By Innocent Anaba
ASABAâ€” A FEDERAL High Court, yesterday, awarded N15.4billion as special and punitive damages against Shell Petroleum Development Company of Nigeria Limited, SPDC, in favour of Ejama-Ebubu community in Tai Eleme Local Government Area of Rivers State for an oil spill that occurred in 1970.
The spill affected an area of about 255.369 hectares.
Vanguard learnt that though the suit was instituted in 2001, it had gone through three judges: Justices Adamu Bello, Regina Nwodo and Ibrahim Buba, who delivered judgment in the suit. There were at least 24 interlocutory applications by the defendants and three interlocutory appeals also by the defendants, which delayed the matter.
Justice Buba in his judgment said: â€œThis is a 2001 matter that has a chequered history. The plaintiffs by their paragraph 32 of the amended statement of claims, jointly and severally claimed against the defendants, special damages of N1.772billion, allowing for interest for delayed payment for five years from 1996 at a modest mean Central Bank of Nigeria deregulated rate for that volume at 25 per cent per annum, totaling N5.4billion.
They also claimed punitive general damages of N10bn for general inconveniences, acid rain, pollution of underground water and hardship to the population, who have been deprived of the right to self sustenance, education and good life.
â€œThe plaintiffs are also asking for an order directing the defendant to de-pollute and rehabilitate the dry land swamps to its pre-impact status. The plaintiffs testified and called witnesses and tendered exhibits. The defendants who were in court, were called upon to enter their defence, but they walked away.
Thereupon, the court called on the plaintiffs’ counsel, Lucius Nwosu, SAN, to address the court. He submitted that this is a simple case, founded on nuisance, arising from continuing damage, as a result of crude hydrocarbon oil spillage, which admittedly occurred from the defendantsâ€™ Trans-Niger Oil Pipeline, which traverses the community of the plaintiffs.
Pleadings not supported by evidence
â€œThe defendants, as oil producing companies and in the course of transporting their oil, constructed pipelines, to convey their crude oil out from their oil well to Bonny Oil Terminal for export. It is in that process that the spillage complained against did occur. It is argued that the law is settled that, pleadings not supported by evidence go to no issue.
Since the defendants elected not to call evidence, all facts raised in their defence go to no issue. On the other hand, their refusal to call evidence does not relieve the plaintiffs of the duty to prove their case.
â€œThe damage claimed, as borne out by the values report Exhibit P2 was with effect from 1995 being the reporting date of the chartered valuer. This action was brought to court in 2001. Therefore, the six years limit required by the statute for tortuous liability has not been breached. It is submitted that the next question for consideration, is whether the oil spillage went beyond the defendantsâ€™ right of way and got into the plaintiffs land.
It is argued that PW1 tendered exhibit P1, delineating the area affected by the spill, which is 255.369 hectares. It is contended for the plaintiffs that the letters, Exhibit P6, P7, P8 and P9, all accepted that 255 hectares were impacted and should be cleaned up. That apart, from all the letters mentioned, including exhibit P1 admitted that the spill occurred in 1970.
â€œThe suggestion that it happened during the war cannot be correct. It is then asked, what is the effect of the spill having shown the extent of the impact. It is contended that exhibit P4, described the area as unfit for human activities. Exhibit P5 is the report commissioned by the defendants themselves. Part II of exhibit P5 was referred to under executive summary and shows the effect clearly that the defendants’ appointed scientists, made the recommendation as to the negative impact in that area.â€
Cleaning up the spill
The court referred to some of the exhibits, including a letter dated May 20, 1991 by Shell to the Paramount Ruler of Ejamah community, offering to acquire the affected land to burn the crude oil; another letter dated August 15, 2006, on how Shell intended to clean up the 1970 spill at Ejama Ebubu as well as other letters detailing companies and phases of the clean up. The judge noted: â€œIndeed, exhibit P10 provides extensively the background, scope, method, certification, stakeholders engagement, etc.
â€œI have, upon calm assessment on the unchallenged evidence of the plaintiffs, that cases cited and relied upon, which I read and come to one and only inevitable conclusion, that the case of the plaintiffs have merit and accordingly accept the evidence that is capable of belief. Indeed, from the nature of the damages caused, the amount of general damages claimed is not exaggerated.
I have no doubt whatsoever, that the special damages has been proved, as the burden on the plaintiffs is a minimal proof. I also assess and award punitive general damages as claimed, having found out that the damages claimed is not exaggerated.
â€œI therefore, enter judgment for the plaintiffs against the defendants in the following terms: judgment be and is hereby entered for the plaintiffs against the defendants jointly and severally.Â I make the following order: the defendants shall pay the plaintiffs, special damages in the sum of N1.7772bn made up as follows, direct value of annual renewable crops/amenities, loss of income, N44.5m, injurious affection, N613.7m; forestry N115.5m; hunting income N236.2m, animal traps N4.9m and water supply, N80m and health hazards, shock fear N100m and desecration of shrines, N1.8m.Â Allowing for interest for delayed payment for five years from 1996 at a modest mean Central Bank of Nigeria deregulated rate for that volume at 25 per cent per annum, totalling N5.4billion.
â€œI also award the plaintiffs claims of 25 per cent of the said sum till the date of judgment and thereafter 10 per cent of the judgment debt till payment. The burden of proof on the minimal have been discharged by the plaintiff. I also assess and award the plaintiffs claim against the defendants in punitive terms of general damages in the sum ofÂ N10 billion for general inconveniences, acid rain, pollution of underground water and hardship to the population who have been deprived of the right to self sustenance, education and good life.
â€œAn order directing the defendant to de-pollute and rehabilitate the dry land swamps to its pre-impact status.”