A Federal High Court sitting in Lagos, presided over by Justice Mojisola Olatoregun has dismissed a suit filed by Shell Nigeria Exploration and Production Company Ltd, to challenge the imposition of $3.6billion fine on it by the National Oil Spill Detection and Response Agency (NOSDRA).
Shell had challenged the powers of the National Oil Spill Detection and Response Agency (NOSDRA), to impose levies or fines over oil spills.
The plaintiff through its counsel , Wole Olanipekun ( SAN) wanted the court to declare that NOSDRA could not according to Sections 1, 3, 4, 5 and 6 of the 1999 Constitution, validly exercise any powers under Section 5, 6, 7 and 19 of the NOSDRA Act.
Shell contended that the sections undermined the judicial powers vested exclusively in the courts.
It argued that only the Federal High Court had the jurisdiction to determine liability and to assess, impose and direct the payment of any sum as penalty, damages or compensation in connection with an incidence of oil spillage, particularly the Bonga Oil Spill of December 20, 2011.
The plaintiff prayed the court to declare that the decision leading to the imposition of $3,600,191,206.00 on it by NOSDRA was in breach of its right as enshrined in Section 36, 43 and 44 of the 1999 Constitution.
It further prayed the court to nullify NOSDRA’s powers to impose such levies over oil spills.
But NOSDRA, in its defence as argued on its behalf by its counse, D. A. Awosika, submitted that the cause of action was precipitated by its service of notice of sanction on Shell on March 25, 2015 over the Bonga Oil Spill.
Awosika argued that Shell ought to have exercised its right of litigation if it felt aggrieved by the letters within three months from March 25, 2015 and not beyond.
“The plaintiff waited for more than 13 months to institute this action against the defendant,” NOSDRA said.
NOSDRA further submitted that Shell’s action was caught in the statute of limitation.
NOSDRA maintained that it did not act outside its powers in imposing the fine on Shell.
Justice Olatoregun in her judgment, held that NOSDRA acted in line with its powers and did not violate Shell’s rights.
The judge held that Sections 5, 6 and 7 of the NOSDRA Act which empower it to impose penalties do not violate the Constitution.
“I found no conflict with the duties conferred on NOSDRA by law and the power of the court to adjudicate in this matter…I find no violation of the 1999 Constitution within these sections,” she said.
The judge maintained that NOSDRA’s demand letters to Shell were not in conflict with Section 44 of the 1999 Constitution.
She said, “The plaintiff had notice and opportunity to fair hearing. The plaintiff ought to have had recourse to the court for the determination of its civil rights and a proper adjudication on the issues if it felt its rights were infringed or about to be infringed.
“I do not find the two letters ultra vires the duties and functions of the defendant.
“I have no reason to set both letters aside as well as the sums ordered, as parties did not make evaluation of the assessed damage an issue for consideration in the questions raised for determination. No evidence upon which an evaluation could be made was also proffered.
“In the final analysis, all the questions raised by the plaintiff are resolved in favour of the defendant. The only thing left to do is make an order dismissing the suit. Same is dismissed.”
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