Onder 5.4 Gerechtshof Den Haag 18 december 2015

Shell argues, however, that the 6 December 2013 judgment of the Federal High Court of Nigeria implies that the right to action of Eric Dooh’s father against SPDC was extinguished by his death and that therefore Eric Dooh cannot (on appeal) act as his legal successor. This opinion was first advanced during the pleadings in stage 1. Until then Shell had limited itself to the argument that Eric Dooh was not entitled to continue the claim instituted by his deceased father as the latter’s successor in title. Until then Shell had not put forward the defence that Eric Dooh’s father’s claim had extinguished at his death (although the Federal High Court judgment, not submitted in evidence until two weeks before the pleadings, must have been known to SPDC as a party in the case for much longer). The 6 December 2013 judgment strictly addresses the question whether Eric Dooh was entitled to succeed his father in the action before the Federal High Court. This question is answered in the negative. Although the grounds stated by the Federal High Court can be interpreted as ruling that Eric Dooh’s father’s right to action extinguished at his death, this is not completely clear. In order to be able to decide about this with certainty further information about Nigerian law is needed, which is not available now; and Milieudefensie et al. have not had sufficient opportunity to obtain this due to Shell’s late reliance on the Nigerian judgment. Moreover, according to the judgment the issue in this action before the Federal High Court was just the payment of a fixed amount for compensation. It is not clear to what extent the Nigerian judgment is applicable to the present case, in which not only compensation for damages already sustained is sought, but also the recovery of further compensatory damages (which may therefore include damages that occurred after the death of Eric Dooh’s father), and which seeks more, such as an order to clean up the existing pollution and prevent any further contamination. Considering the late hour at which Shell advanced this there is no reason at this point, in stage 1, to investigate this further in the context of the claims under art. 843(a) CCP by, for example, obtaining an expert opinion about Nigerian law. If necessary, this issue may be the subject of (further) debate in stage 2. The conclusion is that this ground advanced by Shell constitutes no reason to dismiss the claim under art. 843(a) CCP.

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