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London Court Ruling: Shell, Ogoni Claim Victory
The Shell Petroleum Development Company of Nigeria (SPDC) and the Bodo community in Gokana Local Government Area of Rivers State have separately claimed victory in a compensation case filed against the company in a London High Court.
A London-based senior High Court had delivered its ruling on the Bodo preliminary issues trial brought against SPDC in a United Kingdom court.
The SPDC claimed that the senior judge, Mr Justice Akenhead had ruled that the interpretation of Nigerian law by SPDC is correct in all the crucial points argued before the court.
Shell claimed that Akenhead accepted that the Nigerian Oil Pipelines Act provides a comprehensive and complete regime for compensation for oil spills, adding that the judge’s decision limits the scope of the litigation to an assessment of actual damages sustained as a result of the operational spills.
The company said the judge dismissed attempts by the Bodo community’s UK legal representatives to add a range of additional claims over and above the compensation due under the clear Nigerian statutory regime.
It also said that the court addressed the perennial issue of liability for environmental damage caused by oil theft and criminality, and found that the Oil Pipelines Act does not hold pipeline operators responsible for damage caused by oil theft.
He identified rare, “theoretical” but “difficult to prove” exceptions, for example in the event a pipeline operator knew the time and location of a planned attack by criminals and decided not to inform the police, and also accepted that no compensation is payable for oil spilled as a result of illegal oil refining, the company said.
The Judge further recognised the significant jurisdictional problems that arise when claims relating to Nigerian land are brought in England rather than in the Nigerian courts that have jurisdiction in relation to such land.
The Tide gathered that these issues will need to be addressed during the main trial next year.
Managing Director of SPDC, Mutiu Sunmonu said: “From the outset, we’ve accepted responsibility for the two deeply regrettable operational spills in Bodo.
“We want to compensate fairly and quickly those who have been genuinely affected and to clean up all areas where oil has been spilled from our facilities, including the many parts of Bodo which have been severely impacted by oil theft, illegal refining and sabotage activities.
“We hope the community will now direct their UK legal representatives to stop wasting even more time pursuing enormously exaggerated claims and consider sensible and fair compensation offers”, he said.
He added: “We’ve consistently maintained that the Bodo community’s UK legal representatives have a fundamental misunderstanding of Nigerian law, and today, the Judge has agreed with us. It’s disappointing that we’ve had to go through this process, which has involved a significant amount of wasted time and legal expense.”
But in contrast to the Shell position, the Bodo community argued that the groundbreaking legal ruling means that SPDC could be legally liable for illegal bunkering of its pipelines, if it failed to take reasonable steps to protect its infrastructure.
The judgment follows a ‘preliminary issues hearing’, which took place in May this year, which considered a range of complex legal arguments prior to a full trial in 2015.
The central issue being argued was whether Shell should take reasonable steps to protect its infrastructure given the foreseeable risk of bunkering, illegal hacking into pipelines to steal the oil.
This is the first time Shell has had to face formal court proceedings in the UK for its environmental record in the Niger Delta, following two massive oil spills in 2008 and 2009 which resulted in the largest loss of mangrove habitat ever caused by an oil spill.
The legal action is being taken by London law firm, Leigh Day, which is representing 15,000 Ogoni fishermen and the Bodo community, which was devastated by the oil spills, in one of the largest environmental law cases ever brought.
At the hearing, President of the Technological and Construction Court, Leigh Day, argued that under the Nigerian Oil Pipelines Act, anyone who suffered damage can claim compensation if he can show evidence that Shell was guilty of neglect in failing to ‘protect, maintain or repair’ the pipeline.
The people argued that Shell has duty of care to take reasonable steps to protect its pipelines and that it could do much more to prevent the spillage of oil when its pipelines are drilled into by criminal gangs.
However, in the ruling, the judge found that whilst Shell did not have an obligation to provide policing or military defence (which is the function of the state), it could be legally liable if it has failed to take other reasonable steps to protect the pipeline such as the use of appropriate technology (leak detection systems), a system of effective surveillance and reporting to the police and the provision of anti-tamper equipment.
At paragraph 92(g) the Court held: “Short of a policing or military or paramilitary defence of the pipelines, it is my judgment that the protection requirement within Section 11(5)(b) involves a general shielding and caring obligation. An example falling within this would be the receipt by the licencee of information that malicious third parties are planning to break into the pipeline at an approximately definable time and place; protection could well usually involve informing the police of this and possibly facilitating access for the police, if requested. Other examples may also fall within the maintenance requirement such as renewing protective coatings on the pipeline or, with the advent of new and reliable technology, the provision of updated anti-tamper equipment which might give early and actionable warning of tampering with the pipeline.”
According to the United Nations Development Programme (UNDP), more than 6,800 spills were recorded between 1976 and 2001. The number of spills has significantly increased in recent years and Shell recorded 3,000 spills between 2007 and 2012.
Speaking after the hearing, Martyn Day, the senior partner at Leigh Day, said: “This is a highly significant judgment. For years, Shell has argued that they are only legally liable for oil spills which are caused by operational failure of their pipelines and that they have no liability for the devastation caused by bunkered oil.
“This judgment entirely undermines that defence and states in clear terms that Shell does have potential liability, if it fails to take reasonable steps to protect its pipelines.
“This will have broad implications since Shell is now potentially liable for the mass pollution of the Niger Delta in which it has pumped and spilt oil over, at least, the last 20 years, not just for operational oil spills.”
The Bodo community is a rural coastal settlement consisting of 31,000 people who live in 35 villages. The majority of its inhabitants are subsistence fishermen and farmers.
Bodo community claims that 1,000 hectares of mangroves have been destroyed by the spills and a further 5,000 hectares have been impacted.
In 2011, Shell admitted liability for the spills but continues to dispute the amount of oil spilled and the extent of the damage caused.
Leigh Day began the multi-million pound legal action at the High Court in March, 2012, after talks broke down over compensation and a cleanup package for the community.
According to the claimants’ lawyers, the spills have destroyed the fishing industry, just as they claim that Shell has failed to speedily compensate the people of Bodo and have prevaricated for years.
The United Nations Environment Programme’s Environmental Assessment of Ogoniland 2011 backed up these findings. It surveyed pipelines and visited all oil spill sites, including the Bodo creek.
The UNEP report found hydrocarbon contamination in water in some sites to be 1,000 times higher than permitted under Nigerian drinking water standards, and recommended a comprehensive clean up of Ogoniland.
However, three years after the UNEP report, Shell said more than half of the polluted sites in Ogoni has been cleaned up and remediated while the few remaining ones are being progressed.
Other measures, including emergency water provision to affected communities, and the implementation of integrated water infrastructure projects, with one in Eleme already commissioned by the Rivers State Government.
Super Eagles players celebrating with playmaker, Osaze Odemwingie (middle) after he scored Nigeria’s goal that effectively eliminated Bosnia-Herzegovina from the World Cup finals last Saturday night in Brazil
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DEPLOY YOUR CAPACITY, TECHNICAL KNOWHOW TO REVITALISE SONGHAI FARMS, FUBARA TELLS TASK FORCE
Rivers State Governor, Sir Siminalayi Fubara, has said that diversifying the economy of the State has become inevitable because of the need to solve the problem of food shortages while also providing jobs for the teeming unemployed youths.
These, he said, are the reasons why great care has been taken to critically look at the prospects of revitalising the Songhai Integrated Farms, which is located in Bunu Tai, in Tai Local Government Area of the State.
Governor Fubara insisted that if the problem associated with food shortages is tackled with good intent and purpose, about 40 to 50 percent of current problems of economic hardship plaguing the country and its people would have been solved.
Governor Fubara made the assertion while inaugurating the Chairman, Mr Biedima Oliver, and members of the task force saddled with the responsibility of supervising the revitalization of Songhai Integrated Farms by its partners: Vitalcrop Ventures Limited and Imagine Adama Limited, at Government House in Port Harcourt, yesterday.
Other members of the task force included, the Rivers State Commissioner for Agriculture, Engr Victor Kii; Commissioner for Finance, Barrister Emmanuel Frank-Fubara; Dr Ayebaesin Beredugo; and Mr Maurice Ogolo.
The Governor explained that it took him time to approve the constitution of the task force being inaugurated because of the ugly experience with the previous group that shown such interest.
Governor Fubara stated that a process was initiated and driven halfway into the handing over of Songhai Farms on concession to an interested partner who latter showed a total lack of the needed capacity to undertake such task.
He said, “As a matter of fact, if few of you could remember, we even conceded the place to an investor who came in after he had made his presentation, and we, believing that he has the capacity, we said okay to him, and we had already signed up.
“But something happened. He came back to tell us that he wanted us to give him a N5billion bank guarantee. We then asked him, why? If we have the N5billion, why do we need you to come and even revitalize Songhai Farms? We would have put that N5billion there ourselves. For that reason, we cancelled that arrangement.”
Governor Fubara said now that two separate companies have come together to indicate interest and given the assurance of having the needed capacity to drive the process, he is delighted to see them meeting that expectation.
Governor Fubara pointed to the expectation of the people who want to see the Songhai Farms back on stream on a sustainable basis.
That expectation, he insisted, is also what his administration wants to see actualised within its lifespan.
He noted, “We want to see food sufficiency, because we know when Songhai Farms comes on board, there will be food, which is one of the problems we are having in this country. If we are able to tackle the issue of food, 40 to 50 percent of our problem will be solved.”
Governor Fubara also stated that although he believes in the presentation made by the group and has taken their assurance to heart, but warned that he would not tolerate a repeat of what happened before.
The Governor said, “I hope your story will not be (end) halfway too. I hope you have the capacity and all the technical knowhow to handle it. It is not when we start now, after we had finished inaugurating the task force, you will come back to tell us that you need $2million. If we have $2million, we won’t need you. We will invest it by ourselves.”
Governor Fubara, however, praised the capacity of the Chairman of the task force, Biedima Oliver, saying that incidentally, he was one of the personnel that convinced the then administration to develop the Songhai Farms, and had worked with the Rivers State Sustainable Development Agency (RSSDA) to manage the project.
He said, “He knows and understands the workings of Songhai, and now that we are making you the chairman of the task force, we want to believe that you will make that place come back to life.
“I don’t have any doubt in your capacity. A few things you’ve touched, you turned them to gold. Please, bring it back to what we used to see in Songhai. Bring it back with the help of your committee.”
Governor Fubara assured that his administration will remain committed to providing all the necessary support that they may require to make their assignment a success.
He added, “So, I hereby inaugurate you. Your task is very simple: Do everything within your powers and with our support to make sure that Songhai becomes operational to the benefit, not just the people of Tai, but to the entire Rivers State and Nigeria as a whole”.
In his acceptance speech, the Chairman of the Task Force to Supervise the Revitalization of Songhai Farms with Vitalcrop Ventures Limited and Imagine Adama Limited, Mr. Biedima Oliver, expressed appreciation to Governor Fubara for the opportunity and confidence reposed in them to revive Songhai Farms.
Mr. Oliver assured that they will deliver the expected goal on Songhai Farms, and doing so on time and on target so that the good people of Rivers State can eventually be happy and also benefit from the huge investment.
Rivers State Governor, Sir Siminalayi Fubara, has declared that all the policies and programmes of his administration are tailored towards the protection of interest of Rivers people, especially the youths.
This, he said, is borne out of the importance his administration attaches to youths’ development and empowerment as leaders of tomorrow.
Fubara, according to a statement by his Chief Press Secretary, Nelson Chukwudi, disclosed this when he received the youths of Emohua Local Government Area under the auspices of “Emohua Youths For SIM” on solidarity visit to Government House, Port Harcourt, last Friday.
He said that his administration has put in place modalities that will boost the livelihoods and well-being of Rivers citizens, which youths of Emohua will also benefit when they materialise.
The governor, who spoke through the Rivers State Head of Service, Dr. George Nwaeke, pointed out that the recently awarded Elele-Omudiaga-Egbeda-Ubimini-Ikiri-Omoku Road, the ongoing Emohua-Kalabari Road, reinstatement of illegally sacked workers of Emohua Local Government Area and the approval for electrification of the area, are part of deliberate measures to open up the area to make life conducive and more meaningful for the people.
According to him, “Everything about the governor is putting the interest of Rivers State first. He is looking at and taking action on those things that we need to do to restart the wheels of progress in Rivers State.
“There are many things the governor has planned and is already doing that will boost the life and welfare of every citizen of Rivers State, but most importantly the youths.
“Growing up, I learnt that Egbeda is one of the biggest communities in the whole of Ikwerre, and it’s predominantly an agrarian community. They have food in Egbeda, they have food in Ubimini, they have food in Omudiaga and other natural resources. The whole world is tilting to agriculture, and this is the way to go.
“The Elele-Umudioga-Egbeda-Ubimini-Omoku road, when completed, will open up the area for real development. Your food and everything you produce there will now have value, they will no longer be thrown away. In all these, you the youths are going to be the utmost beneficiaries.”
He added, “Same will be applicable to the Emohua-Kalabari Road which will also, trigger development in the area, and you will be the greatest beneficiaries. When the LGA is also electrified, you will be having 24 or 20 hours of electricity, and those things the youths can do with electricity, you can stay at home and create wealth for yourself and children.
“All the totality of what the governor is doing, when they are completed, or even as some are completed now, the youths are going to be utmost beneficiaries.”
While acknowledging that youths are the true leaders of tomorrow and any government that fails to carry them along in the scheme of things is doomed to fail, the governor assured them of his administration’s commitment to always address issues concerning youths and ensure that they are part of his government.
He commended the youths for toeing the path of truth by identifying with his administration, urging them to sustain the tempo and shun evil, as his government will ensure that the trend whereby politicians turn youths to beggars are over.
He said, “Youths are, indeed, the leaders of tomorrow. The time of youth is a very important time. It a time that your parents or whoever is your leader at that time have to make the greatest investment in you. And any Government that decides to only carry the elderly, chiefs aling and abandon the youths is bound to fail,” he asserted.
“But I am happy that Governor Fubara has concentrated his energy on everything that will benefit the society, especially the youths.
“And based on these, I want to thank you for recognising what is good and calling it good, for shunning what is evil, for saying the Governor is standing for you.
“Let me tell you, you are on the right direction. Let me tell you again, Rivers State is the bride of Nigeria. The whole Nigeria is looking at what will happen here. As they look here and see you standing on the path of truth, this is a very important step that you have taken to right all the wrongs of the past, to make Rivers State stand on the tripod of justice, peace and security. That is what we are going to gain through the governor, taking all the wise actions that he has already initiated.
“The projects the governor is embarking on are meant to prepare nets for the youths to fish and put food on their table, hence you should continue to follow him.
“The SIMplified Movement brought upon by the governor will ensure that Rivers youths stop the habit of going to bow down before politicians, pledging loyalty before they can eat.”
Earlier, spokesman for the Emohua Youths for SIM, Comrade Ovamale O. Ovamale, had said that the visit by youths from the 14 political wards in Emohua Local Government Area was to thank the governor for the award of the Elele-Omudiaga-Egbeda-Ubimini-Ikiri-Omoku road, the approval for electrification of the area and reinstatement of sacked workers of Emohua Local Government Council, of which the youths were mostly affected.
According to him, “Siminalayi Fubara of recent has given Emohua Local Government road that links Elele to Omoku, which comprises over four communities in the local government.”
“Emohua Local Government has also been in darkness for eight years. No community in the local government that has light. But, of recent, because of the passion and love the governor has for the people of Emohua, he has approved the electrification of the local government.
“Also, the illegal sack of Emohua Local Government workers, for which the youths were mostly affected and without the approval of the Local Government Service Commission, the governor, in his compassionate nature, has reinstated them, and that is why we said we must come and thank His Excellency”, he said.
Rivers State Governor, Sir Siminalayi Fubara, has assured that his administration will collaborate and continue to consult widely in delivering a liberated State experiencing enduring peace.
Fubara said, in doing so, he would not operate as a dictator but as a member of a team that has the best interest of the State at heart and determined to leave a lasting legacy that can be celebrated.
The governor spoke during the formal presentation of Certificate of Recognition and Staff of Office to the Amanyanabo of Okochiri Kingdom, King Ateke Michael Tom, as first class tradition ruler, at Government House in Port Harcourt, yesterday.
Fubara stated that, during the Sixth State Executive Council meeting, N80.8billion was approved with 50 percent contract value paid already as the Government awarded the construction of the Elele-Egbeda-Omoku Road.
He said the project will be funded from the savings from Internally Generated Revenue (IGR) to underscore his administration’s prudence without also borrowing to complete the project.
“We are at a crossroad in our State where we all need to stand for what is right. It happens once in a life time. So, for now, be one of those people that will be in the course to liberate and free our dear State.
“And I know strongly that having the support of a peace-loving Amanyanabo of Okochiri Kingdom, having the support of the wonderful Council of Chiefs, having the support of the great people of Rivers State, we will bring peace in our State. We will do those things that are right to develop our State.
“We will continue to consult. We will not act as dictators. We will act as people who know that one day, we will leave, and when we leave, the way we have acted will speak for us. We will not force people to talk good about us. Our legacy will be a signature for how we led”, the governor said.
Fubara explained that he acted within the ambit of the law to upgrade the traditional stool upon which King Ateke Tom sits in recognition of his efforts in promoting peace in Okrika, and indeed, the State, and urged him to continue to do justice to everyone.
In his speech, Commissioner for Chieftaincy and Community Affairs, Hon Charles Amadi, congratulated King Ateke Tom for being formally presented with the Certificate of Recognition and Staff of Office as first class traditional ruler.
Also speaking, former Transport Minister, Chief Abiye Sekibo, thanked the governor for fulfilling his promise of upgrading the traditional stool of Okochiri Kingdom, and pledged the support of Kirike Se people to his administration.