CHIEF SOLO AKUMA (SAN) v. ABIA STATE GOVERNMENT & ORS

…………………….A…………………….

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellant initiated the proceedings that culminated in this appeal on the 26th September, 2016 by way of an Originating Summons before the Abia State High Court in suit No. HIG/13/2016, and, sought the following reliefs:

1. A Declaration that the right to the use and control of all surface and underground water and any other watercourse is vested in the Federal Government and not Abia State Government or any of its agencies.

2. A declaration that the legislation guiding the use and control of water in Nigeria is the Water Resources Act, CAP W2 Laws of the Federation of Nigeria 2004 and not the Abia State Water Board Law, Cap 42 Laws of Abia State of Nigeria 2005 and the Abia State Water Connection Fee and Water Rate Law CAP 43 Laws of Abia State of Nigeria, 2005.

3. A declaration that it is only the Federal government that has the authority to fix fees, levies and other charges relating to the use of surface, ground, or underground water in Nigeria and to collect same and not the Abia State Government under the Abia State Water Connection Fee and Water Rate Law Cap 43 Laws of Abia State of Nigeria 2005.

4. A declaration that the Plaintiff, being a deemed holder of a statutory right of occupancy to land may take and use water from the underground water source for domestic purpose without any charge from any of the defendants.

5. A declaration that the 1st and 3rd Defendants do not have the authority to issue licences or permits to drill private borehole to assess clean and portable water by the Plaintiff.

6. A declaration that the consolidated demand notice dated the 16th day of May 2016 by the Abia State Board of Internal Revenue, stamped and signed by the Abia State Water Board is illegal, null, and void.

7. A declaration that the 3rd and 4th Defendants are not entitled to any payment for permit to drill, water analysis fees, and annual inspection fee (A.I.F) as contained in the consolidated demand notice dated the 16th of May 2016 as the 3rd and 4th Defendants are not Departments or Agencies of the Federal Government.

8. A declaration that the Section 6(r) and 28 of the Abia State Water Board Law, Cap 42, Laws of Abia State of Nigeria, 2005, and Sections 4 and 13 of the Abia State 2 Water Connection Fee and Water Rate Law, Cap 43, Laws of Abia State of Nigeria, 2005, are inconsistent with Sections 1, 2, 3, 4, 5, 11, 13, 14 and 15 of the Water Resources Act, CAP W2 Laws of the Federation of Nigeria 2004.

9. An order of this Court that Sections 6 (r) and 28 of the Abia State Water Board Law, Cap 42 Laws of Abia State of Nigeria 2005 and Sections 4 and 13 of the Abia State Water Connection Fee and Water Rate Law, Cap 43, Laws of Abia State of Nigeria, 2005 are void to the extent of its inconsistency to Sections 1, 2, 3, 4, 5, 11, 13, 14, and 15 of the Water Resources Act, Laws of the Federation of Nigeria, 2004.

…………………….B…………………….

10. An order of Court striking down Sections 6(r), 21(i)(b), 21(2) and 28 of the Abia State Water Board Law, Cap 42, Laws of Abia State of Nigeria 2005, and Sections 4, 10, and 13 of the Abia State Water Connection Fee and Water Rate Law, Cap 43, Laws of Abia State of Nigeria 2005 for being inconsistent with Sections 1, 2, 3, 4, 5, 11, 13, 14 and 15 of Water Resources Act, CAP W2 LFN 2004.

11. An order of Court striking out the Consolidated Demand Notice dated 16th May, 2016 and (sic) issued by the Defendants.

12. An order of perpetual injunction from this Honourable Court restraining the Defendants either by themselves, their agents, servants, privies no matter howsoever called from issuing licences or permits for the drilling of private borehole for domestic use or demanding for any form of payment in respect of private borehole of the Plaintiff.

In line with procedure adopted, the Appellant equally tabled three questions for determination therein. They are thus:

i) Whether by virtue of the water Resources Act, CAP Laws of the Federation of Nigeria, 2004, the Federal Government of Nigeria through its Ministry of Water Resources is the appropriate authority to authorise the use and control of all surface and underground water in Nigeria.

(ii) Whether by virtue of Section 2(a) (iii) of the Water Resources Act, CAP W2, Laws of the Federation of Nigeria, 2004, the Plaintiff as a deemed holder of a statutory right of occupancy is not authorized to take and use water from the underground water source of the land for domestic purposes without any charge whatsoever by the 3rd Defendant or any other agency of the 1st Defendant.

(iii) Whether Sections 6(r) and 28 of the Abia State Water Board Law Cap 42 Laws of Abia State of Nigeria 2005, and Sections 4 and 13 of the Abia State Water Connection Fee and Water Rate Law Cap 43 Laws of Abia State of Nigeria 2005 are not inconsistent with Sections 1, 2, 3, 4, 5, 11, 13, 14 and 15 of the Water Resources Act CAP W2 Laws of the Federation of Nigeria 2004 and to the extent of the such inconsistencies null and void.”

It was buttressed by the facts articulated in an affidavit of seven paragraphs deposed to by the Appellant himself filed alongside the same with only one annexure thereto. The action was originally commenced against four defendants. However, on the 22nd December, 2016, the 1st-3rd Defendants i.e. with the Abia State Water Board as the 3rd Defendant, filed a Motion on Notice for an order extending the time within which they ought to have entered appearance in the suit, file their counter-affidavit together with their written address, and, for an order deeming the Memorandum of Appearance, the counter-affidavit and their accompanying written address already filed as having been duly filed and served. Their said Memorandum of Appearance together with their counter-affidavit of seventeen paragraphs were filed on the same 22nd December, 2016.

The 2nd defendant, however, filed an Originating Summons-Counter-Claim on the same 22/12/2016 and claimed thus:

1. A declaration that Section 4 of the Water Resources Act, particularly Section 4(e), (f) and (g) of the Water Resources and Section 8 particularly 8(b), (c) and (d) of the Water Resources Act are in conflict with the Constitution of the Federal Republic of Nigeria particularly Section 4(7)(c); Section 1(1) and Item 64 of Part (sic) of the Second Schedule of the Constitution.”

…………………….C…………………….

OPTION FOR SETTLEMENT: The Defendant should comply with the Abia State Water connection Fee and Water Rate Law, Cap 43, Laws of Abia State and the Abia State Water Board Law, Cap 42, Laws of Abia State (2005) particularly Section 22(2) and (4) of the Law.

The counter-claim was hinged on the facts averred in an affidavit of sixteen paragraph sworn to by one Henry Nwokeukwu, a High Executive Officer (Litigation) in the office of the 2nd Defendant. On the 6th February, 2017, the Appellant discontinued the suit against the 3rd Defendant i.e. Abia State Water Board. The suit was heard on the 27th March, 2017 and was adjourned for judgment to the 12th June, 2017.

The judgment was eventually delivered on the 19th June, 2017.

The lower Court, after its consideration of the questions raised and the issues propositioned by the parties held thus:

(i) My answer to the claimants Issue No. 1 is that in the face of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Federal Government of Nigeria through its Ministry of Water Resources cannot, by virtue of the Water Resources Act, CAP W2, Laws of the Federation of Nigeria, 2004, be the appropriate authority to sanction the use and control of all surface and underground water in Nigeria.

(ii) My answer to the Issue No. 2 raised by the claimant is that in the face of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the claimant as a deemed holder of a statutory right of occupancy, is not by virtue of Section 2 (a) (iii) of the Water Resources Act, CAP W2, Laws of the Federation of Nigeria, 2004, authorized to take and use water from the 7 underground water source of his land for domestic purposes without being charged for the facility by the 1st Defendant or any of her agencies.

(iii) Finally on the Issue No. 3 isolated by the Claimant on whether Sections 6 (r) and 28 of the Abia State Water Board Law Cap. 42, Laws of Abia State of Nigeria, 2005 and Sections 4 and 13 of the Abia State Water Connection Fee and Water Rate Law, Cap. 43, Laws of Abia State of Nigeria, 2005, are not inconsistent with Sections 1, 2, 3, 4, 5, 11, 13, 14 and 15 of the Water Resources Act, CAP W2 Laws of the Federation of Nigeria, 2004, and therefore, null and void, may I restate it that in Nigerias constitutional democracy the validity or otherwise of Acts and Laws made respectively by the Federal Government and the State Government are measured by the Acts or Laws alignment or conformity or consistency with the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended). See: Section 1 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Directly on the Claimants Issue No. 3 my unhesitating answer is that the Sections 6(r) and 28 of the Abia State Water Board Law Cap 42, and Sections 4 and 13 of the Abia State Water Connection Fee and Water Rate Law, Cap. 43, both Laws of Abia State of Nigeria, 2005 are consistent and in conformity with the provisions of the 1999 Constitution of the Federal Republic of Nigeria and both Laws are therefore valid.” On the issue raised by the 1st and 2nd Defendants, the Claimant in his Reply on points of Law has urged the Court to discountenance them as the suit of the Claimant being an originating summons the Defendant was not permitted to frame his own issues but only to defend the issues raised by the claimant. The learned Claimants Counsel relied for his contention on the cases of Achu vs. Cross River State (2009) 3 NWLR Part 1129) 475 and Salami vs. Wema Bank Nig. Plc. (2010) 6 NWLR Part 1190) 341. However, with due respect, I am not sure that the Learned Claimants Counsel fully reflected the position of the law on the point based on the cases he cited. In the cases of Longe vs. First Bank (Nig.) Plc. (2010) 6 NWLR (Part 1189) 1 at 24 25, Osola vs. Osola (2003) 113 LRCN 2641 at 2666 2667, Orji vs. Orji (2011) 17 NWLR 9 (Part 1275) 113 at 135, Achu vs. Cross River State, (supra) Salami vs. Wema Bank Nig. Plc and even in National Judicial Council & Ors. Vs. Hon. Justice Jubril Babajide Aladejana & Ors. (Appeal No. CA/A/72/2010 being unreported decision of Abuja Division of the Court of Appeal delivered on 8th day of December 2014) the superior Courts position on the point is that it is the Claimant who by his Statement of Claim (in this case Originating Summons) primarily nominates issues to be tried in a suit and which he relies on to have judgment of the Court. For the Defendant, it is only necessary to resist the Claimants case on the facts pleaded. Yes, it is not for a Defendant to set up facts which would convey that the Defendant was not just setting up a defence by setting up a new case of his own.

…………………….D…………………….

However, the Defendant is permitted to raise his own issues for determination where he has counterclaimed. In the present case, the 1st and 2nd Defendants did counterclaim and are on firm ground to nominate Issues that they consider are suited for determination. I will, therefore, proceed to answer to those issues nominated by the 1st and 2nd Defendants for determination thus:

(1) My answer to the 1st issue nominated by the 1st and 2nd Defendants for determination is that regulation, registration and licensing of boreholes for the purposes of taking and using of water from underground water source or surface water source, not coming from a river crossing or adjoining more than one State are not matters within the Exclusive or Concurrent Legislative Lists in the 1999 Constitution of the Federal Republic of Nigeria (as amended), and are matters within the Residual Legislative List.

(2) My answer to the 2nd issue nominated by the 1st and 2nd Defendants is that the Abia State Water Connection Fee and Water Rate Law, Cap. 13, Laws of Abia State of Nigeria, 2005, and the Abia State Water Board Law, Cap. 12, Laws of Abia State of Niger, 2005 are valid laws passed by the Abia State House of Assembly while acting within the legislative limits granted her by the 1999 Constitution of Nigeria (as amended). The validity of laws made by the Abia State House of Assembly is not determined by its conformity to Federal Government legislation unless the item is on the Concurrent Legislative List and the Federal Government had covered the field. In the present case the issue of sinking of borehole in ones private land to take and use water for domestic purposes is on the residual legislative list and so within the legislative competence of the Abia State House of Assembly.

(3) My answer to the Issue No. 3, distilled by the 1st and 2nd Defendants is that sections 1(1), 4(f), 8(d) and 15 of the Water Resources Act, CAP. W2, Laws of the Federation of Nigeria, 2004 did not deal with matters that are with the legislative competence of the National Assembly.

Having answered to the issues distilled by both parties in the manner I did, I now proceed to refuse all the reliefs sought by the Claimant as unmeritorious and accordingly, I order the suit of the Claimant dismissed in its entirety.

With regard to the one prayer of the 2nd Defendant in his counter-claim this Court seems to be of the strong opinion that Section 4(e), (f), and (g), 8(b), (e) and (d) of the Water Resources Act, CAP. W2, Laws of the Federation of Nigeria, 2004, are Items outside the constitutional legislative powers of the National Assembly particularly Sections 1(1), 4(7) (c) and Item 64, Second Schedule, will, however, decline to out-rightly declare those Sections of the Water Resources Act unconstitutional since the Federal Attorney General was not joined as a party in the suit.

The Claimant is ordered to pay costs of N100,000.00 to the 1st and 2nd Defendants. Being distraught at the judgment, the Plaintiff filed his Notice of Appeal on the 19th July, 2017 challenging the whole decision of the lower Court which he founded on six grounds of appeal. The record of appeal was transmitted to this Court on the 27th February, 2017. Then on the 12th December, 2017, the Appellants Brief of Argument was filed while the 1st and 2nd Respondents Brief of Argument was filed on 18/4/2018. They were all deemed as having been appropriately filed and served on the 3rd May, 2018. The Appellants Reply Brief was filed on the 14th May, 2018.

…………………….E…………………….

Four issues were excogitated by the Appellant in his Brief for the consideration of this Court. They are as follows:

1. Whether the learned trial Court was right in its decision that the act of drilling of bore hole by the Appellant in his private residence was not governed by the Water Resources Act Cap. W2 LFN 2004 but within the legislative competence of the Abia State House of Assembly.

2. Whether the provisions of the Abia State Water Law, Cap. 42 Laws of Abia State of Nigeria 2005, Abia State Water Connection Fee and Water Rate Law Cap. 43 Laws of Abia State of Nigeria 2005 are not inconsistent with the provisions of the Water Resources Act Cap W2 LFN 2004 and to that extent null and void.

3. Whether the learned trial Court was right to have entertained the 1st and 2nd Respondents counter-claim and issuer for determination in the Appellant in the Appellants Originating Summons suit.

4. Whether the award of One Hundred Thousand Naira (N100,000) costs by the learned trial Court against the Appellant was not excessive in the circumstances of this case.

In respect of Issue No. 1, learned Counsel for the Appellant, George E. Ukaegbu, Esq., in his Brief, submitted that by virtue of Sections 315 (a) of the 1999 Constitution, 1(1) and 4 of the Water Resources Act, LFN 2004, a legislation of the National Assembly vests the authority to regulate the use and control of all surface and ground water in the Federation of Nigeria, including Abia State in the Federal Government of Nigeria. The Learned Counsel contended that the Abia State Water Law from which the Respondents purportedly derived their authority to issue the Consolidated Demand Notice does not empower them to issue any notice to the Appellant in the light of the provisions of Section 5 of the Law which specifically enumerated the functions of the Board, that is, it shall consolidate and centralise all water and sewage systems in the State under its control, direction and supervision, and, prospect for water, provide, distribute and conserve in the State, water, water for public, domestic, industrial and commercial purposes. It was further contended that the Respondents acted ultra vires their power in demanding payments from the Appellant for sinking a borehole within his residential premises in Igbere, Bende Local Government Area of Abia State in the light of the provisions of the Water Resources Act. The Abia State Water Board Law does not provide for the control of underground water or drilling of borehole as it is the Water Resources Act, LFN, 2004 that governs the act of drilling of a borehole by the Appellant in his private residence accentuated by Section 2 of the Act. It was further stressed that Abia State does not have similar provisions. It was also explained that since the Appellant holds a deemed Statutory Right of Occupancy to his private residence in Igbere Bende Local Government Area of Abia State where he drilled a borehole, he is entitled under Section 2 of the 2004 Federal Act, to take and use water from underground water source for his domestic use without any let or hindrance from the Respondents or any other constituted authority. He further elaborated that drilling a borehole in his private residence does not fall within the circumstances under which a licence or permit may be issued under Sections 9(1) and 10 of the 2004 Act, that is to say, where water from the ground or underground source is intended to be used on a commercial scale. He summed up that it is the Federal Government that is vested with the control and use of water in Nigeria and not the Respondents, and then urged this Court to resolve this issue in favour of the Appellant.

…………………….F…………………….

With respect to issue No. 2, which he contends relates to the principle of covering the 16 field, i.e. where the legislation enacted by a State House of Assembly is in conflict with the Act of the National Assembly, learned Counsel referred to the Supreme Court case of Lakanmi vs. A.G. Western State (1971) 1 UILR 201 where the effect of Decree No. 1 of 1966 on Edict No.5 of 1967 was considered and the Supreme Court held that where the Supreme Legislative Body has manifested its intention or enacted a complete, exhaustive and exclusive code as to what shall be the law, any other law made by any State on the same subject, is void. He further placed reliance on the decisions in A.G. Abia State vs. A.G. Federation (2002) 6 NWLR Part 763 page 327 per Ogundare, J.S.C. , where it was expressed that the doctrine of covering the field also known as doctrine of inconsistency means that when a State Law, if valid, would alter, impair or detract from the operation of a Federal Law, thus to that extent it is invalid, that is, where there is obvious inconsistency, the subordinate legislation is void. He stressed that the Water Resources Act, 2004 is the predominant Legislation while the various Laws enacted by the Abia State House of Assembly are the subordinate legislations and, in that regard, Sections 6(r), 24 and 28 of the Abia State Water Board Law, 2005 and Sections 3, 4, 10 and 13 of the Abia State Water Connection Fee and Water Rate Law, 2005 are inconsistent with the provisions of Sections 1, 2, 3, 4, 5, 10, 11, 13, 14 and 15 of the Water Resources Act, Cap. W2 LFN 2004 on the basis that the 2004 Act allows the Appellant the right to take and use water from the underground source of land in which he is deemed a holder of Statutory Right of Occupancy without any charge whatsoever while the legislations by the Abia State House of assembly purports to demand payments from the Appellant. He then persuaded that this issue be resolved in favour of the Appellant.

Under issue 3, it was argued that the Court below blundered on the validity of the 1st and 2nd Respondents counter-claim in the Originating Summons proceeding. It was contended that by Order 17 Rule 16 of the Abia State High Court Rules, 2014, a Respondent to an Originating Summons may file a counter-affidavit together with all the Exhibits he intends to rely upon and a written address within 21 days after service of the Originating Summons. The Rules do not envisage the filing of a counter-claim in an action commenced by Originating Summons as done by the 1st and 2nd Respondents in the of Order 17 Rules 6, 7, and 10 relating to the filing of counter-claim. Learned Counsel referred to the cases of Friday vs. The Government of Ondo State (2012) LPELR (CA); National Judicial Council & Ors vs. Hon. Justice Jubril Babajide Aladejana & Ors (without citation); Ogli Oko Memorial Farms Ltd. & Anor vs. Nigerian Agricultural and Co-operative Bank Ltd. & Anor (2008) 12 NWLR PART 1098 page 412; NNPC & Anor vs. Famfa Oil Ltd. (2012) 17 NWLR PART 1328 page 148 and Nwankwo vs. Abazie (2003) NWLR PART 834 page 381 and contended that there are no provisions in the Abia State High Court Civil Procedure Rules (2014) similar to those in the Ondo State High Court Civil Procedure Rules under which, Fridays case (supra) and Order 37 Rule 8 of the High Court of FCT (Civil Procedure) Rules, 2004 over which the case of the National Judicial Council vs. Aladejana (unreported) Judgment delivered on 8/12/2014 in Appeal No. CA/A/72/2010 were decided. The trial Court was therefore in error to have relied upon the decision in Aladejanas case to decide the present case. It was argued in the alternative that even if the 1st and 2nd Respondents were entitled to file a counter-claim, the same was not valid before the trial Court as it was filed outside twenty-one days without the leave of the trial Court. They could only file it within the twenty-one days provided by Order 17 Rule 16 of the Abia State High Court Civil Procedure Rules for filing a counter-affidavit and other processes in an Originating Summons proceeding. He stressed that there was no application made by them for extension of time to file their counter-claim. He then submitted that it is trite law that where a process is to be filed within a specific time prescribed by law and the process was filed outside the period, that process is incompetent and liable to be struck out. He then urged this Court to resolve issue No. 3 in favour of the Appellant.

On issue No. 4, it was submitted that the costs of N100,000 awarded by the trial Court against the Appellant is excessive and should be set aside by this Court. It was further submitted the objective of awarding costs is not to punish an unsuccessful litigant but to compensate a successful party for the expenses incurred for filing the action, attending Court for the prosecution of the matter and related issues. He relied on the decisions in Mbanugo vs. Nzefili (1998) 2 NWLR PART 531 (without the page); Akpughunum vs. Akpughunum (2007) ALL FWLR PART 376 (without citing the page); Delta Steel Co. Ltd. vs. American Computer Tech. Ltd. (1999) 4 NWLR PART 597 page 53; Onabanjo vs. Ewetuga (1993) 4 NWLR PART 288-page 443 and Nigerian National Petroleum Corporation vs. KLIFCO Nigeria Ltd. (2011) 10 NWLR PART 1255 page 209 and contended that there is nothing on the record to show that the trial Court considered some other factors like the Summons fee, the duration of the case, legal representation, expenses incurred by the successful party in the ordinary course of prosecuting the case, the value of the purchasing power of the Naira at the time of the award, therefore, the cost awarded is excessive in the circumstances of the case, and cannot be said to be the result of judicial and judicious exercise of discretion. He stated that the 1st and 2nd respondents did not pay filing fee for the filing of their processes as processes filed by them are assessed and stamped as official filings without fee payments. He explained that the total appearances made by the parties were four inclusive of the date of delivery of the judgment. He urged this Court to interfere with the discretion exercised by the trial Court in awarding costs of N100,000 against the Appellant.

…………………….G…………………….

The 1st and 2nd Respondents learned Counsel, C. O. Ogwo, Esq., in their response submitted that the argument of the Appellant that the Abia State Water Connection Fee and Water Rate Law, Cap. 423, Laws of Abia State is violative of the Water Resources Act, LFN, 2004, is totally misleading. He stated that by Item 64 of the Exclusive Legislative List, the National Assembly is empowered to legislate on matters relating to water from such sources that may be declared by the National Assembly to be sources affecting more than one State, that is Water Resources or sources affecting more than one State such as Imo River, Ogun River or Anambra River.

He explained that the Item did not mention right to the use and control of surface ground, not adjoining to another State or make mention of water connection as regards surface or ground water in the Exclusive and Concurrent Legislative Lists or elsewhere in the Constitution. He placed reliance on the cases of Mobil Oil (Nig.) Ltd vs. Federal Board of Inland Revenue (1977) 3 SC 33 at 48 and Onashile vs. Idowu (1961) 2 NSCC 17 at 173 paragraph 25 and Section 4 of the 1999 Constitution which says that the National Assembly has the authority to make Laws only to matters in the Executive Legislative List and the Concurrent Legislative List and any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.

He further reproduced the provisions of Section 4(6) and (7) of the 1999 Constitution on the status of an existing law under the Constitution as stated in Section 315(1) which stated that the House of Assembly of the State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to any matter not included in the Exclusive Legislative List set out in Part 1 of the 2nd Schedule of the Constitution , any matter included in the Concurrent Legislative List set out in the First Column of Part II of the 2nd Schedule to the Constitution. Then by implication Section 4(7) of the Constitution vests residual legislative competence over those matters not provided in either the Executive Legislative List or the Concurrent Legislative List on the House of Assembly of the State. The competence to make Laws with regard to residual matters is to the exclusion of the National Assembly.

He cited the case of Attorney General of Lagos State vs. A. G., Federation (2003) 12 NWLR Part 833 page 1 at 191 where it was stated that any matter not mentioned either in the Executive or Concurrent Legislative Lists, becomes a residual matter exclusively for the State House of Assembly by virtue of Section 4 Subsection 1 (a). He submitted that Section 1(1), the Constitution of Nigeria is supreme and its provisions shall have binding force for all authorities and persons throughout the Federal Republic of Nigeria. Then on the question whether the Water Resources Decree, now Act, can be said be in higher hierarchy over the Abia State Water Connection Fee and Water Rate Law and the Abia State water Board Law on issues not relating to water from such sources as may be declared by the National Assembly to be sources affecting more than one State, such as drilling of borehole underneath soil not connected to the said water, he cited the cases of Attorney General, Federation vs. A. G., Lagos State (2013) 16 NWLR Part 1380 page 349 at 364, per Ngwuta, J.S.C., Alagoa, J.S.C., at 380-381 and 560 on the Supreme Court determination of the Federal Government to establish the Nigerian Tourist Development Commission as per Item 60(d) of the Exclusive List where it refused to agree that Item 60(d) of the Exclusive List empowered the NTDC to regulate hotels and allied matters.

…………………….H…………………….

In A. G., Federation cited by the Appellants Counsel, the Supreme Court resisted the temptation to interpret that Item 11 of the Exclusive Legislative List vests in the National Assembly the power to legislate on the tenure of Local Government Councils. It held that by not listing the Item under the Exclusive Legislative List, the makers of the Constitution intended the power to legislate on Local Government Councils should not be exercised by the National Assembly but by the House of Assembly of a State to legislate on. He further referred to the decision of this Court in Edet vs. Chagoon (2008) 2 NWLR Part 1070 page 85, per Owoade, J.C.A. , where he stated that perusal of the Exclusive and Concurrent Legislative Lists in the 2nd Schedule to the Constitution did not disclose Pool Betting. Since Pool Betting does not feature in any of the Lists, it means it belongs to the Residual Legislative List which is the constitutional preserve of the State Legislature, learned Counsel further queried whether Item 68 of Part 1 of the Exclusive Legislative List of the Constitution which states that any matter incidental or supplementary to any matter mentioned elsewhere be stretched or interpreted to accommodate a power not expressly enumerated either in the Exclusive or Concurrent Legislative Lists. This the Supreme Court rejected in A. G., Abia State vs. A. G., Federation (supra) that the powers of legislating on Local Government elections by the National Assembly vide Item 68 of the Constitution resides with the National Assembly. Counsel further leaned on the decision in A. G., Federation vs. A. G., Lagos State, per Fabiyi, J.S.C., in which the Book titled Federalism in Nigeria under Presidential Constitution by Prof. Ben Nwabueze, S.A.N., wherein the author stated that An incidental matter is one which is concomitant or attendant upon another, the incidental and the main matter must be closely connected to justify the interference, implying one is an incident of the other. He then focused on the cases Lakanmi vs. A. G., Western Nigeria (supra) and A. G.,Abia State vs. A .G., Federation (supra) cited by the Appellants Counsel where the Supreme Court refused to agree that the National Assembly can legislate on the tenure of Local Government Councils in Nigeria. It refused to stretch the provisions of Item 11 of Part 1 of the 2nd Schedule which states that the The National Assembly” may make laws for the Federation with respect to the registration of voters and the procedures regulating elections to a Government Council and held that giving power to the National Assembly to promulgate a law prescribing increasing or altering the tenure of the Officers or Councilors of Local Government Councils in Nigeria, other than those in the Federal Capital Territory Abuja, the doctrine of making a law covering the field does not arise at all . The matter becomes residual, not being on Exclusive Legislative List by virtue of Section 4(7)(a) of the Constitution.

He argued that the cases cited by the Appellant support the case of the 1st and 2nd Respondents. Regarding issue No. 2, he submitted that the dismissal of the Appellants claim was not even anchored on the grant or refusal of the 1st and 2nd Respondents counter-claim. He pointed out that the 1st and 2nd Respondents counter-claim was struck out. The Court simply dismissed the claims. He stressed that the counter-claim of the 1st and 2nd Respondents were struck out and as such no miscarriage of justice was suffered by the Appellant. He relied on the decisions in A. G., Leventis Nig. Plc vs. Akpu (2007) 17 NWLR Part 1063 page 416 per Ogbuagu, J.S.C., Lagos State Waterways Authority & 3 Ors vs. The Incorporated Trustees of Association of Tourist Board Operators & Water Transportation in Nigeria delivered on 18/7/2017 wherein this Court on interpretation of Item 64 on the Exclusive Legislative List i.e. Whether the Federal Government could legislate through the National Assembly for waters inside Lagos State not adjoining any other source of water connecting outside Lagos State through the National Inland Waterways Authority Act., Cap. 47, Laws of the Federation vis a vis the Lagos State Waterways Authority Law, held that the Inland Waterways within Lagos State are not and cannot by any stretch of interpretation be covered by any Item of the Exclusive Legislative List under Part 1 of the 2nd Schedule of the Constitution . The glaring absence of the Lagos State intra Waterways in the Exclusive Legislative List under Part 1 as well as the Concurrent Legislative List under Part 2 of the 2nd Schedule to the Constitution means that it is automatically a residuary Item that falls within the legislative competence of the Lagos State House of Assembly. Leaning on the said decision, learned Counsel pointedly argued that nowhere in Item 64 of the Exclusive Legislative List is the power of the National Assembly to legislate over a piece of land in a town called Igbere in Abia State concerning the drilling of borehole from an underground point that is not adjoining an inter State water like Anambra or Imo or Ogun Rivers mentioned. He vehemently argued that nowhere in the 68 Items of the Exclusive Legislative List or the Items of the Concurrent Legislative List is it mentioned that the National Assembly is empowered to legislate on borehole in a tiny town in Abia State. He stated that Section 13 of the Abia State Water Connection Fee and Water Rate Law, Cap. 43, Laws of Abia State provides that the Board shall grant permit to qualified applicants to construct boreholes and shall collect fees as prescribed in the Schedule and there is no ambiguity or confusion that is in the Abia State Water Connection Fee and Water Rate Law, Cap. 43, Laws of Abia State the applicable law. In relation to issue No. 3 bordering on award of costs, learned Counsel relied on the provisions of Section 168(1) of the Evidence Act; the cases of Akinbobola vs. Fisko Nig. Ltd. (without citation); NERC vs. Glosun Investment (2017) LPELR 42337(CA); Layinka & Anor vs. Makinde & Ors. (2002) LPELR 17770 (SC); (2002) 10 NWLR 7869 (CA); LUNA vs. Commissioner of Police, Rivers State Command Police & Ors. (2010) LPELR 8642 (CA) and Unilag & Anor vs. Aigoro (1985) LPELR SC 32/1984 (1995) 1. SC 295 where it was held that the award of cost is always at the discretion of the Court which discretion must be exercised both judiciously and judicially, and that costs follow the events that a successful party is entitled to costs unless there are special reasons for depriving him of his entitlement. An appellate Court can only interfere with the award of costs where it is shown clearly that the trial Court proceeded upon wrong principles of law or that the award was clearly an erroneous estimate, such that the amount was ridiculously low and stated that the 1st and 2nd Respondents are leave the issue of the alleged excessiveness of the cost of N100,000.00 to the disaffection of this Court. He therefore urged this Court to dismiss this appeal.

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The Appellant in his Reply Brief contended that the issues raised by the 1st and 2nd Respondents do not relate to any of the grounds of appeal contained in the Amended Notice of Appeal. He made reference to the cases of A. G., Anambra State vs. Onuselogu Ent. Ltd. (1987) 4 NWLR Part 66 page 547; Oniah vs. Onyia (1989) 1 NWLR Part 99 page 541; Osinupebi vs. Saibu (1982) 7 SC 104; Okpala vs. Ibeme (1989) 2 NWLR Part 102 page 208; 31 Ezenwa vs. Oko (2008) 3 NWLR Part 1075 page 610; Daniel Tayar Transport Enterprises Limited vs. Busari (2011) 8 NWLR Part 1249 page 287 and Orji vs. Zaria Industries Limited (1992) 1 NWLR Part 216 page 214 and then urged this Court to hold that the three issues presented by the 1st and 2nd Respondents are incompetent and liable to be struck out, and the argument on the struck out issues cannot be countenanced by this Court.

However, regarding the Respondents issue No. 1, it was contended that by their argument, the 1st and 2nd Respondents are challenging the powers of the National Assembly to promulgate the provisos of the Water Resources Act and they cannot do so in an action where the Federal Government of Nigeria is not a party. Then on the principle of necessary party to an action enunciated in Green vs. Green (1987) 3 NWLR Part 61 page 480; learned Counsel referred to Tafida vs. Bafarawa (1999) 4 NWLR Part 597 page 70 and Peenock Investments Ltd. vs. Hotel Presidential Ltd. (1982) 13 NSCC 477 and contended that the necessary party is not before the Court to enable the Court to examine whether the Act, of the National Assembly is in violation of the Constitution i.e. pronounce on the powers of the National Assembly to enact the Water Resources Act vis a vis the provisions of the 1999 Act.

On issue 2, he clarified that the contention of the Appellant is that the trial Court ought not to have entertained the Respondents counter-claim at all as the Abia State High Court (Civil Procedure) Rules, 2009 does not permit the filing of a counter-claim in an Originating Summons proceeding, therefore, the question of miscarriage of justice does not arise. He cited the case of Alkali vs. Alkali (2002) 1 NWLR Part 748 page 453 and submitted that jurisdictional issue does not admit questions of miscarriage of justice. Any defect in jurisdiction entails and relates to embarking on the case in the first place and has no bearing on miscarriage of justice in the course of the proceedings or for that matter, to the correctness of the decision. He submitted that the Abia State High Court Rules, 2014 precluded the trial Court from entertaining Respondents counter-claim. He further urged this Court to allow the appeal. The first issue presented for consideration herein is whether the learned trial Court was right in its decision that the act of drilling a borehole by the Appellant in his private residence was not governed by the Water Resources Act W2 LFN 2004 but within the legislative competence of the Abia State House of Assembly.

To determine this, there is absolute necessity to understand fully the provisions of Section 1(1) of the Water Resources Act, Cap. W2, Laws of the Federation of Nigeria.

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It provides that: 1. The right to the use and control of all surface and groundwater and of any watercourse affecting more than one State as described in the Schedule to this Act, together with the bed and banks thereof, are by virtue of this Act and without further assurance vested in the Government of the Federation. It must be recognised that by Section 1(1) of the 2004 Act, the right and control of three species of water affecting more than one State or within the Federal Capital Territory over which the nation has power to legislate, are vested in the Federal Government. They are (a) surface water, (b) ground water and (c) any watercourse affecting more than one State as described in the Schedule to the Act. Surface water is described as the water that collects on the surface of the ground, i.e. a top layer of a body of water. Wikipedia described it as water on the surface of the planet such as in a river, lake, wetland or ocean. It can be contrasted with ground water and atmospheric water. On the other hand, ground water is said to be water held underground in the soil or in pores and crevices in rock. Wikipedia again described it as the water present beneath earths surface in soil pore spaces and in the fractures of rock formations. Whereas a watercourse is the channel that a flowing body of water follows. It is defined as natural or artificial channel through which water flows, or a stream or an artificial channel for water. It is clear in the above provisions that it is only in respect of watercourse, being a channel that flowing body of water follows that more than one State can be affected and not with ground water that is usual y extracted. It is stated that except in areas where ground water comes naturally to the surface at a spring (a place where the water table intersects the ground surface, wells have to be constructed in order to extract it. submersible pump is typically used to lift water from within the well up to where it is needed. To access groundwater, well has to be dug or excavated. A channel is also described as a passage of water that connects two areas of water, especially two seas. It is a passage that water can flow along. Item 64 Part 1 of the Second Schedule is under the Executive Legislative List in respect of which only the National Assembly has the authority to legislate upon. It means that only the National Assembly can enact laws pertaining to Water from such sources as may be declared by the National Assembly to be sources affecting more than one State. It is only when the water is from a source that affects more than one State that the National Assembly can make a law in that respect. By implication where the source would not affect more than one State, that is where it is within a State, the National Assembly is not empowered to legislate on such water like drilling boreholes within the residential places of people within a State. It is also not contained in the Concurrent list, meaning a State has the authority under the Residual List to enact laws pertaining to digging of wells, drilling of boreholes, etc for extraction of groundwater within the State. It is different where the Federal Capital Territory, which is the Capital of the Federation and seat of the Government of the Federation, is concerned. The ownership of all lands comprised in the Federal Capital Territory is vested in the Government of the Federation. The power to legislate Laws applicable to the Federal Capital Territory is vested in the National Assembly, so it is only in respect of groundwater or drilling of borehole within the Federal Capital Territory that the Water Resources Act, being an Act of National Assembly, can apply.

I therefore, resolve issue No. 1 in favour of the Respondents. Also issue No. 2 which queries Whether the provisions of the Abia State Water Law, Cap. 42 Laws of Abia State of Nigeria 2005, Abia State Water Connection Fee and Water Rate Law Cap. 43 Laws of Abia State of Nigeria 2005 are not inconsistent with the provisions of the Water Resources Act Cap W2 LFN 2004 and to that extent null and void, is, in the light of the resolution in issue No. 1, determined in favour of the Respondents.

The issue of covering the field does not arise because it does not fall within the domain of the National Assembly in the first place to enact laws in respect of underground water within a State not connecting another State. The National Assembly is not bequeathed with any constitutional power either under the Exclusive Legislative List or the Concurrent Legislative List to legislate for waters inside Abia State not adjoining any other source of water connecting outside Abia State through the Water Resources Act Cap W2, Laws of the Federation of Nigeria, 2004. The act of drilling borehole in Abia State cannot by any imagination or stretch of interpretation be covered by any Item of the Exclusive Legislative List under Part 1 of the 2nd Schedule of the Constitution.

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Regarding issue No. 3, it is resolved in favour of the Appellant, that is, the lower Court ought not have entertained it in the first place since there is no provision in the Rules of the lower Court authorizing counter-claim to be filed in an originating summons proceeding unlike in the other States where it was specifically provided. I must say it is purely an academic exercise since it was by implication struck out and no award was made.

In relation to issue No. 4, it is clear that the award was as result of exercise of discretion by the lower Court. It is the law that the assessment of costs is a matter in the discretion of the Court of trial but the discretion must be exercised judicially and if not so exercised, the Court of Appeal would be entitled to interfere and set aside an unjustifiable award. See per Viscount Cave L.C., in Donald Campbell & Co. Ltd. v. Pollak [1927] A.C.732 at p. 810. I must observe that there is no law precluding awarding cost to any Government Corporation or Organisation. An appeal Court has competence to review the costs awarded in the lower or trial Court only where the appellant who was the loser in the lower or trial Court succeeds in his appeal. In that event, the costs awarded against him will invariably, of necessity, be set aside and an order as to costs in the lower Court or trial Court is made in his favour. This is because the losing party in the Court below who wins on appeal is entitled to be indemnified, that is, to have his usual remedy in costs in the Appeal Court and in the Court below where he ought to have succeeded in the first place. An Appeal Court is also competent to review the costs where the successful party in the lower Court cross-appealed against a part of the judgment and succeeded. It is trite that when costs are awarded on that basis, i.e. judicially and reasonably to compensate a successful party, an appellate Court will be quite wary to interfere with the discretion of the Court as to the amount of costs. See Rewane v. Okotie-Eboh (1960) SCNLR 461. On the other hand, if the award is made against established principles, it will be set aside by an appellate Court. See Agidigbi v. Agidigbi (1996) 6 NWLR (Part 454) 300. Applying the principles on the instant matter, I think it wise not to interfere with the award of costs at the lower Court since the winning parties at the lower Court, have most of the issues in this appeal determined in their favour. This appeal is therefore bereft of merit and is bound to be dismissed. Accordingly, this appeal is hereby dismissed. I make no order as costs.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions reached by my Lord, Orji-Abadua JCA, in the lead judgment. I too dismiss the appeal for lacking in merit.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of having read in advance, the lead judgment of my learned brother, Hon. Justice Theresa Ngolika Orji-Abadua, JCA. I agree with the reasoning and conclusion in the said lead judgment to dismiss the appeal as being unmeritorious. I also subscribe to the order made therein with regards to costs.

Appearances:

G. E. Ukaegbu, Esq., with him E. I Nnolum, Esq. For Appellant

AND

C. O. Ogwo, Esq., (Chief State Counsel, Abia State Ministry of Justice) with him, C. I. Onwuchekwa (Miss) Senior State Counsel and O. N. Obasi, Esq. For Respondent