Harrison Jalla & Anor. v Shell International Trading and Shipping Company Limited & Anor.

For limitation purposes, actionable damage from a marine oil spill accrues when the claimant’s land or water supplies are first impacted. The court rejected the contention that oil could remain dormant for years, later remobilise, travel upstream and cause first damage inland, where the evidence did not establish those mechanisms on the balance of probabilities. Under Nigerian law, a state limitation statute applies to claims brought in the Federal High Court within that state where the claim concerns damage occurring there. Customary authority to conduct proceedings on behalf of others must be proved as a matter of fact or judicial notice. Authority extending to communal land rights does not, without consent, extend to individuals’ private law claims.

The proceedings concerned claims by Nigerian individuals and communities arising from the December 2011 Bonga oil spill. The claimants alleged that oil stranded on the Nigerian coastline, remained dormant, was remobilised and reached inland communities in 2014 and 2015. The defendants disputed the alleged dates of damage and relied on limitation and lack of authority to act for individual claimants.

The hearing determined three preliminary issues: the date on which damage occurred; whether Nigerian law imposed a five- or six-year limitation period; and whether the claimants’ solicitors had authority to conduct the second proceedings. The court proceeded on the agreed assumption that some Bonga oil reached the shoreline, without deciding the separate landfall causation issue.

1. Date of damage. The claimants failed to establish that Bonga oil became substantially stranded, remained dormant for two or three years, was remobilised and travelled inland to the identified communities in 2014 or 2015. The evidence showed that any Bonga oil would have reached the coastline between 25 and 28 December 2011, in a small and heavily weathered quantity. Any damage at Ogheye-Uton or Abe-Bateren would therefore have occurred in December 2011 or January 2012. The alleged later impacts at Tonbrapade-Gbene and Isuku-Gbene were not established.
2. The court found no reliable evidence of substantial long-term stranding, relevant remobilisation events, or oil migration to the communities. Other oil spills and leaks in the Niger Delta provided a credible alternative explanation for any later pollution.
3. Limitation. Although technically unnecessary after the findings on damage, the applicable Nigerian limitation period was five years. The court preferred the weight of authority that a state limitation law applies to proceedings in the Federal High Court operating within that state. The Nigerian Exclusive Economic Zone was not a separate country or territorial unit for Rome II, and could not support reliance on the six-year residual period under the Limitation of Actions Act 1623.
4. Authority. Under Nigerian common law, express or implied consent is required before proceedings may be brought on behalf of an individual in respect of that individual’s rights. The claimants proved a customary rule giving community rulers authority over communal land rights, but not a rule authorising proceedings concerning individuals’ private rights without their consent. The solicitors therefore had authority only for consenting individual claimants and community claims concerning communal land rights.
5. The hearing was adjourned for consequential matters, including costs, interest and permission to appeal.