TANTITA Security Services Nigeria Limited (TSSNL), the private security company (PSC) operated by ex-militant leader, Government Ekpemuplo, alias Tompolo, has counteracted the claim by Femi Falana that Chief of Defence Staff (CDS), General Lucky Irabor and Nigerian Navy were wrong in the burning of the crude oil vessel recently, seized by his company for oil theft.
The lead legal consultant to TSSNL, Emmanuel Jakpa, in a statement, yesterday, said: “Mr. Femi Falana, SAN, had opined that based on Section 111 of the Armed Forces Act, that scuttling the ship was arson and that the naval authorities breached the rule of law and the CDS ought to resign for backing them. However, is this so?
He contended that Falana and those opposed to the CDS incorrectly relied on the Armed Forces Act, but the applicable law in the case in question is the Hydrocarbon Oils Refining Act.
“Care must be taken not to provide unwarranted solace to the people who destroy our environment, rape our commonwealth, and cheat our nation of the resources necessary for schools and hospitals,” he cautioned.
TSSNL also queried if Falana was attacking the company for accepting a government contract to stop crude oil stealing, saying it was necessary to separate the issues “because it would seem these attacks have a common purpose to dislodge or disparage the good work by a private security company.”
The statement read in part: “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 the authority to take it. The ship captain made a confessional statement admitting he lacked authority to take crude, after which they ordered the ship 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 suggesting that it was all meant to cover evidence of complicity.
“Let us take the legal issues first. Was there a breach of the rule of law, or were the CDS right to say that the action taken by naval authorities was within their rules of engagement?
“While 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 wellhead was certainly for illegal refining, whether here or abroad. This clearly brings the vessel within the ambit of this law. In addition, this law permits the dismantling of 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’ license 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 distress (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 they wrongly their property.
“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 proviso to S.25 (2) of the Act.
“This clearly supports the rules of engagement cited by the CDS, a 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 offense if he was authorized 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 that they destroyed his property 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.
“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 that 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 that will only degrade the delta further, then it is a 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 has 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 the Nigerian National Petroleum Corporation Limited, NNPCL to find credible partners to rid our country of the menace of illegal bunkering once and for all,” he said.