Legal Remedies for Victims of Environmental Pollution in Nigeria
Chapter One
Objective of the Research
The objective of this research work is to find solution to the problems raised by the statement of problem. Specifically it is the objective of this research:
- To identify the criminal and civil remedies for environmental pollution
- To examine the problem if any, associated with the remedies provided under various laws on environmental pollution.
- To enhance access to information on various mechanism that can be explore to enforce these remedies.
CHAPTER TWO
CRIMINAL REMEDIES
Introduction
There are various criminal remedies provided by different statutes on environmental protection in Nigeria. Essentially, these criminal remedies are fine, imprisonment and forfeiture. The common feature of various statutes in Nigeria is that they have been laced with penal provisions and hence they numerously prohibit the doing of certain things that will cause environmental pollution.
This chapter examines the various statutory provisions of criminal remedies for victims of environmental pollution and the underlying traditional theories of punishment such as deterrence and retribution are the centre of this discourse.
Legal Framework for Criminal Remedies
The provision of most of these Acts carries criminal sanctions with it in nature of monetary fines and/or a term of imprisonment. In other words, if an individual or corporate body violets any of the provision of such statute he is liable to criminal charge. In this case, the idea is to inflict some pain on polluters or cause them some monetary loss. Some of these statutory provisions are hereunder examine.
The Harmful Wastes (Special Criminal Provision etc.) Act1 This Act essentially prohibits anyone from engaging in any activities relating to purchase, sale, importation, transportation, deposit and storage of harmful waste. While Sections 1 to 5 list offences
in respect of harmful waste, Section 6 provides penalties in respect of indiscriminate dumping of harmful waste. It states; ‘any person found guilty of crime under Sections 1 to 5 shall upon conviction be sentenced to life imprisonment.
It should be noted that the offences are strict liability offence2. It therefore removes the problems of proof that may arise in the event of litigation and makes the legislative provision easier to enforce. Also that Act provides penalty where the violator is a body corporate3. The officer in charge of the corporation at the time of the commission of the offence will be liable to punishment unless he can prove that the offence was committed without his knowledge or that he exercise all due diligence to prevent the discharge.
The Oil in Navigable Waters Act: This legislation is to protect waters from pollution and is to give effect to International convention4. This Act prohibits particular pollution activities and provides penalties. Pursuant to Section 65 provides that; ‘A person guilty of any offence under Section 1, 3 and 5 of this Act shall, on conviction by a High Court or a Superior Court or summary conviction by any court of inferior jurisdiction be liable to a fine: provided that an offence of this Section be punishable on summary conviction by a court having jurisdiction inferior to that of a High Court by fine exceeding N2, 0006.
It is observed that this Act vest jurisdiction in the High Court and an inferior court7 (Magistrate Court). This provision is in conflict with Section 251 (n) of the Constitution of Federal Republic of Nigeria8 that vest exclusive jurisdiction in the Federal High Court on matters: – mines and minerals (including oil fields, oil mining, geological surveys and natural gas).
It is also observed the sum of N2, 000 imposed as find is grossly inadequate considering the realities on ground and the need for this provision to be amended cannot be overemphasised.
The National Environmental Standards and Regulations Enforcement Agency (Establishment) Act [NESREA] replaces the repealed9 Federal Environmental Protection Agency Act10. The National Environmental Standards Regulations Enforcement Agency Act has 37 Sections of which 8 Sections11 are laced with provisions for criminal sanctions ranging from fine or term of imprisonment for individual or corporate polluters.
CHAPTER THREE
CIVIL REMEDIES
Introduction
There are various types of civil remedies that can avail victims of environmental pollution in Nigeria. These civil remedies include; compensation, damages, injunction, restoration and rehabilitation. Victims of environmental pollution are faced with these varieties of civil remedies to mitigate the harm suffered by them.
This chapter examines the statutory provision for compensation arising from exploration and mining activities that has occasioned personal and proprietary damage to the victim of pollution. It will also examine damages arising from wrongful act of polluters and grounds upon which damages can be awarded, so as to put the victim as nearly as possible to the position he was before the pollution occurred1. Further to be examined are the various civil remedies highlighted above.
CHAPTER FOUR
MECHANISMS FOR THE ENFORCEMENT OF ENVIRONMENTAL CLAIMS
Introduction
There are various mechanisms for the enforcement of the legal remedies for environmental pollution in Nigeria. The mechanisms for the enforcement of these remedies are provided for mainly by different statutes; these mechanisms are litigation and Alternative Dispute Resolution (ADR) such as arbitration, mediation, negotiation and conciliation1.
Traditionally, litigation has served the age long purpose of attempting to address the plight of an aggrieved person with the aim of settlement of the dispute or perceived wrong done or committed by one person against another. However, environmental litigation in Nigeria is characterised with inherent difficulties which includes inter alia high cost, delay2, technicalities and burden of proof.
In view of some of the above common features of litigation in Nigeria it is gradually giving way to Alternative Dispute Resolution (ADR) given the wide spectrum of benefits that ADR offers. This chapter examines and analyse different modes for the enforcement of environmental pollution claims that can avail victims of environmental pollution.
CHAPTER FIVE
SUMMARY AND CONCLUSION
Summary
This thesis examined the legal remedies for victims of environmental pollution in Nigeria, specifically; it considered the criminal remedies provided by some of the statute, given the penal nature of most of the Acts. Also considered the civil remedies under various laws it further considered the mechanisms for the enforcement of these remedies, this is with a view to analysing the findings from the observations and preferring recommendations.
Findings
The statement of problem in 1:3 of this work raised a number of problems of research on which the following findings were made:
Firstly, the study observed that the 1999 Constitution Federal Republic of Nigeria under Cap II on Fundamental Objective and Directive Principle of State Policy identifies with environment, but unfortunately provisions relating to exact scope and nature as it relate to pollution are not explicit. Also there various pieces of legislations on environment in Nigeria which are scattered in different statutes from the Harmful Wastes (Special Criminal Provisions etc.) Act, Oil in Navigable Waters Acts, Oil Pipeline Act, Nigerian Minerals and Mining Act, National Environmental Standard Regulation Enforcement Agency Act all these Acts contained scattered provisions aimed at protecting and providing remedies for victims of pollution most of these provisions are penal in nature.
Secondly, the study also observed that given that most of the statutes on environmental issues are laced with penal provisions in form of fine, term of imprisonment and rarely forfeiture. These sanctions are often ridiculously low or paltry. For example, the fine for violation of provision of Oil in Navigable Waters Act is N2,
- The need for the amendment of provisions such as this cannot be overemphasized. Hence that is why the Acts are honour more in breach than compliance.
Thirdly it is observed there is the problem of jurisdiction created by Section 19 of the Oil Pipeline Act which vest jurisdiction in the Magistrate Court and the State High Court. This provision is in conflict with the provision of section 251(n) of the 1999 constitution of the Federal Republic of Nigeria which confers exclusive jurisdiction on such matters on the Federal High Court. This Act also create another problem example section 20 that compensation be paid to any chief, or headman portends difficulty for the victims given the nasty history of usage of money paid as compensation.
Fourthly the study further observed that NESREA which repealed FEPA have mandate on wide range of issues relating to pollution the agency does not seems equipped in terms of personnel (legal) to effectively discharge this mandate. Also observed by virtue of the provision of NESREA is conflicting provision as contained in Sections 7(h) (i) (k) and (j) and Section 8 (g) (h) (m) and (n). Further on NESREA is the provision for the application of CPA and CPC respectively to proceedings. These procedural laws that
have existed in our laws for long has no history of been utilised nor have they been subjected to judicial interpretation by superior courts.
NESREA Act also provide that to effect for the agency to institute criminal proceedings, it must first seek for the consent of the Attorney General before embarking on same, both the agency and the office of Attorney General have no history of prosecution in this regard. It is also observed that Act such as NESREA which provide for broad spectrum of issues/activities on pollution is wholly mute on issue of damages and compensation arising from pollution.
Fifthly, the study observed that there is no standard guideline for the assessment of compensation and damages for victim of pollution in Nigeria.
Sixthly, the study observed that victim of pollution often institute action under common law of tort of negligence, nuisance or rule in Rylands v. Fletcher. The requirement for proof under this common law of tort is usually insurmountable by the victims. The requirement of proof and other prerequisite associated with it such as expert witnesses which are usually not easily affordable by the claimant. Others associated with burden of proof is the period of manifestation of some pollution which are not immediately noticeable and the victim may be caught up with problem of an act been statute barred all these combined to frustrate litigation as a mechanism for enforcement of claims by victim of pollution.
Seventhly it is observed that the conservative nature of our courts. The courts are not willing to develop/evolve new precedent and rather they have a rubber stamp attitude of insisting on been given authority for any submission. Further on court and the legal practitioners that appear before the courts have little knowledge of environmental science, environmental economic and specialized nature of environmental litigation involving expert witnesses as such both the judge and legal practitioners are marooned.
Eighthly, the research observed that very little or no attention is being paid to the issue of rehabilitation of the environment that is polluted. Also the polluter pays principle that is in vogue in other jurisdiction seems to be relegated to background particularly with the repeal of FEPA.
Lastly, also further observed by this work is that alternative dispute resolution is been embraced in the Niger Delta region as seen in the SPDC v. Farah and if not resort is made to litigation as seen in Farah’s case (supra) and also in SPDC v. Adamkue. The research observed that EGASPIN provides for arbitration and also statute such as Oil Pipeline Act pursuant to Sections 11 and 17(c). These mechanisms are however clouded with problems of enforcement of award or same may be set aside by the court.
Recommendations
It observed in the course of this research that some solutions to the problems were either proffered forthwith after the problems were identified. However, for emphasis and completeness, we would highlight some salient recommendations here which we hope will go a long way in addressing the problems victims of environmental pollution face while seeking for remedies.
Need for Express Constitutional Provision on Pollution
The constitution of Federal Republic of Nigeria should accord significant status to issue of compensation for the impairment of individuals’ health or property caused by environmental pollution. It should not just be a mere pious declaration as contain in Section 20 which falls under non justiceable umbrella, this has denied the victims of environmental pollution in Nigeria of constitutional weapon in their armoury. The provision of Section 20 should be a fundamental a right that should be enforceable.
Compendium of Environmental Laws
As a way out of the problem of scattered character of various Nigerian environmental legislations a compendium of environmental protection laws is recommended for Nigeria. There is also need for harmonisation of some of these laws as leaving them the way they are makes it difficult to enforce by some regulatory agencies. Also issue of limitation of time as it relates to pollution is recommended to be relaxed because of period of manifestation of pollution in some cases.
Imposition of Heavier Fines
It is an axiom that most of the statutes on environmental protection in Nigeria are laced with penal sanctions, most of which are ridiculously low and for these fines to serve as an effective tool for deterrence to the polluters particularly multinational corporation in oil exploration and exploitation there is need to review these fines upward so as to deter the polluters.
Extending the Mandate of NESREA
The oil industry is a major culprit in environmental pollution; therefore the law on environmental pollution should contain adequate provisions to address this industry. In this regard it is recommended that the NESREA Act, 2007 should be consolidating enactment to the FEPA rather than its outright repeal. This can be done in such a way that provision excluding the oil and gas should be removed.
Also NESRREA and other agencies such as DPR should have a strong prosecutory arm and should not solely and wholly relay on the office of Attorney General before prosecuting environmental offenders.
The NESREA Act, 2007 need to be amended and provision for civil remedies should be made as was the case with repealed FEPA Act under Sections 20 and 36 on payment of compensation to third party and for damages to repair and restore the polluted environment, this is line with Principle 10 of Rio Declaration on Environment and Development with priority on issue of pollution and remedies for the victims.
Further, the statutory provision of Section 32(4) of NESREA Act which provides that judicial proceedings of an offence under the Act or any regulation made under, it the provision of CPA or CPC depending on the venue shall apply the CPA pursuant to Section 435 and CPC by virtue of Section 365 provides for payment of compensation to a victim of crime, this provides a glimmer of hope for victims of pollution in Nigeria given the problem associated with burden of proof under law of tort.
Shifting the Burden
The general trend vis-à-vis rules of evidence lies in shifting the burden of proof in environmental litigation. Shifting the burden will undoubtedly assist the victims in proving his case in environmental suit. That is why the Harmful Wastes (Special Criminal Provisions etc.) Act should be viewed as a good piece of legislation in spite of its punitive outlook. The Act significantly affected the rule on burden of proof with respect to damages or dumping of waste; provision of Section 12 of this Act should apply to all environmental litigation.
Evolving New Precedence
The English common law of tort is outdated and seems not to meet up with modern technical demand this common law requires proof of damages in case of negligence, nuisance and trespass. These rules are not static body of rules but capable of being altered to meet the need of changing society. The judges should use their learning and ingenuity to modify the requirement of proof under common law of tort in order to bring them in line with modern civilization and to truly do justice to all manner of person without fear or favour.
Our judiciary should not await new legislation. The position of Edozie JCA and Onalaja JCA in Shell B. P. Development Nigeria Limited v. Farah1 is commendable, this is has opened new vistas in the attitude of our court to issue of environmental pollution. This is a glimmer of hope that Nigerian courts may take progressive judicial
- (Cited in Derri, D.K. And Emiri, O.F. Op. cit p. 44 path. This was the decision in the case of Shell Development Company Limited v. Adamkue2.
Nigeria needs more of this judicial activism to enable the victims with genuine claims to make same and such claim should not be seen or use as a gold digging exercise. Judiciary exist for the people and not vice-versa and therefore must impart effectively and promptly3. Courts are pressed on to activates this rights and extinguish exploitation injustice. The court must activate itself rather than remain static judges impart on million through positive approach. This approach will ensure the concept of protecting the environmental right for future generation example of this can be seen in the decision of Supreme Court of Philippines in the case of Minor Oposa v. Secretary Development of
Environment and Natural Resources
Adoption of Strict Liability
Most environmental protection laws are now based on strict liability in other jurisdiction such as USA. Nigeria should follow suit as it greatly relieve victims of pollution of the Herculean task of prove associated with environmental litigation. There is need for our courts to come up with their own rule on strict liability with reference to the rule in Rylands v. Fletcher5. This will ease the stern requirement of prove on the victims of environment pollution. Courts should note that common law is not static.
- (2003) 11 NWLR pt. 832 p. 533
- Mehta C. S. Environmental protection and the law APH publishing corporation New Delhi 2009 p. 78.
- Reported in Bright, C.A. Toede the Right to Health as Human Right in International Law Groningen School for Human Right Research 1999.
- (1886) LR1 Exch. 265
EXPLORING ADR
Claims for compensation are generally very difficult to prove in court much scientific and technical data are often required to establish the real nature of polluting agents and the causal connection between it and damages complained of, for this the polluter is in vintage position. It is recommended that victims should explore the option of Alternative Dispute Resolution first and to do so seriously as both parties have to deal with each other over long period of time and litigation destroys long term relation.
Establishment of Statutory Compensation Fund
There is need for the government to establish a statutory compensation fund for victims of environmental pollution, such fund or scheme can equally be used for restoration and rehabilitation of the environment. Similar super fund has been existing in the USA under Comprehensive Environmental Response Compensation and Liability Act 19826. An attempt in this regard can be seen in the provision of Section 121(1) and (2) of the Nigerian Minerals and Mining Act, 2007 which provides for the establishment of environmental protection and rehabilitation fund is a good step in right direction. It hopes that this will be extended to other aspects. There is also need for a standard for assessment of quantum of compensation to effectively guide our courts in determining issues of compensation and damages to be awarded for injurious affection to victims of pollution.
The United State Congress established the Superfund programme in 1980. It is administered by U. S. Environmental protection Agency.
In conclusion, we must note that pollution has caused adverse effect to man’s health and wealth it is only fair that the victims be adequately compensated for their vicissitude to enable the victims cope with realities confronting them. The victims on their own part should not seek the remedies as gold Digging Avenue.
BIBLIOGRAPHY
- Amokaye, G.O. Environmental Law and Pracitice in Nigeria, University of Lagos, Akoko 2004.
- Atsegbua, L. Akpotaire, V. and Dimowo, F. Environmental Law In Nigeria. Ababe Press Limited Lagos, 2003.
- Abdullahi Zuru, The Nigeria’s Upstream Oil and Environmentalism. Government, the Niger Delta and Multinational Oil Industry. Faith Printers International, Rimi Tsiwa, Zaria 2009.
- Ladan, M.T. Biodiversity, Environmental Litigations Home Rights and Access to Justice Faith Printers Rimi Tsowa Zaria 2007.
- Ladan, M.T. Materials and Cases on Environmental Law Econet Publishing Co. Zaria. 2004.
- Ogun Dan Non-governmental Organizations, the Law and Environmental Protection in Nigeria. Green World Publishing, Jos 2002.
- Okorodudu – Fabura, M.T Law of Environmental Protection Material and Text. Caltop Publication Nigeria Limited 1998.
