Rechtbank Den Haag, 01-07-2019, ECLI:NL:RBDHA:2019:6670, C-09-540972-HA ZA 17-1048
Rechtbank Den Haag, 01-07-2019, ECLI:NL:RBDHA:2019:6670, C-09-540972-HA ZA 17-1048
- Rechtbank Den Haag
- Datum uitspraak
- 1 juli 2019
- Datum publicatie
- 19 juli 2019
- C-09-540972-HA ZA 17-1048
ENGELISH VERSION OF ECLI:NL:RBDHA:2019:4233.
THE HAGUE DISTRICT COURT
case number / cause list number:
Judgment of 1 May 2019
in the case of
[claimant 1] of [residence 1] , [country 1] ,
[claimant 2] of [residence 2] , [country 2] ,
[claimant 3] of [residence 3] , [country 3] ,
[claimant 4] of [residence 4] , [country 3] , claimants,
counsel: Ch. Samkalden of Amsterdam,
ROYAL DUTCH SHELL PLC of London, United Kingdom, with its registered office in The Hague,
SHELL PETROLEUM N.V. of The Hague,
THE SHELL TRANSPORT AND TRADING COMPANY LIMITED of London,
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD of Port Harcourt, Rivers State, Federal Republic of Nigeria,
counsel: W.I. Wisman of The Hague.
Claimants are hereinafter jointly referred to as ‘claimants’ and individually as [claimant 1] , [claimant 2] , [claimant 3] and [claimant 4] , respectively. Defendants are hereinafter jointly referred to as ‘defendants’ and individually as RDS, SPNV, STTC and SPDC, respectively.
1. The proceedings
1.1. The course of the proceedings is evidenced by the following:
- the summons of 28 June 2017, with Exhibits 1 through to 269;
- the statement of defence, with Exhibits 1 through to 204;
- the judgment in which appearance before a three-judge panel was fixed;
- the statement of claim in the procedural issue regarding exhibits, with Exhibits 1 through to 3;
- the document containing Exhibits (205 and 206) of the defendants;
- the statement of defence in the procedural issue regarding exhibits, with one Exhibit (207);
- the document containing Exhibits (270 through to 291, and an addendum to Exhibit 34) of Claimants;
- the report of the parties’ appearance before the three-judge panel of 12 February 2019.
1.2. The report was drawn up in the parties’ absence with their consent. The parties were given the opportunity to submit factual comments within two weeks from dispatch of the report. Claimants took advantage of this opportunity in their letter dated 14 March 2019, and the defendants in their letter dated 13 March 2019. These letters form part of the prosecution file and the judgment is passed with due regard for these letters, in so far as they are factual corrections.
2. The facts
2.1. Claimants are the widows of four of a group of nine men, also known as the Ogoni 9. They belong to the Ogoni, a people native to Nigeria’s Ogoniland in Rivers State province. The Ogoni 9 were hanged in Nigeria on 10 November 1995 following a death sentence for involvement in the death of four traditional Ogoni leaders passed by a special tribunal.
2.1.1 [claimant 1] is the widow of Dr [A] ( [A] ), who in January 1994 had been appointed Honourable Commissioner of the Ministry of Commerce, Industry and Tourism of Rivers State province and who in that capacity working as the link between the Ogoni and the Nigerian authorities.
2.1.2 [claimant 2] is the widow of [B] , who from their establishment had been a key member of MOSOP (see below under 2.13) and NYCOP (see also under 2.13).
2.1.3 [claimant 3] is the widow of [C] , who in 1993 had joined NYCOP.
2.1.4 [claimant 4] is the widow of [D] , who in 1993 had joined MOSOP.
2.2. Shell Petroleum N.V. (SPNV) is the successor by universal title of
N.V. Koninklijke Nederlandsche Petroleum Maatschappij (Royal Dutch). Royal Dutch and the legal entity under English law, The Shell Transport and Trading Company Limited (STTC), were the parent companies of the Shell Group (Group Parent Companies) in the period relevant to these proceedings, 1990-1995 (hereinafter: “the relevant period” or “1990-1995”). Royal Dutch and STTC – hereinafter also jointly referred to as ‘the parent companies’ – cooperated on the basis of an agreement concluded in 1907.
2.3. Royal Dutch and STTC held the shares in the holding companies of the Shell Group (the Group Holding Companies), to which SPNV and the legal entity under English law, Shell Petroleum Company Ltd (SPCo), also belonged. The Group Holding Companies held the shares of the operating companies in the Shell Group, including Shell Petroleum Development Company of Nigeria Ltd (SPDC), a legal entity under Nigerian law.
2.4. SPDC is the continuation of Shell D’Arcy, which in 1938 received a permit in Nigeria to explore for oil. In April 1956, the name of this company was changed to Shell-BP Petroleum Development Company of Nigeria Limited. In December 1979 the name of this company was changed again, to its current name SPDC. In the relevant period, SPCo held 99.9% of the shares in SPDC, while SPNV in this period held 0.1% of the shares in SPDC.
2.5. The legal entity under English law, Royal Dutch Shell plc (RDS), has been the sole parent company of the Shell Group since a restructuring in 2005, which entailed a merger in which Royal Dutch was merged with SPNV. RDS was placed at the top of the Shell Group and did not take over any obligations from the other companies in the Shell Group.
2.6. Besides the Group Parent Companies, the Group Holding Companies and the operating companies, Service Companies also belonged to the Shell Group in the relevant period, including Shell Internationale Petroleum Maatschappij B.V. (SIPM) and the legal entity under English law, Shell International Petroleum Company Limited (SIPC). These Service Companies provided the Shell Group with advice and expertise, for instance in the area of engineering, geophysics, geology, safety and public affairs.
2.7. A consultative body was established at the organizational level between the Group Parent Companies, known as the “Conference”. The members of the Supervisory Board, and of the Board of Directors of Royal Dutch and STTC convened in the Conference. The Shell Groups also had a so-called Committee of Managing Directors (the CMD). This was a joint, informal committee established by the Management Boards of the Group Holding Companies. Every member of the CMD was either a member of the Board of Directors of Royal Dutch or a member of the Board of Directors of STTC as well as a member of the Management Boards of both Group Holding Companies.
2.8. SPDC was currently still is operator in a Nigerian joint venture without legal personality established in April 1973, which is involved in detecting, producing and transporting petroleum and natural gas. Relationships in the joint venture have changed over time. In the relevant period, SPDC had a stake of 30%. The legal entity under Nigerian law, Nigerian National Petroleum Company (NNPC), had a stake of 55%. Elf and Agip has stakes of 10% and 5%, respectively. In the relevant period, the duties in the joint venture were divided as follows: the operator prepared the work programmes and budgets and the partners in the joint venture provided the capital for the activities of the operator on cash calls. The operator was also responsible for all aspects of oil extraction and oil exploitation of the joint venture. The joint venture had an Operating Committee (OPCOM), consisting of six representatives of NNPC, four representatives of SPDC, one representative of Elf and one representative of Agip. OPCOM was responsible for general supervision, leadership and management of the joint venture, including approving, adjusting or rejecting intended decisions on projects and budgets.
2.9. The joint venture extracted oil in Ogoniland, among other locations. There, the joint venture exploited 12 oil fields with 116 wells, five flow stations, various manifolds and pipelines at least until 1993.
2.10. SPDC employed security personnel in 1990-1995, who were not allowed to carry firearms. The staff and possessions of the joint venture were also protected by a regular police force (supernumerary police SPY, in popular parlance also referred to as Shell police) and dog handlers. These police officers, who were employed by the Nigeria Police Force, often worked for particular companies long term. The companies paid a fee to the Nigerian government for their services under Article 18, paragraph 4 of the Nigerian Police Act. The companies also paid the salaries of these police officers.
2.11. In 1985 Major General [Major General] usurped power in Nigeria after staging a coup. He stepped down in August 1993. After an interim government led by [X] , General [the General] ( [the General] ) came to power in November 1993 following a coup. He was the head of state of Nigeria until his death in 1998.
2.12. In October 1990 residents of Umuechem, a village just outside Ogoniland, protested against the poor power and water facilities in Umuechem and the lack of fair compensation for the expropriation and exploitation of their land. Following a request of the divisional manager east of SPDC, [divisional manager east] ( [divisional manager east] ), on 29 October 1990 to the Nigerian Commissioner of Police to provide “security protection (preferably by Mobile Police Force)”, the Mobile Police Force (MOPOL) cracked down on the protestors in Umuechem on 31 October 1990. Many people were killed or injured in the process and 495 houses were set on fire.
2.13. In 1990 the Movement for the Survival of the Ogoni People (MOSOP) was established by [E] ( [E] ). MOSOP protested against the oil extraction in Ogoniland. Its programme was laid down in the Ogoni Bill of Rights drafted in 1991. MOSOP focused on more political autonomy for Ogoniland, fair compensation for the use of Ogoniland and the raw materials in Ogoniland as well as the repair of the damage caused by oil exploitation. Later, in 1993, organisations were established that operated under the umbrella of MOSOP. One of these organisations was the youth movement National Youth Council of Ogoni People (NYCOP).
2.14. On 20 and 21 July 1992 Ogoni demonstrated at the Bonny Terminal, a flow station operated by the joint venture in Ogoniland. The Nigerian Rapid Intervention Force cracked down on the protestors, killing one and seriously injuring two others.
2.15. On 30 November 1992 MOSOP sent a demand notice to the oil companies that were operating in Ogoniland at the time, including SPDC, with the request to pay USD 10 billion within 30 days and to commence negotiations about future oil extraction with representatives of the Ogoni. If these requests were not complied with, the demand notice assumed a total shut down of all activities of the oil companies in Ogoniland and their full retreat from Ogoniland.
2.16. At a rally on 4 January 1993 [E] held a speech in which he declared Shell a persona non grata and called for a fight for the rights of the Ogoni.
2.17. In January 1993 the joint venture pulled out of Ogoniland due to a spike in violence, including threats to its staff and attacks on its installations. The joint venture did continue its work on the Trans Niger Pipeline (TMP), which was being installed by Willbros West Africa (Willbros) through Ogoniland. MOSOP and the local population protested the construction of the TMP. In a letter dated 7 April 1993 to Willbros they objected to the presence of the army in Ogoniland. On 30 April 1993 there was a confrontation between the Nigerian army and Ogoni protestors, in response to which SPDC and Willbros decided on 3 May1993 to suspend activities on the TMG. On 4 May 1993 [divisional manager east] wrote the following to [former Shell employee] , the governor of Rivers State and former Shell employee:
“I regret to inform you that work on the Bomu end of the line has been forced to stop because of some community intervention. (…) We humbly request the usual assistance of his Excellency to enable the project to proceed.”
On 4 May 1993 a Nigerian army unit shut down the protests at the TMG. One protestor was killed.
2.18. On 15 May 1993 and 8 June 1993 talks were held between [E] and SPDC, in the person of [divisional manager east] and [Q] , then general business manager of SPDC ( [Q] ). In these talks [E] asked SPDC to support the Ogoni case. In the report of the talk, drawn up by SPDC, the following is stated as regards the statements made by [E] :
“(…) that most of the issues were political and regretted that SPDC was being used as a scape goat. He claimed that his tactics were the only way to arouse public opinion (local and international) and attract Govt attention.”
In the report of the second talk, the following is stated as regards the statements made by [E] :
“He was very apologetic for the “terrible things” he claimed to be doing to Shell particularly on the international scene. He felt that not all of that was deserved but he had no alternative instrument to use effectively for his campaign.”
2.19. In January 1994 [director of SPDC] ( [director of SPDC] ) took up his position as director of SPDC. He sent confidential memos to employees of the Service Company SIPC in London, with a carbon copy to the Service Company SIPM in The Hague, on a weekly basis and sometimes more often, known as the Nigeria Updates.
2.20. An inter-office memo from [head of Intelligence East] , head of intelligence and surveillance East of SPDC ( [head of Intelligence East] ) dated 25 February 1994 states that [head of Intelligence East] paid an extra allowance to the team of [the commander] ( [the commander] ), commander of the Rivers State Internal Security Task Force (RSISTF), on behalf of SPDC:
“as a show of gratitude and motivation for a sustained favourable disposition towards SPDC in future assignments”
2.21. On 21 April 1994 the Nigerian regime announced the action plan Operation Restore Order in Ogoniland. This operation was carried out by the RSISTF and was led by its commander, [the commander] .
2.22. On 21 May 1994 four traditional Ogoni leaders, [leader 1] , [leader 2] , [leader 3] and [leader 4] , were killed during riots that broke out at a meeting in Giokoo, a village in Ogoniland. This meeting was intended as a reception of two “sons of Gokana”, including [A] .
2.23. On 22 May 1994 Lieutenant Colonel [Lieutenant Colonel] , the military governor of Rivers State, held a press conference in which he held part of MOSOP responsible for the death of the four Ogoni leaders and made it known that he had given an order to arrest the persons in MOSOP responsible for their death.
2.24. In May 1994 [E] , [A] , [B] and [D] were arrested and detained, among others. [C] was arrested and detained in October 1994.
2.25. On 4 November 1994 the Ogoni Civil Disturbances Special Tribunal (the tribunal) was established which, as it turned out later, was tasked with prosecuting the persons who were suspected of the murder of the Ogoni leaders.
2.26. On 28 January 1995 the first group of suspects, including [A] and [B] , were indicted by the tribunal. [E] also belonged to this group of suspects. In early February 1995 proceedings against this first group of suspects was commenced.
2.27. On 28 February 1995 a second group of suspects, including [C] and [D] , were indicted by the same tribunal as the first group of suspects. In late March 1995 proceedings against this second group of suspects commenced before the same tribunal.
The two proceedings before the tribunal – against the first and second group of suspects – is hereinafter also jointly referred to as ‘the proceedings’.
2.28. In February 1995 [claimant 1] was detained for a brief period. [claimant 2] was detained for one day when she visited her detained husband. Later, on 11 November 1995, after her husband had been put to death, [claimant 2] was arrested and detained for over eight hours.
2.29. There was worldwide attention for the tribunal in 1995, and some parts of the proceedings were attended and observed by various observers and representatives of NGOs. These observers and organisations raised questions about the independence of the tribunal and the fairness of the proceedings. SPDC and the Shell Group were called to intervene in the proceedings by various sides.
2.30. A Q&A disseminated within the Shell Group on the Nigeria Issue on 16 May 1995 provided an answer to the question why Shell chose not to intervene:
“As commercial organisations, Shell companies cannot, nor should not, interfere. Such legal matters are the concern of a country’s people and their government. Neither the government nor critics of Shell companies would tolerate interference in a country’s internal affairs by a business. Shell does wish Mr. [E] to be correctly treated and have access to proper legal and healthcare facilities. (…)
We have openly expressed our concern about the situation in Nigeria. SPDC must operate within existing national law and endeavour to operate in a socially responsible manner. As a commercial organisation the company has no right to step outside its business interests and act as arbiter of Nigeria’s moral, social or political conduct. However, SPDC will speak up for the safety of its staff if they are put in danger.”
2.31. In June 1995 the report Nigeria Fundamental Rights Denied. Report of the Trial of [E] and Others by [the representative] QC was published. [the representative] had attended part of the proceedings against the first and second group of suspects, as a representative of the Law Society of England and Wales and the Bar Human Rights Committee of England and Wales and with the support of ARTICLE 19, the International Centre Against Censorship, a human rights organisation. In the summary of the conclusions of his report, [the representative] wrote the following:
“2.1 No sensible person could either doubt the seriousness of the Giokoo killings or challenge the right of the Nigerian authorities to investigate and try offences relating to them before an independent and impartial tribunal. However, I believe that the proceedings before the tribunal that has been specially appointed to try the case violate a number of the fundamental rights of the
defendants which are guaranteed both by the Nigerian Constitution and by international human rights instruments to which Nigeria is a party.
2.4 The proceedings before the tribunal are in breach of fundamental rights in that:
(1) The tribunal is not independent of the government.(…)
(2) The tribunal has made some rulings favourable to the defence. (…) But, overall, it has behaved in a way which strongly suggests that it is biased in favour of the Federal Military Government and the prosecution. (…)
2.6 In assessing the overall fairness and legality of a trial one does not simple count up the rights denied and those upheld in order to make a purely numerical comparison. It is my view that the breaches of fundamental rights I have identified are so serious as to arouse grave concern that any trial before this tribunal will be fundamentally flawed and unfair.
2.7 I am also particularly concerned about two further aspects of the case. The first is the apparent influence of the Lt-Col [the commander] , an officer against whom grave allegations of human rights abuses have been made. In my view his insistence on arranging and attending defense conferences is bound to inhibit the preparation of the defense. His uninvited presence at my own meeting with prosecution counsel must give rise to fears that their independence has been compromised. There is also reason to suspect that he has private access to members of the tribunal.”
In his report [the representative] expressed concerns over the available evidence and drew attention to a number of issues, namely:
“The two principal witnesses against [E] have now sworn affidavits claiming that they were bribed to give false evidence.”
2.32. In July 1995 the report of Human Rights Watch, entitled Nigeria. The Ogoni Crisis: A Case Study Of Military Repression In Southeastern Nigeria was published. This report is critical of the independence of the tribunal and the fairness of the proceedings before the tribunal. This report states, among other things, that two witnesses, [witness 1] ( [witness 1] ) and [witness 2] ( [witness 2] ), declared to have been bribed and that the SPDC was involved in the bribe, which both the prosecution and the SPDC have denied.
2.33. On 15 September 1995 the report of Amnesty International was published, entitled Nigeria. The Ogoni trials and detentions. This reports states the following:
“In the trials of [E] and others, the tribunal, appointed by Nigeria’s military government, is neither independent nor impartial. It has shown itself biased in favour of the
prosecution at key stages, and the defence team, headed by Nigeria’s leading civil rights lawyers, has withdrawn from the trials in protest.
Amnesty International believes that at least three of the defendants – [E] , [F ] and Dr [A] – are prisoners of conscience, imprisoned because of the non-violent expression of their political views, and is calling for immediate and unconditional release. (…)”
This report argues that the arrest and detention of the defendants was inspired by political motives and that the tribunal is not independent of the Nigerian military regime. In the description of the proceedings, this report states that key prosecution witnesses had allegedly been bribed.
2.34. On 30 and 31 October 1995 the tribunal pronounced the death sentence against nine defendants. These Ogoni 9, including the husbands of claimants, were sentenced to death by hanging. The other six defendants were acquitted.
2.35. In response to the death sentence, Shell issued the following press release on 2 November 1995:
“(…) Throughout the trial a number of respected organisations and campaigners raised questions over the fairness of the trial procedure. There are now demands that Shell should intervene, and use its perceived “influence” to have the judgement overturned.
This would be dangerous and wrong.
[E] and his co-defendants were accused of a criminal offence. A commercial organisation like Shell cannot and must never interfere with the legal process of any sovereign state. Those who call on us to do so might well be the first to criticise in any situation where that intervention did not suit their agenda. Any government, be it in Europe, North America or elsewhere, would not tolerate this type of interference by business. But what Shell has said, repeatedly and publicly, is that, while it does not agree with [E] ’s approach or opinions, it nevertheless recognises his right to hold and air his views, and that he is entitled to due legal process and medical support.(…)”
2.36. On 8 November 1995 [then chairman of CMD] , then chairman of the CMD, requested [the General] on behalf of the Shell Group in a letter not to carry out the executions.
2.37. The following is an excerpt from a press release dated 8 November 1995 from SPDC:
“However, we believe that to interfere in the process, either political or legal, here in Nigeria would be wrong. A large multinational company such as Shell cannot and must not interfere with the affairs of any sovereign state. These principles, in which we strongly believe, are embedded in Shell’s Statement of General Business Principles. The very campaigners who are calling on us today to intervene may well be the first to criticise us in any other situation where intervention does not suit their agenda.”
2.38. Op 8 November 1995 the Provisional Ruling Council (PRC), presided by [the General] , confirmed the death sentences. The Ogoni 9 were put to death by hanging on 10 November 1995.
2.39. On 11 November 1995 SPDC and Nigeria reached agreement on the so-called “NLNG project”. Nigeria Liquid Natural Gas (NLNG) is a legal entity established in May 1989 whose objective is to produce liquefied natural gas (LNG). The shareholders in NLNG were and still are NNPC, Shell Gas B.V., Total LNG Nigeria Ltd and Eni S.p.A. The shares in Shell Gas BV were held by Royal Dutch. In 1995 negotiations took place about, among other things, the operational activities of NLNG, the structure of the joint venture agreements and the financing of the joint venture by the parties involved. Sometime later, in December 1995, the agreement reached about the NLNG project was announced to the world.
2.40. On 12 November 1995 Nigeria was suspended by the Commonwealth. The United Kingdom and various other countries withdrew their ambassadors from Nigeria. The World Bank pulled out of the NLNG project due to the political situation in Nigeria.
2.41. The following is an excerpt from a press release of the Shell Group of 19 November 1995:
“First, did discreet diplomacy fail? Perhaps we should ask instead why the worldwide protests failed. Our experience suggests that quiet diplomacy offered the very best hope for [E] . Did the protesters understand the risk they were taking? Did the campaign become more important than the cause?”
2.42. On 20 November 1995 the European Union condemned the executions of the Ogoni 9, confirming measures against Nigeria from 1993. In addition, the European Union introduced an embargo on the trade in weapons, ammunition and military equipment and suspended development cooperation with Nigeria.
2.43. On 8 November 1996 Royal Dutch and STTC were sued by the families of the Ogoni 9, including the family of [E] , in the United States (the [the American proceeding I] ). In 2001 [director of SPDC] was also sued by these families and SPDC in 2003. The proceedings were brought under the American Alien Torts Claims Act (ATCA) and the Torture Victim Protection Act and – as far as it concerns Royal Dutch and SPDC – under the Racketeer Influenced and Corrupt Organisations Act (RICO). After the discovery phase the District Court of Southern New York declared itself competent on 23 April 2009, after which on 26 May 2009 the substantive hearing commenced. The case ended on 8 June 2009 with a settlement of USD 15.5 million, with which a trust fund was established for the Ogoni people, among other things.
2.44. On 1 September 2002 [claimant 1] , in part on behalf of her deceased husband, and 11 family members of Nigerian Ogoni activists also sued Royal Dutch and STTC in the United States (the [the American proceeding II] ). In 2004 she also sued SPDC. In 2013 the Supreme Court declared the American court incompetent to take cognizance of the case and opined that proceedings under the ATCA can only be instituted in America if there are sufficient links to the American jurisdiction. And that was not the case in the [the American proceeding II] , according to the Supreme Court.
The [the American proceeding I] and [the American proceeding II] are hereinafter jointly referred to as ‘the American proceedings’.
3. The dispute
3.1. Claimants claim in the principal action in an order declaring a judgment provisionally enforceable:
I. to rule that defendants have acted unlawfully towards claimants and are jointly and severally liable towards them for the damage they have incurred and will incur as a result of the wrongful conduct of defendants, which damage is to be assessed later during separate follow-up proceedings and settled according to the law, plus statutory interest until the date on which payment is made in full
to order defendants to offer a public apology within 21 days of the judgment, to be expressed by the CEO of Royal Dutch Shell or at least the CEO of SPDC, for the role Shell has played in the events leading to the death of the husbands of claimants, and to publish the text of the apology clearly visible on its website, subject to a penalty of € 20,000 per day – or another amount to be determined by the court – for every day this order is not complied with;
to jointly and severally order defendants to pay the extrajudicial costs;
to jointly and severally order defendants to pay the costs of these proceedings, including subsequent costs.
3.2. Claimants allege that defendants are an accessory to the unlawful arrest and detention and the violation of the personal integrity of their husbands and, in the case of [claimant 1] and [claimant 2] , of their own personal integrity. They also accuse defendants of being an accessory to the violation of the right to a fair trial and the right to life of their husbands and their own right to family life. They hold defendants – which they jointly refer to in the singular ‘Shell’ – responsible for being an accessory to these fundamental rights violations by the Nigerian regime, with whom Shell formed an alliance, or so allege claimants, which led to the death of their husbands. More specifically, claimants allege that Shell:
was the driving force behind the excessively violent action of the regime, because it had repeatedly requested the Nigerian authorities since the 1980s to intervene whenever its operations were disrupted by protests of the local population. It repeatedly passed on the exact locations of the usually peaceful protests and made equipment available, accepting that it would result in numerous deaths and injuries;
facilitated Operation Restore Order in Ogoniland i) by instigating violent and other actions against MOSOP and ii) because [the commander] also worked on Shell’s behalf;
operated in tandem with the Nigerian regime, in which Shell i) facilitated the excessive action of the Nigerian regime, but also ii) carried out typical government duties in the area of security and intelligence gathering and iii) had placed strawmen in key positions in the Nigerian regime and vice versa;
was deeply involved in the proceedings which sought to secure the interests shared by Shell and the regime, considering that i) its attorney [attorney 1] (hereinafter: [attorney 1] ) was keeping it informed of all details and ii) supported the position of the prosecution with a watching brief and iii) Shell’s protégé [the commander] played a dominant role during the proceedings;
contributed to the outcome of the proceedings through i) its involvement in bribing witnesses who had to make incriminating statements against the Ogoni 9 and ii) direct contact with the judges of the tribunal;
offered to influence the outcome of the proceedings under the condition that MOSOP would cease its protest against Shell;
knowing how the proceedings would end and being in a position to stop the executions, it let its commercial interests prevail over the fate of the Ogoni 9, by i) not distancing itself from the course of the proceedings at any point in time, ii) to continue its support of the Nigerian regime and iii) not intervene publicly or otherwise, while iv) securing its economic interests during the proceedings by negotiating about the NLNG project, which would extend the cooperation between the Nigerian regime and Shell for many years to come.
3.3. In the procedural issue claimants claim in a provisionally enforceable judgment on the procedural issue, as changed at the personal appearance:
I. to order defendants to grant claimants inspection within 21 days of the judgment to be pronounced in these proceedings to:
i. the part of the intended trial exhibits designated by the plaintiffs which have been produced by the defendants and which has been labelled as confidential in the American proceedings and/or;
ii. the intended trial depositions designated by the plaintiffs which have been produced by the defendants some of which have been labelled as confidential in the American proceedings and/or;
iii. the documents from the privilege log (Exhibit 198 summons and Exhibit 3 in the procedural issue, overview CDST documents) with the following numbers: 91 through to 94, 97 and 98, 100 through to 105, 125, 163, 165, 166 and 199 through to 206, or those reports the court finds allowable;
and following inspection, issue a copy or extract to claimants of the part of these documents requested by claimants, either in photocopy or a standard digital format or in any other form this court deems fit;
II. subject to a penalty of € 5,000 following service of the judgment for every day that defendants continue to fail to comply with the order, with a maximum of € 50,000;
III. to jointly and severally order defendants to pay the costs of the procedural issue, with the proviso that statutory interest will be due if these costs have not been paid within 14 days from pronouncement of the judgment.
3.4. Claimants allege that as regards all these documents, the requirements of Section 843a of the Code of Civil Procedure (CCP) have been met in terms of issuance of such documents.
3.5. Defendants put up a reasoned defence in the principal action and in the procedural issue. They have stated first and foremost that they are aware of the tragic and shocking nature of the events leading up to the execution of the Ogoni 9. However, defendants cannot accept the manner in which claimants have presented the role of SPDC and the Shell Group in these events nor in the description of these events by claimants. Defendants contest the claims on substantive grounds and also put up lines of defence which are in conflict with a substantive assessment, such as their invocation of the lack of jurisdiction of the court and their invocation of limitation.
3.6. The standpoints of the parties are discussed below – in so far as relevant.
4.1. The court states first and foremost that the death of their husbands was a sad and tragic event for claimants, which has marked their lives. At the hearing claimants described their experiences of the events as well as the sad and dramatic consequences of their husbands’ deaths. Claimants’ sadness and great loss are not in dispute. It is an established fact that their
life has changed drastically following the death of their husbands and the preceding arrest, detention and proceedings before the tribunal. The court is aware of the shocking and tragic nature of the events, which defendants have also acknowledged.
In these proceedings, the court must answer the question whether defendants can be held co-liable at law for the arrest, detention, conviction of their husbands and the subsequent execution of their sentence – as claimed by claimants.
4.2. Claimants allege that as accessories defendants played a role in the violations of fundamental rights of their husbands and themselves as well as in the events leading up to the death of their husbands. According to claimants defendants formed an alliance with the Nigerian regime. Claimants discuss at length the conduct of the Nigerian authorities, which is attributable to the Nigerian State, the tribunal that convicted the Ogoni 9 and the Nigerian military and police units. They are right to start from the idea that this conduct attributable to the Nigerian State cannot be assessed in these proceedings, in which Nigeria is not party. Apart from that, according to unwritten Dutch international private law has immunity for this conduct that can be qualified as acte jurii imperii, for which the Nigerian State can only be sued in Nigeria.
4.3. Parties agree that the claims of claimants are governed by Nigerian law. If and in so far as needed, they have thereby made a choice of law for Nigerian law. In the court documents, in the form of legal opinions and Nigerian jurisprudence, parties have expressed their opinions on the relevant Nigerian law that must be applied in these proceedings. In addition, the court carried out its own investigation by consulting literature and jurisprudence.
4.4. At the personal appearance claimants explained that with claim I they wish to obtain a statement that defendants acted in violation of the fundamental rights invoked by claimants and that defendants are jointly and severally liable for the damage incurred by claimants and the damage they will incur. The court reads the claim for relief in this manner.
4.5. Claimants rely on the violation of the following fundamental rights of their deceased husbands and of themselves, as laid down in the African Charter on Human and Peoples Rights (ACHPR) and the Nigerian Constitution of 1979 (NGW (1979)):
i) The right to life (Article 4 ACHPR and Article 30 NGW (1979),
ii) The right to dignity of a person and the prohibition of torture and cruel or inhuman punishment and treatment (Article 5 ACHPR and Article 31 NGW (1979),
iii) The right to personal liberty and the security of the person; the prohibition of arbitrary arrest and detention (Article 6 ACHPR and Article 32 NGW (1979),
iv) The right to a fair trial (Article 7 ACHPR and Article 33 NGW (1979),
v) The right to family life (Article 18 ACHPR and Article 34 NGW (1979).
4.6. Claimants hold STTC, as then parent company, and SPNV, as legal successor to Royal Dutch, the other then parent company, liable. They hold the parent companies and SPDC separately liable for violations
of the fundamental rights stated under 4.5. They have summonsed RDS, which was established after the events complained of, to be on the safe side, in case RDS can or must be held liable for acts taken place before the restructuring of the Shell Group.
4.7. The accusations (see under 3.2) on which claimants have based their claims virtually exclusively relate to conduct by SPDC or conduct of the board and employees attributable to SPDC. Claimants also hold the parent companies liable for that. To that end, they argue that SPDC and the parent companies actually acted as one entity. Claimants allege that SPDC did nothing without first consulting or obtaining the implicit consent of the parent companies, which knew exactly which role SPDC played in the events in Ogoniland also involved themselves in the events. They argue that the Shell Group acted as one centrally controlled organisation in the conduct complained of and handled the Ogoni issue as a group matter.
4.8. Claimants expressly do not base their claims against the parent companies on the Anglo-Saxon legal concepts of piercing the corporate veil and crossing the corporate veil, shareholders’ liability or tort or negligence. Claimants allege that the basis of their claims against the parent companies do not differ from those against SPDC. They accuse SPDC and the parent companies of carrying out a joint and coordinated action at the events that led to the alleged fundamental rights violations. The fact that SPDC and the parent companies operated at different levels does not alter the basis of the claims, or so argue claimants. During the parties’ appearance claimants requested the court to assess the claims according to the standards for tort, in case it is assessed that their claims cannot be directly based on the invoked provisions from the ACHPR and NGW (1979).
4.9. The court will first discuss in more detail below (under II) the fundamental rights invoked by claimants as well as the way in which in Nigeria people can contest at law imminent or actual violations of these rights. The court will then (under II) assess in the principal action and in the procedural issue whether or not it has jurisdiction. Under IV the procedural issue is discussed, followed by the invocation of limitation (under V) and the assessment on the merits (under VI). The judgment is structured as follows:
II. the fundamental rights invoked by claimants and the manner in which in Nigeria people can contest at law imminent or actual violations of such rights
III. jurisdiction of the Dutch court
IV. the procedural issue regarding exhibits
IV.1 the intended trial exhibits and intended trial depositions (claim i) and ii))
IV.2 the CDST documents (claim iii))
IV.3 the minutes of the CMD meeting of 7 November 1995
V. the invocation of limitation by defendants
VI. discussion of the accusations on the merits
VI.1 involvement in and influencing of the proceedings before the tribunal
VI.1.a holding a watching brief, support to the prosecution and informal contacts with the judges of the tribunal
VI.1.b bribing of witnesses
VI.1.b.i involvement of SPDC
VI.1.b.ii use of statements in the convictions
VI.1.b.iii use of statements in the arrest and detention
VI.1.c [the commander]
VI.2 offer to influence the proceedings on the condition that MOSOP ceases it protest against SPDC
VI.3 non-intervention in the proceedings
VI.3.a monitoring the proceedings
VI.3.b quiet diplomacy
VI.3.b.i contacts between [director of SPDC] and Nigerian officials
VI.3.b.ii other contacts with Nigerian officials
VI.3.b.iii the period between the sentences and executions
II. the fundamental rights invoked by claimants and the manner in which in Nigeria people can contest at law imminent or actual violations of such rights
4.10. The ACHPR, as relied on by claimants, has been signed, ratified and then incorporated into Nigerian law by means of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983.1 This act consists of two articles: the citation provision, as laid down in Article 2, and Article 1, which reads as follows:
“As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.”
The Schedule to this Act is the full ACHPR, which has thereby been incorporated into the Nigerian legal system. The Nigerian Supreme Court considered as follows regarding this:
“Since the Charter has become part of our domestic laws, the enforcement of its provisions like all our other laws fall within the judicial powers of the courts as provided by the Constitution and all other laws relating thereto.”2
4.11. Articles 31 through to 34 of the Nigerian Constitution (NGW (1979)), on which claimants rely, are contained in chapter IV of NGW (1979). Article 42 NGW (1979) which also forms part of chapter IV of NGW (1979) stipulates that:
“(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.”
1. Chapter A10 Laws of the Federation of Nigeria 1990 and Chapter A9 Laws of the Federation of Nigeria 2004
2 Cf. Ogugu v. The State (1994) 9 NWLR (Pt 366) 1
Article 46 of the Nigerian Constitution of (NGW (1999)) is identical. This provision is also contained in chapter IV of said Constitution which, like chapter IV of NGW 1979, contains fundamental rights.
4.12. The fundamental rights invoked by claimants have horizontal effect under Nigerian law.3 This jurisprudence has been summarised as follows by Akintin JSC in the case of Abdulhamid v. Akar and another4:
“The position of the law is that where fundamental rights are invaded not by government agencies but by ordinary individuals, as in the instant case, such victims have rights against the individual perpetrators of the acts as they would have done against state actions. It follows therefor that in the absence of a clear and positive prohibition which precludes an individual to assert a violation or maintain a similar action in a court of law against another individual for his act that had occasioned wrong or damage to him or his property in the same way as an action he could maintain against the State for a similar infraction.”
These fundamental rights may also be invoked against companies.
4.13. The third paragraph of Article 42 NGW (1979)/46 NGW (1999) gives the Nigerian
Chief Justice (hereinafter: the Chief Justice) the jurisdiction
“(to) make rules with respect to the practice and procedure of a High Court for the purposes of this section.”
4.14. Under application of this jurisdiction, the Chief Justice adopted the Fundamental Rights (Enforcement Procedure) Rules (the FREP Rules 1979) in 1979. The FREP Rules 1979 provide for a sui generis legal action under Article 42 NGW (1979) for imminent or actual violations of the fundamental rights enshrined in chapter IV of NGW (1979).
4.15. In 2009 the Chief Justice adopted new FREP Rules (the FREP Rules 2009), which came into force on 1 December 2009. The FREP Rules 2009 also apply to redress as regards imminent or actual violations of ACPHR. Order II (1) of the FREP Rules 2009 stipulates that:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or
Africa n Ch a rter o n Hu ma n and Peo p les’ Righ ts (Ra tifica tion a n d En fo rcemen t) Act [underlining by the court] and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:”
Under the FREP Rules 1979 it had already been adopted that the fundamental rights from ACPHR may be invoked under the sui generis legal action contained therein.5
4.16. Order XV Rule (1) and (2) of the FREP Rules 2009 stipulate that:
“(1) The Fundamental Rights (Enforcement Procedure) Rules 1979 are hereby abrogated.
(2) From the commencement of these Rules, pending Human Rights applications commenced under the 1979 Rules shall not be defeated in whole or in part, or suffer any judicial censure, or be struck out or prejudiced, or be adjourned or dismissed, for failure to comply with these Rules provided the applications are in substantial compliance with the Rules.”
4.17. The Explanatory Note to the FREP Rules 2009 states that these rules govern the procedure of the sui generis legal action for imminent or actual violations of fundamental rights:
3 Cf. Onwo v. Oko & Ors (1996) 6 NWLR (Pt. 456) 584 and Ogugu v. The State (1994) 9 NWLR (Pt. 366) 1
4 (2006) 5 SCNJ 43
5 Cf. Ogugu v. The State (1994) 9 NWLR (Pt 366) 1
“These Rules provide for the rules of procedure to be followed in the Court in applications for the enforcement or securing the enforcement of Fundamental Rights under Chapter IV of the 1999 Constitution and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.”
Situations not provided for in the FREP Rules 2009 fall under the Civil Procedure Rules of the Court for the time being in force (see Order XV (4) FREP Rules 2009).
4.18. The FREP Rules 2009 has abrogated several procedural requirements and formalities under the FREP Rules 1979. The preamble contains the order to the court to “constantly and conscientiously seek to give effect to the overriding objectives of these Rules.” The subsequent overriding objectives seek to give a broad application to the protection of fundamental rights and to their expansive interpretation. These overriding objectives cover the following, among other things:
“(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.
b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. (…)
c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.”
4.19. One of the changes to the FREP Rules 2009 as compared to the FREP Rules 1979 concerns the period within which legal proceedings must be instituted. Order I
(3) of the FREP Rules 1979 – on which defendants base their invocation of limitation under V.– determines that:
“Leave shall not be granted to apply for an order under these Rules unless the application is made within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court or Judge to whom the application for leave is made.”
Order III of the FREP Rules 2009 determines that:
“An application for the enforcement of Fundamental Rights shall not be affected by any limitation Statute whatsoever.”
4.20. Article 42 NGW (1979)/46 NGW (1999) is entitled Special jurisdiction of High Court. This article determines that the High Court of the state where the imminent or actual fundamental rights violations take place has original jurisdiction to take cognizance of the constitutional claim for redress. In the FREP Rules 1979 is Court in Order 1(2) is defined as the Federal High Court or the High Court of a State. The FREP Rules 2009 add the High Court of the Federal Capital Territory, Abuja in Order II(1). In Nigeria, courts without jurisdiction as regards a particular legal action are ipse facto not deemed competent to take enforceable and binding decisions as regards that legal action.6 That also applies to proceedings instituted under application of the FREP Rules. If an incompetent court makes a decision as regards such proceedings after all, other than in the sense of a referral of the case to a competent court, the proceedings are null and void.7 The courts designated in Article 42 NGW (1979)/Article 46 NGW (1999) and in
6 Cf. Madukolu v. Nkemdilim (1962)2 SCNLR 341
7 Cf. Madukolu v. Nkemdilim (1962)2 SCNLR 341
the FREP Rules 1979/2009 have exclusive jurisdiction in Nigeria in the sui generis legal action to which the FREP Rules 1979/2009 apply.
4.21. Under Nigerian law, the sui generis legal action to which the FREP Rules 1979/2009 apply is not an exclusive legal procedure for imminent or actual violations of fundamental rights.8 Such violations may also be addressed in other legal procedures and on other bases, for instance in the context of criminal-law proceedings or in proceedings based on tort or contract. The Nigerian Supreme Court has considered as follows about this:
“(…) the provision of Section 42 of the Constitution for the enforcement of the fundamental rights enshrined in Chapter IV of the Constitution is only permissible and does not constitute a monopoly for those rights. The object of the Section is to prove a simple and effective judicial process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. The object has been achieved by the (FREP-Rules ((1979)). It must be emphasised that the Section does not exclude the application of the other means of their enforcement under the common law or statutes or rules of courts. (…) A person whose fundamental right is being or likely to be contravened may resort to any of these remedies for redress.”9
4.22. A party wishing to put forward an imminent or actual violation of the fundamental rights from the ACPHR and NGW invoked by claimants in legal proceedings in Nigeria has the choice to do so i) either with a claim for redress in a sui generis legal action to which the FREP Rules 1979/2009 apply and ii) or on another basis in other proceedings. That other basis would be the private-law concept of tort for a claim instituted by claimants against defendants, who they directly sue extracontractually for their conduct. But claimants do not base their claims in the first instance on this principle. In Nigeria claimants would have to institute proceedings before the exclusively competent Federal High Court or the High Court in the sui generis legal action to which the FREP Rules apply. Below, under III., the court will assess if and to what extent this has consequences for the jurisdiction of the Dutch court.
It is not in dispute that the Dutch court has international jurisdiction to take cognizance of the claims against the parties RDS and SPNV, established in the Netherlands. The court has international jurisdiction to take cognizance of the claims against STTC, established in London, and SPDC, established in Nigeria, if the requirements of Article 8 paragraph 1 Brussels I bis Regulation10 and of Article 7 Code of Civil Procedure (CCP), respectively, have been met. STTC and SPDC contest that these requirements have been met and argue to that end that the actions of each of the defendants, especially considering the separate entity doctrine under Nigerian company law, must be distinguished, while a joint processing of the claims is not efficient in the opinion of STTC and SPDC, as the claims against ‘anchor’ defendant SPNV have no chance of succeeding.
8 Cf. Ina and 4 Ors v. Ukoi (2003) FWLR (Pt. 143) 382
9 Cf. Ogugu v. The State (1994) 9 NWLR (Pt 366) 1
10 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (PbEU 2012, L 351/1)
Under Article 8 paragraph 1 Brussels I bis Regulation international jurisdiction with respect to claims brought against STTC can be assumed, if the link between the claims against RDS and SPNV are so close that a good administration of justice requires a simultaneous handling and prosecution in order to prevent contradictory decisions. These requirements should be interpreted with caution. This means, among other things, that the mere fact that divergent rulings may be issued is insufficient to prove said close link. The requirements is that the divergence may occur in the context of the same situation, both factually and at law, and that it is not required that the claims instituted against the various defendants have the same legal basis.11 The examination of the jurisdiction based on the Brussels I bis Regulation should not be limited to the assertions of the claimant. The court should take account of all of the data available to him about the true legal relationship between the parties and, if applicable, the assertions of the defendant. However, in this context there is a limitation, namely that if the defendant contests the assertions of the claimant the court does not have to provide opportunity for furnishing evidence in the context of establishing his jurisdiction.12
Under Article 7 CCP, jurisdiction as regards SPDC can be assumed if the correlation between the claims against the various defendants is such that reasons of efficiency justify a joint handling of the claims. Since the Dutch legislator sought to follow the predecessors of the Brussels I bis Regulation when introducing and, later, amending Articles 1 through to 14 CCP,13 for the interpretation of the Community rules on jurisdiction for international jurisdiction a link should be sought, in principle, with the jurisprudence of the Court of Justice of the European Union (CJEU) regarding the Brussels I bis Regulation and its predecessors, unless it is plausible that the Dutch legislator’s intention when incorporating a Community rule was to deviate from Union-law instruments or their interpretation by the CJEU.14
The heart of the accusation of claimants is that SPNV, STTC and SPDC acted in concert in the fundamental rights violations alleged by claimants. The claims against the three defendants are based on the same facts, circumstances and legal bases. The claims against SPNV, STTC and SDPV therefore pertain to the same situation, both factually and at law. This is especially true for the claims against the two parent companies SPNV and STTC, which both factually and legally cannot be viewed in isolation from the claims against the operating company SPDC. The court is of the opinion, like claimants, that if these related cases were to be prosecuted separately, there is a risk that contradictory decisions will be made. In light of this identical situation, factually and at law, SPDC, STTC and SPNV should have foreseen that they could have been summonsed in court in the country of establishment of a co-defendant.
11 Cf. CJEU 21 May 2015,(Cartel Damage Claims/Akzo Nobel), point 17-20 and
also CJEC 13 July 2006,(Roche/Primus); CJEC 11 October 2007,
(Freeport); CJEU 12 July 2012,(Solvay)
12 Cf. CJEU 28 January 2015,(Kolassa/Barclays Bank), point 58-65, and CJEU 16 June
2016,(Universal Music/Schilling), point 42-46
13 Parliamentary Papers II 2002-2003, no. 3, p. 1
14 Cf. Supreme Court 29 March 2019, ECLI:NL:HR:2019:443
The standpoint of the defendants that the joint handling of the claims is not efficient, because the claims against the ‘anchor’ defendant SPNV have no chance of succeeding, is only relevant in the case against SPDC, in which the court must test against Article 7 paragraph 1 CCP. Defendants base their standpoint regarding the chance of success of the claims against SPNV on group liability, which is not the basis of the claims. Considering the factual basis of the claims, which consists of the alleged direct involvement of SPNV in the violations of the fundamental rights invoked by claimants, which under Nigerian law have direct and horizontal effect and which can also be invoked against companies, it cannot be stated beforehand that these claims are evidently bound to fail. If and to what extent the reproaches against the ‘anchor’ defendant SPNV hold, must be assessed in the principal action.
The invocation of STCC and SPDC of the judgment of English Court of Appeal in the Ogale case,15 in which the English court deemed it had no jurisdiction towards SPDC, cannot succeed. The check against English law, performed by the English court, is different from the check applicable in this case against Article 8 paragraph 1 of the Brussels I bis Regulation and Section 7 CCP.
As has been considered above under 4.20 and 4.22, claimants should institute legal proceedings with the exclusively competent Federal High Court or the High Court in the sui generis proceedings, to which the FREP Rules apply, if they were to institute legal proceedings in Nigeria. The court views the exclusive jurisdiction referred to under 4.20 and 4.22 for such proceedings before the Federal High Court or the High Court as a rule of territorial jurisdiction for instituting such proceedings in Nigeria. There is no written or unwritten Dutch international private-law rule that requires the conclusion to be drawn that this Nigerian rule of territorial jurisdiction stands in the way of the Dutch court having jurisdiction – as has been established above – as regards all defendants, taking cognizance of the claims based on a direct invocation of fundamental rights, as invoked by the claimants. Claimants can therefore also institute proceedings with the Dutch court for their claims directly based on the fundamental rights as stated in 4.5, in which they claim redress in the form of public apologies and a declaratory decision.
The claims in the procedural issue relate to two categories of documents from the discovery phase in the American proceedings: the intended trial exhibits and intended trial depositions (claim i) and ii)) and the CDST documents (claim iii)). At the hearing, claimants extended their claim to the unredacted version of the minutes of the meeting of the CMD of 7 November 1995, of which defendants submitted a redacted version to the proceedings.
Claimants state that the requirements of Section 843a CCP have been met, whose subsection 1 determines that, at their own expense, those with a legitimate interest can claim perusal or a copy or excerpt of specific documents about a legal relationship to which he or his legal predecessors are party from those who have these documents at their disposal
15 Lungowe and Ors v. Vedanta resources Plc and Konkola Copper Mines Plc (2017) EWCA Civ 1528, (2017)
or in their keeping. There is an exception to the foregoing under subsection 4 of Section 843a CCP, namely if there are compelling reasons thereto as well as if it can reasonably be assumed that a proper process of justice is also ensured without issuance of the requested information. In that case, those who have the documents at their disposal or in their keeping is not obliged to comply with this claim.
the intended trial exhibits and intended trial depositions (claim i) and ii))
These elements of the claim pertain to the intended trial exhibits and intended trial depositions designated as such by the plaintiffs in the discovery of the American proceedings. These documents have been produced by the companies belonging to the Shell Group that were party to the American proceedings, some of which have been marked as confidential by them. These documents had to be returned or destroyed within 30 days from termination of these proceedings under the confidentiality agreement between the claimants and the relevant Shell companies.
[claimant 1] states that it cannot be justified that she, considering the fact that she is continuing her legal battle in the Netherlands, does not have access to a key part of the evidence gathered in the United States in her own case, in which the same facts and legal principles were at issue. Claimants argue that by refusing to issue these documents, defendants attempt to gain an edge in these proceedings, which is contrary to the substantive fact-finding which should be carried out in legal proceedings and to the principle of equality of arms, as enshrined in Article 6 ECHR, of which Section 843a CCP seeks to be an implementation. They wish to use the claimed documents for the further substantiation of their claims in these proceedings and possibly other claims submitted based on the same body of facts.
Section 843a subsection 1 CCP requires that the documents whose perusal or copy is claimed are sufficiently determined, meaning that they do not have to be described individually. This requirement has been met if there is reasonable ground to assume that the relevant documents exist and the claim:
“relates to a subject that is accurately defined by means of a description of the file and the identification of the persons and organisations involved in the documents.” 16
This specification of the requirement of sufficient determination is intended not to unreasonably complicate the position of the person claiming perusal by requiring him to specify all documents and describe the individual documents. At the same time, the position of the person from whom perusal is claimed is not unreasonably damaged, as there is a sufficiently specific definition.
Although the requirements as set out in Section 843a CCP, ‘specific documents’ and ‘legitimate interest’, have been more broadly interpreted over the years, the intention of the legislator for incorporating these requirements in Section 843a CCP, namely the prevention of so-called fishing expeditions, applies in full.
The claimed intended trial exhibits were previously issued in the American proceedings under the confidentiality agreement. Therefore, they exist and it is not in dispute that defendants still have access to them. The claimed categories of documents, the intended trial exhibits and the intended trial depositions, regard a large number of
16 Supreme Court 26 October 2012, ECLI:NL:HR:2012:BW9244, (X/Theodoor Gilissen Bankiers NV.)
documents of various natures and the content from the discovery in the American proceedings, which in the [claimant 1] case was in an early stage. Parties had indicated what they deemed relevant, but it had not been decided yet which documents would definitely be admitted. These documents pertain to a substantial body of facts. From claimants’ explanation it becomes clear that the claimants in the American proceedings wanted to submit the claims to the jury in three steps, namely:
the Nigerian regime was responsible for the extrajudicial execution, torture and battery,
SPDC was co-responsible under the concepts of aiding and abetting, conspiring, joint venture responsibility and responsibility for ratifying,
the parent companies and [director of SPDC] were co-responsible for the actions of SPDC under the concepts of agency liability for SPDC, aiding and abetting SPDC, conspiring with SPDC.
Each of these three steps also cover a multitude of subsubjects.
In view of this, the claimed categories of documents, the intended trial exhibits and intended trial depositions from the discovery in the American proceedings are defined too broadly and do not meet the requirement of ‘specific documents’. Since that is the case, it can also not be assumed that the requirement of ‘legitimate interest’ has been met. Moreover, the claims in these proceedings were submitted from a different angle than the claims in the American proceedings. The circumstance that these documents were possibly relevant in the American proceedings, does not automatically mean that claimants have a legitimate interest in examining the documents in these proceedings, which have been instituted from a different angle. Finally, the fact that a large number of documents in a general sense might be relevant or interesting is insufficient to meet the requirement set in Section 843a subsection 1 CCP as regards sufficient legitimate interest.
Since with respect to the intended trial exhibits and intended trial depositions the requirements of legitimate interest and specific documents from Section 843a subsection 1 CCP have not been met, claims i) and ii) must be rejected. This means that the court will not be able to discuss the other points of dispute, regarding the other requirements of Section 843a CCP subsection 1 and the existence of compelling reasons as stated in subsection 4 of this provision.
IV.2 the CDST documents (claim iii))
The CDST documents claimed under iii) are the documents pertaining to the tribunal, which in the privilege log in the discovery of the American proceedings have been described as Communications from counsel regarding proceedings before the Ogoni Civil Disturbances Tribunal. These are (i) the trial reports, the reports of the attorneys of the office of [attorney 1] , who had been hired by SPDC to monitor the proceedings before the tribunal (see also below under VI.1.a), and (ii) documents which reported on the content of the trial reports within SPDC or wider within the Shell Group. After defendants had submitted the trial reports to the court, claimants reduced their claim to the non-submitted category ii) CDST documents designated in 3.3 under iii). The dispute is limited to these documents, which defendants have not issued.
The argument of defendants that the CDST document did not need to be submitted in the American proceedings is unsuccessful. The determining factor is if they, under Dutch law are obliged to issue a copy of these documents pursuant to Section 843a CCP.
Defendants contest that claimants have a legitimate interest in obtaining a copy of these documents, because the source material of the non-submitted internal reports – the trial reports – has been issued.
Since claimants accuse defendants of involvement and interference in the proceedings against their husbands, they have a legitimate interest in obtaining a copy of the internal documents, which are used to report on the content of the since submitted trial reports within SPDC or wider within the Shell Group. The other requirements of Section 843a subsection 1 CCP have also been met: the documents are sufficiently determined, and the defendants have them.
Defendants subsequently invoke the confidential nature of the documents, which according to defendants provides a compelling reason not to issue a copy of the remaining CDST documents.
A party might find a compelling reason – within the meaning of Section 843a CCP – to be upholding the confidentiality of its internal decision and thought process, including the role in this process of external advisors, if any. Whether or not in a concrete case such an invoked compelling reason exists which must lead to a rejection of the claim or application as regards that confidential information, the court must take a decision, stating reasons, after weighing all interests involved. It is for the party invoking the existence of such a compelling reason to assert and – if needed – argue convincingly for which information it is invoking the existence of its interest in confidentiality and, if required, what that interest is. The statement must be so specific that the court can form an opinion on the justification of the invocation.17
In general terms defendants describe that the remaining CDST documents contain business confidential information. They therefore have not met the above-described requirement of a concrete and specific statement based on which the court can form an opinion on the justification of the invocation of the existence of compelling reasons within the meaning of Section 843a subsection 4 CCP.
This means that defendants must issue the CDST documents stated in claim iii) to claimants, within the claimed term of 21 days. The claimed penalty is awarded as being insufficiently disputed. The internal nature of the documents compels the court to attach the condition that claimants only use these documents for these proceedings, pursuant to Section 28 CCP. Claimants are also prohibited from issuing the documents to third parties or disclose anything about the content of these documents to third parties.
IV.3 the minutes of the meeting of 7 November 1995
Finally, at the hearing claimants have extended their claim in the procedural issue to include the non-redacted minutes of the meeting of the CMD of 7 November 1995, of which defendants submitted a redacted version. The court understands that claimants also wish to receive an excerpt of the redacted passages, in so far as they related to the tribunal and/or the Ogoni issue.
17 Cf. Supreme Court 26 October 2018, ECLI:NL:HR:2018:1985
At the hearing defendants explained that the redacted passages contain information which did not need to be submitted in the American proceedings. Defendants believe that this constitutes a compelling reason not to issue to entire document. With this general explanation, defendants have failed to comply with the requirement – as described above in 4.41 – of a concrete and specific statement based on which the court can form an opinion on the justification of the invocation of the existence of compelling reasons, within the meaning of Section 843a subsection 4 CCP. Defendants must issue an unredacted version of the minutes of the CMD meeting of 7 November 1995, in so far as the unredacted passages pertain to the tribunal and/or the Ogoni issue. The court attaches the same conditions as to the issuance of the CDST documents (see under 4.43).
Since parties have both been unsuccessful on certain points, the costs of the proceedings in the procedural issue are compensated.
Defendants invoke limitation. Parties rightfully assume that this point of dispute is governed by Nigerian law, the law that governs the claim (see Book 10 Section 14 Dutch Civil Code (BW)).
Defendants base their invocation of limitation on Order I (3) of the FREP Rules 1979, from which they believe follows that the claims of claimants expired on 9 November 1996. Defendants argue that an exception to the limitation period, as provided for in the FREP Rules 1979, is not relevant here. They also argue that, in so far as claimants base their claims on tort, their claims have lapsed.
Claimants initially took the standpoint that the limitation issue was governed by Order III of the FREP Rules 2009. At the appearance claimants changed their standpoint to the standpoint that the FREP Rules do not apply at all to their claims, which are directly based on the NGW (1979) and the ACHPR. They assert that their claims are not subject to limitation, because neither the NGW (1979) nor the ACHPR contain a facility for limitation.
Since claimants have brought legal action against defendants in the Netherlands, the proceedings will be held in accordance with the rules of Dutch civil procedural law. However, this does not mean that the FREP Rules cannot have any relevancy for the limitation defence as pleaded by defendants, as claimants argue. Because it does not alter the fact that claimants, since they are not initially basing their claims on tort, would have had to resort to the sui generis proceedings in Nigeria, to which the FREP Rules apply (see under 4.20 and 4.22). If the FREP Rules contain a provision which can be interpreted as a limitation facility – as envisioned by defendants – that provision from the FREP Rules becomes relevant to the defence pleaded by defendants in these proceedings that the claims of claimants have lapsed.
From the literature and jurisprudence consulted by the court regarding Order I (3) from the FREP Rules 1979 and Order III from the FREP Rules 2009 invoked by defendants it follows that the qualification of the provision therein is or has been subject to discussion – as a possibly purely procedural condition – and that the
question has been raised whether or not the Chief Justice went beyond the scope of his authority to establish procedural rules. Be that as it may, it is accepted in Nigerian jurisprudence that there is a temporal limitation to the right to institute proceedings in the sui generis proceedings to which the FREP Rules 1979 apply. For instance, in the case of N.D.I.C. v. O’Silvawax Intl. Ltd, in which the claim of 8 November 1996 pertained to events that had occurred on 24 July1995, the following was considered:
“A cause of action accrues on a date when a breach or any event would warrant a person who is adversely affected by the act of another to seek redress in court. A legal right to enforce an action is not a perpetual right but a right generally limited by statute. A cause of action will be statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation Law or Act has elapsed. If the date on the writ is beyond the period allowed by the limitation law then the action is statute barred.
In this appeal, the time between the date the cause of action accrued and when the action was filed going by the writ, falls outside the limitation period allowed by the (FREP-Rules) [1979, addition by the court] thereby making this action invalid and incompetent. Where the cause of action of the plaintiff is statute-barred, it affects the legal competence or jurisdiction of the court.”18
In doing so, Order I rule (1) of the FREP Rules 1979 – regardless of the question whether or not the FREP Rules should be qualified as a purely procedural facility – is applied as a limitation facility in Nigerian law. Jurisprudence also refers to a statute barred action. The limitation defence pleaded by defendants thereby compels an investigation of the question whether the claims of claimants were submitted too late in the Nigerian legal practice, to which the FREP Rules 2009 apply, pursuant to Order I rule (1) of the FREP Rules 1979.
Following the entry into force of the FREP Rules 2009, Order I rule (1) of the FREP Rules 1979 were still applied in proceedings in which the claim was submitted before the entry into force of the FREP Rules 2009. This happened, for instance, in the judgment of 6 March 2015, Denca Services Ltd. v. Leo Oleka and sons, Nigeria Custom Services, in which a claim was submitted on 5 April 2007 regarding events that had taken place on 8 April 2005.19 In the judgment also pronounced after 1 December 2009 in the case of The Gov. of Borno State et al. v. Alh. Ngabura Bukar Gadangari regarding a claim submitted on 22 January 2008 pertaining to events that had taken place on 17 February 2004, the following was considered:20
“(…) to enforce infringement of any of the fundamental rights enshrined in Chapter IV of de Constitution of the Federal Republic of Nigeria , 1979 if not made within twelve months from the date of the happening of the event or act complained of will not confer jurisdiction on the lower court to entertain and grant relief to the aggrieved person.
Order 1 rule 3 (1) of the (FREP-Rules) 1979 is a limitation rule by which an application for leave to enforce the fundamental right of any person is to be commenced “within twelve months from the date of the happening of the event, matter, or act complained of…”(…)
Time is of the essence under limitation statutes or rules.”
18 (2006) 7 NWLR 588
19 Court of Appeal (Lagos Division), Denca Services Ltd. v. Leo Oleka and sons, Nigeria Custom Services (2015) 3 CLRN 33
20 Court of Appeal (Jos Division), The Gov. of Borno State et al. v. Alh. Ngabura Bukar Gadangari, (2016) NWLR 396
In this jurisprudence, defendants see confirmation of their standpoint that a claim which has lapsed under the FREP Rules (1979) cannot be viewed as submitted in a timely fashion following the entry into force of the FREP Rules 2009. This jurisprudence however relates to claims submitted before the introduction of the FREP Rules 2009. In those cases, claims submitted under the FREP Rules 1979 were checked against the time period from Order I (3) FREP Rules 1979.
On 9 March 2018 the Court of Appeal in the Akure Judicial Division, Holden at Akure passed a ruling in the case of Fam-Lab Nigeria Limited & Anor v. Jahmarco Nigeria Limited & Anor21 regarding events that had taken place before the entry into force of the FREP Rules 2009. Unlike the claims in the cases discussed above, the claim in this case was submitted after the entry into force of the FREP Rules 2009. Under Order I rule (1) of the FREP Rules 1979 – that applied during the events to which the claim pertained – this claim was submitted much too late. However, in this ruling the Court of Appeal in the Akure Judicial Division considered that the claim had to be checked against the FREP Rules 2009:22
“To begin with, the 2009 FREPR, in Order XV Rule 1 thereof, repealed the 1979 FREPR. In other words, the former abrogated the life span of the latter. By the revocation, the 2009 FREPR put an end to the 1979 FREPR and same ceased to be in existence (…).23 In the eyes of the law, the 1979 FREPR "is regarded in the absence of any provision to the contrary, as having never existed, except as to matters or transaction past and closed...."24 In Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580 at 636 Tobi, JSC, graphically weaved the dismal effect of repeal of legislation in these immaculate words: "A repealed law no more has legal life, as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law, which has no life to influence an argument. A repealed law cannot be basis for any comparison with any existing law...
Nevertheless, the appellants will not reap from the above hallowed principle of law. The reasons are not far-fetched. Firstly, the law applicable to jurisdiction of a Court is that in existence when the action is instituted and heard, not that in force when the cause of action ensued.25 It flows from this agelong rule, that the 2009 FREPR, which is now operational during the hearing of the appeal, is the applicable subsidiary enactment. Secondly, the 1979 FREPR, on which they anchored their case, falls within the wide domain of adjectival law. In the view of the law, procedural law "relates to practice and procedure, that is, rules according to which substantive law is administered" while "substantive law is concerned with the creation, definition, limitation of obligation".26 Both the 1979 and 2009 FREPR trace their paternity to Section 46 of the Constitution, as amended. They are procedural avenues usable to prosecute and effectuate fundamental rights of the citizens as ingrained in Section 33-44 of the Constitution, as amended.27 It is long established principle of law, that the procedural law in existence at the time a case is heard, whether at the trial or appellate level, applies to the determination of it. It is of no moment if the procedural law came into being/force before or
21 (2018) LPELR-44730 (CA);
22 for the sake of readability, most references to jurisprudence are contained in the following footnotes (in italics)
23 see Adesanoye v. Adewole (2006) 14 NWLR (Pt. 1000) 242.
24 see Ugwu v. Ararume (2007) NWLR (Pt. 1048) at 509 per Muhammed, JSC; Leadways Ass. Co. Ltd. v. J.U.C. Ltd. (2016) 15 NWLR (Pt. 1536) 439) Abubakar v. B.O.L.A.P. Ltd. (2007) 18 NWLR (Pt. 1066) 319/(2007) 147
25 see Ada v. NYSC (2004) 13 NWLR (Pt. 891) 639; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 60; Olutola v.
Unilorin (2004) 18 NWLR (Pt. 905) 416; SPDCN Ltd. v. Anaro (supra).
26 see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536 at 575, per Onu, JSC; Chigbu v. Tonimas (Nig) Ltd. (2006) 9 NWLR (Pt. 984) 189.
27 see Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Lafia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR
(Pt. 1328) 94
after an appeal has been filed.28 The wisdom behind the rule of interpretation is that subsidiary legislations do not donate vested rights to the citizenry. Altogether, it is the operative 2009 FREPR, which has dethroned the 1979 FREPR that made provision for limitation of action, that is applicable to the appeal. Admirably, the limitation clause has been banished by the 2009 FREPR. This is a serious coup de grace on the appellants standpoint on the stubborn issue."
In the rulings discussed above, all of which were passed by Courts of Appeal in Nigeria, all claims were checked against the FREP Rules that applied when they were submitted. The approach in the ruling referred to in 4.55 is also consistent with the overriding objectives referred to in 4.18 of the FREP Rules 2009, which seek to give a broad application to the protection of fundamental rights. The court sees in this Nigerian jurisprudence and in the overriding objectives of the FREP Rules 2009 reason to seek a link with the approach in the ruling referred to in 4.55. The court will therefore check the timeliness of the claim against the FREP Rules 2009 such as they applied at the time claimants instituted legal proceedings against defendants in these proceedings.
Considering Order III of the FREP Rules, the claims were submitted in time. Therefore, the defendants’ limitation defence does not succeed.