5 year old Biba Saidu not only suffers partial paralysis (as she can only play and move with one side of her body), she is also brain damaged and cannot speak (talk) as her peers, alleged to be as a result of the polluted water she and other members of her community drink from the pollution caused by coal mining giants, Ashaka Cement Plc, Leadership Ruth Tene Natsa, supported by Global Rights reports.
A dire effect of mining when practiced in an unsafe manner, is environmental pollution, which if not checked could destroy the ecosystem, environment and pollute the host and neighboring community’s water source. It is therefore, no wonder that the Komta Community of Gombe state are crying for justice over alleged pollution of their water source and risks to their lives by Cement giant, Ashaka Cement Plc, under the business name Lafarge Africa Plc, mining coal in their neighboring community.
A visit to Maiganga community revealed serious mining activities, as several covered trucks of coal are seen leaving the less than 5 kilometer tarred road, while several others are seen going in to mine the products worth millions of naira.
It is therefore no wonder that the immediate community of Maiganga enjoys some benefits of modernization as part of the compensations and Corporate Social Responsibility (CSR) provided by Ashaka Cement. These benefits include compact well-structured houses, a modern school (with most of the classrooms bereft of chairs) a dry bore hole which has stopped providing water as Ashaka is forced to supply water via trucks for the use of the community.
The story is not the same for Komta, Kwibah and Kwilapandi which adjoin Maiganga community.
LEADERSHIP Friday’s visit which was fully funded by Global Rights to the community revealed no access road as visitors are forced to trek several kilometers across bush paths to the communities which are said to be home to over two thousand indigene. No potable water as humans and cattle drink from the same muddy looking stream which looks like a dirty pond.
Unlike their neighbors Maiganga, the community has none of the modern facilities enjoyed by their neighbors
Recall that LEADERSHIP in 2016, supported by Global Rights Nigeria had reported the alleged impact of Ashaka’s activity on Komta community.
Speaking with LEADERSHIP then, Komta’s Village head (Kojen Tangale) Kilang Mela had alleged that “his community of mostly peasant farmers and civil servants had suffered severely as a result of the polluted water from the Ashaka Coal Plant”.
He said on record “We have recorded 8 deaths, 12 miscarriages by our women, 19 people currently suffering stomach aches, we have had 5 surgeries, 16 people have lost 144 cows while 64 farmers had lost their farm produce”
The Kojen Tangale alleged that since 2009 the community had been suffering hunger with the resultant effect of the coal mining which continues to destroy their farms” the little we have barely sustains us because of the destruction caused by the mining in the neighbouring community”.
He lamented that all efforts to get redress from Ashaka Cement has gone unheeded” the company has refused to pay attention to us, they have even ignored the petition we wrote to them since 2013,. This is despite that mining started since when my late brother was the village head of Komta, he died and I inherited his title, he also wrote the Company before his death and they did nothing and I also wrote to them and yet they have done nothing”.
Such were the challenges of the community that the village head who had represented himself and 126 others in a suit no FHC/GM/CS/22/”018 had sought justice through the courts of law in an originating summons dated October 5, 2018.
The community in their prayers to the court had requested for the award of the sum of N3b only in damages in favor of families of 9 deceased persons, families of twelve women who suffered untimely miscarriages and family of one daughter who suffered permanent paralysis inconsequence of the defendants negligent acts via pollution of their sources of drinking contaminated with mineral toxic, waste effluent releases into the communities, pursuant to its mining activities.
The community further asked an order for the award of N500m in damages for five persons who suffered various kinds of surgeries and 100 people who suffered various kinds of diseases and complications pursuant to the defendant’s negligent conduct in contaminating their drinking water with mineral toxics and forms of pollutions in connection with mining activities
The Community further asked an order for the award of the sum of N400m in favor of 50 people who lost their livestock’s to with, cows, sheep, goats, donkeys and fowls through the consumption of the defendant’s toxic water among others.
Other orders by the community asked for the revocation of the defendants mining lease and rights for non-compliance with the provisions of Section 125 of the Nigerian Minerals and Mining Act 2007 and Regulation 11 of the Nigerian Mining And Minerals Regulations 2011 Section 16(4) of the National Minerals and Metal Policy 2008 which allegedly led to colossal loss of both human lives and material resources from the four affected communities
The Communities also asked for an order of perpetual injunction restraining the defendants, its agents, servants and legal representatives from further carrying out mining activities that would be prejudicial to the plaintiffs in particular and the entire communities of Alatai, Kwilapandi, Kwibah and Komta in Billiri local government are of Gombe state.
Delivering the judgement on September 27, 2019, the Presiding Judge, Hon. Justice Afolabi ordered that the sum of N100m was to be paid to the Plaintiffs as damages by the defendant. She also ordered perpetual injunction restraining the defendants and their agents from further carrying out mining activities that would be prejudicial to the stated communities.
The Court further ordered the sum of N1m awarded as cost of prosecuting the matter in favor of the plaintiffs.
While the Village head said the judgement fell below their expectations, he was happy that justice was served and the indigent communities can have a better life going forward.
A member of the legal team representing the community, Barrister Yila Peter Malu said cumulatively they were asking for over N4b against the company ranging from special damages, general damages to exemplary damages but based on the evidence before the court they were able to award the general damages accessed and awarded at N100m against the Company.
Responding to the question if he considered that a fair judgment, he said ‘To us it was not too fair, but to some other respect it was fair as this was the first time communities in that area are getting judgement against a company of that nature for over 12 years, even as he noted that lots of communities are affected.
He noted that while the Ashaka legal team had filed an appeal, they were considering filing a cross appeal as there were lots of issues the court had not addressed well. “We want the court to address particularly the special damages, people who are demised as a result of this allegation. The judge had said we failed to attach the dead certificates attributed to those individuals. However we listed the names of those affected. And the truth is that it is a remote community getting the medical records and certificates of deaths as proof is not so easy.
But the Company in a letter they had admitted to us had admitted the damages they had caused and it was relying on that document that the courts entered judgement for general damages, but for particular special and exemplary damages, that we wanted the courts to give us, she said, she will not give us as she was not convinced to give us that.
The Barrister said since the judgement, the Ashaka group had been employing different tactics to frustrate them including luring the courts to believe they wanted settlement. On two occasions through their legal teams they had asked the courts for time to settle with us but after two sittings it has not been fruitful.
“They have been using this tactics even before the matter went to court, and now instead of them to see how they can settle with the community after the judgement, they have decided to file an appeal saying they are not satisfied with the judgement. But even the grounds of the appeal have no merit, as far as we know all their efforts are aimed at frustrating the community because they (the Community) are weak. Also because they know the lawyers defending the communities are working Pro bono and following the case to appeal could be a herculean task both for the communities and their lawyers”
The Barrister said what he will consider that justice is served when the when the intervention that is due to the communities gets to them.
Interestingly, while the communities celebrate the judgement as justice served, the defendants have decried the judgment, describing it as unreasonable, unwarranted and cannot be supported.
Speaking with LEADERSHIP FRIDAY, external counsel to Ashaka Cement Plc. Ado Dauda Esq said they were appealing the judgement. “We are appealing against the judgement of the federal high court Gombe on the basis that it is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence. We are also appealing because there was no basis for the judgement in respect of the cost of one million naira awarded and the cost of one hundred million naira as compensation or punishment against Ashaka. It is ridiculous for one to hold that there was really no basis because the plaintiffs could not prove their case and yet the court went ahead to say the defendants shall pay the sum of one million naira as punishment for polluting the environment of the people concerned. We are also appealing on the grounds that the matter is statute barred, so this is just a summary of what we intend to do at the court of appeal”
Reacting to the demands of the courts to deposit the full amount awarded the plaintiffs, the Counsel noted that it was usual. He said “That is one of the conditions that a trial court and even sometimes the court of appeal normally grants if you are seeking the indulgence of the court on the basis of equity, the court will ask you to deposit the judgement sum. However, a party is at liberty to either apply to court to vary that order or to appeal against that order.
Responding to the reporter’s query that the affected communities are mostly indigent and illiterate and may not be able to afford the facts requested to prove their case in court he said “I take exception to the fact that most of them are illiterates. The community there in Gombe state belongs to one of the communities that are educated, they are the Tangale community and it is on record that the Tangale community value western education very well, so in fact there are Doctors, literate citizens of that community who claim to be poor, I remember that one of them is a veterinary Doctor, can one say a veterinary Doctor is poor? He queried. There are many others that have studied up to university level, you cannot say they are all illiterates, and there are learned people among them.
On the allegation that his client’s activities had polluted the community’s environment, the Barrister said “I was privileged to visit the community with staff of the Ministry of Environment, we went round, what I have seen there is the opposite of what the plaintiffs are claiming.
“In fact there are technical reports that vindicates the fact that Ashaka has not polluted the community there. You will be surprised that we received a letter from some of the plaintiffs about 42 (out of 167) of them saying they want to be disengaged from that suit because they have no fate. They wrote to Ashaka saying all that was done there was fabricated”
“In fact at the point they came in, it was already late, because before they sent that letter trying to disengage themselves from the case the matter was already adjoined for judgement, so they could not reverse the case. In fact we had asked them to go and tell their Lawyer to go and file an application before the court could deliver judgement, but the Lawyer could not do so, so as far as the court is concern, they are all involved but I am telling you that about 42 of them are not part of the case”
On the judgment that Ashaka should clean up the alleged polluted environment, Ado stated that the unfortunately, the land is not Ogboni land that deserves some cleanup..
The Lawyer further revealed that 42 persons quoted by Komta and his legal team had distanced themselves insisting they were not in support of the
I also learnt that Ashaka had promised to provide three boreholes to the affected communities, of which they drilled two which are already dry, are your clients going to provide alternative water sources for them?
As an external solicitor, I am not in a position to answer that but you may contact the management to get their position.