On 20 June 2025, Mrs Justice May DBE handed down judgment following a preliminary issues trial in respect of claims alleging damage to the Niger Delta from oil pollution: Alame & ors. v. Shell Plc [2025] EWHC 1539 (KB). The judgment addresses the applicable principles of Nigerian law governing such claims.
The claims are brought by individuals within the Bille and Ogale communities, as well as by the communities themselves. The claimants allege that the environment has been polluted as a result of conduct of the defendants, namely Shell Plc and its former subsidiary, then named The Shell Petroleum Development Company of Nigeria Ltd (“SPDC”). The claimants brought claims under both Nigerian private law – including the common law and under statutory provisions governing the oil industry – and for infringement of fundamental rights contained in the Nigerian Constitution and the African Charter on Human and Peoples’ Rights.
The defendants deny that they are responsible for the oil pollution in the region. In particular, the defendants contend that much of the pollution has been caused by spills from illegal refineries which are operated by criminal enterprises in the Niger Delta, for which the defendants are not legally responsible. The claimants’ case, however, is that the defendants can be held liable for damage caused by spills from those illegal refineries because, as the claimants allege, the defendants could have prevented oil being stolen from SPDC’s pipelines for the purposes of such illegal refining.
The Court heard 22 preliminary issues of Nigerian law over the course of a four week trial. The Judge praised the “expertly-drafted, interesting and comprehensive” submissions which she received, as well as the examination of the experts. The court heard cross-examination of distinguished academic or senior practitioners specialising in Nigerian private law and fundamental rights law (Mr Godwin Omoaka SAN, Dr Babatunde Ajibade SAN and Dr Olisa Agbakoba SAN) who had between them produced over 1000 pages of written evidence.
Private law
The judgment addresses numerous novel and complex issues of Nigerian private law in the field of environmental claims. In particular, the Judge determined that:
- Claims in relation to alleged oil pollution are subject to the limitation periods prescribed by Nigerian state limitation statutes. Contrary to the Claimants’ arguments, such laws are not outside the powers of state legislatures under the Nigerian Constitution. Consequently, the claimants’ claims are (as the defendants argued) subject to a 5-year limitation period.
- Whilst SPDC could in principle be liable for failing to prevent spills caused by third parties interfering with its pipelines, the court could not at present see how pollution caused by the illegal refining of the oil stolen from SPDC’s pipelines could fall within the scope of SPDC’s duty to protect its pipelines.
- The claimants’ claims in nuisance, Rylands v Fletcher or trespass in respect of damage caused by the illegal refining of stolen oil were not viable as a matter of law. Further, the defendants’ analysis of the correct legal approach to the claims in negligence for such damage was “compelling” and, as a result, there are “significant legal barriers” to any such claim being advanced by the claimants.
- The claimants’ claims under the Petroleum Drilling and Production Regulations 1969 were not sustainable as a matter of Nigerian law, including because certain provisions of those Regulations do not give rise to private rights of action. The claimants’ claims under the Regulations are therefore dismissed.
- Where multiple spills have contributed to the pollution of an area, the Nigerian court would first seek to identify the “most responsible cause” of that pollution. It was only if the most responsible cause could not be identified that another causation test could be applied. The court accordingly did not accept the claimants’ case that every polluter who made a material contribution to pollution would be held liable for the damage caused.
The Judge also determined that, as a matter of English private international law principles, the standard of proof was governed by English law. The Judge rejected the claimants’ arguments that (a) Marshall v MIB [2015] EWHC 3421 (QB) was wrongly decided, and (b) the court could adopt a “flexible approach”, said to be derived from Fiona Trust v Privalov [2010] EWHC 3199. It followed that the Judge rejected the claimants’ argument that, applying the provisions of the Nigerian Evidence Act 2011, it would be necessary for the defendants to prove any allegation that their pipelines had been attacked by third parties to the criminal standard of proof.
Fundamental rights
The critical issue for the Judge to determine was whether it was possible to bring claims for breach of fundamental rights in respect of oil spills at all. In reaching her decision, the Judge was required to consider the interplay of the decision of the Nigerian Court of Appeal in Opara v SPDCN Ltd (which concluded that oil spills cannot give rise to fundamental rights claims) with the subsequent Supreme Court decision in Centre for Oil Pollution Watch v NNPC (which was said to demonstrate that Opara had been impliedly overruled or, at least, that the Nigerian Supreme Court had adopted a different “direction of travel”).
The Judge, accepting the defendants’ case, concluded that none of the claimants’ claims for alleged breaches of fundamental rights were sustainable as a matter of Nigerian law. This was the result of a combination of the Judge’s findings that (a) most of the provisions relied upon by the claimants were not horizontally enforceable, i.e. were not capable of giving rise to a claim against a non-state entity, and (b) the single provision which was horizontally enforceable was not of sufficient scope to encompass oil spills.
As a result, the defendants have been entirely successful in defending the fundamental rights claims brought against them.
The Judge further determined that, even if there had been any viable claims for breach of fundamental rights, they would in any event have been treated by the Nigerian Supreme Court as “ancillary” to the private law claims. Consequently, those claims would not have benefitted from the more favourable treatment given to fundamental rights claims in Nigeria sought by the claimants, including the disapplication of the limitation period.
Aside from the decisions on substantive questions of Nigerian private law and fundamental rights, the judgment is also notable for its approach to determining questions of foreign law where there is developing or inconsistent case law from the courts of the foreign state.
The judgment can be found here.
James Willan KC, leading Dr Conway Blake and Tom Cornell of Debevoise & Plimpton LLP, represented Shell Plc and SPDC, instructed by a team from D&P led by Christopher Boyne.
