2. Procedures and Evidence

6. HURDLES AND CHALLENGES

The primary challenge in these jurisdictions is determining the start and end of the limitation period, especially in cases where environmental damage emerges over time or is continuous. In Nigeria, for example, the limitation period begins when the cause of action arises, not when the harm is discovered. This was illustrated in Shell Petroleum Development Company of Nigeria Ltd v Dodoye West. This can pose a challenge in environmental cases where harm may not be immediately apparent. Another challenge has been observed in cases in the US with their state-specific statutes and the variability and strict enforcement of limitation periods; thus, this adds to the complexity and can hinder the timely filing of claims. Additionally, proving 'continuous harm' or 'ongoing harm' as seen in countries like Canada, Germany, Brazil, India, Poland, and the United Kingdom, to extend limitation periods requires substantial evidence against the defendant, which can be a significant hurdle for plaintiffs.

In the Nigerian case of Shell Petroleum Development Company of Nigeria Ltd v Dodoye West, an action was filed against Shell in Rivers State of Nigeria in 2013 for compensation for alleged damage to fishing nets by Shell's oil spill in 2006. The trial judge dismissed Shell's objection that the action was statute-barred as it was filed 'after the expiration of five years from the date on which the cause of action accrued' as stipulated in Section 16 of the Rivers State Limitation Law. The court of appeal overruled and agreed with Shell's argument, the Court of Appeal held, 'There is no dispute that the Petroleum Act or the Oil Pipelines Act contain no provision on limitation of action but there is also no express exclusion of the application of the existing limitation law to the right of action created therein... Therefore, the Limitation Law of Rivers State should apply to actions resulting from the Oil Pipeline Act within Rivers State since a Claimant cannot wait for an indefinite period of time after the accrual of his right to seek remedies in the Court of Law.'