 US Reporter 1658; RV. Kin (1876) 2 Ex D63 at p.67.

But some of the Defendants, particularly the 9^th Defendant has submitted that the common law is not applicable. With profound respect to learned counsel, I cannot accept this submission. Common law has been received law in this country since I863 when it was applied to Lagos and 1914 when by the Supreme Court Ordinance of that year it was applied to the Colony and Protectorate of Nigeria. In Charlie King Amachree v. Daniel Kalio, 2 NLRL 108; John Holt's Case (supra) and Chief Braide v. Chief Adoki, l0 NLR 15, to mention a few, common law was applied to resolve the issues arising in those cases. I do not think I need say more on this except to point out that the successor to the British Crown is the Government of the Federation of Nigeria.

I think this is a convenient stage to consider the peculiar position of the 9th Defendant. It has been shown by affidavit evidence and annexures thereto that the Cross River State has a number of islands dotted on its internal waters and the sea. Her southern boundary, in the circumstance, will be the seaward limit of her internal waters.

With the conclusion I reach in the paragraph above I would have said I am done with Plaintiffs case. But that is not yet to be. For the Littoral Defendant States, in reliance on some sections of the Constitution and the past history of revenue allocation in the country, appear to be saying that the Constitution supports their standpoint and that the Plaintiff had before admitted their ownership of the land and sea beyond the low-water mark. How correct are these contentions?

Both in their written Briefs and in oral submissions, the Littoral Defendant States argue that by sections 2(2). 3(1) & (2) and First Schedule to the Constitution, Nigeria consists of the aggregate of the territories of all the 36 States of the Federation and the Federal Capital Territory and that, constitutionally, therefore, Nigeria cannot have any other territory outside this aggregate. It is argued that if the Plaintiff’s contention is right it would mean that Nigeria’s territory exceeds the constitutional limit set out in the constitution. It is then submitted that it is the acceptance of their argument that these areas of the sea belong to the literal State that will make the territory of Nigeria accord with the constitution.

Chief Williams, in reply, contends that the seaward limit of Nigeria is the low water mark but Nigeria in its sovereignty and by the custom of the international community exercise jurisdiction beyond that limit.

I think Chief Williams is right. I have shown earlier in this judgment that the Imperial Power that created the country Nigeria put as her southern boundary, the Sea - the Atlantic Ocean. I have also found that where the sea is a boundary, the boundary-mark is the low-water mark. The low-water mark, therefore, forms the boundary of the land territory of, not only the eight littoral States of Nigeria, but of Nigeria as well.

One may then ask the question: what gives validity to such legislation as the Territorial Waters Act. Cap. 428, Exclusive Economic Zone Act, Cap 110 and Sea Fisheries Act, Cap. 404, Laws of the Federation of Nigeria 1990? Chief Williams has submitted that each of these enactments was validly made by the Federal Legislature "pursuant to its power to make laws for the Federal Republic of Nigeria with respect to external affairs."

Again, there is force in the submission of learned Senior Advocate. Nigeria as a sovereign state is a member of the international community. The littoral Defendant State not being sovereign, are not, either individually or collectively. In exercise of its sovereignty, Nigeria from time to time enters into treaties - both bilateral and multilateral. The conduct of external affairs is on the exclusive legislative list. The power to conduct such affairs is, therefore, in the Government of the Federation to the exclusion of any other political component unit in the Federation.

Another truism we must accept is that Nigeria is a coastal or maritime nation - its southern boundary is the Atlantic Ocean. While it is recognised in customary international law that the sea is res nullius and it is, therefore, available for the enjoyment of all nations of the world, land-locked nations inclusive, it has come to be accepted that by the vulnerability of their proximity to the sea, maritime nations are entitled to some privileges not available to others to protect their security. Down the ages, nations entered into bilateral agreements for the control of the use of the sea. Momentum towards this end gathered in the I8th and 19th centuries. The notion of territorial waters whereby sovereignty is given to a maritime nation over a breadth of the sea adjacent to her coast, developed. An example of this is the bilateral treaty between the United States and Great Britain made in Washington on January 23, 1924, Article I of which reads:

"The High Contracting Parties declare that it is their firm intention to uphold the principle that three marine miles extending from the coastline outwards and measured from low-water mark constitute the proper limits of territorial waters."

Contrary to the submission of learned Attorney-General of Cross-River State (9th Defendant), the Territorial Jurisdiction Act 1879 was enacted in the United Kingdom not with a view to overruling, by legislation, the court’s decision in R v. Keyn (supra), but to give effect to the growing notion of territorial waters and the exercise of criminal jurisdiction within them.

The rules of international law that have evolved over the centuries are now crystalised in the Geneva Convention on the Territorial sea and the Contiguous Zone, 1958, Geneva Convention on the High Seas, 1958, among others. All the 1958 Geneva Conventions relating, to the sea are now supersede 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 seas. Articles 1 and 2 of the Territorial Sea and the Contiguous Zone, 1958 are relevant to the case on hand and I therefore quote them hereunder:

Article 1

1.    The sovereignty of a state extends, beyond its land territory and its 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 as and other rules of international law.

Article 2

The sovereignty of the coastal state extends to the air space over the territorial sea as well as to its bed and subsoil."

The area of the sea beyond the territorial water is know in international law as the high seas. 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 seas denies sovereignty to such a nation. Articles 1 and 2 of the latter convention provide:

Article 1

The term 'high seas' means all parts of the sea that are not included in the territorial sea or in the internal waters of the state.

Article 2

The high seas being open to all nations, no state may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these article and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal states:

1.     Freedom of navigation;

2.     Freedom of fishing;

3.     Freedom to lay submarine cables and pipelines;

4.     Freedom to fly over the high seas.

These freedoms, and other which are recognised by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas."

(italics are mine)

The exception to this rule, however, is the control given a coastal State in respect of an area of the high seas contiguous to the territorial sea, for article 24 of the Convention on the Territorial Sea and the Contiguous Zone provides:

"Article 24

1.    In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea;

(b) punish infringement of the above regulations committed within its territory or territorial sea.

2.     The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.

3.     Where the coasts of two states are opposite or adjacent to each other, neither of the two states is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two states is measured."

The Convention on the High Seas further debunks 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 seas. It is unlike the sovereignty such state have over their land territory. That being so, therefore, the claim by the plaintiff of sovereignty over the territorial sea of Nigeria and the exclusive economic zones 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 convention and pursuant to its legislative powers under section 74 of the 1963 Constitution, the Federal Military Government enacted the Territorial Waters Act (Cap 428) and the Sea Fisheries Act (Cap 404) to give effect to the convention on the territorial sea and the contiguous zone.

By the 1958 Convention the breadth of the territorial sea is a maximum of 3 miles. This has now been extended to 12 nautical miles by article 3 of the 1982 United Nations convention on the Law of the Sea which superceded the Geneva Conventions of 1958. Article 33 extends the breadth of the contiguous zone from 12 miles to 24 nautical miles.

The 1982 United Nations Convention on the Law of the Sea is a comprehensive treaty on the sea. It supersedes the 1958 conventions. The new conventions 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 Article 55 of the 1982 Convention 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 Article 57, the zone "shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured." The exclusive Economic Zone Act (Cap 116) was enacted in 1978 to give effect to the treaty that preceded the 1982 convention on the subject and in compliance with the provisions of Section 74 of the 1963 Constitution which provided:

"74. Parliament may make laws for Nigeria or any part thereof with respect to matters not included in the legislative lists for the purpose of implementing any treaty, convention or agreement between the Federation and any other country or any arrangement with or decision of an international organisation of which the Federation is a member."

The proviso is unnecessary for our purpose.

The sum total of all I have been saying above is that 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 her coastline. As Marwick , CJ put it in New South Wales & Ors, v. The Commonwealth (1975-76)135 CLR 337 at P. 363.

"The international concession was not that the territory of the nation, in a proprietary or physical sense, was enlarged to include the area of water in the territorial sea or the area of subjacent soil. Indeed, the very description 'territorial waters' emphasises, in my opinion that they are waters which wash the shores of the territory of the nation state, otherwise regarded as ending at the margin of the land."

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,  I hold that such evidence is nebulous. It falls for 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.

Before I move on I need to correct a misconception that appears in the argument of some of the defendants. It is not correct, in my respectful view, that the plaintiff is claming for himself the revenue on natural resources derivable otherwise than from a State. The principle of derivation does not apply to the Government of the Federation, rather, what the plaintiff appears to be saying is that whatever remains in the Federation Account after the application of the principle of derivation, is for distribution among the beneficiaries listed in subsection (3) of Section 162 and in accordance with the formula approved by the National Assembly.

I now turn attention to the purported recognition, by the plaintiff, of the ownership of the Littoral Defendant State to the area of the sea popularly known as the offshore. The said Defendant State rely on the revenue allocation provision and decrees, particularly Allocation of Revenue (Federation Account, etc) (Amendment) Decree 1992, No 106 of 1992 which (hereinafter is referred to as Decree 106 of 1992) amended the Allocation of Revenue (Federation Account, etc.) Act, Cap 16 Laws of the Federation of Nigeria 1990 and which expressly provided that 

" … in the application of this provision, the dichotomy of onshore and off-shore oil production and mineral oil revenue is hereby abolished."

All the littoral Defendant State harp on this provision to assail plaintiff’s claim which they see as a reintroduction of the dichotomy.

With the introduction of federalism in Nigeria, our constitution made provision for revenue allocation among the component units of the Federation. For instance, in the 1960 Constitution that ushered in independence, elaborate provisions were made in Section 130-139 for revenue allocation. Of particular importance to this case is section 134 which reads:

"134. (1) There shall be paid by the Federation to each region a sum equal to fifty per cent of-

(a)   the proceeds of any royalty received by the Federation in respect of minerals extracted in that region; and

(b) any mining rents derived by the Federation during that year from within that region.

(2)  The Federation shall credit to the distributable pool account a sum equal to thirty per cent of

(a) the proceeds of any royally received by the Federation in respect of minerals extracted in any region; and

(b) any mining rent derived by the Federation from within any region.

(3)   For the purposes of this section the proceeds of a royalty shall be the amount remaining from the receipts of that royalty after any refunds or those receipts have been deducted therefore or allowed for.

(4)   Parliament may prescribe the periods in relation to which the proceeds of any royalty or mining rents shall be calculated for the purposes of this section.

(5)  In this section minerals includes mineral oil.

(6)  For the purposes of this section the continental shelf of a region shall be deemed to be part of that region."

(italics are mine)

Except for the percentage payable, sub section (1) appeared to be on all fours with the proviso to sub-section (2) of section 162 of the 1999 Constitution for both are based on the principle of derivation. There is, however, no provision in section 162 or anywhere else in the 1999 Constitution similar to sub-section (6) which made it possible for revenue derived from the continental shelf contiguous to a region to be payable to that region. But the sub-section did not make the continental shelf part of the region but only deemed it to be part of the region solely for the purpose of the section. Had there not been the insertion of sub-section (6), revenue derived from mining operations in the continental shelf would not have been payable at that time to the Region contiguous to the shelf. It is the absence in the 1999 Constitution of a provision similar to sub-section (6) of section 134 of the 1960 Constitution,  that has given rise to the dispute resulting in this case. I do not, however, see section 134 (6) as estopping the plaintiff from contending that the continental shelf is not part of the territory of a state contiguous to it.

There was in 1963 Constitution a provision, verbissima verbis with section 134; it was section 140. This section also contained sub-section (6) which allowed for the revenue derived from mining operations in the continental shelf to be paid to the region contiguous to it. Thus there was no change in the system of revenue allocation in the country between independence and the emergence of military rule in 1966.

Perhaps I may at this stage chip in a word or two on the continental shelf. Part. VI of the 1982 U.N. convention on the Law of the Sea deals with the Continental Shelf. Article 76 of the Convention defines a continental shelf thus:

"I. 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."

To fully understand the rights a coastal state has over its continental shelf and the limits of those rights, it is necessary to set out Article 77 and 78 of the convention which read:

"Article 77

Rights of the coastal state over the continental shelf

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

2.     The rights referred to in paragraph 1 are exclusive in the sense that if the coastal state does not exploit its natural resources, no one may undertake these 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 on 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 subsoil together with living organisms belonging to sedentary species, that is to say, organisms 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 the subsoil.

Article 78

Legal status of the superjacent waters and air space and the rights and freedoms 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 of the air space above those waters.

2.     The exercise of the rights of the coastal state 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 for in this convention".

(italics are mine)

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 her land territory over which she has absolute and exclusive control; her sovereign right over the continental shelf is of a limited kind only.

January 15, 1966 saw the end of constitutional government and the emergence of military rule. The constitutional provisions relating to revenue allocation as respects minerals moved from 1971 forward and backward through some decrees until we had the 1979 Constitution, section 149 of which made no provision for allocation of revenue based on derivation as in the Constitutions before it. The National Assembly, pursuant to section 149(2) of the said 1979 constitution, enacted the Allocation of Revenue (Federation Account, etc.) Act (hereinafter is referred to as Cap. 16). It is this Act that the Military Government amended in 1922 by Decree 106 of 1992. By the amendment, one per cent of the revenue accruing to the Federation Account derived from minerals was to be shared among the mineral producing States in proportion to the amount of minerals produced from each state, whether on-shore or off-share. It is Cap 16 (as amended by Decree 106 of 1992) that provided the formula in use for revenue allocation before the coming into force of the 1999 Constitution in May 1999. There is clear difference in the wording of section 149 (2) of the 1979 Constitution and section 162 (2) of the 1999 Constitution. While  section 149 (2) of the 1979 Constitution made no provision for derivation principle in respect of revenue allocation as it related to revenue accruing from mineral operations, section 162(2) of the 1999 Constitution makes provision for sharing of revenue accruing from natural resources on derivation basis. For ease of reference I set here below the said provisions:

"149(2) Any amount standing to the credit of the Federation Account shall be distributed among the federal and state governments, and the local government councils in each state, on such terms and in such manner as may be prescribed by the National Assembly."

"162(2)     The President, upon the receipt of advice from the Revenue Mobilisation Allocation and Fiscal Commission, shall table before the National Assembly proposals for revenue allocation from the Federation Account, and in determining the formula, the National Assembly shall take into account, the allocation principles especially those of population, equality of States, internal revenue generation, land mass, terrain as well as population density;

Another provision which I need set out here is section 4A of Cap. 16 (as amended by Decree No. 106 of 1992). It reads:

"4A-(I)   An amount equivalent to one per cent of the Federation Account shall be allocated to the Federal Capital Territory.

(2)            An amount equivalent to 3 per cent of the Federation Account derived from mineral revenue shall be paid into a fund to be administered by the Oil Minerals Producing Area Development Commission established by the Oil Mineral Producing Areas Development Commission Decree 1992 for the development of the mineral producing areas, in accordance with such directives as may be issued in that behalf, from time to time by the National Assembly, and the fund shall be distributed among the areas on the basis of need, subject to section 2 of the Oil Mineral Producing Areas Development Commission Decree.

(3)            For the purpose of subsection (2) of this section, and for the avoidance of any doubt, the distinction hitherto made between on-shore and off-shore oil mineral revenue for the purpose of revenue sharing and the administration of the fund for the development of oil mineral producing areas, is hereby abolished.

(4)            An amount equivalent to 2 per cent of the Federation Account shall be paid into a fund to be administered by an Agency to be set up for that purpose of the amelioration of general ecological problems in any part of Nigeria, in accordance with directives as may be issued from time to time by the National Assembly.

(5)            An amount equivalent of 0.5 per cent of the Federation Account shall be allocated and paid into a fund to be designated ‘Stabilisation Fund’ which shall be administered by the Minister for Finance, the residue arising out of using minerals revenue, instead of the Federation Account as the base for allocation to the Fund for the development of the mineral producing areas shall be added to this Fund.

(6)            An amount equivalent to 1 per cent of the Federation Account derived from mineral revenue shall be shared among the mineral producing states based on the amount of mineral produced from each state and in the application of is provision, the dichotomy of on-shore and off-shore oil producing and mineral oil and non-mineral oil revenue is hereby abolished.

(7)            For the purpose of this Decree, and for the avoidance any doubt, where any state of the Federation suffers absolute decline in its revenue arising from factors outside its control, as a result of the implementation of this decree, Stabilisation Fund shall be used to initially augment allocation of the State, in accordance with acceptable threshold, to be worked out by the National Revenue Mobilisation Allocation and Fiscal Commission, at which recourse can be had to the fund and for how long."

The National Assembly has not enacted any law relating to revenue allocation as it is empowered to do by section 162(2) of the Constitution. In order not to create a vacuum, the Constitution in section 313 provides:

"313. Pending any Act of the National Assembly for the provision of a system of revenue allocation between the Federation and the States, among the States, between the States and Local Government Councils and among the Local Government Councils in the states, the system of revenue allocation in existence for the financial year beginning from 1^st January 1998 and ending on 31^st December 1998 shall, subject to the provisions of this Constitution and as from the date when this section comes into force, continue to apply."

The proviso to the section is unnecessary for our purpose; it is, therefore omitted here. By this provision, Cap 16 (as amended by Decree No. l06 of 1992) is to continue to be used in so far as it is not inconsistent with the provisions of the constitution.

Chief Williams has argued thus:

"In the result, until the authorities responsible are able to produce the formula envisaged under Section 162 of the 1999 Constitution the provisions enacted in the Allocation of Revenue (Federation Account etc) Act, Cap. 16 will continue to apply. It is to be observed that this will be so even where the provisions of Cap. 16 are inconsistent with the provisions of Section 162. In short, Cap. 16 does not operate as an 'existing law' under the provisions of Section 315 but rather by force of the transitional provisions of Section 313 cited above.

It only remains to be noted in this connection that the provision abolishing 'on-shore and off-shore oil production' dichotomy enacted in Section 4A(6) of Cap. 16 as amended by Decree 106 of 1992 is, as explained herein, in force, not as an existing but as a temporary enactment pending the coming into force for the Revenue Allocation Formula under Section 162."

With profound respect to learned Senior Advocate, I cannot agree that Cap. 16 does not operate as existing law or that it applies as it is notwithstanding any inconsistency between it and the Constitution. The correct position, in my respectful view, is that Cap. 16 (as amended by Decree 106 of 1992) provides the formula to be used for the purpose of revenue allocation pending the time the National Assembly comes out with a new formula as directed by the Constitution. Cap 16 is however, only applicable in so far as it is not inconsistent with the provision of the 1999 Constitution. And where there is any inconsistency, the Act gives way. Cap 16 is, of course, an existing law as it answers neatly to the definition of that expression in section 315(4)(b) which provides:

"(4)  In this section, the following expressions have the meanings assigned to them respectively:

(b)   'existing law' means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when the section comes into force or which having been passed or made before that date comes into force after that date."

Given the zig-zag history of revenue allocation vis-a-vis the derivation principle since, at least, 1960 to date, it cannot be said that the plaintiff at any time admitted that the area of the sea beyond the low-water mark belonged to the coastal regions or states contiguous to it. With this conclusion, I hold, and determine, that 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 section 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. And this shall be my judgment it respect of plaintiff’s case.

(Italics supplied by the Editor)

The Counter-Claims

Having resolved the plaintiff’s claim I now turn to a consideration of the counter-claims of the 3rd, 6th, 8th, 9th, 10th, 15th, 17th, 24th, 28th, 32nd and 33rd Defendants states. The 20th and 27th Defendants who also counter-claimed had, in the course of the proceedings, withdrawn their counterclaims. The counterclaims of the 20th and 27th Defendants, having been withdrawn, are hereby struck out.

The 15th Defendant in his statement of defence claims:

" whereupon the 15th defendant prays this honourable court to determine that by the provision of section 162(2) of the Constitution of the Federal Republic of Nigeria, all the 36 States in the country are entitled to 13% of revenue accruing directly to the Federation's (sic) account from any natural resources.’’

The 17th Defendant in his own statement of defence, in paragraph 10 thereof claims.

"10. WHEREOF the 17th defendant claims determination of this Honourable Court that:-

(a)   The natural resources derived from any part of Nigeria are deemed to be derived from Nigeria and not from an particular area where the resources may be physically located.

(b)   The Federal Republic of Nigeria is a state and not a section thereof when interpreting the economic agenda prescribed by the Constitution.

(c)   That be section 162(2), all states represented by the defendants in this suit are equally entitled to at least 13% of the revenue accruing to the Federation Account directly from any natural resources.

(d)   That the rule of not less than thirteen percent enshrined in the constitution under section 162(2) shall be applied based on principle of equality and justice to embrace all the states forming the Federation."

Both Defendants each failed to file a written brief and, therefore, advanced no arguments in favour of their claims, in the circumstance I strike out the counter-claims of each of the two Defendants. In any event, both counterclaims are unsustainable having regard to the interpretation I have already placed on section 162(2) of the Constitution.

I shall deal with the remaining counter-claims separately, but before doing so, I like to discuss generally some issues common to them all. Chief  Williams SAN, for the Plaintiff has urged as to strike out all the counter-claims in that necessary parties are not joined in each counter-claim. Learned Senior Advocate refers us to Order 5 rule 2 of the Federal High Court (Civil Procedure) Rules, 2000 which provides:

"2-(1)      Subject to sub-rule (2) of this rule, a defendant in any action who alleged that he has any claim or is entitled to any relief or remedy against plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counter-claim in respect of that matter; and where he docs so he shall add the counter-claim to his defence.

(2)           Sub-rule 1 of this rule shall apply in relation to a counter-claim as if the counter-claim were a separate action and as if the person making the counter-claim were a plaintiff and the person against whom it is made, a defendant.

(3)           A Counter-claim may be proceeded with notwithstanding that judgement is given for the plaintiff in his action, or that the action is stayed, discontinued or dismissed."

and submits that only counter-claiming Defendant and the plaintiff are parties the counter-claim. He argued further in his brief, thus:

"No one else is a party to the counter-claim even if that person is a defendant to the substantive action. The rules of the Federal High Court make provision for joining strangers to the action or existing of co-defendants as parties to the counter-claim. It will be submitted hereafter that this being so, counter-claiming Defendant can only counter-claim in respect a relief which affects him alone. He cannot counter-claim where the relief claimed is one which so affect or is so likely to affect the interest of other parties, that the Court ought not to entertain the claim for that relief behind the back of other persons who are not joined as parties to the action.

It is to be observed that sub-rule (2) of Order 5 rule 3 stipulates as follows:

(2) If it appears on the application of any party against whom a counter-claim is made, that the subject matter of the counter-claim ought for any reason to be disposed of by a separate action, the court may order it to be tried separately or make such other order as may he expedient.

The plaintiff respectful submits that where this court is satisfied that any counter-claim is not duly constituted for the purpose of trying the relief claimed, it ought to strike it out or direct that the counter-claim be tried separately so that all roper parties can he joined for the purpose of trial. The Plaintiff however, submits that in the circumstances of this case, the proper order to make is to strike out the counter-claim concerned."

He concludes by urging the Court to strike out all the claims contained in the reliefs claimed by the counter-claiming Defendants on the ground the all parties interested in or likely to be affected by the said counter-claims have not been joined.

Professor Qsinbajo, learned Attorney-General of Lagos State, in his oral submissions, urges us to overrule Chief Williams. The learned Attorney-General, relying on Green v. Green (1987) 18 NSCC (Pt.2) P.1115 at. 1122, submits that all necessary parties to the counter-claims are fully aware of them and choose to stand by. They will be bound by the result of the counter-claim.

Order 12 rules 5(1) of the Federal High Court (Civil Procedure) Rules 2000 (applicable to these proceedings) provides for joinder of interested parties. It reads:

"5-(l) If it appears to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the Court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be."

True enough, only the counter-claiming Defendant and the plaintiff are, in the strict sense, parties to each counter-claim see order 5 rule 2(2). But this case is one with a difference. All parties that can be said to be necessary parties to each counter-claim are parties already before the court in re