Shell Challenges Judgement Ordering Halt to Gas Flaring in Niger Delta

Shell Petroleum Development Company (SPDC) has filed an appeal challenging a judgement of the Federal High Court, Benin City, ordering a halt to the continued flaring of gas in Iwhrekan, Delta State.

Justice J. Nwokorie of the Federal High Court, Benin, had in a case instituted by Mr. Jonah Gbemre on behalf of Iwhrekan community ordered SPDC to stop the development forthwith.

The community hosts the Otorogu gas plant, in Ughelli South, Delta State, where Shell has been flaring gas for decades.

In the suit, aside the SPDC, the Nigerian National Petroleum Corporation (NNPC) and the Attorney General of the Federation (AGF) were joined as defendants

Nwokorie had further declared that the actions of the first and second respondents (SPDC and NNPC) in continuing to flare gas in the course of their oil exploration and production activities in the applicant’s community was a violation of their fundamental rights to life.

In addition, the judge noted that it was a violation of the complainants’ right to a healthy environment and dignity of human person guaranteed by Section 31 and 34(1) of the Constitution of Federal Republic of Nigeria, 1999.

But the community in the suit marked FHC/B/CS/53/05 sought the court to declare that the constitutionally guaranteed fundamental right to life and dignity of human person provided by the relevant sections of the constitution had been breached.

Specifically, the community stated that sections 33(1) and 34(1) of the 1999 Constitution, as reinforced by Acts 4, 16 and 24 of the African Charter on Human Procedure Rules, inevitably included the right to clean, poison-free, pollution-free and healthy environment.

It urged the court to make a declaration that the actions of the first and second respondents in continuing to flare gas in the course of their oil exploration and production activities in the applicant’s community was a violation of their fundamental rights to life. The community added that the flaring of gas further impinges on the dignity of the human person guaranteed by sections 33(01) and 34(1) of the constitution of Nigeria and reinforced by Acts 4, 16 and 24 of the African Charter on Human Procedure Rules (Ratification and Enforcement) Act Cap, A9 Vol. I Laws of the Federation of Nigeria, 2004.

Iwhrekan community urged the court to make: “A declaration that the failure of the 1st and 2nd respondents to carry out environmental impact assessment in the applicant’s community concerning the effects of their gas flaring activities is a violation of section 2(2) of the Environment Impact Assessment Act, Cap. E12 Vol. 6 Laws of the Federation of Nigeria, 2004 and contributed to the violation of the applicant’s said fundamental rights to life and dignity of person.

“And an order of perpetual injunction restraining the 1st and 2nd respondents by themselves or by their agents, servants, contractors of workers or otherwise howsoever from further daring of gas in the applicants said community.”

Dissatisfied with the judgement, SPDC filed an appeal at the Court of Appeal sitting in Benin with a suit No. CA/B/419/2017, asking the appellate court to determine if the lower court judge had the jurisdiction to entertain the suit.

Shell is also appealing on the ground that the evidence relied upon for the judgement by the trial judge were not scientifically proven by Gbemre and Iwhrekan community before judgement was given in their favour.

The appeal suit, which was slated for hearing January 20, 2022, at the Court of Appeal, Benin, has SPDC Ltd., and Nigerian NNPC as applicants, as well as Gbemre (for Iwhrekan community) and attorney general of the federation as respondents.

Speaking on the matter, lawyer to Iwhrekan community, Chima Williams of Chima Williams & Associates Law Firm, said they were ready to defend the position of the law and ensure that justice was served to the people of the community.

He said, “On the 20th of January, the case of Shell against Jonah Gbemre (for Iwhrekan community) and others will be coming up at the Court of Appeal in Benin City for hearing.

“We are here to intimate Iwhrekan community of the continuation of the case so that those who want to be in court to hear and know what is going on will have the opportunity to do so.”

He added that in 2005, Williams recalled that the court had ordered that the continued flaring of gas in Iwhrekan community by Shell violated the citizens’ rights to life and dignity of the human person, and ordered Shell to stop gas flare immediately.

Williams stated, “In that judgement, the court said the continued flaring of gas contributes to Nigeria’s contributions to in-house emission that leads to climate change.

“Shell is arguing that we should have proved our case scientifically. Ours is to defend the judgement which has been declared in our favour at the appeal level.”

Emmanuel Addeh in Abuja

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