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C-09-540872-HA ZA 17-1048(English)
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english version of ECLI:NL:RBDH:2022:2448
- Verrijkte uitspraak
THE HAGUE DISTRICT COURT
case number / cause list number: C/09/540872 / HA ZA 17-1048
Judgment of 23 March 2022
in the case of
1 [claimant 1] [place 1] , [country 1] ,
2. [claimant 2] of [place 2] , [country 2] ,
3. [claimant 3] of [place 3] , [country 3] ,
4. [claimant 4] of [place 4] , [country 3] ,
counsel mr. Ch. Samkalden of Amsterdam,
1. ROYAL DUTCH SHELL PLC of London, United Kingdom, with its registered office in The Hague, Netherlands,
2. SHELL PETROLEUM N.V. of The Hague, Netherlands,
3. THE SHELL TRANSPORT AND TRADING COMPANY LIMITED of London, United Kingdom,
4. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD of Port Harcourt, Rivers State, Federal Republic of Nigeria,
counsel mr. 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] . Defendants are hereinafter jointly referred to as ‘defendants’ and individually as RDS, SPNV, STTC and SPDC.
1 The proceedings
The course of the proceedings is evidenced by the following:
- the interlocutory judgment of 1 May 2019 and the documents referred to therein;
- the official reports of the witness examinations of 8 and 9 October 2019 and of 25 September 2020;
- the claimants’ document containing Exhibits, with Exhibits;
- the parties’ statements after the witness examinations, with Exhibits;
- the claimants’ document commenting on Exhibits, with Exhibits.
Finally, judgment was scheduled for today.
2 The further assessment
The claimants are the widows of four of a group of nine men, also known as the Ogoni 9, who were hanged in Nigeria on 10 November 1995 following a death sentence passed by a special tribunal for their involvement in the death of four traditional Ogoni leaders at a meeting in Giokoo in 1994. The claimants hold the defendants co-responsible for their husbands’ arrest, detention, conviction, and the subsequent execution of the sentence. In brief, they argue that the defendants were instrumental in, and therefore liable for, the human rights violations to which the claimants and their husbands were subjected.
In the interlocutory judgment, binding final decisions were made regarding the defendants’ invocation of a time limit and regarding the claimants’ accusations, apart from the alleged involvement of the SPDC in bribing witnesses. This accusation entails that the SPDC influenced the trial against the Ogoni 9 by bribing witnesses to make incriminating statements, which were decisive for the conviction of the claimants’ husbands and/or played a role in their arrest and detention. The court has allowed the claimants to submit proof of their allegations – contested by the defendants, stating reasons – regarding the involvement of the SPDC in bribing the witnesses named by the claimants and the use of these witness statements – to be determined per husband and/or claimant – in the conviction and/or arrest and detention of the claimants’ husbands and/or the detention of the claimants. The alleged involvement of the SPDC in bribing the witnesses [witness 1] , [witness 2] , [witness 3] , [witness 4] , [witness 5] , [witness 6] , [witness 7] and [witness 8] consists of the presence of the attorney [Attorney] or of a representative of the SPDC at the meeting(s) where these witnesses had to write down or sign statements drawn up by others, financial contributions by the SPDC towards payments to these witnesses, and the promise of a job to these witnesses by the SPDC.
The claimants had the following witnesses examined: [witness 1] (hereinafter: [witness 1] ), [witness 2] (hereinafter: [witness 2] ), [witness 7] (hereinafter: [witness 7] ), [witness 9] (hereinafter: [witness 9] ) and [witness 10] (hereinafter: [witness 10] ). The defendants decided against a cross-examination. The delegated judge examined the witnesses in the English language or Pidgin English with the help of an interpreter. The questions and answers are reproduced verbatim in the official reports. There are also reports in the English language, drawn up by court reporters engaged by the defendants. These reports have been submitted to the proceedings. Both the claimants and the defendants have submitted new Exhibits to the proceedings.
The defendants have noted that, when viewing the witness statements and the submitted Exhibits in conjunction, it cannot be ruled out that the (intended) witnesses in the Ogoni trial were coerced or pressured to make statements in the trial and/or that they were promised some sort of reward. The court concurs with this. These proceedings, however, revolve around establishing whether or not the SPDC was involved in these matters and thus influenced the trial against the claimants’ husbands or facilitated the detention of the claimants.
The court concludes that this is not the case and has considered as follows.
It is an established fact that [witness 1] and [witness 2] , who both made incriminating statements to the police about the events in Giokoo, made supplementary affidavits on 16 and 27 February 1995 at the offices of one of the attorneys of the accused. In those affidavits, they stated that they and several other witnesses had been pressured by the main prosecution witnesses, [main prosecution witness 1] (hereinafter: [main prosecution witness 1] ) – the brother of one of the killed men – and [main prosecution witness 2] , to sign false, incriminating statements against [Q] (hereinafter: [Q] ) and other accused. The affidavits state that the witnesses were paid and that they were promised contracts at ‘Shell’ and OMPADEC [Oil Mineral Producing Areas Development Commission, a Nigerian government institution, added by the court]. The alleged witness bribery is mentioned in the reports of [Reporter] and Human Rights Watch (see under 2.31 and 2.32 of the interlocutory judgment). The defendants rightly note that [Reporter] does not mention any involvement of the SPDC in the witness bribery described in his report. The Human Rights Watch report states that these accusations of bribery were denied at the time by both the prosecutor and the SPDC. The alleged witness bribery was also discussed during the trial before the tribunal (see legal ground 4.91 of the interlocutory judgment). The tribunal denied an application to enter the affidavits of [witness 1] and [witness 2] into evidence. From the trial reports issued to the SPDC of the colleagues of attorney [Attorney] – who acted as watching brief for the SPDC during the trial – it follows that the tribunal interviewed [main prosecution witness 1] as a witness. In the cross-examination, [main prosecution witness 1] denied that Shell, the Rivers State administration and he personally paid [witness 2] 30,000 naira.
The alleged involvement of the SPDC in witness bribery already received attention during and at the time of the tribunal. At the time, the SPDC categorically denied that accusation in a telex of 28 February 1995 to the editor-in-chief of the newspaper The Masses, who had published an article on [witness 1] , in which [witness 1] ’s affidavit was printed. The telex states, inter alia:
“I was very surprised to read allegations that Shell had offered bribes of cash and contracts to prosecution witnesses in the trial of four Ogonis for murder.
These are extremely serious allegations (…).
I therefor take this opportunity to state categorically that this company has at no time offered any bribes to any prosecution witnesses in this case or any other case. (…) Moreover, the company has no involvement in this case.”
Furthermore, an internal SPDC memo dated 22 February 1995 states:
“I have received our lawyer's report which says that [A] presented an affidavit of one [witness 1] (a prosecution witness) stating that he was induced to make his statement to the prosecution on the promise of 30,000 naira and contract from Shell and Ompadec. (…) This state is completely baseless and untrue!”
[witness 1] stated the following in his affidavit:
“On another date of meeting in [main prosecution witness 1] ’s House representative from Shell, OMPADEC, Security agents, Government officials and the [main prosecution witness 1] , [Y] and [Z] ’s family were present and they all agreed.
The family gave some money and say that the money came from the government and Shell. In my case I was given N30,000.00 (Thirty Thousand Naira) from Shell and Government (…).”
As a witness in these proceedings, [witness 1] has testified that about three weeks after the murder of the Ogoni leaders he was picked up and taken to the house of the killed Chief [X] in Port Harcourt. He had to stay in the adjacent area for some time and was taken to the police building complex, the officers’ mess, in the government residential area, or GRA, on several occasions during that period, where he was made to write a statement. [main prosecution witness 1] pressured [witness 1] to write a statement. [witness 1] was also hit over the head with a power cable by a police officer. [witness 1] has also stated that at one point he was taken to [main prosecution witness 1] ’s large house, where ‘Shell officials’ and ‘government officials’ were present, and who did not identify themselves. However, he did hear that one of them was referred to as ‘ [Name Mr] ’. When asked how he knew that they were ‘Shell men’, [witness 1] stated the following:
“When they said they would do something for me, I said how, and then they said, please, this gentleman can help you. So they could also agree to the offer that was made. And at that moment I thought: wow, this is a nice quick solution. (…)
I know that they are from Shell because of the way they speak. They were saying things that were different or different speak than the other men. So the way in which they spoke, and what they said and the way they reacted, and they also said Omamasain. (…) So I knew by the way they spoke they were from Shell.”
From this it follows that [witness 1] assumed that the men were ‘Shell officials’ on account of the way they talked and behaved and because they mentioned ‘Omamassin’ – which should be understood (and this is not in dispute) as a reference to Rumuomasi, a district in Port Harcourt where the SPDC’s head offices are located. This inference made by [witness 1] is not supported by objective facts and therefore cannot contribute towards proving that the men were indeed ‘Shell officials’. The same applies to his statement that the men left in a Peugeot 504 with a Shell BP sticker. It is not in dispute that the SPDC previously used the name Shell BP, but has not used that name since 1979. The claimants assert that, since the current SPDC previously used the name Shell BP for years, it must be assumed that ‘SPDC’ and ‘Shell BP’ are used interchangeably in popular parlance, just like [witness 1] did in his statement when referring to the SPDC. Be that as it may, [witness 1] – who was questioned extensively about the car and the sticker and who made a drawing of the car – only made a statement about a ‘Shell BP’ sticker. That statement is insufficient to assume that the car at that time was used by the SPDC or an SPDC official. This is all the more true since at that time the SPDC had long since ceased using the name Shell BP. Furthermore, the claimants’ assertion that the SPDC frequently used Peugeots 504 in those days is inconsistent with [witness 1] ’s statement that the car was an ‘official government car’ only used by officers. Lastly, the court sees no reason to order the defendants to launch a further investigation into the ‘ [Name Mr] ’ mentioned by [witness 1] in his statement, as requested by the claimants. The mere mention of this name during the witness examination of 2019 is insufficient reason for doing so.
[witness 1] has stated that “Shell BP gave me money”. In his account of how this all happened, he testified that [main prosecution witness 1] gave him 30,000 naira in cash, saying:
“That Shell will pay us. They said that, it's Shell who gives you this money, and if you go to court later on, you should say this about MOSOP so that Shell can give us more things". They said, "Accept this money so that later on, if we need anything for the court case", then I would have to speak out against [Q] 's case.”
When asked how he knew that the money had come from Shell, [witness 1] testified as follows:
“ [main prosecution witness 1] gave the money to me. He said, "You can support this case against MOSOP, and Shell can then come into Ogoniland. (…) [main prosecution witness 1] himself said to me that he was given the money by Shell. (…) And he told me that if we can follow this case against MOSOP, that Shell would do more than just this.”
From this statement, it can only be deduced that [main prosecution witness 1] told [witness 1] that ‘Shell’ would pay him and that the money [witness 1] was handed had come from ‘Shell’, not that the money was, in fact, the SPDC’s. Nor can any indications about the SPDC’s involvement in the alleged witness bribery be derived from [main prosecution witness 1] ’s promise of a job at ‘Shell’, about which both [witness 1] and [witness 2] made statements. There are no concrete facts and circumstances that suggest that [main prosecution witness 1] ’s promise can be attributed to the SPDC. This promise was also not fulfilled, unlike [main prosecution witness 1] ’s promise of a government position, which was followed by the appointments of [witness 1] , [witness 2] and [witness 4] , which the claimants have entered into evidence.
[witness 10] , one of the attorneys during the trial, stated that [witness 1] had told him that Shell and the government had paid him 30,000 naira to furnish proof. [witness 10] testified that [witness 1] had told him the following:
“Cash. It was given in cash. So he put it in writing, he swore to it in an affidavit and Shell never challenged him. Shell never challenged him. (…) I just said [witness 1] said he was given 30,000 naira to give evidence against the defendant, to make a statement and then be a witness in court, against the defendant, by telling a lie against the defendant. He
had made the statement to the police implicating the defendant. (…) Well, he said that the official who give him the money, right, was an official of Shell and the government official was present when he was given the money.”
As with [witness 1] ’s statement, the mentioned involvement of the SPDC is not supported by objective facts and circumstances. [witness 10] also wrongly assumes that the SPDC has never denied or expressed doubts about the alleged witness bribery. Furthermore, rather than a witness statement about the order to furnish proof [witness 10] ’s statement reads more as a legal argument, which also brings up accusations (such as the watching brief) regarding which the court has already taken binding final decisions.
[witness 2] previously made a statement in his affidavit of 27 February 1995, which forms part of the case file. On 19 March 2004, he made a comprehensive sworn statement in the [trial X] in the United States. His affidavit states that the police asked him to sign a prepared incriminating statement against [Q] and:
“That when I refused to sign the Statement [main prosecution witness 1] brought out N30,000.00 and told me that was my own share of money given to the witnesses by government and Shell and that if I signed the Statement I would go with the said N30,000.00 and that I would always be given money and other benefits including:
(a) My being employed in Gokana Local Government (…)
(b) My being given weekly allowances of between N1,000.00 and N2,000.00 as the case may be.
(c) My being promised award of contracts from Shell and OMPADEC.”
In these proceedings, [witness 2] has testified that following the murder of the four traditional Ogoni leaders, [main prosecution witness 1] took him and several other witnesses to Port Harcourt, where he stayed in a building of the Federal Investigation and Intelligence Bureau (FIIB) in the government residential area (GRA). Several days after he had given a statement, in which he incriminated no one, the police presented a statement which he had to copy verbatim and sign. He received 30,000 naira for his police statement in the presence of police chief [main prosecution witness 1] and other witnesses. [witness 2] has stated the following about this:
“They said they will surely give us -- they give us cash. They give us cash that very day, and they promise us a job, and they said because Shell is involved, that they will give us contracts (…) Okay. When this money first -- when this first money came in, they give it at our own present, at my own present. They hand it over from the commissioner of police, give it to [main prosecution witness 1] , that this money has come from Shell, and they now said, "Okay, this is Shell staff, this is this person, this is this person", what their names are.”
When asked who the remark ‘this is Shell personnel’ referred to, [witness 2] answered as follows:
“The person who was standing with them, yes, with the team, the FIIB team and the commissioner (…) The commissioner came in with -- with his own team and the Shell staff. (…) Everybody that was – that I mentioned.”
[witness 2] has stated the following about one of the men who was ‘Shell personnel’:
“he brought the money and give it to the – this incident, the commissioner, and the commissioner hand it over to [main prosecution witness 1] at our present -- at my present. (…) Openly they said it to us -- to me, at my present, that this money come from Shell. (…) Even the commissioner. [main prosecution witness 1] said it too.”
It is the court’s opinion that [witness 2] , like [witness 1] , assumed that a man was ‘Shell personnel’ without this being supported by objective facts. From his statement it can only be deduced that it was said that someone was ‘Shell personnel’, and that it was said that the money that was handed over had come from ‘Shell’. This does not prove the presence of an SPDC official nor does it prove that the money had indeed come from the SPDC. It is also unclear what the ‘Shell personnel’ supposedly did. Like [witness 1] , [witness 2] attributes a key role to [main prosecution witness 1] , who was always present according to his statement, and who took care of everything, made promises and paid the witnesses.
During the [trial X] in the United States, [witness 2] stated that [Attorney] , the attorney for the SPDC, was present at a meeting in the government house in Rivers State in July 1994, where [main prosecution witness 1] made the witnesses sign statements presented to them (see legal ground 4.88 of the interlocutory judgment). In response to the question “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?” [witness 2] answered as follows in this statement: “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 [Q] and the rest and they give you the money and [witness 3] , he was very, very intelligent and he asked [main prosecution witness 1] , 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.”
In 2004, [witness 2] also stated that he met [Attorney] a second time, namely on the last day the witnesses were instructed about the trial. According to [witness 2] ’s statement, there were drinks and snacks and the witnesses received money.
The defendants have vigorously contested the alleged involvement of [Attorney] , and [Attorney] himself denied any involvement in witness bribery in a written statement dated 19 February 2018.
As a witness in these proceedings, [witness 2] has once again testified about an attorney for the SPDC. He has stated that this attorney, carrying a suitcase with money, appeared on the last day the witnesses were prepared by police officers for the trial before the tribunal. [witness 2] has stated that in that period he regularly received a sum of money from [main prosecution witness 1] for his cooperation and that he found out later that one of the individuals who was present at the preparatory sessions was one of the tribunal members. Regarding the final preparatory session, he has stated the following:
“It was by then that very day they said, "Okay, this is Shell lawyer". (…) Yes, that was the first time he came in, that very person, Shell's lawyer, and other government personalities, they were all there. (…) What I'm saying, the very -- after the training, the final day that -- before they will now proceed on the tribunal, the day before, and they now give us money to take, "This money is from Shell". (…) They hand over the money from commissioner to [main prosecution witness 1] at our present. They say okay -- because when all of them came -- everybody came in, they introduce themselves. "This is me, this is this person". So on our mind was that as soon as Shell come in, we think we are going to have money, we think we are going to be big.”
When asked if that ‘attorney for Shell’ had the money on him on that occasion, [witness 2] answered as follows:
N: He brought the -- there was a briefcase. In Nigeria is not here. You can carry even 10 million, 20 million in a briefcase.
J: So do I understand correctly that the person who was introduced as the Shell attorney indeed carried the briefcase with the money?
N: Yes, he came with the briefcase.
J: And what happened with that suitcase? Did he open it in your presence, right there and then, or did he hand it over to someone else? What happened with the briefcase?
N: He brought the briefcase, hand it over to the commissioner, and that very day, final day, the governor was even there. The governor was there. So they now hand over this money and give it to [main prosecution witness 1] . It was [main prosecution witness 1] that now, we share the money.
J: When the attorney was introduced, did they also give the name of that person?
N: Yes, they gave the name, but it's a long time. I can't remember exactly the name. What I can remember is that name "Shell".
[witness 2] has given different descriptions of the appearance of the person who, according to him, was an attorney for the SPDC. In 2004, he stated that this person did not wear glasses and referred to him as [Attorney] : “I say [Attorney] is not all that tall, not much tall, no more let me say he's not so fat. Moderate size like that. He's not like black. He's not black like me. I'm entire black, so he's not black like me.” In these proceedings, when asked if he remembered the attorney’s appearance, he responded as follows: “A rather corpulent, tall man, black, a light black skin tone. (…) bold or very little hair (…) about 40 years old”. [witness 2] ’s statement in these proceedings about the attorney also deviates from his 2004 statement in other respects. The court agrees with the claimants that [witness 2] ’s description of his second meeting with the attorney is partially consistent with his description of the last day of the preparatory sessions – which the attorney for the SPDC also attended, according to him – given during the witness examination in these proceedings. However, in these proceedings, he has expressly stated that he met the attorney for the first time at the end of the preparatory sessions and has not made any statements about a second meeting. Due to the discrepancies between the different statements by [witness 2] about the involvement of [Attorney] /an attorney for the SPDC, it cannot be taken as an established fact that the SPDC or an attorney for the SPDC was involved in the alleged bribery of witnesses. The court does not acknowledge the claimants’ argument that no importance should be attached to these discrepancies because according to them it is understandable that after such a long time [witness 2] is unable to distinguish between the different meetings and cannot recall all the names of the persons who attended them. The discrepancies are too substantial. Apart from the foregoing, there are no specific leads based on which the alleged conduct of [Attorney] /the attorney for the SPDC can be attributed to the SPDC. In 2004, [witness 2] stated the following about this: “(…) I said I was bribed by Shell because I know [Attorney] is Shell representative, but he's not Shell. When I said Shell bribed me and the government OMPADEC for me to testify false witness against [Q] and [witness 9] .”
[witness 7] has stated that “Shell bribed us”. He has stated that he was in Giokoo on the day of the murders and that [main prosecution witness 1] , who coordinated everything, told him to testify against [B] . [witness 7] has stated the following about this:
“He [ [main prosecution witness 1] , court] said to me that I had to be a witness in the case and afterwards I would be paid by Shell. (…) After everything Shell promised a house in Abuja -- a house in Abuja, and also a job. But none of that happened.
When asked who had promised him these things, he stated as follows:
“ [main prosecution witness 1] and the Shell people. Sometimes we are not able to know whether they are Shell or government because it's not written on the person himself, you know, what company they represent or what authority they represent.”
[witness 7] has stated that [main prosecution witness 1] told him what to say ‘So that Shell could give them money.’ He has given evidence about the preparatory sessions for the trial before the tribunal, which he and other witnesses received in the government residential area in Port Harcourt, where they stayed for several months. When asked about the role of Shell, he testified as follows:
“Y: I don't know exactly who was who, but, again, [main prosecution witness 1] was the co-ordinator for Shell, and Shell arranged everything through [main prosecution witness 1] , because he co-ordinates everything.
J: How do you know that he co-ordinated everything for Shell?
Y: That is all that I know. Shell did so many things, they also killed many people, and this is also why in our village we said we needed --
J: Basically, you're saying Shell was in control, Shell did everything, and this is why [main prosecution witness 1] did all these things for Shell; is that how I should understand what you're saying?
Y: It is Shell that caused the problem. It sponsored the problems in Ogoniland.
J: (…) Did [main prosecution witness 1] ever tell you directly that he was actually co-ordinating everything for Shell or on Shell's behalf?
Y: He didn't tell me explicitly, but we know that he is one of the co-ordinators because one of his relatives was (one of the leaders) in Giooko.
J: Might it well be that he was doing all of this for his own family because a family member was killed and not on Shell's behalf?
Y: We know that Shell did everything. It was before the problems. It happened and it was the reason we know that Shell wants to come, and some people had accepted Shell as such.
J : (…) Did you ever see a representative or an employee of Shell there?
Y: I don't know whether they were representatives of Shell. All that I know is that Shell is the reason why the problems occurred in Ogoni, and specifically for my village.
J: So basically you're saying, "Shell caused all the problems, and I don't know whether I saw specifically a representative of Shell in that time that I was there"?
Y: When these people came, they didn't say that they were from Shell, but they all co-ordinated through him.
J: Through him, you mean [main prosecution witness 1] ; right?
Y: Yes, I do.
J: And nobody said, "These are people from Shell" or "a lawyer from Shell" or anything like that?
Y: No, they didn't say that. On the day of the trial there will be different people, several people, but we didn't know who.”
From [witness 7] ’s witness statement it follows that [main prosecution witness 1] played a central role in the witnesses’ preparatory sessions and the payments. This is in line with the witness statements of [witness 1] and [witness 2] . What also applies to [witness 7] is that the SPDC’s involvement assumed by him is not based on concrete facts and circumstances. [witness 7] , [witness 1] and [witness 2] appear to be convinced of the SPDC’s involvement in the bribing of witnesses, about which they have testified. However, that conviction is not based on concrete facts and circumstances, as is apparent from the foregoing, but on assumptions and conclusions drawn by [witness 7] , [witness 1] and [witness 2] as well as on that which [main prosecution witness 1] , and others, told them. However, the fact that various persons have assigned a central role to the SPDC does not prove that the SPDC was indeed involved in witness bribery.
Such an involvement of the SPDC is also not apparent from the statement of [witness 9] , one of the accused in the Ogoni trial who was acquitted. In his statement, he said that [C] , also known as (hereinafter: [nickname C] ) visited him in his cell and told him that he would be brought to the house of a Shell contractor by the name of [D] after his release. [witness 9] made the following statement about this:
“he told me that he felt -- his conscience tells him he should inform me about the plot against us, and that he was -- after being released, he was now taken to the residence of one local Shell contractor called [D] . (…) [D] 's house is just opposite the house of the late Chief [X] , who was one of the four chiefs that was killed. (…) […] : The gentleman said "Shell contractor", that is correct, and not "Shell person". Interpreter: As I translated, apologies. M: Yes, a local Shell contractor. While in that place, he met some Shell officials (…) some government officials, and some youths, including [witness 1] , [witness 4] , [witness 8] , and some others, and that they were schooling them to come and lie against us, and they were asking him also to do so. But that after a while he -- now there was a lawyer who was there who now said that his own evidence might not stand because he was in detention while the murders took place. They were being promised sums of money. They were promised house and contracts. But that some of those youths later told him that they are scared to make those sort of -- to tell those sort of lies against people like us, that they feared, and so he came to alert me that that is what is happening.”
It is not in dispute that a contractor is not an employee, official or representative of the SPDC. When asked how [nickname C] knew that the men he had met were ‘Shell officials’, [witness 9] answered as follows:
“My understanding of our conversation is that all the people who were in that meeting were introduced to all of them, because, according to him, they were making promises to get even contracts in Shell and they pointed out that this Shell official is here. They were promised a contract from the oil mineral development commission, which was -- they called it OMPADEC. The officials were also there. So these were people introduced to them in that meeting. That's my understanding of that meeting.”
[witness 9] has testified that [nickname C] told him that the Shell people were from the
“Government Community Relations Department” and that no names were given. [witness 9] has testified that later on he also talked to [D] about the meeting at [D] ’s house and that [D] confirmed to him that people from OMPADEC, Shell and the government had attended that meeting.
The hearsay testimony of [witness 9] is insufficiently specific to be able to contribute to the evidence that the SPDC was indeed involved in the bribing of witnesses. This all the more true when considering that [D] is named in a written statement of police officer [police officer] (hereinafter: [police officer] ) dated 16 June 1994, which states:
“While both of us were with mr. [D] one [E] a native of Baraka-village came into the house to greet the contractor also.”
According to [police officer] ’s testimony, when [E] states to recognise someone as one of the murderers of the four Ogoni chiefs, this person is arrested and taken to the police station. There is no basis to assume – as the claimants assert – that ‘ [E] ’ is the witness [witness 8] (hereinafter: [witness 8] ), who hails from the same village. Apart from this, this testimony – even if ‘ [E] ’ were to refer to [witness 8] – does not say anything about the involvement of the SPDC in bribing witnesses.
The other statements made by [witness 9] also do not point to the involvement of the SPDC in bribing witnesses. His testimony about his question to SPDC employee [the employee] to see if the SPDC was willing to intervene, to which [the employee] responded that it was Shell policy to have all things related to the Ogoni case settled abroad and after which [witness 9] only heard through someone else that the SPDC had been ordered from abroad to cease addressing this issue, has nothing to do with witness bribery. In fact, this statement rather indicates that the SPDC did not want to interfere in the course of the trial. The statement of [witness 9] about [F] ’s proposal to [witness 9] and [Q] to establish contact with someone of the SPDC and to promise that oil extraction in Ogoniland could be resumed and that the international campaigns would be discontinued, and [witness 9] ’s statement about the meeting between [the brother of Q] [the brother of [Q] , added by the court] and the Managing Director of the SPDC, do not relate to any involvement of the SPDC in bribing witnesses.
In conclusion, the alleged involvement of the SPDC in witness bribery is not proven with the statements of the witnesses produced by the claimants. This is also true when viewing these witness statements in conjunction. This means that the claimants have failed to fulfil the first part of the order to furnish proof. The court is unable to assess the second part of the order to furnish proof regarding evidence for the use of the statements of the bribed witnesses – in part also by the SPDC – in each claimants’ husband’s case.
The claimants argue that the witness statements call for a review of two binding final decisions from the interlocutory judgment, namely in the first place the decision on the accusation that the defendants failed to use their influence – publicly or otherwise – to urge the Nigerian government to hold a fair trial and show clemency to the Ogoni 9. In the interlocutory judgment, the court considered that it had not found any reference points in Nigerian law, for instance in the form of precedents or widely accepted views among Nigerian jurists, for the viability of this accusation and that the defendants – insofar as they were even obliged to stage an intervention based on applicable Nigerian law – have done enough.
In part based on the witness statements, the claimants argue – in brief – that the neutral position the defendants have bestowed upon themselves does not correspond with the actual situation in which they found themselves. A situation in which human rights violations occurred partially in their names and (whether or not allegedly) in their interest. In the foregoing, the court has concluded that the circumstance that the SPDC was attributed a central role by various persons does not constitute evidence of the SPDC being actually involved in witness bribery. Even if it were possible to determine, based on the witness examinations, that the situation as indicated by the claimants existed, it has neither been argued, nor has it become evident that the defendants had any relevant knowledge of it. This means that this accusation lacks any factual basis. Furthermore, the defendants have contested, stating reasons, that their interest was served with the trial before the tribunal, the sentencing and hanging of the Ogoni 9. Furthermore, there are still no reference points in Nigerian law for the viability of this accusation. The court therefore sees no ground in the witness examinations to renege on its decision that the defendants have done enough, even if and insofar as they had any obligation under applicable Nigerian law to stage an intervention. The fact that the claimants disagree with this decision also does not constitute a ground for reneging on that decision.
Secondly, the claimants state that there is a reason for reviewing the conclusion that there is no room for further provision of evidence regarding the SPDC’s offer – as asserted by the claimants – to [the brother of Q] to intervene in the trial on the condition that MOSOP would cease its resistance. The claimants have accused the court of, inter alia, acting contrary to the prognosis prohibition on this issue.
From the reports drawn up at the time by [then Managing Director] (hereinafter: [then Managing Director] ), then Managing Director of the SPDC, as well as from the letter of [Q] cited in the interlocutory judgment, it follows that in his talks with [the brother of Q] , [then Managing Director] distinguished between two different topics: 1) the response of the SPDC to the request of [the brother of Q] to intervene in the trial, and 2) a dialogue with or without a contribution from the SPDC to specific projects. These reports state that the question to intervene in the trial was consistently and unconditionally answered in the negative, with the explanation that the SPDC does not interfere in such matters as it goes against its business principles. The conditions set by [then Managing Director] regard the second topic of discussion. In their accusation, the claimants have linked those conditions to the response to [the brother of Q] ’s request to intervene in the trial. The same has happened in the testimony of [witness 9] , who has stated the following:
“But [Q] -- I'm always calling him [Q] , because that's what I call him, but when I say [Q] , I mean [Q] -- [Q] showed me a note from his younger brother, Dr [the brother of Q] , that he had met the managing director of Shell in Nigeria, one [then Managing Director] , who demanded as a condition for their intervening in that matter to withdraw those charges that we stopped our international campaigns against Shell.”
The claimants’ remark about acting contrary to the prognosis prohibition, they fail to recognise that the court held that they had failed to argue convincingly that and why the content of the [then Managing Director] reports, which incidentally they had taken as starting points for other accusations, incorrectly reflect the matters discussed. Their reference to written statements, drawn up years after the fact and now supplemented with hearsay testimony of [witness 9] , is insufficient. Since the claimants have failed to meet their obligation to furnish facts, the provision of evidence cannot be decided on.
The court would like to add that the offer of proof can also be disregarded for being irrelevant. The claimants’ accusation appears to be motivated by their opinion that the SPDC had an obligation under applicable Nigerian law to intervene in the trial in favour of [Q] and should not have attached conditions to this. However, the claimants have failed to argue concretely that and why this is the case. Nor have they asserted that the requested intervention in favour of [Q] – which was the specific subject at hand – would have had an effect on the trials against their husbands and on the outcome of those trials. This is all the more relevant since the requested intervention concerned the personal circumstances of [Q] , namely his health. Since the claimants have failed to argue all of this, the specific matters deliberated by [the brother of Q] and [then Managing Director] can be left undiscussed for this reason alone, and the offer of proof about the content of the conversation can be considered irrelevant.
In conclusion, the applications are rejected and the claimants are ordered to pay the costs of these proceedings, which are estimated up to this judgment at € 2,870 (€ 618 in court fee and € 2,252 in lawyers’ fees (4 points at rate II).
3 The decision
dismisses the applications;
orders the claimants to pay the costs of the proceedings, estimated at € 2,870;
declares this judgment provisionally enforceable as regards the cost order.
This judgment was rendered by judges mr. L. Alwin, mr. B. Meijer and mr. A.C. Bordes and pronounced in open court on 23 March 2022.