HT-2013-000028 - [2025] EWHC 847 (TCC)

That brings me lastly to the issue of the evidence of Nigerian law.

It is somewhat remarkable that, despite the fact that there is a decision of Akenhead J, and clear agreement between the parties, that this dispute is subject to Nigerian law, the court has not always had before it evidence of Nigerian law. It is trite to say that an English court decides matters of foreign law as if they were matters of expert evidence. That necessarily requires expert evidence of the foreign law to be placed before the court.

The only explanation for why no directions were given in respect of Nigerian law evidence by O'Farrell J in April last year, or at any time thereafter, is that it seemed to be common ground between the parties that no issues of Nigerian law arose and/or that they had already been decided by a court in this jurisdiction.

I observe that that would appear to be the case because of the decision of Akenhead J over a decade ago. His decision was concerned with a series of preliminary issues. The first of those preliminary issues was "... whether the claimants are only entitled to claim compensation in respect of the 2008 spills under the OPA", the OPA being the Oil Pipelines Act of 1956, a Nigerian statute.

Akenhead J decided that the claimants’ claims were not limited to compensation under that statute. The arguments in respect of that issue addressed whether common law remedies such as injunctions survived outside the statutory regime and that the judge’s reasoning on that issue formed part of his conclusion on the preliminary issue. He concluded that common law remedies did survive and it seems to me that his decision on the availability of an injunction outside the statutory regime formed a part of his decision on the preliminary issue and was not, as has been suggested at various points, simply an obiter part of his judgment. As Mr Hyam put it, the issue that Akenhead J had before him was whether the OPA was an exclusive or comprehensive regime and, in short, he decided that it was not.

Similarly, it is quite clear to me, as I have already said, that O'Farrell J proceeded on the basis that a mandatory injunction might be an available remedy and regarded herself as bound by the decision of Akenhead J.

However, Akenhead J’s reasoning was entirely based on whether a prohibitory injunction or quia timet injunction was available outside the statutory regime, and he was not specifically concerned with the issue of a mandatory injunction. As I put it to Mr Hyam in the course of argument, even if this were a matter of English law, the court would expect to be addressed on the principles on which an English court would grant a mandatory injunction, which are significantly different from those on which the court will grant a prohibitory injunction and were addressed in the submissions of the claimants for this application.

It would be, it seems to me, inappropriate for this court to proceed on the basis that, because the issue has not previously been raised, the common law of Nigeria is to be equated with the common law of England and Wales in respect of the principles relevant to the grant of a mandatory injunction.

I, therefore, indicated in the course of the hearing that the court would at the very least be assisted by evidence in relation to the Nigerian position on the grant of mandatory injunction and the claimants, although they oppose the defendant's application to adduce evidence of Nigerian law, were content to allow that limited scope of evidence to be adduced. Certainly, therefore, the defendant's application to adduce evidence of Nigerian law should be granted in respect of the mandatory injunction issue.

However, the evidence of Godwin Omoaka which it is sought to adduce goes somewhat further than that and deals more broadly with the question of whether injunctive relief is available at all. The claimants object to the admission of such evidence essentially on two grounds.

One is that the point has already been decided by Akenhead J and that this would cut across that decision. In that respect, they rely on what was said by Joanna Smith J when she dealt with this matter last November. At the time there was no report before her, but she indicated that the court might be assisted by Nigerian law evidence which did not cut across the decision of Mr Justice Akenhead. Insofar as Mr Omoaka's report does so, in arguing that the Nigerian law position is that the OPA is a comprehensive set of remedies and that no other remedies are available, the report clearly does cut across that evidence.

It was, therefore, my view for much of this hearing that I should require the defendant to edit the report to limit it to mandatory aspect of the injunction argument. However, what emerged in the course of the oral argument was that Mr Omoaka's position was that there had been subsequent decisions, or at least a decision, in Nigeria which changed the position from that which had been decided by Akenhead J.

That seems to me to pose a difficult issue for this court, which is whether this court should regard itself, on a foreign law, matter as bound by the earlier decision of an English court or should admit evidence as to an apparent change or clarification of the law of a foreign jurisdiction and decide the case on a different basis from that which had previously been decided by an English court.

That issue, with the greatest of respect, does not seem to have been anticipated or argued in the skeleton arguments that were presented to me, and I have to say came as something of a surprise in the course of this hearing. That is not to say that the issue was not addressed in Mr Omoaka's report but rather that its significance had not been highlighted to this court.

The position is frankly unsatisfactory. The decision that is relied on in this respect in Nigeria is one from 2017. These matters were therefore known to, or ought to have been known to, the defendant when the matter was before O'Farrell J, and, if there was going to be an argument in relation to Nigerian law in any respect, permission for expert evidence ought to have been sought at that time. It is, to say the least, unsatisfactory that such an application was left until the hearing before Joanna Smith J without a report available, and that a report was not then provided until December. It is equally unfortunate that there has then been a further three-month period before the matter came back before the court.

I am sufficiently concerned about the issue I have referred to as to the approach this court would take where Nigerian law has changed or clarified in the decade since the decision of Akenhead J that I will permit the defendant to rely on this report in its entirety and not merely in relation to the limited issue of the mandatory nature of the injunction sought.

I appreciate that that puts the claimants in some potential difficulty in responding to the report in short order. However, they have had it available to them since last December. They have indicated that they have a Nigerian law expert available to them, and even with that expanded scope the evidence is still principally concerned with two issues: (i) is the OPA an exclusive set of remedies and (ii) if not, what would be the approach in law or principle of a Nigerian court to the grant of a mandatory injunction?

There are still six weeks before the start of the trial and it does not seem to me to be unrealistic for the claimants to obtain a report from their Nigerian law expert in that period for the purposes of the hearing due to start in May. I would encourage the experts to hold a without prejudice meeting to see if there are matters that they can agree upon. That would obviously be the normal approach, but if that cannot be done until shortly before the trial, or even during the course of the trial but before they give their evidence, that is what will have to happen.

I do appreciate that much of that leaves the parties with quite a lot of work to do before the start of the trial, but I am sure they have always anticipated that to be the case.

I am not going to make any further decisions on any of the matters that have been raised before me or any further directions. I bear in mind that it is now 5.30pm. That will explain why I would ask the parties to seek to agree between them any consequential orders in terms of timing. There are some suggestions given in the skeletons and the witness statements I have so far seen, so I would hope that that would be capable of some form of agreement.