Since the Judgment of the
Supreme Court delivered on the 9th July, 2012 the internet
especially the face book has been awashed with speculation that the Judgment of
the International Court of Justice delivered in October, 2002 in the case filed
by Cameroon against Nigeria is appealable within ten years of its delivery.
Some of the commentators
were even demanding that the Cross River State filed an appeal against the
judgment of the International Court of Justice which Nigeria had since accepted
and had given gone further to cede the sovereignty of the Bakassi Peninsula
which is the subject matter of the case filed by Cameroon to the Republic of
Cameroon.
The House of
Representatives on the 18th July, 2012 in a plenary session
curiously joined the debate by passing a resolution requesting the Federal
Government of Nigeria to apply for a review of the Judgment of the ICJ before
the 10th October, 2012 when the judgment of the ICJ shall be ten
years old. The House of Representatives relied on the provisions of 1913
Anglo-German Treaty which the ICJ relied on was at variance with the provisions
of Article 6 of the General Act of Berlin Conference of 1884.
It is well settled that the
on the 12th June, 2006 an agreement otherwise known as the “Green
Tree Agreement (GTA) between the Republic of Cameroon and the Federal Republic
of Nigeria concerning the modalities of withdrawal and transfer of the
Authority in the Bakassi Peninsula was signed. The Agreement was signed on
behalf of Cameroon by President Paul Biya of Cameroon and on behalf of the
Federal Republic of Nigeria by then President Olusegun Obasanjo. The signing of
the Agreement was witnessed by the United Nations; the Federal Republic of
Germany; the United States of America; the French Republic and the United
Kingdom of Great Britain and Northern Ireland.
By Article 1 of the
Agreement Nigeria recognises the sovereignty of Cameroon over the Bakassi
Peninsula in accordance with the Judgment of the International Court of Justice
of 10th October, 2002 in the matter of the Land and Maritime
Boundary between Cameroon and Nigeria. By virtue of Article 1 of the Agreement
Nigeria unequivocally recognise the land and maritime boundary between the two
countries as delineated by the International Court of Justice and commit herself
to the process of the implementation of the Judgment which both countries had
agreed.
It is instructive that the
Green Tree Agreement is yet to be ratified by the National Assembly. Section 12
subsection of the Constitution of the Federal Republic of Nigeria, 1999 (as
altered and amended) provides thus” No treaty between the Federation and any
other country shall have the force of law to the extent to which any such
treaty has been enacted into law by the National Assembly”. Undoubtedly the
Green Tree Agreement to the extent that it was never presented before the
National Assembly for ratification is unconstitutional.
Subsequently in a ceremony
on the 21st August 2006 in
the Calabar Sport Stadium, Calabar, Cross River State attended by dignitaries across the world the then President
Olusegun Obasanjo formally handed over the sovereignty of the Bakassi Peninsula
to the Republic of Cameroon. This included the formal withdrawal of the Armed
Forces of the Federal Republic of Nigeria from the Bakassi Peninsula.
It is therefore preposterous
that after nearly ten years after the Judgment of the ICJ was delivered and six
years after the sovereignty of Nigeria over the Bakassi Peninsula was handed
over some commentators would be advocating for an appeal to be filed by the
Cross River State against the Judgment of the ICJ.
The pertinent question is
Judgments of the ICJ appealable? In other words can judgment of the ICJ subject
to an appeal? The answer to the question
is in the negative.
There basically six
documents that guide the exercise of the jurisdiction of the ICJ. These are
United Nations Charter; the Statutes of the Court; Practice Directions and
Rules of the Court and other texts.
It is submitted that Article 60 of the Statute of the
ICJ explicitly provides thus:
“The judgment is final and without appeal. In the event of dispute as to
the meaning or scope of the judgment, the Court shall construe it upon the
request of any party”.
It
follows that there is no appeal against the Judgment of the ICJ. It goes
without saying that either Nigeria or the Cross River State can appeal against
the Judgment of the ICJ delivered on the 10th October, 2002 in the
in the matter of the Land and Maritime Boundary between Cameroon and Nigeria.
This is settled.
A
cursorily reading of Article 60 of the Statute of the ICJ starkly reveals that
ICJ is only vested with the jurisdiction to review its judgment in the event of
a dispute as to its scope or meaning at the request of any of the Parties. The
question is: Is there any dispute as to the scope or meaning of the Judgment in
the matter of the Land and Maritime Boundary between Cameroon and Nigeria
delivered on the 10th October, 2002 to warrant any of the Parties to
invite the ICJ to review the said Judgment? The answer is Capital NO. There is
no dispute whatever between Cameroon and Nigeria as to the scope and meaning of
the Judgment. The Judgment has been unequivocally accepted by Nigeria by her
signing of the Green Tree Agreement on the 12th June, 2002 in New
York, the United States of America. Nigeria cannot therefore be allowed to
approbate and reprobate. The equitable doctrine of estoppel shall operate
against Nigeria in the event she makes any attempt to repudiate the Green Tree
Agreement signed nearly six years ago. Generally when an estoppel binds a party
to litigation, he is prevented from placing reliance on or denying the
existence of certain facts. Therefore from the point of view of the party in
whose favour it operates an estoppel could be regarded as something which
renders proof of certain facts unnecessary.
Assuming
without conceding that Nigeria did not sign the Green Tree Agreement; can she
apply to the ICJ for revision of the Judgment of the ICJ delivered on the 10th
October, 2002?
Article
61 of the Statute of ICJ provides that an application for revision of a
judgment may be made only when it is based upon the discovery of some fact of
such a nature as to be a decisive factor, which fact was, when the judgment was
given, unknown to the Court and also to the party claiming revision, always
provided that such ignorance was not due to negligence.
I did not think that there is new fact discovered by Nigeria of such a
decisive nature which was not known to Nigeria and the Court at the time of the
delivery of the Judgment in October, 2002. In the event there is discovery of
such a decisive fact it must be shown that it was not due negligence of the
Party applying for a revision.
The General Provisions of the Berlin Conference of 1884 which the House
of Representatives in its resolution had relied on to demand that the Federal
Government initiate a process for revision of the Judgment of the ICJ was
readily available at the time the judgment of the ICJ was delivered but was
never commended to the Court by the Nigerian Legal Team. This in itself
constitutes negligence which is not one of the factors that could avail a Party
requesting a revision of the Judgment of the ICJ under Article 61 of the
Statute of the ICJ.
It is pertinent to reproduce Article 61, sub paragraphs 1, 2, 3 & 4
of the Statute of the ICJ for the purpose of clarity and understanding for the
procedure for revision of the Judgment of the ICJ thus:
“Article 61
1. An application for revision of a judgment may be
made only when it is based upon the discovery of some fact of such a nature as
to be a decisive factor, which fact was, when the judgment was given, unknown
to the Court and also to the party claiming revision, always provided that such
ignorance was not due to negligence.
2. The proceedings for revision shall be opened by
a judgment of the Court expressly recording the existence of the new fact,
recognizing that it has such a character as to lay the case open to revision,
and declaring the application admissible on this ground.
3. The Court may require previous compliance with
the terms of the judgment before it admits proceedings in revision.
4. The application for revision must be made at
latest within six months of the discovery of the new fact.
5. No application for revision may be made after
the lapse of ten years from the date of the judgment”.
From
the above, it is clear that it is the procedure for the revision of the
Judgment of the ICJ as laid down by Article 61 of the Statutes of the ICJ which
some commentators are confusing with appeal of the Judgment of the Judgment of
the ICJ within ten years from the date of the Judgment.
It
is pertinent to state that the ten years within which Nigeria may apply for a
revision of the Judgment of the ICJ (assuming the circumstance enumerated by
the Statute of the ICJ) is applicable shall lapse on the 10th
October, 2012.
It
is clear as the crystal that Article 61 of the Statutes shall not avail Nigeria
in the event she makes an application to the ICJ for the revision of the
Nigeria delivered by the ICJ on the 10th October, 2002 in favour of
Cameroon in the matter of the Land and Maritime Boundary between Cameroon and
Nigeria. It is certain that no Lawyer worth his salt will ever proffer such
advice to Nigeria to gamble by making such a frivolous application to the ICJ.
Another
question that is worthy of tackling is: whether the Cross River State can apply
for a revision of the Judgment of the ICJ (assuming without conceding that
Article 61 of the Statute of the ICJ applies). The answer to the question is a
Capital No.
The
Cross River State was never a Party in the matter of the Land and Maritime
Boundary between Cameroon and Nigeria filed by Cameroon before the ICJ. The
Parties to the case were Cameroon and Nigeria. It is well settled that the
Cross River State is one of the 36 States that is composed of the Federal
Republic of Nigeria. It follows that the Cross River State cannot apply for the
revocation of Article 61 of the Statute of the ICJ. The Cross River State is
not recognised as a State Party by the Statute of the ICJ. Article 34
subparagraph 1 of the Statute of the ICJ explicitly provides that only states may be parties in cases before the Court.
The Cross River State is not a State within the concept of International
Law. This proposition was given judicial approval by the High Court of the
United Kingdom in the case DIEPREYE SOLOMON PETER ALAMIEYESEIGHA Vs. THE CROWN PROSECUTION SERVICE [2005]
EWHC . This was an application for Judicial Review filed by the former Governor
of Bayelsa State, challenging the decision of the Crown Prosecution Service to
prosecute him for money laundering. Diepreye Solomon Peter Alamieyeseigha
brought an application that the decision to prosecute should be quashed on the
grounds that he is entitled to sovereign immunity in his capacity as Governor
and Chief Executive of Bayelsa
State, which is a
constituent part of the Federal Republic of Nigeria. The question that was
resolved was whether a Governor and Chief Executive of a state, which is a constituent part of the
Federal Republic of Nigeria, is entitled to immunity in criminal proceedings
brought in this country.
The Court
resolved the question in the negative and held that and held that since the Nigerian Constitution
shows that the States such as Bayelsa
State do not have any
powers in respect of a number of matters which would normally be associated
with a sovereign state
such as, "arms. ammunitions and explosives", banking,
"citizenship ,naturalisation and aliens", "defence",
"immigration into and emigration from Nigeria", maritime matters,
mines and minerals including oil fields and natural gas policing, post telegraph
and telephone services, prisons, railways, "taxation of income, profits
and capital gains except as otherwise prescribed by the [Nigerian]
Constitution". These are all federal matters which are dealt with by the
Federal Government to the exclusion of the Federal States (Part 1 of the Second
Schedule of the Nigerian Constitution paragraphs items 2, 6,9,17,30,36,39,
45,46,48,55 and 59).
It is therefore clear that the claim by some people that
the Judgment of the ICJ can be appealed against within 10 years by the Cross
River State is hollow and not well founded.
OKOI OBONO-OBLA
