LITIGATION AS A TOOL FOR ENVIRONMENTAL PROTECTION IN NIGERIA by Jimoh AbdulGaniy Adisa
ABSTRACT
Environmental Laws are set aside to reduce the stringent environmental hazards that emanates from different activities of mankind.To find solutions to this menace,court are set up by the government with jurisdiction to consider environmental litigation to safeguard environmental litigants in the green and white nation,and the responsibilities of judiciary to procure solutions to such.To achieve this aim,the question which this treatise seeks to answer is litigation as a tool for environmental protection in Nigeria.
Keywords: Litigation, Environmental Law, Environmental protection
INTRODUCTION
A great percentage of environmental difficulties affecting the country, and the universe transcends industrial or manufacturing factories processes, mechanism and product. As such, 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. [1]Essentially, environmental litigation can be seen in the phase of criminal prosecution or civil litigation. In another sense, the known feature of various statutes in Nigeria is that they are attached with penal provision. Therefore, they disallow the practice of doing something that will lead to environmental pollution.
The provisions of most of these Acts carry criminal sanctions in nature of monetary fines and/or a term of imprisonment. In other words, if an individual or corporate body violates any of the provision of such statutes, he is liable to criminal charge. The main aim or this is to impose some pains on contaminator or impose them monetary loss. [2]
Along the same lines, Criminal prosecution is often instituted by public authorities saddled with the powers to do so. Most pieces of legislation on environmental protection have provisions enabling the institution to initiate criminal prosecution for the breach of their laws or regulations. For instance, section 1(2) (C) of NESREA Act, empowers the agency to be able to sue and being sued in its company name.[3] Definitely, section 8 (f) of the makes the agency to setup bile courts in line with the relevant agency. The section provides thus: ‘subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999, and in collaboration with relevant judicial authorities establish mobile courts to expeditiously dispense cases of violation of environmental regulations.’[4]
Without any modicum of doubt, this essay seeks to appraise litigation as a tool for environmental protection in Nigeria. To achieve this objective, the questions which this essay seeks to x-rays inter alia includes; conceptual clarification of key terms, development of environmental litigation in Nigeria, Litigation as a tool for environmental protection in Nigeria, jurisdictional courts to entertain environmental litigation in Nigeria, jurisdictional issues in environmental litigation in Nigeria, impediments of litigation in Nigeria, recommendation and conclusion.
CONCEPTUAL CLARIFICATION OF KEY TERMS
It is of utmost necessary to describe some concepts. These concepts are; Litigation, Environment, Environmental protection, Environmental Law, and Nigeria. Black Law Dictionary 7th edition at page 944 as” the process of carrying on a law suit.” [5]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 the 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 the people standard of living. ” In another sense, the 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.[6] The goal of environmental protection is anchored in the principle that “the polluter pays .” Under this principle, the polluter must be held liable for the consequences of his actions. Environmental law is the field of law dealing with maintenance and protection of the environment. Under Nigerian law, environmental law includes all the sources of Nigerian law that impact the environmentWhilst Nigeria is the merging of the Southern Nigerian protectorate and the Northern Nigerian protectorate in 1914.Hence, litigation as a tool for environmental protection in Nigeria, is the main objective of this essay.[7]
SUCCINT EXPLANATION ON THE DEVELOPMENT OF ENVIRONMENTAL LAWS IN NIGERIA.
As regards the development of the Nigerian Environment Law, it could be compartmentalized into two broads, to wit: The pre 1988 era and the post 1988 era.
The pre 1988 era : During this period, Nigeria was not very concerned with protecting the sanctity of the environment. Correspondingly, no policy was set aside to protect it. Consequent upon this, it gives rise to the front of nuisance because disputes in environmental law are not seen as public matters which require state intervention.
Therefore, the few environmentally related laws that are in existence only criminalized activities that could demean the environment; among them was the criminal code Act of 1916 which disallowed water and air pollution.
The 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. Be that as it may, this accelerated the creation of harmful waste (Special Criminal Provision) Decree and the then Federal Environmental Protection Agency (FEPA)now (Natural Environmental Standard and Regulation Enforcement Agency, which is the supreme reference to environmental matters in Nigeria).[8]
LITIGATION AS A TOOL FOR ENVIRONMENTAL PROTECTION IN NIGERIA
Without any modicum of doubt, and as far as Nigeria is concerned, environmental laws are set aside to reduce the intimidating and frightening environmental problems arising from human activities. In a bid to inspect these activities, the law courts are put in place by government with jurisdiction over matters relating to environmental litigation and redress environmental misfits 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 disallow the doing of something that may result in environmental pollution.
The ensuing content of this act includes criminal sanctions in the form of monetary fines or a prison term. In a nutshell, if an individual beaches any of the provisions, he will be charged for criminality; an instance of this is very evident in the provision of Section1 (2) of the National Environmental Standards and Regulations Enforcement Agency (herein referred to as SPREAD Act), according to the agency with the capability of suing and being used in its corporate name.[9]
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 Nigerian Constitution (1999 as amended).[10] That is, any officer of the agency may, with the consent of the Attorney General of the Federation carry out criminal proceedings in respect of offence under this Act or regulation under it.
In another sense,civil litigation is based on the premise of tortious liabilities or the infringement of a duty of care imposed by law, and it is very clear in the words of Tokyo, thus:”Civil litigation can be explained as enforcement of legal right(s) or redressing of legal wrong(s) as the case may be before a competent court or tribunal established by the law.” Indeed, environmental protection in civil litigation surpasses criminal prosecution as far as environmental protection is concerned.[11]The special quality on civil litigation is that, it cannot be instituted by an ordinary individuals, communities, corporation and government institutions when the need arises.
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 be activities, seal and closed down premises including land, vehicle, tent, vessel, floating craft or any in land water and other structure whatsoever.” R:Ibid
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,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 furtherance, in ALLAN IRON v. SHELL BP, the case centers on the fact that the plaintiff lodge a complaint about their farmland, fishpond and creeks being polluted by the defendant’s activities on oil exploration in their community. Along the line, the court ruled in favor of the respondent, on plea, the Supreme Court set aside the judgment of the probate court and dismissed the respondent’s suit.
More so,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 defence 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(2005),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, to right to life, and (2005),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 so doing, the court rejected to instruct an injunction on the ground that the liberation required was absurd and a wide demand.
In furtherance, in ALLAN IRON v. SHELL BP, the case centers on the fact that the plaintiff lodge a complaint about their farmland, fishpond and creeks being polluted by the defendant’s activities on oil exploration in their community. Along the line, the court ruled in favor of the respondent, on plea, the Supreme Court set aside the judgment of the probate court and dismissed the respondent’s suit.
In the same vein, the case of SPDC NIG LTD v. AMBAH (1999), 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 improve 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, but 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 reduce 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.The lawsuit 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.
In addition, the innovation on environmental litgation is birthed vide the case of SPDC v. COUNCILOR FARNH & ORS, in it, 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.[12]
KEY ASPECTS OF LITIGATION AS A TOOL FOR ENVIRONMENTAL PROTECTION IN NIGERIA.
Without any scintilla of equivocation, litigation could serves an effective tool for environmental protection in Nigeria,and equally an avenue for individuals, communities,and organisation to seek legal remedies and institute action against pollutants for their nonchalant actions.Consequent upon this,some key aspect of litigation as a tool for environmental protection in Nigeria could be fathomed below:
•JUDICIAL ACTIVISM:The Nigerian courts have displayed a large interest on environment issues and have shown judicial activism in environmental litigation.[13]
•PUBLIC INREREST LITIGATION:It permits some factions of people to institute legal action in respect of public interest such as civil society organization,NGOs, and some dedicated citizens on environmental cases in the court of Law.This method has been deployed to combat some activities such as deforestation, environmental danger and oil spillage.[14]
•AWARENESS AND ADVOCACY: Litigation gives room for awareness on environmental saga and improve public discourse on the relevance of safeguarding the environment.[15]
•REMEDIES AND COMPENSATION:Vide the dint of litigation,affected parties may get compensation and compensation for any environmental damage.This may include compensation of health impact, implemention of preventive measures, restoration of polluted areas, financial compensation for any loss of life.[16]
•ATTAINMENT OF JUSTICE: Litigation make sure the affected individuals and the community members possess means to justice and a medium to air their concerns on environmental deterioration.[17]
JURISDICTIONAL COURTS TO ENTERTAIN ENVIRONMENTAL LITIGATION IN NIGERIA
It is a well-known fact that the Nigerian judicial system encompasses the totality of the court system, it jurisdiction (which collective form it jurisdiction, composition and the judicial system) hierarchy. Be that as it may, the basic functions of the courts in Nigeria are categorized into adjudication, construing of laws, exercising of superior and judicial review over administrative bodies.[18] Implementing the above stated functions, the courts have been generally known and deemed as the “hope of the common man.” So, this assertion yields confidence the populace placed in the judicial system. Consequent upon the judicial powers, the court exercised over persons, authorities, and compromise on any conduct that tends to infringe or contravene environmental law. In the environmental suit, the courts exercise jurisdiction all in a bid to ascertaining rights and liabilities, punish offenders, stop practices that are hazardous to environment or order compensation for victims that had suffered from environmental misconducts and harms.
In furtherance of the above, agenda 21 of the 1992 Rio Declaration on Environment and development place much emphasis on the importance of the judicial system in protecting the environment when it calls on non-governments to create judicial and administrative institution and procedures for legal remedies.[19] As far as Nigeria is concerned, no superior court of records with exclusive jurisdiction to hear and determine matters relating to environmental issues. For example, in Cross River State, there is a magisterial court. [20]Finally, the courts are mainly established to exercise criminal jurisdiction over those who have been brought before it, for breaching environmental sanitation and other sanitation regulation of the state.
IMPEDIMENTS OF ENVIRONMENTAL JURISDICTION
Predominantly and habitually, there are environment setbacks attached to litigation in Nigeria, irrespective of whether it is environmental or not. Such setbacks include the following to wit; delays, cost of litigation, ignorance of the law, remoteness of the courts, and services of legal practitioners. In addition, other impediments attached to litigation are burden of proof being placed on the victims who lacks means to hire technical to testify on their behalves, structural difficulty in redressing environmental justice in Nigeria, national laws and courts systems are devoid of independence and respected by the transnational oil companies.
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 and no member is disqualified for one reason or another.
b) The subject-matter of the case is within the court’s jurisdiction and there is no feature in the case which prevents the courts from exercising; and
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 AND RECOMMENDATION.
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. Indeed, litigation is an important means of enforcing legal rights and obligations, and is often use in resolving disputes in various areas of Law, which Environmental Law is not an exception.[21] The piece of advice in this regard is that there should be utmost participation of the concerned Nigerians in Environmental protection Law.
[1] Kenneth Kingsley EZEIBE &Dr. Meshach Nnama: A critical review of the law of Environmental protection for manufacturing industries in Nigeria.
[2] See the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act [NESREA] 2007 ss. 20(3) and (4), 21(3), 22(3) and (4), 24(4) and (5), 25(2) 26(3) and (4), and 27(3), (4) and (5) and 37, which provides for Penalties in form of Fines/Imprisonment; see also Ibidapo-Obe, A. Criminal Liability for Damages caused by Oil Pollution. In Omotola (ed.) Environmental Laws in Nigeria including Compensation (Lagos: University of Lagos Press, 1990 p.232
[3] MT Ladan Review of NESREA Act 2007 and Regulations 2009-2011: A New Dawn in Environmental Compliance and Enforcement in Nigeria’ (2012) 8 (1) Law, Environment and Development Journal, 116.
[4] Section 8(f) of NESREA.
[5] Black Law Dictionary 7th Edition.
[6] ibid
[7] <https://aboutnigerians.com/amp/what-does-nigerian-mean/last accessed,9th of June,2023.
[8] Rethinking Environmental Law in Nigeria: Hakeem Ijaiya, O.T. Joseph
[9] MT Ladan ‘Review of Nesrea Act 2007 and Regulations 2009-2011: A New Dawn in Environmental Compliance and Enforcement in Nigeria’ (2012) 8(1) Law, Environment and Development Journal, 116.
[10] This section relates to the power of the Attorney-General of the Federation to institute, continue, or discontinue criminal proceedings against any person in a court of law.
[11]AE Akpan, ‘Civil Liabilities and Criminal Sanctions in International Environmental Law: A General Appraisal’(2006) 3 Fountain Quarterly Law Journal, 65-82
[12] Environmental Law in Nigeria: A review on its antecedence, application, Judicial unfairness and prospects: Paul Argument Aidonije
Osikemekha Anthony Anani, Omohoste Patience Agbale, John Ovie Oromukoro, Adetunji Oluwaseun Charles.
[13] <https://sabilaw.org/litigation-as-a-tool-for-environmental-protection-in-nigeria-2/#:~:text=Water%20pollution.&text=Litigation%20has%20been%20an%20essential,stronger%20environmental%20laws%20and%20regulations.> accessed,12 January,2024
[14] ibid
[15] ibid
[16] ibid
[17] ibid
[18] SG Ogbodo(n14); H Ijaya & O T Joseph(n1), See also CIN Emelie,The Judicial Approach to Environmental Protection in Nigeria:An overview<www.globalacademicgroup.com> accesses on 22|09|2018
[19] Okonkowo, ‘Environmental Constitutionalism in Nigeria: are we there yet? (2015), The Nigerian Judicial Review, 191.
[20] They are the courts that fall below the high court in hierarchy, they are also known as courts of summary jurisdiction.
[21]< https://thenigerialawyer.com/public-interest-litigation-in-nigeria-by-toheeb-mustapha-babalola/> last accessed, 12th of January, 2024.
ABOUT THE AUTHOR.
Jimoh AbdulGaniy Adisa is an LL.B 300 Student at Faculty of Law, Bayero University, Kano, an award winning writer, educator, and a Legal researcher.He is the Deputy Director of Research and Litigation (Islamic Law) Equity Chamber, and a Law Clinician. In a similar fashion, the Current Assistant Secretary General of National Association of Kwara State Law Student, BUK Chapter. He can be reached via the following social media handles:
WhatsApp:08090666588
G-mail:jimohadisa546@gmail.com
Linkedin:Www.linkedin.com/mwlite/in/jimohabdulganiy-adisa-100121212
