George Amexo
The case of the Tema Oil Refinery (TOR) in the ensuing litigation over the pollution of Chemu II Lagoon suffered another setback last Tuesday when a motion it made to the court to amend portions of its statement of defence was rejected by the Tema High Court.
Counsel for TOR, Kwami Adobor, made the application for a motion for leave of the court to amend portions of its statement of defence, but the presiding judge, Justice Mrs. Cecilia Sowah dismissed the application. TOR has been sued for allegedly polluting the Chemu II Lagoon. The pollution was said to have taken place on May 7, 2007.
The plaintiffs are the Centre for Public Interest Law(CEPIL) and Mr Richster Nii Armah Amafio. CEPIL is a legal non-governmental organisation devoted to litigating on behalf of disadvantaged communities with no ready access to legal service. The Court had earlier ruled against the company when it tried to block the motion of the plaintiffs by arguing that they lack the capacity to bring legal action against it.
At last Tuesday's sitting, Mr. Adobor sought to amend paragraph 5 of his client's statement of defence which states that "occasional spills in insignificant quantities from its refinery cannot be the cause of the alleged level of pollution and annihilation of all life forms in the Chemu Lagoon mentioned in the pleadings of the plaintiffs."
However, in his argument for the motion for the amendment he said the rendition of the said paragragh contradicts his client's statement of defence and is likely to cause confusion. The amendment, according to him, will bring clarity in the case of the defendant. He again argued that their request if granted will not be contrary to the position of the law as one is permitted to do so any time before judgment. To him that part of the statement is an error that should not be visited on his client.
Counsel for plaintiffs, Kumi Larbi, however, rejected the claim of contradiction argued by the defence counsel, contending that it was a specific response defendant gave in its pleadings.
Mr Larbi said though parties under the law can amend their pleadings the process should not be abused. The pleadings of TOR, he said, are a material fact. He said almost after five years after they have admitted to the offence they cannot come back to the Court to say that they are changing it. It is a material fact which they have admitted to and granting the application would therefore amount to mockery of the law. "It is an afterthought and imagination of their mind," Mr. Larbi argued. Justice Sowah upheld his argument and accordingly dismissed TOR's application.
The plaintiffs are seeking a declaration from the High Court that TOR was negligent in allowing the oil spill into the Lagoon on the said date and also a pronouncement that the spillage was a violation of the rights of the inhabitants of Tema Manhean and other communities, along the banks of the Lagoon. They are also praying the court to make an order compelling the company to clean the lagoon under the supervision of the Environmental Protection Agency (EPA).
Additionally, the plaintiffs are seeking an order of perpetual injunction restraining the defendants from "further polluting the aforesaid lagoon through oil spillage or other means." They are also seeking legal costs and damages from TOR.
In an attempt to block the motion TOR responded with a plea asking the court to dismiss the writ of the plaintiffs on the grounds that the plaintiffs lacked the capacity to bring legal action against TOR.
Counsel for the defendants further submitted that the plaintiffs had not provided a reasonable cause for action against the defendant, and that their suit was also fraught with procedural irregularities.
But the then presiding judge, Justice Francis Korbieh dismissed the motion, observing that nowhere in his submissions and arguments did counsel for TOR question the capacity of the plaintiffs as individuals to bring an action against the refinery, except to say that the plaintiffs were "busy bodies seeking cheap popularity".
He said counsel for the defendants merely foisted the tag of 'representative action' or 'class action' on the plaintiffs' suit, and proceeded to argue that the plaintiffs had not met the conditions for a "representative action" or "class action".
ã--"What one has to look at is whether the plaintiffs, in their own capacities, have an action to bring against the defendants and not whether the plaintiffs fulfilled the requirements of "representative action," Judge Korbieh said.
The judge said counsel for the plaintiffs, on the other hand, had argued that the plaintiffs had not brought a "representative action" against the TOR, but rather sued the defendant company in their capacity as individuals.
The case of the plaintiffs is that the Lagoon is an important component of the ecology of the region forming an integral part of fishing as well as providing habitat for bird-life, and salt water centered on mangrove which has historically provided for wildlife and fish as well as provided for fish and other sources of livelihood for the coastal residents.
They further stated that due to the proximity of the defendant company to the lagoon, it has been exposed to hydro-carbon contamination, a phenomenon attributed to the defendants company.
"In the past there have been spillages into the lagoon due to poor state of equipment or inefficiency on the part of the company's employees in charge of the equipment and that on May 7, 2007 there was massive pollution into the lagoon," they stated.
That the persistent pollution of the lagoon has denied residents their livelihoods and also the death of the lagoon is an incident of pollution and it is the abuse of the human rights of residents living around the Lagoon. The pollution of the Chemu Lagoon by the oil refinery, the plaintiffs further contended, infringed upon the rights of the inhabitants of Tema Manhean and especially communities along the banks of the Lagoon to a clean and healthy environment as guaranteed them under the 1992 Fourth Republican Constitution.
The case has been adjourned for trial on Tuesday, May 3.
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