By Ebun-Olu Adegboruwa, SAN

INTRODUCTION

Oil, gas and other mineral resources are ordinarily, natural sources of wealth and well-being of any people, when properly harnessed for the common good. Since 1956 or thereabout when oil was said to have been discovered in Nigeria, the people have paid the supreme sacrifices for this economic misfortune, as it were. In their desperation for the exploitation and exploration of oil, gas, mines and minerals, some foreign powers and their local collaborators have embarked upon ruthless economic policies that have left indelible scars upon the host communities, with sordid tales of catastrophic devastation, mass and prolonged pollution and unmitigated starvation.

In some cases, it has become the major source of violence and bloodshed against the host communities, including the heinous crimes of terrorism, banditry and kidnapping. Some years back, I was directly involved in the Ogoni struggles as counsel, during the trial at the Ogoni Civil Disturbances Tribunal and the subsequent process of securing bail for the Ogoni 19. I undertook detailed research for my office then on behalf of the late Chief Gani Fawehinmi, SAN and the documented histories of the devastating impact of oil and gas exploration in Ogoni land alone, left me in tears. I also undertook a detailed study of Awoye Community in Ondo State, where I witnessed firsthand the negative effects of gas flaring and oil and exploitation.

The mangrove had become withered, economic trees dried up in response to constant gas flaring and the people were left with no other option than to remain in the degraded environment, innocent children bathing and swimming in waters and streams polluted with crude that normally escaped from adjoining oil wells due to leakage and pipeline ruptures. I later had the golden opportunity of prosecuting cases on behalf of certain communities and associations in Lagos State that were affected by the pipeline fire in Ejigbo and Atlas Cove, all revealing the merciless destruction of human lives and assets.

The massive spillage that occurred in Eket, Akwa Ibom State many years ago, flowed through the coastline of Rivers, Bayelsa, Delta, Edo, Ondo and Lagos States, leading to loss of business for many fishermen, beside the environmental disaster that attended that unfortunate act of corporate negligence. Our law reports are replete with cases upon cases which detail the endless struggles of the people of the Niger-Delta against gas flaring, crude and outdated modes of oil and gas exploration and the hostile policies of international oil companies and their local agents, all of which have left the people impoverished and the environment permanently devastated beyond restoration.

It was thus a relief when the Supreme Court thundered from its authoritative height in this case, describing oil pollution directly by its wicked name. Of particular mention is the linkage between oil pollution and its harmful effect on the right to life as guaranteed by God Himself and also under section 33 (1) of the Constitution. The charge to all those affected by the exploration and exploitation of mineral resources across the nation is to mobilize themselves to stand firm to defend their customary heritage, resist all primitive acts of economic profiteering and take up cases in court to seek redress and to end the malaise. As it is often said, if we dare to struggle, we also dare to win.

THE FACTS OF THE CASE

The facts of this case are as reported in Shell Petroleum Development Company (Nigeria) Limited v Okey (2026) 11 NWLR (Pt.2050) 93. The thrust of the respondents’ case was that their family land, situate in Eneka Community in Obio/Akpor Local Government Area of Rivers State, was polluted by an oil spillage from the appellant’s Trans Niger Pipeline (TNP) at 24” Nkpoku to Bomu Trunkline at Eneka, on or about the 6th August, 2006. The gravamen of their complaint was that the rupture of the appellant’s oil pipeline impacted negatively on their family’s large expanse of land, farm lands and economic trees and crops thereon. The respondents alleged that they suffered severe, extensive damages and untold hardship as a result of the spillage.

By a Writ of Summons filed on 13th November 2006 the respondents claimed against the appellant special and general damages in the sum of N20,000,000.00 and interest on the said sum at the rate of 20% per annum till the date judgment is satisfied. The appellant filed a statement of defence wherein it raised the defence of sabotage. In proof of their case, the respondents called two witnesses and tendered documentary evidence. The appellant called three witnesses and also tendered documentary evidence. At the close of evidence and addresses, the trial court granted the respondents’ claims in part. The appellant was dissatisfied with the decision and it appealed to the Court of Appeal which allowed the appeal in part. The appellant was dissatisfied with the decision of the Court of Appeal and it further appealed to the Supreme Court.

The respondents raised a preliminary objection to the competence of grounds 1, 2, 3 and 4 of the appellant’s notice of appeal on the ground that the appellant did not seek and obtain leave of court before filing them when they were on mixed law and facts. The preliminary objection did not challenge grounds 5 and 6 of the notice of appeal. In determining and dismissing the appeal, the Supreme Court considered the provision of section 11 (5) and (6) of the Oil Pipelines Act which states as follows:

“(5) The holder of a licence shall pay compensation –

to any person whose land or interest in land (whether or not it is land in respect of which the licence has been granted) is injuriously affected by the exercise of the right conferred by the licence, for any such injurious affection(a) not otherwise made good; and
to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work, structure or thing executed under the licence, for any such damage not(b) otherwise made good; and

to any person suffering damage (other than on account of his own default or on account of the malicious act of a third person) as a consequence of any breakage of or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good, and if the amount of such compensation is not agreed between any such person and the holder, it shall be fixed by a court in accordance with(c) Part IV of this Act.

For the removal of doubt, it is hereby declared that the powers granted to the holder of a licence under this Act shall be exercisable only subject to the provisions (6) of this Act and of any other enactment or rule of law.”

JUDGMENT OF THE SUPREME COURT

On Framework that Must be Followed in the Event of an Oil Spill:

Section 11(5) and (6) of the Oil Pipelines Act has provided a framework in the event of an oil spill by a licensee affecting a land owner and the framework must be followed. In the aftermath of the leakage in the appellant’s oil pipeline that occurred on 6th August 2019 which affected the respondents’ farmland and the crops planted thereon, the respondents, through their counsel, wrote two letters, exhibits P1 and P2, to the appellant demanding compensation of N50 million for the damage done to their land. The letters were written in an attempt to reach a compromise on the compensation to be paid. The appellant failed to respond to the letters. The respondents having done what was demanded of them by section 11(5) and (6) of the Oil Pipelines Act, the appellant could not take benefit of its failure to respond to their demand for compensation to deny them of their right to approach the court.

On Procedure for Payment of Compensation for Oil Spillage Under Oil Pipelines Act:

The import of the provision of section 11(5)(c) of the Oil Pipelines Act, as regards payment of compensation, is that a person (a property owner) is entitled to compensation from a holder of a licence for any injurious effects, flowing from oil spillage, which is not his (the person’s) default or malicious act of a third party, provided that if the amount of such compensation is not agreed between such a person and the holder, then it should be fixed by a court. This exudes a clone of the doctrine of exhaustion of local remedies which is usually planted firmly in modern day statutes. Indeed, it is a classic exemplification of it. In the instant case, in exhibit P1, the respondents demanded N50 million “as adequate compensation to assuage the damage done to farms or farm lands as the crude had destroyed the soil fertility for decades to come”. Exhibit P2 was a reminder which rehearsed the persistent hardship occasioned by the pollution. It is discernible from the unique phraseology of the two correspondences, mentioned above, that the respondents offered a proposal which was tailored towards reaching a n agreement as to the quantum of compensation to be paid to them. Curiously, the appellant ignored and snubbed them with their request which was an ample demonstration that the amount of compensation was not agreed inter se. Thus, the respondents satisfied the doctrine of local remedy requirement of section 11(5)(c) of the Oil Pipelines Act, and they could approach the court to fix the amount of compensation accruable to them from the oil degradation of their land. In effect, the respondents’ suit was not caught by the doctrine of exhaustion of internal remedy as to disrobe the court of the jurisdiction to attend to their claim. (Pp. 149, paras. F-H; 151-152, paras. C-A)

NOTABLE PRONOUNCEMENT:

On Relationship Between Citizens’ Fundamental Right to Life and Socio-Economic and Environmental Rights:

Per OGBUINYA, J.S.C. at pages 167-168, paras. G-C:

“My noble Lords, let me place on record, perforce, that the importance of socio-economic rights cannot be overemphasized in the life of any citizen. A citizen’s inalienable fundamental right to life, which is enshrined in Section 33 of the Constitution, as amended, the fons et origo of our laws, cannot be properly harnessed in the absence of corresponding hospitable environment, water, air, land, forest and wild life, social lubricants, which the State, as a matter of duty and responsibility, shall protect, improve and safeguard under the provisions of section 20 of the selfsame Constitution, as amended, for the benefit of its citizenry. Hence, the two species of rights share a symbiotic relationship. It smells of impossibility for any person to actualize and enjoy his right to life when his environmental rights, which oxygenate and nourish life, have fallen into eclipse. Thus, the grant of special damages, which was aimed to mitigate the corrosive and toxic effects of the oil spillage against the respondents, was a quintessence of a judicial and judicious award which cannot magnet any ounce of reprobation from this court.”

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