…As UK court upholds Nigeria’s judicial sovereignty in Bille, Ogale suit
By Udeme Akpan
There are indications that oil spillage, occasioned by sabotage and other factors have dropped in the Niger Delta by 27.3 percent.
Many oil companies, including International Oil Companies, IOCs and indigenous companies did not disclose their oil spill data.
But a compilation of 2017 data obtained by Vanguard from Shell Petroleum Development Company Limited, SPDC, a leading IOC, and operator of the Nigeria National Petroleum Corporation, NNPC, Total and Agip joint venture with over 500,000 barrels per day output indicated that the company recorded a total of 76 spill cases in 2017.
A breakdown showed that 44 spill cases were recorded in the first half (January – June) of the year, leaving 32 cases for the second half (July – December).
The company attributed most of the cases to sabotage while a few were attributed to other factors in the region.
For instance, on January 3, 6, 13, 15 and 21 of 2017, Shell stated that it recorded six oil spills on land and swamp as a result of sabotage.
It indicated that: ”Recovery completed on 07 Jan 2017, assessment completed on 12 Jul 2017, clean-up and remediation planned for April 2018. Recovery completed on 11 Jan 2017, assessment completed on 17 Feb 2017, clean-up and remediation completed on 19 Sep 2017, site certification planned for February 2018.
”Recovery completed on 24 Feb 2017, assessment completed on 29 Apr 2017, clean-up and remediation planned for May 2018. Spill was contained on 14 Jan 2017, no recoverable oil found, assessment completed on 24 Mar 2017, clean-up and remediation not required, site certified on 04 Apr 2017.
”Spill was contained on 21 Mar 2017, no recoverable oil found, assessment completed on 24 Apr 2017, clean-up and remediation planned for January 2018. Spill was contained on 20 Jan 2017, recovery completed on 04 Apr 2017, assessment completed on 07 Feb 2018, clean-up and remediation planned for May 2018.”
Consequently, the company has in recent times attributed many allegations of environmental pollution by communities to sabotage, operational failure and other factors. Dissatisfied, some of the communities have headed to the courts in Nigeria and overseas.
The case of Bille and Ogale
In May 2015, UK solicitors, Leigh Day, filed oil spill claims against Shell Petroleum Development Company of Nigeria (SPDC) on behalf of Ogale and Bille communities in Rivers State.
Bille and Ogale are areas heavily impacted by crude oil theft, pipeline sabotage, and illegal refining, which remain the main sources of pollution across the Niger Delta.
Specifically, Ogale is in Ogoni land, where SPDC has produced no oil or gas since 1993, as access to the area has been limited following a rise in violence, threats to staff and attacks on facilities.
Leigh Day argued that SPDC owes a duty of care to Nigerian communities impacted by massive crude theft and the resultant pollution, and that RDS owes a similar direct duty of care to prevent oil spillage as a result of intentional third-party interference from damaging Niger Delta communities.
SPDC and RDS responded that an English court has no jurisdiction over these claims, arguing that claims by Nigerians against a Nigerian company about events in Nigeria, governed by Nigerian law, should be heard in a Nigerian court.
High court, appeal judgments
After listening to all parties, the High Court decided RDS had no legal responsibility for harm to the communities in the Niger Delta caused by criminal interference with the operations of a joint venture in which the Nigerian government owns a majority interest. As such, the claims have been dismissed.
The judge rejected Leigh Day’s claim that RDS owed a duty of care to the Nigerian claimants allegedly impacted by SPDC, and consequently there is no anchor defendant for the case against SPDC to be brought in England.
Not satisfied, Leigh Day appealed the decision and the appeal hearing took place November 21-23, 2017.
On February 14, 2018, the Court of Appeal handed down its judgment, dismissing the appeal.
Specifically, the Court of Appeal dismissed the claimants’ appeals and affirmed the lower court’s decision that the claims against RDS were bound to fail and should be dismissed.
This means that SPDC does not come into the jurisdiction of the English court, so the case against both RDS and SPDC should not proceed in England.
The judgment has attracted the comments of some stakeholders. For instance, General Manager External Relations for The Shell Petroleum Development Company of Nigeria Limited (SPDC), Igo Weli, stated that: “The Court of Appeal has rightly upheld the earlier decision that this case should not proceed in the English courts.
“Nigeria has a well-developed justice system that is capable of dealing with these claims. Both Bille and Ogale are areas heavily impacted by crude oil theft, pipeline sabotage and illegal refining, which remain the main sources of pollution across the Niger Delta. Litigation in courts unfamiliar with the law and realities on the ground ultimately does nothing to address the issue of criminal interference in the operations of a Nigerian company.
“SPDC works with a range of stakeholders, supporting the industry’s search for solutions to these complex issues.”
The President, Eleme General Assembly, Israel Gomba Abe, advised that, “The people of Ogale should try and litigate within the confines of Nigeria. The courts will hear them. Let them not entertain any fear of not having fair hearing or proper judgment.”
Meanwhile, Shell stated in its latest report that: ”Illegal refining and third-party interference are the main sources of pollution in the Niger Delta today. Third-party interference is the cause of 90% of the number of spills of more than 100 kilograms from The Shell Petroleum Development Company of Nigeria Limited operated Joint Venture (SPDC JV) pipelines in 2016.”
”Security in parts of the Niger Delta remains a major concern with persisting incidents of criminality, vandalism, threats from self-described militant groups, host community agitations and offshore piracy. There were renewed acts of sabotage by self-described militant groups on oil and gas infrastructure in parts of the Niger Delta in 2016, which severely impacted oil and gas operations. For example, export operations at the SPDC- operated Forcados Oil Terminal (FOT) were disrupted after three sabotage incidents in 2016.
”This resulted in loss of revenue, particularly for domestic producers who rely on the FOT for export. Facilities operated by both indigenous and international oil and gas companies were vandalised by attacks and other illegal activities such as crude oil theft, which led to a sharp decline in oil and gas production and incidents of environmental contamination. The consequences included a loss of revenue for the Federal Government of Nigeria and major disruptions to gas supply to power electricity for industry, businesses and public sector services.”
However, the Nigerian National Petroleum Corporation, NNPC, added in a statement that over 700,000 barrels per day of crude oil was deferred in 2016 alone due to pipeline sabotage.
The corporation added that from January 2017 till date, it recorded 27 breaching incidents on the Trans Niger Pipeline, TNP, adding that for the Trans Forcados Pipeline, TFP, with a capacity of 300,000bpd, 17 breaches were recorded in 2016.