ISSUE

Whether the costs of Obi-Awe-Tunga road and Doma water projects were a liability of the Nasarawa State, which inherited the projects from Plateau State and in whose geographical area the projects were situate?

FACTS

In 1996, Nasarawa State was created out of Plateau State. The Obi-Awe-Tunga road and Doma water projects originated in the old Plateau State, but were situated in the newly formed Nasarawa State.

In 1994, judgment was given against Plateau State in respect of costs of projects carried out in the State in the sum of N10,474,725.52. Pursuant to execution being levied against it, the plaintiff paid N4 million and then claimed a refund from the defendant for that sum. Its cause of action was based on Exhibit 'B', (Summary of Execution of Government White Paper on assets and Liabilities Sharing between Plateau and Nasarawa States), which provided that "all assets and liabilities on projects confined to a specific location is to be inherited by the State in which they are located. Plateau State claimed that, since the Obi-Awe-Tunga road and Doma water projects were situated in Nasarawa State, it should accept full responsibility for the outstanding liabilities on the project. The Nasarawa State's defence was that the liabilities for the projects had not previously been listed against Nasarawa State.

The Attorney-General of Plateau State (the plaintiff) initiated two suits against the Attorney-General of Nasarawa State (the defendant) pursuant to the original jurisdiction of the Supreme Court under Section 232 of the 1999 Constitution of Nigeria. He sought an order that Nasarawa State be declared responsible for the liabilities in respect of the projects as reflected in the judgment for N10,474,725.72 and a refund of the sum of N4 million paid in respect of the judgment.

However, the defendant filed a counter-affidavit.

HELD

1.      On State sharing of assets and liabilities

The Guidelines on the Sharing of Assets and Liabilities (Exhibit 'B') between the parties was clear. The normal principle in state succession is that all structures entirely within a state, and to the exclusive use or benefit of that state, belong to that state which must be responsible for the liabilities incurred in establishing or constructing the structures. Per Belgore, JSC at 184.

2.      On the benefit accruing from assets

The Obi-Awe-Tunga Road and the Doma Water projects in Nasarawa State are immovable property which the citizens of that State are currently enjoying to the exclusion of Plateau State due to geographical imperatives. Per Pats-Acholonu, JSC at 186.

3.      On responsibility for liabilities for projects cited in the State

The structures procured by the loans are entirely within the territory of Nasarawa State and are far removed from any use by Plateau State. Therefore the Nasarawa State is entirely responsible to repay the loan used to establish the structures or facilities. Per Belgore, JSC at 184.

4.      On which State must repay

The sharing of assets and liabilities for projects as between the plaintiff and the defendant declared to vest in the State where the project was situate; the State in which a project is situate bears responsibility for meeting the outstanding liability on such projects. Per Oguntade, JSC at 177.

Mrs F.B. Lotben, Director Civil Litigation, Plateau State (L.I. Walle Esq., Assistant Director, Civil Litigation, Plateau State with her) for the plaintiff

Mr M.J. Agum, Director Civil Litigation, Nasarawa State (Ishaku Usman Esq., Director Legal Drafting Nasarawa State and T.B. Makama Esq, State Counsel, Nasarawa State with him) for the defendant

The following cases were referred to in this judgment:

Nigeria

Adejumo v Ayantegbe (1989) 3 NWLR (Part 110) 417

Eze v State (1985) 3 NWLR (Part 13) 429

The following statute was referred to in this judgment:

Nigeria

Constitution of Nigeria 1999: S 232

Oguntade, JSC (Delivered the Leading Judgment):- Two suits, both initiated in this Court by the Attorney-General of Plateau State against the Attorney-General of Nasarawa State pursuant original jurisdiction of this Court under Section 232 of the 1999 Constitution of Nigeria, were consolidated for hearing. In the first suit SC/255/2000 plaintiff claims the following reliefs:-

"(a) A declaration that by the guidelines on the sharing of assets and liabilities between the plaintiff and the defendant, projects located in each State automatically vest in such State.

(b)     A declaration that liabilities for such projects vest in such State.

(c)     A declaration that the judgment in Suit No PID/5435/94 delivered in 1994 against the then Plateau State Government for projects executed in areas that are now in Nasarawa State automatically vested on the defendant after its creation in 1996.

(d)     A declaration that the plaintiff is entitled to be refunded the N4 million paid to the judgment creditor from the defendant."

Under the caption 'Issues for Determination' the documents annexed to plaintiff's originating summons as exhibits, which the plaintiff wishes this Court to interpret to sustain its claim were stated to be the following:-

"(a) The minutes of meeting held with the Head of State Commander-in-Chief on the implementation of shared assets between the plaintiff and the defendant especially on page 43 paragraph 8 of Exhibit 'A' '. . . He said further that external loans taken jointly to execute projects in which both States benefited were to be shared accordingly while those taken to execute projects solely for projects located in either Plateau or Nasarawa were left for such State to inherit.'

(b)     The summary of execution of Government white paper on Assets and liabilities sharing between Plateau and Nasarawa States especially paragraph 'FF' of Exhibit 'B' 'All assets and liabilities on projects confined to specific locations to be inherited by the State in which they are located.'

(c)     The terms of reference on the sharing of assets between Nasarawa and Plateau States and addressed to the Military Administrator of Plateau State especially paragraph V of Exhibit 'C' 'Ensure that all projects and their liabilities are taken over by the Government of the States where those projects are located.

(d)     A letter written by the Military Administrator of Nasarawa State to the Chief of General Staff especially paragraph 11 of Exhibit 'D' 'by the provision of the Federal Government white paper on Assets sharing between Plateau and Nasarawa States. Karu Housing project is shared to Nasarawa State. This is predicated on the reasoning that projects located in areas comprised of the newly created States are to remain where they were prior to State creation'."

In the second suit, SC 269/2002, the plaintiff claims the following reliefs:-

"(1)    A declaration that by the guidelines on the sharing of assets and liabilities between the plaintiff and the first defendant projects located in each State automatically vest in such State.

(2)     A declaration that liabilities for such projects automatically vest in such State.

(3)     A declaration that the judgment in Suit No PLD/J 368/93 delivered in 1993 against the then Plateau State Government for projects executed in areas that are now in Nasarawa State automatically vested on the first defendant after its creation in 1996."

It is apparent that the claims in both suits are similar. I intend however to consider each separately as the facts deposed to in support of each raise different considerations.

In the affidavit filed in support of the first suit, the plaintiff through a litigation secretary in his chambers deposed thus in paragraph 3:-

"3.     That L.I Walle informed me and I verily believe him to be true as follows:-

(a)     That judgment was entered in favour of Roads Nigeria Plc against the then Plateau State Government in 1994 for the sum of N10,474,746.72.

(b)     That the judgment was for liabilities for the construction Awe - Tunga - Obi Road.

(c)     That Awe - Tunga - Obi Road is now all in Nasarawa State.

(d)     That the judgment creditor did not enforce this judgment until the year 2000 when same was registered in Kaduna, in KDH/KD/466/2000. And the properties of the plaintiff at the liaison office Kaduna were attached.

(e)     That the plaintiff paid the sum of four million Naira (N4m) to forestall the auctioning of its properties.

(f )    That the relevant documents on the sharing of assets and liabilities between Plateau and Nasarawa States are hereby attached as exhibits and marked as follows:-

(i)      Minutes of meetings Exhibit 'A'.

(ii)     Summary of the execution of Government white paper Exhibit 'B'.

(iii)    Terms of reference on the sharing of assets - Exhibit 'C'.

(iv)    A letter written by the military administrator of Nasarawa State Exhibit 'D'.

(g)     That judgment is hereby attached and marked as Exhibit 'E'.

(h)     That the Certificate of Registration as well as the Writ of Attachment are hereby attached and marked as Exhibit 'F' & 'G' respectively.

(i)      That the plaintiff had written a letter to the defendant with a view to amicably resolving the matter, but the defendant refused to show any commitment towards such a cause.

(j)      The said letter is hereby attached and marked as Exhibit 'H'."

The defendant filed a counter-affidavit. The contents of the counter-affidavit would appear to be the defendant's reaction to the facts deposed to by the plaintiff in respect of the two suits. Paragraphs 3 and 4 of the counter-affidavit deposed to by a Counsel in the Ministry of Justice, Nasarawa State read:-

"3.     That I know as a fact that:-

(a)     The Originating Summons discloses no cause of action or dispute against the defendant.

(b)     The subject-matters of these suits are purported judgments in Suits Nos. PLD/J/435/94 and PLD/J/368/93 obtained against Plateau State as the defendant.

(c)     Nasarawa State was created out of Plateau State in 1996 and Assets and Liabilities have specifically been listed and shared and no mention was made of these judgments.

(d)     Judgment can only be executed against a named party to the case and not against the whole world.

(e)     Nasarawa State was not a party to the said suits at the court below.

(f )    The Supreme Court lacks jurisdiction to entertain actions based on judgments of lower courts except on appeal.

(g)     The plaintiff did not appeal against the said judgment.

(h)     There is no dispute between the parties in so far as Exhibits 'A'-'D' attached to plaintiff's affidavits.

(i)      Issues concerning assets and liabilities are being treated by the two governments.

4.      That it is in the best interest of justice to dismiss the suits as doing so will not prejudice the plaintiff."

A comparison of the affidavit of the plaintiff and the defendant's counter-affidavit reveals that there is no dispute between parties on the following relevant facts:-

1.      That Nasarawa State constituted a part of the Plateau State until 1996 when it became a State on its own.

2.      That the project, which is the subject matter of the plaintiff's first suit, was sited in and remains in Nasarawa State.

3.      That judgment was given against the plaintiff in 1994 in respect of the said project for the sum of N10,474,725.52.

4.      That following an execution process levied against it by the judgment creditor in the judgment referred to in (3) above, the plaintiff paid N4m out of the judgment debt.

I have reached the above conclusions on the facts relevant to a determination of this suit because the defendant did not in his counter-affidavit dispute or challenge the depositions in paragraph 3(a) and 3(e) of the plaintiff's affidavit. When facts deposed to in an affidavit are unchallenged, the court may accept those facts as true and correct, see Adejumo v Ayantegbe (1989) 3 NWLR (Part 110) 417; Eze v State (1985) 3 NWLR (Part 13) 429. The defendant only deposed in its paragraph 3(c) that the particular liability which is the subject-matter of plaintiff's suit was not listed out as a liability as between the two parties. The defendant did not however exhibit a list where agreed liabilities as to projects sited in the two States had previously been listed out.

On the facts before this Court, it is seen that the only defence put across by the defendant is that the Obi-Awe-Tunga road project in respect of which plaintiff's suit arose had not previously been listed as a liability against the defendant.

I now approach a consideration of each of the plaintiff's claims in the first suit taking into consideration the facts which are not in dispute between the parties and the documentary exhibits filed by the plaintiff. In Exhibit 'A', the pages which are relevant as between the parties are 58 to 68. These are the minutes of the meeting held on 19 March 1998 between the representatives of the Plateau and Nasarawa States with the then Head of State presiding as Chairman. The minutes show that parties made representations as to the manner they wished the assets of the two States to be shared. The value of Exhibit 'A' is only to show that attempts were made administratively to discuss how assets as between the two States were to be shared.

Exhibit 'B', captioned "Summary of Execution of Government white Paper on assets and Liabilities Sharing between Plateau and Nasarawa States" would appear to be the document on which plaintiff's claims hinge. The origin of Exhibit 'B' was not explained but the defendant has not raised any issue as to its authenticity. Paragraph 'FF' of Exhibit 'B' reads:-

"All assets and liabilities on projects confined to a specific locations to be inherited by the State in which they are located."

Exhibits 'C' and 'D' have not thrown any light as to the sustainability of plaintiff's claim.

The case which the plaintiff has made is that since the Obi-Awe-Tunga road was a project undertaken by the Plateau State Government; and that the project is now in Nasarawa State, the defendant must accept full responsibility for the outstanding liability on the project in accordance with paragraph 'FF' of Exhibit 'B'.

In suit PLD/J 187/92, the High Court of Plateau State on 22 November 1994 gave judgment against the Plateau State Government for N10,474,725.72. The said judgment debt was shown in Exhibit 'E' (the judgment of the Plateau State High Court) to have arisen from the Obi-Awe-Tunga Road project. As I observed earlier, the said project is now in Nasarawa State. Although the plaintiff in his Statement of Fact erroneously stated the Suit No in the judgment against it as PLD/J/435/94, a subsequent affidavit filed by the plaintiff on 9 September 2003 stated the Suit No as PLD/J/187/92 which tallies with that stated on the judgment Exhibit 'E'.

On the evidence before this Court, I am satisfied that the plaintiff's suit ought to succeed. I make the following orders:-

(1)     I declare that by the guideline on the sharing of assets and liabilities as between the plaintiff and the defendant, the projects sited in each of the two States vest in the State where the project is situate; and that it is the State in which a project is situate that bears responsibility for meeting the outstanding liability on such project.

(2)     I hold that the defendant should in line with order made in paragraph 1 above pay over to the plaintiff the sum of N10,474,725.72 being the judgment debt arising from Suit No PLD/K/187/92 which represents a liability on the Obi-Awe Tunga Road project now in Nasarawa State.

(3)     In the light of my order in paragraph (2) above, it is no longer necessary for me to express further opinion on the claim for N4m. which is only a part of the sum of N10,474,725.72 granted under the judgment in Suit No PLD/J/187/92.

I now consider the claims made in the second suit. Paragraph 4 of the affidavit in support of the claim reads:-"4.       That I.M. Makama informed me and I verily him to be true as follows:-

a.      That judgment was entered in favour of CAF (Nigeria) Ltd against the then Plateau State Government in 1993 for the sum of $110,000 one hundred and ten thousand dollars.

b.      That the judgment was for liabilities for the construction of Doma water projects.

c.       That Doma is now in Nasarawa State.

d.      That the judgment creditor did not make any effort at enforcing the judgment not until the year 2002.

e.      That the relevant documents on the sharing of assets and liabilities between Plateau and Nasarawa States are hereby attached as exhibits and marked as follows.

i.       Minutes of meetings Exhibit 'A'

ii.       Summary of the execution of Government white paper Exhibit 'B'.

iii.      Terms of reference on the sharing of assets Exhibit 'C'.

iv.      A letter written by the military administration of Nasarawa State Exhibit 'D'."

As I observed earlier, the counter-affidavit filed by the defendant, extracts of which I reproduced earlier, represents the defendant's defence to the two suits under consideration in this judgment. A comparison of the affidavit in support and the counter-affidavit shows that the Doma Water projects in respect of which the plaintiff has brought his suit are all now sited in Nasarawa State. This much the defendant has not denied. The substance of the defendant's defence is that the liabilities for the projects had not previously been listed against Nasarawa State. But as I observed earlier, the defendant has not exhibited any document where liabilities for projects had been previously listed against a particular State. That being the position, the claims for Doma Water Projects fall to be considered as a project in which the resulting liability is covered by paragraph 'FF' of Exhibit 'B'. It is pertinent to observe that the plaintiff is relying on the same set of documentary exhibits as in the first suit considered above.

Since it has not been disputed that Doma Water Projects are in Nasarawa State, responsibility for the liability on the project must attach to Nasarawa State.

I need to observe here that although the plaintiff in paragraph 4(a) of the affidavit verifying the facts referred to a judgment for $110,000 given against the Plateau State Government in 1993, no such judgment has been produced before this Court. Only the judgment given by a court can be relied upon as the conclusive proof of the matters decided between parties to a case. See Section 54 of the Evidence Law.

In the light of the evidence before this Court, I make the same order as in the first order made above in the first suit, that is, I declare that by the guideline on the sharing of assets and liabilities as between the plaintiff and the defendant, projects sited in each of the two States vest in the State where the project is situate; and that it is the State in which a project is situate that bears responsibility for meeting the outstanding liability on such project.

As I observed earlier, the plaintiff has not produced before us the judgment in Suit No PLD/J368/93 delivered in 1993 and I am therefore unable to grant plaintiff's Claim 3 in specific terms. It seems to me however, that the claim granted in paragraph 1 above adequately covers all liabilities on project sited in Nasarawa State.

In the final conclusion, there will be judgment in plaintiff's favour as stated above. I make no order as to costs.

Belgore, JSC:- This action, by the plaintiff, Plateau State represented by the Attorney-General, concerns the issue of asset and liability sharing. In 1996 the former Plateau State was divided, so to say, into two new states, to wit Plateau State and Nasarawa State. In the old Plateau State some debts were incurred for projects in the state, some of these debts formed the basis of certain litigations against the former Plateau State in 1994, before its break-up. It is perhaps for convenience of avoiding confusion that the new states were called Nasarawa and Plateau States. Had the present Plateau State been given another name, say Dilimi State. the confusion leading to this suit would not have arisen.

The debts owed to former Plateau State up to its break-up were for projects located in the present Nasarawa and Plateau States. For example, all dams and water reservoirs, roads and electricity projects financed with loans located in a state newly created become liabilities of those new states.

The normal principle in state succession is that all structures entirely within a state, and to the exclusive use or benefit of that state, belong to that state which must be responsible for the liabilities incurred in establishing or constructing the structures. In cases where a structure, e.g. a dam or electricity substation, is situated in one state but for use in another state, and the structure is put in place with loan obtained when the two states were one state, the state having the structure on its soil but not using it will not have to partake in servicing the loan; this will be born by the state using the facility. But in the case where the facility is enjoyed by both states, the repayment of the loan will be subject to a negotiated agreement usually based on proportion of use.

In the instant suit, the structure procured by the loans are entirely within the territory of Nasarawa State and are far removed from any use by Plateau State. In that case the Nasarawa State (defendant) is entirely responsible to pay the loan used to establish the structures or facilities. I therefore find for plaintiff and hereby agree with judgment of my learned brother, Oguntade, JSC.

I make no order as to costs.

Kutigi, JSC:- I have had the privilege of reading in advance the judgment just delivered by my learned brother, Oguntade, JSC. I agree with his reasoning and conclusions. I have no hesitation whatsoever in stating that it is only a matter of common sense that as between the plaintiff and defendant, projects located in each State automatically vests in such State and that the liabilities for such projects also vest in such State. What else do you expect? The Guidelines on the Sharing of Assets and Liabilities between the parties is very clear. Plaintiff's claims therefore succeed and they are allowed. I endorse the order for costs.

Katsina-Alu, JSC:- I have had the advantage of reading in draft the judgment of my learned brother, Oguntade, JSC. I entirely agree with it.

In 1996, Nasarawa State was created out of the old Plateau State. Before the creation of Nasarawa State, the old Plateau State incurred some debts for projects carried out in the State. Some of these debts became the subject of litigation against the old Plateau State in 1993 and 1994. CAF Resources Ltd obtained Judgment in Suit No PLD/J368/93 for the sum of $110,000 against the then Plateau State. Again in 1994 Roads Nigeria Plc obtained judgment against the then Plateau State in Suit No PLD/J435/94 for the sum of N10,509,609.02. These debts were for the construction of the Doma Water Project and the construction work on the Obi-Awe-Tunga Road respectively which are located in the present Nasarawa State.