Litigation as A Tool for Environmental Protection in Nigeria
By Jimoh AbdulGaniy ADISA
INTRODUCTION
A great percentage of environmental difficulties affecting the country, and the universe transcends industrial or manufacturing factories processes, mechanism and product. It includes waste product from divergent production affairs, different environmental damages inherent in the production processes and product, end-of-life wastes and waste outcome emanating from the consumption of their end products. They manifest and assail the environment in the form of land, water, air and noise pollution, greenhouse effect, climate change and depletion of the ozone layer. Consequent upon the increment of the challenges of industrial activities in Nigeria, the challenges of industries also increases. Most pieces of legislation on environmental protection have provisions enabling the institution to initiate criminal prosecution for the breach of their laws or regulations.
CONCEPTUAL CLARIFICATION OF KEY TERMS
It is of utmost necessary to describe some concepts. These concepts are; Litigation, Environment, Environmental protection, and Environmental Law. Black Law Dictionary 7th edition at page 944 described litigation as” the process of carrying on a law suit.” Litigation is the taking of legal action by a litigant. It is a field of Law that is concerned with contentious matters. The learned authors of Black’s Law Dictionary explains environment as: “the totality of physical, economic, cultural, aesthetic, and, social circumstances and factors which surround and affect the desirability and value of property and which also affect the quality of peoples’ lives.” In another sense, Environment is the setting of man’s various productive activities. Environmental protection refers to setting pollution control standards in the area of air, water, solid waste, pesticides, radiation, and toxic materials; enforcing laws enacted to protect; and coordinating the anti-pollution. maintenance and protection of the environment. Under Nigerian law, environmental law includes all the sources of Nigerian law that impact the environment Therefore, litigation as a tool for environmental protection in Nigeria, is the thematic analysis of this essay.
SUCCINT EXPLANATION ON THE DEVELOPMENT OF ENVIRONMENTAL LAWS IN NIGERIA
As regards the development of Nigerian Environment Law, it could be compartmentalized into two broads, to wit:
i The pre 1988 era
ii The post 1988 era
•The pre 1988 era: During this period, Nigeria was not much concerned on protecting the sanctity of the environment. Correspondingly, no policy was set aside in protecting it. Consequent upon this,it gives rise to the font of nuisance because dispute in environmental law were not seen as public matters which requires the state intervention.
•Post 1988 era: It is a matter of fact that the incidence of dumping poisonous and dangerous refuse in Nigeria reinvigorate the federal government to tackle the problem of environmental abuse. It transpired on the 19th September, 1987 when Sunday Oyemire Nana,a farmer in “Koko” —small village located in the coast in the former Bendel state of Nigeria—was appointed by Gian Franco Raffaelli,an Italian Business who was once a resident in Nigeria for the period of 20 years to dispose 3880 tons of poisonous and dangerous waste on behalf of an Italian company. .
LITIGATION AS A TOOL FOR ENVIRONMENTAL PROTECTION IN NIGERIA
Fundamentally, environmental litigation could be in the form of criminal prosecution or civil litigation. The common characteristics of different Nigerian statutes is that they are laden with penal provisions which in the long-run disallowed the doing of somethings that may result to environmental pollution. The ensuing content of the National Environmental Standards and Regulations Enforcement Agency act include criminal sanctions in form of monetary fines or a prison term. In a nutshell, if an individual breaches any of the provision, he will be charged for criminality; an instance of this is very evident vide the provision of Section1 (2) of NESREA Act, which accords the agency with the capability of suing and being sued in its corporate name.
In a similar fashion, section 8(f) of the Act permits the agency to establish mobile court in affiliation with the relevant agency, as it provides thus: ‘subject to the provision of the constitution of the federal republic of Nigeria, 1999 and in collaboration with the relevant judicial authorities establish mobile courts to expeditiously dispense cases of violation of environmental law regulations.”
More so, the judicial system is saddled with the responsibility of conviction and the agency is to prosecute. As such, section 32(3) of NESREA Act gives the agency power to carry out such prosecution, subject to the provision of section 174 of the Constitution of the Federal Republic of Nigeria (1999 as amended).
Albeit, the common form of environmental litigation is an oil pollution by individual citizens against oil companies. As well, a regulatory institute can institute civil action all in a bid to obtaining order of courts for shutting down premises of an area affecting the environment; as this standpoint received statutory baptism vide the provision of Section 30(1)(a) of the NESREA Act which establishes thus: “To obtain an order of a court to suspend the activities, seal and closed down premises including land, vehicle, tent, vessel, floating craft or any in land water and other structure whatsoever.”
By extension of the aforementioned standpoints, it is a very clear fact that pollution of the Nigerian environment had received legal baptism, despite it beauty, it lacks effect due to some challenges that occur such as constitutional issues, lack of implementation, enforceability and absence of judicial attitude as it is concomitant with the right to a fit environment in section 20.As a matter of fact, entry to environmental fairness in Nigeria is a great challenge within the Nigeria corpus Juris, it is equally in line with the fact that before 1900,the Nigerian courts made little or no reserved judgment in favor of the victim of environmental pollution as established in CHINDA v. SHELL B.P(1974)2 R.S.L.R1, where the plaintiff brought a complaint in respect of adverse effect of gas flare on their apartments,crops&plants,they institute an action asking the court to restrict Shell-BP against functioning a flare stack within five miles of the petitioner’s community. In so doing, the court rejected to instruct an injunction on the ground that the liberation required was absurd and a wide demand.
In the lens of the above, there are instances where entree to environmental justice is being frustrated with technicalities that emanated from the Nigerian corpus Juris, such technicalities are: the second party to an environmental suit (herein after referred as defendant) always raise defendant that under section 6(6)(c) of the Nigerian constitution, the right to an environment is unenforceable and this defense was raised by the defendant in the case of SPDC v. JONAH GBEMERE,FHC/B/CS/53/05 the plaintiff’s counsel to obtain justice for the victims who had been severely affected by gas flaring had to connect the right to clean and healthy environment, right to life, and protection against inhuman treatment as evident in chapter two of the fons et origo.
In the same vein, the case of SPDC NIG LTD v. AMBAH (1999) LPLER-3202(SC);(1999)3NWLR (Pt 593)1;(1999)2 cs 129 gives another instance of the impertinence of priests in the temple of justices (Judges) to oil—linked environmental damages, where the litigant demanded a whooping sum amount of #300,000 on behalf of his clients when the offender destroyed their lakes, creeks and fish ponds. The evidence establishes that the improve cost that actually happened and were able to particularize special damage to the tune of #30,000 and they claimed the general damages of #300,000, although not proof. In so doing, both the trial and court of appeal awarded #300,000 to the respondents for the damage of the aforementioned properties. On appeal, the Supreme Court allowed the appeal and reduced the amount of #27,000 only, claimed by the respondent.
Along the same lines, the defense of locus standi—the right to challenge an action or bring some decision—vide the case of SPDC v. CHIEF OTOKO &ORS (1990)6NWLR 693, which was instituted in a representative capacity, claiming the sum of #499,855.00 as compensation payable for deprivation of use of the Andoni Rivers & Creeks, as a result of the crude oil spill. The court held that, it is of utmost necessary that the individuals who are to appear in person (s) or have a representative should possess similar interest in the cause of a grievance and matter.
The case of Center for Oil pollution v. Nigerian National Petroleum Corporation (SC 319/2018) also has great impact on environmental litigation, as it was instituted by a community—ACHA—over an oil spillage, which occurred as a result of the defendant’s negligence resulting from its pipeline which had corroded due to improper maintenance, ruptured and spewed the entire contents of persistent hydrocarbon mineral oil into surroundings, streams and a river, leading to a major sources of water supply to the community. The plaintiff averred that the respondent was negligent in both the causation and containment of the oil spillage; the spillage had harmful effect on living resources, marine life, human health and other usage of the streams. This was challenged by the plaintiff’s standing to sue and sought an order striking the suit. On February 9, 2006, the trial court sued for lack of locus having not suffered any injury at all, let alone any injury above every other member of the Acha community resulting from the alleged oil spillage. On January 28, 2013, the court of Appeal dismissed the appeal by reaffirming the trial court’s ruling of the plaintiff, and appealed to the Supreme Court on March9, 2013.On July 20, 2018, the Supreme Court unanimously granted the appeal in favor of the appellant.
In furtherance of the above, the case of ARCHIANGA & ORS v.NNPC FHC/ABJ/CS/54/2012, has also shaped environmental litigation, the law firm of Paul Usoro and co, on the 21st of June, 2021 successfully defended a suit brought by HRH Obong Archianga & ORS against the Exxon Mobil Corporation. In a bid to uphold the firm’s arguments on a point of Law, motion filed by PUC and argued by the lead counsel to Exxon Mobile Corporation (EMC), Mr. Paul Usoro, SAN for and on behalf of EMC, the court Per Taiwo.J in its final judgment agreed that the suit did not disclose a cause of action against EMC as the plaintiffs did not establish that Mobil Producing Nigeria Unlimited is a subsidiary of Exxon Mobil Corporation.
In addition, the groundbreaking on environmental litigation is laid to rest vide the case of SPDC v. COUNCILLOR FB FARAH & ORS (1995)3 NWLR , the appellant dredged a stream flowing over the land of the respondents with the full approval of the latter which lead to loss of sand& gravel; and it equally lead to the destruction of fishing equipment which hinder the fishing process. As a result of this, the respondent sued for damages in the sum of #60,000 and the learned trial judge ruled in favor of the respondent and therefore awarded #45,840 and on a petition, the petitioner court sustained the investigation court judgment. So, on appeal to the Supreme Court, the damages granted was set aside and reduced to#35,000.
JURISDICTIONAL ISSUES IN ENVIRONMENTAL LITIGATION.
Without a vestige of doubt, the locus classicus of MADUKOLU v.NKEMDILIM has laid down in apparent terms, the three threshold factors that determined the competence of court’s jurisdictions, to wit;
a) The court is properly constituted as regards members and qualification of the bench.
b) The subject-matter of the case is within the court’s jurisdiction.
c) The case comes before the court initiated by due process of the law and upon fulfilment of a condition precedent to exercise of jurisdiction. Over the years, these 3 components of jurisdiction have served as obstacles to environmental litigation. Aside the practical obstacles, a number of procedural particularities within the Nigerian judicial system further complicate the issues of jurisdiction in environmental litigation.
CONCLUSION
Without any iota of doubt and as far as Nigeria is concerned, litigation is governed by various laws and rules of courts, which include the constitution of the Federal Republic of Nigeria, the Evidence Act and Civil Procedures Rules.
RECOMMENDATION
There should be utmost participation of the public in Nigerian Environmental Protection Law.
ABOUT THE AUTHOR
NAME: JIMOH ABDULGANIY ADISA
INSTITUTE: BAYERO UNIVERSITY, KANO
LEVBEL: LL.B 300
REG NO: LAW/19/LLB/0038
NATIONAL ESSAY COMPETITION,ORGANISED BY AFRICAN CENTRE OF EXCELLENCE FOR WATER AND ENVIRONMENTAL RESEARCH,REDEEMERS UNIVERSITY,EDE,NIGERIA, IN CONJUNCTION WITH EBONYI STATE LAW ALUMNI.
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