VANDALIZATION OF PETROLEUM PIPELINES IN NIGERIA

WHO VANDALIZES PIPELINES IN NIGERIA?

“The corporate culture of the Defendants seems to treat every rupture of pipeline as a case of vandalisation” so pronounced the Honourable Justice C.E. Archibong the presiding Judge of the Nigerian Federal High Court in the case of the community of Ubahu in Nkanu East Local Government Area of Enugu State, Nigeria (represented by their traditional ruler) against the Nigerian National Petroleum Corporation and its pipelines and marketing subsidiary Pipelines and Products Marketing Company PPMC. The Plaintiffs brought an action against NNPC/PPMC claiming N1, 240,000,000 in special and general damages suffered by the plaintiffs’ Ubahu Town from oil spillage from Defendants’ pipelines which occurred between 28th April 2001 and 10th May, 2001 on the bank of the Idodo River in Nkanu East L.G.A. the spillage resulted in pollution, damage and destruction of aquatic life, fish nets and traps, farmlands, crops, drinking water, and vegetation in the environs of Ubahu Town & its residents.

The plaintiff community was represented by Barrister Ndubisi Chuks Nwasike of First Counsel Firm, Victoria Island, Nigeria; while the Defendants were represented by the law chambers of OCJ Okocha (Senior Advocate of Nigeria), Port Harcourt, Nigeria.

The Honourable Justice Charles Archibong in giving judgment for the Plaintiffs had observed that “…the Defendants’ arguments and evidence that are tendered are not particularly helpful… their admitted lack of familiarity with the section of pipeline, and ignorance about the faulty construction of said section of pipeline there is not much of illumination. Their parroting of NNPC/PPMC maintenance regime and procedures is not indicative of anything with bearing to the section of pipeline that was ruptured resulting in spillage”.

Mr. Nwasike had submitted that the “Defendants failed to adopt standard precautions to guard against a recognized risk. Defendants continue to maintain the pipelines without regard to oil safety regulations and standards”. He argued that this presented an appropriate situation for the Courts to order a perpetual mandatory injunction compelling NNPC & PPMC to eliminate the risk and maintain its pipeline in the proper manner as the Defendants have unreasonably failed to achieve the standard of care required in its operations, despite the enormous resources available to them and that unless so compelled by the Court the Defendants would continue to pay lip service to the safety obligations and concomitantly its duty of care to the Plaintiffs.

He further argued that the pipelines were recklessly kept and maintained and that even the repair claimed to have been carried out after the spillage was unprofessionally, carelessly and imprudently carried out. The risk of lethal consequences from further leakage is therefore high and substantial for which an injunction against the defendants should be granted. The plaintiffs led evidence to show that NNPC had not maintained or installed their pipelines in line with the laid down rules and regulations guiding such through evidence by their community leader, an expert and the post spillage report of the Enugu State Environmental Agency.

An expert witness in the case led by Mr. Nwasike had testified that the Nigerian regulators “for a variety of reasons … do not do as good a job as they should on regulation and for this reason there is a large measure of self regulation by the operators”. The expert had stated that when these standards are not followed the pipelines begin to corrode at a rate faster than they would have corroded. He also explained that where the regulations and standards are not followed, the operator would be aware that damage could result to the public. Considering the pipelines in question the expert stated that “it is likely the pipelines will continue to corrode and the environment will be seriously and severally impaired and the community safety will also be at risk. The operator being aware that there is a world wide increasing shortage of farm land needs to take extra precautions to protect the public and his asset”.

In the course of the trial the Court had to pay a visit to the locus in quo (the site where the spillage occurred). The judge observed in the judgment that there was no sign of vandalisation and that “From what I saw on the day (on the day of visit to site) the pipelines are not in a state that they should be… if a repair was done it was not completed. A pipeline in which the metal of the pipe can be seen cannot be said to have been repaired”.

NNPC brought witnesses comprising experienced and long serving members of Defendants’ staff, hired experts and contractors to testify in their defense in the suit. The defendants by their testimonies through their witnesses claimed that they were operating and maintaining the pipelines in line with requisite regulations and in fact operated with stricter regime than is required by the regulations. They also claimed that “Vandalisation of pipelines in this area is a re-occurring exercise” and that they had never seen any case of rupture in Enugu state only cases of “vandalisation”. However under cross examination by Plaintiff Counsel Mr. Nwasike, the first Defendant Witness admitting “the area under jurisdiction has many Rivers. The pipelines are buried under these many rivers. I do not know why the Idodo crossing of the pipeline is not submerged or buried”.

The Court after hearing the arguments of Counsel on both sides found that the question arising was whether there was negligence occasioning a rupture in the defendants’ pipeline at Ubahu resulting in damages suffered by the community. The Judge took a position on the fact and law, which in his view is implicitly shared by the parties that there is definitely a duty of care owed by the defendants to the plaintiffs’ community to ensure the integrity, safety, security, maintenance and repair of the pipelines traversing their territory; in line with regulations and guidelines in existence to promote those ends. The pipelines are to be fit for purpose i.e. the safe transportation of petroleum products through pipes under or over all types of terrain including water ways and swamps without endangerment to the environment traversed.

The Judge said, “When we refer to Oil and Gas pipeline Regulations. 1995 sections 3, 4, 5 and 9 and the relevant standards of the American Society of Mechanical Engineers referred to within said provisions, it is clear that Plaintiff Witness’ observations at locus in quo were very informed ones and that he did not testify that the pipelines were old and corroded but he implied the pipelines were at great risk of being in a state that would invite corrosion and put its immediate environment at risk, asserting that this was true of even its post repair state”.

The Judge stated that “the lapses and departure from regulations observed by Plaintiffs’ Witness at the Idodo crossing of the Defendants’ pipelines were not negated by testimony from any of the defendants’ witnesses and there seemed to be a confusion about where the exact spot of the rupture occurred as the Defense witnesses’ testimonies of where the spillage occurred contradicted themselves as well as the observation of the Court during its visit to locus in quo”.

The Court then stated that there was no direct evidence on anti-corrosion maintenance of the section of pipeline in question, no explanation or testimonies (direct or indirect) justifying the manifest departure from existing regulations, guidelines and standards at the Idodo River Crossing and the documents tendered were not particularly helpful. Saying that the defendants’ averment that the pipeline spillage was caused by “acts of third party members from the Plaintiffs Community” without any evidence led to support them; the Court viewed as insufficient. It further observed that although the defendants aver that they have a “Right Way Monitoring Team” daily combing the area in question, they were slow in responding to an emergency reported to them by the Police and yet they did not provide the Court with whatever forensic evidence or testimony etc. from the Police which informed their conclusion of a case of vandalisation. However the plaintiffs had made reports to the defendants who were non- responsive and also reported to the police about the rupture and spillage in the territory of the community.

Citing Osigiwe vs. Unipetrol a Court of Appeal, Ibadan Division case reported (2005) 5 NWLR Part 918 page 261 at 283, per Adekeye JCA “I have to point out that negligence is a question of fact not law. Thus each case must be decided in the light of its own facts”. The Honourable Court considering the facts of the case found that what was established is that “we have a poorly constructed pipeline of advanced age along the relevant section in the territory of Ubahu Community; there are deviations from industry standards in operation and maintenance. And there has been a rupture of the said pipeline in the plaintiffs’ community territory, there has been spillage of petroleum products DPK (Dual Purpose Kerosene) specifically”.

The Honourable Court found that although the plaintiffs had not proven that corrosion caused the rupture, they had instead pleaded and led evidence to establish facts sufficient to bring into play the legal maxim res ipso loquitor citing Omeziri vs. Oko (2004) 13 NWLR pt 890 page 287 at 299 per Rowland JCA, that a party need not specifically plead the doctrine of res ipsa loquitor but pleading facts leading to such a conclusion brings the maxim into consideration; thus the onus shifted with their pleading and establishment of the simple facts of rupture and of spillage. Consequently, the Judge stated that, “the plaintiffs have not proven spillage due to corrosion but do not need to…the defendants have to establish clearly that the spillage was not caused by corrosion, or further more being responsible for the security of the pipeline, establish the likely perpetrators if any of vandalisation. That would make the Defendants victims but the plaintiffs’ community remains victims regardless, not being at fault”.

The Court concluded that the rupture of defendants’ pipeline considering the evidence from both parties was “an unexplained occurrence” for which the defendants, whether as unfortunate victims or otherwise must take responsibility in the light of any consequence of such occurrence to the plaintiffs community. The Court thus held that the onus on the Defendant to show that there was no negligence on their part in light of the faulty construction of the pipeline sections in the area in question and the lack of application of industry standards of operation and maintenance of the relevant sections of pipelines in the Ubahu area particularly the crossing of Idodo River had not been discharged.

On the question of possible damage and destruction and the extent the plaintiffs in their pleadings and evidence particularized the consequences of the spillage from the ruptured pipeline on their community’s territory and assets; there was admitted in evidence the environmental impact assessment evaluation commissioned by the Enugu State Environmental Protection Agency, post spillage.

The Defendants’ response to the said report was that whatever post impact assessment and alleged recommendations attributed to Enugu State Environmental Protection Agency were ‘suborned’ reports and documents concluded by or at the instance of the plaintiff. One of the definitions the Court referred to was the Oxford Advance Learners Dictionary of current English 5th Edition of the word “suborn” which was defined as “to pay somebody or use other methods to persuade them to do something illegal especially to tell lies in a law court (as in to suborn a witness)”. The Court then raised questions as to evidence led by the defendants’ staff to show that the pipeline in question had been shut down for 6 months, also that Dual Purpose Kerosene (DPK) was the last product pumped through the ruptured pipeline and all that was left in it that leaked was “line fill” and that it was last used at about 3.00pm (1500 hours) on 15th February 1999 which was more than 6 months before the time of spillage. The Court observed that even if that were the case there was no evidence by way of a management memo or directive or company circular ordering same for a stated purpose and observed that if one were to accept their averments then one wonders why there was any “line fill” left in an axis known according to the testimonies of defendants’ staff “experienced numerous vandalisation” incidents and secondly observed the time of the shut down was not satisfactory established also.

The Court rather stated that the fact that there was a spillage was established, the question was now whether it was minimal as was alleged by the defendants or otherwise and whether the evidence to the contrary was ‘suborned’ as alleged by the defense team.

The Judge therefore held that it thus fell on the defendants to prove subornation which they did not as no evidence was led but rather the defendants since two years after the spillage incident and the institution of the suit commissioned a contractor under their payroll to produce a report in which they suggested only very temporary damage to aquatic life in Idodo River. Thus with nothing to besmirch the activity and report of Enugu State Environmental Agency, and taking into consideration the ‘circumstances’ of the report by the Defendants’ contractors, the Court held that the output of the commissioned surveys and assessments by the State Agency must be given their due weight as the impact study was tendered through an expert witness with obvious capability and competence.

The Court found the evidence led by the plaintiffs’ team to be graphic and did not require an expert to make sense of while that presented by the defendants was impenetrable and of “doubtful provenance”.

The community had asked the court to order NNPC to pay damages of N1.24 billion, with Mr. Nwasike arguing that “It is an internalized and necessary cost of doing potentially environmentally harmful business in accordance with the “polluter pays” principle….” He further argued that the United Nations Rio Declaration on Environment & Development (Principle 6) enjoins companies engaged in potentially polluting activities to internalize the environmental costs of their activities and put in place preventive measures. He emphasized that NNPC is “the richest public corporation in Nigeria, colossal in resources, but Lilliputian in responsibility and the responsible and efficient management of its facilities including refineries and this pipeline particularly”. The Plaintiffs need this money to recover from the reckless damages occasioned by this “care-less colossus”, he concluded.

Taking into consideration all the fore going in giving judgment in favour of the plaintiffs, the Court said “However we must in this socio-econo-political environment, exact a heavy discount on these estimations. We aim at salving injuries and instructing care and caution on the part of powerful operators of crucial and strategic infrastructure; rather than achieving full compensation of those who have suffered and the liquidation of corporations of vital national utilities”.

The Court in light of this awarded a total sum of N70million for special, general and exemplary damages. The Court however ordered the Defendants to replace the faultily constructed sections of pipelines traversing Ubahu Community territory particularly at the crossing of the Idodo River and to henceforth keep up Industry Operational Maintenance Standards in line with existing regulations and guidelines in relation to their pipelines network.