22.10.2007 General News

Court Gives Landmark Ruling In Case Against TOR

By Daily Graphic
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A Landmark legal case was recorded last week when a Tema High Court held that the Centre for Public Interest Law, a legal NGO dedicated to litigating on behalf of poor and disadvantaged communities, could sue the Tema Oil Refinery for the spillage of oil from one of the refinery's pipelines into the Chemu Lagoon in June this year.

The presiding judge, His Lordship Francis G. Korbieh, not only ruled in favour of the plaintiffs, but also went on to advocate the increased use of public interest litigation, which is still a new concept of jurisprudence in Ghana, to fight the worsening problem of environmental pollution and degradation in many parts of the country.

Judge Korbieh said he was advocating public interest litigation for the protection of the environment because people who were directly affected by environmental pollution and degradation in the country were usually either ignorant of their rights under the law or were too poor to initiate litigation themselves.

The Centre for Public Interest Law, and the second plaintiff, Mr Richster Nii Amarfio, a resident of Tema, had argued in their writ against the Tema Oil Refinery (TOR) that the pollution of the Chemu Lagoon by the defendant company was hazardous to the health of the citizens of Ghana, and especially communities along the banks of the lagoon.

The plaintiffs contended that the persistent pollution of the lagoon by the refinery had made the inhabitants of Tema Manhean, who are predominantly fishermen, destitute as they could no longer earn a living from fishing in the lagoon due to the massive destruction of all life forms in the water body.

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 constitution.

In response to the plaintiffs' writ, counsel for the TOR filed an application with the court,  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.

In his ruling, Judge Korbieh observed that nowhere in his submissions and arguments did counsel for the Tema Oil Refinery 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”.

 “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 a “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 Tema Oil Refinery, but rather sued the defendant company in their capacity as individuals.

Counsel for the plaintiffs had further argued that “public interest”, as provided under Article 296 of the Constitution, consisted of rights and privileges that inure to the people of Ghana as a whole, and that the plaintiffs, as citizens of Ghana, had a right to bring legal action against the public interest.

Judge Korbieh pointed out that under this provision of the constitution, “an environmentally clean Chemu Lagoon is a right and advantage that inures to the people of Ghana as a whole.

“Issues of environmental degradation or pollution cannot be the concern of only the people directly affected by an environmental hazard.

The effects of environmental pollution and degradation have a knack for rearing up their ugly heads in unlikely places. They should therefore be of everyone's concern”, the Justice of the High Court said.

He said evidence that an environmental hazard occurring in one place could have far-reaching effects on another place quite distant from the location of the hazard could be found in the case of the Akosombo Dam.

“The water level in the Akosombo Dam went down drastically because of inadequate rainfall in places far removed from the location of the dam.

The effect of the low level of water in the dam was felt by people throughout Ghana, so how can anyone say the effects of the pollution or degradation of the environment is the concern of the people in the area where the degradation or pollution occurred?” the judge asked.

The court awarded costs of GH¢300 against the defendants, who are expected to file their defence before the fixing of a date for the hearing of the plaintiffs' suit.

In the suit, the plaintiffs are praying the court to declare that the Tema Oil Refinery had been negligent in allowing the oil spill into the lagoon, and a further declaration by the court, that the spillage was a violation of the rights of the people of communities along the lagoon to a healthy and clean environment which is guaranteed them under the constitution.

The plaintiffs are also asking the court to issue an order enjoining the refinery to clean up the Chemu Lagoon under the supervision of the Environmental Protection Agency and to desist from further pollution of the lagoon.

They are also claiming damages on behalf of the affected communities for the spillage and pollution.

Story by George Sydney Abugri

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