LITIGATION AS A TOOL FOR ENVIRONMENTAL PROTECTION IN NIGERIA

INTRODUCTION

Our forefathers have delivered a habitable environment to us, it remains our duty to ensure that future generations can live on Earth comfortably. Litigation is one of the ways we can lend our voices to help Mother Earth become well once again. Litigation processes involve everyone in society – polluters, victims, the media, government. Consequently, it makes everyone involved in ensuring environmental sustainability.

In Nigeria, environmentally degrading activities are now the norm and have become an act that people refer to as ‘that’s how they usually do’. Given the fact that Nigeria is an oil-dependent economy, her environment has suffered degradation, especially in the Niger Delta region where oil mining and exploration activities are based. The environment has been harmed and destroyed in the race to build the nation’s economy. This has also been a limiting factor to litigation as sometimes, the polluters are not strictly punished because of the revenue they generate for the nation’s economy.

Against this backdrop, this paper seeks to delve into what obtains in the country regarding environmental litigation. The paper then explains the role of environmental litigation in protecting the environment from harmful human activities. Lastly, it explains the obstacles that have prevented the environment from enjoying the full benefits of environmental litigation and how these obstacles can be overcome.

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ENVIRONMENTAL LITIGATION IN NIGERIA: THE STATUS QUO

Before discussing the role of environmental litigation in Nigeria, it is apposite to examine the current status of environmental laws and litigation. In environmental matters founded in tort or on equity, the jurisdiction of the State High Court remains unchallengeable. But where the action involves a Federal Agency or matters exclusively reserved for the Federal High Court such as oil matters, mines, and minerals, the appropriate court to initiate such proceedings is the Federal High Court.

The question of locus standi is a recurrent theme in environmental litigation. In Nigeria, the threat of environmental litigation has increased greatly but is being hindered by the conceptual foundation of the principles of locus standi, which are increasingly under test and scrutiny. A lot of cases have been dismissed in the Nigerian Courts on grounds of either lack of sufficient interest and a right cause of action; or if an environmental action is instituted in a representative capacity, on the ground of lack of common interest or lack of non-equal loss or damage. For example, in Shell Petroleum Development Company of Nigeria Limited v. Chief Otoko and Others,[1] the Supreme Court rejected the purported representative action because the six communities represented had a diversity of interest and there was no joint tort for damages caused to each of them can only be personal to each of them. Also, in the case of Olawoyin v. A.G., Northern Region of Nigeria

The Supreme Court upturned this traditional thinking of the courts in the case of Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation (NNPC),[2] where it held that section 6 (6) (b) of the Constitution confers judicial powers on the judiciary to determine any question as to the civil rights and obligations of parties to a case. Thus, locus standi is determined based on the facts on circumstances of each case before the court. The law on locus standi concerning environmental matters that are maintained purely for the public interest, without any private interest, has changed to the extent that pressure groups, Non-Governmental Organizations, (NGOs), and even public-spirited taxpayers, are cloaked with the locus standi to maintain an action for public interest even though they may not have suffered any injury at all let alone any injury above every other member of the society from the subject matter of the suit.[3]

This case also characterizes a revolutionary development of environmental and public interest litigation in Nigeria. The relationship between human rights and environmental rights is a long-standing one and can be traced back to the 1972 Stockholm Declaration which was adopted at the United Nations Conference on the Human Environment.[4] In Nigeria, the state has the duty to protect and improve the environment[5] and citizens are obligated to see to it that the environment in which they resided is protected from despoilation and if threatened or eventually despoiled, have the legal right to apply to courts to refrain the despoilation and restore and repair the environment to an acceptable level.

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THE ROLE LITIGATION HAS TO PLAY

The mere existence of a law seeking to protect the environment does not automatically translate into environmental protection. For a law seeking to protect the environment to do so, it must enjoy enforcement in the law courts through the instrumentality of litigation. Relatively, the interpretation and application of laws by the judiciary have proven to be an effective strategy to draw attention to critical environmental issues, hold responsible parties accountable, and drive policy changes. It helps new legislative principles take root in society as well as increase public awareness and embolden those with legal claims to come forward.

Punishments, remedial and enforcement policies of the courts also play an important role in ensuring compliance with environmental protection laws. Generally, the remedies for an environmental suit or action in Nigeria can be found in the common law remedies under trespass to land, nuisance, the rule in Rylands v Fletcher[6], and negligence. Remedies can also be given based on relevant provisions in applicable laws.

Nonetheless, environmental litigation sets precedents that would be the benchmark for deciding future cases or environmental issues and the punishment mechanism of the court serves as a detriment to other polluters. Also, judicial involvement can make a unique contribution by insulating environmental protection measures from political horse trading. Judicial implementation of environmental rights would not amount to the usurpation of legislative or executive roles; nor would it force a court invariably to give in to the demands of environmental special interest’s groups, allowing it to be captured by them.[7]

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IDENTIFYING AND FILLING IN THE LACUNA

Jurisdictions such as India have found a way to improve the impact litigation has on environmental sustainability. Through public interest litigation which includes environmental litigation, the Indian Supreme Court has transformed itself into an arena in which political, social, and economic battles are fought and socio-economic justice is delivered. In the US, the Environmental Tort (ET) Litigation Section defends cases that deal with releasing toxic substances into the environment. In this Section, due to the complexity and the need for specialized knowledge and expertise in these aspects, ET does not delegate these cases to the United States Attorney Offices. It works with high-level agency officials at the EPA, the Department of Defence, and its military departments, as well as numerous other agencies to develop nationwide policy positions for litigation. These different strategies have highly increased the impact of environmental litigation in these jurisdictions.

To bring Nigeria up to the standard of these countries, there is a need to scrutinize the challenges environmental litigation faces in Nigeria and what solutions can be proffered to these problems.

?? Ignorance of Environmental Rights: Arguably, ignorance of environmental harm and the anthropogenic effects of such harm is the most important factor inhibiting environmental litigation in Nigeria.[8] Oftentimes, when people in rural communities’ suspect pollution, they are ignorant of its effect on their health. There is a high level of ignorance in respect of environmental rights in Nigeria. Many citizens still do not know about their rights. This phenomenon is also sometimes noticeable among lawyers. Hence, there is a need to enhance greater public participation through greater awareness and education on environmental issues. This is necessary as the majority of the victims are usually illiterate; for example, in the Niger Delta region of Nigeria.

?? Compensation of Victims of Pollution: The Nigerian Petroleum Act 2021 makes provisions for host community development, gas flaring, and environmental management plan.[9] ?

?? Delay in litigation and unnecessary process: The case of Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation (NNPC)[10] was instituted in 2005 and judgment was only given in 2018. In Nigeria, delays significantly plague the course of litigation against poor rural communities. The delay in getting a judgment in the courts discourages the prospective litigants from instituting any environmental action in court. Another practice that leads to unnecessary delay is the requirement of a pre-action notice.[11] Environmental degradation waits for no man and to ensure sustainability, matters need to be decided promptly.

Establishing environmental courts (a court similar to the National Industrial Court that currently exists) would ensure that environmental cases are decided on time. Also, the judges in this court would be skilled in environmental matters and it would ultimately lead to better litigation outcomes that would go to the root of environmental degradation. The issue with the limitation of time would be easily solved as victims would be willing to go to court since a timely response is guaranteed.

?? Poverty: Environmental litigation often requires the production of expert witnesses particularly from the plaintiff for him to be able to prove environmental damage and harm. Over time, expert witnesses on environmental matters have proven to be expensive to produce. The victims of mass environmental harm in Nigeria are those who live in rural areas and may not have the financial means to bear the costs that come with litigation. In the case of Seismograph Services Ltd v. Onokpasa,[12] the technical witness called by the respondent was no match for the expert witness called by the appellant. Ultimately, the respondents lost the case as the court gave more weight to the evidence of the expert witness called by the appellant. Also, in the case of Seismograph Services Ltd v. Akpovravo[13], the respondent claimed 7, 884 naira as damages for the harm caused to his property during the appellants’ operations. The court held that expert witnesses were needed to prove liability. As the respondent did not call any expert witness, he lost the case.

It can be deduced from these cases that poverty has disrupted environmental litigation more than we would like to admit. To fill in this lacuna, where the facts of the case speak for themselves, the burden of proving should be shifted to the defendants.

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CONCLUSION

From the foregoing, it is obvious that oil companies have been adamant in making a change to their acts and habits when it comes to pollution of the environment. In a large number of environmental cases in Nigeria, an oil company is a litigant. It therefore follows that we need to come together as a nation to ensure that we take litigation seriously and fight against the problem our environment currently faces.

[1] (1990) 6 N.W.L.R.

[2] (2018) LPELR-50830 (SC).

[3] As was held in Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation (NNPC) (2018) LPELR-50830 (SC).

[4] Principle 1

[5] Constitution of the Federal Republic of Nigeria 1999, S. 20.

[6] (1868) LR 3 HL 330.

[7] Oludayo G. Amokaye, Enviromental Law and Practice in Nigeria, (2nd edn, MIJ Professioanal Publishers 2014), 182.

[8] Adamu Kyuka Usman, Environmental Protection Law and Practice, (Malthouse Press 2017), 182.

[9] Petroleum Industry Act 2021, S. 102 & 104. ?????????????????

[10] (2018) LPELR-50830 (SC).

[11] In commencing legal action against most-regulatory agencies and public bodies, potential litigants are required to issue a pre-action notice that will among others set-out the claimants’ details; details of the matter being challenged; details of the action that the regulator is expected to take; the remedies to be sought from the court; details of any interested parties; and the date the regulator or public body is expected to reply

[12] (1972) 4 S.C. 123.

[13] (1974) LLJR-SC.

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