Bodo vs Shell continues, but out-of-court settlement likely

Preliminary hearing continued on Wednesday in the case brought by 15,000 fishermen and residents of Bodo Community in Rivers State against Shell Petroleum Development Company Limited, over two oil spills from its pipelines in 2008 and 2009.

Sitting before Mr. Justice Akenhead at the Technological and Construction Court, lawyers cross-examined renowned Nigerian law experts, Justice Adesola Oguntade and Justice Olayinka Ayoola, who were invited to assist Bodo community and Shell, respectively, in their submissions ahead of a May 2015 trial date.

Questioning Justice Oguntade, Shell’s lawyers — led by Charles Gibson and Toby Riley-Smith — mainly stressed that no court in Nigeria had ever ruled that an oil company should be held liable for acts of vandalism on its pipelines; and that the Nigerian Oil Petroleum Act has no provision for punitive, exemplary damages, which Bodo is seeking.

At trial, Shell wants the case to be decided only under the OPA, with no recourse to Common Law, under which it may have to pay larger costs.

But Justice Oguntade disagreed, saying: “The OPA does not exclude the applicability of Common Law. You administer both simultaneously.”

Replying to other preliminary arguments raised by Shell, Justice Oguntade said: “You have a pipeline and your expectation is to make money from it. Is it right that the villagers who will be affected by the exploitation of minerals should be the worse off for it?

It is no defense to come to court and say ‘yes, I am in charge of this installation, and I am unable to protect [it].’”

In response, Justice Ayoola (who offered his opinions on behalf of Shell) told the court that the OPA is sufficient, and that the case can be heard solely within those parameters, when questioned by Richard Hermer, lawyer to Bodo community.

“The obligation in the provisions of the OPA has covered all conceivable courses of action that may affect the pipeline industry,” he said.

Arguments are supposed to be concluded tomorrow, after which the yardsticks for the May 2015 trial will be set.

It is possible Shell and Bodo will return to settlement talks, which broke down in September 2013 after Shell’s offer of £30m (worth about N7.5bn then) was rejected in Port Harcourt — a situation that means the case may never make it to a long-drawn, historic trial.