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Kiobel Writ: The Dutch battlefront against Shell

For years, Shell encouraged the Nigerian regime to take (more) effective measures designed to ensure Shell’s return to Ogoniland. Shell did this despite the fact that it had meanwhile learned from experience that in its actions, the regime frequently violated human rights and many people were killed.

By John Donovan

Earlier today we published an article about the latest legal moves on behalf on Esther Kiobel in the US courts against a Shell law firm. We now return to the publication of information about her legal action against Shell in the Netherlands. The numbered paragraphs below are extracted from the 138 page Writ served on multiple Royal Dutch Shell companies on 28 June 2017. As can be seen in the footnotes, the allegations are supported by voluminous evidence.

Extracts begin

8.8 Shell Nigeria Shell operated as a single entity

8.8.1 Introduction

334. In the period 1990-1995 SPDC did not act independently, but expressly as part of the Shell Group. Not only did it convey this to the outside world,471 but it was also evident from its internal organisation, communication and lines of accountability. The parent companies exerted influence and control over SPDC, directly and through the service companies, but also involved themselves directly in the Ogoniland issue, the NLNG project and the Ogoni 9 trial. Since the course described in the previous chapter was pre-eminently determined by the parent companies, both the parent companies and SPDC are complicit in the violations of fundamental rights of the claimants and their late spouses.

8.8.2 Identical interest

335. As substantiated in chapter 3.1, oil exploitation in Nigeria was very important to the Shell Group: in the years 1991-1995 Nigeria was on average responsible for 12.9% of the Shell Group’s total oil production and therefore the third most important country of production for Shell.472 In his deposition in the American Kiobel case Robert Sprague, Head of Operations and Liaison at SIPM and board member of SPDC from 1991-1994, said that SPDC was one of the Shell Group’s important operating units.473 Chapter 3.2 sets out how the production in Ogoniland in its turn was very important for the revenues in Nigeria. The withdrawal from Ogoniland therefore had a major impact on Shell’s production in Nigeria.474

336. The profit that SPDC made was paid out as a dividend to Shell’s shareholders and ended up almost entirely in the books of the parent companies.475 The ability to resume the activities in Ogoniland – which the regime tried to effectuate with Operation Restore Order in Ogoniland – was therefore very important, not only for SPDC, but also for Shell as a whole.

8.8.3 A single, centrally managed Shell organisation

337. The parent companies exercised a great deal of influence over the operations of the various companies within the Shell Group. This influence is reflected first of all in the institutional structure. Up until 2004, the parent companies named the Managing Directors of both Group Holding Companies.476 The Managing Directors of both parent companies were also in the so-called Committee of Managing Directors (CMD).477 The CMD had an important role in the Shell Group. The Group Governance Guide (GGG) of the Royal Dutch/Shell Group describes the management approach in the Shell Group before 2005 and says the following about the CMD:

“CMD advises the Group Holding Companies on investments in Shell companies and on the exercise of shareholder rights for these companies. CMD guides the Group by providing strategic direction, support and appraisal to Group Business. The strategy, planning, appraisal and assurance cycle […] ensures that Group strategy is aligned with the interests of the Parent Companies.”478

338. The Managing Directors of the parent companies were also called the Group Managing Directors (GMDs). Not only did they form the CMD, they also sat on the boards of the two Group Holding Companies.479

339. The Group Managing Directors came together with the other board members of the two parent companies and Group Holding Companies in the Conference. Formally, the Conference was a consultative body in which “Group strategy, organisation, plans and performance, as well as risks and the system of internal control” were discussed.480 In practice important decisions for the Shell Group were taken in these consultations, rendering separate discussions in the different boards superfluous.481 Through the CMD and the Conference the two parent companies effectively functioned as a single organisation and they had a great deal of influence over the performance of the companies in the Shell Group.

340. Operating companies in the different countries where Shell operates are responsible for the actual extraction and exploitation of oil and gas fields.482 SPDC is one of these companies. The GGG says the following about this:

“The Group Holding Company boards, supported by CMD, set clear expectations as to how such companies are to be run, by providing guidance on policy and strategy. Even where the Group does not have a controlling interest in a Shell company, the Group Holding Companies still try to influence how such companies are run, particularly where necessary to protect Group reputation.”483

341. Through the managing directors of the parent companies (the Group Managing Directors) on the CMD and on the boards of the Group Holding Companies, the parent companies ensured that all the companies in the Shell Group acted in the group interest, especially when Shell’s reputation was at stake. The operating companies’ operations were therefore centrally coordinated.484 This happened for instance through the assessment of an annual Country Business Plan (CBP) as part of Group policy. To this end the CBPs were discussed in the service companies in The Hague and London (SIPM and SIPC) and then submitted to the CMD and the Conference by a representative of SPDC and service company SIPC for approval by the parent companies.485

342. SPDC was also managed directly by the parent companies in practice. The Group Managing Directors were also the managing directors of the two parent companies and they both sat on the boards of both the two holding companies and the service companies SIPC and SIPM.486 As Group Managing Director, John Jennings was responsible for Exploration and Production from 1987-1991, while at the same time he acted as Exploration and Production coordinator at service company SIPM;487 the same applied to Mark Moody-Stuart, who was GMD from 1991 and also exploration and production coordinator at SIPM.488 In their role as exploration and production coordinator at SIPM both Mark Moody-Stuart and John Jennings therefore technically had to report to themselves as Managing Director.489

343. Not only did the Group Managing Directors occupy different positions in the Shell Group. The service company contacts to whom the Managing Director of SPDC also had to report were also on the board of SPDC. Robert Sprague, employed at SIPM and a board member of SPDC, for instance, had to report to Mark Moody-Stuart, employed at (and a board member of) SIPM and a board member of the UK parent company Shell Transport and Trading.490

344. Board members of SPDC and board members of the parent companies therefore came together in the service companies. In the case of SIPC too there was a direct line of communication from SPDC to the parent companies: Dick van den Broek, employed at (and a board member of) SIPC and a board member of SPDC, reported directly to Henny de Ruiter, a board member of SIPC and a board member of the Dutch parent company Royal Dutch Petroleum Company.491 On occasion the hat swapping was cut out altogether and reports were made direct to the parent company.492 This overlapping corporate structure is shown schematically below:

8.8.4 International staff worked for the Shell Group

345. The Shell employees who held important positions at SPDC, such as Anderson and Watts, but also international staff in lower positions, were recruited, coached and supervised by the service companies, in which the members of the Committee of Managing Directors served. International staff were in fact employed by Shell International, which not only determined their career from London or The Hague, but also – wholly or partially – paid their salary. There they kept, even when they were placed in an operating company, a mentor who gave them guidance according to a parenthood system.493 A subsequent posting was also set by London or The Hague; upon dismissal, expats were of the opinion that “their interests in ‘the Hague’ had not been defended well”494: the international staff was accountable to the central organization within the Shell Group in The Hague or London, not to the operating company where they were employed. In all the crucial positions therefore the lines of accountability ran directly to the service companies and the parent company. This process, according to Robert Sprague, Head of Operations and Liaison at SIPM, is “one of the critical success factors for our business”, in which “our business” is described as “The Shell exploration and production business”.495

8.8.5 The parent companies determined the course and attitude of SPDC in the Ogoni crisis

346. Due to the economic importance of SPDC to the Shell Group and the reputational risk involved with the Ogoni crisis, Shell decided at an early stage to tackle the problems in Nigeria at Group level. To this end it, set up a Nigeria Issue Group and kept itself informed of everything through the SPDC’s Managing Director’s Nigeria Updates.

347. The previous chapter has already shown that SPDC determined its course in consultation with and managed by the parent company, inter alia through visits, telephone conversations and the Nigeria Updates. The contact intensified as the unrest and, in light of the Ogoni 9 trial, the public interest grew. According to John Jennings:

“It would be perfectly normal, particularly given the circumstances in Nigeria, for there to be regular telephone conversations between Brian Anderson and Van den Broek certainly, and maybe Brak, and maybe Van Den Bergh.”496

348. By the end of 1992, Philip Watts, then the Managing Director of SPDC, had already sent a memo to, among others, Dick van den Broek (Regional Coordinator West Africa) and Mark Moody-Stuart (Group Managing Director) in which the need for far-reaching coordination and cooperation within the Group was stressed and consolidated.497 The memo gave a description of the “growing pressures” in Nigeria and referred to Ken Saro-Wiwa. Watts told the Group that “efforts have been made to enhance relations with Government officials at all levels” and “efforts have been made to establish closer link with the Governors and Deputy Governors in each of the states”.

349. The situation in Ogoniland prompted Shell to arrange a meeting in February 1993, at which both service company representatives as SPDC-representatives (Nmaemeka Achebe, Dozie Okonkwo en Precious Omuku) were present. The minutes of the meeting (exhibit 132) show that Ken Saro-Wwiwa and MOSOP are regarded a threat to Shell’s international reputation, and that this requires “urgent attention”.498

350. The Shell Group decides that the most important activists should be carefully monitored, in order to prevent further reputational damage:

“SPDC and SIPC PA [Public Affairs] departments to keep each other more closely informed to ensure that movements of key players, what they say and to whom is more effectively monitored to avoid unpleasant surprises and adversely affect the reputation of the Group as a whole”.499

351. Internal Shell documents confirm that it did indeed keep a close eye on Saro-Wiwa and MOSOP in the years that followed.500

352. The Public Affairs staff of the Shell Group were deployed to ensure that Shell’s international reputation was not damaged too much by the Ogoni crisis. This policy was decided by the parent companies.501 In particular when the Ogoni crisis increasingly attracted international attention from 1993, the communication within the Group was strengthened. Additional visits were also scheduled, by an Exploration and Production team and a Public Affairs team and by the PA coordinator. 502 

353. At the time of the disturbances in 1993, there was, through the Nigeria Updates and (other) telex messages, direct contact several times a week between Managing Director Watts and the service companies,503 among others with Mark Moody Stuart, Exploration and Production coordinator at SIPM (“EP”) and Group Managing Director. The reporting referred for instance to arming the police, to demonstrations in Ogoniland and to talks that took place between SPDC and Ken Saro Wiwa.504 On 17 January 1994 SPDC’s Managing Director sent a summary of the main developments in Nigeria directly to two managing directors of the parent companies.505 Messages were also regularly sent to Carl Herkströter (MGDCH, Group Managing Director), Maarten van den Bergh (MGDMB, Group Managing Director), and Tony Brak (PA, Head of Public Affairs),506 or completely to all the Group Managing Directors.507

354. From March 1995 a Group-wide Nigeria Issue Contact Group was set up, one of whose tasks was to implement a Group Wide Action Plan.508 In the context of this, SIPC held a two-day workshop about the situation in Nigeria.509 Press releases and other public documentation were also monitored by the Committee of Managing Directors (CMD), with or without the intervention of the service companies, prior to publication; Public Affairs, in short, was a Group matter.510

355. Shells negotiations with MOSOP regarding an amelioration of the situation of the Ogoni 9 were also conducted from both Nigeria and London; the strategy was coordinated.511 Following the conviction of the Ogoni 9, Anderson and Van den Broek were instructed by the powers that be not to make any statements about the legitimacy of the trial.512 

356. In light of this group strategy that was coordinated by the parent companies, it is not surprising that Anderson acts as a representative of the Shell Group in talks with Abacha.513 The fact that Anderson regarded SPDC as an operational arm of the Shell Group also became clear when he said:

“We should seriously consider putting some Group money into the Washington lobby group that Mobil et al is involved with […] I am worried that the US could turn out to be a greater threat in the end than the EU countries”.514

8.8.6 The parent companies directed the negotiations regarding the NLNG

357. Major new projects were initiated, approved and financed by the parent companies. This was likewise true of the NLNG project, about which agreement was reached between Shell and the Nigerian regime a month after the execution of the Ogoni 9. The decision not to intervene, nor to try to influence the expected outcome of the trial against the Ogoni 9 through quiet diplomacy was therefore made by the parent companies.

358. Abacha’s coup in November 1993 and the disapproving reactions of the international community that followed 515 did not deter Shell. On the contrary, in December 1993 it strengthened its partnership with the Nigerian regime by, for instance, increasing its share in NLNG from 20% to 24%.516 In 1995 the parent companies then approved and financed new off-shore licences for SNEPCO.517 NLNG too was an investment by the Shell Group518 on which the parent companies decided (through the CMD and the Conference).519 Such a large-scale investment is only approved if it is in line with the Group plan and therefore serves the interest of the parent companies.520

359. Within NLNG, a company in which the Nigerian regime held 49% of the shares and Shell 24% of the shares,521 there was talk of a “strong Shell management role”.522 Both the Managing Director and the Technical Director, the key management positions, came from Shell.523 While Shell Gas B.V. (a subsidiary of the parent companies) held the shares in the NLNG project524 and the NLNG Managing Director also came from Shell, the negotiations with Abacha and guidance on this went through Anderson, the Managing Director of subsidiary company SPDC. This again shows that the Shell Group in Nigeria acted as a single entity.

360. The parent companies were kept informed by Anderson of every step so that they could give input in the negotiations.525 Anderson for example wrote in a Nigeria Update on 20 May 1994:

“I have an appointment to see the Minister of Petroleum in Lagos on Tuesday Morning […] I will inform him of the state of play and of any perceived problems (I hope to get a briefing from WA and PA before I leave for this meeting at 0830 hrs).”526

361. Anderson also proposed setting up an NLNG Steering Committee, in which the NLNG project, the MOU negotiations with the Nigerian regime and the strategy for the following months was discussed.527 Both the service companies and the parent companies were actively involved in the MOU negotiations.528 Anderson consistently presented himself to Abacha as representative of the parent companies. It is clear that he acted in this capacity and not in his role of managing director of SPDC, which did not itself hold any shares in the project. Anderson also referred to “we in Shell” when attaching conditions to the approval of the NLNG project at the time of the Final Investment Decision (FID); he also said that it was essential that the Nigerian regime gave shareholders the confidence that it would respond to the cash calls that would accompany the NLNG project.529

362. The negotiations about the NLNG project continued unrelentingly during the trial.530 Just before the start of the trial one of the managing directors of the parent companies paid a visit to SPDC, at which the Ogoni 9 trial and the negotiations for the NLNG project were discussed.531 A month before the executions the Ogoni 9 trial was also discussed by both parent companies.532 Four days after the executions of the Ogoni 9, and again a week later, the (managing directors of the) parent companies held a meeting with PA coordinator Brak and SPDC board members Van Den Broek and Sprague about the NLNG project.533 The project was finalised that same month.534

8.8.7 Meetings with the regime in Nigeria and London

363. The fact that the Nigerian regime dealt with the Shell Group as a whole, managed by the parent companies, is also evident from the fact that Dick van den Broek maintained contact with representatives of the Nigerian regime. Dick van den Broek reported directly to one of the Group Managing Directors, and sat with them on the board of the UK service company SIPC. The aforementioned Shonekan, Abacha’s number two, had several appointments with Van den Broek.535 Van den Broek also met such individuals as the Nigerian High Commissioner, the Minister of Petroleum, the Minister of Finance and the Director-General of Petroleum in London.536 Alan Detheridge (Area Coordinator for Nigeria) and Tony Brak (Head of Group Public Affairs) also met the Minister of Petroleum.537

364. According to Herkströter, the chairman of the board of the Dutch parent company and the CMD, it was normal within the Shell Group that “personnel employed by the group would meet with Nigerian officials and discuss events in Nigeria in the absence of representatives of SPDC”.538

365. The service companies even coordinated their media policy regarding the trial with the Nigerian regime. This is evident from a meeting between the likes of Dick van den Broek, Alan Detheridge, Tony Brak and the High Commissioner and army and police representatives of the Nigerian regime at Shell Centre in London.539 When the Nigerian High Commissioner proposed starting a “television/radio/press/leaflet campaign”, Shell discouraged him from doing so and presented its own PA strategy. When the film that Shell wanted to make was discussed, the High Commissioner did not fail to indicate that “if [Shell] encountered any difficulties (with respect to permits, etc) in shooting the film we were to contact him and he would then “use his influence”.” The conclusion of the meeting: “I think that [the High Commissioner] came away with the impression that we were taking the appropriate action”.540

8.9 Conclusion

366. Under Nigerian law, complicity is inferred from the actions of the parties involved. According to the case law that Okafor discussed, the following can play a role in this:

  • that the parties joined forces for a common purpose and/or;
  • one of the parties supported the other party and/or;
  • one of the parties encouraged or incited the other party.541

367. Each of these circumstances applies in the case at issue. This chapter describes the extent to which Shell and the Nigerian regime were linked and how intensively they collaborated for the purpose of optimising the oil proceeds in Nigeria. The collaboration was intensified when the freedom movement of the Ogoni increased in the 1990s and threatened the oil production by Shell.

368. For Shell to return to Ogoniland and resume its oil production, it was necessary to put down MOSOP’s protests. Shell accepted the fact that this entailed many victims, including Kiobel, Bera, Eawo and Levula. That Shell and the regime had joined forces for a common purpose is inter alia demonstrated by the fact that Shell made sure that the shared economic interest in the oil production in Ogoniland was consistently pointed out to the regime in relation to the protests (i). In Shell’s name and to protect Shell’s operations, the regime responded with its characteristic disproportionate violence (ii). Ogoni who had been arrested and detained during Operation Restore Order had to sign a statement that they would cease their protests against Shell before they were released (iii). Despite this, Shell failed to distance itself from the regime or the Ogoni 9 trial at any time (iv), even though Shell did not fail to openly criticise MOSOP and Saro-Wiwa (v). What is more, Shell repeatedly told Abacha that even though Shell could not openly support the regime, it pursued a continuation and intensification of the economic collaboration (vi). Shell inter alia lived up to this promise when the NLNG project was clinched; this was one month after the Ogoni 9 had been executed (vii). In part so as not to jeopardise the success of this project, Shell coordinated its press strategy around the Ogoni 9 trial with the regime (viii). During the trial, Shell physically demonstrated their shared position and goal, when its attorney joined with the prosecutor with a watching brief for Shell (ix). Its motives were crystal clear when Brian Anderson suggested to Owens Wiwa that Shell would thwart the outcome of the trial, provided that MOSOP would moderate its tone (x).

369. To realise their common goal, Shell closely collaborated with and supported the regime, in particular Okuntimo, in their actions to clean up in Ogoniland; during the trial, this resulted in the wrongful execution of the Ogoni 9. Shell inter alia paid police officers, MOPOL officers and marines (i); provided logistics support by making vehicles and facilities available (ii) and even issued an arms tender (iii). Shell maintained its own intelligence service with the regime (iv), provided the regime with precise information regarding the locations of demonstrations (v) and consistently hired out Shell employees to the Nigerian state machine (vi). Shell maintained close contacts with RSISTF Lt. Col. Paul Okuntimo, and paid him for his services with a view toward “a favourable disposition in the future” (vii). At the time of the Ogoni 9 trial, Shell received the judges at its compound (viii) and its attorney exchanged information with the prosecutor during the Ogoni 9 trial (ix). Its attorney was also present when witnesses were promised money and a job with Shell in exchange for their incriminating statements (x).

370. For years, Shell encouraged the Nigerian regime to take (more) effective measures designed to ensure Shell’s return to Ogoniland. Shell did this despite the fact that it had meanwhile learned from experience that in its actions, the regime frequently violated human rights and many people were killed. Shell’s encouragement led to Operation Restore Order in Ogoniland and to the trial in which nine Ogoni leaders were sentenced to death. All this time, Shell continued to request the regime to intervene (i). In this context, Shell invariably pointed out the economic consequences that the protests had for the Nigerian state (ii). Shell passed on the locations where protests were to be held (iii) and provided the regime demonstrably incorrect information regarding the nature and threat of those protests (iv). Without any concrete evidence and fully aware of the consequences, Shell identified Saro-Wiwa and MOSOP as the parties that were guilty of destruction and violence in Ogoniland (v). After this accusation had resulted in the wrongful arrest and detention of the Ogoni 9, Shell did not attempt to correct the consequences of its actions, but increased the pressure by intensifying the collaboration with the regime, inter alia in the NLNG project (vi).

371. In brief, Shell “set the machinery in motion” that among other things led to the death of the spouses of the claimants.542 Before, during and after the end of the trial, Shell in part determined how history would unfold. All the actions that Shell actively undertook in that period only contributed to the fate of the Ogoni 9 and the claimants.

372. If Shell had envisaged a different course of history – the outcome of which it already knew in advance – it was in the position to make the regime change its mind. The fact that Shell failed to take any serious attempt to this end at any stage of the events again demonstrates that in reality, the regime implemented a wish that was shared and supported by both parties.


373. The claimants believe they have substantiated their statements sufficiently above and supported them with evidence. In so far as the court considers further provision of evidence appropriate, the claimants offer to prove their statements in more detail, without assuming any burden of proof that does not rest with them. This includes calling in experts and hearing witnesses.

374. Ledum Mitee, Femi Falana, Emmanuel Ukala, Olisa Agbkoba, Uche Onyeakucha, Naayone Nkpah, Nick Ashton-Jones, Boniface Ejiogu and Blessing Kpuinen, among others, could testify before the court. It should be noted that none of these witnesses is resident in the Netherlands and that most of them have already submitted a statement.

375. Finally, the considerations listed under chapter 5.4 regarding the evidence that has already been submitted in the United States but was marked confidential, should be noted. These documents presumably concern Shell’s internal communication and the relationship with as well as the management by the parent company.


376. In the event of a violation of fundamental rights, under Nigerian law a court has broad discretion to decide what measures are appropriate in the circumstances:

“The Preamble to the Fundamental Right Enforcement Rules, 2009 requires that for the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. An applicant seeking redress for the infringement of this fundamental right is entitled to, in addition to the relief as to declarative and injunctive, award of damages. It is therefore safe to conclude that a finding that a fundamental right of a Nigerian citizen has been infringed upon attracts compensatory damages and in some cases, exemplary damages.”543

In these proceedings the claimants are seeking a declaratory decision of unlawfulness and liability, and a public apology by Shell.

Victims of a violation of fundamental rights are automatically entitled to compensation under Nigerian law, even if no specific sum is claimed:

“‘[…] The procedure for the enforcement of the Fundamental Human Rights was specifically promulgated to protect the Nigerians’ fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation, even if no specific amount is claimed.’ So, fundamental rights matters are placed on a higher pedestal than the ordinary civil matter, in which a claim for damages resulting from a proven injury has to be made specifically and proved.”544

No distinction is made here between infringements of human rights by the State and by other parties, such as Shell:

“The position of the law is that where fundamental rights are invaded not by government agencies but by ordinary individuals, as in the instant case, such victims have rights against the individual perpetrators of the acts as they would have done against State actions. […] It follows therefore that in the absence of clear positive prohibition which precludes an individual to assert a violation or invasion of his fundamental right against another individual, a victim of such invasion can also maintain a similar action in a court of law against another individual for his act that had occasioned wrong or damage to him or his property in the same way as an action he could maintain against the State for a similar infraction.”545

Under Nigerian case law a distinction is made between compensatory damages and exemplary damages in the case of compensation for human rights violations.546 The purpose of the first form of compensation is to compensate the victim for the damage suffered. The second serves to punish the perpetrator and to prevent recidivism. The claimants are claiming both forms of compensation.

The damage suffered by the claimants consists of both material and immaterial damage, both of which are eligible for compensation under Nigerian law.547 The claimants can also claim compensation for the damage that their husbands suffered as a consequence of the infringement of their fundamental rights.548

The material damage for the claimants consists among other things of lost financial support during the imprisonment of their husbands and following their execution. In all cases the husband was the family breadwinner. Esther Kiobel and Victoria Bera also had to flee Nigeria, whereupon their possessions in Nigeria were confiscated by the regime. Blessing Kem Nordu also had to leave her home following the execution of her husband after her fellow villagers drove her out. She had to rebuild her life in another village in Ogoniland. Esther Kiobel incurred medical expenses as a result of the ill- treatment and assault by Shell protégé Paul Okuntimo.

As was stated, the claimants can also claim compensation for the damage that their husbands suffered as a result of their unlawful arrest and detention, their inhuman treatment and torture in detention, the violation of their right to a fair trial and their unlawful execution.

The claimants have also and above all suffered immaterial damage through the loss of their husbands, first of all emotional loss, which is eligible for compensation under Nigerian law.549 Esther Kiobel and Victoria Bera were also themselves victims of unlawful detention, and Esther also of assault, ill-treatment and attempted rape by Shell protégé Paul Okuntimo.

The claimants ask the court to have the precise extent of this compensation determined in follow-up proceedings for the determination of damages and to this end now demand a declaratory decision.550

Nigerian law also provides for the option of demanding a public apology, in the case for example of unlawful arrest and detention.551 In light of the violations and the long road to justice for the claimants, an apology is an appropiate measure. Consequently, claimants also request that Shell makes a public apology for its role in the events described in this writ.

Extracts end


471 Exhibit 59: Public Deposition Philip Beverly Watts, 16 April 2004. Watts states: “So our joint venture partners, they not only get SPDC as the operator; they also know that there is a wealth of support from the Shell group world wide giving support and help to SPDC to do a world class job.”, pp. 64-65.

472 20-F Form United States Securities and Exchange Commission,1995, N.V. Koninklijke Nederlandsche Petroleum Maatschappij and The Shell Transport and Trading Company, plc, p. 13 (exhibit 162).

473 Public Deposition Robert Sprague, 10 February 2003 (exhibit 55), pp. 10, 106-107 “once we withdrew from Ogoniland it was, there was a large impact on production, so I am sure I prepared in some discussions because it was a big chunk of production which we didn’t want to lose, so it is the kind of thing we worry about”.

474 See chapter 3.2 (around 10%).

475 Annual accounts year 1992 SPDC (exhibit 157), p. 3. This document shows that 480 million dollars of the 498.8 million dollars’ profit were transferred. 96% of the profit was therefore paid to one of the Group Holding Companies, which in turn paid it to the two parent companies; Public Deposition John Jennings, 26 February 2004 (exhibit 34), pp. 83-84, 135; Annual report Koninklijke Nederlandsche Petroleum Maatschappij 1995 (exhibit 160), pp. 50, 60; Public Deposition Alan Detheridge, 24 February 2003 (exhibit 21), p. 64: “Q: When Royal Dutch petroleum and Shell Transport and Trading issued an annual report […] the financial information is the accumulation of the financial information of all the operating companies; is that correct? A: It is the financial accumulation of the group, which is largely, of course, the operating companies because that’s where the income comes from”.

476 Group Governance Guide Royal Dutch/Shell Group, December 2001 (exhibit 169), p. 2.

477 Annual Accounts 1997 Royal Dutch Petroleum Company (exhibit 167), p. 16.

478 Group Governance Guide Royal Dutch/Shell Group, December 2001 (exhibit 169), p. 4.

479 Group Governance Guide Royal Dutch/Shell Group, December 2001 (exhibit 169), p. 2. The chairman of the Group Holding Companies was also the chairman of one of the parent companies, see public deposition John Jennings, 26 February 2004 (exhibit 34), p. 116.

480 Group Governance Guide Royal Dutch/Shell Group, December 2001 (exhibit 169), p. 3.

481 The substantive discussions and decision-making took place in the Coonference, the decisions were subsequently formally confirmed by the two boards in separate board meetings, declaration Jordan I. Siegel, 5 February 2009 (exhibit 54), para. 5; public deposition John Jennings, 26 February 2004 (exhibit 34), pp. 129-130. 482 Annual accounts 1997 Royal Dutch Petroleum Company (exhibit 167), p. 1.

483 Group Governance Guide Royal Dutch/Shell Group, December 2001 (exhibit 169), p. 3.

484 Public Deposition John Jennings, 26 February 2004 (exhibit 34), pp. 23-24: “All those activities run through local operating companies […] the activities of all those companies are coordinated centrally.”; Public Deposition Brian Anderson, 13 February 2003 (exhibit 17), pp. 84-85: Group Planning were a specialist group in Shell that helped operating companies think through and build scenarios, which is a process that Shell uses for assisting in planning. […] The draft is prepared […] with the help of the Group Planning people, the specialists in the technology, if you like, for developing scenarios, which is a thing we do – we used to do in Shell.”.

485 Public Deposition Sprague, 10 February 2003, pp. 54-59 (exhibit 55); Minutes of meeting Conference 14 October 1992 (exhibit 66): CBP was also submitted to the Conference; Public Deposition Cornelius Herkströter, 14 April 2004 (exhibit 28), p. 20: “There was a structure for reports by operating companies to the Committee of Managing Directors. The larger operating companies, and SPDC was one of the larger operating companies, would come in once a year to present to the Committee of Managing Directors their plan for the coming year.”; Public Deposition Brian Anderson, 13 February 2003 (exhibit 17), p. 83; See also Public Deposition John Jennings, 26 February 2004 (exhibit 34), pp. 129-130.

486 Exhibit 42: Public Deposition Mark Moody-Stuart, 15 April 2004, pp. 17-21; Public Deposition John Jennings, 25 February 2004 (exhibit 34), pp. 116-117; Cf. Annual Accounts Shell International Petroleum Company 1992 (exhibit 158), p. 1. The Chairmen of the parent companies were usually also the chairmen of the Group Holding Companies, see Public Deposition John Jennings, 26 February 2004 (exhibit 34), p. 116.

487 Public Deposition John Jennings, 26 February 2004 (exhibit 34), pp. 27-28.

488 Public Deposition Mark Moody-Stuart, 15 April 2004 (exhibit 42), p. 14.

489 Public Deposition Mark Moody-Stuart, 15 April 2004 (exhibit 42), p. 14.

490 Directors Report and Accounts, Shell International Petroleum Company, 1992 (exhibit 158), p. 1; Corporate accounts SPDC 1992 (exhibit 157), p. 3; Public Deposition Mark Moody-Stuart, 15 April 2004 (exhibit 42), pp. 17-18.

491 Exhibit 19: Public Deposition Richard van den Broek, 17 February 2003, p. 12. See also the Annual Accounts Shell International Petroleum Company, 1992 (exhibit 158), p. 1; Annual Accounts 1992 SPDC (exhibit 159), p. 3.

492 On 17 January 1994 Brian Anderson sent an update directly to two managing directors of the parent companies, that is Mark Moody-Stuart, who at that time was also Exploration and Production Coordinator (indicator “EP”), and Henny de Ruiter (indicator MGDHR) (exhibit 85); On 14 November 1995 he sent a telex to Maarten van den Bergh about his meeting with Shonekan the day before, asking that it be forwarded to Dick van den Broek (exhibit 123).

493 Exhibit 245: History of the Royal Dutch Shell, part 3, Keetie Sluyterman, p. 288. Shell describes this as “the disciplinary effect of the ‘godfathers’”.

494 Ibid, pp. 288-289.

495 Public deposition Robert Sprague, 10 February 2003 (exhibit 55), pp. 96-99.

496 Public Deposition Jennings, 26 February 2004 (exhibit 34), p. 166.

497 Letter from Philip Watts to, amongst others, Dick van den Broek (Regional Coordinator West Africa) and Mark Moody-Stuart (Group Managing Director), 4 December 1992 (exhibit 67).

498 The minutes state: “Ken Saro-Wiwa is using his influence at a number of meetings […]. [He] will be using every opportunity made available by 1993 being the UN’s declared Year of Indigenous Peoples. […] The main thrust of the activists now seems to be directed at achieving recognition of the problems of oil-producing areas by using the media and pressure groups. By concentrating accusations against Shell, especially internationally, they feel that the publicity generated will have greater impact. Herein lies risk for Shell. Urgent attention, therefore, is being directed to the issue.”.

499 Ibid.

500 Background Briefing Note SPDC regarding the press conference about Ken Saro-Wiwa dated 24 May 1993 in The Hague (exhibit 74); Telex SIPC to SPDC, 2 June 1993 (exhibit 75): “We heard on the grapevine […] that a meeting would take place with Ken Saro-Wiwa on 15/5 […] We would have appreciated it if group PA could have been advised directly sooner”; Ogoni Briefing Note: Recent Events at Korokoro, 5 November 1993 (exhibit 82); Nigeria Update, 27 June 1994 (exhibit 97), p. 4; Nigeria Update, 13 April 1994 (exhibit 90), p. 4; Nigeria Update, 2 May 1994 (exhibit 92).

501 For example exhibit 81: Background to the Nigerian Issue, 1993. SPDC and Group PA produce a leaflet together in March 1993 for use in Nigeria and other external purposes. The Shell Group also produces a briefing note for internal and external use, see p. 10.

502 Background to the Nigerian Issue, 1993 (exhibit 81), pp. 10, 13.

503 Nigeria updates: 17 January 1994 (exhibit 85), 14 March 1994 (exhibit 87), 5 April 1994 (exhibit 89), 13 April 1994 (exhibit 90), 25 April 1994 (exhibit 91), 2 May 1994 (exhibit 92), 20 May 1994 (exhibit 93), 30 May 1994 (exhibit 94), 6 June 1994 (exhibit 95), 12 June 1994 (exhibit 96), 27 June 1994 (exhibit 97), 10 July 1994 (exhibit 98) 20 July 1994 (exhibit 99), 26 July 1994 (exhibit 100), 28 July 1994 (exhibit 101), 4 August 1994 (exhibit 102), 5 August 1994 (exhibit 103), 8 August 1994 (exhibit 104), 12 August 1994 (exhibit 105), 22 August 1994 (exhibit 106), 23 August 1994 (exhibit 107), 24 October 1994 (exhibit 108), 6 April 1995 (exhibit 114), 10 July 1995 (exhibit 115), 23 July 1995 (exhibit 116), 25 September 1995 (exhibit 117), 16 October 1995 (exhibit 120), 2 November 1995 (exhibit 122), 6 December 1995 (exhibit 126), 11 December 1995 (exhibit 127).

504 Exhibit 76: Letter Philip Watts 13 August 1993; Exhibit 77: Letter Philip Watts 17 August 1993.

505 Situation review from the managing director of SPDC to, among others, Henny de Ruiter (indicator MGDHR) and Mark Moody-Stuart (indicator SIPM EP), 17 January 1994 (exhibit 85).

506 Nigeria Update, 4 August 1994 (exhibit 102); and Nigeria Update, 22 August 1994 (exhibit 106).

507 Nigeria Update, 23 July 1995, p. 8 (exhibit 116).

508 Exhibit 111: Note Martin Christie to at least 16 recipients within the Shell Group, 10 March 1995: “One of the actions from the International Workshop on the Nigeria Issue (Pennyhill Park) was to establish an e-mail network to keep all informed of the latest developments. This is now in place and this note contains the first instalment.”. 509 Exhibit 121: Telex from M. Christie to the Nigeria Issue Contact Group, 23 October 1995.

510 Exhibit 119: Minutes of meeting of the Conference, 11 October 1995, pp. 12-13; exhibit 124: Minutes of Meeting of the CMD, 17 November 1995; Exhibit 125: Telex from Caroline Tipper, Media Relations Shell Centre: “The following is the text of an advertisement which has been approved by CMD for use in UK Sunday newspapers. You may also wish to run these advertisements in your own country – NO changes to the text please.”; In the Briefing Notes from John Barry to Brian Anderson regarding the visit of Maarten van den Bergh (indicator MGDMB), 1 February 1995 (exhibit 110): “Environment and Communities public briefing notes are expected from SPDC (drafts by mid-February) following in the footsteps of the Ogoni Issue letter. These notes should fully reflect what was said to CMD”; See also the Privilege log (exhibit 198), document numbers 16-17, 65, 80-85, which show regular meetings between Tony Brak (head of Public Affairs of the Shell group) and Van den Broek.

511 See interoffice Memorandum Brian Anderson to Alan Detheridge, 22 August 1995 (exhibit 116a) and see also chapter 8.6.3.

512 Public Deposition John Jennings, 26 February 2004 (exhibit 34), p. 176.

513 Nigeria Update from Brian Anderson, 23 July 1995 (exhibit 116): When Abacha has comments on the media policy of the Shell Group as a whole (he refers for example to statements by a representative of a London Shell entity), Anderson continues to talk of “we”, “us” and “our” and he defends the Shell Group’s international media policy with regard to Nigeria; Highlights of Keynote Address, 19 April 1994, appended to Nigeria Update from Brian Anderson, 25 April 1994 (exhibit 91), in which Anderson consistently speaks from “Shell”. Only when it is specifically about employees of SPDC is “SPDC” used.

514 Exhibit 127: Nigeria Update from Anderson, 11 December 1995, p. 5.

515 See Chapter 3.3.

516 Document from the British High Commissioner in Lagos regarding the NLNG project, January 1994 (exhibit 263).

517 Public deposition Brian Anderson, 13 February 2003, (exhibit 17), pp. 52-53.

518 The financing for NLNG came from the Shell Group, see Public Deposition Brian Anderson, 13 February 2003 (exhibit 17), p. 50

519 Public Deposition Robert Sprague, 10 February 2003 (exhibit 55), p. 89. GMD Van Den Bergh states, for example, at a meeting of the Conference that “it was possible that a final investment decision would have to be taken soon”.

520 Public Deposition Robert Sprague, 10 February 2003 (exhibit 55), pp. 66-68.

521 Shell currently holds 25.9% of the shares.

522 Document of the British High Commission in Lagos about the NLNG project, October 1994 (exhibit 264).

523 Document of the British High Commission in Lagos about the NLNG project, January 1994 (exhibit 263); Document of the British High Commission in Lagos about the NLNG project, October 1994 (exhibit 264).

524 NLNG shareholders, available at: <accessed 29 May 2017>.

525 See for example Nigeria Update 20 May 1994 (exhibit 93); Nigeria Update from Anderson, 16 October 1995 (exhibit 120), in which he said of the NLNG project “I have kept you informed of progress during this week”.

526 WA is the person responsible for Western Africa in the service company, at that time Dick van den Broek. PA refers to Public Affairs and is a position at Group level.

527 Nigeria Update from Brian Anderson, 25 April 1994 (exhibit 91), p. 6.

528 Public Deposition Alan Detheridge, 3 February 2003 (exhibit 21), p. 42: “I certainly gotten gauged in the discussion during 1994 and 1995”; see also, p. 21: “there was an item on the CMD agenda that considered the memorandum of understanding, and the proposal, the negotiating strategy that was proposed by SPDC, whether that went to conference, I’m not sure […] they reviewed it, they asked questions about it and as far as I can recall they considered the strategy sound”.

529 See NLNG’s website, available at: <accessed 27 June 2017>.

530 On 1 November 1995 Anderson updated Shonekan on the status of the project, Nigeria Update from Brian Anderson, 2 November 1995 (exhibit 122), p. 2, on 6 December 1995 Shonekan reported that Abacha was very happy with the NLNG project, Nigeria Update from Anderson, 6 December 1995 (exhibit 126), p. 2.

531 MGDMB briefing notes from Barry to Anderson about the visit of Maarten van den Berg (indicator MGDMB), 1 February 1995 (exhibit 110).

532 In these discussions it was stated that “The trial of Ken Saro-Wiwa could well culminate in his conviction”, after which the following is considered regarding the NLNG project: “it was possible that a final investment decision would have to be taken soon”: Minutes of Conference, 11 October 1995 (exhibit 119), pp. 12-13.

533 Privilege log, document number 66 and 80 (the last time without Sprague) (exhibit 198).

534 Nigeria Update 6 December 1995 (exhibit 127), p. 2: “I told Hand that the NLNG Project had been committed”

535 Telex from Anderson addressed to Dick van den Broek, 14 November 1995 (exhibit 123); Anderson said in his Nigeria Update “I suggest that you Dick contact S [Shonekan] in London and again just base to see what is happening that end”, Nigeria Update 6 December 1995 (exhibit 126), p. 2.

536 Exhibit 109: Report from Alan Detheridge to Brian Anderson, 10 November 1994; exhibit 112: internal memo from Alan Detheridge to Brian Anderson, 16 March 1995. See also Public Deposition Richard van den Broek, 17 February 2003 (esxhibit 19), pp. 58-61, 72-78.

537 Report from Alan Detheridge to Brian Anderson, 10 November 1994 (exhibit 109); Public Deposition Alan Detheridge, 3 February 2003 (exhibit 21), pp. 41-43.

538 Public Deposition Cornelius Herkströter, 14 April 2004 (exhibit 28), pp. 177-178.

539 Exhibit 113: Record of the meeting held between the high-commissioner Alhaji Abubakar and four senior officials of Shell International Petroleum Company ltd at Shell Centre, London, 16 March 1995.

540 Internal memo from Detheridge to Anderson, 16 March 1995 (exhibit 112).

541 Legal Opinion O.C. Okafor, 21 June 2017 (exhibit 198) and, for example, Akinlade v the State (2010) LPER 8632 (Exhibit 199), at 12: “One who knowingly, voluntarily and with common intent unites with the principal offender … partaker of guilt; who aids or assists or is an accessory….who is guilty of complicity…either by being present and aiding and abetting it, or having advised and encouraged it, absent from place when it is committed”; Okafor, p.2: “Complicity can be inferred from the attainment of a common end”.

542 Legal opinion Okafor (Exhibit 198198).

543 Jide Arulogun v. Commissioner of Police, Lagos State & ORS (2016) LPELR-40190(CA) (exhibit 205), pp. 13- 14, paras. A-A.

544 Jide Arulogun v. Commissioner of Police, Lagos State & ORS (2016) LPELR-40190(CA) (exhibit 205), pp. 13- 14, paras. A-A.

545 Alhaji Ibrahim Abdulhamid v. Talal Akar & Anor (2006) LPELR-24(SC) SC.240/2001 (exhibit 201), pp. 22-23, paras. G-A, A-D.

546 Jide Arulogun v. Commissioner of Police, Lagos State & ORS (2016) LPELR-40190(CA) (exhibit 205), pp. 20- 21, Paras. D-B; Julius Berger Nigeria Plc & Godwin Obado v. Mrs. Philomena Ugo, Court of Appeal in Nigeria, 5 February 2015, CA/OW/146/201 (exhibit 207), p. 134, paras. B-F, p. 137, paras. C-G,; See also Joseph Odogu v. Attorney-General of the Federation & ORS (1996) LPELR-2228(SC), SC.58/1993 (exhibit 206): “Exemplary damages are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment, as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.” (p. 12, paras. A-C); aggravated damages can also be demanded as part of compensatory damages, the motives of the defendant in committing the unlawful act and aggravating the damage being important, see Julius Berger Nigeria Plc & Godwin Obado v. Mrs. Philomena Ugo, Court of Appeal in Nigeria, 5 February 2015, CA/OW/146/201 (exhibit 207), p. 135, paras. C-E: “Aggravated Damages […] may be awarded where the defendant’s motives and conduct were such as to aggravate the injury to the plaintiff. They are a species of compensatory damages in that their purpose is to compensate the plaintiff for the injury to his feelings of dignity and pride and not the injury sustained.”

547 Jide Arulogun v. Commissioner of Police, Lagos State & ORS (2016) LPELR-40190(CA) (exhibit 205), pp.14, 16-17; Julius Berger Nigeria Plc & Godwin Obado v. Mrs. Philomena Ugo, Court of Appeal in Nigeria, 5 February 2015, CA/OW/146/201 (exhibit 207), pp. 150-151; Commissioner of Police, Ondo State & Anor v. Festus Ade Obolo (1989) LPELR-20451(CA) CA/B/175/85 (exhibit 202), pp. 29 30, paras. F-F.

548 See chapter Fout! Verwijzingsbron niet gevonden. and Mrs. Precious Omonyahuy & Ors V. The Inspector- General Of Police & Ors (2015) LPELR-25581(CA) (exhibit 209); Nosiru Bello V. A.G, Oyo State (1986) 5 NWLR (Pt.45) 828 (exhibit 210); Julius Berger Nigeria Plc & Godwin Obado v. Mrs. Philomena Ugo, Court of Appeal in Nigeria, 5 February 2015, CA/OW/146/201 (exhibit 207), p. 144, paras. B-E.

549 Jide Arulogun v. Commissioner of Police, Lagos State & ORS (2016) LPELR-40190(CA) (exhibit 205).

550 Ibid.

Footnotes end

At the time of all of these horrific events in Nigeria, orchestrated by Shell to a large degree, Shell claimed that it was operating within its core business principles, including honesty, integrity, openness and respect for people. 


The numbered paragraphs above are extracted from the English translation of a 138 page Writ of Summons served on Royal Dutch Shell companies on 28 June 2017 by Dutch Human Rights law firm Prakken d’Oliveira. They represent four widows including Esther Kiobel who hold Shell liable for the murder of their husbands individual Ogoni leaders now known collectively as the ‘Ogoni Nine‘. MOSOP Chairman Ken Saro-Wiwa was one of the group. For the purpose of this online publication, the footnotes are indicated in red text.

Disclosure: The lead claimant Esther Kiobel, Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing *this case. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here. The denial does not explain why Shell settled for $15.5 million in June 2009 a case legally and substantively the same.

The Guardian: Shell pays out $15.5m over Saro-Wiwa killing: 9 June 2009

Shell to Pay $15.5 Million to Settle Nigerian Case: The New York Times: 8 June 2009

Shell, Nigerian families settle suit for $15.5 million: Reuters: 8 June 2009

Shell to pay $15.5 million to settle Nigeria claims: CNN: 8 June 2009

Shell Settles Human Rights Suit for $15.5 Million: Fox News/AssociatedPress: 8 June 2009

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