ECLI:NL:RBDHA:2019:6670
Rechtbank DHA — Uitspraak 


judgment
THE HAGUE DISTRICT COURT
Commerce Team
case number / cause list number:
Judgment of 1 May 2019
in the case of
[claimant 1]
of [residence 1] , [country 1] ,
[claimant 2]
of [residence 2] , [country 2] ,
[claimant 3]
of [residence 3] , [country 3] ,
[claimant 4]
of [residence 4] , [country 3] , claimants,
counsel: Ch. Samkalden of Amsterdam,
versus
ROYAL DUTCH SHELL PLC
of London, United Kingdom, with its registered office in The Hague,
SHELL PETROLEUM N.V.
of The Hague,
THE SHELL TRANSPORT AND TRADING COMPANY LIMITED
of London,
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD
of Port Harcourt, Rivers State, Federal Republic of Nigeria,
defendants,
counsel: W.I. Wisman of The Hague.
Claimants are hereinafter jointly referred to as ‘claimants’ and individually as [claimant 1] , [claimant 2] , [claimant 3] and [claimant 4] , respectively. Defendants are hereinafter jointly referred to as ‘defendants’ and individually as RDS, SPNV, STTC and SPDC, respectively.
1.
The proceedings
1.1. The course of the proceedings is evidenced by the following:
- the summons of 28 June 2017, with Exhibits 1 through to 269;
- the statement of defence, with Exhibits 1 through to 204;
- the judgment in which appearance before a three-judge panel was fixed;
- the statement of claim in the procedural issue regarding exhibits, with Exhibits 1 through to 3;
- the document containing Exhibits (205 and 206) of the defendants;
- the statement of defence in the procedural issue regarding exhibits, with one Exhibit (207);
- the document containing Exhibits (270 through to 291, and an addendum to Exhibit 34) of Claimants;
- the report of the parties’ appearance before the three-judge panel of 12 February 2019.
1.2. The report was drawn up in the parties’ absence with their consent. The parties were given the opportunity to submit factual comments within two weeks from dispatch of the report. Claimants took advantage of this opportunity in their letter dated 14 March 2019, and the defendants in their letter dated 13 March 2019. These letters form part of the prosecution file and the judgment is passed with due regard for these letters, in so far as they are factual corrections.
2.
The facts
2.1. Claimants are the widows of four of a group of nine men, also known as the Ogoni 9. They belong to the Ogoni, a people native to Nigeria’s Ogoniland in Rivers State province. The Ogoni 9 were hanged in Nigeria on 10 November 1995 following a death sentence for involvement in the death of four traditional Ogoni leaders passed by a special tribunal.
2.1.1 [claimant 1] is the widow of Dr [A] ( [A] ), who in January 1994 had been appointed Honourable Commissioner of the Ministry of Commerce, Industry and Tourism of Rivers State province and who in that capacity working as the link between the Ogoni and the Nigerian authorities.
2.1.2 [claimant 2] is the widow of [B] , who from their establishment had been a key member of MOSOP (see below under 2.13) and NYCOP (see also under 2.13).
2.1.3 [claimant 3] is the widow of [C] , who in 1993 had joined NYCOP.
2.1.4 [claimant 4] is the widow of [D] , who in 1993 had joined MOSOP.
2.2. Shell Petroleum N.V. (SPNV) is the successor by universal title of
N.V. Koninklijke Nederlandsche Petroleum Maatschappij (Royal Dutch). Royal Dutch and the legal entity under English law, The Shell Transport and Trading Company Limited (STTC), were the parent companies of the Shell Group (Group Parent Companies) in the period relevant to these proceedings, 1990-1995 (hereinafter: “the relevant period” or “1990-1995”). Royal Dutch and STTC – hereinafter also jointly referred to as ‘the parent companies’ – cooperated on the basis of an agreement concluded in 1907.
2.3. Royal Dutch and STTC held the shares in the holding companies of the Shell Group (the Group Holding Companies
)
, to which SPNV and the legal entity under English law, Shell Petroleum Company Ltd (SPCo), also belonged. The Group Holding Companies held the shares of the operating companies in the Shell Group, including Shell Petroleum Development Company of Nigeria Ltd (SPDC), a legal entity under Nigerian law.
2.4. SPDC is the continuation of Shell D’Arcy, which in 1938 received a permit in Nigeria to explore for oil. In April 1956, the name of this company was changed to Shell-BP Petroleum Development Company of Nigeria Limited. In December 1979 the name of this company was changed again, to its current name SPDC. In the relevant period, SPCo held 99.9% of the shares in SPDC, while SPNV in this period held 0.1% of the shares in SPDC.
2.5. The legal entity under English law, Royal Dutch Shell plc (RDS), has been the sole parent company of the Shell Group since a restructuring in 2005, which entailed a merger in which Royal Dutch was merged with SPNV. RDS was placed at the top of the Shell Group and did not take over any obligations from the other companies in the Shell Group.
2.6. Besides the Group Parent Companies, the Group Holding Companies and the operating companies, Service Companies also belonged to the Shell Group in the relevant period, including
Shell Internationale Petroleum Maatschappij B.V.
(SIPM) and the legal entity under English law, Shell International Petroleum Company Limited (SIPC). These Service Companies provided the Shell Group with advice and expertise, for instance in the area of engineering, geophysics, geology, safety and public affairs.
2.7. A consultative body was established at the organizational level between the Group Parent Companies, known as the “Conference”. The members of the Supervisory Board, and of the Board of Directors of Royal Dutch and STTC convened in the Conference. The Shell Groups also had a so-called Committee of Managing Directors (the CMD). This was a joint, informal committee established by the Management Boards of the Group Holding Companies. Every member of the CMD was either a member of the Board of Directors of Royal Dutch or a member of the Board of Directors of STTC as well as a member of the Management Boards of both Group Holding Companies.
2.8. SPDC was currently still is operator in a Nigerian joint venture without legal personality established in April 1973, which is involved in detecting, producing and transporting petroleum and natural gas. Relationships in the joint venture have changed over time. In the relevant period, SPDC had a stake of 30%. The legal entity under Nigerian law, Nigerian National Petroleum Company (NNPC), had a stake of 55%. Elf and Agip has stakes of 10% and 5%, respectively. In the relevant period, the duties in the joint venture were divided as follows: the operator prepared the work programmes and budgets and the partners in the joint venture provided the capital for the activities of the operator on cash calls. The operator was also responsible for all aspects of oil extraction and oil exploitation of the joint venture. The joint venture had an Operating Committee (OPCOM), consisting of six representatives of NNPC, four representatives of SPDC, one representative of Elf and one representative of Agip. OPCOM was responsible for general supervision, leadership and management of the joint venture, including approving, adjusting or rejecting intended decisions on projects and budgets.
2.9. The joint venture extracted oil in Ogoniland, among other locations. There, the joint venture exploited 12 oil fields with 116 wells, five flow stations, various manifolds and pipelines at least until 1993.
2.10. SPDC employed security personnel in 1990-1995, who were not allowed to carry firearms. The staff and possessions of the joint venture were also protected by a regular police force (supernumerary police SPY, in popular parlance also referred to as Shell police) and dog handlers. These police officers, who were employed by the Nigeria Police Force, often worked for particular companies long term. The companies paid a fee to the Nigerian government for their services under Article 18, paragraph 4 of the Nigerian Police Act. The companies also paid the salaries of these police officers.
2.11. In 1985 Major General [Major General] usurped power in Nigeria after staging a coup. He stepped down in August 1993. After an interim government led by [X] , General [the General] ( [the General] ) came to power in November 1993 following a coup. He was the head of state of Nigeria until his death in 1998.
2.12. In October 1990 residents of Umuechem, a village just outside Ogoniland, protested against the poor power and water facilities in Umuechem and the lack of fair compensation for the expropriation and exploitation of their land. Following a request of the divisional manager east of SPDC, [divisional manager east] ( [divisional manager east] ), on 29 October 1990 to the Nigerian Commissioner of Police to provide “security protection (preferably by Mobile Police Force)”, the Mobile Police Force (MOPOL) cracked down on the protestors in Umuechem on 31 October 1990. Many people were killed or injured in the process and 495 houses were set on fire.
2.13. In 1990 the Movement for the Survival of the Ogoni People (MOSOP) was established by [E] ( [E] ). MOSOP protested against the oil extraction in Ogoniland. Its programme was laid down in the Ogoni Bill of Rights drafted in 1991. MOSOP focused on more political autonomy for Ogoniland, fair compensation for the use of Ogoniland and the raw materials in Ogoniland as well as the repair of the damage caused by oil exploitation. Later, in 1993, organisations were established that operated under the umbrella of MOSOP. One of these organisations was the youth movement National Youth Council of Ogoni People (NYCOP).
2.14. On 20 and 21 July 1992 Ogoni demonstrated at the Bonny Terminal, a flow station operated by the joint venture in Ogoniland. The Nigerian Rapid Intervention Force cracked down on the protestors, killing one and seriously injuring two others.
2.15. On 30 November 1992 MOSOP sent a demand notice to the oil companies that were operating in Ogoniland at the time, including SPDC, with the request to pay USD 10 billion within 30 days and to commence negotiations about future oil extraction with representatives of the Ogoni. If these requests were not complied with, the demand notice assumed a total shut down of all activities of the oil companies in Ogoniland and their full retreat from Ogoniland.
2.16. At a rally on 4 January 1993 [E] held a speech in which he declared Shell a persona non grata and called for a fight for the rights of the Ogoni.
2.17. In January 1993 the joint venture pulled out of Ogoniland due to a spike in violence, including threats to its staff and attacks on its installations. The joint venture did continue its work on the Trans Niger Pipeline (TMP), which was being installed by Willbros West Africa (Willbros) through Ogoniland. MOSOP and the local population protested the construction of the TMP. In a letter dated 7 April 1993 to Willbros they objected to the presence of the army in Ogoniland. On 30 April 1993 there was a confrontation between the Nigerian army and Ogoni protestors, in response to which SPDC and Willbros decided on 3 May1993 to suspend activities on the TMG. On 4 May 1993 [divisional manager east] wrote the following to [former Shell employee] , the governor of Rivers State and former Shell employee:
“I regret to inform you that work on the Bomu end of the line has been forced to stop because of some community intervention. (…) We humbly request the usual assistance of his Excellency to enable the project to proceed.”
On 4 May 1993 a Nigerian army unit shut down the protests at the TMG. One protestor was killed.
2.18. On 15 May 1993 and 8 June 1993 talks were held between [E] and SPDC, in the person of [divisional manager east] and [Q]
,
then general business manager of SPDC ( [Q] ). In these talks [E] asked SPDC to support the Ogoni case. In the report of the talk, drawn up by SPDC, the following is stated as regards the statements made by [E] :
“(…)
that most of the issues were political and regretted that SPDC was being used as a scape goat. He claimed that his tactics were the only way to arouse public opinion (local and international) and attract Govt attention.
”
In the report of the second talk, the following is stated as regards the statements made by [E] :
“
He was very apologetic for the “terrible things” he claimed to be doing to Shell particularly on the international scene. He felt that not all of that was deserved but he had no alternative instrument to use effectively for his campaign.
”
2.19. In January 1994 [director of SPDC] ( [director of SPDC] ) took up his position as director of SPDC. He sent confidential memos to employees of the Service Company SIPC in London, with a carbon copy to the Service Company SIPM in The Hague, on a weekly basis and sometimes more often, known as the Nigeria Updates.
2.20. An inter-office memo from [head of Intelligence East] , head of intelligence and surveillance East of SPDC ( [head of Intelligence East] ) dated 25 February 1994 states that [head of Intelligence East] paid an extra allowance to the team of [the commander] ( [the commander] ), commander of the Rivers State Internal Security Task Force (RSISTF), on behalf of SPDC:
“as a show of gratitude and motivation for a sustained favourable disposition towards SPDC in future assignments”
2.21. On 21 April 1994 the Nigerian regime announced the action plan Operation Restore Order in Ogoniland. This operation was carried out by the RSISTF and was led by its commander, [the commander] .
2.22. On 21 May 1994 four traditional Ogoni leaders, [leader 1] , [leader 2] , [leader 3] and [leader 4] , were killed during riots that broke out at a meeting in Giokoo, a village in Ogoniland. This meeting was intended as a reception of two “sons of Gokana”, including [A] .
2.23. On 22 May 1994 Lieutenant Colonel [Lieutenant Colonel] , the military governor of Rivers State, held a press conference in which he held part of MOSOP responsible for the death of the four Ogoni leaders and made it known that he had given an order to arrest the persons in MOSOP responsible for their death.
2.24. In May 1994 [E] , [A] , [B] and [D] were arrested and detained, among others. [C] was arrested and detained in October 1994.
2.25. On 4 November 1994 the Ogoni Civil Disturbances Special Tribunal (the tribunal) was established which, as it turned out later, was tasked with prosecuting the persons who were suspected of the murder of the Ogoni leaders.
2.26. On 28 January 1995 the first group of suspects, including [A] and [B] , were indicted by the tribunal. [E] also belonged to this group of suspects. In early February 1995 proceedings against this first group of suspects was commenced.
2.27. On 28 February 1995 a second group of suspects, including [C] and [D] , were indicted by the same tribunal as the first group of suspects. In late March 1995 proceedings against this second group of suspects commenced before the same tribunal.
The two proceedings before the tribunal – against the first and second group of suspects – is hereinafter also jointly referred to as ‘the proceedings’.
2.28. In February 1995 [claimant 1] was detained for a brief period. [claimant 2] was detained for one day when she visited her detained husband. Later, on 11 November 1995, after her husband had been put to death, [claimant 2] was arrested and detained for over eight hours.
2.29. There was worldwide attention for the tribunal in 1995, and some parts of the proceedings were attended and observed by various observers and representatives of NGOs. These observers and organisations raised questions about the independence of the tribunal and the fairness of the proceedings. SPDC and the Shell Group were called to intervene in the proceedings by various sides.
2.30. A Q&A disseminated within the Shell Group on the Nigeria Issue on 16 May 1995 provided an answer to the question why Shell chose not to intervene:
“As commercial organisations, Shell companies cannot, nor should not, interfere. Such legal matters are the concern of a country’s people and their government. Neither the government nor critics of Shell companies would tolerate interference in a country’s internal affairs by a business. Shell does wish Mr. [E] to be correctly treated and have access to proper legal and healthcare facilities.
(…)
We have openly expressed our concern about the situation in Nigeria. SPDC must operate within existing national law and endeavour to operate in a socially responsible manner. As a commercial organisation the company has no right to step outside its business interests and act as arbiter of Nigeria’s moral, social or political conduct. However, SPDC will speak up for the safety of its staff if they are put in danger.
”
2.31. In June 1995 the report
Nigeria Fundamental Rights Denied. Report of the Trial of [E] and Others
by [the representative] QC was published. [the representative] had attended part of the proceedings against the first and second group of suspects, as a representative of the Law Society of England and Wales and the Bar Human Rights Committee of England and Wales and with the support of ARTICLE 19, the International Centre Against Censorship, a human rights organisation. In the summary of the conclusions of his report, [the representative] wrote the following:
“
2.1 No sensible person could either doubt the seriousness of the Giokoo killings or challenge the right of the Nigerian authorities to investigate and try offences relating to them before an independent and impartial tribunal. However, I believe that the proceedings before the tribunal that has been specially appointed to try the case violate a number of the fundamental rights of the
defendants which are guaranteed both by the Nigerian Constitution and by international human rights instruments to which Nigeria is a party.
(…)
2.4 The proceedings before the tribunal are in breach of fundamental rights in that:
(1)
The tribunal is not independent of the government.(…)
(2)
The tribunal has made some rulings favourable to the defence. (…) But, overall, it has behaved in a way which strongly suggests that it is biased in favour of the Federal Military Government and the prosecution. (…)
(...)
2.6
In assessing the overall fairness and legality of a trial one does not simple count up the rights denied and those upheld in order to make a purely numerical comparison. It is my view that the breaches of fundamental rights I have identified are so serious as to arouse grave concern that any trial before this tribunal will be fundamentally flawed and unfair.
2.7
I am also particularly concerned about two further aspects of the case. The first is the apparent influence of the Lt-Col [the commander] , an officer against whom grave allegations of human rights abuses have been made. In my view his insistence on arranging and attending defense conferences is bound to inhibit the preparation of the defense. His uninvited presence at my own meeting with prosecution counsel must give rise to fears that their independence has been compromised. There is also reason to suspect that he has private access to members of the tribunal.”
In his report [the representative] expressed concerns over the available evidence and drew attention to a number of issues, namely:
“The two principal witnesses against [E] have now sworn affidavits claiming that they were bribed to give false evidence.”
2.32. In July 1995 the report of Human Rights Watch, entitled
Nigeria. The Ogoni Crisis: A Case Study Of Military Repression In Southeastern Nigeria
was published. This report is critical of the independence of the tribunal and the fairness of the proceedings before the tribunal. This report states, among other things, that two witnesses, [witness 1] ( [witness 1] ) and [witness 2] ( [witness 2] ), declared to have been bribed and that the SPDC was involved in the bribe, which both the prosecution and the SPDC have denied.
2.33. On 15 September 1995 the report of Amnesty International was published, entitled
Nigeria. The Ogoni trials and detentions.
This reports states the following:
“In the trials of [E] and others, the tribunal, appointed by Nigeria’s military government, is neither independent nor impartial. It has shown itself biased in favour of the
prosecution at key stages, and the defence team, headed by Nigeria’s leading civil rights lawyers, has withdrawn from the trials in protest.
Amnesty International believes that at least three of the defendants –
[E] , [F ]
and
Dr [A]
– are prisoners of conscience, imprisoned because of the non-violent expression of their political views, and is calling for immediate and unconditional release. (…)”
This report argues that the arrest and detention of the defendants was inspired by political motives and that the tribunal is not independent of the Nigerian military regime. In the description of the proceedings, this report states that key prosecution witnesses had allegedly been bribed.
2.34. On 30 and 31 October 1995 the tribunal pronounced the death sentence against nine defendants. These Ogoni 9, including the husbands of claimants, were sentenced to death by hanging. The other six defendants were acquitted.
2.35. In response to the death sentence, Shell issued the following press release on 2 November 1995:
“(…) Throughout the trial a number of respected organisations and campaigners raised questions over the fairness of the trial procedure. There are now demands that Shell should intervene, and use its perceived “influence” to have the judgement overturned.
This would be dangerous and wrong.
[E] and his co-defendants were accused of a criminal offence. A commercial organisation like Shell cannot and must never interfere with the legal process of any sovereign state. Those who call on us to do so might well be the first to criticise in any situation where that intervention did not suit their agenda. Any government, be it in Europe, North America or elsewhere, would not tolerate this type of interference by business. But what Shell has said, repeatedly and publicly, is that, while it does not agree with [E] ’s approach or opinions, it nevertheless recognises his right to hold and air his views, and that he is entitled to due legal process and medical support.(…)”
2.36. On 8 November 1995 [then chairman of CMD] , then chairman of the CMD, requested [the General] on behalf of the Shell Group in a letter not to carry out the executions.
2.37. The following is an excerpt from a press release dated 8 November 1995 from SPDC:
“
However, we believe that to interfere in the process, either political or legal, here in Nigeria would be wrong. A large multinational company such as Shell cannot and must not interfere with the affairs of any sovereign state. These principles, in which we strongly believe, are embedded in Shell’s Statement of General Business Principles. The very campaigners who are calling on us today to intervene may well be the first to criticise us in any other situation where intervention does not suit their agenda.”
2.38. Op 8 November 1995 the Provisional Ruling Council (PRC), presided by [the General] , confirmed the death sentences. The Ogoni 9 were put to death by hanging on 10 November 1995.
2.39. On 11 November 1995 SPDC and Nigeria reached agreement on the so-called “NLNG project”. Nigeria Liquid Natural Gas (NLNG) is a legal entity established in May 1989 whose objective is to produce liquefied natural gas (LNG). The shareholders in NLNG were and still are NNPC, Shell Gas B.V., Total LNG Nigeria Ltd and Eni S.p.A. The shares in Shell Gas BV were held by Royal Dutch. In 1995 negotiations took place about, among other things, the operational activities of NLNG, the structure of the joint venture agreements and the financing of the joint venture by the parties involved. Sometime later, in December 1995, the agreement reached about the NLNG project was announced to the world.
2.40. On 12 November 1995 Nigeria was suspended by the Commonwealth. The United Kingdom and various other countries withdrew their ambassadors from Nigeria. The World Bank pulled out of the NLNG project due to the political situation in Nigeria.
2.41. The following is an excerpt from a press release of the Shell Group of 19 November 1995:
“First, did discreet diplomacy fail? Perhaps we should ask instead why the worldwide protests failed. Our experience suggests that quiet diplomacy offered the very best hope for [E] . Did the protesters understand the risk they were taking? Did the campaign become more important than the cause?”
2.42. On 20 November 1995 the European Union condemned the executions of the Ogoni 9, confirming measures against Nigeria from 1993. In addition, the European Union introduced an embargo on the trade in weapons, ammunition and military equipment and suspended development cooperation with Nigeria.
2.43. On 8 November 1996 Royal Dutch and STTC were sued by the families of the Ogoni 9, including the family of [E] , in the United States (the [the American proceeding I] ). In 2001 [director of SPDC] was also sued by these families and SPDC in 2003. The proceedings were brought under the American Alien Torts Claims Act (ATCA) and the Torture Victim Protection Act and – as far as it concerns Royal Dutch and SPDC – under the Racketeer Influenced and Corrupt Organisations Act (RICO). After the discovery phase the District Court of Southern New York declared itself competent on 23 April 2009, after which on 26 May 2009 the substantive hearing commenced. The case ended on 8 June 2009 with a settlement of USD 15.5 million, with which a trust fund was established for the Ogoni people, among other things.
2.44. On 1 September 2002 [claimant 1] , in part on behalf of her deceased husband, and 11 family members of Nigerian Ogoni activists also sued Royal Dutch and STTC in the United States (the [the American proceeding II] ). In 2004 she also sued SPDC. In 2013 the Supreme Court declared the American court incompetent to take cognizance of the case and opined that proceedings under the ATCA can only be instituted in America if there are sufficient links to the American jurisdiction. And that was not the case in the [the American proceeding II] , according to the Supreme Court.
The [the American proceeding I] and [the American proceeding II] are hereinafter jointly referred to as ‘the American proceedings’.
3.
The dispute
3.1. Claimants claim
in the principal action
in an order declaring a judgment provisionally enforceable:
I. to rule that defendants have acted unlawfully towards claimants and are jointly and severally liable towards them for the damage they have incurred and will incur as a result of the wrongful conduct of defendants, which damage is to be assessed later during separate follow-up proceedings and settled according to the law, plus statutory interest until the date on which payment is made in full
to order defendants to offer a public apology within 21 days of the judgment, to be expressed by the CEO of Royal Dutch Shell or at least the CEO of SPDC, for the role Shell has played in the events leading to the death of the husbands of claimants, and to publish the text of the apology clearly visible on its website, subject to a penalty of € 20,000 per day – or another amount to be determined by the court – for every day this order is not complied with;
to jointly and severally order defendants to pay the extrajudicial costs;
to jointly and severally order defendants to pay the costs of these proceedings, including subsequent costs.
3.2. Claimants allege that defendants are an accessory to the unlawful arrest and detention and the violation of the personal integrity of their husbands and, in the case of [claimant 1] and [claimant 2] , of their own personal integrity. They also accuse defendants of being an accessory to the violation of the right to a fair trial and the right to life of their husbands and their own right to family life. They hold defendants – which they jointly refer to in the singular ‘Shell’ – responsible for being an accessory to these fundamental rights violations by the Nigerian regime, with whom Shell formed an alliance, or so allege claimants, which led to the death of their husbands. More specifically, claimants allege that Shell:
was the driving force behind the excessively violent action of the regime, because it had repeatedly requested the Nigerian authorities since the 1980s to intervene whenever its operations were disrupted by protests of the local population. It repeatedly passed on the exact locations of the usually peaceful protests and made equipment available, accepting that it would result in numerous deaths and injuries;
facilitated Operation Restore Order in Ogoniland i) by instigating violent and other actions against MOSOP and ii) because [the commander] also worked on Shell’s behalf;
operated in tandem with the Nigerian regime, in which Shell i) facilitated the excessive action of the Nigerian regime, but also ii) carried out typical government duties in the area of security and intelligence gathering and iii) had placed strawmen in key positions in the Nigerian regime and vice versa;
was deeply involved in the proceedings which sought to secure the interests shared by Shell and the regime, considering that i) its attorney [attorney 1] (hereinafter: [attorney 1] ) was keeping it informed of all details and ii) supported the position of the prosecution with a watching brief and iii) Shell’s protégé [the commander] played a dominant role during the proceedings;
contributed to the outcome of the proceedings through i) its involvement in bribing witnesses who had to make incriminating statements against the Ogoni 9 and ii) direct contact with the judges of the tribunal;
offered to influence the outcome of the proceedings under the condition that MOSOP would cease its protest against Shell;
knowing how the proceedings would end and being in a position to stop the executions, it let its commercial interests prevail over the fate of the Ogoni 9, by i) not distancing itself from the course of the proceedings at any point in time, ii) to continue its support of the Nigerian regime and iii) not intervene publicly or otherwise, while iv) securing its economic interests during the proceedings by negotiating about the NLNG project, which would extend the cooperation between the Nigerian regime and Shell for many years to come.
3.3.
In the procedural issue
claimants claim in a provisionally enforceable judgment on the procedural issue, as changed at the personal appearance:
I. to order defendants to grant claimants inspection within 21 days of the judgment to be pronounced in these proceedings to:
i. the part of the intended trial exhibits designated by the plaintiffs which have been produced by the defendants and which has been labelled as confidential in the American proceedings and/or;
ii. the intended trial depositions designated by the plaintiffs which have been produced by the defendants some of which have been labelled as confidential in the American proceedings and/or;
iii. the documents from the privilege log (Exhibit 198 summons and Exhibit 3 in the procedural issue, overview CDST documents) with the following numbers: 91 through to 94, 97 and 98, 100 through to 105, 125, 163, 165, 166 and 199 through to 206, or those reports the court finds allowable;
and following inspection, issue a copy or extract to claimants of the part of these documents requested by claimants, either in photocopy or a standard digital format or in any other form this court deems fit;
II. subject to a penalty of € 5,000 following service of the judgment for every day that defendants continue to fail to comply with the order, with a maximum of € 50,000;
III. to jointly and severally order defendants to pay the costs of the procedural issue, with the proviso that statutory interest will be due if these costs have not been paid within 14 days from pronouncement of the judgment.
3.4. Claimants allege that as regards all these documents, the requirements of Section 843a of the Code of Civil Procedure (CCP) have been met in terms of issuance of such documents.
3.5. Defendants put up a reasoned defence in the principal action and in the procedural issue. They have stated first and foremost that they are aware of the tragic and shocking nature of the events leading up to the execution of the Ogoni 9. However, defendants cannot accept the manner in which claimants have presented the role of SPDC and the Shell Group in these events nor in the description of these events by claimants. Defendants contest the claims on substantive grounds and also put up lines of defence which are in conflict with a substantive assessment, such as their invocation of the lack of jurisdiction of the court and their invocation of limitation.
3.6. The standpoints of the parties are discussed below – in so far as relevant.
4.
Assessment
I. introduction
4.1. The court states first and foremost that the death of their husbands was a sad and tragic event for claimants, which has marked their lives. At the hearing claimants described their experiences of the events as well as the sad and dramatic consequences of their husbands’ deaths. Claimants’ sadness and great loss are not in dispute. It is an established fact that their
life has changed drastically following the death of their husbands and the preceding arrest, detention and proceedings before the tribunal. The court is aware of the shocking and tragic nature of the events, which defendants have also acknowledged.
In these proceedings, the court must answer the question whether defendants can be held co-liable at law for the arrest, detention, conviction of their husbands and the subsequent execution of their sentence – as claimed by claimants.
4.2. Claimants allege that as accessories defendants played a role in the violations of fundamental rights of their husbands and themselves as well as in the events leading up to the death of their husbands. According to claimants defendants formed an alliance with the Nigerian regime. Claimants discuss at length the conduct of the Nigerian authorities, which is attributable to the Nigerian State, the tribunal that convicted the Ogoni 9 and the Nigerian military and police units. They are right to start from the idea that this conduct attributable to the Nigerian State cannot be assessed in these proceedings, in which Nigeria is not party. Apart from that, according to unwritten Dutch international private law has immunity for this conduct that can be qualified as
acte jurii imperii
, for which the Nigerian State can only be sued in Nigeria.
4.3. Parties agree that the claims of claimants are governed by Nigerian law. If and in so far as needed, they have thereby made a choice of law for Nigerian law. In the court documents, in the form of legal opinions and Nigerian jurisprudence, parties have expressed their opinions on the relevant Nigerian law that must be applied in these proceedings. In addition, the court carried out its own investigation by consulting literature and jurisprudence.
4.4. At the personal appearance claimants explained that with claim I they wish to obtain a statement that defendants acted in violation of the fundamental rights invoked by claimants and that defendants are jointly and severally liable for the damage incurred by claimants and the damage they will incur. The court reads the claim for relief in this manner.
4.5. Claimants rely on the violation of the following fundamental rights of their deceased husbands and of themselves, as laid down in the African Charter on Human and Peoples Rights (ACHPR) and the Nigerian Constitution of 1979 (NGW (1979)):
i)
The right to life
(Article 4 ACHPR and Article 30 NGW (1979),
ii)
The right to dignity of a person and the prohibition of torture and cruel or inhuman punishment and treatment
(Article 5 ACHPR and Article 31 NGW (1979),
iii)
The right to personal liberty and the security of the person; the prohibition of arbitrary arrest and detention
(Article 6 ACHPR and Article 32 NGW (1979),
iv)
The right to a fair trial
(Article 7 ACHPR and Article 33 NGW (1979),
v)
The right to family life
(Article 18 ACHPR and Article 34 NGW (1979).
4.6. Claimants hold STTC, as then parent company, and SPNV, as legal successor to Royal Dutch, the other then parent company, liable. They hold the parent companies and SPDC separately liable for violations
of the fundamental rights stated under 4.5. They have summonsed RDS, which was established after the events complained of, to be on the safe side, in case RDS can or must be held liable for acts taken place before the restructuring of the Shell Group.
4.7. The accusations (see under 3.2) on which claimants have based their claims virtually exclusively relate to conduct by SPDC or conduct of the board and employees attributable to SPDC. Claimants also hold the parent companies liable for that. To that end, they argue that SPDC and the parent companies actually acted as one entity. Claimants allege that SPDC did nothing without first consulting or obtaining the implicit consent of the parent companies, which knew exactly which role SPDC played in the events in Ogoniland also involved themselves in the events. They argue that the Shell Group acted as one centrally controlled organisation in the conduct complained of and handled the Ogoni issue as a group matter.
4.8. Claimants expressly do not base their claims against the parent companies on the Anglo-Saxon legal concepts of piercing the corporate veil and crossing the corporate veil, shareholders’ liability or tort or negligence. Claimants allege that the basis of their claims against the parent companies do not differ from those against SPDC. They accuse SPDC and the parent companies of carrying out a joint and coordinated action at the events that led to the alleged fundamental rights violations. The fact that SPDC and the parent companies operated at different levels does not alter the basis of the claims, or so argue claimants. During the parties’ appearance claimants requested the court to assess the claims according to the standards for tort, in case it is assessed that their claims cannot be directly based on the invoked provisions from the ACHPR and NGW (1979).
4.9. The court will first discuss in more detail below (under II) the fundamental rights invoked by claimants as well as the way in which in Nigeria people can contest at law imminent or actual violations of these rights. The court will then (under II) assess in the principal action and in the procedural issue whether or not it has jurisdiction
.
Under IV the procedural issue is discussed, followed by the invocation of limitation (under V) and the assessment on the merits (under VI). The judgment is structured as follows:
II. the fundamental rights invoked by claimants and the manner in which in Nigeria people can contest at law imminent or actual violations of such rights
III. jurisdiction of the Dutch court
IV. the procedural issue regarding exhibits
IV.1 the intended trial exhibits and intended trial depositions (claim i) and ii))
IV.2 the CDST documents (claim iii))
IV.3 the minutes of the CMD meeting of 7 November 1995
V. the invocation of limitation by defendants
VI. discussion of the accusations on the merits
VI.1 involvement in and influencing of the proceedings before the tribunal
VI.1.a holding a watching brief, support to the prosecution and informal contacts with the judges of the tribunal
VI.1.b bribing of witnesses
VI.1.b.i involvement of SPDC
VI.1.b.ii use of statements in the convictions
VI.1.b.iii use of statements in the arrest and detention
VI.1.c [the commander]
VI.2 offer to influence the proceedings on the condition that MOSOP ceases it protest against SPDC
VI.3 non-intervention in the proceedings
VI.3.a monitoring the proceedings
VI.3.b quiet diplomacy
VI.3.b.i contacts between [director of SPDC] and Nigerian officials
VI.3.b.ii other contacts with Nigerian officials
VI.3.b.iii the period between the sentences and executions
VI.3.b.iv review
VII. conclusion
II. the fundamental rights invoked by claimants and the manner in which in Nigeria people can contest at law imminent or actual violations of such rights
4.10. The ACHPR, as relied on by claimants, has been signed, ratified and then incorporated into Nigerian law by means of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 1983.1 This act consists of two articles: the citation provision, as laid down in Article 2, and Article 1, which reads as follows:
“As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights which are set out in the Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria.”
The Schedule to this Act is the full ACHPR, which has thereby been incorporated into the Nigerian legal system. The Nigerian Supreme Court considered as follows regarding this:
“Since the Charter has become part of our domestic laws, the enforcement of its provisions like all our other laws fall within the judicial powers of the courts as provided by the Constitution and all other laws relating thereto.”
2
4.11. Articles 31 through to 34 of the Nigerian Constitution (NGW (1979)), on which claimants rely, are contained in chapter IV of NGW (1979). Article 42 NGW (1979) which also forms part of chapter IV of NGW (1979) stipulates that:
“(1)	Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2)	Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter
.”
1. Chapter A10 Laws of the Federation of Nigeria 1990 and Chapter A9 Laws of the Federation of Nigeria 2004
2 Cf. Ogugu v. The State (1994) 9 NWLR (Pt 366) 1
Article 46 of the Nigerian Constitution of (NGW (1999)) is identical. This provision is also contained in chapter IV of said Constitution which, like chapter IV of NGW 1979, contains fundamental rights.
4.12. The fundamental rights invoked by claimants have horizontal effect under Nigerian law.3 This jurisprudence has been summarised as follows by Akintin JSC in the case of Abdulhamid v. Akar and another4:
“The position of the law is that where fundamental rights are invaded not by government agencies but by ordinary individuals, as in the instant case, such victims have rights against the individual perpetrators of the acts as they would have done against state actions. It follows therefor that in the absence of a clear and positive prohibition which precludes an individual to assert a violation or maintain a similar action in a court of law against another individual for his act that had occasioned wrong or damage to him or his property in the same way as an action he could maintain against the State for a similar infraction.”
These fundamental rights may also be invoked against companies.
4.13. The third paragraph of Article 42 NGW (1979)/46 NGW (1999) gives the Nigerian
Chief Justice (hereinafter: the Chief Justice) the jurisdiction
“
(to) make rules with respect to the practice and procedure of a High Court for the purposes of this section.”
4.14. Under application of this jurisdiction, the Chief Justice adopted the Fundamental Rights (Enforcement Procedure) Rules (the FREP Rules 1979) in 1979. The FREP Rules 1979 provide for a
sui generis
legal action under Article 42 NGW (1979) for imminent or actual violations of the fundamental rights enshrined in chapter IV of NGW (1979).
4.15. In 2009 the Chief Justice adopted new FREP Rules (the FREP Rules 2009), which came into force on 1 December 2009. The FREP Rules 2009 also apply to redress as regards imminent or actual violations of ACPHR. Order II (1) of the FREP Rules 2009 stipulates that:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution
or
Africa n Ch a rter o n Hu ma n and Peo p les’ Righ ts (Ra tifica tion a n d En fo rcemen t) Act
[underlining by the court]
and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:”
Under the FREP Rules 1979 it had already been adopted that the fundamental rights from ACPHR may be invoked under the
sui generis
legal action contained therein.5
4.16. Order XV Rule (1) and (2) of the FREP Rules 2009 stipulate that:
“(1)	The Fundamental Rights (Enforcement Procedure) Rules 1979 are hereby abrogated.
(2)	From the commencement of these Rules, pending Human Rights applications commenced under the 1979 Rules shall not be defeated in whole or in part, or suffer any judicial censure, or be struck out or prejudiced, or be adjourned or dismissed, for failure to comply with these Rules provided the applications are in substantial compliance with the Rules.”
4.17. The Explanatory Note to the FREP Rules 2009 states that these rules govern the procedure of the
sui generis
legal action for imminent or actual violations of fundamental rights:
3 Cf. Onwo v. Oko & Ors (1996) 6 NWLR (Pt. 456) 584 and Ogugu v. The State (1994) 9 NWLR (Pt. 366) 1
4 (2006) 5 SCNJ 43
5 Cf. Ogugu v. The State (1994) 9 NWLR (Pt 366) 1
“These Rules provide for the rules of procedure to be followed in the Court in applications for the enforcement or securing the enforcement of Fundamental Rights under Chapter IV of the 1999 Constitution and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.”
Situations not provided for in the FREP Rules 2009 fall under the Civil Procedure Rules of the Court for the time being in force (see Order XV (4) FREP Rules 2009).
4.18. The FREP Rules 2009 has abrogated several procedural requirements and formalities under the FREP Rules 1979. The preamble contains the order to the court to “
constantly and conscientiously seek to give effect to the overriding objectives of these Rules.”
The subsequent overriding objectives seek to give a broad application to the protection of fundamental rights and to their expansive interpretation. These overriding objectives cover the following, among other things:
“(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.
b)
For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. (…)
c)
For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient.”
4.19. One of the changes to the FREP Rules 2009 as compared to the FREP Rules 1979 concerns the period within which legal proceedings must be instituted. Order I
(3) of the FREP Rules 1979 – on which defendants base their invocation of limitation under V.– determines that:
“Leave shall not be granted to apply for an order under these Rules unless the application is made within twelve months from the date of the happening of the event, matter, or act complained of, or such other period as may be prescribed by any enactment or, except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court or Judge to whom the application for leave is made.”
Order III of the FREP Rules 2009 determines that:
“An application for the enforcement of Fundamental Rights shall not be affected by any limitation Statute whatsoever.”
4.20. Article 42 NGW (1979)/46 NGW (1999) is entitled Special jurisdiction of High Court
.
This article determines that the High Court of the state where the imminent or actual fundamental rights violations take place has original jurisdiction to take cognizance of the constitutional claim for redress
.
In the FREP Rules 1979 is Court in Order 1(2) is defined as the Federal High Court or the High Court of a State
.
The FREP Rules 2009 add the High Court of the Federal Capital Territory, Abuja in Order II(1). In Nigeria, courts without jurisdiction as regards a particular legal action are
ipse facto
not deemed competent to take enforceable and binding decisions as regards that legal action.6 That also applies to proceedings instituted under application of the FREP Rules. If an incompetent court makes a decision as regards such proceedings after all, other than in the sense of a referral of the case to a competent court, the proceedings are null and void.7 The courts designated in Article 42 NGW (1979)/Article 46 NGW (1999) and in
6 Cf. Madukolu v. Nkemdilim (1962)2 SCNLR 341
7 Cf. Madukolu v. Nkemdilim (1962)2 SCNLR 341
the FREP Rules 1979/2009 have exclusive jurisdiction in Nigeria in the
sui generis
legal action to which the FREP Rules 1979/2009 apply.
4.21. Under Nigerian law, the
sui generis
legal action to which the FREP Rules 1979/2009 apply is not an exclusive legal procedure for imminent or actual violations of fundamental rights.8 Such violations may also be addressed in other legal procedures and on other bases, for instance in the context of criminal-law proceedings or in proceedings based on tort or contract
.
The Nigerian Supreme Court has considered as follows about this:
“(…) the provision of Section 42 of the Constitution for the enforcement of the fundamental rights enshrined in Chapter IV of the Constitution is only permissible and does not constitute a monopoly for those rights. The object of the Section is to prove a simple and effective judicial process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. The object has been achieved by the (FREP-Rules ((1979)). It must be emphasised that the Section does not exclude the application of the other means of their enforcement under the common law or statutes or rules of courts. (…) A person whose fundamental right is being or likely to be contravened may resort to any of these remedies for redress.”
9
4.22. A party wishing to put forward an imminent or actual violation of the fundamental rights from the ACPHR and NGW invoked by claimants in legal proceedings in Nigeria has the choice to do so i) either with a claim for redress in a
sui generis
legal action to which the FREP Rules 1979/2009 apply and ii) or on another basis in other proceedings. That other basis would be the private-law concept of tort for a claim instituted by claimants against defendants, who they directly sue extracontractually for their conduct
.
But claimants do not base their claims in the first instance on this principle. In Nigeria claimants would have to institute proceedings before the exclusively competent Federal High Court or the High Court in the
sui generis
legal action to which the FREP Rules apply. Below, under III., the court will assess if and to what extent this has consequences for the jurisdiction of the Dutch court.
III. jurisdiction of the Dutch court
4.23.
It is not in dispute that the Dutch court has international jurisdiction to take cognizance of the claims against the parties RDS and SPNV, established in the Netherlands. The court has international jurisdiction to take cognizance of the claims against STTC, established in London, and SPDC, established in Nigeria, if the requirements of Article 8 paragraph 1 Brussels I bis Regulation10 and of Article 7 Code of Civil Procedure (CCP), respectively, have been met. STTC and SPDC contest that these requirements have been met and argue to that end that the actions of each of the defendants, especially considering the separate entity doctrine under Nigerian company law, must be distinguished, while a joint processing of the claims is not efficient in the opinion of STTC and SPDC, as the claims against ‘anchor’ defendant SPNV have no chance of succeeding.
8 Cf. Ina and 4 Ors v. Ukoi (2003) FWLR (Pt. 143) 382
9 Cf. Ogugu v. The State (1994) 9 NWLR (Pt 366) 1
10 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (PbEU 2012, L 351/1)
4.24.
Under Article 8 paragraph 1 Brussels I bis Regulation international jurisdiction with respect to claims brought against STTC can be assumed, if the link between the claims against RDS and SPNV are so close that a good administration of justice requires a simultaneous handling and prosecution in order to prevent contradictory decisions. These requirements should be interpreted with caution. This means, among other things, that the mere fact that divergent rulings may be issued is insufficient to prove said close link. The requirements is that the divergence may occur in the context of the same situation, both factually and at law, and that it is not required that the claims instituted against the various defendants have the same legal basis.11 The examination of the jurisdiction based on the Brussels I bis Regulation should not be limited to the assertions of the claimant. The court should take account of all of the data available to him about the true legal relationship between the parties and, if applicable, the assertions of the defendant. However, in this context there is a limitation, namely that if the defendant contests the assertions of the claimant the court does not have to provide opportunity for furnishing evidence in the context of establishing his jurisdiction.12
4.25.
Under Article 7 CCP, jurisdiction as regards SPDC can be assumed if the correlation between the claims against the various defendants is such that reasons of efficiency justify a joint handling of the claims. Since the Dutch legislator sought to follow the predecessors of the Brussels I bis Regulation when introducing and, later, amending Articles 1 through to 14 CCP,13 for the interpretation of the Community rules on jurisdiction for international jurisdiction a link should be sought, in principle, with the jurisprudence of the Court of Justice of the European Union (CJEU) regarding the Brussels I bis Regulation and its predecessors, unless it is plausible that the Dutch legislator’s intention when incorporating a Community rule was to deviate from Union-law instruments or their interpretation by the CJEU.14
4.26.
The heart of the accusation of claimants is that SPNV, STTC and SPDC acted in concert in the fundamental rights violations alleged by claimants. The claims against the three defendants are based on the same facts, circumstances and legal bases. The claims against SPNV, STTC and SDPV therefore pertain to the same situation, both factually and at law. This is especially true for the claims against the two parent companies SPNV and STTC, which both factually and legally cannot be viewed in isolation from the claims against the operating company SPDC. The court is of the opinion, like claimants, that if these related cases were to be prosecuted separately, there is a risk that contradictory decisions will be made. In light of this identical situation, factually and at law, SPDC, STTC and SPNV should have foreseen that they could have been summonsed in court in the country of establishment of a co-defendant.
11 Cf. CJEU 21 May 2015, ECLI:EU:C:2015:335 (Cartel Damage Claims/Akzo Nobel), point 17-20 and
also CJEC 13 July 2006, ECLI:EU:C:2006:458 (Roche/Primus); CJEC 11 October 2007, ECLI:EU:C:2007:595
(Freeport); CJEU 12 July 2012, ECLI:EU:C:2012:445 (Solvay)
12 Cf. CJEU 28 January 2015, ECLI:EU:C:2015:37 (Kolassa/Barclays Bank), point 58-65, and CJEU 16 June
2016, ECLI:EU:C:2016:449 (Universal Music/Schilling), point 42-46
13 Parliamentary Papers II 2002-2003, no. 3, p. 1
14 Cf. Supreme Court 29 March 2019, ECLI:NL:HR:2019:443
4.27.
The standpoint of the defendants that the joint handling of the claims is not efficient, because the claims against the ‘anchor’ defendant SPNV have no chance of succeeding, is only relevant in the case against SPDC, in which the court must test against Article 7 paragraph 1 CCP. Defendants base their standpoint regarding the chance of success of the claims against SPNV on group liability, which is not the basis of the claims. Considering the factual basis of the claims, which consists of the alleged direct involvement of SPNV in the violations of the fundamental rights invoked by claimants, which under Nigerian law have direct and horizontal effect and which can also be invoked against companies, it cannot be stated beforehand that these claims are evidently bound to fail. If and to what extent the reproaches against the ‘anchor’ defendant SPNV hold, must be assessed in the principal action.
4.28.
The invocation of STCC and SPDC of the judgment of English Court of Appeal in the Ogale case,15 in which the English court deemed it had no jurisdiction towards SPDC, cannot succeed. The check against English law, performed by the English court, is different from the check applicable in this case against Article 8 paragraph 1 of the Brussels I bis Regulation and Section 7 CCP.
4.29.
As has been considered above under 4.20 and 4.22, claimants should institute legal proceedings with the exclusively competent Federal High Court or the High Court in the
sui generis
proceedings, to which the FREP Rules apply, if they were to institute legal proceedings in Nigeria. The court views the exclusive jurisdiction referred to under 4.20 and 4.22 for such proceedings before the Federal High Court or the High Court as a rule of territorial jurisdiction for instituting such proceedings in Nigeria. There is no written or unwritten Dutch international private-law rule that requires the conclusion to be drawn that this Nigerian rule of territorial jurisdiction stands in the way of the Dutch court having jurisdiction – as has been established above – as regards all defendants, taking cognizance of the claims based on a direct invocation of fundamental rights, as invoked by the claimants. Claimants can therefore also institute proceedings with the Dutch court for their claims directly based on the fundamental rights as stated in 4.5, in which they claim redress in the form of public apologies and a declaratory decision.
IV. the procedural issue regarding exhibits
4.30.
The claims in the procedural issue relate to two categories of documents from the discovery phase in the American proceedings: the intended trial exhibits and intended trial depositions (claim i) and ii)) and the CDST documents (claim iii)). At the hearing, claimants extended their claim to the unredacted version of the minutes of the meeting of the CMD of 7 November 1995, of which defendants submitted a redacted version to the proceedings.
4.31.
Claimants state that the requirements of Section 843a CCP have been met, whose subsection 1 determines that, at their own expense, those with a legitimate interest can claim perusal or a copy or excerpt of specific documents about a legal relationship to which he or his legal predecessors are party from those who have these documents at their disposal
15 Lungowe and Ors v. Vedanta resources Plc and Konkola Copper Mines Plc (2017) EWCA Civ 1528, (2017)
or in their keeping. There is an exception to the foregoing under subsection 4 of Section 843a CCP, namely if there are compelling reasons thereto as well as if it can reasonably be assumed that a proper process of justice is also ensured without issuance of the requested information. In that case, those who have the documents at their disposal or in their keeping is not obliged to comply with this claim.
the intended trial exhibits and intended trial depositions (claim i) and ii))
4.32.
These elements of the claim pertain to the intended trial exhibits and intended trial depositions designated as such by the plaintiffs in the discovery of the American proceedings
.
These documents have been produced by the companies belonging to the Shell Group that were party to the American proceedings, some of which have been marked as confidential by them. These documents had to be returned or destroyed within 30 days from termination of these proceedings under the confidentiality agreement between the claimants and the relevant Shell companies.
4.33.
[claimant 1] states that it cannot be justified that she, considering the fact that she is continuing her legal battle in the Netherlands, does not have access to a key part of the evidence gathered in the United States in her own case, in which the same facts and legal principles were at issue. Claimants argue that by refusing to issue these documents, defendants attempt to gain an edge in these proceedings, which is contrary to the substantive fact-finding which should be carried out in legal proceedings and to the principle of equality of arms
,
as enshrined in Article 6 ECHR, of which Section 843a CCP seeks to be an implementation. They wish to use the claimed documents for the further substantiation of their claims in these proceedings and possibly other claims submitted based on the same body of facts.
4.34.
Section 843a subsection 1 CCP requires that the documents whose perusal or copy is claimed are sufficiently determined, meaning that they do not have to be described individually. This requirement has been met if there is reasonable ground to assume that the relevant documents exist and the claim:
“relates to a subject that is accurately defined by means of a description of the file and the identification of the persons and organisations involved in the documents.”
16
This specification of the requirement of sufficient determination is intended not to unreasonably complicate the position of the person claiming perusal by requiring him to specify all documents and describe the individual documents. At the same time, the position of the person from whom perusal is claimed is not unreasonably damaged, as there is a sufficiently specific definition.
Although the requirements as set out in Section 843a CCP, ‘specific documents’ and ‘legitimate interest’, have been more broadly interpreted over the years, the intention of the legislator for incorporating these requirements in Section 843a CCP, namely the prevention of so-called fishing expeditions, applies in full.
4.35.
The claimed intended trial exhibits were previously issued in the American proceedings under the confidentiality agreement. Therefore, they exist and it is not in dispute that defendants still have access to them. The claimed categories of documents, the intended trial exhibits and the intended trial depositions, regard a large number of
16 Supreme Court 26 October 2012, ECLI:NL:HR:2012:BW9244, (X/Theodoor Gilissen Bankiers NV.)
documents of various natures and the content from the discovery in the American proceedings, which in the [claimant 1] case was in an early stage. Parties had indicated what they deemed relevant, but it had not been decided yet which documents would definitely be admitted. These documents pertain to a substantial body of facts. From claimants’ explanation it becomes clear that the claimants in the American proceedings wanted to submit the claims to the jury in three steps, namely:
the Nigerian regime was responsible for the extrajudicial execution
,
torture and battery
,
SPDC was co-responsible under the concepts of aiding and abetting, conspiring, joint venture responsibility and responsibility for ratifying,
the parent companies and [director of SPDC] were co-responsible for the actions of SPDC under the concepts of agency liability for SPDC, aiding and abetting SPDC, conspiring with SPDC.
Each of these three steps also cover a multitude of subsubjects.
In view of this, the claimed categories of documents, the intended trial exhibits and intended trial depositions from the discovery in the American proceedings are defined too broadly and do not meet the requirement of ‘specific documents’. Since that is the case, it can also not be assumed that the requirement of ‘legitimate interest’ has been met. Moreover, the claims in these proceedings were submitted from a different angle than the claims in the American proceedings. The circumstance that these documents were possibly relevant in the American proceedings, does not automatically mean that claimants have a legitimate interest in examining the documents in these proceedings, which have been instituted from a different angle. Finally, the fact that a large number of documents in a general sense might be relevant or interesting is insufficient to meet the requirement set in Section 843a subsection 1 CCP as regards sufficient legitimate interest.
4.36.
Since with respect to the intended trial exhibits and intended trial depositions the requirements of legitimate interest and specific documents from Section 843a subsection 1 CCP have not been met, claims i) and ii) must be rejected. This means that the court will not be able to discuss the other points of dispute, regarding the other requirements of Section 843a CCP subsection 1 and the existence of compelling reasons as stated in subsection 4 of this provision.
IV.2
the CDST documents (claim iii))
4.37.
The CDST documents claimed under iii) are the documents pertaining to the tribunal, which in the privilege log in the discovery of the American proceedings have been described as Communications from counsel regarding proceedings before the Ogoni Civil Disturbances Tribunal
.
These are (i) the trial reports, the reports of the attorneys of the office of [attorney 1] , who had been hired by SPDC to monitor the proceedings before the tribunal (see also below under VI.1.a), and (ii) documents which reported on the content of the trial reports within SPDC or wider within the Shell Group. After defendants had submitted the trial reports to the court, claimants reduced their claim to the non-submitted category ii) CDST documents designated in 3.3 under iii). The dispute is limited to these documents, which defendants have not issued.
4.38.
The argument of defendants that the CDST document did not need to be submitted in the American proceedings is unsuccessful. The determining factor is if they, under Dutch law are obliged to issue a copy of these documents pursuant to Section 843a CCP.
Defendants contest that claimants have a legitimate interest in obtaining a copy of these documents, because the source material of the non-submitted internal reports – the trial reports – has been issued.
4.39.
Since claimants accuse defendants of involvement and interference in the proceedings against their husbands, they have a legitimate interest in obtaining a copy of the internal documents, which are used to report on the content of the since submitted trial reports within SPDC or wider within the Shell Group
.
The other requirements of Section 843a subsection 1 CCP have also been met: the documents are sufficiently determined, and the defendants have them.
4.40.
Defendants subsequently invoke the confidential nature of the documents, which according to defendants provides a compelling reason not to issue a copy of the remaining CDST documents.
4.41.
A party might find a compelling reason – within the meaning of Section 843a CCP – to be upholding the confidentiality of its internal decision and thought process, including the role in this process of external advisors, if any. Whether or not in a concrete case such an invoked compelling reason exists which must lead to a rejection of the claim or application as regards that confidential information, the court must take a decision, stating reasons, after weighing all interests involved. It is for the party invoking the existence of such a compelling reason to assert and – if needed – argue convincingly for which information it is invoking the existence of its interest in confidentiality and, if required, what that interest is. The statement must be so specific that the court can form an opinion on the justification of the invocation.17
4.42.
In general terms defendants describe that the remaining CDST documents contain business confidential information. They therefore have not met the above-described requirement of a concrete and specific statement based on which the court can form an opinion on the justification of the invocation of the existence of compelling reasons within the meaning of Section 843a subsection 4 CCP.
4.43.
This means that defendants must issue the CDST documents stated in claim iii) to claimants, within the claimed term of 21 days. The claimed penalty is awarded as being insufficiently disputed. The internal nature of the documents compels the court to attach the condition that claimants only use these documents for these proceedings, pursuant to Section 28 CCP. Claimants are also prohibited from issuing the documents to third parties or disclose anything about the content of these documents to third parties.
IV.3
the minutes of the meeting of 7 November 1995
4.44.
Finally, at the hearing claimants have extended their claim in the procedural issue to include the non-redacted minutes of the meeting of the CMD of 7 November 1995, of which defendants submitted a redacted version. The court understands that claimants also wish to receive an excerpt of the redacted passages, in so far as they related to the tribunal and/or the Ogoni issue.
17 Cf. Supreme Court 26 October 2018, ECLI:NL:HR:2018:1985
4.45.
At the hearing defendants explained that the redacted passages contain information which did not need to be submitted in the American proceedings. Defendants believe that this constitutes a compelling reason not to issue to entire document. With this general explanation, defendants have failed to comply with the requirement – as described above in 4.41 – of a concrete and specific statement based on which the court can form an opinion on the justification of the invocation of the existence of compelling reasons, within the meaning of Section 843a subsection 4 CCP. Defendants must issue an unredacted version of the minutes of the CMD meeting of 7 November 1995, in so far as the unredacted passages pertain to the tribunal and/or the Ogoni issue. The court attaches the same conditions as to the issuance of the CDST documents (see under 4.43).
4.46.
Since parties have both been unsuccessful on certain points, the costs of the proceedings in the procedural issue are compensated.
V. the invocation of limitation by defendants
4.47.
Defendants invoke limitation. Parties rightfully assume that this point of dispute is governed by Nigerian law, the law that governs the claim (see Book 10 Section 14 Dutch Civil Code (BW)).
4.48.
Defendants base their invocation of limitation on Order I (3) of the FREP Rules 1979, from which they believe follows that the claims of claimants expired on 9 November 1996. Defendants argue that an exception to the limitation period, as provided for in the FREP Rules 1979, is not relevant here. They also argue that, in so far as claimants base their claims on tort, their claims have lapsed.
4.49.
Claimants initially took the standpoint that the limitation issue was governed by Order III of the FREP Rules 2009. At the appearance claimants changed their standpoint to the standpoint that the FREP Rules do not apply at all to their claims, which are directly based on the NGW (1979) and the ACHPR. They assert that their claims are not subject to limitation, because neither the NGW (1979) nor the ACHPR contain a facility for limitation.
4.50.
Since claimants have brought legal action against defendants in the Netherlands, the proceedings will be held in accordance with the rules of Dutch civil procedural law. However, this does not mean that the FREP Rules cannot have any relevancy for the limitation defence as pleaded by defendants, as claimants argue. Because it does not alter the fact that claimants, since they are not initially basing their claims on tort, would have had to resort to the
sui generis
proceedings in Nigeria, to which the FREP Rules apply (see under 4.20 and 4.22). If the FREP Rules contain a provision which can be interpreted as a limitation facility – as envisioned by defendants – that provision from the FREP Rules becomes relevant to the defence pleaded by defendants in these proceedings that the claims of claimants have lapsed.
4.51.
From the literature and jurisprudence consulted by the court regarding Order I (3) from the FREP Rules 1979 and Order III from the FREP Rules 2009 invoked by defendants it follows that the qualification of the provision therein is or has been subject to discussion – as a possibly purely procedural condition – and that the
question has been raised whether or not the Chief Justice went beyond the scope of his authority to establish procedural rules. Be that as it may, it is accepted in Nigerian jurisprudence that there is a temporal limitation to the right to institute proceedings in the sui generis proceedings to which the FREP Rules 1979 apply. For instance, in the case of N.D.I.C. v. O’Silvawax Intl. Ltd, in which the claim of 8 November 1996 pertained to events that had occurred on 24 July1995, the following was considered:
“A cause of action accrues on a date when a breach or any event would warrant a person who is adversely affected by the act of another to seek redress in court. A legal right to enforce an action is not a perpetual right but a right generally limited by statute. A cause of action will be statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation Law or Act has elapsed. If the date on the writ is beyond the period allowed by the limitation law then the action is statute barred.
(…)
In this appeal, the time between the date the cause of action accrued and when the action was filed going by the writ, falls outside the limitation period allowed by the (FREP-Rules)
[1979, addition by the court]
thereby making this action invalid and incompetent. Where the cause of action of the plaintiff is statute-barred, it affects the legal competence or jurisdiction of the court.”
18
4.52.
In doing so, Order I rule (1) of the FREP Rules 1979 – regardless of the question whether or not the FREP Rules should be qualified as a purely procedural facility – is applied as a limitation facility in Nigerian law. Jurisprudence also refers to a statute barred action. The limitation defence pleaded by defendants thereby compels an investigation of the question whether the claims of claimants were submitted too late in the Nigerian legal practice, to which the FREP Rules 2009 apply, pursuant to Order I rule (1) of the FREP Rules 1979.
4.53.
Following the entry into force of the FREP Rules 2009, Order I rule (1) of the FREP Rules 1979 were still applied in proceedings in which the claim was submitted before the entry into force of the FREP Rules 2009. This happened, for instance, in the judgment of 6 March 2015, Denca Services Ltd. v. Leo Oleka and sons, Nigeria Custom Services, in which a claim was submitted on 5 April 2007 regarding events that had taken place on 8 April 2005.19 In the judgment also pronounced after 1 December 2009 in the case of The Gov. of Borno State et al. v. Alh. Ngabura Bukar Gadangari regarding a claim submitted on 22 January 2008 pertaining to events that had taken place on 17 February 2004, the following was considered:20
“(…) to enforce infringement of any of the fundamental rights enshrined in Chapter IV of de Constitution of the Federal Republic of Nigeria , 1979 if not made within twelve months from the date of the happening of the event or act complained of will not confer jurisdiction on the lower court to entertain and grant relief to the aggrieved person.
(…)
Order 1 rule 3 (1) of the (FREP-Rules) 1979 is a limitation rule by which an application for leave to enforce the fundamental right of any person is to be commenced “within twelve months from the date of the happening of the event, matter, or act complained of…”(…)
Time is of the essence under limitation statutes or rules.”
18 (2006) 7 NWLR 588
19 Court of Appeal (Lagos Division), Denca Services Ltd. v. Leo Oleka and sons, Nigeria Custom Services (2015) 3 CLRN 33
20 Court of Appeal (Jos Division), The Gov. of Borno State et al. v. Alh. Ngabura Bukar Gadangari, (2016) NWLR 396
4.54.
In this jurisprudence, defendants see confirmation of their standpoint that a claim which has lapsed under the FREP Rules (1979) cannot be viewed as submitted in a timely fashion following the entry into force of the FREP Rules 2009. This jurisprudence however relates to claims submitted before the introduction of the FREP Rules 2009. In those cases, claims submitted under the FREP Rules 1979 were checked against the time period from Order I (3) FREP Rules 1979.
4.55.
On 9 March 2018 the Court of Appeal in the Akure Judicial Division, Holden at Akure passed a ruling in the case of Fam-Lab Nigeria Limited & Anor v. Jahmarco Nigeria Limited & Anor21 regarding events that had taken place before the entry into force of the FREP Rules 2009. Unlike the claims in the cases discussed above, the claim in this case was submitted after the entry into force of the FREP Rules 2009. Under Order I rule (1) of the FREP Rules 1979 – that applied during the events to which the claim pertained – this claim was submitted much too late. However, in this ruling the Court of Appeal in the Akure Judicial Division considered that the claim had to be checked against the FREP Rules 2009:22
“To begin with, the 2009 FREPR, in Order XV Rule 1 thereof, repealed the 1979 FREPR. In other words, the former abrogated the life span of the latter. By the revocation, the 2009 FREPR put an end to the 1979 FREPR and same ceased to be in existence (…).23 In the eyes of the law, the 1979 FREPR "is regarded in the absence of any provision to the contrary, as having never existed, except as to matters or transaction past and closed...."24 In Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580 at 636 Tobi, JSC, graphically weaved the dismal effect of repeal of legislation in these immaculate words: "A repealed law no more has legal life, as it does not exist any longer; it cannot be cited as if it still exists. If it must be cited at all, it must be cited as a repealed law, which has no life to influence an argument. A repealed law cannot be basis for any comparison with any existing law...
Nevertheless, the appellants will not reap from the above hallowed principle of law. The reasons are not far-fetched. Firstly, the law applicable to jurisdiction of a Court is that in existence when the action is instituted and heard, not that in force when the cause of action ensued.25 It flows from this agelong rule, that the 2009 FREPR, which is now operational during the hearing of the appeal, is the applicable subsidiary enactment. Secondly, the 1979 FREPR, on which they anchored their case, falls within the wide domain of adjectival law. In the view of the law, procedural law "relates to practice and procedure, that is, rules according to which substantive law is administered" while "substantive law is concerned with the creation, definition, limitation of obligation".26 Both the 1979 and 2009 FREPR trace their paternity to Section 46 of the Constitution, as amended. They are procedural avenues usable to prosecute and effectuate fundamental rights of the citizens as ingrained in Section 33-44 of the Constitution, as amended.27 It is long established principle of law, that the procedural law in existence at the time a case is heard, whether at the trial or appellate level, applies to the determination of it. It is of no moment if the procedural law came into being/force before or
21 (2018) LPELR-44730 (CA);
22 for the sake of readability, most references to jurisprudence are contained in the following footnotes (in italics)
23 see Adesanoye v. Adewole (2006) 14 NWLR (Pt. 1000) 242.
24 see Ugwu v. Ararume (2007) NWLR (Pt. 1048) at 509 per Muhammed, JSC; Leadways Ass. Co. Ltd. v. J.U.C. Ltd. (2016) 15 NWLR (Pt. 1536) 439) Abubakar v. B.O.L.A.P. Ltd. (2007) 18 NWLR (Pt. 1066) 319/(2007) 147
LRCN 109
25
see Ada v. NYSC (2004) 13 NWLR (Pt. 891) 639; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 60; Olutola v.
Unilorin (2004) 18 NWLR (Pt. 905) 416; SPDCN Ltd. v. Anaro (supra).
26
see Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536 at 575, per Onu, JSC; Chigbu v. Tonimas (Nig) Ltd. (2006) 9 NWLR (Pt. 984) 189.
27
see Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Lafia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR
(Pt. 1328) 94
after an appeal has been filed.28 The wisdom behind the rule of interpretation is that subsidiary legislations do not donate vested rights to the citizenry. Altogether, it is the operative 2009 FREPR, which has dethroned the 1979 FREPR that made provision for limitation of action, that is applicable to the appeal. Admirably, the limitation clause has been banished by the 2009 FREPR. This is a serious coup de grace on the appellants standpoint on the stubborn issue."
4.56.
In the rulings discussed above, all of which were passed by Courts of Appeal in Nigeria, all claims were checked against the FREP Rules that applied when they were submitted. The approach in the ruling referred to in 4.55 is also consistent with the overriding objectives referred to in 4.18 of the FREP Rules 2009, which seek to give a broad application to the protection of fundamental rights. The court sees in this Nigerian jurisprudence and in the overriding objectives of the FREP Rules 2009 reason to seek a link with the approach in the ruling referred to in 4.55. The court will therefore check the timeliness of the claim against the FREP Rules 2009 such as they applied at the time claimants instituted legal proceedings against defendants in these proceedings.
4.57.
Considering Order III of the FREP Rules, the claims were submitted in time. Therefore, the defendants’ limitation defence does not succeed.
VI. discussion of the accusations on the merits
4.58.
Since the limitation defence does not succeed, the court will now address the accusations on the merits. The order for the defendants to issue documents to claimants, given in the procedural issue, does not preclude the assessment of the accusations at this time. The court will assess the substance of claimants’ accusations based on the parties’ standpoints and the documents submitted so far. If and in so far as the documents to be issued in the procedural issue give cause for claimants to furnish new facts or in any other way give cause for a further position, claimants should do this as soon as possible.
4.59.
Claimants assert that defendants are accessory to the violations of their husbands’ and their own fundamental rights by the Nigerian regime, as described in chapter 4 of the summons. Chapter 4 of the summons is entitled “
the Ogoni 9- sham trial
” and pertains to the arrest of claimants’ husbands, the establishment of the Ogoni Disturbances Tribunal and the further course of affairs during the proceedings up to and including the execution of the death sentences. With this reference to chapter 4 of the summons, claimants put the alleged violations of the fundamental rights during the detention, prosecution and execution of their husbands, as stated in 4.5, centre stage as the basis of their claims. The accusations stated in 3.2 under 4 through to 7 pertain to this.
4.60.
The accusations as formulated in 3.2 under 1 through to 3 – which in brief entail that Shell operated in tandem with the Nigerian regime by requesting to intervene in the protests of the local population, which in turn formed the foundation for the excessive violence of the regime; facilitated Operation Restore Order in Ogoniland and operated in tandem with the Nigerian regime – relate to the
28
see Rossek v. ACB Ltd. (1993) 218 NWLR (Pt. 312) 382/(1993) 10 SCNJ 20; Owata v. Anyigor (1993) 2 SCNJ
1/(1993) 2 NWLR (Pt. 276) 380; Aremo II v. Adekanye (supra);Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271)
467; Iwunze v. FRN (2014) 6 NWLR (Pt. 1404) 580.
events in Ogoniland in the period from 1990 to the arrest of claimants’ husbands in 1994. These accusations do not concretely pertain to claimants and their husbands, but rather form part of the background as described by claimants and the context of the proceedings and seek to argue that SPDC and the Nigerian regime were mutually dependent on each other and maintained close contact. These accusations do not directly pertain to claimants and/or their husbands. In that which is stated by claimants about these accusations the court sees no concrete indication of any direct link between these accusations and the alleged violation of the fundamental rights of claimants’ husbands and claimants personally during the detention, prosecution and execution of their husbands. Therefore, the court will not discuss these accusations in any more detail.
4.61.
The accusations stated in 3.2 under 4 through to 7 do pertain to the detention, prosecution and execution of claimants’ husbands. Claimants in particular accuse defendants of the following, in which they refer to defendants jointly as ‘Shell’, as in the accusations in 3.2 under 1 through to 3:
1. Shell was involved in the proceedings and influenced the outcome by:
a. holding a watching brief, supporting the prosecution and maintaining informal contact with the judges of the tribunal;
b. bribing witnesses,
c. the role of [the commander] during the proceedings.
2. Shell offered to influence the outcome of the proceedings under the condition that MOSOP ceased its protest against Shell.
3. Shell wrongfully not used its influence in public and otherwise to induce the Nigerian government to hold a fair trial and to exercise clemency. Should could and should have done this by:
a. addressing the importance of compliance with human rights in its contacts with the Nigerian authorities,
b. setting conditions to a further cooperation with the Nigerian authorities,
c. expressing its opinion on the Ogoni’s right to protest,
d. publicly and otherwise expressing its opinion on the need for a fair trial and to plead for clemency, and
e. if necessary, threatening withdrawal from Nigeria.
4.62.
In VI.1 through to VI.3 the court will assess these accusations. The court will also further establish the facts relevant to these accusations. Parties assume that the obligation to furnish facts and burden of proof lie with claimants. The Nigerian Supreme Court considered as follows regarding the burden of proof with respect to an imminent or actual violation of fundamental rights in the case Okafor v. Lagos State Govt.29:
“The law remains that he who asserts must prove. So the appellant has the onus of proving by credible affidavit evidence that her fundamental rights were breached.”
The obligation to furnish facts and the burden of proof also lie with claimants under Dutch procedural law – in so far as applicable to the division of the burden of proof.
29 (2017) 4 NWLR 404
VI.1 involvement in and influencing of the proceedings before the tribunal
4.63.
This accusation relates to the watching brief that was held, support to the prosecution and informal contacts with the judges of the tribunal (VI.1.a), bribing witnesses (VI.1.b) and the role of [the commander] during the proceedings (VI.1.c).
VI.1.a
holding a watching brief, support to the prosecution and informal contacts with the judges of the tribunal
4.64.
Claimants assert that defendants’ involvement in the proceedings first and foremost is apparent from the fact that SPDC sent an attorney to the proceedings, who meticulously kept SPDC informed about the proceedings and who by means of a so-called watching brief supported the position of the prosecution. They allege that an attorney who holds a watching brief generally is in close cooperation with the prosecution.
4.65.
It is also an established fact that SPDC ordered [attorney 1] , who had previously acted as counsel for SPDC, to hold a watching brief for SPDC during the proceedings. According to the explanation of the defendants, it was not clear for SPDC in advance – in view of the tumultuous developments in Ogoniland, where SPDC held numerous installations – on what the tribunal would adjudicate. SPDC wanted first-hand information on the course of the events of the proceedings, whether accusations were made against SPDC and if so, about what. Defendants also refer to the significant international interest in the proceedings and argue that it is not surprising that SPDC, involved in the campaign by [E] to draw attention to the Ogoni case.
4.66.
A watching brief is a legal concept in Nigerian customary law in criminal cases. Hiring an attorney who will acts in that capacity is a way for a third party with an interest to stay informed about the proceedings in order to secure its interests. The party holding the watching brief observes the proceedings on behalf of his client and may work with the prosecution – with the aim of securing his client’s interests – for instance by giving information to the prosecution. However, the latter is not a rule. The party holding a watching brief
may
work with the prosecution and/or support it, but it is
not a given
. A watching brief can also be used purely for the purposes of observation and reporting back.
4.67.
Since a watching brief can take different forms, the question is what the assignment of SPDC to [attorney 1] and his attorneys was and what they actually did for SPDC at the hearings of the tribunal.
4.68.
The instructions of the legal advisor of SPDC, [legal advisor of SPDC] , to [attorney 1] dated 1 December 1994 were as follows:
“As Shell has various interests in the Ogoni area which were adversely affected by the disturbances, we consider it necessary to brief a lawyer to follow up the proceedings in case Shell would be expected to testify before the panel.
We therefore request you to hold a watching brief on behalf of Shell during the proceedings. We expect you to:
attend the sittings of the panel on a regular basis
report the outcome of the proceedings of each sitting to Shell
in case Shell is required to testify before the panel, document and conduct the presentation of Shell’s case to the panel
persue and obtain copy of the panel’s final report, recommendation or judgment for Shell’s records.
4.69.
The transcript of the tribunal hearing of 6 February 1995 states that [the colleague] , a colleague of [attorney 1] , informed the tribunal as follows:
“My Lord, I am holding brief for Chief [attorney 1] . My Lord, we have a watch brief for Shell Development Company of Nigeria.”
The prosecution objected to the admission of the watching brief for SPDC:
“My Lord, no staff of the Shell Development Company is involved in this case. (…)
I do not think Shell Development Company is involved in this matter. My Lord should not take notice of his appearance
.”
[the colleague] subsequently repeated that his position was as follows: “
holding brief for Chief [attorney 1] who has a watching brief on behalf of Shell Development Company”
and also asked: “
I would like to be on record, Sir.”,
to which the president of the tribunal responded: “
I have already written that
”.
The court deduces from this that the tribunal had admitted [attorney 1] on the first hearing day as holding a watching brief for SPDC.
4.70.
Defendants argue that SPDC at that point did not know if the tribunal was an investigative tribunal or a prosecuting tribunal. According to defendants, up until the first day of the hearing SPDC had believed that the tribunal would investigate the disturbances in Ogoniland in general. Claimants find this explanation implausible. However, what SPDC did or did not know about the tribunal can be left undiscussed, since it has been established that [attorney 1] only held the formal position as attorney with a watching brief at the tribunal for one day.
4.71.
In a letter dated 8 February 1995 to SPDC, [attorney 1] informed SPDC that the tribunal was dealing with the murder of the Ogoni leaders and:
“It is clear therefore that suspicions may be raised as to what interests SHELL has in the matter as to necessitate its representation by Counsel, albeit holding a Watching Brief.
We are already on record, but it is our humble view that we can clarify the situation to the Tribunal and to the public, to the effect that SHELL was under the impression that the work of the Tribunal was to inquire into the
OGONI-LAND Disturbances
, and not as revealed by the Information, to try the Accused Persons for the offences of
MURDER.
Thereafter, we would request to be allowed to maintain a passive presence at the Tribunal, like any other interested member of the public.”
4.72.
[legal advisor of SPDC] responded to this on 13 February 1995 that SPDC agreed with this proposal and asked [attorney 1] to clarify his position himself on the next hearing day. The transcript of the tribunal hearing dated 21 February 1995 states that [attorney 1] , who attended the hearing in person, informed the tribunal as follows:
“On the 6th February, 1995, we announced that we were representing the interest of Shell Development Company, holding a watching brief. Having obtained the records of the proceedings, we have observed that it is not a Tribunal of Inquiry but a trial for the offence of murder and we have advised our client in that light that there is no Shell employee accused, there is no Shell employee a victim or a witness (…) and so Sir, Shell Development Company is not particularly participating
.” After the president of the tribunal asked [attorney 1] whether he was certain, considering the suspicion uttered by the defence that day about bribing of witnesses by SPDC (see also below under VI.1.b), [attorney 1] responded as follows:
“Perhaps, when it is being investigated, our client will have an opportunity to defend themselves but that matter
[the alleged bribing of witnesses by SPDC, addition by the court]
is not yet on trial.”
4.73.
Attorneys of [attorney 1] ’s office subsequently attended the proceedings and reported back to SPDC about each hearing day in the trial reports, submitted to the court by defendants. According to defendants, these attorneys ceased to play an active role in the proceedings from the second day, but [attorney 1] retained a watching brief in case it would be legally necessary if allegations were made against SPDC. Defendants argue that [attorney 1] did not actually fulfil that role.
4.74.
There are no concrete indications that [attorney 1] ’s colleagues who attended the proceedings did something other than – in accordance with the assignment of SPDC – to observe the proceedings and report back to SPDC. From the second day of the proceedings, they ceased to fulfil the formal position of attorney with a watching brief. Both the original assignment and the adjusted assignment after the first day of the hearing of SPDC entailed that the proceedings needed to be observed and that information needed to be collected for SPDC. The original assignment also entailed that any appearance of SPDC before the tribunal had to be prepared and supported. Cooperation with or support to the prosecution did not form part of the assignment. The reports of [attorney 1] ’s colleagues to SPDC also do not make mention of any cooperation or contacts with the prosecution.
4.75.
In support of the alleged cooperation with the prosecution, claimants also refer to the written statements of the acquitted defendant [F ] 30 and of two attorneys of other defendants, [attorney 3] 31 and [attorney 4] .32 These state that the attorneys of [attorney 1] ’s office always sat in the front row next to the prosecution and exchanged information with him during the hearings.
4.76.
The written statement by [attorney 1] ,33 submitted to the proceedings by defendants, state that the tribunal held hearings in a space/room not equipped as court room. The written statement by [attorney 1] also states that when he attended the hearing of 21 February 1995, [attorney 1] sat in the front row together with the prosecution and with [attorney 2] , the attorney of [E] , [F ] and [G] . According to [attorney 1] ’s statement, they sat in the front row due to their seniority and that the other attorneys were sitting behind them.
4.77.
[the representative] , however, writes this:
“The tribunal sits in a large room in the House of Assembly in Port Harcourt. Its members sit at one end of the room with three soldiers behind them. (…) Facing the members of the tribunal is the dock; the prosecution sit to one side and the defence to the other.”
34
It is unclear whether or not the attorneys of [attorney 1] ’s office were sitting next to the prosecution. But this can also be left undiscussed. Defendants do not contest that [attorney 1] and his colleagues possibly talked to the prosecution at the hearings of the tribunal. That in itself is no reason to assume that they worked with him or supported him. Incidentally, there is no
30 Statement dated 2 May 2017
31 Statement dated 15 June 2017
32 Statement dated 16 June 2017
33 Statement dated 19 February 2018
34 [the representative] , p 33, marginal number 11.5
concrete lead to assume this. This also does not follow from the written statements cited by claimants, which only in general terms refer to an exchange of information. From the transcript of the hearing dated 6 February1995 it also follows that the prosecution objected to the admission of the watching brief of SPDC (see under 4.69). That is a contraindication for the cooperation between [attorney 1] and his colleagues and the prosecution, as suggested by claimants. After all, the prosecution made it known that he believed SPDC had no role in the proceedings and that he apparently did not require assistance from SPDC. Another contraindication is the lack of any clue for the accuracy of this assertion of claimants in the reports of the independent organisations and persons who monitored the proceedings, such as [the representative] , Human Rights Watch and Amnesty International (see under 2.31, 2.32 and 2.33). They were attended parts of or the entire proceedings and meticulously monitored the course of the proceedings. They also spoke with many parties involved at that time. Their reports contain comments about the independence of the tribunal and the fairness of the proceedings, such as on the alleged bribing of witnesses and the role of [the commander] (see for instance [the representative] , under 2.31), which will be discussed below. The Human Rights Watch report contains a highly critical chapter on the role of SPDC in Nigeria and the a-political course of defendants (
The Role and Responsibilities of Royal Dutch/Shell
). However, these reports fail to mention anything about cooperation with or support to the prosecution by SPDC or its attorneys. These reports therefore do not contain leads to support the assertion that SPDC cooperated with the prosecution or supported him or provided information to him.
4.78.
In light of the foregoing, the accusation that defendants tried to influence the proceedings by holding a watching brief and tried to support the prosecution cannot succeed due to the lack of a factual basis. Therefore, the court will not assess the provision of evidence in the form of hearing witnesses, as offered by claimants.
4.79.
A factual basis is also lacking for the alleged influencing by informal contacts with the judges of the tribunal in the form of organising a welcome dinner and receiving judges in the senior staff club of SPDC. Claimants base these informal contacts on the written statement of attorney [attorney 4] dated 16 June 2017, which states:
“Even though Shell was formally an interested party in the proceedings, it organized a dinner for the judges of the Civil Disturbances Special Tribunal (…).”
According to this statement, a photo of this dinner was also published in a newspaper. Claimants also refer to the statements of attorney [attorney 3] dated 15 June 2017 and attorney [attorney 5] dated 2 May 2017. These statements say that the judges of the tribunal were accompanied to the residential area of SPDC on Aba Road after a hearing day, and stayed and enjoyed the senior staff club of SPDC. The written statements indicate that this was seen by people hired by the attorneys to follow the judges.
4.80.
Defendants vehemently contest the alleged informal contacts. They argue that they have not seen any evidence of the alleged dinner, which they state never took place. They indicate that the senior staff club of SPDC was accessible to many people and that [E] also belonged to this club. Membership was not restricted to SPDC employees. Defendants also indicate that Nigeria is a society of rumours and that at the time of the proceedings, the rumour mill was set in motion with unsubstantiated claims. Defendants emphasise that these are events that took place a long time ago and find it peculiar that it was not until 2017 that statements were made about the alleged informal contacts for the first time.
4.81.
From the written statements referred to in 4.79 it follows that the alleged informal contacts should have been known from the outset, because they had allegedly been reported on in the newspaper and because the attorneys were aware of these contacts through the informants hired by them. It is remarkable that not a single lead for these informal contacts can be found in the reports of the observers and independent organisations, who at the time monitored the proceedings and spoke with the parties involved and were critical of the independence of the tribunal. Furthermore, the news article on which [attorney 4] has apparently based his claim has never been found. Apart from that, that which has been asserted about the informal contacts – even if they had taken place – are insufficient to assume that defendants influenced the course of the proceedings through these contacts. The court has also taken account of the fact that claimants did not contest the explanation of defendants that the senior staff club of SPDC was accessible to many people and that membership was not restricted to SPDC employees; [E] was also a member. There is no room for a further provision of evidence in the form of hearing witnesses, as offered by claimants.
4.82.
In conclusion, the accusation regarding holding a watching brief, supporting the prosecution and informal contacts with the judges of the tribunal is unsuccessful.
VI.1.b
bribing of witnesses
4.83.
Claimants allege that defendants influenced the outcome of the proceeding by bribing witnesses to make incriminating statements. According to witnesses, false statements of these bribed witnesses were decisive for the conviction of the Ogoni 9 and these statements played a role in the arrest and detention of their husbands.
4.84.
In order for this accusation to succeed, it is required first and foremost that the alleged involvement of SPDC in bribing witnesses is established as an incontrovertible fact. Secondly, it is required to establish as an incontrovertible fact that the statements of these bribed witnesses played a role in the conviction and/or arrest and detention of claimants’ husbands.
VI1.b.i involvement of SDPC
4.85.
Claimants base the alleged involvement of SPDC in bribing witnesses on the affidavit of [witness 1] produced by claimants and on the witness statement of [witness 2] in the [claimant 1] proceedings.
4.86.
It is an established fact that [witness 1] and [witness 2] , who had made incriminating statements about [E] and others before the police, made a supplementary affidavit at the offices of one of the defendants’ attorneys on 16 and 27 February 1995. In the affidavits they stated – in brief – that they and several other witnesses had been pressured by the main witnesses for the prosecution, [witness 3] ( [witness 3] ) and [witness 4] ( [witness 4] ), to sign a false, incriminating statement against [E] , [F ] and MOSOP officials. [witness 1] identifies other, also bribed, witnesses: [witness 5] ( [witness 5] ), [witness 6] ( [witness 6] ), [witness 7] ( [witness 7] ), [witness 8] ( [witness 8] ), [witness 9] ( [witness 9] ) and [witness 10] ( [witness 10] ).
4.87.
The affidavit of [witness 1] , a musician, states the following – in so far as relevant here:
“I was afraid so I made a statement to them, but they refused my statement and ask me to copy a statement already made by them. Under duress I made the writing of their statements. (…) At this time I was promise that after the case in Court I will be given a house any place in the Country, a Contract from Shell and OMPADEC and some amount of money to buy my musical instrument. (…) On another date of meeting in [leader 1] ’s House, representative from Shell, OMPADEC, security agents, Govt officials and the [leader 1] , [leader 2] and [leader 3] ’s family were present and they all agreed. The family gave some money say that the money came from the Govt. and Shell. my case I was given N 30,000 from Shell and Govt.”
4.88.
The affidavit of [witness 2] does not form part of the case documents. Claimants did submit his statement in the [claimant 1] proceedings to the proceedings, in which [witness 2] made a statement about a meeting in the government house in Rivers State, also attended by the witnesses [witness 5] , [witness 7] , [witness 8] , [witness 10] , [witness 6] and [witness 1] . [witness 2] stated the following, among other things:
“(...) this was like a table like this, we sit down like this and he said first of all he came in when we all came in, I said the first time you came in here, you introduce yourself to me, I introduce myself to you, so he stand up and said, this is governor of river state, this is commissioner police, this is representative of Shell, and this is [chairman] chairman, and many other peoples like that? I don’t know most of their names again.
Q. Where did this meeting that you’re referring to take place?
A. It was government house.
Q. In the city?
A. Rivers state, the capital.
Q. Approximately when did this meeting take place?
A. Within June, July, 1994. (...)
Q. You refer to someone as a Shell representative. Do you know the name of this person?
A. He said this is [attorney 1] , Shell’s lawyer, that’s what he said.
Q. Had you ever seen mr. [attorney 1] before?
A. No. That was the first time I saw him.
Q. Was there anyone else at the meeting that you understood to be representing what you refer to as Shell in any way?
A. He was the only person over there.
[witness 2] then stated that the witnesses had to put their statement in writing. They could not leave and stayed there a couple of days. At a certain point, “prepared statements” were brought in. [witness 2] stated the following about that:
“Then this is the very time when they bring the statement, prepared statement, that is the time they brought money for us.
(...)
Q. I’m just asking if you recall were there any other people there? Was there anyone, for example, from – that you believed to be from SPDC?
A. That’s what I want to explain to you. Yeah. I have somebody who was there. This is a time he came in, he came in with money. Sign this statement that we involve [E] and the rest and they give you the money and [witness 5] , he was very, very intelligent and he asked [witness 3] , where is this money from? He said, this money come from Shell, government of Nigeria. This is why the chairman, the lawyer representative is here.
Q. Who told you to sign the statement?
A. [witness 3] .”
4.89.
From their reference to the affidavit of [witness 1] and the statement of [witness 2] , as further explained by claimants during the appearance of the parties, it follows that claimants allege that SPDC had been involved in bribing the witnesses [witness 1] , [witness 2] , [witness 5] , [witness 6] , [witness 7] , [witness 8] , [witness 9] and [witness 10] because (a) [attorney 1] was present on orders of SPDC and/or a representative from SPDC
was present at the meeting or meetings where the witnesses had to write/sign prepared statements, (b) SPDC made a financial contribution to paying off these witnesses and/or (c) promised them a job with SPDC.
4.90.
Defendants vehemently contest the alleged involvement of SPDC in the bribing of witnesses. They refer to the written statement of [attorney 1] of 19 February 2018, in which he denies any and all involvement in the alleged bribing of witnesses. They also refer to the fact that [attorney 1] looks very different than the description of [attorney 1] by [witness 2] in his statement in the [claimant 1] proceedings. Considering this defendants believe the statement of [witness 2] is not reliable.
4.91.
The alleged bribing of witnesses is mentioned in the reports of [the representative] and Human Rights Watch (see under 2.31 and 2.32). At the time there was already the suspicion of SPDC involvement in this. In the Human Rights Watch report, for instance, it is stated that at the time these accusations of bribery were denied by both the prosecution and SPDC.35 This suspicion was also discussed during the proceedings, when the president asked [attorney 1] in reference to this whether he was certain that he no longer wished to hold a watching brief for SPDC (see under 4.69). The transcript of the hearing of 21 February 1995 also states that [attorney 2] , the attorney of [E] , [F ] and [G] , brought the affidavits of [witness 1] and [witness 2] up for discussion and asked if these affidavits, which had also been printed in the newspaper
The Masses
, could be submitted to the proceedings. The president of the tribunal noted the following about this:
“This case is not going to be tried on affidavit; the case is going to be based on evidence before the Tribunal. Even the statements given by the accused persons, they still have to give oral evidence. It is not going to be judged on Affidavits.”
The application for submitting additional statements was rejected as premature:
“The trial will soon be on and the accused persons will have the opportunity to challenge the veracity of his evidence and render any document they may wish. This observation as far as the Tribunal is concerned is premature.”
The affidavits were once again brought up for discussion by the attorney of [A] , [attorney 6] , according to the transcript of the hearing of 27 February 1995. In the context of his application for bail for his client, he drew attention to the affidavit of [witness 1] . He read out the representation of the affidavit from the newspaper and argued as follows in support of his application for bail for [A] :
“In summary, I submit that prima facie, the quality of the evidence is poor. (…) The affidavit of [witness 1] is a very serious issue which must not be taken lightly by this Tribunal.”
VI.1.b.ii
use of statements in the convictions
4.92.
From the remarks of the president of the tribunal (see under 4.91) and from the Evidence Act 1990 the court deduces that the incriminating written witness statements and the affidavits of [witness 1] and [witness 2] in principle cannot contribute to the evidence in the proceedings. Contribution to the evidence in the proceedings requires the witnesses to be heard in person before the tribunal. [witness 1] and [witness 2] were not heard as witnesses before the tribunal; according to the explanation of claimants unchallenged by defendants
35 See p. 28 of the Human Rights Watch report, with reference (in note 119) to an interview of Human Rights Watch with Chief Philip Umeadi, the prosecutor, on 23 February 1995 and a letter dated 6 March 1995 from [..] , SPDC Acting Managing Director to the editor in chief of the newspaper
The Masses
, [… 1] . Remark of court: these documents do not form part of the case documents.
this was because they had taken shelter out of fear for repercussions. It must therefore be assumed that their incriminating statements did not play a role in the conviction of claimants’ husbands.
4.93.
From the trial reports issued to SPDC by [attorney 1] and his colleagues it follows that on 16 May 1995 [witness 3] was questioned as a witness by the tribunal. During the cross-examination he denied that Shell, the Rivers State government and he personally had paid [witness 2] N 30,000. From these trial reports it also follows that the bribed witnesses identified by [witness 1] and [witness 2] , namely [witness 5] , [witness 6] and [witness 10] , had been heard as prosecution witnesses before the tribunal. However, it is unclear what they stated and if and to what extent their statements contributed to the convictions of claimants’ husbands.
VI.1.b.iii
use of statements in the arrest and detention
4.94.
From the statement of [A] ’s attorney, cited in 4.91, the court deduces that the written statements of the bribed witnesses identified by [witness 1] and [witness 2] possibly played a role in the arrest and detention of claimants’ husbands. After all, the affidavit of [witness 1] is raised in connection with an application for bail. In his report, [the representative] made an analysis of the available evidence. He wrote (under 1.19):
“On the last day of my visit (29 March), the prosecution served on the defence a bundle of the statements of the witnesses on whom they rely. I have analyzed these statements in great detail (see Part E and Appendix 9).”
4.95.
In Appendix 9 to his report, to which claimants also refer to substantiate their assertions about the statements of the bribed witnesses and the use thereof, [the representative] listed the statements of the witnesses in the proceedings. [the representative] write that this appendix to his report:
“
is my attempt at a detailed and neutral analysis of the disclosed statements of all eyewitnesses, that is, the witnesses relied upon by the prosecution who claim to have seen part of the events of 21 May 1994.”
However, he made the following caveat:
“I must stress that they are concerns rather than conclusions since they are based on a reading of papers rather than on a hearing of the live evidence.”
4.96.
According to the summary in Appendix 9 to [the representative] ’s report, [witness 1] said in his statement, regarding which he asserts in his affidavit that it was given under duress, that when he was en route to the market in Kobaga he saw a white car approaching. The car was stopped by a security official, who requested the driver of the car to turn around. In Appendix 9 to [the representative] ’s report it says that this statement by [witness 1] also contained the following:
“
I saw so many people gathered round the place. There was a big argument that I came to know the man inside the white car who was arguing with the uniformed men was [E] . I also saw Mr. [F ] inside his own car near [E] ’s car. After much argument when they were about to go back, I heard mr [E] said in Ogoni language “GBO BEDERE EBADI GIOKO EBAGE DONE KPEGE NI EBA LEELA GBO BE KO BAA SIMEE AALII SI - GIOKO A
KOLA NU EALEEMAI ONAA NII - VA” meaning in English that it is those vultures who are at Gioko sharing money that send the uniform men to arrest me. He told the crowd who gathered around there that they should go to Gioko and deal with the Vultures. The whole crowd moved toward Gioko.”
4.97.
Appendix 9 to [the representative] ’s report does not contain a summary of the statements of [witness 2] or [witness 5] . However, it has summaries of statements of, among others, the witness who [witness 1] and [witness 2] alleged were bribed, namely [witness 7] (possibly [witness 7] ), [witness 10] , [witness 6] , [witness 8] and [witness 9] . These statements entail the following:
- [witness 7] stated that he heard [E] mentioning
vultures
,
- [witness 10] stated that [B] led the attackers, who bludgeoned [leader 3] to death and that he eventually ordered the attackers to stop,
- [witness 6] stated that during the meeting of 21 May 1994, [B] had said: “
let us kill them
”,
- [witness 8] identified [D] as someone who he recognised among the people who pushed the VW Beetle in the incident [the representative] refers to as the “
Volkswagen Beetle Incident”
. [the representative] has stated the following about this:
“ In the car he saw the naked body of a fat man. 2 other corpses were being carried on an “improvised stretcher”. Of these 2 one was the body of [leader 4]
.”36
4.98.
Based on the established facts and the evidence submitted to the proceedings, no final assessment can be made about this accusation. Claimants are allowed to give evidence for their assertions – contested by defendants and supported by reasons – regarding the involvement of SPDC in bribing witnesses and using the statements of these witnesses in the convictions and/or arrest and detention of their husbands. The latter must be established for each of the husbands. Claimants are allowed to give evidence that:
( i) SPDC was involved in bribing the witnesses [witness 1] , [witness 2] , [witness 5] , [witness 6] , [witness 7] , [witness 8] , [witness 9] and [witness 10] , because
a. [attorney 1] , on orders of SPDC, was present and/or a representative of SPDC was present at the meeting or meetings where these witnesses had to write/sign statements prepared by others and/or
b. SPDC financially contributed to the payments of these witnesses and/or
c. SPDC promised these witnesses a job, and
( ii) the statements of the witnesses bribed with the involvement of SPDC played a role in:
a. the conviction of claimants’ husbands by the tribunal and/or
b. the arrest and detention of claimants’ husbands and/or
c. the detention of claimants.
Part (ii) of the order to produce proof is only relevant in case the involvement of the SPDC, as referred to under (i) has become an established fact. Claimants are allowed to give evidence regarding both parts of the order to produce proof for the sake of judicial efficiency. If and to what extent this accusation of claimants holds will be assessed after the evidence has been furnished.
VI.1.c [the commander]
4.99.
Claimants highlight the role of [the commander] , the commander of the Rivers State Internal Security Task Force, during the proceedings (see in 2.31), which was criticised by [the representative] . In addition to the conduct observed by [the representative] , claimants state that [the commander] was responsible for the torture and degrading
36 [the representative] , p. 66
treatment to which the prisoners were subjected throughout the proceedings, for the abuse and sexual assault of [claimant 1] and for seizing evidence against the defendants. Claimants describe [the commander] as a “Shell protégé” and discuss in great detail the connection, which they believe is close, between SPDC and [the commander] in the period preceding the proceedings, among other things in the Operation Restore Order led by [the commander] . Claimants also refer to payments made by SPDC to [the commander] , which according to claimants were also allegedly made during these proceedings.
4.100. The court concurs with defendants that this accusation is unfounded. There is no ground to attribute the conduct of [the commander] during the proceedings to SPDC and/or the other defendants in any way, or to assume any involvement of defendants in this conduct. This inference cannot be based on established facts nor follows from claimants’ assertions. The court explains this as follows.
4.101. Claimants attach great weight to the inter-office memo referred to in 2.20 from SPDC’s [head of Intelligence East] dated 25 February 1994 and the fact that [the commander] led Operation Restore Order Ogoniland and allegedly announced in public that he was acting on orders of Shell. Defendants have contested the latter, supported by reasons, and explain that the payments referred to in the memo were ‘field allowances’ charged to SPDC by the Nigerian authorities for assistance rendered for protection against the persistent and increasingly violent protests targeting SPDC before it ceased operations in Ogoniland.
4.102. Referencing the written statements, including a statement of [witness 11] , in the [claimant 1] proceedings, claimants state that SPDC also paid [the commander] during the proceedings. [witness 11] has stated that he witnessed three instances where he saw money being handed to [the commander] by SPDC, twice by [Z] . However, these statements – which defendants contest as being true and reliable, supported by reasons – pertain to the alleged payments in connection with Operation Restore Order Ogoniland
.
4.103. The court notes that it is unclear what the basis is for paying the field allowances to [the commander] , referred to in the inter-office memo
.
The court will ignore this, as it has not been asserted, nor is there any evidence that there is a connection between these payments and the role of [the commander] during the proceedings. Nor do the statements produced by claimants show proof of any payment from SPDC to [the commander] during or in connection with the proceedings. From that which claimants present about the contacts between SPDC and [the commander] in the years before the proceedings can only be deduced that [the commander] was involved in operations of the Nigerian government in the vicinity of the installations of the joint venture in Ogoniland and that SPDC paid him in the form of field allowances
.
Even if [the commander] viewed himself as a protégé of the Shell Group this does not mean that defendants were involved in [the commander] ’s actions during the proceedings in any way. To be able to draw that conclusion there have to be facts and circumstances from which it follows that defendants tried to influence the proceedings via [the commander] or were involved in [the commander] ’s actions during the proceedings in any other way. It has not been asserted, nor is there any evidence that such concrete facts and circumstances occurred.
offer to influence the proceedings on the condition that MOSOP ceases it protest against SPDC
4.104. It is an established fact that in early 1995 [director of SPDC] spoke with the brother of [E] , [H] . Claimants assert that on that occasion [director of SPDC] offered [H] to influence the proceedings on the condition that MOSOP would cease its protest against SPDC.
4.105. In the Nigeria Update of 6 April 1995 [director of SPDC] reported on the conversation he had had that day with the British ambassador [the British ambassador] , who he referred to in the report as BHC [acronym of British High Commissioner]. This report states that [the British ambassador] had spoken with [H] and conveyed the message that [H] wished to speak with [director of SPDC] . [director of SPDC] writes:
“I told the BHC that I might be prepared to meet him
[ [H] , addition by the court]
on an informal basis to see what he had to say, and the BHC suggested that he introduce me to him during the Queen’s Birthday celebrations at his house later this month.
I also made the point that, so long as the MOSOP leadership keep the claim for compensation against us we would find it impossible to deal with them formally
.
I also said that I will not become involved in [E] ’s trial in any way.
There is still a strong belief amongst these people that we Shell have the power to get [the General] to let [E] off! Would that we had such power, we certainly would not have had the cash calls problems if we had!”
4.106. On 20 April 1995 [director of SPDC] spoke with [H] and [attorney 5] , one of the attorneys of [E] , at the residence of the British ambassador. The Nigeria Update of 24 April 1995 states the following about this:
“We discussed the matter of opening a dialogue between Shell and the Ogoni people. I made the point in many ways that I felt that I could not be expected to open up Shell to a dialogue when we had learned from experience to distrust the methods employed by [E] against us. His use of the media to propagate what we felt were lies or distortions of the truth to a gullible world made us very wary indeed. I told him that they would have to modify their stance before we could contemplate a useful dialogue.
I also said that we were not about to start discussions as long as we had a claim for reparations for environmental pollution and back royalties and taxes of 10 billion hanging over our heads, figures that were quite preposterous.
(…)
MOSOP’S Whishes of Shell
I asked what exactly MOSOP wanted of Shell. OSW said that they wanted us to help to get the release of [E] and the removal of the army from Ogoniland.
I went over all the arguments against us doing either of the two things. (…)
Dialogue?
The matter of a continued dialogue was raised again at the end. I said that I was happy to keep the door open to dialogue and I gave my contact numbers. However, I also said that I would not be able to talk about anything substantive as long as I was given reason to distrust MOSOP and its motives
in wanting the dialogue. I said it was up to them to show there was a genuine change of approach before there would be much point in continued dialogue.”
4.107. [H] was ordered by his brother not to accept the proposal of [director of SPDC] in a letter dated 13 May 1995. In the letter [E] presented two scenarios for discussion with [director of SPDC] , namely:
( I)
“We remain in jail. A. The cause grows. Junior’s recent visit to the US was a smasher. He met [… 2] , [… 2] (…) Along with the Goldman Foundation, Shell could be facing an expensive call for the boycott of its products. (…). B. Within Nigeria, the other oil- producing area’s who have been working to see if MOSOP’s non-violent stand will draw Shell out of its cocoon, decide that force is what Shell wants. There will be trouble on the oilfields, losing Shell a lot of its investment. Military force will not secure them peace on the oilfields. (…)
In the end, all this would be
extremely
expensive for Shell particularly if as is being mooted, we sue them in the U.S. Punitive damages could be imposed on them. Our sponsors are thinking in that direction. Is this what Shell wants?
OR THIS?,
( II)
Shell uses its considerable clout to (i) CREATE an Ogoni State. We will have something to show to the Ogoni people & assuage their anger.
(ii) Shell gets the Tribunal stopped or the Fed Attorney General to enter a “nolle prosequi” using the fact of my ill-health and inability to go on with the trial. Shell’s stock in Ogoni rises. The human rights and writers lobbies which have stood solidly behind us abroad are disarmed. Shell gets a breathing space
.”
4.108. [H] discussed this letter with [director of SPDC] on 13 May 1995. [director of SPDC] reported on this in a Note for File:
-
It was reiterated that his demand for Shell to become involved with political and legal matters of Nigeria was wrong and Shell would not do it, i.e. no royalties/taxes, no reparations, no interventions with the tribunal process.
-
(…) In any case, it was important for Shell’s image and integrity, long term, to adhere to its business principles as we have stated in this case.
-
We were keen to address the issues of Community Development and the Environment as soon as possible even ahead of resuming operations, provided the situation on the ground was peaceful (…) We were prepared to sit down and discuss these two areas of mutual interest and get advice/input from MOSOP. However, first and foremost we needed to satisfy ourselves that we can trust MOSOP. (…)
-
(…) We would not have the confidence to sit down with MOSOP to consider areas of mutual interest unless these false claims and attacks were stopped. Such cessation would be seen as a display of MOSOP’s willingness to sincerely explore common grounds with Shell in a trustworthy manner. (…)
The meeting was summarised to O-W from our viewpoint that the discussion has not moved forward since it started. We reiterated that we would be prepared to discuss areas of mutual interests only, namely, Community Development and Environment, but only if the basis for trust was established. The minimum we would expect as indication of display of trust on MOSOP’s part would be the cessation of deliberate and false accusations against Shell, and not urging Shell to become involved in Nigerian politics against its business principles. Finally, we added that until there was a change in MOSOP’s attitude and approach, we saw was no basis for continuing the dialogue for the meantime, even though the door was not shut.”
4.109. In an inter-office memorandum to [Y] , then Area Coordinator at  SIPC dated 22 August 1995 [director of SPDC] wrote the following about this:
“I offered [H] the possibility that we would be prepared to put in some humanitarian aid (medical?) in exchange for the undertaking by his brother to soften their official stance on two key
issues for us: 1. the outrageous claims (…) against Shell for royalties and reparations, and 2. the claim that we had funded the military in their clean up operations, to “clear the way” for our return. (…)
I am not sure that we want to be moving towards unilateral aid: we need something in return from the MOSOP elected representatives. (…) Don’t forget that the government see MOSOP as terrorists and our dealing with them could be misconstrued.”
4.110. From the reports and letter referred to in 4.105 through to 4.109 it follows that [director of SPDC] made a distinction in the conversations with [H] between two different subjects: 1) the response of SPDC to the request to intervene in the proceedings and 2) a dialogue with a potential contribution from SPDC to Community Development and the Environment projects
.
These reports state as regards the first subject that [director of SPDC] repeatedly made it clear in his conversations with [H] that SPDC would not intervene in the proceedings, as requested by [H] . See for instance the remark in the report referred to in 4.108: “
(…) his demand for Shell to become involved with political and legal matters of Nigeria was wrong and Shell would not do it (…) no interventions in the tribunal process
.” This is in line with [director of SPDC] ’s remark to the British ambassador before he spoke with [H] that SPDC would not in any shape or form wanted to become involved in the [E] proceedings (see 4.105). From the reports it follows that only potential humanitarian and medical aid to [E] was discussed “
to soften their stance on two key issues for us”
(see 4.109). The request to intervene in the proceedings was always unconditionally answered in the negative, with the explanation that SPDC would not get involved in such issues, because it went against its business principles. But [director of SPDC] did set conditions to the second subject of discussion, namely a dialogue with a potential contribution from SPDC to Community Development and the Environment projects. These are the conditions to which claimants refer. However, these conditions only pertain to the second subject. One of these conditions was, incidentally, “
not urging Shell becoming involved in Nigerian politics against its business principles”
(see 4.108). This confirms that during the talks [director of SPDC] made it clear that under no condition would SPDC intervene in the proceedings.
4.111. In their written statements, [H] and [attorney 5] , however, establish a link between the conditions set by [director of SPDC] and the rejection of the request to intervene in the proceedings. The court is of the opinion that these statements cannot detract from the conclusions drawn in 4.110. The court considers that the above-mentioned reports of SPDC were usually drafted on the day of the talk or shortly thereafter. Claimants accept these reports of [director of SPDC] as being correct in all other points. The written statements of [H] and [attorney 5] , however, were made years after the fact and reflect the memory of the discussions held at the time. Without further explanation – which is lacking – the court sees no reason to assume based on these written statements that the reports of [director of SPDC] are not an accurate depiction of the talks. There is no room for a further provision of evidence regarding this issue, as offered by claimants.
4.112. The court concludes there is no ground for the accusation that defendants offered to influence the proceedings on the condition that MOSOP would cease its protest against Shell.
non-intervention in the proceedings
4.113. Claimants accuse defendants of not using their influence, either publicly or otherwise, to induce the Nigerian government to hold a fair trial and to exercise clemency for the Ogoni 9. According to claimants, defendants could and should have done so by:
a. addressing the importance of compliance with human rights in their contacts with the Nigerian authorities,
b. setting conditions to a further cooperation with the Nigerian authorities,
c. expressing their opinion on the Ogoni’s right to protest,
d. publicly and otherwise expressing their opinion on the need for a fair trial and to plead for clemency, and
e. if necessary, threatening withdrawal from Nigeria.
4.114. It is an established fact that throughout the proceedings and before the execution of the sentences, defendants received requests from persons, legal entities and organisations to intervene in the proceedings (see in 2.29). Defendants argue that they had and have the conviction that a commercial party should not intervene in a domestic legal affair of a sovereign state. They consistently promoted this starting point, which forms part of their Business Principles, or so argue defendants, who furthermore explain that they (a) monitored the proceedings and (b) used quiet diplomacy.
monitoring the proceedings
4.115. As has been stated before, SPDC monitored the proceedings through attorneys of [attorney 1] ’s office. They received reports on the hearings. Since the Nigeria Update dated 30 May 1994, which mentioned that [E] had been arrested the weekend before and detained on suspicion of the murder of our Ogoni leaders, [director of SPDC] regularly discussed the current status of affairs of the proceedings and developments therein in the Nigeria Updates
.
In these Nigeria Updates, [director of SPDC] also reported on that which was discussed regarding the proceedings in his talks with the Dutch and British ambassadors. For instance, he heard from the British ambassador that a British judge had attended a part of the proceedings at the request of the British government in order to verify that the trial was fair. In the Nigeria Update of 4 June 1995 he stated:
“The Judge apparently concluded that it was flawed (some technical points apparently.”
Earlier, on 6 April 1995, he had written in the Nigeria Update:
“The BHC believes that although the charges should not stick the government will make sure that he is found guilty. He would then be sentenced to death, and reprieved after giving in to pressure from outside, but be incarcerated for a very long time.
The feeling is that this trial by Tribunal will go the way of all others of the kind in the past here: nobody had ever been found innocent. Hence those around [E] are using all methods to try and influence this.”
4.116. [director of SPDC] sent his reports to the Dutch and British Service Companies, SIPC in London and (with a carbon copy) to SIPM in The Hague (see in 2.19). At a meeting in London in February 1993, attended by representatives of the Service Companies and SPDC, [E] and MOSOP were discussed, which in the minutes were designated as a risk to the international reputation of the Shell Group for which urgent attention was asked. The minutes state that the following was agreed:
“SPDC and SIPC PA (Public Affairs) departments to keep each other more closely informed to ensure that movements of key players, what they say and to whom is more effectively monitored to avoid unpleasant surprises and adversely affect the reputation of the Group as a whole
.”
Shortly after the commencement of the proceedings in February 1995, the Nigeria Issue Contact Group was established within the Shell Group in March 1995 in order to monitor the developments in Nigeria and to be able to respond to them.
4.117. It is not in dispute that the parent companies were aware of the proceedings and the worldwide attention for the proceedings. Defendants, including the parent companies, were aware of the criticism of the independence of the tribunal and the fairness of the proceedings, which were expressed in the reports of [the representative] , Human Rights Watch and Amnesty International. It is also established that defendants – especially the parent companies – were called upon by various NGOs to intervene in the proceedings.
Quiet diplomacy
4.118. Defendants have explained that they chose to use quiet diplomacy. What the Shell Group did can be divided into three components, namely the contacts that [director of SPDC] had during the proceedings with Nigerian officials (VI.3.b.i), other contacts of officials of entities of the Shell Group regarding the proceedings (VI.3.b.ii) and the events in the period between the sentence and its execution (VI.3.b.iii). The court uses the content of the Nigeria Updates, other reports of [director of SPDC] and reports of talks within the Shell Group as a basis, on which both claimants and defendants have based their factual standpoints. The court also uses the witness statements from the [claimant 1] proceedings of [director of SPDC] , [then chairman of CMD] and [Group Managing Director] , who was Group Managing Director in the relevant period, and on which both parties rely.
VI.3.b.i contacts between [director of SPDC] and Nigerian officials
4.119. On 22 July 1995 [director of SPDC] spoke with [the General] . On the previous day, he had talked to the British ambassador about his upcoming meeting with [the General] . At that time, he heard from the British ambassador that the second group of attorneys at the tribunal had quit because they felt they could not do their jobs properly because the proceedings were being determined by the Nigerian soldiers. [director of SPDC] wrote the following about this:
“He seemed to be quite sure that [E]
[ [E] , addition by the court]
will be convicted, perhaps to the death penalty, to be commuted later on to life imprisonment. I told him that this would be a very unpleasant outcome for Shell, as the international outrage would certainly involve us. The time between conviction and commutation of the sentence would also be critical to us. There is also the link to the coup plotters: if some of them are shot, then the outside world will, probably justifiably, conclude that [E] may also be executed, and therefore renewed internationalisation of the [E] /Ogoni issue could be triggered off even before that verdict is announced.”
4.120. In preparation of the talk with [the General] , [director of SPDC] spoke with [X] , the second in command in Nigeria on 21 July 1995. He told him:
“The HoS
[Head of State, [the General] , addition by the court]
is very touchy on the matter of foreign criticism, and on the Ogoni issue. He suggested that we should not raise either issue although it may still come up
.”
From the Nigeria Update of 23 July 1995 it follows that [director of SPDC] followed this advice and not brought up the Ogoni issue and/or the proceedings himself when talking to [the General] . Their
remarks about this claimants unjustly ignore that this happened at the explicit advice of [X] . During this meeting [the General] raised the Ogoni issue. [director of SPDC] wrote about this:
“After I had finished with my part (which lasted about 1 ½ hours) he said he had something he wanted to raise with me. The Ogoni issue!
-
[the General] ’s irritation with Shell’s public statements
He suddenly became very strident on the subject, complaining that the biggest company in Nigeria, who had the best knowledge of the activities on the ground in the Ogoni area, had in his eyes failed to adequately portray the real facts of the case to the outside world.(…)
He put me on the spot, and I was finding it particularly hard to get through to him that it was not up to us to defend the government’s role. After a long discussion, during which he again became quite heated, he said that he accepted that Shell could not refer to the government’s performance in its public statements.
-
Shell’s efforts to tread between mines
I told him of our efforts to get the public to understand our position (referring to the Ogoni briefing paper). When I mentioned this, he again became quite incensed, saying that he had read this document and that he found this also to woolly and not sufficient clear on what the real facts were. (…)
-
Shell’s non-political stance
At this point I tried to defuse the situation by going over the non-political stance that we had taken, mentioning that our job was to try and do our best to help the government to develop its oil and gas reserves as efficiently as possible, and that we could not take sides with the government on such a sensitive issue. I must say that after explaining this he calmed down a bit, but I was left with the distinct impression that he was not really happy nevertheless.
(…)
I told him of the pressures we as Shell were under on the Ogoni issue internationally and that we had to tread extremely carefully in order to try and minimise the potential (or actual) damage such an issue could cause worldwide business. (…)I told him that we were very conscious of the government’s irritation with the public villification it was getting on the Ogoni Issue but that we also were being tied into the matter in ways which we also felt were quite wrong.
(…)
I conclude from what he [ [the General] ] said that he had no sympathy for [E] whatsoever, and we must therefore prepare ourselves for a conviction in this trial with all the difficulties that portends for us.
(…)
He wants us to support him, but I think he now understands better that we have some very clear limits to what we can do publicly, or in private for that matter.”
4.121. The court deduces from this that [the General] wished SPDC/Shell Group would support the Nigerian authorities in the Ogoni issue and that in response to this [director of SPDC] highlighted the non-political course of SPDC/the Shell Group. It does not become apparent that during this meeting with [the General] [director of SPDC] addressed the right of the defendants to a fair trial. In the [claimant 1] proceedings, [director of SPDC] stated that he had addressed this issue in other meetings with Nigerian officials. As regards the question whether or not defendants had expressed their opinion, whether publicly or otherwise, during the proceedings about the right of the defendants to a fair trial, [director of SPDC] stated as follows in the [claimant 1] proceedings:
Q. “Shell Nigeria did say that he
[ [E] , addition by the court]
is entitled to due legal process?” Do you see that?
A. Correct.
Q. Is that referring to statements you made?
A. Yes. As I testified earlier, that’s what I’m referring to.
Q. And it’s your recollection that you made these statements prior to Mr [E] ’s conviction?
A. I believe many times and publicly and privately. (…)
Q. Did you convey to any officials of the Nigerian government that there was a perception internationally that the trial did not meet the standards of due legal process?
A. I spent all my time leading through that process, trying to get people to understand we wanted proper legal process and there was a concern being reported in the press that this was not occurring. Hence the reason I was making the statements.”
Based on this statement, the court finds that in his talks with Nigerian officials [director of SPDC] did address the right to a fair trial of the Ogoni 9. As regards the choice for quiet diplomacy, [director of SPDC] stated as follows in the [claimant 1] proceedings:
Q. (…) do you see the sentence: “Our experience suggests that quiet diplomacy afforded the very best hope for [E] ”?
(…)
A. I worked in many countries where there’s a central government with a lot of control, and my experience has been in the past in other countries like Malaysia or the Middle east and so on that to get action on sensitive issues it is better to do it with quiet diplomacy than to make it a public domain issue, where people become very polarised and very quickly. In the Western World people tend to be more public with these things. In the developing things success generally requires a degree of quiet diplomacy rather than public debate.”
VI.3.2 other contacts with Nigerian officials
4.122. On 16 March 1995, officials of other Shell entities, including [head of Public Affairs] , head of Public Affairs of the Shell Group (hereinafter: [head of Public Affairs] ), spoke with the Nigerian ambassador in London about the proceedings. The Nigerian ambassador noted about [E] : “
there is every chance he will be found guilty”
and talked about the ‘misinformation’ surrounding the proceedings of [XX] . According to the report of this meeting:
“He
[ the Nigerian ambassador, addition by the court]
then called on Shell to put head together with the Mission to effectively debunk all the false allegations peddled against Nigeria and Shell over Ogoni and [E] .
4. In his reaction Mr. [head of Public Affairs] said that Shell was aware of the vicious campaign embarked upon by The Body Shop and other groups to discredit Shell and Nigeria. He informed HC that Shell has been inundated with hundreds of letters of protest and abuse regarding their operations in Nigeria. He noted that, apart from the Body Shop, Green Peace, Action Earth, Church groups, Amnesty International as well as Shell Shareholders have all been involved in the campaign. They complain about the environment and human rights issue. Some of the complaints were that Shell should prevail on the Nigerian government to release [E] .”
4.123. As in the talk that [director of SPDC] had with [the General] , referred to in 4.120, the Nigerian side urged collaboration, with [head of Public Affairs] highlighting the international criticism of the proceedings and the complaint that Shell was not pressuring the Nigerian authorities to release [E] . During this talk, it was agreed that one of the reports of the independent organisations about the proceedings would be handed to the Nigerian ambassador. In doing so, criticism of the proceedings was raised both during and as a result of this talk. No response was formulated to the Nigerian urge to collaborate on this issue.
VI.3.3. the period between the sentences and executions
4.124. After the tribunal had sentenced the Ogoni 9 to death by hanging on 30 and 31 October 1995, it was decided at the meeting of the CMD of 31 October and 1 November 1995 that [director of SPDC] would establish contact with [the General] to express the concerns of the Shell Group about the execution of the death sentences. [then Regional Coordinator] – then Regional Coordinator for Latin America and Africa with SPIM – would do the same with the Nigerian High Commissioner in London. [then chairman of CMD] stated the following about this in the [claimant 1] proceedings:
“
Q. Was the possibility of Mr [E] being executed discussed at any meetings of the Committee of Managing Directors?
A. yes, it was. (…)
A. I do remember that we discussed in the Committee of Managing Directors whether the chairman should write a letter to ask for clemency. I think we discussed that twice, and the second time we decided that I would do so, yes.
(…)
Q What do you recall being discussed at the committee about that subject?
A. What we discussed at that particular meeting was whether we should, as a group, send a letter to the head of state and ask for clemency. As is recorded here, it was decided against, most definitely on the basis of advice from [director of SPDC] , who—and I don’t specifically recall—may have said, “Don’t do that at this stage. Let me try and get to the head of state and talk to him.” In cases like
this, as I explained earlier on, we would always, always follow the advice of the man on the spot because he is in the best position to judge whether sending a letter would be counter-productive or not and, at least at this stage, his advice must have been “don’t do it.”
Q. Do you have a recollection of Mr [director of SPDC] making that advice?
A. Not a specific one, but I can well imagine that it went that way because that would be totally in line with our policy.
Q. What policy is that?
A. The policy is not to interfere from a distance in the affairs of an operating company. (…)
A. I remember that the chief executive for a long time advised not to do that because he felt that a direct contact with the head of state would be more appropriate and effective.
Q. It says here, “It was agreed that Mr [director of SPDC] should seek access to the head of state to explain Shell’s concerns”.
(…)
A. I do remember that we felt that it was necessary to do something, and here we decided to give [director of SPDC] a chance to talk to the head of state.”
4.125. The choice for [director of SPDC] was explained by [Group Managing Director] as follows:
“
[director of SPDC] had become a respected and trusted figure in Nigeria and, notwithstanding the criticism that he attracted to himself by raising this subject with [the General] —and you saw his note about how the President got very agitated when he did bring it up on that one occasion— [director of SPDC] , having been born in Nigeria and feeling passionate about Nigeria—you know [director of SPDC] , I’m sure—was quite the best individual to express these views to the Nigerian authorities; whether the president himself, [X] or anyone else of great seniority in Nigeria.”
4.126. In the Nigeria Update of 2 November 1995 [director of SPDC] wrote about a meeting he had had with [X] on 1 November 1995. This Update states among other things that the reason for this visit was that [director of SPDC] wanted to visit [the General] :
“The visit to the Head of State
[ [the General] , addition by the court]
would have the objective of trying to obtain his support for clemency and the commutation of the recent sentence of death on [E] for his part in the murder of 4 Ogoni elders in May 1994.(…)
[X] agreed to request the HoS
[Head of State]
for an audience for him and I on the 17th or the 18th November, after his (S’s) return from a visit to South Africa.
[X] advised very strongly against Shell sending any letter to the Head of State asking for clemency for [E] . He felt that it would be taken very badly and that it may seriously jeopardise the objective.
He did not believe that [the General] would carry out the sentence, nor did he expect any sudden moves: rather, he expected that a final decision on the matter may well be made much later in the year, possibly in December. He felt that having given clemency to the military in the recent coup plotters saga he would not be able to do any differently with a civilian.
I emphasised that Shell would be obliged to defend itself against criticism from many quarters, both locally and internationally, over the next weeks and that we could not take the government’s corner. He
[ [X] ]
accepted this as a matter of fact. He did however remind me of the HoS’s demand that Shell be more (publicly) supportive, and he said that HoS felt that the government were doing what they could to help Shell!
(…)
S told me that [the General] seemed to have valued our last talk very highly and he felt that he would welcome a fairly frequent dialogue of this kind. (…) This bodes well if true.”
The planned meeting between [director of SPDC] and [the General] never materialised. In the [claimant 1] proceedings [director of SPDC] stated that both before and following the imposition of the death sentences he had tried to arrange a meeting with [the General] , but that he was unsuccessful.
4.127. During the CMD meeting of 7 November 1995 it was decided to send [the General] a request for clemency on humanitarian grounds on behalf of the Shell Group. [then chairman of CMD] stated the following about this in the [claimant 1] proceedings:
“Q. At this meeting of the Committee of Managing Directors was it decided that you should send a personal letter to President [the General] ?
A. Yes, it was, yes.
Q. Can you recount for me, as best you can, how that decision came about?
A. I don’t have a detailed recollection, but I think what made us decide to do that was that [director of SPDC] had not been able to talk to the head of state directly. He tried. At the previous meeting I remember we took his advice that he would seek an appointment with the head of state, so we decided not to send a letter. Now that that discussion had not taken place, we felt that we had to do something. The discussion was “Why are we doing that, if we do it at all?” I do recall that I said, “We do that on humanitarian grounds”—I could well have added to that, that I am absolutely against the death penalty—“and now that it looks as if this is moving in that direction in the case, we have to indeed make it known to the head of state that we are against that.”
Q.
Did Mr [director of SPDC] change his recommendation as to whether or not a direct request for clemency should be made?
A. That I don’t recall, but I think it is much more likely to think that, after we learned that he had been unable to see the head of state, we felt that we had to do something.
(…)
Q. There is reference to this letter being a personal letter. Is that correct? This is a personal letter?
A. It is personal in a way that it is from person to person, yes. But I think it’s quite clear in what capacity it is written. It doesn’t say writing to the head of state from his private address. It clearly states Mr [then chairman of CMD] writing to the head of state in his capacity as chairman of the Committee of Managing Directors of the Royal Dutch Shell group of companies.
Q. The address that’s located on the bottom of this letter?
A. That is the address of Royal Dutch. (…)
A.(…) Because this had become, at this particular time, an issue which was not just an SPDC issue, but was an issue for the group as a whole. The group was attacked everywhere almost, and we felt that, as a group, we had to show that we, indeed, were of the opinion that, whatever the conclusion of the legal process was in Nigeria, that it’s not something for us to interfere with; that we would be against the death sentence.”
On behalf of the entire Shell Group, the request for clemency referred to in 2.36 was sent for the nine persons who had received a death sentence from the Ogoni tribunal. This request was handed to the Nigerian High Commissioner, with the request to forward it to [the General] .
VI.3.4 review
4.128. From the foregoing, it follows that defendants made the conscious choice, also in view of their Business Principles, not to intervene in political and legal affairs of the country where they operated and to not publicly express an opinion on the proceedings, but rather opt for the course of quiet diplomacy. They acted in this fashion. In the talks with Nigerian officials, they were confronted with a wish to collaborate, which they did not fulfil. In addition, during the proceedings [director of SPDC] discussed in general terms the right to and importance of a fair trial for the Ogoni 9. In any case, in the period between the sentence and the executions, the proceedings and fate of the Ogoni 9 were viewed as an issue which affected the Shell Group as a whole instead of a local issue which only affected SPDC. Again, a conscious choice was made to not publicly submit a request for clemency. Instead, quiet diplomacy was chosen, which eventually culminated in the letter dated 8 November 1995 to [the General] on behalf of the entire Shell Group.
4.129. The accusation of claimants regarding non-intervention or insufficient intervention in the proceedings can only succeed if defendants, by monitoring the proceedings and choosing to use quiet diplomacy and not taking any other action, violated the invoked fundamental rights of claimants and/or their husbands. The assertions of claimants imply that based on claimants’ invoked fundamental rights defendants were obliged to do more than they did. But the court has not found any leads for the accuracy of said standpoint, for instance in the form of precedents or widely supported views of Nigerian jurists. Such leads were also not submitted by parties in their remarks on the content and application of the fundamental rights invoked by claimants. The conclusion of the court therefore is that defendants did not violate these fundamental rights by monitoring the proceedings and choosing quiet diplomacy.
4.130. In this opinion, the court also considered the experiences of [director of SPDC] , as reflected in 4.121, that speak for quiet diplomacy, the warnings, as reflected in 4.120, from various sides to tread carefully in raising the issue with [the General] – who did not appreciate criticism and in fact thought SPDC did not support the Nigerian government enough – and the explicit advice of [X] not to make a public request for clemency, during which [X] furthermore expressed his expectation that the death sentences would not be executed in the short term. [X] also assumed that the death sentences would be commutated in a prison sentence (see 4.126), like with the military putschists. Nevertheless, a serious and urgent attempt was made to influence the fate of the Ogoni 9 after the convictions, with the decision of the CMD to have [director of SPDC] contact [the General] and the agreement that [then Regional Coordinator] would approach the Nigerian
ambassador in London. Moreover, with the eventually request for clemency on behalf of the entire Shell Group, signed by the chairman of the CMD, it was made clear to [the General] that this was a serious and urgent request.
4.131. In addition, there are no leads to assume that proceedings would have taken a different turn and that the claimants’ husbands would not have been sentenced and executed if defendants had acted differently. As has been argued by defendants, it is highly doubtful that they had the kind of influence on [the General] claimants attribute to them and which was assumed they had at the time, for instance also by [E] (see his letter dated 13 May 1995, in 4.107) and by the ones calling on defendants to take a public or other stance about the proceedings and conviction of the Ogoni 9. From the reports of the meetings between [director of SPDC] and [the General] it follows that [the General] did not accept criticism and believed that SPDC did not support the Nigerian government enough. Those reports also mention the cash call problems; the continuous efforts SPDC had to make – and which was not contested by claimants – to induce the Nigerian government to meet the cash calls made in the context of the joint venture. [director of SPDC] summarised this in his Nigeria Update of 6 April 1995:
“There is still a strong belief amongst these people that we Shell have the power to get [the General] to let [E] off! Would that we had such power, we certainly would not have had the cash calls problems if we had!”
(see 4.105).
4.132. Claimants assert – without further explanation – that defendants should have threatened to cancel or set conditions to the NLNG deal referred to in 2.39 about which negotiations with the Nigerian government were ongoing at the time of the proceedings. Also considering that which has been considered in 4.131 about the influence had or could wield, this bare assertion cannot succeed. The same applies to the assertion of claimants that defendants should as a last resort have threatened to withdraw from Nigeria. Although the fact that SPDC ceased its oil extraction operations in Ogoniland in 1995 – albeit for different reasons – downplays the defendants’ argument that it was practically not feasible to withdraw from Nigeria, this single, not further explained assertion of claimants cannot succeed, also because it cannot be assumed that this threat would have had any effect. The question here, too, is whether or not claimants credit defendants with more influence than they really had on [the General] , who did not accept criticism and believed that SPDC did not support the Nigerian government enough.
4.133. In so far as defendants were obliged to stage any intervention based on the applicable Nigerian law, they did enough by monitoring the proceedings and choosing quiet diplomacy. The court does not say in a general sense that a company in cases like this
has
to employ quiet diplomacy. The court finds that defendants were not obliged to do more, as argued by claimants. The accusation that defendants did not use their influence, either publicly or otherwise, to induce the Nigerian government to hold a fair trial and exercise clemency for the Ogoni 9 therefore does not hold.
VII. conclusion
4.134. Claimants will be allowed to give evidence that:
(i) SPDC was involved in bribing the witnesses [witness 1] , [witness 2] , [witness 5] , [witness 6] , [witness 7] , [witness 8] , [witness 9] and [witness 10] , because
a. [attorney 1] , on orders of SPDC, was present and/or a representative of SPDC was present at the meeting or meetings where these witnesses had to write/sign statements prepared by others and/or
b. SPDC financially contributed to the payments of these witnesses and/or
c. SPDC promised these witnesses a job, and
(ii) the statements of the witnesses bribed with the involvement of SPDC played a role in:
a. the conviction of claimants’ husbands by the tribunal and/or
b. the arrest and detention of claimants’ husbands and/or
c. the detention of claimants.
4.135. As has been considered above, part (ii) of the order to produce proof is only relevant in case the involvement of the SPDC, as referred to under (i) has become an established fact. Claimants are allowed to give evidence regarding both parts of the order to produce proof for the sake of judicial efficiency. If and to what extent this accusation of claimants holds will be assessed after the evidence has been furnished.
4.136. The other accusations of claimants cannot succeed. The other points of dispute about this – such as the question if and if so, to what extent, and on which basis, the acts or omissions asserted by claimants regarding this issue can be attributed to each of the defendants – need no discussion. If and in so far as the documents issued in the procedural issue give cause for claimants to furnish new facts or in any other way give cause for a further position, claimants should do this as soon as possible.
4.137. The court defers any further decisions in the principal action.
5.
The decision
The court:
in the procedural issue
5.1.
orders defendants to issue a copy to claimants within 21 days from this judgment of:
- the documents from the privilege log (Exhibit 198 in the summons and Exhibit 3, overview of CDST documents) with the following numbers: 91 through to 94, 97 and 98, 100 through to 105, 125, 163, 165,166 and 199 through to 206;
- the unredacted minutes of the CMD of 7 November 1995, in so far as these unredacted passages pertain to the tribunal and/or the Ogoni issue;
5.2.
imposes a penalty of € 5,000 for each day that defendants remain in default of compliance with the order as stated in 5.1 following service of the judgment, with a maximum of  € 50,000;
5.3.
prohibits claimants from disclosing information to third parties about the content of the documents as stated in 5.1, with the stipulation that claimants only use these documents for these proceedings and that they cannot issue these documents to third parties;
5.4.
dismisses all other applications;
5.5.
compensates the costs of the proceedings in the procedural issue in the sense that  that the parties each bear their own costs;
in the principal action
5.6.
allows claimants to give evidence that:
(i) SPDC was involved in bribing the witnesses [witness 1] , [witness 2] , [witness 5] , [witness 6] , [witness 7] , [witness 8] , [witness 9] and [witness 10] , because
a. [attorney 1] , on orders of SPDC, was present and/or a representative of SPDC was present at the meeting or meetings where these witnesses had to write/sign statements prepared by others and/or
b. SPDC financially contributed to the payments of these witnesses and/or
c. SPDC promised these witnesses a job, and
(ii) the statements of the witnesses bribed with the involvement of SPDC played a role in:
a. the conviction of claimants’ husbands by the tribunal and/or
b. the arrest and detention of claimants’ husbands and/or
c. the detention of claimants;
5.7.
rules that claimants, if they wish to have
witnesses
heard, have to submit the names of witnesses and the parties’ and their attorneys’ days on which they are unable to attend in the period September 2019 through to December 2019 on 5 June 2019, after which the date and time of the witness examinations is determined,
5.8.
rules that these witness examinations will take place at the court hearing of the appointed delegated judge, mr. L. Alwin, at the Court building in The Hague at Prins Clauslaan 20,
5.9.
stays any further decision.
This judgment was passed by mr. L. Alwin, mr. B. Meijer and mr. A.C. Bordes and pronounced in open court on 1 May 2019.