A Critique Of The Federal High Court’s Decision In HRM King Bubaraye Dakolo v. Shell Petroleum Development Company Of Nigeria Ltd: Limitation Of Actions And The Doctrine Of Continuing Tort In Nigerian Environmental Litigation

Introduction

The recent decision of the Federal High Court in HRM King Bubaraye Dakolo (suing for himself and on behalf of Ekpetiama Kingdom) v. Shell Petroleum Development Company of Nigeria Ltd & Ors has reopened one of the most contentious issues in Nigerian environmental jurisprudence: the applicability of limitation statutes to oil spill litigation. While limitation statutes undoubtedly serve the legitimate objectives of certainty and finality in litigation, their application to environmental disputes requires greater judicial sensitivity because environmental degradation seldom manifests as a single completed event. Rather, oil spills often result in continuing contamination, continuing statutory breaches and continuing failures to remediate affected communities.

Consequently, the decision presents two fundamental questions that have yet to receive definitive pronouncement by the Supreme Court. The first is whether causes of action arising under federal petroleum legislation are governed by the Limitation Act or by the Limitation Law of the State where the cause of action arose. The second is whether oil pollution constitutes a continuing tort capable of suspending the running of limitation periods. It is respectfully submitted that the Federal High Court’s decision did not sufficiently engage these unresolved doctrinal issues.

Limitation Law Applicable to Oil Spill Claims

Oil exploration, oil mining and natural gas fall within Item 39 of the Exclusive Legislative List contained in the Constitution of the Federal Republic of Nigeria 1999 (as amended). Consequently, legislative competence over petroleum operations rests exclusively with the National Assembly. Section 11 of the Oil Pipelines Act, pursuant to that constitutional authority, creates a statutory right to compensation for damage occasioned by oil pipeline operations. Since the source of both the right and the obligation is federal legislation enacted under the Exclusive Legislative List, there is considerable force in the argument that all incidents of that statutory right, including limitation of actions, ought equally to be governed by federal law.

The controversy arises because the Limitation Act, although a federal enactment, does not prescribe a specific limitation period for compensation claims under the Oil Pipelines Act. This legislative silence has prompted several courts to resort to the Limitation Law of the State where the cause of action arose. Decisions such as SHELL PETROLEUM DEVELOPMENT CO. OF NIG. LTD. V.CHIEF ZEDIE WILLIAMS & 2 ORS (2018) LPELR-44290(CA); SPDC v. WEST (2018) LPELR-44290(CA) and MRS. COMFORT OLUFUNMILAYO ASABORO & ANR V. PAN OCEAN OIL CORPORATION NIGERIA LTD & ANOR (2006) 4 NWLR {Pt. 971} 595 at 617 – 618, have proceeded on the basis that State Limitation Laws regulate the commencement of proceedings within their territorial jurisdiction and therefore apply where the federal legislation is silent.

With respect, this reasoning overlooks the constitutional implications of permitting State legislation to regulate rights created exclusively by federal law. A more persuasive approach appears in BENSON V MOBIL PRODUCING UNLIMITED, (2012) LPELR 14241, where the Court of Appeal held that because petroleum is a subject within the Exclusive Legislative List, the limitation of actions relating to petroleum rights is incidental to the National Assembly’s exclusive legislative competence.

The Court consequently declined to apply the Bayelsa State Limitation Law to a compensation claim founded upon the Oil Pipelines Act. That decision is, in our respectful view, more consistent with the constitutional allocation of legislative powers. If the National Assembly alone possesses authority to create the statutory right, it should equally possess the exclusive authority to prescribe the period within which that right may be enforced. To hold otherwise would permit thirty-six different State Limitation Laws to regulate the lifespan of a federally created statutory cause of action, thereby undermining the constitutional objective of uniform regulation of petroleum activities throughout the Federation.

The Federal High Court in Dakolo appears to have proceeded on the prevailing line of Court of Appeal authorities favouring the application of State Limitation Laws without undertaking a detailed constitutional examination of the competing reasoning in Benson. Until the Supreme Court resolves this conflict, both judicial trajectories remain arguable. Nevertheless, Benson arguably provides a more coherent constitutional framework for determining limitation in petroleum litigation.

Continuing Tort and Environmental Litigation

Even if it were assumed that the applicable limitation regime is the Limitation Law of the State, the more fundamental inquiry ought to have been whether the pleadings disclosed a continuing breach of statutory and common law duties. This distinction is critical because Nigerian appellate courts have consistently recognised that limitation statutes do not run where the wrongful conduct itself continues.

In Dakolo’s case, the Federal High Court held that the mere continuing consequences of an alleged wrongful act do not amount to a continuing injury capable of suspending the operation of the applicable Limitation Law. The Court reasoned that where the wrongful act has been completed, the persistence of its consequences cannot revive or extend a cause of action that has become statute-barred. In dismissing the suit, the Court held that the claims arose from alleged acts of pollution said to have occurred several decades before the commencement of the proceedings.

The Court accepted the defendants’ contention that the causes of action had accrued long before the suit was instituted and concluded that the alleged environmental degradation represented nothing more than the continuing consequences of completed historical acts. Accordingly, the Court rejected the Plaintiff’s reliance on the doctrine of continuing injury and held that the persistence of environmental harm could not without more postpone the commencement of the limitation period. The Court further reasoned that accepting such an argument would effectively render limitation statutes meaningless because the effects of environmental degradation often outlive the statutory limitation period.

Reliance on INEC v. Ogbadibo Local Government

In Dakolo’s case, the Federal High Court relied principally on INEC v. Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167 to hold that the persistence of environmental damage amounted only to the continuing consequences of completed acts and therefore could not suspend the limitation period. While this reflects the general principle that limitation is not postponed merely because the effects of a completed wrong continue, the decision did not fully address whether the alleged breaches themselves were continuing.

Why INEC v. Ogbadibo is Distinguishable from Environmental Pollution Claims

The decision in INEC v. Ogbadibo arose from completed governmental actions and did not concern environmental pollution or continuing statutory duties. Oil pollution cases are materially different because leaking pipelines, unpremeditated contaminated sites and continuing failures to prevent pollution may constitute ongoing wrongful conduct rather than the mere consequences of historical events. Consequently, the applicability of limitation statutes depends on whether the defendant’s breach of duty has ceased.

The Jurisprudence on Continuing Injury

Nigerian appellate courts have consistently held that limitation statutes do not apply where the wrongful act or omission continues. In TOTAL E&P (NIG) LTD v. UMAH & ORS (2019) LPELR-47263(CA), the Court of Appeal explained that continuing injury exists where the act causing the damage continues or is repeatedly committed. Similarly, the Supreme Court in Attorney-General of Rivers State vs. Attorney-General of Bayelsa State & Anor (2012) 6-7 MJSC (Pt.3) 149 and Aremo II vs. Adekanye (2004) All FWLR (Pt.224) 2113 at 2132 recognised that fresh causes of action arise where continuing wrongful conduct gives rise to recurring legal injury. Likewise, Olaosebikan Williams (1996) NWLR (Pt. 449) 473 at 456-457 affirmed that the doctrine applies to the continuation of the wrongful act, not merely the persistence of its consequences.

Environmental Pollution as a Continuing Tort

Environmental pollution provides one of the clearest examples of a continuing tort. Defective pipelines, recurring leakages, migration of hydrocarbons and the continuing failure to remediate contaminated sites constitute ongoing breaches of statutory and common law duties. Every fresh discharge of pollutants and every continuing omission to restore the environment may give rise to a fresh cause of action until the wrongful conduct ceases. Accordingly, environmental claims should not automatically be characterised as arising solely from the date of the initial spill.

Why the “Continuing Effect” Analysis is Unsuitable for Oil Pollution Cases

Applying the “continuing effect” doctrine without examining the nature of the alleged breach risks overlooking the realities of environmental pollution. In many oil spill cases, pollution persists because operators continue to fail to repair facilities or undertake effective remediation. Treating these ongoing omissions as mere historical consequences could unjustly shield continuing environmental harm from judicial scrutiny and defeat the objective of environmental protection.

Conclusion

The decision in Dakolo’s case raises important doctrinal questions that remain unresolved in Nigerian law. First, the constitutional relationship between federal petroleum legislation and State Limitation Laws remains uncertain. While recent Court of Appeal authorities favour the application of State limitation statutes, the reasoning in Benson v. Mobil Producing Unlimited more faithfully reflects the constitutional allocation of legislative competence over petroleum matters and deserves serious reconsideration by the Supreme Court.

Secondly, environmental litigation should not be approached in the same manner as ordinary civil disputes. Oil pollution frequently involves continuing statutory breaches, continuing omissions and ongoing environmental degradation. Nigerian appellate jurisprudence has consistently recognised that limitation statutes do not operate where the wrongful conduct itself continues. Courts should therefore distinguish between the continuing consequences of historical pollution and continuing breaches of environmental obligations before invoking limitation statutes to defeat environmental claims.

Until these issues receive authoritative resolution by the Supreme Court, the law will remain unsettled. However, a principled development of Nigerian environmental jurisprudence requires courts to recognise both the constitutional character of petroleum legislation and the unique nature of continuing environmental harm. Only then can limitation statutes achieve their legitimate purpose without becoming instruments for shielding continuing environmental degradation from judicial scrutiny.