Lamb v Camden LBC

th - 14 th February 2025

th - 21 st February 2025

th - 28 th February 2025

rd - 7 th March 2025

This group litigation concerns four separate claims arising from extensive oil pollution affecting two regions within the Niger Delta: the Bille and Ogale communities. A large number of individuals within each community have brought individual claims against the Defendants (the Bille individual and Ogale individual claims); in addition, there are representative/trust claims brought by certain individuals within the communities in a representative capacity on behalf of the whole community (the Bille community and the Ogale community claims). Each of the four claims seeks damages and other remedies from the Defendants (respectively “Shell Plc” and “SPDC”). SPDC is the Nigerian-based subsidiary of Shell Plc operating its oil business within Nigeria.

The Bille and Ogale peoples are among a number of local communities in the Niger Delta which have been affected by oil mining and refining in that region since the discovery of large oil reserves there in the 1950s. These proceedings were commenced in 2015 against Shell Plc and SPDC seeking compensation for the losses which the individuals and communities say they have sustained as a result of SPDC’s activities. The claims were originally pleaded in tort and breach of statutory duty (collectively “the private law claims”). However by a recent amendment in 2023, the pleadings were amended to include for the first time claims under the Nigerian Constitution and the African Charter (collectively “the fundamental rights claims”).

It is uncontroversial that, as the private law and fundamental rights claims arise from events occurring in Nigeria, Nigerian law applies. By a consent order dated 16 January 2024 the parties to this litigation identified 24 preliminary issues (“PI”s) to be determined in advance of the main trial which is currently scheduled to take place over four months from March 2027. Following a Court of Appeal decision last year ( Alame & Others v. Shell Plc & SPDC [2024] EWCA Civ 1500 ), two of the preliminary issues (PIs 15 and 16) have fallen away. The remaining 22 issues for decision at this trial concern matters of Nigerian law, largely split as to the matters concerning private law claims in tort and breach of statutory duty (PIs 1-15 and 18-20) and those concerning fundamental rights claims under the Nigerian Constitution and African Charter (PIs 21-24).

The issues for determination at this trial are these:

Before turning to the PIs and to the evidence on each individually, there are a number of matters of fact and law giving necessary background and context. Where these relate to Nigeria, Nigerian laws and the Nigerian legal system I have summarised from the helpful reports of the experts.

Like many other African countries, Nigeria is an amalgam of diverse ethnic groups originating from a number of differing geographical tribal areas joined together to form the Nigerian nation. Nigeria became a Republic on 1 st October 1963 on which date the Judicial Committee of the Privy Council ceased to be a court for Nigeria, the country having its own Supreme Court as the final court of appeal.

Between 1966 and 1975 Nigeria experienced three military coups, during which time the country was ruled by decree. The current Constitution of the Federal Republic of Nigeria 1999 (“the Constitution”) succeeded former written constitutions as the highest source of law in Nigeria. It is the legal and normative source of all other laws, institutions and administration of the state of Nigeria, often referred to as the “grundnorm”. It is binding on every person in Nigeria. Any legislation which is inconsistent with the Constitution is null and void to the extent of the inconsistency.

Nigeria has a federal system of government, dividing powers between the federal government and the 36 states plus the FCT (the Federal Capital Territory in which the capital, Abuja, is located). The federal legislature is the National Assembly. Each state has a legislature known as a House of Assembly. Subject to other specific provisions of the Constitution, under section 4 the National Assembly has exclusive power to make laws for matters in the Exclusive Legislative List (“the ELL”) in the Constitution. There is concurrent power with state Houses of Assembly for matters on the “Concurrent Legislative List” (“the CLL”). The states have power to make laws in relation to matters on the CLL and also for matters which are not identified on either legislative list (such matters are referred to as falling into the “residual list”, although there is not a list as such).

Nigeria operates a common law system, derived from that of English law, under which judicial precedent is itself a source of law. Pursuant to section 32(1) of the Interpretation Act 1964 and subject to any Nigerian law, the common law of England and the doctrines of equity together with the statutes of general application that were in force in England on 1 January 1900 have effect in Nigeria.

Nigeria has federal and state courts, operating at three levels:

Decisions of the Supreme Court are binding on all lower courts. As in the United Kingdom, the Supreme Court can depart from its own decisions but will do so only rarely. Decisions of the Court of Appeal are binding on all lower courts; its decisions can only be overturned by the Supreme Court. The principles of ratio decidendi and obiter dicta were largely agreed, save for one point on the extent to which dicta in concurring decisions constitute part of the ratio , arising in connection with PI 22, discussed further below.

The experts agreed that decisions of foreign, particularly English, courts can perform a useful and persuasive function in Nigeria where there is no known Nigerian decision on the point. Both experts referred to a number of Nigerian judgments which have emphasised that foreign decisions will be resorted to only where there is no Nigerian precedent: see, for instance the observations of the Nigerian Court of Appeal in Ajalyn Shoes Ltd v. Akiawande [1991] 2 NWLR (Pt174) 432:

The Constitution consists of eight chapters and seven schedules.

Chapter II of the Constitution provides Fundamental Objectives and Directive Principles of State Policy: developmental aspirations for Nigeria which the government is expected to pursue. These Chapter II rights are non-justiciable by application of section 6(6)(c) of the Constitution.

Chapter IV identifies a number of fundamental rights which are directly enforceable in Nigerian Courts, by virtue of s.46 (1) of the Constitution: “ Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress”.

The fundamental rights set out in Chapter IV include: right to life (s.33), right to dignity of human persons (s.34), right to personal liberty (s.35), right to a fair hearing (s.36), right to privacy (s.37), right to freedom of thought, conscience and religion (s. 38), right to freedom of expression and the press (s.39), right to peaceful assembly and association (s.40), right to freedom of movement (s 41), and right to freedom from discrimination (s.42).

The African Charter on Human and Peoples’ Rights was adopted in 1981 by (what is now) the African Union and was ratified by Nigeria in 1983. The Charter aims to protect and promote human rights and basic freedoms across Africa.

The African Commission was established under Articles 30 and following of the Charter. The Commission’s mandate under Article 45 includes interpreting the provisions of the Charter at the request of a state party. It is empowered to receive communications about alleged infringements and to issue reports and recommendations in response (Articles 51 and 52), along with guidance to member states.

The African Court was established by a Protocol to the African Charter. As Nigeria has not deposited the necessary declaration, the African Court does not have jurisdiction to hear claims by individuals against Nigeria. However, Nigeria is a member of ECOWAS (Economic Community of West African States) and subject to the jurisdiction of the ECOWAS Court. The ECOWAS Court is able to apply human rights treaties to which member states are parties, in particular the African Charter. Reports and/or guidance from the Commission, along with decisions of the African Court and the ECOWAS Court, are not binding on the Nigerian Supreme Court. There was some difference between the experts as to the extent to which the Nigerian Supreme Court would refer to and/or find such decisions persuasive in the domestic arena; this difference in the evidence is germane to PI 22 and discussed further under that PI, below.

The Charter applies in Nigeria at two levels: as a regional treaty having been ratified, and as domestic legislation having been domesticated through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983 (“the African Charter Act”), making it directly enforceable in Nigeria. S.1 of the Act states that Charter rights “ have force of law in Nigeria” and shall “be applied by all authorities and person exercising legislative, executive and judicial powers in Nigeria”.

As the Constitution is superior to all other law in Nigeria, the African Charter is subordinate to the Constitution. If anything in the African Charter is contrary to principles of the Constitution, it is void and of no legal effect. Contrary provisions would be unenforceable in Nigerian courts.

The Fundamental Rights (Enforcement Procedure) Rules 2009 (“the FREP rules”) are rules of procedure made by the Chief Justice of Nigeria pursuant to section 46(3) of the Constitution. They provide a procedure for access to justice for claimants alleging that their fundamental human rights have been breached.

Order II, Rule 1 of the FREP rules provides

Overriding Objectives, contained within the FREP rules, include:

Of particular relevance at this trial is Order III of the FREP rules, which provides that no limitation period will apply to fundamental rights claims.

Nigerian authorities produced and discussed by the experts demonstrate that not every claim which is started as a fundamental rights claim in Nigeria is permitted to proceed as such under the FREP rules. Nigerian courts will look to determine whether a claim for breach of fundamental rights is the main claim or ancillary or incidental to it. Where fundamental rights claims are found to be ancillary or incidental to the main claim, they cannot be brought under the FREP rules; they can only be presented in court through the normal procedure for the enforcement of civil rights as specified by the rules of the court in which the claim has been started. The application of this “ancillary claim” principle is discussed further below in relation to PI 24.

It is common ground between the parties that if the fundamental rights claims sought to be advanced by the claimants in these proceedings would be permitted by the Nigerian courts to proceed under the FREP rules then no limitation period would apply to those claims.

Since the discovery of oil in Nigeria in 1956 it has been, in the words of one of the experts, “ a busy hive of oil exploration and production with thousands of kilometres of crude oil pipelines criss-crossing the Delta .” Discovery of large reserves in the Niger Delta led to increased foreign investment and the need for robust regulatory frameworks to manage the exploration, production and transportation of oil.

Nigeria’s Federal Government acted quickly to regulate the burgeoning oil exploration and production industry, enacting the Oil Pipelines Act 1956 (“the OPA”). The OPA is expressed to be an “Act to make provision for licences to be granted for the establishment and maintenance of pipelines incidental and supplementary to oilfields and oil mining and for purposes ancillary to such pipelines.”

At the second reading of the Oil Pipelines Bill on 2 August 1956, the Minister of Land, Mines and Power, Mr Muhammadu Ribadu, introduced it as follows to the House of Representatives:

Part III of the OPA provides for licences to be granted to the holder of a permit to survey, and for such licences to be granted in relation to oil pipelines. The exclusive right granted to an oil pipeline licence-holder is the right to construct, maintain and operate an oil pipeline in Nigeria subject to the provisions of the OPA and the terms of the grant of the oil pipeline licence by the Minister responsible for matters relating to oil fields and oil mining.

The rights and powers given to a licence-holder regarding construction, maintenance and operation of an oil pipeline and any ancillary installations are made subject to obligations in Part IV of the Act, to make good and to compensate for any injury or environmental damage caused. Section 11(5) in Part IV is of particular relevance to many of the private law preliminary issues for determination at this trial.

The Petroleum Act 1969 (“the Petroleum Act”) provided for ownership and control of all petroleum to vest in the Federal Government of Nigeria. It creates various types of licence including an oil prospecting licence and an oil mining licence. The Act prohibits the construction or operation of a refinery or the importation, storage and distribution of petroleum products, without the grant of a licence from the Minister. Section 9 of the Petroleum Act gives the Minister power to make regulations about any matters requiring to be prescribed for the purposes of the Act, pursuant to which powers the Minister promulgated the Regulations contemporaneously with the Act in 1969.

In a set of proceedings issued by the Bodo community (another people’ inhabiting a different region within the Niger Delta) against SPDC for losses arising from two identified oil spills, Akenhead J considered and heard evidence in relation to eight preliminary issues, a number of which concerned the scheme of the OPA and the meaning of specific provisions under it. The second of the issues for his decision required him in particular to determine (i) the extent to which statutory duties imposed on a licence-holder under the OPA had replaced the common law, and (ii) the meaning and scope of section 11(5) of the OPA.

In his judgment Akenhead J undertook a detailed survey of the matters covered by the OPA, concluding (at [63]) that it provided a comprehensive code

Whilst Akenhead J’s findings were strictly ones of fact based on the expert evidence of Nigerian law which he heard at the trial before him in 2014, the parties have accepted them for the purposes of these proceedings, subject to one point on section 11(5) which the defendants have sought to revisit before me in connection with PI 4, discussed further below .

Foreign law is a matter of fact. It is proved by evidence adduced by the parties from suitably qualified experts. Proof is to the usual civil standard. The task of the court is to “evaluate the expert evidence of [foreign] law and to predict the likely decision of the highest court in the relevant [foreign] system of law if this case had been litigated there on each of the points in dispute” ( Dexia Crediop SpA v Commune di Prato [2017] 1 CLC 969 at [34]).

The role of such expert is authoritatively stated in MCC Proceeds v Bishopsgate Investment (No 4) [1999] CLC 417 at [23] and [24]:

The first and second of these require the exercise of judgment in deciding what the issues are and what statutes or precedents are relevant to them, but it is only the third which gives much scope in practice for opinion evidence, which is the basic role of the expert witness. And it is important, in our judgment, to note the purpose for which the evidence is given. This is to predict the likely decision of a foreign court, not to press upon the English judge the witness’ personal views as to what the foreign law might be.”

The 22 preliminary issues which I have to decide at this trial all concern the proper interpretation and application of Nigerian law, requiring me each time to ask, “how would the Nigerian Supreme Court answer the question raised by this PI?” (see Perry v Lopag Trust [2023] UKPC 16 at [11]):

The key principles which guide a court in performing its task were gathered and set out by Blair J in Banco Santander Totta SA v Companhia de Carris de Ferro de Lisboa SA [2016] 4 WLR 49 at [237]. It is unnecessary to rehearse them all here, but the following are particularly relevant (citations omitted):

The PIs in this case raised a number of matters of law which have not as yet received consideration by the Nigerian Supreme Court. Where there are relevant decisions of courts below the Supreme Court, I have had regard to the observations of Simon J (as he then was) in Yukos Capital SarL v OJSC Oil Company Rosneft [2014] EWHC 2188 (Comm) at [29] indicating that asking what the highest court would decide might not be the correct approach if an issue has “been plainly decided by a court which is inferior in jurisdiction to the Supreme Court’”. Simon J went on to cite and approve this passage from Dicey :

Where the foreign law is that of a jurisdiction where cases are decided in English and using the same principles e.g. of common law and statutory interpretation, as is the case in Nigeria, then the English court’s knowledge of its own law and principles can legitimately be brought to bear: MCC Proceeds at [13].

The court heard from three experts at trial: Dr Babatunde Ajibade SAN (Senior Advocate of Nigeria), and Dr Olisa Agbakoba SAN, instructed by the Claimants to deal with the private law issues and the fundamental rights issues respectively; for the Defendants Mr Godwin Omoaka SAN gave evidence in relation to all the issues. All the experts produced reports and supplementary reports dealing with the issues in respect of which they had been instructed. There were Joint Statements and addendum reports, amounting to some 1000 pages of written evidence in all. I also heard oral evidence from each expert over two weeks during the trial.

Each of the three experts who have given evidence is a distinguished academic and/or senior practitioner in Nigeria . In assessing their evidence I did not expect to be, nor was I, concerned, as a court might be with factual witnesses in ordinary trials occurring in England & Wales, with matters of credibility, memory, demeanour, how they gave evidence or the like; rather I have sought to weigh up their learned, bona fide opinions on the law of their country bearing in mind such decided cases as they relied on in arriving at their opinions, applying the principles derived from the cases to which I have referred above.

I dismiss without hesitation the suggestion made by the Claimants in closing that I should reject Mr Omoaka’s evidence in its entirety. Serious allegations were levelled at the honesty and propriety of his conduct as an expert witness: it was said that he had wilfully concealed a relevant recent case ( Torchi - in which he acted for Shell); further that he was obviously partisan, since his firm acts for a long list of oil company clients in Nigeria; lastly that he wrongly held himself out as an expert in constitutional law when he had an insufficient body of relevant, or at least relevant recent, experience in constitutional law cases.

I found these criticisms unfounded and unhelpful. As I observed during argument, if the Claimants really were of the view, for whatever reason, that Mr Omoaka could not properly assist the court, then it would have been more useful, and more consistent with the overriding objective, for that to have been raised and determined at a case management hearing before trial. The objections could then have been heard and dealt with before the court had read and considered the several long reports which Mr Omoaka prepared and before hearing his evidence on the range of preliminary issues over two weeks. Whilst Mr Omoaka’s omission to mention the Nigerian case of Torchi in his reports in this case was regrettable, I consider it to have been an oversight. I reject the suggestion that it was deliberate, or that he had wrongly concealed his involvement when giving evidence in another case ( Bodo , before Jefford J). As to whether Mr Omoaka was qualified to give evidence on the public law issues, his CV appeared to me adequately to have addressed this. Cases raising human rights claims under Part IV of the Constitution or the African Charter may not have featured largely in Mr Omoaka’s recent practice but as a senior counsel in Nigeria, where the Constitution is the fundamental “grundnorm” for all laws, he is amply qualified to speak to how the courts will approach Constitutional and human rights.

I was likewise unpersuaded by Defence submissions seeking to minimise the weight of opinions expressed by Dr Agbakoba on the fundamental rights issues on the basis that he was a self-confessed “activist” in the field of human rights, too interested in telling this court how the law in Nigeria should be, rather than in assisting with how it is. Experts are human beings after all, and will have developed interests and opinions, particularly in areas of law in which they practise frequently. That does not prevent them from seeking to assist the court in accordance with the requirements set out in CPR Part 35, as I find that each of the experts sought to do here.

I decline therefore to dismiss any expert’s evidence, whether wholly or partially, preferring instead to consider the competing positions they expressed on issues where they differed by reference to the merits of the points which they made, the cogency of the competing opinions they advanced and to such relevant Nigerian law as they produced and drew to my attention. I noted, as Mr Omoaka himself pointed out when grilled by Ms Kaufmann on the propriety of his acting and his competence to give evidence, that there were a great many points of private and public law on which the experts agreed; several indeed on which, after discussion or in cross-examination, the Claimants’ expert moved nearer to the view expressed by the Defence expert, and vice versa.

Before turning finally to consider the preliminary issues themselves, it is important to record what stage the proceedings have reached. The key staging posts for present purposes are as follows:

The 2024 appeal dismissed the appeal against the amendments. The appeal in relation to the global claim was allowed, the court determining that the impasse arising from insufficiently particularised claims should be resolved like this: disclosure should first be given after which lead claimants would be selected and only then would the case have to be pleaded “with sufficient particularity so that the Defendants know what case they have to meet and have a fair opportunity to meet it”: see the judgment of Stuart-Smith LJ at [86]. The parties have subsequently largely agreed a programme of disclosure, with the few outstanding points resolved at a recent CMC held in April 2025. In short, the position now is that disclosure will take place over the course of this year, with lead claimants being selected towards the end of the year. Particulars of claim, pleading a case which identifies the spill or spills relied on and “adopting conventional principles of causation” (per Stuart-Smith LJ at [78]) will thereafter be served for each of the lead claimants.

These preliminary issues accordingly fall to be determined at a stage before the claims have been fully pleaded and particularised. Although some 85 spills have (so far) been identified in general terms as responsible for the claimants’ losses, there is as yet no pleaded case connecting the event(s) said to have caused loss to a claimant to particular torts/breach of statutory duty by either defendant. In that sense, therefore, despite the years that have passed since issue, this case is still at a very early stage. During the trial and in preparing this judgment, I have anxiously reflected on the extent to which it is sensible, or even possible, to determine all the issues which the parties agreed (and which I ordered) now. My concerns are aptly captured in these remarks of Hildyard J in Wentworth Sons v [2017] EWHC 3158 (Ch) :

Furthermore, where the issues are of both novelty and importance, the prospect of appeals is real; and a bifurcated process may result, with the preliminary issues on appeal and the trial which may or may not become necessary, being stalled in the meantime. It is a truism that preliminary issues are often a source of regret, as being an apparent short cut to what turns out to be a longer journey in the end.”

Having dealt with the necessary background matters, I turn now to a discussion of each of the preliminary issues upon which I heard evidence. In presenting the case at trial, the parties grouped the issues variously under different headings but in this judgment I shall take them in turn, in the order they were listed and agreed by the parties.

The answers to (d) and (e), i.e. limitation for claims under the Constitution and/or African Charter follow from my findings in relation to the fundamental claims issues. The present section of the judgment deals only with the issues arising in relation to the private law claims, i.e. the claims in tort and breach of statutory duty.

Both experts were agreed that Nigerian courts will apply limitation to all private law claims, whether brought pursuant to the OPA, the Petroleum Act 1969 or at common law, and that the same limitation period will apply to all. But they disagreed about the length of the limitation period which the Nigerian courts would apply to these claims.

Dr Ajibade, the Claimants’ expert, maintained that the applicable limitation period is that prescribed by the English Limitation Act 1623, namely 6 years, given force in Nigeria by section 32(1) of the Interpretation Act 1964. Mr Omoaka, the Defence expert, took the view that as the causes of action arose in Rivers State, the Rivers State limitation law applies, which prescribes a period of 5 years.

Dr Ajibade’s evidence was that the Supreme Court would decide that state limitation laws could not apply to actions started in the Federal High Court, upon the proper application of section 254 of the Constitution. This section provides that:

On Dr Ajibade’s analysis of section 254 it is the National Assembly which has the legislative authority to legislate for the practice and procedure of the Federal High Court. Section 254 gives power to the National Assembly to make limitation laws which apply to actions in the Federal High Court. The National Assembly has not specifically enacted limitation legislation, therefore the 6 year period prescribed by the English Limitation Act of 1623 is applied by virtue of the Interpretation Act 1964. His evidence was that as limitation is a matter of practice and procedure, the correct limitation period depends upon the court in which the action is started. An action started in a state court will apply the state limitation period (where there is one), but for actions concerning oil/minerals which can only be issued in the Federal High Court, the correct limitation period is 6 years by application of the 1623 Act, as a federal limitation law of general application applicable in all federal courts:

Dr Ajibade relied on decisions of the Supreme Court in Fasakin Foods Nigeria Limited v. Martins Shosanya [2006] JELR 37376 (SC) and Chigbu v Tominas (Nig) Ltd [2006] 9NWLR 189. Chigbu concerned a claim brought in the High Court of Imo State on 23 December 1996 in respect of a cause of action which accrued on 17 July 1991. Between the accrual of the cause of action and the issuing of the claim, the Imo State legislature had passed a limitation statute which came into force on 30 December 1994. The statute prescribed a limitation period of 5 years, in place of the 6 years which formerly applied pursuant to the 1623 Act. The issue before the Supreme Court was whether the relevant limitation period was that prescribed by the law in force at the time the claim was issued or that in force when the cause of action accrued. Mr Chigbu argued that limitation was a matter of substantive law, such that a change of law after the accrual of the cause of action would not affect rights and obligations already accrued. By contrast, the procedural provisions governing determination of a claim will depend on when it is issued, rather than on when the cause of action accrued. Oguntade JSC, giving the lead judgment, rejected the claimant’s contention, holding that limitation was a matter of practice and procedure to which the Imo State law of 1994 applied. Having considered the cases relied on by counsel, Oguntade JSC observed as follows:

Fasakin Foods is a decision of the Supreme Court holding that the power of transfer to a State High Court by sections 22(3) and (4) of the Federal High Court Act 1976 was ultra vires the National Assembly as it was only the State Houses of Assembly that had the legislative authority to make laws for the practice and procedure of the State High Courts. In the course of its decision the Supreme Court considered section 233 of the 1979 Constitution explicitly empowering the National Assembly to make law “with respect to the practice and procedure of the Federal High Court” . When challenged about the difference in wording between section 233 of the 1979 Constitution and section 254 of the 1999 Constitution, Dr Ajibade said that despite the difference he regarded section 254 as having the same effect in empowering the National Assembly to make laws regarding practice and procedure, including limitation.

Dr Ajibade conceded that there is presently no authority, still less any Supreme Court authority, which has considered his analysis of the meaning and effect of section 254 of the Constitution but in his view the Supreme Court would accept it as

Dr Ajibade accepted that his view - that you cannot apply state limitation to actions in the Federal High Court - is inconsistent with a number of Court of Appeal decisions which have done just that. In his view these decisions were wrong and would be overturned by the Supreme Court.

Mr Omoaka’s evidence was that limitation is not mentioned in the ELL or the CLL and therefore falls into the residual list, as something on which state Houses of Assembly have the exclusive power to legislate. His view was that the National Assembly may prescribe limitation periods for actions arising under particular statutes on subject matter falling into the ELL, but it has no power to make general limitation laws covering all states; the states have powers to make limitation laws applicable to actions arising in that state, which is what Rivers State and many other states in Nigeria have done. In Rivers State, where the current causes of action arose, the limitation period is 5 years. Mr Omoaka drew attention to many decisions in the Court of Appeal and the Supreme Court involving cases in the Federal High Court which have applied state limitation periods, including:

When asked about the decision in Chigbu Mr Omoaka’s evidence was that it was restricted to a finding that a state limitation law can operate retrospectively.

In his report Mr Omoaka drew attention also to the decision of O’Farrell J in Jalla & Ors [2023] EWHC 424 (TCC) determining, on the expert evidence before her, that state limitation law applied. As foreign law is a matter of fact to be determined on the evidence I am not bound by O’Farrell J’s conclusion in Jalla but must make a determination based on all the evidence which I have heard at this trial.

Mr Omoaka identified a line of conflicting authority where the courts have declined to apply state limitation laws, on the basis that state laws could not apply to cases whose subject matter fell within the ELL. Both experts agreed that the subject matter argument underpinning this line of authority is wrong; Dr Ajibade agreed with the outcome in Sampson & Ors v. SPDC [2021] LPELR-53314 (where the Supreme Court refused to apply state limitation instead applying the 1623 Act to arrive at 6 years) but for different reasons than those given by the court in that case.

There is a clear distinction in the evidence between the two lines of reasoning telling against state limitation laws applying to cases in the Federal High Court (i) the subject-matter argument (that if the subject matter falls within the ELL then state limitation laws cannot apply) which is a line of reasoning that both experts agreed was wrong and would not now be followed and (ii) Dr Ajibade’s reasoning that state limitation cannot apply to actions started in the Federal High Court as limitation is a matter of practice and procedure in respect of which, by virtue of section 254, only the National Assembly has the right to legislate. As Dr Ajibade at one point described it, this is his “pet” point, it has not been raised before and has not therefore been considered by any court to-date. In cross-examination it was suggested to him that if section 254 did have the effect for which he contends, then one of the many justices of the many appellate courts which have considered the application of state limitation law to cases in the Federal High Court would have raised it. Dr Ajibade’s response was to repeat that Nigerian judges at every level will only address points which counsel put before them, and to deplore the conflicting decisions which he said could be resolved and explained by his section 254 point.

I remind myself that my task is to determine what decision the Nigerian Supreme Court is likely to come to on the question of what limitation period applies. I have concluded, on the evidence, that it is more likely that the Supreme Court will follow the long line of authority which has applied state limitation laws to cases in the Federal High Court. To my mind the best evidence of what the Supreme Court will do lies in the many appellate decisions, handed down over a period of at least the last 20 years, which have unhesitatingly applied state limitation laws to actions in the Federal High Court. The only reason so far advanced by Nigerian courts for not applying state limitation has been disapproved and the experts are clear that no court today would follow it. The decision in Sampson is equivocal for although the result is one that Dr Ajibade’s reasoning would produce, his was not the reasoning which the court adopted in that case.

I can see that Dr Ajibade’s line of reasoning derives a measure of support from the cases he cited, but they are now of some age. I accept that Chigbu and Fasakin Foods taken together provide a basis for his argument that limitation is a matter of “practice and procedure” for the purposes of section 254, but that is to ignore the purport of more recent decisions which have emphasised the very particular nature of limitation, most recently the Supreme Court itself in Frozen Foods and Onoita . I agree with Mr Molyneaux’s point made in closing, that the matter of procedure/jurisdiction terminology used in the cases is something of a red herring - clearly the courts have treated limitation on occasion as either, or both, of those things. But the real issue is whether the courts would treat limitation as a matter covered by the procedural rule-making power in section 254. Given the very trenchant observations of the Supreme Court on the singular and fundamental nature of limitation as recently as Frozen Foods in 2022 and Onoita in 2024 I cannot find that the same court would be likely in 2025 to hold that limitation is a matter covered by that power.

There is consensus on the second part of PI 1, the experts’ agreed position is reflected in the answer, below.

The answer to PI 1 is

The parties suggested that PI2 and 3 could usefully be considered together.

Both experts were agreed that when considering and applying the doctrine of continuing torts and/or continuing statutory breach, the Nigerian courts would apply the principles set out and discussed by the UK Supreme Court in the case of Jalla v Shell International Trading and Shipping Co Ltd [2024] AC 595 . However, they did not agree as to the likely outcome of the application of those principles to each of the above scenarios.

The Claimants invited me to answer what in their closing argument counsel referred to as “points of abstract principle” but which on closer examination appear to me to call for detailed responses to hypothetical situations arising under each of the potential causes of action, viz: trespass, nuisance and Rylands v Fletcher , section 37 of the First Schedule to the Petroleum Act, section 11(5)(b) and (c) of the OPA and negligence, all (counsel suggested) to be addressed separately.

I am not going to address the torts/breach of statutory duty separately as suggested, nor to answer the hypothetical scenarios at 1 to 4 above in this judgment. I do not think that it would be helpful to do so in advance of detailed facts being (i) pleaded and (ii) found at trial, not least as the experts were not asked in advance of trial to address limitation in the context of a duty to clean up although, during the evidence and by the end of counsel’s closing argument, a considerable amount of time had been spent addressing limitation in that context.

As the Claimants have stressed many times, both here and in the Court of Appeal, each claimant intends to run a case that a particular spill or spills is/are responsible for their loss. The start-date for the running of limitation in respect of any individual claim will depend upon the nature of that individual claimant’s pleaded case in relation to the particular spill(s) which are said to have occasioned loss to them. As lead claimants have yet to be selected, the detailed particulars in relation to the individual claims have not yet been prepared. It seems to me wholly premature to make findings before actual spills have been identified and any related facts pleaded.

I acknowledge that it may help to determine the broad principles that will apply, under Nigerian law, if and when a case is pleaded which is said to engage the principles of continuing torts/continuing statutory breach, but I am not prepared to address the various hypothetical scenarios which the parties asked the experts to consider, nor the further point arising from an alleged duty to clean up. There is a risk otherwise of precisely the kind of linguistic misunderstanding referred to by Lord Burrows in Jalla . The shape of this litigation is unlike previous oil claims tried in these courts (e.g. Bodo , Jalla ) where specific spills responsible for the claimants’ losses have been identified from the start. Here, whilst many spills have been identified in general in the Particulars of Claim, everyone recognises that a case linking duty/breach/loss has not yet been sufficiently pleaded. Instead, as the Court of Appeal has now directed, the Defendants are to give disclosure first after which detailed pleadings in respect of each of a number of lead claims will follow. Only then will the particular spills giving rise to specific allegations of torts/breaches of statutory duty, and the defences to them, have been identified. Limitation may or may not arise on the facts of the individual lead cases and if it does, then on those facts there may or may not be a live issue of repeated tortious activity engaging Jalla principles.

For these reasons I do not propose to engage with the detail of the hypothetical scenarios in this judgment. However, the following general points emerged from the evidence of the experts in relation to PIs 2 and 3:

The answer to PI 2 and PI 3 is that Nigerian courts will apply the principles governing the doctrine of continuing torts set out and discussed by the UK Supreme Court in Jalla v Shell International Trading and Shipping Co Ltd [2024] AC 595 when considering the application of limitation to common law claims or claims under the OPA. There will be a fresh cause of action per day or other regular period that the claimant establishes repetition of the relevant tort.

These PIs are concerned with the proper construction of section 11(5) of the OPA which provides as follows:

The meaning and effect of this provision was considered at length by Akenhead J in The Bodo Community and Ors v SPDC [2014] EWHC 1973 (TCC) , with the aid of expert evidence from two Nigerian law experts (both of them, in that case, retired Supreme Court Justices). Since questions of foreign law are to be determined upon expert evidence as issues of fact (see paras [37]-[42] above) this court is not bound by any conclusions which Akenhead J arrived at based upon the evidence before him. However, the parties are agreed, for the purposes of this PI trial, that Akenhead J’s conclusion on one issue represents the true position under Nigerian law, namely that damages in respect of pipeline spills are recoverable against SPDC by application of the provisions in the OPA and not at common law. Akenhead J found, and for the purposes of this trial it is accepted, that the OPA provides an exclusive code for the recovery of compensation or other remedies against the licence holder/operator of a pipeline. The passages of Akenhead J’s judgment setting out his reasoning and conclusions on this issue are to be found in Bodo at [21] to [69]. The Nigerian Court of Appeal has approved and applied Akenhead J’s reasoning and his decision: Nigerian Agip Oil Co Ltd v Ogbu [2017] LPELR-45217 (CA)

I take the questions posed by (1) and (2) under PI 4 together, beginning with the areas of agreement between the experts:

The experts disagreed about whether an operator can be held liable under sub-section (b) for negligently failing to prevent oil being spilled from the pipeline as a result of TPI.

Three matters arose in the evidence in relation to PI 4 (1) and (2): (i) whether the exclusion in s.11(5)(c) applies also to (b); (ii) the meaning of “protect” as the word is used in s. 11(5)(b) and; (iii) the nature of the causation requirement imported by use of the words “by reason of”.

Mr Omoaka’s evidence was that s.11(5)(b) would be construed as being subject to the same third party exclusion as in 11(5)(c). Dr Ajibade disagreed, he considered that (b) allows a claim where a spill results from a negligent failure to protect the pipeline from TPI. He pointed to the words of the provision at (b) as clearly and unambiguously conveying that effect.

This is a matter of statutory construction on which the principles to be applied are the same here as in Nigeria. I understood from the evidence that the Nigerian Supreme Court regularly cites not only English cases on statutory construction but also English books on the subject.

Mr Omoaka accepted that the “cardinal principle” of statutory construction is that where the language used is clear and unambiguous, effect should be given to the natural meaning of the words used. Nigerian cases have emphasised that where the meaning is plain, “no words can be imported into or exported out of or imputed in the provisions of the statute” ( NNPC v Fung Tai Eng Co Ltd [2023] 15 NWLR 117). Mr Omoaka further accepted that the principles recently set out by the UK Supreme Court in Manchester Ship Canal v United Utilities [2024] 3 WLR 356 would be persuasive in the Nigerian Supreme Court. The Claimants pointed to two relevant passages:

Dr Ajibade’s evidence was that the words in s.11(5)(b) would be given their literal interpretation, which does not include any exception in respect of the acts of third parties. On his view, third party acts would be factually relevant as to whether there was “neglect” but would not constitute a complete defence. Moreover since a common law action in negligence could lie in respect of third party acts in respect of non-pipeline assets (as the experts agree, see below) he said it must be presumed that the legislature would not have intended to remove such rights except by clear words. The National Assembly used such words in s.11(5)(c) but did not do so in (b).

Mr Omoaka’s evidence was that the wording in s.11(5)(b) is ambiguous, because it is silent on the twin questions of protecting who and against what. Given that ambiguity, he believed that the Nigerian court would consider contemporaneous records of debates and questions at the time the OPA was being considered and passed. Mr Omoaka cited two instances in support of his interpretation:

Mr Omoaka also pointed to the Oil and Gas Pipeline Regulations 1995 (“OGPR”) and the Oil Spill Recovery Clean-up, Remediation and Damage Assessment Regulations 2011 (“OSDAR”) as giving an indication of how the obligation in section 11(5)(b) is to be understood:

Lastly Mr Omoaka relied on several decisions in Nigerian courts as demonstrating the interpretation of section 11(5)(b) which the courts would apply, that there can be no recovery under the OPA for damage resulting from the acts of third parties:

There was one further case cited by Mr Omoaka on this point but which was not raised with Dr Ajibade in evidence: Calmday v SPDC , a Court of Appeal decision dealing with an appeal in a claim brought only under s. 11(5)(c). The court did not consider section 11(5)(b).

Having considered all the evidence I prefer Dr Ajibade’s view that the words in s.11(5)(b) can and would be given their ordinary meaning by the Supreme Court in Nigeria, in accordance with the “cardinal principle” of statutory interpretation which Mr Omoaka accepted. I do not consider that there is ambiguity which would entitle a court to have regard to contemporaneous questions or debates at the time the Bill was being considered. But these do not assist very far in any event: the Ministerial statement, in the language used, appears to have been paraphrasing sub-sections (a) and (b) in the course of a general introduction to the Bill; the acting Attorney General was responding to a question expressly concerned with section 11(5)(c), during a debate about section 11(5)(c).

Like Akenhead J in Bodo I dismiss the wording of subsequent regulations as providing assistance in assessing how the courts would construe the legislature’s intention at the time of enacting section 11(5)(b), since they were enacted so many years afterwards. I also put to one side the slightly different point which Mr Willan drew from the wording of s.26(2) of the OSDAR Regulations ( “Compensation shall not be paid for spills caused by third party interference or sabotage” ), namely that it is evidence of how knowledgeable and experienced regulators interpreted section 11(5) when making the regulations, and therefore supportive of Mr Omoaka’s interpretation. The regulations are subsidiary legislation and would be subject to the OPA; the key is how section 11(5)(b) would be interpreted by the Supreme Court, applying ordinary principles of statutory construction. Dr Ajibade, citing Shell (Nig) Exploration and Production Co Ltd v NOSDRA (2021) LPELR-53068 (CA), suggested that the Court of Appeal had already struck down section 26(2) as ultra vires, but when taken to the judgment in that case he acknowledged that it was directed at another point, not at any inconsistency of section 26(2) with section 11(5)(b). So there is no direct finding by a Nigerian court that section 26(2) is contrary to the meaning and effect of section 11(5)(b) but all I can take from this, consistent with the expert evidence of how the courts in Nigeria approach cases, is that no party has yet invited a court to determine the point.

As to the cases, strongly urged upon me by Mr Willan as providing the best evidence of how the Nigerian Supreme Court would determine the issue, to my mind they are far from providing the unequivocal indication he suggested. In Firibeb the only point raised for the Court of Appeal’s consideration was to do with section 11(5)(c), the court was not addressed as to the precise interpretation of (b), as distinct from (c). Again I agree with Akenhead J in Bodo , that (b) and (c) have been mistakenly elided at this point in the judgment, with no reason given for including (b). The first instance judgments in Okeh and Agadia take matters no further as both involved common law claims in negligence, not for breach of statutory duty under section 11(5)(b) and in both cases the judges appear to have determined that the negligence claims failed as no negligence had been proved; in neither case did the court consider the true interpretation of sub-sub-section (b), still less was the court addressed on whether liability under that provision could be defeated by proof of malicious third party acts.

I acknowledge Mr Willan’s point made to, and accepted by, Dr Ajibade that his reading of (b) effectively makes 11(5)(c) subject to (b), but without any words to that effect appearing in (c). Also, as both experts agreed that a claimant could not recover at all in respect of their “own default”, it seems that the first half of the bracketed exception in (c) ( “other than on account of his own default… ”) would apply to (b), whilst on Dr Ajibade’s view the other half of the bracketed exception would not. These are inconsistencies, but in my view the Supreme Court would not find them sufficient to override the absence of plain wording in (b) referring to the actions of third parties.

Moving to the meaning of “protect” in section 11(5)(b), again the experts differed. Dr Ajibade considered that the meaning of the phrase “neglect…to protect” is plain and capable of applying to TPI, depending on the facts. Mr Omoaka’s evidence was that courts would interpret it as imposing an obligation to protect the pipelines and ancillary installations from general wear and tear, including corrosion, saying that it was a misinterpretation to regard it as creating an obligation to guard or protect from the malicious acts of third parties.

Akenhead J, considering the meaning of the phrase in Bodo , reached this conclusion (at [92(g)] and [93]):

The answer to Issue 2 is strictly speaking “No”; there has to be neglect on the part of the licencee. It is conceivable however that neglect by the licencee in the protection of the pipeline (as defined above) which can be proved to be the enabling cause of preventable damage to the pipeline by people illegally engaged in bunkering which causes spillage could give rise to a liability; this may be difficult to prove but there is that theoretical possibility. I cannot at the moment see that damage caused from illegal refining by criminal gangs of crude oil criminally taken from pipelines which have been broken into could fall within a duty “to protect…any work structure or thing executed under the licence” because (I assume) that the illegal refinery has not been executed under licence by the licencee.”

As I have already indicated, I am not bound by what Akenhead J found on the factual evidence of law which he heard. Nevertheless, particularly as his judgment has been cited and approved by the Nigerian Court of Appeal in the Ogbu case (albeit specifically in relation to the OPA being treated as a complete code), it is an important decision which has been and is likely to be influential in the Nigerian appellate courts.

Dr Ajibade accepted in his evidence that there would be some things a licence holder would not be under a duty to protect, some others about which there may be legitimate disagreement. He agreed that there could be no duty to post guards or exercise military or paramilitary guarding of the pipeline, or to run a private police force. He also conceded that the National Assembly could not have intended the obligation to extend to lobbying the Nigerian Government (the relevance of this being to currently-pleaded allegations of breach which include that SPDC “did not take sufficient steps to ensure that any member of the [Joint Task Force] who were ineffective at detecting or preventing TPI were promptly removed.” ).

Mr Omoaka pointed to the context in which the OPA was enacted - the contemplation of thousands of kilometres of pipelines and ancillary installation crossing the Delta, often through difficult and inhospitable terrain, pointing out that it would be physically impossible to guard the length and breadth. He said that the National Assembly cannot have intended that outcome. This is a point also made by Kolawole J at first instance in Agadia , cited above:

Dr Ajibade acknowledged the practical difficulties of protecting in the sense of guarding pipelines, and the point that the National Assembly cannot have intended s.11(5)(b) to have encompassed that, when cross-examined by Mr Willan:

Mr Omoaka also drew attention to the principle of noscitur a sociis (“it’s known by its associates”), saying that the Nigerian courts would apply this principle to interpret “protect” consistently with the words “maintain and repair” which follow and which are clearly to do with physical works on the pipeline. Dr Ajibade accepted that this is a principle which the courts in Nigeria know and apply where the meaning is otherwise ambiguous, but he did not accept that there was any ambiguity here.

Ms Day drew Mr Omoaka’s attention to the definition of “protect” in the National Learner’s Dictionary (a source to which Mr Omoaka had referred for the meaning of other words in section 11(5)) as “to make sure that somebody/something is not harmed, injured, damaged etc” . She submitted that this definition would be applied to the obligation under s. 11(5)(b), subject to the ordinary qualification of reasonableness implicit in an action for negligence. She pointed out that “protect” is qualified by “neglect”, so a licence holder would not be required to do anything it had no power to do, for instance operate its own police force, or anything which it was not reasonable for it to do in the particular circumstances.

Mr Willan argued that Akenhead J’s interpretation of “protect” had been too broad. His primary submission, based on Mr Omoaka’s evidence, was that “protect” is confined to an obligation to ensure that SPDC’s pipeline and ancillary structures are not damaged by natural risks such as corrosion or landslip. On that reading, the provision is simply not concerned with TPI. Alternatively, he argued, the duty imported by the term “protect” is concerned only with physical works to the pipeline and ancillary structures, to ensure that they remain in good working order. Mr Willan pointed out that beyond saying that policing or paramilitary defence was outside scope, Akenhead J’s decision had not indicated precisely where the line was to be drawn, and invited me to draw that line in this judgment.

I concluded as follows:

Section 11(5)(b) imposes a causal requirement that damage must have been suffered “by reason of” the licence-holder’s neglect. Dr Ajibade accepted that this causation requirement equates to that at common law, including the same principles of foreseeability, remoteness and novus actus. As the principles are the same, both parties dealt with causation under PI 15; I do the same in this judgment. Mr Willan accepted that the application of principles of causation/recoverability of damage from spills coming directly from a pipeline due to TPI may be fact-sensitive, thus needing to await trial for resolution. However he stressed the difference between the Defendants’ position on damage from spills caused directly by TPI and damage caused by spills from illegal refineries.

The answers to PI 4(1) and (2) are

The OPA is primary legislation dating from 1956. The 2011 OSDAR Regulations came into force over 50 years later. As indicated above, Mr Omoaka suggested that the Regulations were consistent with his interpretation of section 11(5) of the OPA, however he conceded that to the extent that regulation 26(2) was inconsistent with the OPA, it is ultra vires . This was Dr Ajibade’s view.

Having found (above) that TPI does not of itself provide a defence to a claim under section 11(5)(b), it follows that regulation 26(2) cannot qualify or limit the scope of recovery under that sub-section.

The experts disagreed as to the answer to PI 4(4). Dr Ajibade’s view was that a licence holder could be liable for losses arising from illegal refining, where illegal refining is a reasonably foreseeable consequence of oil theft and there is, or under the right circumstances there could be, a duty to protect against such theft. Dr Ajibade thought that recoverability would be subject to principles of foreseeability, remoteness and novus actus but observed that these are essentially fact-sensitive questions. Mr Omoaka’s evidence was that the Nigerian courts never had and never would find the licence-holder liable for the consequences of illegal refining. He gave a number of reasons including that the damage occasioned by illegal refining is outside the scope of section 11(5)(b) (contrary to Ms Day’s submission I read reason (i) at para 212 of Mr Omoaka’s first report as addressing the scope of the duty to protect, rather than as a separate duty to protect against illegal refining which appears from reason (iv) at para 212). Mr Omoaka gave as a further reason for his view that the Nigerian courts would not hold a licence-holder liable for damage caused by illegal refining the fact that any criminal act would automatically be found to be a novus actus, breaking the chain of causation.

I address the issues concerning the common law liability of the defendants for harm resulting from the illegal refining of stolen oil under PI 20 at paras [232]-[261] below. Ms Day’s position was that identical principles of causation and recoverability - foreseeability, remoteness, novus actus - apply to liability for illegal refining at common law as to liability under the OPA. Mr Willan fundamentally disagreed, pointing out that both at common law and under the OPA, the Claimants’ analysis of the issues omitted the necessary first step of considering whether the type of loss - harm arising from the operation of illegal refineries - falls within the scope of the duty. As indicated in the discussion of liability under common law below, Mr Willan’s position is that the court can and should decide now that the Nigerian courts would find that harm arising from the operation of illegal refineries falls outside the common law duty of care to protect non-pipeline assets from TPI.

So far as the duty under the OPA is concerned Mr Willan submitted that, even if the court were to decide that the question of the scope of the common law duty of care cannot be determined until trial, that is not so as regards the scope of the duty under section 11(5)(b). The scope of the statutory duty is a matter of statutory interpretation, Mr Willan emphasised, where the facts can make no difference to the exercise upon which the court is required to engage, namely to determine what the legislature intended section 11(5)(b) to cover. He submitted that, as a matter of the proper construction of 11(5)(b), the harm caused by the actions of illegal refineries using oil stolen as a result of TPI is either within the scope of the statutory duty or it is not and that the court should determine this question now.

In Bodo , Akenhead J expressed a brief conclusion on the matter of illegal refining, at [93]:

Akenhead J’s point was that the duty under section 11(5)(b) is concerned with the work, structure or things executed under the licence; where harm comes from an illegal refinery which is not operated under the licence it is outside the scope of the statutory duty. Akenhead J did not expand on his view that “at the moment” he could not see how damage caused by illegal refining could fall within the section 11(5)(b) duty; his words suggest a provisional view. Nevertheless Mr Omoaka’s evidence was that the Nigerian Supreme Court would find this conclusion persuasive and would follow it. Mr Willan submitted that as Mr Omoaka was not challenged specifically on his evidence about the scope of section 11(5)(b) as it related to illegal refining it is not open to the Claimants to invite me to reject that evidence.

Dr Ajibade disagreed with Akenhead J’s conclusion, as he explained in his evidence:

Mr Willan made the point that, applying a “but for” analysis to the scope of section 11(5)(b) is illogical and inconsistent with the approach which has been agreed in relation to section 11(5)(a), which is that as spills cannot result from the lawful exercise of rights under the licence, this provision cannot give rise to a claim. He argued that the court must look at what the sub-section is targeted at: s.11(5)(a) is targeted at the lawful acts of the operator, (b) is about the pipeline itself, not about what is done with the stolen oil.

Ms Day rejected the suggestion that she had not challenged Mr Omoaka on his evidence about section 11(5)(b). She argued that in circumstances where the possibility of a claim for TPI in negligence had been accepted, it could not properly be suggested at this stage that damage caused by illegal refining could never be recovered. She pointed to the observations of Males LJ in the Court of Appeal decision allowing the illegal refining amendments, to the effect that this would all be a matter of fact for trial.

In the end, the opposing views resolved to this: is illegal refining to be seen as a category of harm resulting from bunkering, against the risk of which, as I have found above, there may theoretically be a duty to protect depending on the facts (Dr Ajibade’s view), or is the harm resulting from illegal refining such a different type of loss that it is necessary to step back and ask first whether that type of loss is within the scope of the duty imposed by section 11(5)(b) (Mr Omoaka)? And can those opposing positions be resolved without full pleadings and without a full examination of the facts at trial?

As to the last of these questions, Mr Willan argued that this trial of preliminary issues is not a summary judgment hearing: the questions and the factual assumptions underpinning them were agreed by the parties and ordered by the court (albeit by consent) so as to provide a useful framework now for the onward path of the litigation. The whole purpose of posing factual scenarios was to obtain an answer now to how the Nigerian courts would address and decide difficult questions of law on assumed facts. The facts at trial may or may not be the same, but having an answer now to what the answer would be on this set of facts will be an invaluable guide to the parties going forward.

After careful consideration, and whilst I fully appreciate the logic of Mr Willan’s argument, I decline to reach a final view now on how the Nigerian Supreme Court is likely to determine the question of whether there can be liability for illegal refining under section 11(5)(b) of the OPA. For all the reasons Mr Willan gives, there appear to me to be very significant hurdles in the way of any claimant successfully pursuing a claim under section 11(5)(b) (or indeed at common law) for damage caused by illegal refining. “[A]t the moment” (to use Akenhead J’s phrase) I cannot see how a claim in respect of damage caused by illegal refining could fall within the duty to protect under section 11(5)(b) but at this preliminary stage I do not think it would be sensible or right to give a definitive answer to the question of what the Nigerian Supreme Court would find. Nigerian courts have to-date clearly treated common law and OPA claims as effectively interchangeable and the evidence before me was that the Nigerian Supreme Court would approach causation in the same way for both. At this stage no claimant has yet identified the particular spill or spills that is/are said to have caused their loss, so that the factual circumstances of any claim for damage resulting from spills from illegal refineries (assuming that any lead claimant eventually pleads such a claim) are as yet unknown. On one view, the specific case in respect of any spill or spills not yet having been pleaded, these proceedings have not reached even the summary judgment stage. The assumed facts agreed for the purposes of this PI are scant, giving nowhere near the detail that a pleaded case would be expected to give. I am not prepared to reach a concluded view now on a broadly based, hypothetical claim for breach of statutory duty when I am not prepared to do so (and I am not, see below) in relation to a claim in negligence at common law. Having now heard all the evidence and argument I am quite sure that this is an example of a preliminary issue which, though it may have appeared promisingly definitive when drafted and agreed by the parties, and ordered by the court in January, is in fact far more complex and difficult, making it unsafe and unsatisfactory to determine it now rather than waiting for trial.

I recognise the possibility that there may have to be further expert evidence as to how the Nigerian Supreme Court is likely to decide this issue, in the light of (a) the fully pleaded (lead) cases and/or (b) facts found at trial.

For the reasons I have given I decline to give an answer now to PI 4(4)

It follows from the above that in the straightforward case of a spill from the pipeline being caused by TPI, resulting in damage to one or more claimants, SPDC will be liable if its neglect has caused the damage. However, if SPDC has been prevented from carrying out maintenance/repairs or otherwise to have protected the pipeline, then it will not be liable under s.11(5)(b). This is the reason why the claims failed in the case of Firibeb, above.

The experts agreed that a claim would fail where a claimant themself prevented SPDC from carrying out maintenance/repairs. This is by operation of the familiar ex turpi causa (loosely translated as “a person cannot benefit from a wrongful act”) principle, which applies equally in Nigeria. Mr Omoaka’s principal view was that there could be no liability for TPI under section 11(5)(b) in any event (see above) but if, contrary to his primary position, section 11(5)(b) enabled a licence-holder to be liable for a negligent failure to prevent/protect, then a person who prevented the licence-holder from acting would not be able to recover. Dr Ajibade accepted further that it would not matter whether the person(s) acting to prevent SPDC from carrying out repairs/maintenance were claimants or non-claimants.

The experts agreed that the licence-holder is under an obligation to use reasonable diligence to stop a spill caused by TPI and to repair the damaged pipeline. Detection is necessarily linked to the issue of when a leak should reasonably have been fixed; accordingly, it is the latter issue on which the court will focus at trial.

Under section 11(5)(b) a licence-holder is liable for any neglect by its “agents, servants or workmen” . It will be a question of fact in any case as to whether a “contractor” is to be regarded as an agent, servant or workman.

The experts were asked about the principles by which liability would attach to SPDC in any given situation, that is to say when a person’s acts are to be regarded as having been performed as an agent, servant or workman, or as an unconnected third party. Mr Omoaka’s view was that the common law principle of vicarious liability would apply to the statutory wording of section 11(5)(b); in his oral evidence Dr Ajibade agreed with this. There was disagreement between them, however, on the approach to vicarious liability which Nigerian courts would take, Mr Omoaka contending for a narrower application than Dr Ajibade.

Mr Omoaka relied on the Nigerian Supreme Court decision in Ifeanyi Chukwu (Osondu) Co Ltd v Soleh Boneh (Nig) Ltd [2000] 5 NWLR 322 where Iguh JSC, in a concurring judgment enunciated the principle of vicarious liability as follows (at p.365):

More recently, in Total Exploration & Production (Nig) Ltd v Okwu (2024) LPELR-62623 (SC) when considering liability for the acts of a registered contractor the Supreme Court stated:

Relying on these pronouncements by the Supreme Court, Mr Willan argued that it would be unsafe to assume that Nigerian courts will apply the principle of vicarious liability in the same way as would an English court. Mr Omoaka’s view, citing the decision of the Nigerian Court of Appeal in Bisi Salawu v Union Bank [1986] 4NWLR 701, was that a licence holder would never be held responsible for a crime committed by one of its agents or employees.

Ms Day suggested that Nigerian courts would have regard to the principle as discussed in Clark & Lindsell, which is a textbook well-recognised in Nigeria as “an authoritative representation of the common law of torts” (as Mr Omoaka stated in his supplementary report).

In the end, there appeared to me to be no great difference between the experts on this question. Both agreed that vicarious liability would apply. It is apparent from the discussion of the principles of vicarious liability in the leading judgment of Ogundare JSC in the Ifeanyi Chukwu case that English common law principles will apply, since he referred to a number of English authorities, without narrowing their application in the way Mr Willan suggested. Where the line will be drawn between acts deemed to be those of the licence-holder and those of an employee acting “on a frolic of his own” (a phrase used in the English authorities and also by the Nigerian Court of Appeal in Salawu ) will depend on the particular facts. It is not possible, at this stage, to be any more specific than that. In particular, I decline to find that the Supreme Court would in every case of TPI committed by, for example, an employee, find that the acts were not those for which the licence holder was liable under section 11(5)(b).

As I have noted above, the experts agree that an individual claim will fail where the claimant is found to have been involved in an unlawful enterprise causing a spill. However, Dr Ajibade and Mr Omoaka disagreed as to the impact upon the community claim if members of the community are found to have been involved in an unlawful enterprise which caused the spill(s).

Mr Omoaka’s view was that community members share a common interest in the claim so that the claim would fail if even one of them were found to have been involved in causing the spill. Dr Ajibade considered that the community claims could continue even if some or even most of the members were found to have contributed to the unlawful enterprise. It would be for the court to make an appropriate order for compensation of the innocent whilst withholding any benefit from those who had participated. Insofar as the spill(s) was covered by the OPA, then Dr Ajibade was of the view that section 21 would enable money to be paid to a chief or into a trust scheme.

The community claims are pleaded as a species of trust. However, both experts agreed that a claim brought by chiefs on behalf of the community would be regarded as a representative action. Mr Omoaka’s view was that, as such, the actions of one or more members would defeat the community claim, leaving innocent members to make individual claims. He relied for this purpose on the Nigerian case of Ighedo v Power Holding Co (Nig) Plc [2018] 9 NWLR 51 where the Supreme Court held that where a representative action succeeds, every member of the represented class will “reap the fruits of victory”. By the same reasoning, he said, all must fail where the actions of some contaminate the claims of the whole.

Dr Ajibade disagreed, citing Otapo v Sunmonu (1987) 2 NWLR (Pt. 58) 587 (SC) as a better authority in this context. Otapo involved a chieftaincy dispute, where the issue was whether the representative party could concede the claim on behalf of the represented cohort. The Supreme Court held that he could not, observing that;

Whilst recognising that Otapo was dealing with a situation post-judgment, Dr Ajibade’s view was that it demonstrated a principle which the Nigerian court would adopt, namely that as a matter of equity and fairness the actions of one or more members could not prejudice the whole community. Ms Day referred also to a decision of the Nigerian Court of Appeal in Nkwocha v. Ofurum (2002) 5 NWLR (Pt. 761) 506 (CA) citing the above passage from Otapo as authority for the principle that: “named representatives must act in concert before the action taken can bind the unnamed parties or the other named ones”.

Mr Willan suggested that there is no prejudice to community members whose claim is prevented by the actions of certain members, as the innocent members can still pursue an individual claim. But (i) the community members include minor parties who have no individual claim and (ii) the community claims include damage to community assets eg shrines and wells, damage to which would give rise to no individual claim.

Where there are criminal acts of third-party members of a community, the facts may well preclude proof of negligence on the part of the licence-holder. This is what happened in Firibeb . As for the effect of the actions of a minority on a community claim as a matter of law, I prefer the opinion of Dr Ajibade that a Nigerian court would not dismiss the community claim outright but would look to make an order which allowed reparation to be made to the assets and to the innocent parties within a community. This view is supported by the flexibility of the compensation provisions within the OPA and by the observations of the Supreme Court in the Otapo case indicating their reluctance to allow the actions of one or more members of a community to prejudice the whole.

For the reasons given above, I decline to give a definitive answer now to the hypothetical scenarios at 6A and 6B.

The parties are agreed that the applicable law governing the burden and standard of proof is a matter of English private international law. As to that:

The burden of proof under Nigerian law is identical to that under English law; the joint evidence of both experts was that under Nigerian law a party asserting a fact must prove it.

If the standard of proof is governed by Nigerian law, then both experts agree that the consistent practice of the Nigerian courts is to apply the criminal standard of proof (i.e. beyond reasonable doubt), whether the allegation is made against a party or a nonparty. Under English law, the standard of proof is the civil standard i.e. balance of probabilities.

Thus the single contentious point for determination under this PI is whether the standard of proof in relation to post-11 January 2009 events, where choice of law is covered by the Regulation, is a matter governed by English law as the law of the forum or by Nigerian law as the law of the claim.

Mr Willan contended that standard of proof is a matter of evidence which is excluded from the scope of the Regulation by Article 1.3. Article 1.3 provides that “this Regulation shall not apply to evidence and procedure, without prejudice to articles 21 and 22” . As indicated above, Article 22 deals specifically with the burden of proof, applying the law of the claim.

Mr Willan referred to the decision of Dingemans J (as he then was) in Marshall v MIB [2015] EWHC 3421 (QB) . The case concerned a motor accident occurring in France, raising issues concerning the applicable law relating to burden and standard of proof. At [25] Dingemans J said this:

Ms Day contended that the approach of Dingemans J in Marshall was wrong in principle and should not be followed. She argued that Article 1(3) of the Regulation is concerned with the manner in which matters are proved rather than the standard to which they must be proved, submitting that the degree to which the court must be satisfied of a relevant matter (ie standard of proof) is an indivisible part of the burden of proof and should be regarded as part of the same rule of law under Article 22, applying the law of the claim. Alternatively, if the analysis in Marshall is accepted and standard of proof is to be determined under English common law, she suggested that the court should adopt a flexible approach - referring to the observations of Andrew Smith J in Fiona Trust v Privalov [2010] EWHC 3199 - and apply Nigerian law to both burden and standard of proof where a party raises an allegation of loss caused by TPI.

Intrigued though I was by Ms Day’s invitation to take a flexible approach to proof of TPI, I unhesitatingly adopt the approach of Dingemans J in Marshall , noting that it was followed subsequently by Nicol J in Folkes v Generali Assurances [2010] EWHC 3199 at [12]. The editors of Dicey, Morris and Collins on the Conflict of Laws, 16 th Edn. at para 34-068 adopt the same analysis:

The answer to PI 5 is

The experts are agreed on the answer to this preliminary issue. A certificate that damage has been “made good” may be good evidence but it is not necessarily conclusive. Where liability is established then the principle of restitutio in integrum applies. A claimant is entitled to be put back in the position they were before the event(s) causing loss occurred. Whether payment of compensation is sufficient will be a matter of fact. Certification by NOSDRA that a spill has been remediated raises a rebuttable presumption that the spill has been remediated, however that presumption can be rebutted by contrary evidence.

It is agreed (at least for the purposes of these proceedings) that the OPA provides an exclusive code for claims against a licence-holder, preventing any claim for oil spills against the licence holder at common law. This was the finding of Akenhead J in Bodo . The reasons for his decision are summarized in his judgment at [64]. The Nigerian Court of Appeal has subsequently adopted Akenhead J’s conclusion, finding his reasons “highly persuasive”: Nigerian Agip Oil Co Ltd v Ogbu [2017] LPELR-45217 (CA) per Danjuma JCA at pp.39-40. The issue arising under PI 7 is whether, on its proper construction, the OPA ousts common law claims in respect of pipeline spills against all other parties, including in particular claims against the first defendant, SPDC’s parent company.

I start by considering two Nigerian court decisions drawn to my attention as bearing on this point:

In neither of these cases was the ouster point raised by this PI 7 directly considered by the court: In Ogbu the claim was against the licence-holder; in Torchi, whilst a jurisdiction point was taken, it was to do with Shell International being a company resident outside Nigeria; the court was not required to consider whether the OPA only permitted claims against a licence-holder and precluded common law claims against anyone else. On one reading of Justice Danjuma’s lead judgment in Ogbu (referring to “the plenitude” of the OPA and that “every claim may only be made under the Act” ) his words might appear to support the implied ouster of common law rights for which the Defendants contend, but no issue had been raised in that case about the possibility of common law claims being brought against parties other than the licence holder. Nor can I consider the first instance decision in Torchi as establishing a readiness to entertain common-law claims against a non-licence holder, as Ms Day suggested, since it appears from his judgment that Justice Ringim awarded damages under the OPA against both defendants in that case.

The expert evidence on this point was not always easy to follow: Dr Ajibade agreed with Mr Willan that the Supreme Court, looking at the OPA would agree that the legislative intention was to ensure that victims of a spill (from a pipeline) had to observe the rights and remedies only in accordance with the Act, because that was intended to provide a comprehensive code. But he did not agree that the Supreme Court would go on to find that no one other than the licence holder could be held responsible for anything to do with the maintenance or operation of the pipeline, in other words that the OPA had implicitly removed all common law rights whatsoever. In cross-examination Dr Ajibade drew back from this position to some extent when expressing the view that agents, servants or workmen of the licence-holder would have a defence if they were sued at common law for matters arising from the maintenance or operation of the pipeline (a concession that Ms Day in closing suggested had been wrongly made) but he continued to maintain the view that common law rights would remain vis a vis others, eg a parent company of the licence holder.

Mr Omoaka’s evidence in his first report seemed clear (at para. 280):

As this is a point which the appellate courts in Nigeria have not directly considered, both counsel addressed me on the matters of principle which they put to the experts, and suggested to me, that the Supreme Court would apply. Ms Day referred me to ordinary principles of statutory construction starting from the position that a statute will not be taken to have removed existing rights unless by the use of clear words, or by necessary implication. She relied on this as a standard principle, applicable under both English and Nigerian law, citing a decision of the Nigerian Supreme Court in Adeshina v Lemonu [1965] LPELR 25222, in which the court stated as follows:

Ms Day referred me also to the passages from the UK Supreme Court judgment in the Manchester Ship Canal case cited at [86] above to the effect that where a statute is “detailed and elaborate” it will not have “left an important change in the law to be a matter of implication” . Dr Ajibade’s evidence was that the Nigerian Supreme Court would follow the same reasoning; Mr Omoaka accepted that “in general” the Nigerian courts will adopt the same principles of statutory construction as English courts.

Ms Day pointed out that the OPA contains no express wording removing common law rights in respect of oil spills against parties other than the licence holder. She emphasized that although the OPA has implicitly removed common law rights vis-a-vis the licence-holder (as Akenhead J found), it had replaced them with a broad and generous statutory provision, and that, by contrast, there is nothing in the OPA to indicate that the legislature intended a wholesale removal of the right to bring common law claims in respect of oil spills against persons other than the licence-holder.

Ms Day also argued that there are strong policy reasons why there should be a parallel/residual right to claim against other parties at common law: there is no provision under the OPA for a guarantee of the licence-holder’s liabilities, and no evidence before the court as to the manner in which solvency issues are addressed at the time a licence is granted. Where the losses are huge, there may well be cause to fear for the licence-holder’s solvency; she referred here to Sales LJ’s (now Lord Sales) dissenting judgment in the Court of Appeal on the jurisdiction challenge in these proceedings: Okpabi & Ors v Royal Dutch Shell Plc & Anor v RDS & SPDC [2018] EWCA Civ 191 at 150 :

Mr Willan began from the point that, as provided under section 7(4) of the OPA, “No person other than the holder of a licence shall construct, maintain or operate an oil pipeline” , submitting that this, taken together with the codification of common law in section 11(5), indicated the legislature’s intention to have a single route and single defendant in respect of damage arising from pipeline spills. Mr Willan drew attention to the reasons given by Akenhead J for his decision that the OPA was a comprehensive scheme, ousting common law rights against the licence holder (at Bodo , [63]), particularly the following:

In his evidence Dr Ajibade agreed that these were all legitimate considerations to which the Supreme Court would have regard, and that these were cogent reasons for an ouster of all common law claims arising from the maintenance or operation of the pipeline. Mr Willan made the point to him that unless common law claims were excluded, a person would be able to bring a common law claim against an employee, for instance, in respect of which the employee would be entitled to be indemnified by their employer, the licence holder, thereby evading the provisions of the OPA. He suggested that it logically followed from Dr Ajibade’s acceptance that the OPA would give agents, workmen and servants a defence to a common law claim that this would extend to anyone sued at common law in respect of anything arising from the operation or maintenance of the pipeline. Dr Ajibade was not prepared to follow his argument that far.

I have concluded that the Nigerian Supreme Court would apply the principles of statutory construction identified by Ms Day to find that the OPA replaced common law claims against the licence holder but that the legislature did not thereby intend to remove all common law rights against persons other than the licence holder. Common law claims against any other party in respect of pipeline spills, assuming a case can be made on the facts, are not excluded. This interpretation accords with the evidence of Dr Ajibade and with the initial position of Mr Omoaka, as I understood it.

It does not follow (still less as a matter of necessary implication) from the fact that section 7(4) permits only the licence holder to construct, maintain or operate a pipeline that it is only the licence holder and no one else who can be sued. It is right that it is only the licence holder that can be sued under section 11(5) of the OPA, but that does not mean that the OPA must necessarily have excluded common law rights against everyone else. As Ms Day pointed out, the purpose of section 7(4) is to prohibit persons without licences from setting up or operating their own unlicensed pipeline, it is not concerned with the liabilities of persons who in some way assist or oversee a properly authorised licence-holder’s construction, maintenance or operation of its pipeline.

I can see that, in principle at least, there is a possibility of different claims and differing awards being made in respect of the same spill(s) against SPDC and its parent company, insofar as the regimes, under the OPA and the common law, afford separate and distinct routes to liability. Mr Willan suggested that this would lead to “a form of chaos or setting at nought” (referring to Akenhead J’s reasoning in Bodo ). But I do not believe that that possibility would be sufficient to displace a key principle of statutory construction, emphasized recently by the UK Supreme Court in the Manchester Ship Canal case, that clear words are required to remove existing rights. The omission of such clear words from an otherwise detailed and comprehensive statute is significant. I acknowledge that common law rights against the licence holder are removed implicitly under the OPA, but then they are removed to be replaced by the arguably more generous scheme. Bearing all this in mind I think it more likely than not that the Nigerian Supreme Court would follow the Manchester Shipping principles and permit common law claims against persons other than the licence holder in respect of damage from pipeline spills.

The answer to PI 7 is that the OPA does not oust claims in common law for oil pipeline spills against persons other than the licence-holder.

In addressing this PI I have followed the parties’ lead in considering only spills from non-pipeline assets not resulting from any third-party activity. Spills resulting from TPI and illegal refining are dealt with under PIs 19 and 20 respectively, at paragraphs [215] to [261] below.

The experts agree that there can be claims in negligence, nuisance and under the rule in Rylands v Fletcher in respect of spills from non-pipeline assets. I discuss claims in trespass below.

The experts also agree that the Regulations cannot give rise to private law claims in respect of damage caused by oil spills (see further PI 9 below). It follows that the Claimants’ claims under Regulations 23, 25 and 37 must be dismissed.

Paragraph 37 of Schedule 1 to the Petroleum Act (“para 37”) provides as follows:

The experts disagreed about the extent to which para 37 enables claims by private individuals for damage caused by oil spills.

Dr Ajibade’s view was that para 37 enables claims in respect of damage caused by all oil spills from non-pipeline assets. In his opinion it operates as a strict liability provision, mirroring the rule in Rylands v Fletcher and subject to the same exceptions. He referred to the Nigerian cases of SPDC v Farah [1995] 3 NWLR (Pt.382) 148 and Asaboro & Anor v Pan Ocean Oil Corporation (Nig) Ltd & Anor [2006] 4 NWLR 595 (CA) (in the Court of Appeal) [2017] LPELR-41558 (SC) (in the Supreme Court) in support of his view.

Mr Omoaka’s evidence was that para 37 only relates to the licence-holder’s lawful activities, that is to say it is designed to ensure that a landowner is compensated for activities otherwise authorised by statute, for which compensation would not be available at common law. The provision accordingly performs a function in respect of non-pipeline spills similar to section 11(5)(a) of the OPA in respect of pipeline spills.

On one view it is unnecessary to determine whether Dr Ajibade’s or Mr Omoaka’s opinion as to the effect of para 37 is to be preferred as, even if para 37 does afford a claim in respect of non-pipeline spills, Dr Ajibade agreed that it adds nothing to the common law. Nevertheless, as the claimants have pleaded a separate claim in reliance on para 37, I have considered the competing positions and conclude that the Nigerian court is more likely to arrive at Dr Ajibade’s conclusion. Mr Willan’s principal criticism was that there would be no need for the legislature to enact a provision which simply replicated the common law, the force of which Dr Ajibade accepted in cross-examination. But as Ms Day pointed out in closing, the broad terms of para 37 do not restrict it to oil spills alone; “surface or other rights” may be disturbed in ways other than by oil spills. Moreover there is nothing in the wording of para 37 itself, or any other provision referring to para 37, which restricts the award of compensation to damage resulting from the exercise of lawful rights under the licence.

The Nigerian Court of Appeal decision in Farah provides some support for Dr Ajibade’s view. Farah concerned a spill from an oil well in respect of which SPDC had accepted liability, the only issue before the court related to the proper level of damages. In the course of his judgment Edozie JCA noted that the wording - “fair and adequate compensation”- used by the parties to the claim appeared to have been drawn from para 37. The most that can be said of this decision is that the Court of Appeal did not expressly disapprove the application of para 37 in the context of a claim arising out of an oil spill; on the other hand, the applicability of the provision was not an issue put before the court for its decision. Thus I cannot regard the decision in Farah as conclusive on the point, nevertheless it is at least consistent with Dr Ajibade’s view. Neither the Court of Appeal nor the Supreme Court decision in Asaboro assists one way or the other: the courts were addressing a limitation point in the context of a claim under para 37 for compensation arising from oil drilling activities. As such the activities were of a kind which would have been undertaken pursuant to a licence and para 37 would have applied even on Mr Omoaka’s analysis.

It is important to record, before leaving para 37, Dr Ajibade’s evidence that the Supreme Court would adopt the same approach and apply the same principles to a claim under para 37 as it would to a common law claim under Rylands v Fletcher . The possibility of a claim under Rylands v Fletcher in respect of damage from illegal refining is discussed further under PI 20, below.

There are no decided Nigerian cases where trespass has been advanced as a cause of action in the context of an oil spill. Whilst the experts drew the court’s attention to a great many cases brought by claimants in Nigeria seeking damages and/or other remedies where spills have occurred, neither was able to point to a case in which a claim has been advanced in trespass.

Both experts agreed that in the absence of Nigerian decisions, the Supreme Court would have regard to Clerk & Lindsell on Torts as a text to which the court would accord great weight. Dr Ajibade was taken to the following passages in his evidence, which he accepted the Supreme Court would follow:

In his evidence Mr Omoaka accepted that an operational failure could potentially give rise to an action in trespass, depending on the particular facts:

This and other hypothetical scenarios were put to the experts in evidence. I indicated that I would not express a definitive view on them, and I do not do so. The PI asks whether there can be a claim in trespass; by the end of the evidence there was agreement that such a claim would be possible depending upon the facts and subject to these principles being satisfied: (i) there must be a direct projection of oil onto the claimant’s land by a physical act, and (ii) the physical act causing the oil to be projected must be a voluntary act, albeit that it may be negligent.

Confining the question asked to spills from non-pipeline assets not involving third party interference and excluding damage resulting from illegal refining, the answer to PI 8 is as follows:

The experts are agreed that Regulations 23, 25 and 37 impose duties in accordance with their terms. Regulation 23 can give rise to a private law claim for compensation, but does not apply to oil spills. Regulations 25 and 37 cannot give rise to a private law claim for compensation.

The answer to PI 10 follows from PIs 8 and 9 above.

The Regulations do not give rise to any claim for damage caused by an oil spill.

Paragraph 37 of Schedule 1 to the Petroleum Act can give rise to a claim for damage caused by oil spills. Liability under paragraph 37 is subject to the same principles and exceptions as those which apply to a common law claim under Rylands v Fletcher.

As the parties have done, I take these two PIs together.

Given the agreed position that the Regulations do not give rise to any relevant cause of action in these proceedings, it is unnecessary to address TPI by reference to the Regulations.

As I have already found, liability under paragraph 37 of Schedule 1 to the Petroleum Act would be treated by the Nigerian Supreme Court as co-extensive with Rylands v Fletcher liability at common law and subject to the same principles. Accordingly actions of third parties would be a defence, subject to the Rickards v Lothian exception, namely that the acts were ones that the licence-holder could reasonably have foreseen and guarded against. That will be a matter of fact in any given case.

These questions are inapplicable to the Regulations, which give rise to no private law claim for compensation in respect of oil spills.

A claim can be brought under section 37 of Schedule 1 to the Petroleum Act in respect of oil spills from non-pipeline assets caused by TPI. The fact that the spill resulted from the acts of third parties will be a defence save insofar as the claimant can show that the acts were of a kind that the licence-holder could reasonably have foreseen and guarded against.

The answers to the scenarios follow from the application of the principles already discussed.

Scenario 2 (failure timeously to detect a leak caused by TPI) : Dr Ajibade’s evidence was that the licence holder would be liable under paragraph 37 if it could reasonably have foreseen and prevented third party actions resulting in disturbance of the particular claimant’s surface or other rights. This will be for the claimant to demonstrate, applying Rylands v Fletcher principles, and will depend on the facts. As to a claimant who has prevented inspections, their actions may make it more difficult to establish that the defendant could reasonably have foreseen and guarded against the TPI; it may also enable the defendant to argue that the claimant should not recover by application of the principle of ex turpi causa , explained as follows by Dr Ajibade: “[that the claimant] had caused or contributed to their own loss and so were not entitled to compensation” .

Scenario 3 (failure timeously to stop a leak caused by TPI) : Liability under paragraph 37 will depend on the claimant showing that the TPI was reasonably foreseeable and that the defendant could reasonably have guarded against it.

Scenario 4 ( employees, agents or contractors part of unlawful enterprise leading to spill caused by TPI) : The answer to this will depend upon the facts. But if on the facts the TPI is not the act of an independent third party, then SPDC will be unable to establish the third party defence under Rylands v Fletcher and will be strictly liable.

Scenario 5 (the claimants, or some of them were part of an unlawful enterprise leading to a spill caused by TPI ) : On the application of the relevant principles I have already dealt with, individual claimants who are part of the unlawful enterprise will be prevented from recovering any loss. Other claimants would be entitled to pursue their claims, but the evidence may, as indicated above, render it more difficult for these others to show that the defendants could reasonably have been expected to foresee or guard against the third party actions.

The answer follows from those already given above. There is no claim under the Regulations. Remediation will not provide a defence to a claim under paragraph 37 of Schedule 1 to the Petroleum Act but may be relevant to assessing what (if any) loss has been suffered.

The Regulations give rise to no claim for damage from oil spills, see above. Given my conclusion that the Nigerian Supreme Court would treat liability under paragraph 37 of Schedule 1 to the Petroleum Act as mirroring Rylands v Fletcher liability at common law, my conclusions at [218] below apply equally here.

A licence-holder cannot be liable under paragraph 37 of Schedule 1 to the Petroleum Act for damage caused by oil taken by TPI and subsequently used in illegal oil refining by third parties.

It is common ground that the principles of causation applied in Nigerian courts will be the same whether the claims are made under statute, or pursuant to common law. Given my findings on the fundamental rights issues in Section II of this judgment, I do not need to, and do not, make any findings about causation in relation to fundamental rights claims under the Constitution and African Charter.

In opening the Claimants indicated that they intended to ask the court to find that Nigerian courts would apply a “material contribution” test in certain circumstances involving multiple sources of pollution. By closing, however, Ms Day had moved to inviting me simply to state that Nigerian and English law on causation will be the same, allowing the court at trial to come to its own conclusions by applying English principles to the facts as found.

Mr Willan objected to this as a generality, submitting that whilst there may be some areas - claims for trespass in the context of oil spills, for instance - where in the absence of any relevant Nigerian precedent this court could legitimately say that a Nigerian court would apply the same principles as an English court, causation as a generality is not one of them. He pointed to a number of Nigerian appellate decisions on causation, from which relevant principles may be drawn and which were discussed with the experts in their evidence. It is not the case, he argued, that Nigerian law is exactly the same as English law; he pointed to the expert evidence as demonstrating that there are principles of causation in Nigeria that do not find a parallel in English law.

Mr Willan emphasised the evidence of both experts that, where there exist relevant Nigerian decisions, the Nigerian courts will follow those and will not have regard to decisions of English courts (see [12] above).

The key Nigerian authority on causation to which I was referred was ANTS v Atoloye [1993] 6NWLR (Pt 298) 233. This is a Court of Appeal decision in a case concerning a car accident where there were, on the evidence, competing causes. The plaintiff’s case was that the driver had been driving at an excessive speed and carelessly; the driver said that the car had suffered a sudden and unexpected brake failure. In delivering the lead judgment Tobi JCA (as he then was) gave this exposition of the law of causation (at pp.247-248):

Based on ANTS Mr Omoaka’s evidence was that in order to establish causation a claimant would need to prove that the defendant’s actions were both a “but for” cause and the “most responsible” cause - referring to these as the factual causation and the legal causation tests. In his evidence, however, he accepted that a “but for” test does not have to be satisfied in every case, specifically in the “hunter” example (where two hunters shoot simultaneously, each shot on its own capable of instantly killing the target). He also accepted that a defendant could be liable even if their wrongdoing was not the most proximate cause of the damage. Ms Day asked about the court’s approach where it was not possible to identify a single most responsible cause:

Dr Ajibade accepted that the default position in Nigerian courts is the “but for” test and that this is entrenched in Nigerian law. He also accepted that Tobi JCA was laying down general principles, albeit indicating a degree of flexibility in their application to the facts of any particular case. He agreed that the Supreme Court would apply ANTS in any case where it was clear, on the evidence, that there was one spill which was more responsible for the harm than another.

Dr Ajibade drew attention to the Nigerian case of Kabo Air Ltd v Mohammed (2005) 5 NWLR (Pt) 1451 38 , and to the reasoning of Abiru JCA (as he then was) suggesting that the Court of Appeal in that case was applying a “material contribution” test. The case concerned a flight attendant who was arrested and imprisoned in Saudi Arabia. He claimed against his employers alleging that they had been negligent in failing to take steps to have him released. At trial his claim was allowed. The employer appealed, contending that its actions were not the cause of its employee’s detention, which had been due to his own activity. In giving judgment Abiru JCA said:

There are two further Nigerian cases to which I was referred: International Equitable Association (Industrial & Commercial Ltd) v Nwankwo (11 December 2017) and SPDC v Nwagbara [2018] LPELR-43732 (CA). Both involved allegations of polluting discharges. The claims failed on the facts but in both cases the Court of Appeal identified a “material contribution” test as an exception to the “but for” test, by reference to English cases on claims arising from industrial diseases. However, although relying on principles derived from English authorities, in none of the above cases did the Nigerian court draw a distinction between divisible and indivisible injury, as discussed in the recent English Court of Appeal decision in Holmes v Poeton Holdings [2024] KB 521 .

Mr Omoaka’s evidence (which Dr Ajibade accepted) was that the Nigerian Supreme Court would be likely to apply the principles derived from the English Court of Appeal’s decisions in Rahman v Arearose [2001] QB 351 and Holmes . These authorities establish that where injuries are divisible the court will make an apportionment of the damages according to the relative causative contribution of the different sources of pollution, even if the apportionment is imprecise or evidentially challenging. But where damage constitutes an “indivisible” injury then English law recognises a “material contribution” approach, the Court of Appeal in Holmes citing well-known industrial disease cases in this connection.

Both experts also agreed that the Nigerian Supreme Court would be likely to follow the Court of Appeal decision in Halsey v Milton Keynes to the effect that where polluting events operate sequentially, the later polluter will not be held liable to the extent that the damage had already been caused by the earlier pollution even if, had the earlier pollution not occurred, the later pollution would itself have caused that damage.

English authority, following the discussion in Holmes , will look to distinguish between divisible and indivisible injury, apportioning where injuries are divisible. But as Ms Day points out, how distinctions between divisible and indivisible injury are to be drawn in the context of environmental pollution is a complex and difficult topic. There is no Nigerian authority dealing with multiple sources of pollution which have combined to cause harm but where no individual source was either necessary or sufficient on its own. This is the example discussed in the English Supreme Court case of Financial Conduct Authority v Arch Insurance (UK) Ltd and others [2021] UKSC 1 . The case concerned the interpretation of clauses in policies proving business interruption cover under which claims had been made for losses experienced during COVID. In the course of their judgment the Supreme Court considered causation in the context of the insured perils, referring to an article by Professor Jane Stapleton in which a number of examples are given, including this one, cited in the judgment of Lord Hamblen and Lord Leggatt at [185]:

Drawing all this together I conclude that the following is the approach, on the evidence, that the Nigerian Supreme Court is likely to take to causation where there are multiple potential sources of loss:

In closing Mr Willan suggested that it may be necessary to have additional expert evidence on the Nigerian Court’s approach to causation in the light of the facts, if the parties are unable to agree what the law should be at that time. But given the view I have taken that if it cannot apply Justice Tobi’s test in ANTS the Nigerian court is likely to find English law persuasive and to follow that, I would hope that further evidence of Nigerian law on causation will not be needed.

The answer to PI 15 is that the Nigerian Supreme Court will first seek to apply the test of “most responsible cause”, identified by Tobi JCA in the case of ANTS v Atoloye . If the facts do not permit the “most responsible cause” to be identified then the court will apply principles of causation derived from English authority.

The same approach to causation applies to all the private law causes of action. I make no finding about causation in relation to the fundamental rights under the Constitution and the African Charter.

The experts are agreed as to the nature of interest in land required to bring a claim in each separate tort :

This preliminary issue is concerned with claims against SPDC (as the licence holder) in respect of oil spilt from non-pipeline assets. All parties accept that claims against SPDC in respect of spills from the pipeline and associated infrastructure are exclusively covered by the provisions of the OPA, see above. The Nigerian common law will apply to any claim in respect of spills from non-pipeline assets (eg wells, wellheads) .

As a reminder, TPI is defined for the purposes of all the preliminary issues as:

The experts’ Joint Statement records their agreement that a claim could lie in negligence in respect of TPI.

There was initial disagreement between Dr Ajibade and Mr Omoaka as to whether there could be a claim under the rule in Rylands v Fletcher for TPI, Mr Omoaka’s original opinion being that the Nigerian courts would not entertain a claim under the rule for an escape caused by a third-party act. However, in his oral evidence Mr Omoaka accepted that Nigerian law is the same as English law when considering the application of the rule. Under English law, there is strict liability under Rylands v Fletcher for an escape of a dangerous thing held on the defendant’s land, however that escape is caused, but liability may be rebutted “where a defendant can show that the escape resulted from the act of a third party whose presence and intervention the defendant could not reasonably have anticipated” ( Clerk & Lindsell on Torts , 24 th Edn, para 1-81, referring to Rickards v Lothian [1913] AC 263 ). The acts of third parties in interfering with non-pipeline assets will provide SPDC with a defence, save where the particular claimant can show that the interference was foreseeable and of a nature that SPDC should have guarded against.

The parties were not agreed as to whether spills caused by TPI could give rise to a claim in trespass. Mr Willan argued that, on the basis of the Clerk & Lindsell characterisation of trespass as requiring a “direct and voluntary act”, spills caused by TPI could not be said to have resulted from a direct or voluntary act by SPDC. He pointed to Dr Ajibade’s acceptance in evidence that the act of someone taking a sledgehammer to a piece of equipment, causing oil to spill, could not be said to be the direct act of SPDC.

On this basis Dr Ajibade also accepted that a spill caused by TPI would not constitute a voluntary act by the operator and could not therefore give rise to a claim in trespass. But Ms Day submitted that this concession had been wrongly made, suggesting that it would be a question of fact whether SPDC had been negligent in failing to protect the pipeline against such an attack and pointing out that once the asset had been punctured, SPDC would be liable in trespass if it put oil through in the knowledge that there was a breach (by reference to the example put to, and accepted by, Mr Omoaka as capable of constituting trespass, depending on the precise facts, in his evidence).

The essential requirements for a claim in trespass are as I have set out above under PI 8: (i) a direct projection of oil by a physical act on the part of the licence holder and (ii) the physical act must be a voluntary act, even if negligent. I find it difficult to conceive of a realistic factual scenario where both requirements would be met in circumstances where the asset has been damaged by TPI, but I accept that it could theoretically be possible .

It was common ground between the parties that SPDC could be liable in nuisance for a spill arising from the actions of third parties if it continued or adopted it, that is to say where SPDC knew or ought to have known that third parties had breached the asset causing a nuisance to emanate from its land but did nothing to stop it.

The residual dispute between the experts related to whether a claim in nuisance can arise before the point at which SPDC becomes aware that oil is spilling from a breached asset, causing damage. Under English law the position is as set out by Lord Goff in Smith v Littlewoods Organisation Ltd [1987] AC 241 at 274D-G:

As Lord Goff makes clear in this passage, English law permits a claim in nuisance based upon a negligent failure to prevent the actions of third parties regardless of whether the defendant knows, or ought to know, that a nuisance has been caused. Whether such a claim will succeed is fact-dependent in any case. Dr Ajibade relied on English law in giving his opinion that a claim in nuisance could lie for damage arising from spills caused by TPI, stating that the Nigerian Supreme Court would follow the decisions of the House of Lords in Sedleigh-Denfield v O’Callaghan [1940] AC 880 and Smith v Littlewoods .

Mr Omoaka’s view was that, wherever English law may lead, a claim in nuisance arising from the actions of third parties could not succeed in Nigeria, relying on a passage from the (concurring) judgment of Oguntade JSC in UTB v Ozoemena [2007] 3 NWLR 448 . UTB concerned a fire which spread from a vacant plot of land owned by the defendant bank to burn down the claimant’s house. The claimant alleged that the defendant was liable in nuisance and/or negligence for allowing the fire to spread to her land. The defence was that the fire had been started by unknown third parties against whose entry reasonable precautions had been taken. The leading judgment in the Supreme Court was given by Kalgo JSC, reversing the trial courts’s finding of liability, holding as follows:

Kalgo JSC did not explicitly address nuisance in his judgment, however in a concurring judgment Oguntade JSC did so. Having referred to passages in The Torts Law of Anambra State as encapsulating the common law principles of negligence and nuisance (at 474G to 475F) Oguntade JSC held that:

Two important points appear from this passage in Justice Oguntade’s judgment: first, his use of English authority as support for his conclusions; second, his reference to “daily routine”. As Ms Day pointed out, if the highlighted passage relied on by Mr Omoaka represented an absolute rule, there would have been no need to consider what was the bank’s “daily routine”. The citation of English authority supports Dr Ajibade’s evidence that the Nigerian SC would follow English common law principles in relation to a claim in nuisance. Moreover, as appears from the passage in Lord Goff’s judgment in Smith v Littlewoods , above, in the context of damage to neighbouring land caused by the acts of third parties, there is unlikely to be any distinction between liability in negligence and liability in nuisance. This would also explain the absence of any explicit reference to nuisance in the lead judgment of Kalgo JSC.

I conclude (i) that Nigerian law is the same as English law in respect of the acts of third parties causing a nuisance and (ii) applying that law, it is possible to have a claim in nuisance against a licence-holder in respect of non-pipeline spills caused by TPI.

The experts agree in respect of the second part of the question posed by PI 19, relating to remediation. Consistent with their approach to all of the questions posed involving remediation their joint view is that remediation will only be a complete answer to a claim where it has put the particular claimant(s) back into the position they were in prior to the tort having been committed.

My answer to PI 19 is :

The experts were asked to address PI 19 by reference to Scenarios 2-5 at PI 4, applying common law rather than the OPA. To the extent that they did so, their evidence did not add to the above analysis and conclusions. Whether any of the common law causes of action are made out in relation to damage resulting from TPI will be a matter of fact to be determined at trial.

It should be noted that of the many hundreds, even thousands, of claims against oil company defendants which have been brought in Nigeria arising out of oil spills, none has yet sought to recover damages in respect of harm caused by illegal refining. The fact that no such claim has yet been advanced in Nigeria is not to say that such a claim could not be made, as the defendants themselves pointed out in opening there may always be a first time. But what it does mean is that there is no Nigerian decision which has considered whether such a claim could properly be brought and, if so, under which of the various common law routes. Accordingly the experts expressed their views as to the viability under Nigerian law of a claim under common law in respect of illegal refining by reference to the application of general principles.

Trespass: The experts agreed that claims could not be brought in trespass for harm caused by oil spilled in the course of illegal refining of stolen oil.

Nuisance: The experts initially disagreed as to the possibility of a claim in nuisance for harm arising from illegal refining. In closing Mr Willan submitted that this was now resolved, as although Dr Ajibade had initially expressed the view that the release of oil from an illegal refinery could give rise to a liability in nuisance, in cross-examination he accepted that there could be no nuisance at the point at which the oil was stolen from the operator and that there would be, at most, a claim in negligence:

Ms Day submitted that Dr Ajibade’s concession had been wrongly made given the possibility of an action in nuisance for TPI founded upon a negligent failure to protect (see above). She submitted that, as with the tort of negligence, harm from illegal refining is simply a category of loss arising from an alleged failure to protect the asset from TPI, so if there is a valid claim in nuisance for TPI, then it must follow that there could be a claim for losses arising from illegal refining, subject to the ordinary constraints of foreseeability, remoteness and novus actus, all of which are fact-sensitive matters for trial.

In my view Dr Ajibade’s concession was rightly made. Taken together with Dr Omoaka’s evidence, I found it indicative of how the Nigerian Supreme Court would be likely to decide the possibility of a claim in nuisance for harm caused by illegal refining. It is also logically consistent with principle: as Mr Willan pointed out, nuisance is a tort designed to regulate relationships between neighbours, being essentially concerned with the impact of a defendant’s activities on their land affecting a nearby claimant’s enjoyment of theirs. It is not SPDC’s activity which itself interferes with a claimant’s land where oil is spilled from an illegal refinery, whether those refineries are near to or far from the site of the theft. The persons causing the nuisance are the third-party refiners. On the assumed facts, they are nothing to do with SPDC.

Rylands & Fletcher : The experts disagreed as to whether there could be liability under Rylands v Fletcher for harm resulting from oil being released from an illegal refinery. The Defendants’ position, supported by Mr Omoaka’s evidence, is that there can be no relevant “escape” when oil is stolen from an operator and taken elsewhere for the purposes of illegally refining it. The “escape” causing harm is the release of the oil from premises owned and operated by third parties outside SPDC’s control.

Dr Ajibade’s initial view was that there is an escape at the point the oil is stolen from the pipeline with the result that the operator would be liable for any harm caused by the oil thereafter, however that harm came about. However, Dr Ajibade accepted in cross-examination that the following passage from the speech of Lord Bingham in Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61 is an authoritative statement of the rule in Rylands v Fletcher which would be followed by the Nigerian Supreme Court:

Dr Ajibade also agreed in cross-examination that oil purchased from a garage or petrol station could not properly be described as “escaped” oil, though he resisted Mr Willan’s further point that there could be no logical difference between purchased oil and stolen oil when considering whether oil has “escaped” in law.

Ms Day relied on the definition of “escape” adopted by Lord Scott in Transco ( at [76]) from Viscount Simon in Read v Lyons [1947] AC 156 at 167, as “escape from a place where the defendant has occupation of or control over land to a place which is outside his occupation or control” . She argued that it is enough for the Rylands v Fletcher tort that oil, as a dangerous thing, has left the place where SPDC was keeping it. The defendant may be able to raise a defence if the escape is owing to third party acts, but the tort is nevertheless engaged, in principle, she argued.

I conclude, based upon the expert evidence, that the Nigerian Supreme Court would be more likely than not to reject a claim under Rylands v Fletcher for harm arising from pollution caused by the dumping of by-product from illegal refining. First, on the basis that the Rylands and Fletcher tort is a sub-species of nuisance which, as indicated above, I have found the Supreme Court would be likely to reject as an applicable tort in these circumstances; second, because as a matter of logic, I think Mr Willan is right and that “escape” necessarily connotes the dangerous thing becoming unconfined, out of control. The oil is not out of control when it is stolen, confined, and taken to the illegal refinery. It is not out of control when it is refined. It only becomes unconfined, out of control, when it is released by the third-party refiners as an unwanted by-product of the refining process.

I do not believe that the English case of Read v Lyons [1947] AC 156 , to which my attention was drawn by Ms Day, would cause the Nigerian Court to alter that view. The case concerned an explosion in a munitions factory, injuring the claimant. The House of Lords rejected the claim brought under Rylands v Fletcher on the basis that there had been no escape as the event had taken place entirely on the defendant’s land. But it does not follow from a finding that there is no escape when something occurs on the land, that everything which does leave a defendant’s land is capable of giving rise to the tort. Whether there is a relevant “escape” will depend, as Dr Ajibade (partially) accepted, upon the circumstances under which the dangerous thing leaves and how and where it becomes unconfined.

The currently pleaded case claims loss resulting from oil pollution caused by illegal refineries as a category of consequential loss resulting from the Defendants’ negligence in failing properly to protect its assets from theft. The case is put on the basis that as one of the known purposes of bunkering is to take the stolen oil to be refined at “artisanal” (ie illegal) refineries, the dumping of waste from those refineries can properly be recovered as consequential loss, subject to ordinary principles of foreseeability, remoteness and novus actus (independent intervening act).

It is agreed that the acts of third parties in breaching the pipeline or other assets to steal oil is a serious felony in Nigeria, incurring severe penalties up to life imprisonment. The operation of an unauthorised refinery is also an offence, incurring equally serious penalties, as is the act of pollution by dumping by-product. Whilst there have been very many cases brought against oil companies in Nigerian courts for a variety of remedies arising from oil pollution, none has to-date sought to hold an oil company responsible for the harm resulting from illegal acts of third parties in stealing oil, operating an illegal refinery, and then dumping the by-product, polluting the water/land in doing so. In his oral evidence Dr Ajibade suggested that this was because claimants in Nigeria do not have the same access to superior legal representation as wealthy oil companies. His opinion, set out in his initial and supplemental reports, was that once a claim in negligence for TPI is accepted as possible, then damages for losses sustained by reason of the further use of the stolen oil in illegal refineries is recoverable subject to fact-sensitive issues of foreseeability and remoteness, the law in Nigeria relating to the application of these limiting principles being the same as English law. Dr Ajibade suggested that the right argument has not yet been made in the Nigerian courts; his view was that, if it were to be made and depending on the facts, the Nigerian Supreme Court could hold SPDC responsible for pollution caused by the dumping of oil from illegal refineries.

Mr Omoaka strongly disagreed: in his view there are no circumstances under which the Nigerian Supreme Court would hold an oil company liable for the criminal acts of third parties in stealing the oil, still less the further criminal activities of refining the stolen oil and dumping the by-product. In his reports he advanced these reasons why a claim in negligence in respect of illegal refining would fail: he said it was “inconceivable” that a licence-holder would be found to owe a duty to prevent harm caused by illegal refining using stolen oil as such harm would be held to be unforeseeable and/or too remote. He said that Nigerian courts would adopt a cautious approach to the imposition of any new or expanded duty of care, particularly in an area where the National Assembly has been so active in passing primary and secondary legislation to regulate the competing rights and obligations of all interested parties. He considered Nigerian courts would hold that the chain of causation between any negligent act on the part of the licence holder and the pollution caused by the refiners dumping by-product would be broken “by a whole series of third-party acts including the oil theft itself, the transportation of the oil, the illegal refining and the polluting discharges from the illegal refineries” . In his opinion a Nigerian court would never consider it fair, as a matter of legal causation, to hold the licence-holder liable for damage caused by illegal refining.

These opposing positions were explored with each expert in cross-examination. Dr Ajibade, when taken to the recent UK Supreme Court authority of Meadows v K [2022] AC 852 , accepted that the Nigerian Supreme Court would be likely to adopt the reasoning of the court in that case, in particular the six-question framework set out by Lord Burrows and Lord Leggatt in their joint judgment at [28]:

However, Dr Ajibade qualified his agreement by saying that the Nigerian Supreme Court would be likely to follow the Meadows analysis only “in a case with similar facts”. Indeed, he was anxious, throughout his evidence on this point, to stress that this area of the law is so fluid that it is difficult to draw clear lines. Nevertheless, he accepted that the appropriate question would be to ask what are the risks of harm against which the defendant owed a duty of care and more specifically whether the risk of third parties dumping stolen oil is one that falls within the duty of care. But in answering this question Dr Ajibade was of the view that geographical distance and the identity of the parties involved (for instance if the persons stealing the oil were also the persons that went on to refine it) would be significant considerations in arriving at the answer as to whether or not the activities fell within the scope of the duty owed.

Mr Omoaka in his evidence said that the Nigerian SC would adopt the reasoning in Meadows , referring also to the earlier decision of the House of Lords in Lamb v Camden [1981] 1 QB 625.

Although the experts adopted opposing positions as to the likely outcome in the Nigerian Supreme Court of a case brought in negligence to recover harm resulting from pollution caused by illegal refining of stolen oil, they were agreed that the court would apply the same common law principles as the English Supreme Court in determining the issue.

Accordingly, in closing I heard arguments from both sides as to the application of English common law principles.

Ms Day characterised the defendants’ case as suggesting the existence of a separate duty to prevent illegal refining. She stressed that the case as pleaded was not that there was a separate duty, but that the harm caused by illegal refining was a foreseeable consequence of TPI and recoverable as a category of loss resulting from a failure to prevent TPI. She relied in this respect on the observations made by the Court of Appeal when dismissing the defendants’ appeal against amendments extending the claim to harm caused by illegal refining, see the 2024 appeal per Stuart Smith LJ at [118]:

Ms Day sounded a note of caution regarding the six-stage framework set out by the Supreme Court in Meadows , pointing out that that case, and the one decided and handed down with it ( Manchester Building Society v Grant Thornton [2021] UKSC 20 ) involved claims in respect of harm arising from negligent professional advice. She drew attention to the subsequent decision of the Supreme Court in Armstead v Royal & Sun Alliance [2024] 2 WLR 632 , and to the comments of Lord Leggatt and Lord Burrows in that case to the effect that the Meadows analysis has no place in cases concerning physical damage and bodily injury:

Ms Day sought to emphasise that there is no issue in the present case as to whether certain categories of loss, as distinct from others, fall inside or outside the Defendants’ duty to protect non-pipeline assets.

Mr Willan submitted that this was simply wrong. There is an issue, he said, as to whether the risk of loss caused by the criminal acts of third parties in refining stolen oil and dumping the by-product is one that is covered by a duty to protect against TPI. The damage from illegal refining results from separate third-party acts causing separate spills and therefore gives rise to a distinct category of loss. It is not a question of a separate duty, but rather whether the (theoretically possible) duty to protect against TPI will, as a matter of legal principle, extend to cover losses resulting from pollution caused by illegal refining. Mr Willan argued that one cannot jump straight to causation, remoteness and foreseeability. It is a necessary first step in analysing a claim in negligence that the court examine the scope of the duty of care, asking to whom it is owed and in respect of what risks of harm. Dr Ajibade had been right to accept that the question of whether the defendant owed a duty of care in the case of any given claimant must be assessed by reference to the particular risk of harm that has injured the particular claimant; further that the answer as to whether there is a duty of care will not necessarily be the same in respect of different types of harm, such as (i) oil spills caused by TPI and (ii) discharges of pollutants from illegal refineries. Mr Willan drew attention to the observations of the Supreme Court in Meadows as to the particular utility of the scope of duty principle when addressing claims for losses caused by the actions of third parties:

In our view it is often helpful to ask the scope of duty question before turning to questions as to breach of duty and causation. It asks “what, if any, risks of harm did the defendant owe a duty of care to protect the claimant against?”

Mr Willan dismissed the suggestion that the decision of this court allowing the amendments, as approved by the Court of Appeal in the 2024 appeal, had somehow determined the point. The fact that the Claimants had been permitted to run a case in respect of illegal refining had not decided anything about whether that is a viable claim as a matter of Nigerian law, he submitted. He argued that the proper analysis to be followed was as follows:

The possibility of making a claim for losses from illegal refining under one or more of the common law torts identified is a critical issue for both sides, given the acknowledged extent of illegal refining in the Niger Delta and the pollution caused thereby. Mr Willan urged me to decide now that the Nigerian court would not hold the Defendants liable under any of the torts for harm resulting from illegal refining.

I am satisfied having considered the evidence of the experts, in particular Dr Ajibade in cross-examination, that neither nuisance nor Rylands v Fletcher can properly be engaged in respect of harm caused by illegal refining, and that that is what the Nigerian Supreme Court would be most likely to decide. Neither of these torts is apt to cover oil being stolen and taken from SPDC’s property to another place away from SPDC’s control where the oil is then subjected to an illegal process after which it (or its refined by-product) is spilled from the refinery by third parties. The fact that it was SPDC’s oil when it was taken from the asset cannot make the Defendant responsible for a nuisance created later by third parties when the refined by-product is released. The same reasoning applies to Rylands v Fletcher liability as a sub-species of nuisance. I think Mr Willan is right to say that considerations of proximity, public policy, fairness and justice which must necessarily be brought to bear when considering the extent of an operator’s liability for harm in these circumstances, are most properly located in the tort of negligence. The tort of negligence, and that alone, is the route by which liability for the consequences of illegal refining, if any, is to be examined and determined.

I found Mr Willan’s analysis of the correct approach to negligence set out under [255] (1) to (6) above compelling. I conclude, on the evidence of the Nigerian law experts, that the English authorities on this point would be highly persuasive in the Nigerian Supreme Court and that this approach is one which the Nigerian court would be likely to follow. I take Ms Day’s point that the six-step analysis in Meadows was directed to a case involving negligent professional advice, but the principles there elucidated by Lord Hodge and Lord Sales were plainly not restricted to cases involving those facts. Indeed, their Lordships (with whom the majority agreed) observed in the course of their judgment that a scope of duty enquiry was likely to be particularly useful in a case involving damage caused by the actions of a third party.

Applying the above analysis it is clear that there are significant legal barriers to be overcome before any claimant could make good a claim in negligence to recover for loss arising from illegal refining of stolen oil. But having said that, I am quite sure that the final answer to the question of whether damages could be recovered in negligence for losses arising from illegal refining ought not to be determined without all the facts having first been found. The Defendants have accepted the possibility of a claim in negligence for TPI, based on a failure adequately to protect non-pipeline assets from oil theft. However doubtful I may be now about the possibility of a claimant successfully being able to recover in negligence in respect of pollution caused by illegal refining of the stolen oil, I am quite sure that it would be wrong to rule definitively before the facts are known. There is a (generally) pleaded case against Shell of complicity in the thefts by members of its workforce; I cannot say now where evidence of such complicity, if there is any, might lead or what outcome the application of legal principles in a difficult and still developing area of law might give rise to in this case. I do not think it would be right to follow Mr Willan’s suggestion of making a decision now on the (very limited) assumed facts, ignoring entirely the further circumstances which the claimants will be obliged to plead (in respect of lead claimants) in due course. It remains to be seen whether, in respect of any particular claimant, the alleged facts will be sufficient to underpin the requisite duty of care/breach/causation and loss, and then whether those facts will be made out at trial.

As I have noted above under PI 4(4), it may be necessary for there to be further expert evidence as to the likely approach of the Nigerian Supreme Court to the duty of care question once the case is fully pleaded and the facts are determined.

The answer to PI 20 is that it is not possible to have a claim in nuisance, trespass, or under the rule in Rylands v Fletcher in respect of damage caused by oil that is removed from a licence-holder's infrastructure by Third Party Interference and subsequently used in illegal oil refining by third parties. I decline to give a definitive answer now to the question posed by PI 20 in respect of the tort of negligence.

The PIs in this section relate to the claims for breach of fundamental rights under the Nigerian Constitution and/or African Charter. The fundamental rights claims were added by amendment for the sole purpose (as the Claimants accept and assert) of seeking to take advantage of the disapplication of any limitation period by application of the FREP Rules.

This PI addresses the issue of “horizontal effect”, namely whether the rights relied on under Nigerian Constitution and/or African Charter are enforceable against private persons, in this case a private oil company.

The constitutional rights relied on in these proceedings appear in Chapter II (section 20) and Chapter IV (sections 33 and 34) of the Constitution. As I have noted at [14] above, Chapter II of the Constitution sets out aspirational rights which are non-justiciable. By contrast Chapter IV rights are enforceable in the courts, where appropriate under the FREP rule procedure. PI 21 raises the issue of whether Chapter IV rights, in particular sections 33 and 34, are able to be enforced against the defendants as private companies.

The claimants contended that Nigerian courts will apply a wholly textual test for horizontal enforcement of Chapter IV rights. Ms Kaufmann argued that, consistent with the broad and expansive approach to Chapter IV rights enunciated by the Nigerian Supreme Court in Rabiu v Kano State (1980) LPELR-2936 (SC) and applied since, the Nigerian courts would adopt the approach that all Chapter IV rights are capable of horizontal enforcement unless the particular right contains a positive prohibition against it. She relied for this on four cases: Uzuokwu & Ors v Ezeonu II [1991] 6 NWLR 708; Kelvin Peterside v International Merchant Bank (Nigeria) Limited [1993] 2 NWLR 712; Theresa Onwo v Nwafor Oko and 12 ors [1996] 6 NWLR (Pt 456) 584 and Abdulhamid v Akar and ors [2006] 13 NWLR 127.

The judgments in Uzuokwu express no general test in the lead judgment of Nasir PCA, although there is a clear decision that section 34 of the Constitution is capable of horizontal enforcement.

In Peterside Tobi JCA dealt with an argument that Chapter IV rights could only be enforced against the government (note that this case was dealing with similarly worded rights under a previous constitution). Starting the discussion he said this:

In Onwo the Christian widow of a Moslem husband had been forced by his relatives after his death to isolate herself and shave her head. She brought a claim against a number of individuals under the FREP rules alleging breach of sections 34 (right to dignity), 35 (right to liberty) and 36 (right to fair hearing) under Chapter IV. Achike JCA gave the lead judgment, observing as follows:

In a supporting judgment Tobi JCA (as he then was) observed:

A more recent case relied on by the Claimants is Abdulhamid v Akar [2006] 13 NWLR (Pt 996) 127, where the lead judgment in the Supreme Court was given by Kutigi JSC. The claim at first instance was brought under the FREP rules for injunctive relief and damages arising from incidents where a dealer in skins had been detained along with members of his family, assaulted and his car and goods taken by servicemen at the behest of an (alleged) creditor. The first court allowed the claim and granted the reliefs sought. The defendants appealed, arguing that the principal claim was not a fundamental rights claim. The Court of Appeal agreed and set aside the judgment. There was an appeal and cross-appeal to the Supreme Court. Kutigi JSC recorded the parties’ arguments, including the respondents’ submissions (i) that the reliefs sought (for assault and battery, trespass to land and to goods, detinue and false imprisonment) were torts covered by a different procedure and (ii) that “the competency of suits and indeed the jurisdiction of courts are determined by the claims and or reliefs of the plaintiff or applicant and nothing else” . He went on expressly to agree with these arguments. Referring to the cases on the ancillary principle (discussed further below) including Tukur v Government of Taraba State [1997] 6 NWLR 549 he emphasised that “It is settled and a fundamental principle that jurisdiction is determined by the plaintiff’s claim or relief” . He then went on to consider whether the Court of Appeal had reached the right decision upon a review of the reliefs claimed. He concluded that the tortious claims were the principal claims “even if there existed some fundamental rights infringement as found by the trial judge” .

Pats-Acholonu JSC concurred with Achike JSC and deplored in strong terms what he saw as the “fashionable” tendency to bring an action for breach of fundamental rights “where the facts reveal that an action should conceivably lie in tort or contract” .

Akintan JSC identified the main issue to be resolved on the appeal as whether the applicant had been right in commencing the action under the FREP rules. Having referred to the facts indicating that the harassment and intimidation was at the behest of a private party and were not state actions as such, he went on to cite Onwo, saying:

It was in reliance on these authorities, in particular the dicta of Akintan JSC in Abdulhamid , above, that Ms Kaufmann argued for a general test for horizontal application of Chapter IV rights based entirely upon the wording of the particular right and whether it included a positive prohibition against such enforcement. If the wording did not positively preclude horizontal enforceability of the right, she said, then the Supreme Court would find the right enforceable against private persons, including in particular private companies. She argued that section 33 falls within the “family” of key fundamental rights, including section 34 (right to dignity) and section 35 (right to liberty), both of which have already been held to be horizontally enforceable. She submitted that since the wording of section 33 does not prohibit horizontal enforcement it would be treated as equally enforceable against private persons.

The difficulty for Ms Kaufmann’s argument is that her own expert agreed in his evidence that the Nigerian Courts would adopt the wider test taken from Peterside , namely that Chapter IV rights will only be enforced horizontally where it is justified (i) on the particular wordings of the right and (ii) “depending upon what right is involved and in what circumstances or situation” (per Tobi JCA). Dr Agbakoba specifically confirmed this in cross-examination::

Mr Omoaka’s evidence was that the approach to horizontal enforceability in Nigeria has evolved over time: originally, fundamental rights could only be enforced against the state and state bodies but over the years, slowly and incrementally in relation to particular rights, Nigerian courts have entertained claims against private persons, Onwo being an example of such a case.

I accept this evidence since (i) it coincides with what the judges in the cases discussed above have said about the original position as to enforceability and (ii) it reflects the approach of Nigerian appellate courts in relation to fundamental rights, at any rate in the decisions helpfully produced to me by the experts, which appears to me to be an incremental and a careful one, where attempts by counsel to frame claims in terms of fundamental rights are frequently deprecated and where the courts can be seen to be considering carefully the facts of the individual case in order to determine whether the fundamental rights relied on are properly engaged, and whether they may be enforced against private persons.

The two-factor test, as accepted by Dr Agbakoba, also appears to me to be logical and sensible: in a developing area of the law, as the engagement and enforcement of fundamental rights plainly is, the facts and circumstances of an individual case will really matter. Or to put it another way, as Dr Blake pointed out during the course of argument, scope/content of a right or obligation and who bears that obligation (including in what circumstances) are obviously linked questions.

With that in mind, I turn to the particular Chapter IV rights relied on by the Claimants in their pleadings in the present case: sections 33 and 34.

Section 33 of the Constitution provides that:

No Nigerian appellate court has to-date applied section 33 horizontally to private persons. There is one first-instance decision ( Gbemre v SPDC & ors [2005] FHC/B/CS/53/05 unreported) where the High Court appears to have done so but the decision is unreasoned, it is under appeal and, perhaps most importantly for present purposes, the claimants did not seek at the hearing to rely on it as authoritative or even persuasive ( Gbemre was not put to Mr Omoaka in cross-examination, for instance).

There is, by contrast, one appellate decision where the Nigerian Court of Appeal has considered the issue directly and has ruled that section 33 cannot be enforced horizontally: Agbeniga v Adejimiroye & anor [2016] LPELR-40138 (CA). Agbeniga involved a dispute between neighbours in which a woman was assaulted and beaten with a horsewhip, seriously injuring her. She brought a claim alleging breach of sections 33, 34 (right to dignity) and 37 (private and family life), seeking a restraining order and damages. The High Court dismissed her claim, finding that in what was essentially a street fight her fundamental rights were ancillary to the main claim which was for a restraining order and damages. The plaintiff appealed. As appears from the report, one of the arguments made by the respondent was that, applying Peterside , section 33 could not be enforced against individuals. The decision of the court dismissing the appeal was given by Owoade JCA, with whom the other two justices agreed. His reasoning on the s.33 point raised by counsel was brief:

Dr Agbakoba accepted that the Court of Appeal in Agbeniga effectively ruled against horizontal enforceability of the right to life under section 33, however his view was that the Supreme Court would not follow Agbeniga today on that point; Mr Omoaka’s evidence was that it would.

Ms Kaufmann made a number of cogent points in support of her case that section 33 would be given horizontal effect were the Supreme Court to determine the question now:

Like Ms Kaufmann, I did not entirely follow the succinct reasoning of the court in Agbeniga , based as it was around the existence of criminal sanctions for murder. There are, as Mr Omoaka accepted, also criminal sanctions in Nigeria in respect of torture (section 34) or false imprisonment (section 35) so if the availability of a criminal sanction were a reason not to find a right horizontally enforceable then that should have precluded the horizontal enforceability of duties under sections 34 and 35 but it has not. Moreover the article which Justice Owoade cited as support for his finding that section 33 was not enforceable against a private party did not, as I read it, appear to me to deal with horizontal effect but was rather identifying rights which are absolute. These were identified in the article as ss.33, 34 and 35, the last two of which have been given horizontal effect in the courts.

As I have said, these are cogent and logical points. On the other hand, although I was not taken to all the authorities individually, Mr Omoaka’s opinion (that section 33 would not be held to be horizontally enforceable) was based on a number of past judicial decisions in Nigeria, which he referred to in his report. In his original report Dr Agbakoba identified a line of authority supporting the proposition that section 33 was only enforceable against the state and state bodies, although in his view this line of authority no longer represented the current state of the law given what Akintan JSC had said in Abdulhamid , above. But in cross-examination Dr Agbakoba’s evidence was more equivocal:

If, as both experts confirmed, the courts will look at both the wording of the right and the circumstances in which it is sought to be exercised, then that could go some way to reconcile the decisions of the courts in relation to the horizontal enforceability of sections 34 and 35 and that of the Court of Appeal on section 33 in Agbeniga . I note that Abdulhamid was extensively cited to the Court of Appeal in Agbeniga , and that Agbeniba is the most recent appellate authority on this point.

I am also acutely conscious of the importance of these observations of Tobi JCA (as he then was, he was subsequently appointed as a Justice of the Supreme Court) in Onwo :

A judge of the High Court of England and Wales - being a jurisdiction in another country, indeed on another continent to Nigeria, and one which has no written constitution - must be very careful in entering into the arena of the Nigerian Constitution as interpreted by the Nigerian courts. As Tobi JCA’s comments in Onwo so powerfully emphasise, the particular societal norms and mores which underpin the Constitution and the courts’ decisions on constitutional rights, are best known to Nigerian judges. They are rightly proud and protective of their knowledge and experience as Nigerians. Where a senior court in Nigeria, such as the Court of Appeal in Agbeniga , has determined a point directly and there is no conflicting authority, then this court must be very slow to find that three Court of Appeal judges erred and, in effect, to overrule that decision by finding as a matter of fact that the Supreme Court would be likely to decide differently.

Thus although the points which Ms Kaufmann makes may appear logical to me, as an English judge, I cannot find that the Supreme Court would restrict the test for horizontal enforceability in the way she has suggested, nor that it would reverse the Court of Appeal’s decision in Agbeniga restricting section 33 to actions against the state. Given the evidence of the experts together with the current state of the authorities, I cannot conclude that the Supreme Court would today be likely to find section 33 horizontally enforceable.

The position in relation to section 34 is much more straightforward. Mr Omoaka expressed the personal view that the courts in Nigeria have been wrong to depart from the original position that fundamental rights under the Constitution are only enforceable against the state, but he readily accepted that they have done so in respect of a number of Chapter IV rights, including in particular the right to dignity under section 34.

The relevant part of Section 34 provides as follows:

As discussed above, the African Charter was domesticated in Nigeria by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983 (“the African Charter Act”). The African Charter Act is a simple piece of legislation, providing under a single substantive provision, section 1, as follows:

The Schedule to the African Charter Act sets out, unchanged, the full text of the African Charter. Article 1 of the Charter provides as follows:

It is common ground between the parties that, as an international treaty, the African Charter only imposes obligations on States. In his evidence Dr Agbakoba readily agreed that the international treaty cannot impose duties on private companies. However his view was that domesticating the treaty under the African Charter Act permitted Nigerian courts to “give[n] full recognition and effect” to relevant rights by enforcing them horizontally against private companies as well as the State. He pointed to the generous terms of section 1 of the African Charter Act, comparing them with section 46 of the Constitution, as interpreted by the Nigerian Court of Appeal in Peterside when deciding on the horizontal effect of section 34 and other Chapter IV rights. His evidence was that the Nigerian Supreme Court would interpret and apply the domesticated Charter rights consistently with Chapter IV rights when determining whether they have horizontal effect.

The Defendants’ case, supported by the evidence of Mr Omoaka, was that the African Charter Act made no change to the provisions of the Charter or the established international jurisprudence on the way in which the Charter operates. Article 1 of the Charter makes it clear that it is the Member States which are legally obliged to “recognise the rights duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them” . Article 1 is the “normative lynchpin” of the Charter, as Mr Omoaka described it, determining the content and scope of the substantive rights set out therein. He drew attention to the decision of the African Commission in Communication 323/06 Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt, 12 th October and to decisions of the ECOWAS Court for example in Socio-Economic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria, Judgment No. ECW/CCJ/JUD/18/12, 14 December 2012. In the latter case the court observed that “ the scope of…provisions [of the Charter] must be looked for in relation to Article 1 of the Charter.” Mr Omoaka explained that, as these and other decisions demonstrate, the Charter rights only become binding and enforceable through Article 1, which in turn mandates that “the rights, duties and freedoms enshrined in this Charter” shall be recognised and implemented by “Member States”.

Mr Kaufmann suggested that the Article 1 mandate to implement rights had been performed by Nigeria in enacting the African Charter Act; having done that, then the Onwo/Abdulhamid textual test would apply in determining whether a Charter rights is horizontally enforceable. Save where the wording of a Charter right, or any part of a right, indicates that it can only be performed by the State, then the right, or part of it, would be horizontally enforceable.

Logically, applying ordinary rules of statutory interpretation I do not think that this can be right. The wording of section 1 of the African Charter Act specifically includes the words “..subject as thereunder provided..” , referring to the entire Charter, not to selected parts of the Charter. Nothing in the African Charter Act changed the wording or structure of the African Charter itself; instead by a single provision it simply imported the entire text, unchanged, into Nigerian law including, in particular, Article 1 by which all the duties are expressed to be State duties. In cross examination Dr Agbakoba agreed that this was the effect of Article 1 of the Charter:

It would have been open to the Nigerian National Assembly, when enacting the Charter into domestic law, to have derogated from, or changed, the terms of Article 1 but it did not. Dr Agbakoba agreed that the effect of the African Charter Act was to say that the Nigerian State in the form of “all authorities and persons exercising legislative, executive or judicial powers” had to give effect to the Charter rights, however he said that the cases in Nigeria had not followed that interpretation. Whilst it is right that the evidence of both experts was that when counsel bring fundamental rights cases in Nigeria they routinely plead reliance on rights under the Constitution and African Charter, I was pointed to no appellate decision in which the court has directly considered the issue of whether African Charter rights are enforceable against private persons. When challenged, Dr Agbakoba was unable to cite any case save Ajanaku which, as discussed further below, was a High Court decision overturned on appeal (albeit on a technical point to do with adequacy of service). In closing Ms Kaufmann referred me to two first instance decisions of the Nigerian Industrial Court (a specialist employment tribunal) which appear to have found breaches of section 34 of the Constitution and Article 5 of the African Charter but it is unclear from those decisions whether a separate point was taken or considered as to the enforceability of an African Charter right against a private employer. In one of the two ( Sunday Ukpai v Ajuba Nig Ltd NICNLA772015 ), whilst the court apparently found breaches of Charter rights, relief was expressed to be granted under section 34 of the Constitution alone.

Ms Kaufmann described sections 33 and 34 of the Constitution and Articles 4 and 5 of the Charter as equivalent rights which the Supreme Court would approach in an identical fashion, based on Dr Agbakoba’s evidence that these provisions were each “ in pari materia ”. Yet the right to dignity in Article 5 in particular is drafted in very different terms to section 34 of the Constitution. Article 5 provides that:

Ms Kaufmann pointed also to the joint treatment of rights under the Constitution and the Charter in the FREP rules, in particular to the overriding objective at 3(a):

Finally Ms Kaufmann referred me to a decision of the Hague District Court in Kiobel v Shell (2019) (Netherlands, Hague District Court) finding that fundamental rights, specifically section 33 of the Constitution together with Articles 4 and 5 of the Charter, have horizontal effect. The result in that case is of some passing interest, of course, but it cannot affect my view on the evidence I heard at this trial. I do not know the circumstances of the Dutch case, nor do I have any information about the Nigerian law experts from whom that court heard, or the evidence which they gave.

On the evidence which I heard and bearing in mind the ordinary principles of statutory interpretation (which the experts both confirmed are the same in Nigeria as in this jurisdiction), I conclude that the Nigerian Supreme Court would be most likely to construe section 1 of the African Charter Act as having the effect which, on its face, Dr Agbakoba accepted it had, namely that the Charter obligations are State obligations. I did not see anything in the evidence or in the Nigerian cases to which I was taken which persuaded me that the Supreme Court presented with all the arguments would be likely to take a different view.

The answer to PI 21 is that the Nigerian Constitution enables claims alleging breach of section 34 to be brought against private companies and other persons but does not currently enable claims for alleged breaches of section 33. African Charter rights cannot be enforced against private companies. Whether section 34 is in fact capable of being engaged by damage caused by oil spills is discussed below under PI 22.

Given my decision that section 33 of the Constitution and the rights under the African Charter are not horizontally enforceable it is not strictly necessary to determine whether these provisions are engaged by the damage caused by oil spills. Nevertheless, since issues of scope and in particular the proper analysis of two decisions of the Nigerian appellate courts ( Opara and COPW , below), occupied so much of the evidence, I will set out the conclusions I reached, and why.

Section 20, taken alone, is not subject to the jurisdiction of the courts, as all parties recognise. Section 20 falls within Chapter II of the Constitution; all rights in this chapter are, by operation of section 6(6)(c), expressly rendered non-justiciable in the courts. It follows that section 20 does not enable claims to be brought in respect of oil spills.

There are two Nigerian decisions which it is necessary to consider in some detail when addressing how the Nigerian Supreme Court is likely to determine the broad subject matter issue arising in relation to scope, namely whether any of the pleaded rights arising under the Constitution or the African Charter are capable of being engaged by the subject matter of oil pollution. The cases are:

Opara appears to be the only appellate decision which has to-date directly considered the engagement of fundamental rights in connection with oil exploitation activity, in that case pollution from gas flaring. The claim was brought by the lead plaintiff and three others, both for themselves (as individual claims) and representing three communities (as community claims) affected by gas flaring from facilities operated by SPDC. It was framed as a breach of fundamental rights, brought in the Federal High Court under the FREP rules. Relief was sought pursuant to ss.33 and 34 of the Constitution and Articles 4, 16 and 24 of the African Charter , as domesticated by the African Charter Act. At first instance the judge struck out the claim. The claimants appealed. The key issue before the Court of Appeal for present purposes was framed in the lead judgment of Adah JSC as “[w]hether the case and or the reliefs of the applicants as constituted at the lower court can properly be maintained by an action under the [FREP rules]” . The Court of Appeal upheld the first instance decision, inter alia holding that environmental pollution could not give rise to causes of action under the Constitution and the African Charter. The lead judgment was given by Justice Adah who, having set out the arguments of counsel on the issue, concluded as follows:

Both sides at this trial agreed that Opara is to be treated as a decision about the scope of the various rights relied on. As such, Opara is a clear decision, at appellate level in Nigeria, that oil pollution (in that case by gas flaring) will not engage fundamental rights, specifically ss.33 and 34 of the Constitution and Articles 4, 16 and 24 of the African Charter. It was a unanimous decision of a strong court, as Dr Agbakoba in his evidence accepted, two of the justices later going on to become Justices of the Supreme Court (Adah and Eko JJCA). The Claimants nevertheless submit that Opara was unreasoned and wrong, and that it has effectively already been overturned by the later decision of the Supreme Court in COPW; alternatively that the judgments in COPW contain strong dicta which indicate that the Supreme Court would decide differently from Opara today.

The claimant in COPW was a non-governmental community organization which had sought to bring a private law claim for breach of statutory duty and negligence against NNPC (note: a Nigerian State-incorporated oil company) seeking restoration or reinstatement of particular land and water courses affected by oil pollution as a result of NNPC’s activities in Abia State. At first instance and in the Court of Appeal the case was dismissed on the basis that COPW lacked standing to bring the claim. The Supreme Court treated the issue of whether or not locus standi should be extended to an NGO as a policy issue of considerable significance, sitting as a bench of seven rather than five, and inviting no fewer than five senior counsel to appear as amici curiae to assist. The amici were asked to address the court on the single issue, recorded in the judgment of Onnoghen CJN (Chief Justice of Nigeria) as “Whether the learned Justices of the Court of Appeal were right in dismissing the appellant’s appeal for want of locus standi to maintain the suit” . In a unanimous decision, the court allowed the appeal, holding that locus should be extended to allow COPW to bring the claim against NNPC.

The lead judgment in COPW was given by Nweze JSC who set out a detailed history of the case law on locus before concluding that the public interest in environmental matters required that NGOs should have standing to bring a claim. The other six justices concurred, each giving reasons of their own for doing so.

As already indicated, COPW was not a fundamental rights claim but rather a private law claim for breach of statutory duty/negligence. The relevance of the Supreme Court decision for present purposes comes from the court’s treatment of the context - allegations of environmental pollution by NNPC’s oil extraction activity - and from the observations made by some of the justices in relation to submissions advanced by one of the amici in particular (Abubakar B. Mahmoud SAN, at that time President of the Nigerian Bar Association) on the role/engagement of fundamental rights under the Constitution/African Charter as underpinning the public interest in extending locus in that context. Mr Mahmoud’s arguments in this respect are recorded most extensively in the judgment of Aka’ahs JSC:

The experts expressed very different views as to the likely impact of the above cases on the Nigerian Supreme Court if called upon to determine whether oil pollution is capable of engaging fundamental rights today. Dr Agbakoba accepted that Opara had been decided by a strong court but expressed the view that the decision on scope had been per incuriam . Insofar as I was able to follow his reasoning on this point it appeared to be that (i) having found the African Charter was enforceable in Nigeria as a result of the African Charter Act the Court of Appeal did not go on to apply it and (ii) as the Court of Appeal had said the lower court ought to have followed an earlier first instance decision in Gbemre (which had found a breach of fundamental rights from gas flaring) its comments on the scope of rights were made without regard to that decision. Mr Omoaka’s view was that the clear ratio of Opara was that fundamental rights are not capable of being engaged by oil pollution, a decision by which lower courts and the Court of Appeal would be bound. He agreed that, by application of the doctrine of precedent, it would be open to the Supreme Court to depart from the decision in Opara , but he did not think that they would do so (I deal with his and Dr Agbakoba’s views on COPW further below). On the question of what status the Opara decision would have in Nigeria, I prefer Mr Omoaka’s evidence that the ratio of Opara was that oil pollution claims are outside the scope of fundamental rights, in particular ss.33 and 34 of the Constitution and Articles 4, 16 and 24 of the Charter.

But what the Court of Appeal determined in Opara is not necessarily an answer to the issue of what the Supreme Court would decide if the question were to come before it now, not least as decisions of the Court of Appeal cannot bind the Supreme Court, as the ultimate appellate and policy court in Nigeria. Dr Agbakoba’s evidence was that the Supreme Court decision in COPW had overturned Opara , taking Nigerian law on pollution and fundamental rights in an entirely different direction. His evidence was that the references to “mutual conflation ” in the lead judgment of Nweze JSC in COPW , taken together with the observations of Justices Kekere-Ekun and Eko, set out above, should be understood as the court having determined that, at least as regards section 33 and Article 24, fundamental rights are engaged by oil pollution. He accepted that Opara had not been cited to or considered by the Supreme Court in COPW , but was nevertheless of the view that the court had impliedly overturned that decision. Alternatively, even if the Justices’ observations had been obiter and not binding as such, Dr Agbakoba’s evidence was that they would be treated as highly persuasive by the Supreme Court today.

Mr Omoaka took a very different view: COPW had concerned a narrow point on locus, he said, and could not be read as having made any decision on the scope of fundamental rights, in particular whether rights under the Constitution and/or the African Charter are capable of being engaged by oil pollution. When taken to the case of Emeka Nwana v Federal Capital Develppment Authority & 5 Ors [2004] 13 NWLR (Pt.889) 128, and to observations of the Supreme Court in that case as to the effect of reasoning contained in a concurring judgment, Mr Omoaka’s evidence appeared to be that Justices Kekere-Ekun and Eko’s judgments should be treated as dissenting judgments on this point, but he came back to saying that in his view the points which each made on fundamental rights were obiter. His firm view was that Opara remained good law and that today’s Supreme Court would follow it. He resisted the suggestion put to him by Ms Kaufmann that Opara was essentially an unreasoned decision, pointing to the court’s description of the rights arising under sections 33 and 34 as “clear, specific and identifiable ”; he was constrained to accept, however, that the judgments in Opara contain no reasons for holding that African Charter Rights could not be engaged by pollution.

In her closing submissions, Ms Kaufmann referred to the decision of the Nigerian Supreme Court in Nwana as indicative of an important point of difference between English and Nigerian courts’ treatment of remarks in concurring judgments as ratio or obiter dicta. She suggested that under Nigerian law the combined reasoning of the lead and concurring judgments together form the ratio, since lead and concurring judgments are given equal weight. This was supported by Dr Agbakoba’s evidence at trial, although in his reports prior to trial he had said only that the observations of Justices Kekere-Ekun and Eko were highly persuasive obiter dicta. Ms Kaufmann argued that, applying Nwana principles, COPW was a conclusive decision on scope.

Having heard the expert evidence and having considered carefully the judgments in COPW and the observations of the court in Nwana , I conclude that the remarks of Justices Kekere-Ekun and Eko would be treated as obiter in Nigeria and not part of the ratio of COPW . As noted above, this was Dr Agbakoba’s original view and I prefer this view because:

It follows that I cannot regard COPW as having directly overturned Opara or, taken on its own , as providing a definitive indication that the Nigerian Supreme Court would find rights under section 33 of the Constitution and Article 24 of the African Charter engaged by oil pollution were the issue to come before it today. However, although I decline to find that COPW is to be treated as a definitive Supreme Court decision that these fundamental rights are capable of being engaged by environmental pollution, I accept Dr Agbakoba’s evidence that COPW is an important indicator of the Supreme Court’s “direction of travel” in relation to cases involving pollution, at least so far as state responsibilities are concerned. It is apparent from many of the judgments in COPW that the fact that the proposed defendant NNPC was effectively an emanation of the Nigerian State was an key element in the view the court took of the case.

The Claimants pointed me to two cases in Nigeria after COPW in further support of their argument that the Supreme Court would today decide the scope of rights differently from Opara : Mobil Producing v Ajanaku & Anor [2021] LPELR 52566 and Torchi, a Federal High Court decision which I have set out above at [152(2)].

The claim in Ajanaku was not brought under the FREP rules but on a writ of summons making a tort claim under Rylands v Fletcher , also relying on breach of fundamental rights under section 33 of the Constitution and Articles 22 and 24 of the African Charter. At first instance the plaintiffs in Ajanaku obtained declarations that Mobil’s failure to remediate in respect of oil pollution violated their right to life under, and to live in, an environment favourable to their socio-economic development, as guaranteed by these provisions. The High Court made an award of special and general damages. Mobil appealed on a number of points, the first raising a technical issue regarding the signature on the writ and others including whether the damages awarded were justified “in law”. The appeal was allowed on the first, technical, point but the Court of Appeal went on to consider other issues raised. The course of the argument on the appeal, and points taken, are not entirely clear from the report, but it appears that Mobil unsuccessfully argued a point about whether the first instance court had been right to grant the declaratory relief concerning breach of fundamental rights.

Mr Omoaka dismissed Ajanaku as of no import whatsoever, given that the appeal had been allowed. Dr Agbakoba ultimately accepted that the judgment had not entered into any reasoned analysis of the scope of the pleaded rights and agreed that the reference to COPW had been in connection with duties under the OPA. I did not conclude from this evidence that Ajanaku added very significantly to the “direction of travel” argument, nevertheless I noted the absence of any categoric dismissal by the Court of Appeal in 2021 of a case based on section 33 of the Constitution and Articles 22 and 24 of the African Charter.

Torchi is a first instance decision of the Federal High Court. The plaintiffs brought a claim against SPDC, other Shell companies, the Attorney General and NNPC seeking a declaration and compensation in respect of oil pollution. The judgment of Justice Ringim deals at length with a number of technical pleading and other points apparently raised as preliminary issues by the parties such that the final basis for his conclusion on liability is not immediately apparent. At the outset of his judgment he records the issues raised by the plaintiffs, which included “the proper construction and interpretation of section 20…, section 44…, section 33…, section 36 of the 1999 Constitution…[Article] 24 of African Charter ” in the context of “a continuous injury of hydrocarbon oil spillage, rain acid pollution, non-cleansing, non-maintenance of ruptured pipes…across the Plaintiff’s farmlands and causing a lot of killing of the Plaintiffs amateur [i.e young] children, economic trees, contamination of drinking water casing irreparable damage…”. However, although it is reasonably clear that this was the basis for the original claim, as the judgment progresses it is less plain whether Justice Ringim heard arguments about, or even considered, whether the pleaded rights were properly engaged. It is possible (as Mr Willan contended) that in the course of dealing with the technical preliminary objections Justice Ringim may have put issues concerning the pleaded fundamental rights to one side; by the end of his judgment, when awarding damages, he appears to have done so by reference only to the OPA. I was left unclear as to what, if anything, Torchi decided about the scope of the fundamental rights on which the plaintiffs in that case had sought to rely. As with Ajanaku , above, the evidence respecting Torchi left me very little further forward, save only that I noted again the absence of any reference to, or reliance on, Opara as a “knock out point” on scope, though I accept that that may have been for any number of reasons, including a simple failure to produce the authority to the court. I am told that there is an appeal pending in Torchi .

The Claimants also referred me to decisions which the experts produced and discussed emanating from the African Court/African Commission/ECOWAS Court dealing with the scope of rights under the African Charter. I have dealt with these bodies and the status of their decisions in Nigerian courts in the introductory sections of this judgment at [18] to [19] above.

As Mr Omoaka accepted, there are a number of decisions of the Court/Commission/ECOWAS Court which establish that certain of the African Charter rights, in particular Article 4 (right to life), are capable of being engaged in the context of environmental harm, though he repeatedly emphasised that these were decisions against a state party. An important example is LIDHO v Cote d’Ivoire App No 041/2015, a case arising out of the dumping of toxic waste by Trafigura off the Ivory Coast. At paragraph 141 of its decision the African Court addressed the scope of Article 4:

In Social and Economic Rights Action Center (SERAC) v Nigeria (Comm 155/96), 27 October 2001, a case about oil pollution impacting the Ogoni people, the Commission found a violation of Article 4, amongst other things noting “the pollution and environmental degradation to a level humanly unacceptable has made.. living in the Ogoni land a nightmare ”.

Mr Omoaka’s evidence was that Nigerian courts have never yet had cited to them, or relied upon, decisions of international bodies such as those set out above. He acknowledged that such decisions could be put before the Nigerian Supreme Court but stressed that the court would make its own decision. Mr Agbakoba’s evidence was that international decisions on the scope of Charter rights would be highly persuasive to the Supreme Court, not just on the scope of those rights as domesticated under the African Charter Act, but also by analogy on equivalent rights under the Constitution, in particular section 33 (right to life). I concluded that Dr Agbakoba is right and that today, particularly after the domestication of the African Charter rights by the African Charter Act, the Supreme Court in Nigeria is likely to find the international Charter jurisprudence persuasive when approaching the scope of similarly worded duties owed by the state under Chapter IV of the Constitution.

So far as section 33 is concerned, therefore, I conclude that if the issue came before the Supreme Court today it is likely to find that the section 33 right to life is capable of being engaged by environmental pollution, at the state level . The Defendants, relying on Mr Omoaka’s evidence and observations of Tobi JCA in cases of Ezeadukwa v Maduka [1997] 8 NWLR (Pt 518) 635 and Uzoukwu & Ors v Ezeonu II [1991] 6 NWLR 708, suggested that the court would require proof of an intentional act in every case but I do not accept that: the observations of Tobi JCA in those cases do not to my mind conclusively establish the need for an intentional act and in any event these are Court of Appeal decisions which are now of some age. As COPW and the international cases to which I refer above demonstrate, knowledge about the impact of environmental harm has moved on such that there is now a greater readiness to see polluting activities as capable of engaging the right to life. Whether or not the polluting activities complained of will be found to engage the section 33 right (at the state level) in any given case will depend on the facts.

Given my decision on the horizontal effect of African Charter rights, I do not propose to deal in any detail with the arguments addressed to me about the scope of rights arising under Articles 16, 22 and 24 of the African Charter, relied on in the pleadings in this case. At the state level Articles 16 and 24 have been found by Charter organs to be capable of being engaged by environmental degradation; on the evidence, I think it likely that the Nigerian Supreme Court would find these decisions persuasive and would adopt the same approach. No international decision to-date has addressed whether Article 22 (right to economic development) is capable of being engaged by environmental damage. There is no pleaded reliance on Article 4 (right to life) in the present proceedings, which seems a strange omission, particularly given the emphasis laid on impacts to life and health in the facts of this case by Ms Kaufmann in her final reply in closing, but as I have found that the Supreme Court is unlikely to determine that any of the African Charter rights are capable of horizontal enforcement against private companies the absence of a pleaded reliance on Article 4 has no material bearing.

This leaves just section 34 of the Constitution “live” as the sole pleaded fundamental right which may be horizontally enforced against a private company. The question for me to determine is whether the Nigerian Supreme Court is likely to find that the section 34 right is capable of being engaged by pollution claims such as those pleaded against the Defendants here.

The experts agreed that respect for the dignity of persons under section 34 has been interpreted by the Nigerian courts not as a general right but as restricted to the specific matters in sub-paragraphs (1)(a) to (c):

Ms Kaufmann confirmed that the Claimants rely on the right not to be “subject to… degrading treatment” under (a). I was taken to two decisions in particular dealing with the courts’ interpretation of this aspect of the s.34 right:

Dr Agbakoba’s view was that the effect of oil pollution on individuals and communities is capable of coming within the meaning of degrading treatment discussed by the Nigerian courts in the above cases. In his report he rejected Mr Omoaka’s view that the Supreme Court would restrict section 34 to intentional acts, stressing that the courts would apply a liberal interpretation, in Nasir PCA’s words “ in such a way that it protects what it sets out to protect or guides what it sets out to guide”.

Mr Omoaka’s evidence was that, as an additional point to the interpretation of section 34 as restricted to intentional acts, the Supreme Court would treat the non-justiciability of section 20 as precluding any environmental claim from being enforced by the courts, however this was not a point on which the Defendants sought to rely in closing. When cross-examined about the need to show intention Mr Omoaka accepted that the definitions given by the judges in the above cases said nothing about intention in connection with degrading treatment, but expressed the view that intent was implicit in the use of the word “treatment”. However he went on to agree that the description used by the judges in the cases focussed on the effect of the treatment and accepted that “it would all depend on the facts”.

Ms Kaufmann submitted that degrading treatment could clearly sit within the context of the effects of oil pollution, giving the example of a massive oil spill impacting homes and livelihoods, resulting in degradation and poverty to the residents of the region affected. The mental and physical effect on a community of such damage would plainly constitute degradation, in accordance with the definition given by Tobi JCA in Uzuokwu , above, she argued.

I find it difficult to accept that the Nigerian Supreme Court would focus on the effects of pollution alone for the purposes of the section 34 right to dignity. The words “subject to treatment …” in my view logically connote a deliberate act or acts directed at the person whose dignity is thereby impacted. The courts deciding Uzuokwu and Okwu did not need to address this aspect of the section 34 wording in any detail as the acts complained of in those cases clearly were directed intentionally at the complainants. Nevertheless, the explanation which the Supreme Court in Okwu gave, referring to “any action which inflicts …” itself suggests the need for a deliberate action; the court does not, for instance, refer to “any action which results in…” , which is what Ms Kaufmann’s interpretation would suggest.

But even if Ms Kaufmann is right, asking the question whether it is possible to envisage a situation where pollution is sufficiently grave to result in degradation is a very different question from, and cannot greatly assist in, addressing whether the Nigerian Supreme Court is likely to find that section 34 is capable of being engaged by oil pollution. Addressing that issue requires me to look at the evidence. As to that:

When it comes to section 34, therefore, there is very little in the evidence to set against the Court of Appeal decision in Opara . Even if I had been persuaded that the Supreme Court in COPW had impliedly overturned Opara so far as section 33 is concerned, it could not be said to have disapproved or reversed the Court of Appeal’s decision on the scope of section 34. The absence of any reference to Article 5 in the decisions of the African Court/Commission/ECWAS Court concerning pollution means that there is no body of international jurisprudence which the Nigerian Supreme Court could treat as persuasive regarding the application of section 34 to environmental degradation.

I bear in mind, again, the comments of Justice Tobi (see [287] above) to the effect that matters concerning the Nigerian Constitution are quintessentially for Nigerian judges. Where there are no contradictory dicta in other Nigerian cases, nor any contradictory Charter jurisprudence, I do not consider it likely that the Nigerian Supreme Court would take a different view to the Court of Appeal in Opara to hold that the section 34 right to dignity is capable of being engaged by oil pollution. It does not follow that because I have found that the Supreme Court is likely now to decide differently on the possible engagement (depending on the facts, and only at the state level) of section 33 in connection with oil pollution, that they are bound also to do so vis-a-vis section 34.

The answer to PI 22 is

Even if pollution claims were held by the Nigerian Supreme Court to be within the scope of relevant rights, the ability to use fundamental rights to ground a claim against the Defendants in respect of the actions of third parties would require the Claimants to establish that the Nigerian Supreme Court would be likely to (i) find that the rights are horizontally enforceable and (ii) that the rights not only impose negative obligations (for example not to take life, or not to subject someone to torture or to inhuman or degrading treatment) but also correlative positive duties to protect against the risk of breach - a duty of “due diligence”, as Ms Kaufmann termed it.

For the reasons given above, I have concluded that the fundamental rights upon which the Claimants have relied in their pleaded case are either (i) presently unlikely to be found by the Nigerian Supreme Court to have horizontal effect (section 33 of the Constitution and all African Charter rights ), or (ii) (in the case of section 34) are unlikely to be found to be engaged by oil pollution. That being so it is unnecessary for me to decide whether any of the rights would be found by the Nigerian Supreme Court to impose positive obligations of due diligence in the way Ms Kaufmann suggested.

However, since I heard evidence and argument on this issue I will set out my conclusions shortly. It is plain from decisions such as LIDHO and Communication 245/02 Zimbabwe Human Rights NGO Forum v Zimbabwe 15 May 2006 that the African Court and Commission have viewed Charter rights as imposing a duty on States to “respect, protect, promote and implement” the right and that Charter rights “entail a combination of negative and positive duties” . In the Zimbabwe case, for instance, the state was found responsible for failing to protect citizens against reasonably foreseeable threats to life arising from politically-motivated attacks on white farmers and their farm-workers.

Mr Omoaka agreed that, viewed at the state level, positive obligations inhere in all Charter rights. But he was clear that the Nigerian Supreme Court would be highly unlikely to find that Chapter IV of the Constitution imposed positive duties, still less that they would find positive duties enforceable against private companies. Dr Agbakoba’s evidence was far from definite: he described the issue for the Nigerian Courts as “ entirely novel ” and volunteered during cross-examination that it was “ very difficult terrain ”, accepting that it would require “ leaps and bounds ” on the part of the Supreme Court but expressing the hope that they would get there.

I had no difficulty in concluding, on this evidence, that the Nigerian Supreme Court would not at present permit fundamental rights claims to be brought against the Defendants, as private companies, to recover damages in respect of pollution caused by third party acts. I need not get into the evidence of the experts in relation to causation in the event of such claims being possible.

The answer to PI 23 is that neither the Nigerian Constitution nor the African Charter enable claims to be brought for damage in relation to an oil spill caused by TPI.

Both sides have treated PI 24 as addressing the question of whether the fundamental rights claims pleaded by reference to the Constitution and the African Charter would be permitted to proceed under the FREP Rules had the claims been brought in Nigeria, or whether they would be struck out on the application of the “ancillary principle”.

As Ms Kaufmann emphasized, this point is only reached if the court has found that the claim is within the scope of one or more of the pleaded rights, and also that the right(s) in question is/are horizontally enforceable. Given my findings, above, on horizontal enforcement and scope it is strictly unnecessary to decide this PI. Nevertheless, as the evidence addressed the ancillary principle and I was addressed on it in argument, I will set out the conclusions I reached.

The Nigerian rules of procedure relating to fundamental rights claims - the FREP rules - are designed to enable claims to be brought easily and quickly on written evidence (although I understood that the procedure is sufficiently flexible to enable longer hearings with oral evidence). As the cases referred to by the experts demonstrate, the courts guard the FREP rule jurisdiction carefully, Nigerian judges being astute to prevent cases proceeding under the FREP rules which they consider should not be brought using the special procedure. There are two seminal Supreme Court decisions on the operation of the ancillary principle in Nigerian law: Turkur v. Government of Taraba State [1997] 6 NWLR 549 and Sea Trucks (Nig.) Ltd. V. Panya Anigboro [2001] 2 NWLR (Pt. 696) 159 (SC).

The experts were agreed that the Sea Trucks principle, above, is the one which courts in Nigeria will apply. However they were not agreed as to the analytical approach the courts would take in applying the Sea Trucks principle to the claims in the present proceedings.

Dr Agbakoba’s initial evidence was that the court would look at the fundamental rights claim separately , and alone, and ask itself whether it was a “free-standing” or a “tag-along” claim; if the latter, then it would decline to entertain the claim under the FREP rules. But in cross-examination he agreed with Dr Blake that the Supreme Court in Turkur had looked at all of the claims, chieftancy and fundamental rights, together. He also agreed that the court in Akinola v VC Unilorin [2004] 11 NWLR (Pt. 885) 616 (a case where separate claims had been issued relying on identical facts, one on a standard writ and another under the special procedure provided by the FREP rules) had looked at both sets of pleadings, assessing them qualitatively in determining that the student’s claim to be reinstated was the main claim and striking out his fundamental rights claims. By the end of his evidence on the ancillary point Dr Agbakoba appeared to agree with Dr Blake’s suggestion that the court would adopt an evaluative approach, looking at the claim as a whole, to determine where the centre of gravity was:

Mr Omoaka’s view was that the court would look at the whole claim and all the reliefs to compare the nature of the private law/fundamental rights claims relative to each other. In these proceedings, he said, the court would look at the pleaded case and find that the fundamental rights claims were essentially parasitical on the private law claims, relying on precisely the same facts and alleged breaches, and would conclude that the fundamental rights claims were ancillary. At one point in his evidence Mr Omoaka appeared to suggest that the absence from the pleaded reliefs of a claim for a declaration would be treated as conclusive, but he stepped back from this when pressed in cross-examination and I was not persuaded. Nevertheless, the Court of Appeal’s approach to the application of the Sea Trucks principle in Akinola plainly involved an examination of the relative amounts of different types of relief claimed, as Dr Agbakoba accepted :

In closing Ms Kaufmann proposed a test derived from dicta of the Court of Appeal in Akinola , adopted by the Supreme Court in Total Exploration v Okwu, to the effect that the court would look to see if the public law claims were “birthed from or adjectival to”, the private law claim. She pointed out that in Okwu , a Supreme Court decision from last year, the court had specifically rejected an argument that the claims were tortious and for that reason the FREP rules could not apply. Dr Blake responded that if the ancillary test were as restricted as Ms Kaufmann had suggested then the fundamental rights claims in Turkur and in Abdulhamid should have been allowed to proceed, as they existed separately from the claim for chieftaincy (in Turkur ) or detinue (in Abdulhamid ). In reply Ms Kaufmann suggested that Abdulhamid was a case exclusively about scope, but I disagree: there were two issues on jurisdiction before the court in Abdulhamid , the first was indeed about scope but the second concerned the application of the Sea Trucks ancillary principle, which the Court of Appeal had addressed and which the Supreme Court discussed in the course of dismissing the appeal.

I concluded that the evidence of the experts at trial taken together with the evidence of the Nigerian courts’ approach in the decisions produced to me more strongly suggested that the Supreme Court would adopt the broader, qualitative approach. I think Dr Blake is right and that the narrower “birthed from” approach is but one permutation adopted by the Court of Appeal in Akinola because the facts of that case permitted it, but the Supreme Court citation of Akinola in Okwu did not have the effect of restricting or changing the original, broad Sea Trucks test.

In any event even applying the narrower test it seems clear to me that the Nigerian Supreme Court looking at the fundamental rights claims as advanced by the claimants on the pleadings here would conclude that they are not freestanding but are parasitic on the facts, remedies and grounds of the private law claims. The fundamental rights claims are a “tag-along”, to use Dr Agbakoba’s term: see for instance the Bille Individual Re-Amended Particulars of Claim at paragraphs 82A to 82D, cross-referring to the particulars of negligence at paragraph 79.

The answer to PI 24 is that even if the Nigerian Supreme Court were to be satisfied that oil pollution is within the scope of one or more of the pleaded fundamental rights and were to find the rights to be horizontally enforceable against private companies, it would nevertheless find the fundamental rights claims in this case to be ancillary to the private law claims.

It follows from the above that even if the claims in these proceedings could succeed as claims for breaches of fundamental rights under the Constitution and/or African Charter, they would not be permitted to proceed under the FREP rules in Nigeria, with the consequence that they would remain subject to a 5-year limitation period.

I will leave it to counsel to draw up the proper order reflecting the above decisions.

I am immensely grateful to the counsel teams on both sides for their expertly-drafted, interesting and comprehensive written submissions on all the issues, and for their assistance during the examination of the experts and in closing; also both sets of solicitors for the preparation of bundles which were straightforward to navigate (not always the case where there is such a vast volume of material), and to the transcribers from Opus for indefatigable, prompt and accurate recording of all that went on at the hearing.

My final thanks are reserved for the three experts, whose reports and further explanations at trial enabled me, from a standing start, to become sufficiently well acquainted with Nigerian law and Nigerian courts. In this judgment I have only referred to a small proportion of the hundreds of Nigerian cases which their diligent research uncovered and made available to me, but I was greatly assisted by considering the many more mentioned in their reports and raised with them (or by them) during their evidence. Where, in making my decisions, I have had to differ from one or more of their views, they will understand that I have done so diffidently and always with the utmost respect for their seniority and their advanced experience of the laws of their country.