With over 31 years of authorized battle and two judgments of the Supreme Courtroom, will the disputes between an Ogoni neighborhood and Shell ever be resolved, Davidson Iriekpen asks
For the second time in lower than two years, the Supreme Courtroom penultimate week dismissed an utility by Shell Petroleum Growth Firm of Nigeria Restricted (SPDC) looking for to put aside a N17billion judgment given towards it on January 11, 2019 over a 1970 oil spill in a neighborhood in Rivers State.
A five-man panel of the court docket in a unanimous ruling dismissed the Shell utility as missing advantage.
Justice Centus Nweze who wrote the lead ruling within the case, marked: SC/731/2017, which was learn by Justice Samuel Osuji, agreed with the respondents, Ejama-Ebubu in Tai Eleme Native Authorities Space of Rivers State, that Shell’s utility was an invite to the court docket to overrule itself.
The choose mentioned after an intensive examination of the briefs filed by events, he elected to uphold the preliminary objection raised by the respondents (victims of the oil spill, led by Chief Isaac Osaro Agbara). He, due to this fact, dismissed the applying and ordered events to bear their respective prices.
The identical court docket had, in a ruling on January 11, 2019 dismissed the enchantment by Shell towards an earlier choice of the Courtroom of Attraction on a June 14, 2010 judgment of the Federal Excessive Courtroom, which awarded damages towards the oil firm for oil spill at Ejama-Ebubu.
Arguing the preliminary objection on September 22, respondents’ lawyer, Lucius Nwosu (SAN), queried the jurisdiction of the Supreme Courtroom to entertain Shell’s utility, which he mentioned was supposed to make the apex court docket sit on an enchantment over its choice. Nwosu contended that Shell’s utility was an abuse of court docket course of as a result of there was now not a pending enchantment on which the court docket might act. He famous that, on studying about Shell’s recent utility, his purchasers wrote the Chief Justice of Nigeria (CJN) to investigate in regards to the standing of the oil firm’s enchantment.
In response to him, in a reply, dated February 14, the CJN’s response confirmed that Shell’s enchantment was spen.
“If the CJN has said the appeal is spent, how can the same appellant come and revive the spent appeal?” He requested.
The lawyer, who mentioned his purchasers had taken steps to execute the judgment, added that the identical Shell, which was reluctant to compensate victims of its oil spills in Nigeria, had paid about $206 million damages in comparable circumstances in Mexico. He regretted that Shell was unwilling to abide by the choice of Nigeria’s apex court docket after subjecting the victims to over 30 years of strenuous litigation in courts throughout the nation.
The substantive go well with commenced in 1991 earlier than a Rivers State Excessive Courtroom sitting at Nchia Division, when the Ejama neighborhood represented by Isaac Osaro Ogbara, Victor Obari, John Oguru, Joseph Ogusu, G. O. Nnah, George Osaro, and Adanta Obelle, sued Royal Dutch Shell Plc, Netherlands, Royal Dutch Shell Plc, United Kingdom, and SPDC over alleged oil spills which occurred when Shell operated locally within the 1970s. Judgment was entered for the sum of N6 Billion in favour of the neighborhood by the Nchia Excessive Courtroom. That judgment was conceded on enchantment as a result of the Supreme Courtroom had in a sister case determined that states’ excessive courts had no jurisdiction in oil related-matters.
The plaintiffs in 2001 refiled the go well with on the Federal Excessive Courtroom in Port Harcourt. After listening to the submissions of the events within the go well with, the trial choose, Justice Ibrahim Buba, in his judgment in 2010, awarded N17 billion to the representatives of the Ogoni folks. The court docket equally granted the Ogoni chiefs 25 per cent curiosity cost on the principal sum.
SPDC then appealed towards the judgment and utilized for a keep of execution of the judgment pending the enchantment. As a situation for granting the keep of execution, the court docket required Shell’s bankers, FirstBank, to supply a assure of the judgment sum plus curiosity. This situation was complied with. However Shell’s enchantment failed on advantage as a result of it didn’t file a short of argument in assist of its enchantment. As an alternative it claimed that it was granted go away to file an amended temporary of argument, which the Courtroom of Attraction discovered to not be appropriate.
Towards the settlement reached, Shell proceeded to the Supreme Courtroom the place its new attorneys filed a recent utility asking for go away to amend the unique discover of the enchantment filed by Olawale Akoni (SAN) on the Port Harcourt Division of the Courtroom of Attraction registry to ensure that them to argue recent points not raised on the court docket under and to ensure that them to argue 36 extra grounds of enchantment.
Upon the brand new utility on the apex court docket, the respondents’ lawyer, led by Lucius Nwosu (SAN), filed a preliminary objection. Assisted by Lawal Rabana (SAN) and others, Nwosu argued that the findings of the Courtroom of Attraction dismissing their enchantment had been primarily based on details, including that the regulation is that an enchantment should come up out of the choice complained towards. He said that if the choice complained towards was primarily based on findings of truth, the structure requires that you just can not enchantment them besides you first search go away of the Courtroom of Attraction.
The respondents’ lawyer contended that since that discover of enchantment on the Courtroom of Attraction was filed with out go away, it meant that the discover was incompetent and can’t be amended as a result of it might imply placing one thing on nothing and anticipating it to face.
Justice Kumai Bayang Akaahs who learn the ruling on behalf of different justices led by the then Chief Justice of Nigeria, Justice Walter Onnoghen, mentioned the discover of enchantment filed by the oil large was incompetent. He mentioned movement filed on July 16, 2018 had no leg to face on and shouldn’t have been filed. He consequently dismissed it in its entirety.
However Justice Akaahs citing a plethora of authorities to again up his submission, held that for the reason that discover of enchantment filed by Shell sought to be amended was incompetent, no legitimate modification could possibly be effected as a result of problems with truth or combine regulation and truth had been raised within the authentic discover of enchantment with go away of court docket.
The Supreme Courtroom justice agreed with the submission of Shell’s lawyer that an appellant who has a legitimate and subsisting enchantment can search the go away of court docket to take action, including that within the prompt case, there isn’t a such legitimate discover of enchantment that could possibly be amended.
Nevertheless, whereas the case was nonetheless pending on the apex court docket, sensing that Shell was utilizing delay ways to forestall FirstBank from paying the judgment collectors the N17 Billion judgment debt, in December 2017, the plaintiffs commenced garnishee proceedings on the Federal Excessive Courtroom in Owerri presided over by Justice Lewis Allagoa. They urged the CBN to pay them N122.53 billion out of FirstBank’s account in its custody.
THISDAY gathered that they calculated the principal sum of N17 billion and the accrued 25 per cent curiosity cost each year to reach on the sum of N122,533,403,392. In January 2018, Justice Allagoa granted them a brief order (garnishee nisi) ordering the CBN to pay them the sum from FirstBank’s account with it.
However the CBN requested the court docket to not make the order absolute. The apex bank’s counsel argued that compelling the CBN to pay the N122.53 billion from FirstBank’s funds domiciled with it might have far-reaching penalties for Nigeria’s oldest and largest lender by property and deposits, and a systemic influence on the remainder of the monetary system and wider economic system.
Nevertheless, Justice Inyang Ekwo of the Federal Excessive Courtroom in Abuja on March 2, 2020 issued an order absolute. By the order made by Justice Ekwo, the CBN Governor was to order the discharge of the judgment sum from the account of First Bank.
Whereas reacting to the newest judgment of the Supreme Courtroom, the respondents’ lawyer, Nwosu hailed the court docket for safeguarding the dignity and integrity of the nation’s judiciary by its choice, regardless of alleged strikes by Shell to ridicule it.
Nwosu famous that the judgment sum, “as at today, with the interest running, is in the neighbourhood of N182 billion.”
He expressed displeasure with the alleged plot by the CBN to frustrate the execution of the garnishee order absolute bought towards the account of First Bank by the victims/judgment collectors of their bid to execute the judgment.
However Shell in a swift response, disputed the quantity. The oil large mentioned the ruling of the Supreme Courtroom didn’t resolve legal responsibility or the dimensions of the award. It additionally denied accountability for the oil spill locally, insisting that it was brought on by ‘third parties’ in the course of the Nigerian Civil Conflict.
It mentioned: “This spill was brought on by third events in the course of the Nigerian Civil Conflict, a difficult interval which resulted in important harm to grease and gasoline infrastructure within the area.
“Whereas SPDC doesn’t settle for accountability for these spills, the affected websites within the Ebubu neighborhood had been absolutely remediated.
“The claimants have, at their very own admission in court docket, materially miscalculated and overstated the value of the award beforehand sought on this case.
“The ruling of the Supreme Courtroom didn’t resolve legal responsibility or the dimensions of the award, which stays in dispute in different ongoing court docket proceedings.
“It is our position that any attempt to enforce payment should not be permitted. It is regrettable that the legal process in this case has focused for so long on procedural issues and not the merits of the case. We have always maintained that we are ready to defend this case based on the available facts.”
From the place of Shell that the ruling of the Supreme Courtroom didn’t resolve legal responsibility or the dimensions of the award, it’s apparent that the case is just not but over regardless of a number of judgments. The following battle could possibly be for the courts to find out the precise legal responsibility or the dimensions of the award.