By Alfred Donovan

Ogoni class action lawsuit against Shell

A United States Magistrate Judge, Henry Pitman, has dismissed a motion filed by Royal Dutch Shell for a court appointed official (a Master) to investigate alleged perjury by witnesses who have given testimony prior to the pending trial.
I have only just received from the National Union of Ogoni Students International, a copy of the relevant court order of Judge Henry Pitman, dated 31 March 2006 (printed in its entirety at the foot of this article).

Judge Pitman considers that the allegations are “not baseless” but made no finding on relevant matters and decided that the appointment of a master, as sought by Shell, was “simply not the appropriate device to remedy perjury”. He denied Shell’s motion in all respects and stated that: “Witness credibility is traditionally a question for the jury, not the court.”

It is a familiar tactic for Shell lawyers to accuse Plaintiffs of perjury and fraud. I have been involved with several High Court actions with Shell and I cannot recall one where Shell did not make baseless accusations of this type. I sued Shell for libel after they issued a press release accusing me of making “bogus” claims. Shell settled the libel action for a substantial sum and subsequently the alleged “bogus” claims for £200,000 ($360,000 USD plus costs). I also received a letter of apology from the then Chief Executive and Chairman of Shell U.K. Limited, Dr Chris Fay.

Eight Royal Dutch Shell companies have also made countless unfounded allegations in their collective draconian lawsuit against Shell whistleblower, Dr John Huong, despite categorically knowing that their allegations are false.

The current case is before the UNITED STATES DISTRICT COURT OF SOUTHERN DISTRICT OF NEW YORK (Case No. 02-CV-7618). It relates to Shell's oil operations in Ogoniland, an area located in the Niger River delta area of Nigeria. The plaintiffs, who are Ogoni nationals resettled in the USA, have charged Royal Dutch Shell with violations of the laws of nations and customary international law. They seek legal recognition of a class consisting of “all Ogoni or Ogoni family members who resided in Ogoniland during the period of October 1, 1990 to May 28, 1999” who were injured during the course of the alleged misconduct by Shell. The class could potentially consist of hundreds of thousands of people.

The disgraced former Group Chairman of Shell, Sir Philip Watts, and his equally ruthless predecessor, Sir Mark Moody-Stuart, have already given answers under oath in London in reply to questions put by US attorneys acting for the plaintiffs.

The lawsuit alleges that: -

* In response to peaceful Ogoni protests against the severe environmental damage caused by Shell’s oil development, Shell “instigated, planned, facilitated and cooperated” with the Nigerian military in attacks against the unarmed residents of Ogoniland.

* The defendants (Shell) and the military acted under a joint strategy to depopulate areas for oil exploration and extraction and discourage protests. In particular, the plaintiffs allege extrajudicial killing, torture, rape, arbitrary arrest and detention, cruel, inhuman and degrading treatment, crimes against humanity, forced exile, restrictions on assembly and the destruction of private property. The plaintiffs assert that these claims are all violations under customary international law.

* A pattern of mutual support in which Shell officials met with Nigerian officials to develop strategies and in some instances joint media campaigns.

* Specific instances in which Shell asked for the “usual assistance” to suppress protest and allow work on the pipeline. The plaintiffs allege that the “usual assistance” included razing villages and the other violent methods used by the military.

* The complaint further alleges that Shell provided logistical services and financial support to the military operations, including cash, housing, vehicles and armaments.

The plaintiffs include relatives of Dr. Barinem Kiobel, executed in 1995 along with Ken Saro-Wiwa and seven others, after summary proceedings before the Ogoni Civil Disturbances Special Tribunal. The plaintiffs allege that Shell was actively involved in the tribunal, bribing and preparing witnesses.

Shell has admitted, after the leaking of a Shell internal report, that the corporate behaviour of Royal Dutch/Shell in Nigeria fed a vicious cycle of violence and corruption.

ARTICLE ENDS

THE COURT ORDER: 31 MARCH 2006

ESTHER KIOBEL, et al., }
}
Plaintiffs, }
}
-against- }
}02 Civ. 7618 (KMW) (HBP)
}
ROYAL DUTCH PETROLEUM COMPANY,} MEMORANDUM OPINION
et al ., } AND ORDER
}
Defendants }
}
------------------------------------------------ X


Pitman, United States Magistrate Judge:
By notice of motion dated December 7, 2004 (Item 175 in Docket No. 96 Civ. 8386), defendants move for the appointment of a master to investigate alleged instances of perjury by several witnesses who were deposed in Benin (the “Benin Witnesses”) and alleged subornation of perjury with respect to the Benin Witnesses. For the reasons set forth below the motion is denied in all respects.

Defendants’ papers identify a number of instances of alleged perjury by the Benin Witnesses, ranging from authenticity of documents that allegedly originated in the Nigerian Ministry of Defense to the size and characteristics of certain cesspools, or “soak-aways”, in Nigeria to the depth of the water on certain stretch of the Bonny River to how much Nigerian currency will fit into a “Ghana Must Go” bag.1 Defendants’ papers cite a number of other alleged instances of perjury but the foregoing is a fair sampling. It appears from the materials submitted in connection with the present motion, that defendants’ belief that certain Benin Witnesses have committed perjury is not baseless. Defendants seek a master to offer definitive testimony concerning the truth of these matters and establish the perjury alleged.

The appointment of a master is not appropriate here. Rule 53 (a) (1) of the Federal Rules of Civil Procedure defines the situations in which a master may be appointed:
__________________________________________
1 The papers before me do not define what a “Ghana Must Go” bag is.

2

(a) Appointment.

(1) Unless a statute otherwise provides, a court may appoint a
master only to:

(A) perform duties consented to by the parties;

(B) hold trial proceedings and make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by

(i) some exceptional condition, or

(ii) the need to perform an
accounting or resolve a difficult
computation of damages; or

(C) address pretrial and post-trial that cannot
be addressed effectively and timely by an
available district judge or magistrate judge
of the district.

Defendants do not identify the particular subparagraph that warrants the appointment of a master here, and none is applicable. Since plaintiffs oppose defendants’ motion, subparagraph (A) is obviously inapplicable. Witness credibility is traditionally a question for the jury, not the court. E.g., McClellan v. Smith, 439 F. 3d 137, 144 (2006); Globecon Group, LLC v. Hartford Ins. Co, 434 F. 3d 165, 174-75 (2d Cir. 2006). Thus, subparagraph (B) is also inapplicable. Finally, there is no pretrial matter that requires or even permits a judicial officer to make credibility findings concerning the merits of the case. Thus, subparagraph (C) is also inapplicable.
3

In addition, the appointment of a master appears unnecessary and fraught with practical problems. For example, defendants claim that the testimony of one of Benin Witnesses that certain documents are authentic must be perjurious because the witnesses testified that they originated at a building that had been rendered uninhabitable by a fire prior to the dates on the documents. Defendants’ showing in their motion papers concerning this matter appears to have substantial persuasive force. Defendants do not explain why they can not make the same showing to the jury themselves. Similarly, to the extent that the parties dispute the characteristics of any locations in Nigeria or the volume of “Ghana Must Go” bags, defendants can simply have a witness inspect these locations or objects and document his or her findings with photographic or videographic evidence. Finally, the investigation of most, if not all, of the issues identified by defendants would require a master to travel to Nigeria and conduct inspections or interviews there. Given the rates of Attorneys in this District and the lost revenue that such an attorney would suffer during a sojourn in Nigeria, the cost of such an undertaking would be substantial, assuming that an individual could be found who would be willing to undertake the project. Defendants have affiliated corporations in Nigeria, and it makes far more sense for employees of those corporations to investigate any locations or other items that defendants deem relevant.
4

Perjury is, no doubt, a serious matter, and the subornation of perjury can not be tolerated by any court. Nevertheless, if perjury occurred in this matter (and I make no finding that it has or has not occurred), the appointment of a master is simply not the appropriate device to remedy perjury. Defendants’ motion is denied in all respects.

Dated: New York, New York
March 31, 2006

SO ORDERED
_________________________
HENRY PITMAN
United States Magistrate Judge

Copies mailed to:

Jennifer M. Green, Esq.
Beth Stephens, Esq
Maria C. LaHood, Esq.
Center for Constitutional Rights
666 Broadway
7th Floor
New York, New York 10012

Judith Chomsky, Esq
Law Offices of Judith Brown Chomsky
Post Office Box 29726
8120 New Second Street
Elkins Park, Pennsylvania 19027
(5)

Anthony DiCaprio, Esq.
Michael Ratner, Esq.
Ratner, DiCaprio & Chomsky, LLP
80 Eighth Avenue
Suite 711
New York, New York 10011

Carey R. D’ Avino, Esq.
Stephen A. Whinston, Esq.
Keino Robinson, Esq.
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, Pennsylvania 19103-6365
Rick Hertz, Esq.
EARTHRIGHTS International
1612 K. Street, N.W.
Suite 401
Washington, District of Columbia 20006

Rory O. Millson, Esq.
Thomas G. Rafferty, Esq.
Michael T. Reynolds, Esq.
Adrienne K. Wheatley, Esq
Christopher Vergonis, Esq.
Cravath, Swaine & Moore, LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475