29 Mar UKSC Judgment in Okpabi & ORS VS Royal Dutch Shell & ANOR, and Colonial Vestiges
[Valentine Kunuji is a Commonwealth Scholarship alumnus and is currently a Doctoral Researcher at the Law School, University of East Anglia, Norwich UK, and his research is focused on International Law with particular reference to Business and Human Rights, International Investment Law, Access to Justice and Indigenous Peoples’ rights. Twitter: olu_11]
Photo credit: Al Jazeera
“You can never, never defeat Shell in a Nigerian Court. A case can go on for very many years. You can hardly get a judgment against an oil company in Nigeria. Shell is Nigeria and Nigeria is Shell.” King Emere Okpabi (tribal king of the Ogale community in the oil-rich Niger Delta, claimants in Okpabi and ORS vs Royal Dutch Shell & Anor ‘Okpabi Case’).
The February 2021 Judgment of the UK Supreme Court (UKSC) in Okpabi and ORS vs Royal Dutch Shell & Anor (Okpabi Case) has been deservingly applauded across the board, even though the Judgment is as of today not more than a procedural triumph for the claimants. From the point of view of access to remedies for victims of business-related human rights violations, the judgment is a positive outcome especially in the light of global access to justice statistics indicating that at least 5.1 billion people- 2/3 of the world’s population lack meaningful access to justice. Access to justice is a major challenge for oil communities in Nigeria’s Niger Delta region including the claimants in the Okpabi case, in view of the long years of un-remediated environmental and human rights abuses.
Instructively, nine (9) years after the 2011 United Nations Environmental Program (UNEP) report which catalogued devastating oil spillages in Ogoni land, a June 2020 collaborative report by Amnesty International and Friends of the Earth revealed that no meaningful clean-up exercise has taken place. Shell Petroleum Development Company (SPDC) which is the second defendant in the Okpabi case is allegedly one of the major perpetrators of the oil spillages and the resulting environmental pollution and human rights abuses in the region.
Brief Summary of Facts and Judgment
The claimants in the Okpabi case seek to hold Royal Dutch Shell (RDS) (1st Defendant), and its Nigeria subsidiary, SPDC (2nd Defendant) liable for alleged environmental pollution and human rights abuses and alleged failure to prevent or remedy the damages resulting therefrom.
In a unanimous Judgment, the UKSC relying on its earlier decision in the in Vedanta Resources Plc & Anor vs Lungowe and ORS (Vedanta case) reversed the judgments of the lower Courts and held that it was at least arguable, based on degree of control and de facto management, that RDS owed a duty of care to the claimant Nigerian citizens in respect of alleged environmental damage and human rights abuses by Shell’s Nigerian subsidiary.
Without prejudice to the findings by the UKSC with respect to the parent company liability principle, it is arguable that the UKSC might have reached a different conclusion if the Court took cognisance of the evidence adduced before the trial court indicating that access to justice was available in Nigeria. Arguably, Nigerian Courts would by default be a more convenient forum for trial of the Okpabi suit assuming that the UKSC resolved the question of access of justice in Nigeria in the affirmative. Instead, the UKSC summarily discounted the findings of the trial Court on access to justice as inappropriate and unnecessary.
It would be recalled that in the Vedanta case, the UKSC per Lord Briggs held in what could rightly or wrongly be regarded as having a colonial undertone that
‘if substantial justice was available to the parties in Zambia as it is in England, it would offend the common sense of all reasonable observers to think that the proper place for this litigation to be conducted was England’ (para 87).
The UKSC held that although England was not the proper place in which to bring the claim, the English courts should still take jurisdiction over the claim because substantial justice for the Claimants was not obtainable in Zambia.
Invariably, the foregoing raises concerns about whether a colonial connotation could be imputed to the UKSC judgment as alluded to by the defendants in their argument before the trial Court in the Okpabi case. In essence, the Judgment is in a bizarre sense reminiscent of the pre-independence period in Nigeria when the English Privy Council was the final Court of Appeal for cases determined by Nigerian Courts. Ultimately, this article highlights the probable impacts of the Judgment on the jurisprudential development of third world countries including Nigeria.
In the absence of any pronouncement by the UKSC in relation to question of access to justice in Nigeria, it seems appropriate to proceed on a short analysis of the dictum by Fraser J (para 20) on some of the issues the Court formulated for determination. First, whether ‘England is the most appropriate forum for the trial of the claims in the interests of all parties and for the ends of justice?’ Second, whether ‘there is a real risk that the Claimants would not obtain substantial justice if they were required to litigate their claims in Nigeria?’ Implicating important forum non-conveniens issues, Fraser J in his judgment noted that the claimants acknowledged that similar suits instituted against SPDC for alleged environmental pollution and human rights abuses were being heard simultaneously in Nigerian Courts.
Distinguishing the facts which grounded the UKSC’s determination in the Vedanta case, Fraser J cautioned that:
‘[t]he Court has to be very careful before passing qualitative judgments on the legal systems of other sovereign nations.’ (para 121)
With respect to the claimant’s claim about delays in the dispensation of justice in Nigeria, the Court noted that ‘[n]o modern legal system of which I am aware is without its delays, including the one in this (UK) jurisdiction’. Importantly, the Court remarked that:
‘There is nothing in the evidence before the court […] that suggests that those responsible for the administration of justice in Nigeria, most notably the current Chief Justice, are doing anything other than taking concrete and effective steps to improve the speed with which cases such as this one is dealt with in Nigeria’.
The Court determined that the claimants ‘do at least potentially have other redress available to them in Nigeria against the SPDC.’(para 122)
While the findings of the UKSC regarding parent company liability may seem unassailable, it is however probable that determination of the issue of access to justice in Nigeria might have resulted in different outcome. In the light of Fraser J’s remarks, it would seem doubtful that claims of delays associated with the Nigerian judicial system sufficiently justifies indiscriminate recourse to foreign Courts by Nigerian claimants. Notably, the counsel to RDS attempted to explain the possible rationale behind the eagerness of third world claimants to bring claims in London Courts ostensibly against parent company of overseas subsidiaries as follows:
‘It is a further essential part of the business model for the Claimants’ lawyers to persuade the Court that other legal systems are inferior. This draws the court into risking making damaging colonialist judgments based on inappropriate comparisons between one judicial system and another’ (para 34).
Conversely, the Solicitors to the claimants argued that due to the absence of legal aid to enable impecunious claimants have access to justice, legal representation of the claimants was actuated on a Conditional Fee Agreement (CFA) (no-win, no-win) basis (para 36).
In this regard, it is arguable that the alleged impecuniosity of the claimant may not be unconnected with the rather expensive choice of prosecuting the claim in London Courts instead of Nigeria where the harm took place. In any case, the Court however alluded to the evidence that CFA was indeed available in Nigeria (para 36).
According to the Court:
‘[in contrast to the Vedanta case,] CFAs are permitted in Nigeria, and are in use, for litigation such as this’. Importantly, Fraser J noted that ‘[t]he evidence before the court is that access to justice in Nigeria would not be denied to the claimants if these proceedings were not to continue in London.’ (para 120).
Against the backdrop of Fraser J’s finding on the subject of access to justice in Nigeria, there is evidence indicating that victims of environmental and human rights abuses have previously succeeded in claims against SPDC in Nigerian Courts. An example is the Nigerian Supreme Court decision in Chief Isaac Osaro Agbara & 9 Ors. V. Shell Petroleum Development Ltd and ORS, which affirmed the judgments by the lower Courts holding SPDC liable for environmental pollution and resultant damages to the claimants who are residents of Ogoni land. As in March 2020, a Nigerian Court as part of enforcement of judgment proceedings in the case ordered the Nigerian Central Bank to debit the account of SPDC held in a Nigerian Bank in the sum of 182billion naira (£344,544,926 million) and pay same to the claimants being judgment sum (plus interest).
Instructively, Fraser J in his Judgment acknowledged RDS’s contention that ‘many oil spill cases have been pursued and are on foot in Nigeria including by Claimants from these communities’. Other examples of such cases include Abel Isiah & Others vs Shell Petroleum Development Company where the State High Court had awarded judgment in the sum of N22million against SPDC. The claimants sought damages against the defendants on the grounds that Shell’s oil exploration activities polluted the claimants’ farmlands, fishponds and streams. The High Court judgment was however upturned by the Supreme Court based on lack of jurisdiction being that the suit ought to have been instituted at the Federal High Court rather than the State High Court. Another example is The Mr Jonah Gbemre vs Nigerian National Petroleum Corporation and Attorney-General of the Federation & Shell Petroleum Development Company Nigeria Ltd. The Court granted the claimant’s prayer for a declaration that the Claimant claimed against the State owned Nigerian National Petroleum Corporation & Attorney General of the Federation, Nigeria for a declaration that spillage of oil in the community constituted a violation of their right to life and dignity of the human person guaranteed under sections 33 and 34 of the Constitution of the Federal Republic of Nigeria and relevant articles of the African Charter on human and people’s rights.
Notably, the Okpabi case would appear to be the only suit instituted against Shell before UK Courts by Nigerian claimants which seem to have gone nearly the whole hog albeit at a procedural level. While an earlier suit was instituted against Shell before UK High Court by Bodo Community in Ogoni land in The Bodo Community and others v Shell Petroleum Development Company of Nigeria Ltd, the case was settled out of Court way ahead of trial for £55 million.
Generally, it is arguable that the seeming incongruence between the rate of environmental and human rights violations attributed to oil multinationals in Nigeria’s Niger Delta and the rather scanty number of litigations in Nigerian Courts may not be unconnected to the rather notorious aversion to the local jurisdiction. Despite the exorbitant cost of prosecuting claims abroad and hitherto dim prospect of success, Nigerian victims of alleged environmental and human rights abuses by oil multinationals, particularly RDS/SPDC have traversed courts in the US, UK and the Netherlands seeking remedies. Remarkably, out of all the suits instituted across these jurisdictions by Nigerian claimants, Eric Barizaa DOOH & ANOR vs Royal Dutch Shell; SPDC Ltd and others is so far the only favourable final judgment obtained in the Netherlands. After a 13-year long litigation, the Dutch Court of Appeal essentially held RDS liable in respect of environmental damage caused by its overseas subsidiary, SPDC.
Notwithstanding, the above should not be misconstrued as an endorsement of endemic delays and alleged corruption which undeniably characterise the Nigerian Judicial system. However, the casual mischaracterisation of the Nigerian legal system bequeathed by colonial Britain as being almost irredeemably bad and incapable of providing access to justice for citizens is in the absence of credible evidence reminiscent of colonial condescension. At its very best, this tendency may not augur well for the jurisprudential development of local jurisdictions particularly those in the global South.