By Ola ‘Kiya, Reporting
ERUDITE human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, is under fire for calling for the head of the Chief of Defence Staff (CDS), General Lucky Irabor, and High Chief Government Ekpemupolo alias Tompolo over the burnt crude oil-laden thieving vessel in Delta State.
Falana had, on Monday, issued a press statement as well as speaking on a national television condemning the action of the naval authorities as well as demanding the head of General Irabor who had said the destruction of the vessel was in line with Armed Services Rules of Engagement.
Speaking on behalf of TSSNL owned by High Chief Government Ekpemupolo alias Tompolo, lead counsel, Mr Emmanuel Jakpa, on Tuesday in Warri, said General Irabor’s defence on the burnt vessel was in line with extant laws.
He said Falana’s reliance on Section 111 of the Armed Forces Act, to describe the destruction of the ship as an arson was misplaced.
Read full statement:
THE CHIEF OF DEFENCE STAFF WAS RIGHT AFTER ALL
A couple of days ago the news media was awash with stories of a Motor Tanker vessel caught by Tantita Security Nigeria Limited stealing crude from a well head. The tanker was handed to naval authorities after investigations by Tantita and subsequently scuttled by naval authorities. Since then, there has been a raging controversy whether the action taken by the Naval forces who received custody of the vessel was justified in law.
The stakes were raised further over the weekend, when Mr. Femi Falana, the learned Senior Advocate of Nigeria and a prominent leader in the human rights movement in the legal profession of Nigeria issued a press statement condemning the action of the naval authorities and even demanding the head of the Chief of Defence Staff, General Lucky Irabor who said the destruction of the vessel was in line with Armed Services Rules of Engagement. Relying on Section 111 of the Armed Forces Act, Mr. Falana opined that the action of destroying the ship was no more than arson.
Intensifying his attacks on Monday on live television, the learned silk has called for retirement of all service chiefs because according to him the award of the contract for pipeline surveillance issued to Tantita Security, a company allied to High Chief Government Ekpemupolo, was an admission of failure of the entire military and naval authorities in Nigeria.
Unfortunately, it is no longer clear who the learned silk is attacking, Tantita for accepting a government contract, the FGN for issuing such a contract to stop crude stealing, or the CDS for justifying the burning of a ship. It is however necessary to separate all these issues because it would seem that these attacks have one common purpose and that is to dislodge or to disparage the good work being done by a private security company (PSCs).
PSCs are not new. All internal security in England for example, was provided by PSCs until Sir Robert Peel created the London Metropolitan police, modelled on the Irish and Scotch constabularies. In America today, many internal security operations are conducted by PSCs including the manning of correctional facilities, there is at least one county whose entire police department is a contractor. So, the notion that engaging a PSC is a sign of state failure is stretching both facts and logic too thin. Everywhere in the world, people have found ways to use their skills or knowledge to help improve security, but it will appear that Mr Falana’s real grievance was that this particular pipeline surveillance contract was awarded to a company associated with Chief Ekpemupolo alias Tompolo. Mr Falana is not the first to raise hackles over this issue. Several Governors from the west of Nigeria has complained about this. No one knows what their real grouse is, but perhaps it will be better for them to state what offends their sensibilites rather than raise non issues of legality.
The same pipeline surveillance contract has been handed in the past to other private contractors including one OMS, without a whimper of complaint by anybody. Without denigrating the performance of these past contractors, none of them have wowed the nation the way Tantita has. One does not recall any anyone demonstrating the level of competence and effectiveness Tantita has. So, the question is, who is uncomfortable with Tantita delivering on her mandate? One would have thought that the complaint would be that an ex-militant would be unsuited to the job because he would not deliver, apparently the opposite is just as worrisome. Therefore, the naysayers are complaining Tompolo is working and they have been deprived of the opportunity to complain that he is incompetent.
Tantita is working and succeeding with the full assistance and cooperation of military and naval forces. At one time the red herring was that a PSC was being given the right to bear arms while the western states operated Amotekun – that amoeba – were being deprived of such a right. Today, the picture is much clearer, no PSC and certainly not Tantita is bearing arms; Tantita’s success is due in large part to the wide ranging informal local knowledge network at its disposal, coupled with its unbeatable understanding of its local terrain as well its no nonsense approach to curbing the menace to our environment, but above all is the trust that the ordinary people of the region seem to have in High Chief Ekpemupolo.
This uncanny combination of factors appears to be the secret sauce for the successes recorded so far. It is instructive that the people who have attacked the Federal Government for awarding this contract, the security chiefs for “abdicating” their roles, and finally Tantita for doing a yeoman’s job have never acknowledged the success so far recorded. They have not said that discovering these illegal taps is a win for Nigeria, some have gone as far as to say that it shames us in the committee of nations. What a surprise.
Now, coming to the issue of whether the CDS was justified when he said that the burning of the vessel caught red handed stealing Nigeria’s crude directly from a well head were within the rules of engagement, Mr Femi Falana SAN has opined that based on Section 111 of the Armed Forces Act, scuttling the ship was arson, that the naval authorities breached the rule of law and the CDS ought to resign for backing them. But is this so?
The Armed Forces Act is certainly good law, no doubt, but it is inapplicable to facts of this circumstance. The circumstance of this matter is that somebody using the instrumentality of a ship had interfered with Nigeria’s ownership rights to produce hydrocarbon oils for refining. Unquestionably, the ship had crude oil in its cargo holds but lacked authority to take it. The ship captain made a confessional statement admitting he lacked authority to take crude, after which the ship was ordered sunk. Many well-meaning lawyers quickly seized upon the rule of law issue and asked why the order to scuttle the vessel could not await legal proceedings in court. Some other well-meaning people, lawyers included, went as far as to suggesting that it was all meant to cover evidence of complicity.
Let’s take the legal issues first. Was there a breach of the rule of law, or was the CDS right to say that the action taken by naval authorities were within their rules of engagement? While MR Falana relies on the Armed forces Act it is our humble opinion that the applicable law is the Hydrocarbon Oils Refining Act. Section 15 of the Hydrocarbons Oil Refining Act provides as follows, “If any officer has reasonable grounds to suspect that any refining of hydrocarbon oils contrary to the provisions of this Act is being carried out on any land or premises, he may enter thereon, if need be by force, and dismantle or seize any apparatus and equipment used for or in connection with such unlawful refining.”
The purpose of taking the crude from the well head was certainly for illegal refining, whether here or abroad. This clearly brings the vessel within the ambit of this law. And this law permits dismantling the apparatus or equipment used for illegal refining. Scuttling the ship was to dismantle it.
Section 1 of the Act already outlawed any act connected with refining without a license when it provided that, “Subject to the provisions of this Act no person shall refine any hydrocarbon oils save in a refinery and under a license issued under the Act.” So any person taking hydrocarbon oils without a refiners licence or permission to carry hydrocarbon oils is in breach of the law. Section 18(1)(b) of the law gives the power to the government to levy distresss (seizure) on all equipment, plants, tools, ships, vehicles, animals or other goods or effects whatsoever used in the refining, sale or distribution, sale of hydrocarbon oils found in any premises or any land… etc” used in violation of the Act.
Some would argue that levying distress is not destruction, but apparently the Act contemplates that destruction is included in the case. See Section 25 of the Act. Importantly, Section 18(5) of the Act places the burden of proof that the action of such an officer (acting on behalf of the Government) is wrong on the person claiming that their property was wrongly destroyed. Section 25 provides that where the person claiming ownership of the property is able to satisfy the court whether in a civil or criminal proceeding brought against a person authorized by the Act to seize or detain anything that the government is liable, nothing in the Act shall affect the right of that person to the return or the thing seized or detained, or to compensation in respect to any damage to the thing or in respect of the destruction thereof. This is the provisio to S.25(2) of the Act.
This clearly supports the rules of engagement cited by the CDS, seizure may result in destruction and where the owner is able to prove that the officer was wrong to detain or destroy his property he will be entitled to compensation in full.
Therefore, the CDS was right. And a person cannot be liable for an offence if he was authorised by law to do the act complained of.
Reprising it all, an officer has the right to detain or dismantle anything used in connection with illegal refining including a ship. In detaining it, it could be destroyed. Any person who claims his property was destroyed can go to court to seek redress. The burden of proof is on him. If he succeeds, he will get compensation. In other words, it is the Hydrocarbons Oil Refining Act and not the Armed Forces Act that meets the peculiar circumstances of this case. Care must be taken not to provide unwarranted solace to the people who destroy our environment, rape our common wealth and cheat our nation of the resources necessary for schools and hospitals.
As for those worried about the rule of law or the destruction of evidence, while it is conceded that their concerns are genuine and germane, it is equally clear that the best evidence for the prosecution of a crime is a confessional statement. This is the best evidence rule in law. It is also the law that no crime will go unpunished simply because the instrument by which the crime was committed is not produced in court. The ship cannot tell us who owns it, nor can it tell us how many times it has been used to commit a crime, it is the people who were caught on the ship that can tell us this, and to the best of my knowledge none of them died with the scuttling of the vessel, so no evidence has been lost and people alarmed at the possible loss of evidence can rest that prosecution can still take place against all persons who may have been involved with this nefarious trade.
I presume that the naval authorities wanted to send a clear message that those who can afford a couple of million dollars to buy pre-owned ships for purposes connected with illegal refining will lose their capital and the tools of their trade, as the hammer falls swiftly. By that singular act, it has raised the risk for all those who wish to enter the trade or remain in it. I do not see why anyone should complain if the ends of the law can still be met by the best evidence rule.
Equally genuine and germane are the concerns of those who are appalled by the further degradation of our already painfully disfigured Niger Delta environment. We agree that this is one more act which further damages the delicate Niger Delta environment. However, it is my personal belief that if this act will deter the sponsors of illegal bunkering from putting so many million dollars into acts which will only degrade the delta further, then it is the hard but necessary choice to make. It is a difficult choice, but we know that many ships seized by law enforcement agents lying at various ports across the country have sunk and discharged their cargo into the territorial waters of Nigeria polluting the environment, while lawyers fought over injunctions and counter injunctions and argued themselves hoarse sometimes for the better part of a decade.
No lawyer or environmentalist to the best of my knowledge have raised a hue or cry over the harm done to our environment by such unintended but avoidable judicial mishaps.
My clarion call is to all well-meaning Nigerians to support the decision of NNPC to find credible partners to rid our country of the menace of illegal bunkering once and for all.
Emmanuel Jakpa, is lead legal consultant to Tantita Security Services Nigeria Limited.
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