Supreme Court Judgement: Ogoni Community Celebrates, Set for N134bn from Shell

2019-01-18
THE GUARDIAN Newspaper- Davidson Iriekpen


The central issue at the Court of Appeal was a finding by that Court as affirmed by the Supreme Court that Shell Companies as Appellants did not file a brief of argument as required by law. It was also found from the records that Shell Companies never applied for leave of that Court to file an Amended Brief of argument nor were they granted such leave by Hon My Justice Tsamiya led panel of that court on 9th Feb .2013 contrary to Shell’s claim on oath in that regard.

If Shell did not file a brief of argument, how can they file an Amendment to a non existent brief ?
It is against these findings of fact by the Court of Appeal that an aggrieved Shell took out an appeal to the Supreme Court.
It was the convention of the Ogoni respondents that for an appeal against factual findings to be valid, leave of the Court of Appeal or failing them, the Supreme Court must be first sought, had and obtained under the Constitution of the Federal Republic of Nigeria. This was not done and as a result the Appeal was incurably incompetent and was accordingly dismissed with N500,000.00 costs against Shell.

For the people of Ejama Community in Eleme Local Government Area of Rivers State, the judgment of the highest court in the land, the Supreme Court, penultimate Friday was a great relief. For about 29 years, they were in court seeking redress for environmental degradation caused by crude oil exploration in their area by Shell Petroleum Development Company of Nigeria Limited (SPDC). To them, it was necessary to fight since the devastation of their environment had caused them a lot. Not only were their resources such as water and soil destroyed, their ecosystems, habitat and wildlife also affected through pollution.

To this end, their joy knew no bound when news filtered into the community that the Supreme Court had delivered judgment in their favour. Delivering a ruling on the appeal filed by SPDC which prevented First Bank of Nigeria Limited from paying the community a judgment debt now totalling N134 billion to the plaintiff community, the court only dismissed the case, but chastised the oil giant for wasting the time of the court.

Justice Kumai Bayang Akaahs who read the ruling on behalf of other justices led by the Chief Justice of Nigeria, Justice Walter Onnoghen, said the notice of appeal filed by the oil giant was incompetent. He said motion filed on July 16, 2018 had no leg to stand on it ought not to have been filed and dismissed it in its entirety. The apex court consequently awarded N500,000 against Shell for filing an incompetent appeal in the court.

The suit commenced in 1991 before a Rivers State High Court sitting at Nchia Division, when the Ejama community 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 in the community in 1970s. Judgment was entered for the sum of N6billion in favour of the community by the Nchia High Court. That judgment was conceded on appeal because the Supreme Court had in a sister case decided that states High Court have no jurisdiction in oil related matters.

The plaintiffs in 2001 refiled the suit at the Federal High Court in Port Harcourt. After listening to the submissions of the parties in the suit, the presiding judge, Justice Ibrahim Buba, in his judgment in 2010, awarded N17 billion to the representatives of the Ogoni people. The court equally granted the Ogoni chiefs 25 per cent interest charge on the principal sum of about N17 billion.

SPDC then appealed against the judgment and applied for a stay of execution of the judgment pending the appeal. As a condition for granting the stay of execution, the court required Shell’s bankers, FirstBank, to provide a guarantee of the judgment sum plus interest. This condition was complied with. But Shell’s appeal failed on merit because it failed to file a brief of argument in support of their appeal but instead claimed that they were granted leave to file an amended brief of argument, which the Court of Appeal found not to be correct.

Against the agreement reached, Shell proceeded to the Supreme Court where its lawyer, Olanipekun (SAN), now leading Olawale Akanni (SAN) who was the company’s lawyer at the Court of Appeal when that appeal was dismissed, filed a fresh application asking for leave to amend the original notice of the appeal filed by Akoni at the Port Harcourt Court of Appeal registry in order for him to argue fresh points not raised at the court below and in order for him to argue 36 additional grounds of appeal.

Upon the new application at the apex court, the respondents’ lawyer, led by Lucius Nwosu (SAN), filed a preliminary objection. It must be noted that the appellants against whom judgment was entered at the court of appeal are Shell companies – Shell International BV of the Netherlands, Shell International of UK, and Shell Development Company of Nigeria Ltd.

Nwosu, assisted by Lawal Rabana (SAN) and others, argued that the findings of the Court of Appeal dismissing their appeal were based on facts, adding that the law is that an appeal must arise out of the decision complained against. He stated that if the decision complained against was based on findings of fact, the constitution requires that you cannot appeal them except you first seek leave of the Court of Appeal. The respondents’ lawyer contended that since that notice of appeal at the Court of Appeal was filed without leave, it meant that the notice was incompetent and cannot be amended because it would mean putting something on nothing and expecting it to stand.

But Justice Akaahs citing a plethora of authorities to back up his submission, held that since the notice of appeal filed by Shell sought to be amended was incompetent, no valid amendment could be effected because issues of fact or mix law and fact were raised in the original notice of appeal with leave of court.
The Supreme Court justice agreed with the submission of the lead counsel to Shell, Olanipekun, that an appellant who has a valid and subsisting appeal can seek the leave of court to do so, adding that in the instant case, there is no such valid notice of appeal that could be amended.
“Where the grounds of appeal are based on mixed law and facts and the leave of either the Court of Appeal or the Supreme Court is not sought and granted, the appeal is incompetent and neither the Court of Appeal nor the Supreme Court will have any jurisdiction to entertain the appeal.

“As the notice of appeal sought to be amended was incompetent, no valid amendment could be effected even though issues of jurisdiction were raised in the proposed notice of appeal.
“Learned senior counsel for the appellants stated that correct legal position that the appellant who has a valid and subsisting appeal can seek the leave of court to do so but in the instant case, there is no such valid notice of appeal that can be amended, Justice Akaahs held.

However, while the case was still pending at the apex court, sensing that Shell was using delay tactics to prevent FirstBank from paying the judgment creditors the N17billion judgment debt, in December 2017, they commenced garnishee proceedings at the Federal High Court 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 interest charge per annum to arrive at the sum of N122,533,403,392. In January 2018, Justice Allagoa granted them a temporary order (garnishee nisi) ordering the CBN to pay them the sum from FirstBank’s account with it.

But the CBN asked the court not to make absolute the temporary garnishee order it granted Ogoni chiefs representing the Ogoni community, compelling it to pay the sum of N122.53 billion on behalf of FirstBank. The apex bank’s lead counsel, Professor Fabian Ajogwu (SAN) while responding to the garnishee proceeding, stated that making the order absolute and compelling the CBN to pay out the huge sum would be against the interest of justice because the matter was still pending at the Supreme Court.

He also argued that compelling the CBN to pay the N122.53 billion from FirstBank’s funds domiciled with it could have far-reaching consequences for Nigeria’s oldest and biggest lender by assets and deposits, and a systemic impact on the rest of the financial system and wider economy.

With the dismissal of the Shell’s appeal last Friday, it is not clear if the application filed by the Ogoni chiefs seeking garnishee absolute against FirstBank and reserved for ruling by Justice Ibrahim Buba of the Federal High Court in Lagos would not be granted.
With the dismissal of the Shell’s appeal penultimate Friday, it is not clear why the application filed by the Ogoni chiefs seeking garnishee absolute against FirstBank and reserved for ruling by Justice Ibrahim Buba of the Federal High Court in Lagos would not be granted.

Reacting to the Supreme Court judgment yesterday, Nwosu said: “With this decision, therefore, all arguments of FirstBank that Shell was on a further appeal at the Supreme Court for which they were reneging from honouring their obligation that was due by virtue of their guarantee has completely collapsed and as of today, the guarantee is standing at N134 billion, contingent liability of First Bank’s assets. And that there is a garnishee order nisi attaching First Bank’s money at the CBN which since had been served on the Central Bank.

“With this judgment now, the central bank is under an obligation to set aside that amount of money with interest still running from First Bank’s account to satisfy that judgment debt based on what the law says under garnishee orders.”

 

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