Midweek, Justice Ibrahim Buba of Federal High Court, Lagos, convicted Ms. Ibukun Awosika, Dr. Adesola Adeduntan, the chairman and Managing director of corporate Goliath First Bank Plc., respectively, as well as the bank for defying debt payment of N122 billion bond it guaranteed to oil spill-ravaged Ejama-Ebubu Community in Ogoni land, Rivers State, on behalf of kindred Goliath Shell Petroleum Development Company of Nigeria Limited. Louis Achi reportsÂ
As in historical lore, the fight between the giant Philistine warrior Goliath and young callow David was clearly a mismatch. But a third immutable force decided the outcome. David won. Today, while the character cast of that significant bygone narrative may appear different, the central principle remains unchanging – that justice will always trump Philistinian designs.
As it were, in the long drawn face-off between the oil-spill ravaged Ejama-Ebubu Community in Ogoni land, Rivers State and two corporate
Goliaths – Shell Petroleum Development Company of Nigeria Limited and First Bank Plc who favoured a dodgy legal game, a third force, midweek decided the outcome of the mismatched fight. That force was justice, represented by the judiciary. A much often unfairly pilloried institution, the judiciary has, despite the challenges, often demonstrated its capacity to rein in impunity from the powerful against the weak.
The Court Rulingâ€¦
After some long-running, enervating legal gymnastics and theatrics,Â a Federal High Court, Lagos,Â on Wednesday, convicted Ms. Ibukun Awosika, Dr. Adesola Adeduntan, the chairman and Managing director of First bank Plc, respectively, as well as the bank for their refusal to honour the payment of N122 billion (initially N17 billion) bond guaranteed by the bank. The N122 billion bond is in respect of the judgment debt against Shell Petroleum Development Company (SPDC), in an oil spill suit instituted by Ejama community in Ogoniland, Rivers State.
The court presided over by Justice Ibrahim Buba, however suspended the serving of their conviction, for three months, to enable them purge themselves of the contempt. The judge however stated that if byÂ September 6, 2018, the convicts fail to purge themselves of the contempt proceedings, they shall immediately be sent to prison.
From a Certified True Copy of the June 6, 2018 ruling obtained by THISDAY, signed by the presiding Judge, Hon. Justice Ibrahim Buba, and Registrar Alkesi C.N. and stamped by Mrs. O.Y. Thomas, a Principal Executive Officer, Federal High Court, Ikoyi, Lagos, the court ordered as follows:
â€œ1) Accordingly and without any formality an order is hereby made for the Respondents to be committed to prison for 3 months until they purge themselves of the contempt.
â€œ2) The court in exercise of its direction by dint of Order 35, Rule 6 (1) also suspends the execution of the order of committal for a period of 3 months on the condition that the Respondents purge themselves of the contempt and make good their undertaking to this court failing which they shall be committed to prison with effect fromÂ 6/9/2018.â€
In convicting First Bank, its chairman, and managing director, Justice Buba had dismissed all the applications filed by their Chief Wole Olanipekun (SAN), describing contempt proceedings as abuse of court process and been statue bar.
It would be recalled that 10 indigenes of Ejama community in the substantive suit had sued Royal Dutch Shell Plc, Netherlands, Royal Dutch Shell Plc, United Kingdom, and SPDC, over alleged oil spills that occurred when Shell operated in the community, at the Federal High Court in Port Harcourt.
Justice Buba had in his judgment in 2010, awarded N17 billion to the representatives of the Ogoni people and equally granted the Ejama chiefs 25 per cent interest charge on the principal sum of about N17 billion. SPDC had 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 Shellâ€™s bankers, First Bank Plc, to provide a guarantee of the judgment sum. This condition was complied with. But Shellâ€™s appeal failed at the Court of Appeal on technical grounds, ostensibly because it filed its processes out of time and without regularising them.
Consequent upon the failure of the appeal of SPDC at Appeal Court, and the refusal of First Bank Plc, to honour the payment of judgment debt which the bank had early guaranteed through a bond, the applicants, through their lawyers, Chief Lucius Nwosu (SAN), Lawal Rabana (SAN) and Ken C. Njemanze (SAN) filed Form 48 and Form 49 (committal to prison) against the bank, its chairman and managing director.
However, ruling could not be delivered in the contempt proceedings untilÂ Wednesday, due to several applications that were filed by the contemnors, Central Bank of Nigeria (CBN) and SPDC which sought to be joined as party in the suit. Meanwhile, Justice Buba, has adjourned ruling on the garnishee proceeding against First Bank tillÂ June 19.
It also worth recalling that in November 2016, for failing to adopt measures to safeguard the ecosystem, a Federal High Court, Lagos presided over by Justice Ibrahim Buba awarded N10 billion against Mobil Producing Nigeria Unlimited in a case that lasted 14 years. In the 1998 oil spillage case, the sum was in favour of the fishing communities and cooperatives of Lagos. Chief M. A. Ajanaku and others filed the suit on their behalf.
They had sought a declaration that the defendantâ€™s continuing failure, neglect and refusal to undertake post impact remediation measures to restore the ecosystem of the lands and waters of life inhabited by the plaintiffs and where they carry on their occupation of fishing and fish farming, is unlawful, unconstitutional and a violation of the Plaintiffsâ€™ right to life, and right to live in an environment favourable to their socio-economic development as guaranteed under Section 33 of the Nigerian Constitution, 1999, Articles 22 and 24 of the African Charter on Human and Peoples Rights (Ratification and Enforcement Act Cap 10, Laws of the Federation of Nigeria 1990.
The plaintiffsâ€™ had also prayed the court to hold that the document purporting to release the Defendant from paying due compensation to the Plaintiffs who signed the documents and or from effecting post-impact remediation programmes to restore the Plaintiffsâ€™ environment is null and void on grounds that the document relates to an unconscionable bargain which was signed under economic duress and in breach of statutory provisions.
Amongst other reliefs, they also sought order that the Defendant should commence post impact remediation programmes in respect of the Plaintiffsâ€™ lands and waters polluted by the Defendantâ€™s Idoho oil spill and do all such acts and things to clean up the environment of the Plaintiffs and to restore same to its original state.
The Ejama-Ebubu Story
Ejama-Ebubu community in Eleme Local Government Area of Rivers State was once a pristine paradise of nature, blessed with huge crude petroleum reserves. But decades later, predatory foreign oil exploration and exploitation practices have turned this gift into a curse.
This struggle for justice actually started way back in 1991. It was originally instituted at the Rivers State High Court, Nchia Division, by six indigenes of Ogoniland against the Royal Dutch Shell Plc, Netherlands, Royal Dutch Shell Plc, United Kingdom, and Shell Petroleum Development Company (SPDC) of Nigeria Limited.Â Significantly, the plaintiffs alleged that it was the same case that led to the Ogoni struggle championed by the late Mr. Ken Saro Wiwa.
Almost 20 years later, in 2010, ten mettlesome indigenes of Ejama Community in Ogoniland, on behalf of their ravaged territory seized the bull by the horns. Again, they sued Royal Dutch Shell Plc, Netherlands, Royal Dutch Shell Plc, United Kingdom, and SPDC at the Federal High Court in Port Harcourt for devastating oil spills that occurred when Shell operated in the community.
Apparently moved by the communityâ€™s horrific plight as well as adduced facts, the Federal High Court in Port Harcourt in 2010, awarded N17 billion against Shell for the devastations its operations wrought in Ejama-Ebubu. Bankers to Shell, FirstBank guaranteed to pay this sum.
The court equally granted the Ogoni chiefs 25 per cent interest charge on the principal sum of about N17 billion. SPDC then appealed 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 Shellâ€™s bankers, First Bank to provide a guarantee of the judgment sum.
The hapless Ejama-Ebubu community remained completely at sea striving to make sense of why the First Bank remained reluctant to pay the money when it was the body which voluntarily pledged to undertake the payment of the judgment debt should Shell lose at the Court of Appeal on December 20, 2012.
On June 6, 2017, Shellâ€™s appeal was unanimously dismissed at the Court of Appeal with a N300,000 cost. Part of their processes to recover the judgment debt from the bank is the contempt proceedings they have instituted against the Chairman of the bank, Mrs. Ibukun Awosika for the court to commit her to prison for refusing to pay them the money. Earlier, Justice Buba adjourned the case to determine which applications would be heard first. ButÂ on Wednesday, his judgemnet put paid to the matter.
From THISDAY checks and sighting of the guarantee dated December 17, 2012, the First Bank had declared that: â€œPursuant to the foregoing, the bank hereby guarantee to pay to the respondents the judgment sums only if the aforesaid appeal to the Court of Appeal fails and the appellants become liable in law to pay the judgment sums therein.
â€œThe guarantee and the bankâ€™s liability thereunder shall be subject to all due process of law and payment by the bank under the guarantee will only be made upon receipt by the bank of the respondentsâ€™ written demand accompanied with duly certified copy of the judgment of the Court of Appeal, stating that the judgment sum is due and payable by the appellants in the matter.
â€œThis guarantee shall become operative and enforceable from the 17th day of December 2012 and shall remain valid until 14 days after the determination of the aforementioned appeal at the Court of Appeal, after which it shall terminate, whether or not the original bank guarantee is returned to the bank for conciliation, provided however that the guaranteed shall immediately lapse and become void if the appeal is successful.
â€œThis guarantee is limited to the specific judgment sums specified above, it is not a continuing guarantee and shall not extend to any other sum payable by the appellants to the respondents neither shall it extend to any other transaction between them. This guarantee shall be governed by and subject to all the laws of the Federal Republic of Nigeria and shall not be construed to fetter or limit the constitutional rights of the parties, including their right of appeal.â€
Whoâ€™s Hon. Justice Ibrahim BubaÂ
Hon. Justice Ibrahim Nyaure Buba was born in Njawai, Taraba State on the Mambilla Plateau. He had his early education in Government Secondary School Gembu, Taraba State and his LLB (Hons) from the University of Maiduguri, Nigeria, where he graduated with a Second Class Upper grade. He graduated from the Nigerian Law School with a Second Class Upper grade and was awarded with the Sir Lionel Brett award as the best graduating student in Criminal Procedure. He was called to the Nigerian Bar in 1986.
He was elevated to the Nigerian bench in January 2004. He was the pioneer presiding Judge of the Federal High Court in Katsina, Nigeria and has served in different divisions of the Federal High Court including Port Harcourt, Asaba, Lafia and Jos. He is presently a Judge at the Lagos Division of the Federal High Court of Nigeria.
Prior to his appointment, he was a prosecutor at the Ministry of Justice, Benin, Nigeria, and a lecturer at the University of Maiduguri. He worked for various law firms across Nigeria, and later founded and became principal partner of Fama Firm, Kaduna, Nigeria in 1989 and grew the firm to be one of the foremost law firms in Northern Nigeria. Within this time, he was a foremost criminal defense Lawyer, taking part in various landmark criminal trials in Nigeria.
He has delivered various landmark decisions in commercial law during his time as Federal High Court Judge and attended numerous international conferences in Washington, New York, Singapore and the United Kingdom.
At press time, the main sentiment coursing through the Ejama-Ebubu Community is rare elation and expectancy. After two decades of a mismatched fight with two Goliaths, justice has visited their ravaged land. Many communities have indeed not been so lucky.