SHELLED OUT – Shell loses another major litigation

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This is not the best of times for Shell Petroleum Development Company (SPDC), as the Court of Appeal in Owerri has asked the oil giant to pay N1.049 billion as special and general damages to Umuorie community in Ukwa West Local Government Area of Abia State for  degrading its environment. This judgment is coming after a Federal High Court in Asaba awarded N15.4billion as special and punitive damage against Shell in favour of Ejama-Ebubu community in Eleme Local Government Area of Rivers State for an oil spill incident that occurred in 1970.Lucky for Shell in the Umuorie case, the panel of three justices led by Justice AbubakarJega Abdul-Kadir set aside the initial N1.3 billion awarded to the community by a Federal High Court in Umuahia and in its place awarded N500million as general damages, while the sum of N540.9 million was awarded as a special damages.

The Umuorie community through its counsel had filed a suit at the Federal High Court, Umuahia, against Shell to press for compensation for crude oil and toxic effluent discharge into their communal land swamps.Other issues raised by the community was that of the blockade of their seasonal swamps used for farming and fish husbandry by a raised access road, heat radiation and acid rain arising from continuous gas flaring and consequential evaporation of toxic production water into the atmosphere, by Shell, thereby causing ecological damage.Shell was accused of establishing a large toxic production water containment area with crude oil presence surrounded by a wall, which collapses periodically, to spill the content into the fields and waterways of the community. At the same time, gas is burnt in a hellish inferno through a huge diameter pipe ignited at the tip with a resultant 100 or more feet flame and billowing smoke.The community said Shell had constructed this blast furnace horizontally near ground level over the bund wall areas to achieve a constant evaporation of the toxic water and burn carry-over crude oil therein into the earthly marine, human and animal atmosphere levels.

Justice Abdul-Kadir said the community through its counsel, Lucius Nwosu, SAN, proved that the vapours condense and with the prevalent rain forest climate these substances dissolve into the vegetation, fish ponds, underground water wells used for domestic use, roof tops, crops and animal food chains leading to the degradation of their environment by Shell.“There is evidence of heat radiation, toxic water seepage as well as acid rain from evaporated toxic water. All these were caused exclusively from the oil operations of the appellant in the respondents’ community”, he said.He recalled that Shell, which had filed the appeal, had denied liability and indeed positively challenged the community to prove their case. Shell was also said to have alleged that it commissioned scientists from the University of Calabar who produced a report showing that their operations in Umuorie could not have occasioned the damage complained against.“They pleaded this report and positively averred that they will rely on it at the trial. Regrettably, defendant (Shell) failed to produce it, or at least call one of the Calabar University scientists”,the judge said.

The community accused Shell of building access road to its various oil wells and raised some 1.3 meters above the ordinary ground level, thus, effectivelyblocking and stagnating water on either side of the adjoining lands by the artificial dam of the access road.The Judge noted that the community had proved that flooding and stagnation of water on their land arose from Shell’s access road and oil wells in its Isimiri flow station.

Justice Abdul-Kadir however resolved in favour of Shell the reduction of the N1.3 billion awarded as general damage to the community by the lower court. He contented the amount was high.“In the result, the appeal partly succeed, accordingly the award of N1.3 billion is set aside and in its place the respondents are awarded N500million as general damages. The award of N549,187,658 is as special damages is hereby affirmed”, he added.

The Armada gathered that Shell has already appealed against the Federal High Court ruling asking it to pay over N15billion to the Ebubu community. Sources in the company said the ruling has caused so much anxiety in the firm.

Meanwhile, the Movement for the Survival of the Ogoni People, (MOSOP) Press Officer Sunny Zorvah, says Shell should stop its legal filibuster, which has kept the case in court for almost a decade and deprived the community from justice for decades.So far, he said the Asaba Federal High Court ruling will help to bring justice to the people of the Niger Delta due to the continued reckless and irresponsible activities of the oil companies operating in Ogoni and other parts of the Niger Delta and their disregard of the rights of people who have been deprived of the right to self-sustenance, education and good life.“If Shell wishes to convince the World that it values the Ogoni and others of the Niger Delta and not just profits, then it should take elementary lesson from the Gulf of Mexico BP Spill where even before ascertainment of cause and containment of the spill, local fishermen are being compensated to the extent that some affected fishermen say they got more than their usual revenue from fishing. Our people deserve no less”, says Zorvah.

A joint mission report by the WWF-UK and IUCN Commission on Environmental, Economic and Social Policy, titled ‘Niger Delta Natural Resource Damage Assessment and Restoration Project, Phase 1 Scoping Report to Nigerian Federal Ministry of Environment and Nigeria Conservation Foundation, unpublished, May 2006’, concluded that: the Niger Delta has become one of the most petroleum-polluted environments in the world. The report estimates that 9 to 13 million barrels (1.5 million tons) of oil have been spilled in the Delta in the past 50 years, equivalent to the full volume of oil spilled from the Exxon Valdez cargo ship in Alaska in 1989 every year. It was also discovered that the cost of environmental damage resulting from five decades of oil and gas activities, including habitat degradation, pollution from gas flaring and operational discharges, and increased population pressure from immigration – runs to tens of billions of dollars.

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