OBSTACLES TO JUSTICE IN MARITIME POLLUTION ADJUDICATION IN NIGERIA CIVIL ADJUDICATORY SYSTEM: POSSIBLE SOLUTIONS AND WAY FORWARD.

I.1 Introduction : maritime pollution is a recurring decimal in the Nigeria petroleum sectors which have left several communities in the Niger Delta region with polluted environment which in-turns destroy their sources of livelihood, their effort to ventilate their grievances in the courts in Nigeria is visited with several bottlenecks, obstacles, hindrances and mountains which have made access to justice as herculean as  navigating or swimming across the ocean. 

This work will make a quite appraisal of the obstacles that visits efforts to access justice in Nigerian courts as regards enforcement of environmental rights in the Nigerian court[1]. 

1. 2 Jurisdictional Issues

The jurisdiction which is the competence of the court to entertain and resolve the dispute between the parties before the court as was defined in the case of SPDC V Ogolo[2]the same definition was  also adopted in the case of    Attorney General of Federal V Guardian Newspapers Ltd[3]moreover, the Supreme Court in the case of Seven-up V Abiola.[4]  held that of all matters before the court the fundamental one is the issue of jurisdiction which must be determined by the parties before anything else; otherwise, all proceedings related to it will be a nullity and an exercise in futility. The court reaffirmed this point in the cases of Jika V Akuson,[5]Yahaya V State.[6]This jurisdictional issue ranges from pre-action conditions such as of cause of action which is the consideration of whether the plaintiff has enough interest which is valid and enforceable in law. Fishing rights have been given judicial notice as an enforceable right in law as was held in the case of ELF Nigeria Limited V Sillo & Anor[7], where the Supreme Court was relying on the earlier case of Adeshina V Lemour[8]held that the plaintiff had proved the existence of their collective right of fishery in tidal waters and its violation was therefore entitled to damages. However, even though the court recognised fishing right on the tidal water as a legal right that is enforceable in law, a Fisher may not be enlighten enough to understand that he has a legal right and where they are so enlightened the resources may fail them. Furthermore, ‘Locus Standi’ which the right of a party is to appear and be heard on a question before the court as was defined by the Supreme Court per Bello, CJN in the cases of Senator Adesanya V Presidentof Nigeria[9]. AG Federation V AG of the 36 States[10].Arabambi V A.B.I Ltd[11]. In oil spill matters where the sources of water are a communal property to satisfy this requirement of the law is frequently very difficult hence the need for class action which most time require representative action. 

Representative Action: this is a very technical aspect of litigation which requires the authorization of those represented who must have the same interest in the subject matter of dispute as the Supreme Court stated in the cases of Shell Development Company Nigeria Limited V Chief Otoko & Ors,[12]Amos V Shell B.P Nigeria Limited[13]. This requirement is sometimes difficult because most of the litigants are illiterate and in communicating the right information to the lawyer some vital evidential details go missing when using an interpreter.

Pre-action notice is usually required by law. This notice is apart from the jurisdictional hook it creates on the access to justice when not given. It helps the oil companies to get their house together in preparation for litigation at the expense of the plaintiff. The courts in a plethora of cases have maintained that an action lacks jurisdiction for failure of the services of pre-action notices Asogwa V Chukwu[14], Mobil Producing (Nig) Limited V LASEPA[15], Amadi V N.N.P.C[16]  to mention but a few. 

Service of process on the defendant and the issue of when the cause of action arose to determine limitation of time for filing of the lawsuit is also part of the jurisdictional issues as was stated in the cases of Teno Engineering Ltd V Adisa[17]and the case of Akibu V Azeez[18]Respectively.

 After overcoming all these challenges, the international oil companies refused to obey the orders of the court, and this has made the litigants seek justice in foreign courts which poses another set of difficulties. 

In the case of OKpabi and others V Royal Dutch Shell Plc[19]    at the high court when Justice Fraser ruled that the court has no jurisdiction, one of the litigants Chief Temebo spokesman for Bille Council of Chiefs said:

“We could not get justice in Nigeria; if the claim does not continue in the English courts, we have no hope that the environment will ever be cleaned up and the fish ever return to our waters. Shell will do nothing unless they are ordered to by the English courts[20]."

This statement above confirmed the position that the IOCs in Nigeria had made a mockery of the judicial system in Nigeria. Hence litigants have lost hope in the judiciary which was supposed to be the last hope of the common man.

It is now imperative to consider the question “what is the liability of the parent company for the actions or inactions of their subsidiaries?"  This question has been answered differently by different courts. In the case of Friday AlfredAkpan V Shell[21], the court held in the affirmative that Shell was liable for the claims of the claimant. However, in the case of Kiobel V Royal DutchPetroleum[22]Where the US court in 2010 examines the liability of the IOC for the environmental Pollution of the Niger Delta in Ogoni land under the Alien Tort Statute which held that the company was not liable. The Bodo Community and others v The Shell Petroleum Development Company of Nigeria.[23]Recently in 2018, the Court of Appeal held in the consolidated cases of  Okpabi and others V Royal Dutch Shell Plc, and Another,[24]  Alame and Others V RoyalDutch Shell plcand Others[25]The decision of the court of appeal in the above case confirmed the conclusion of the High Court of England by dismissing the appeal of the claimants thereby answering the question in the negative. Sadly, the US Circuit Court concluded that multinational corporations could not stand trial under the international laws of the Alien Tort Statute for environmental pollutions. Akpofurere is critical of the decision of the court and stated that this is tantamount to injustice and a setback on international environmental litigation.[26]This research supports the position by Akpofurere, and state further that there is a need for amendment of international environmental laws to allow parent companies to be liable for the acts of their subsidiaries. Presently, it is clear from the following discussion that jurisdiction is a significant challenge to access to justice in oil spill matters.

1.3 Proof of Liability

 There is no legal framework in Nigeria that makes oil spillage pollution a strict liability as it is in the UK and America. Therefore, the burden of proof of liability rest on the claimant to establish the duty of care and the breach of that duty of care by the defendant under the common law of negligence. Paul  Samuel Tamuno made a more substantial discussion of this issue.[27]When he  stated that for many years lawyers struggle with the burden of establishing oversight on the part of the oil companies since multinationals were always appointed as ‘operator(s)' in the JVs due to their presumed technical expertise and they had exclusive control of the records of their operations. Moreover, the Nigerian regulatory bodies often lacked the skills, resources, and personnel to monitor these operations[28].supporting the position by Paul this research states that it is difficult in establishing carelessness under the complex oil exploration and production technology. This hardship was manifest in the decision of the court in the cases of Chinda & Others V. Shell British Petroleum Development Company Ltd[29]. The court reached the same conclusion in the case of Seismograph Services Ltd V Benedict Onokpasa [30]Where the court of Appeal held that the respondent case failed for not establishing negligence on the part of the defendant. The court reached the same decisions in the cases of Jumbo V. Shell B. P. Development Company[31], Atunbi & Others V. Shell British Petroleum Development Company[32]. This position has not changed as the court of Appeal in January 2018 still reached the same decision in the case of Okpabi and others V Royal Dutch Shell Plc, and another, Alame and Others V Royal Dutch Shell plc and other[33]. Relying on the principles as stated by Lord Goldsmith in the case of Lungowe and others V Vedanta and KCM [34]Where the court put forth the three tests of foreseeability, proximity, and reasonableness.

1.4 Assessment of Compensation

Under the Nigerian legislation relating to the petroleum industry, there is no specific legal framework on the assessment of compensation. What appears to be the law in this area is found in various laws with inadequate or moribund provisions which have generated more controversies than the problems they attempt to solve. One such is the Land Use Act which vested the duty of calculation of the compensation in the Director of lands at the state level and the Federal Chief Lands Officer at the federal level.[35]This law was not made for the petroleum industry but rather to regulate the acquisition of land process in Nigeria, and it is about 36 years old with multi-controversial provisions. The Petroleum Act[36]Also attempted to make provision for compensation by stating that it should be fair and adequate with no effort to define fair and adequate or the criteria of measuring or calculating what fair and proper compensation by the court is. Also, the Oil Pipeline Act only states that there should be "Just Compensation" for various issues and the Land Use Act was to be used to assess such compensation. The Nigerian National Petroleum Corporation Act 2004 also made provision for compensation for any loss or damage but leaves the determination of the amount to the Land Use Act. The Nigeria Mineral Mining Act which is the most comprehensive Nigerian enactment on the issues of compensation is not applicable to the petroleum industry.[37]

Further efforts which were made in this regard was the Harmonize Compensation Rate in 2008 by the Conference of Directors of Lands in Nigeria (CDLN) which tried to adopt new harmonious compensation rates for the country known as NTDF Rates.[38]  This new proposed rate competed with existing rating systems which were the Department of Petroleum resources compensation rating system of 1998 and the Oil Producer Trade Section (OPTS) Rate of 1997. Unfortunately, the DPR Rate was not accepted into law by the National Assembly, and the country is stuck with the OPTS rate which became the rate for calculating many oil spill matters. The oil industry operators themselves set this rate; its impartiality is in doubt because of the principal pillar of justice which states that one should not be a judge in his case, this rate has been refused several times by litigants.[39]

However, all the above assessment standards are for land, on the issue of water and fishing rights it is still challenging as Victor stated, "The issue of compensation for such cases as damage to fish, not reduced to possession, or fish temporarily tainted by oil remains ambiguous.[40]

1.  5 The Defence of Sabotage

One of the major hindrances to access to justice in the courts is the defence of sabotage which is always raised by the oil companies. According to Section 15(1) Oil Pipeline Act which provides that any person who suffers damages as a result of his fault or the act of a third party shall not be liable to compensation. This section was relied upon by the court in the case of Anthony Aubin & Ors V Shell B. P[41]   where the court held as per Ovie Whiskey J 

” The hole in the pipe was deliberately drilled by an unknown mischievous person over whom the Defendant Company had no control. Even if the oil spillage had caused damages to the property and fishing rights of the plaintiff in this case, The Defendant could not be held liable for damage which was caused by a mischievous party in the absence of any negligence on their part." 

Adekunbi commenting on this judgment advised the host community to stop sabotage,[42]It is as a result of this argument that the above section of the law raises some questions.

First, do the provisions above vest the security of the pipelines in the host communities? Secondly whether the host community has the resources and technical expertise to carry out sabotage and oil theft.

Considering the first question, according to section 14(2) b of the 1999 Constitution as Amended provides "the security and welfare of the people shall be the primary purpose of government."  From the above section oil companies upon incorporation in Nigeria are legal entities which come within the definition of the people which the section has vested in the government as the primary duty to secure the oil company,

Furthermore, the provision of Section 11(5)(b) affirms as follows:  to any person suffering damage because of any neglect on the part of the holder or his agents, servants or workers to protect, maintain or repair any work, structure or thing executed under the license, for any such damage not otherwise made right; A clear interpretation of the above section will mean that the oil companies cannot rely on the provision of section 11(5) ? above on the grounds of sabotage by a malicious third party because of the neglect to protect the pipeline by the security agencies who are paid by the oil companies as agent of the companies, hired by the government who are shareholder and stakeholder in the joint venture. This is unless the company established that the sabotage was carried out by a member of the host community. Otherwise, it will amount to delegating to the innocent unarmed residents of the Niger Delta the duty of protecting oil installations across their rivers which will be tantamount to injustice and an act of servitude. Considering the second issue researches have shown that many of the rural dwellers in the Niger Delta are poor and therefore cannot afford such instruments. Assuming but not conceding they had such apparatus, the need to hire a ship to transport the oil to the international market for sale, which is capital-intensive beyond the resources of a fisherman or a farmer will make the venture not worth pursuing. Therefore, this research concludes that it is not the host community that carries out the sabotage or oil theft, but it is a sophisticated crime by criminal elements.

1.6 Delay in Administration of Justice

Litigation is associated with technicalities, and this has brought about the delay in the whole process. Even in a developed economy like America, there is a delay in delivery of judgment on environmental matters mostly due to the number of witnesses and documents that will be filed by the lawyers.[43]For instance, in the case of ExxonMobil over the groundwater contamination with MTBE in Hampshire, the matter took ten years to come to court with $700 million in damages at issue, with 230 witnesses and over 100 lawyers. Many cases have lasted about 33 years in court, and the original claimant had died and needed to be replaced by their lawyers. This may not be a deliberate act but due to the number of parties involved and the judges may either be retired or transferred to another jurisdiction and the matter must start de novo as supported by a previous study by Akinseye. [44]Moreover, George Pring [45]have stated that traditional courts have failed on environmental issues because of delay in the administration of justice, this research agrees with this assertion by the learned authors.

2.1 Possible Solutions and Way Forward

The Nigeria laws on environmental pollution should provide for strict liability for pollution related matters. 

There should be an administrative body that assess the compensation request from the company on behalf of the poor residents of Niger Delta region. 

Further, there should be a fund contributed by oil companies as security for exploration from which environmental pollution liabilities will be drawn and pay to the victims, this will ameliorate the difficulties mentioned above.

Our regulatory officers shall be made up of experts who have worked several years in the industry, without adequate industry knowledge therefore they can bring their wealth of knowledge to regulating the industry. 

2.2 Conclusion 

It is this writer’s opinion that if the recommendations above are followed that the injustice visited on the host communities in the Niger Delta will be greatly reduced or brought to an end , and we will have a clean environment and in return we will save our world from climate change and ozone layer depletion. 

[1]Sunday Uko Afiko LLB(Hons) Nig.,BL, LLM Oil and Gas Law Robert Gordon University United Kingdom, Principal Partner AFIKO SUNDAY LP. 

[2](2016) LPELR 41307 (CA)

[3](1999) 9 NWLR (PT. 618) 187 at 133

[4][2001]5 M.JSC 93 at 97.

[5](2006) ALL FWLR (PT. 293) P.276.

[6](2002) 3 M.J.S.C 103.

[7](1994) 6 N.W

[8](1965)1 ALL N.L.R 233.

[9]Theodore Okonkwo, the Law of Environmental Liability(, Afrique Environmental Development & Education 2003)115.

[10](1981) 2 N.C.LR 388, Edjerode V Ikine [2002] 2 M.J.S.C 163.

[11][2001] 6 M.J.S.C 69.

[12][2006]3 M.J.SC.61, Yusuf V Governor Edo State[2001]5 M.J.S.C 128.

[13]Ndule V Ibezim[2002] 12 M.J.S.C 150.

[14](2003) 1 SC (Part 1) 71 at 86.

[15](1990)6 NWLR (PT. 159) 693.

[16](1974)4 E.C.S.L.R 486, Ejem V Offiah (2007)7 NWLR (PT. 666)662.

[17]Supra. 

[18](2003)4 NWLR (PT. 811) 540 at 552.

[19](2000) 10 N.W.L.R (PT. 674) 6; Nigerian Ports Plc V Oseni(2000) 8N.W.L.R (PT. 669) 410.

[20]Adam Vaughan, 'Nigerian Oil Pollution Claims against Shell Cannot Be Heard In UK, Court Rules' the Guardian(London 26, Jan.2017).

[21]  C/09/337050 / HA ZA 09-1580, 30 January 2013.                                                                        (2001) 1 NWLR (PT.695)633.

[22]569 U.S. 108 (2013) 

[23][2014] EWHC1973 (TCC).

[24][2018] EWCA Civ 191.

[25]  [2018] EWCA Civ 191. 

[26]Rufus Akpofurere Mmadu,Judicial Attitude to Environmental Litigation and Access to Environmental Justice in Nigeria: Lessons from Kiobel (2013) JSDLP 149,170.

[27], the Tort of Negligence and Environmental Justice in Nigerian Niger Delta. (2017)15 OGEL1.

[28]Ibid.

[29](1974)2 RSLR1.

[30](1972) 4 SC 123.

[31][1999]6NWLR (PART653)57.

[32]Anthony Atunbin &Ors V Shell B.P Suit No. UHC/43/73 of 21/11/74.

[33]  [2018] EWCA Civ 191.

[34][2017] EWCA (civ) 1528.

[35]Land Use Act LFN 1990 section 29(4).

[36]Paragraph 36 of Schedule 1 to the Petroleum Act.

[37]The Nigeria Mineral Mining Act section 164.

[38]National Oil Spill Detection and Response Agency, towards a new oil spill Compensation System in Nigeria(SDN 2014).

[39]Ibid.

[40]" Victor Fitzmaurice, Liability for North Sea Oil Pollution (1978) Marine Policy 105,108.

[41]Anthony Atunbin &Ors V Shell B.P Suit No. UHC/43/73 of 21/11/74.

[42]Adeniyi Imosemi, and Nzeribe Abangwu, 'Compensation of Oil Spill Victims in Nigeria: The More the Oil, The M, Ore the Blood' (2013) 2 Singaporean Journal of Business Economic and Management studies.1, 14. 

[43]Chris Cragg, Joseph Croft, and Inemo Samiama, 'Environmental Regulation'(SDN 2014).

[44]Akinseye Akinteye, Adjudicating the Impact of Oil Spills in Nigeria: The Need for Black Benches in the Oil Producing States (2018)16 OGEL1, 8.

[45]George Pring and Catherine Pring, ‘Environmental Courts & Tribunals: A Guide for Policy Makers' (2016) United Nations Environment Programme. <https://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts- tribunals.pdf?sequence=1&isAllowed=y> Accessed 7 August 2018.