A paper delivered by Eko Ejembi Eko, SAN, MCIArb (UK) at the C.O. Anah, SAN memorial colloquium, NBA House, Abuja.
INTRODUCTION.
In its traditional sense, the concept of environmental justice, derives strictly from environmental rights, environmental protection, environmental safeguards and the interweave between them and the ascendancy of environmental laws, statutes and relevant policies as interpreted and implemented by the Courts.
Environmental pollution and abuse in Nigeria cuts across many foras, be it from noise, smoke, light pollutions; but most popular in our clime arises from oil pollution and gas flaring. The unfortunate victims of these negative environmental degradation have only the Courts to turn to seek whatever form of redress that avails them from the principal actors in this obscene play.
The reliefs allowable and accruable to the victims of environmental pollution in Nigeria to a large degree rotates on the pivot of the country’s already overburdened justice sector; and the intrigues of the brilliant lawyers hired by the polluters to find and leverage on the cracks and loopholes that abound justice delivery sector in Nigeria
In the aftermath of 1956, when crude oil was first discovered in viable volumes in Nigeria, the economic and even socio-political realities of the country have been defined by the availability of this black gold; and has largely become more of a curse than a blessing to the communities that harbor such riches. The country’s history became rife with massacres and inhumane and very degrading treatment meted out to the unfortunate inhabitants of such terrains.
Nigeria is arguably one of Africa’s largest producer of oil, and hence the attendant high level of environmental pollution emanating from the process of drilling and refining the crude oil; they are repetitive cases of oil spillage along the host communities and regions. Most of these spills in the view of the host communities and the agitators arise from old, and failing equipment’s deliberately used by the multinational oil companies in the process oil refining, with the attendant poor if not deficient supervision from the regulatory bodies.
The host environments are full of oil drilling and refining activities that violate the rights of the indigent individuals living in those surroundings; depriving them of the most basic needs and resources needed for basic survival.
Unfortunately, the quests to attain redress for environmental problems suffered by the indigent indigenes of the host communities have not been the most straightforward endeavour in Nigeria.
This paper attempts to analyses the legal and technical challenges perennially faced by environmental litigants in Nigeria, such as Locus Standi, jurisdiction, pleadings, reliefs, claims, the requisite standard of proof, the appropriate adjudicatory forums, and post judgment enforcement challenges.
The paper argues in favour of a more flexible interpretation of the law in order deliver actual substantial and substantive justice to the victims of environmental problems in Nigeria. It argues that the current heightened activities of environmental exploitation will remain and continue to impoverish the social- economic status of the host communities and Nigeria as whole, thereby exposing them to more developmental challenges as the continued view of denied justice creates a kaleidoscope of problems for the country.
It has become imperative for the Nigerian judiciary to play a more proactive role in its delivery of environmental justice to the common man and woman. To put it in proper perspective oil was discovered in Nigeria in 1956; oil was discovered in the United Arab Emirate (UAE) in 1958; Norway started oil production in 1971, but as at 2022 the socio- economic realities of these countries are radically divergent.
For Nigeria to turn the corner, all the principal actors of the Nigerian justice sector has to girdle up and play its respective roles in the provision of an actual rule of law guided substantial justice to the deserving host communities as the multinationals have exploited the endemic corruption; archaic legal apparatus, and obsolete judicial systems/mechanism to its advantages in their dystopian agendas.
REVIEW OF NIGERIA’S EXTANT STATUTORY LAWS AND REGULATIONS.
The Nigerian environmental law spans across all the conventional sources of law such as the Constitution, international treaties, federal laws, state laws, local government laws and common laws.
Nigeria has domesticated many international conventions and agreements, some which are directed at protecting the environment, some national environmental laws and regulations have been enacted pursuant to Nigeria’s treaty commitments. The Nigerian government in Section 20 of the Constitution Federal Republic of Nigeria 1999 (As Amended) undertook to “protect” “safeguard” and “improve” the environment including the air, land, water, forest and wildlife.
In an attempt to fulfil this, the legislative arm of the federation has enacted several environmental protection laws which includes among others;
- The 1999 Constitution of the Federal Republic of Nigeria (As Amended)
- The Land Use Act
- The National Environmental Standards and Regulations Enforcement Agency (NESREA) Act
- The Environmental Impact Assessment Act
- Harmful waste (Special Criminal Provisions) Act
- Hydrocarbon Oil Refiners act
- Nigerian Mining Corporation Act.
- Petroleum Products and Distribution (Management Board) Act.
- River Basins Development Authority Act
- Federal National Park Act. Etc.
The right to the environmental “ protection” “safeguard” and “improvement” is inured to every Nigerian citizen by the statutory guarantees under the Section 20 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) wherein it states explicitly thus that :
“The State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”.
However, the same/very Constitution, by virtue of the contents of its Section 6 (6) (C) seems to render the judiciary impotent in its adjudicatory roles on environmental matters in its stipulations thus:
“shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental objectives and Directive Principles of State Policy set out in Chapter II of this constitution”
Present divergent opinions and cases have tilted towards the assertion that environmental rights of citizens ought to be ranked as fundamental human rights guaranteed in the Chapter 4 of the Constitution. Hence, the need for an urgent reassessment the justiciability of the rights to environment; this presupposes that an action for the violation of the right to environment, as encapsulated in Section 20 of the constitution is a derivative of the right to life as captured in Section 33 of the constitution and the right to dignity of the human person as stated in Section 34 of the Constitution, and Article 24 of the African Charter. There is no gain stating that by virtue of Section 12of the Constitution it allows for the application of the Africa Charter in Nigerian courts.
To put it in context there has been a lot of debate as to whether the powers to legislate and make laws for the environmental protection and regulate the attendant pollution is also within the vires of the states as well; these issues have been put to rest in decided authorities as to the fact the such powers lies exclusively with the federal government of Nigeria and its apparatus.
In the case of HELIOS TOWERS NIG. LTD v. NESREA & ANOR (2014) LPELR-24624(CA), it was stated by the Appellate Court that:
“The first question that arises for resolution, from the contentions of the parties, is who, under the 1999 Constitution, the grund norm of our Laws, has the power between the Federal Government and the State Government to legislate on Environmental Impact Assessment. Environmental Impact Assessment is the process of considering and assessing the environmental impact of any activity or development, construction, excavation, etc to determine its likely effect on the surrounding environment and it is done to protect the land, water and air, including all layers of the atmosphere and interacting natural systems around the area of the activity of development from degradation and despoliation. In Attorney General of Lagos State Vs The Attorney General of the Federation & 35 Ors (2003) 12 NWLR (Pt 833) 1, the Supreme Court held that by virtue of Item 60 (a) of the Second Schedule and the provisions of Section 20 of 1999 Constitution, only the National Assembly on behalf of the Federal Government has power to legislate on matters designed to protect and improve the environment and to safeguard the water, air and land, forest and wild life in Nigeria. Kalgo, JSC defined the key words in provision of Section 20 at page 161 thus:
?”Section 20 of the 1999 Constitution can in my view be subdivided into two: (i) the protection and improvement of the environment in Nigeria and (ii) safeguarding the water, air and land, forest and wild life in Nigeria. Collins’ English Dictionary (1985 Edition) gives the meaning of “Environment” as ‘External conditions or surroundings especially those in which people live or work: the external surroundings in which a plant or animal lives which tend to influence its development and behaviour.” The same Dictionary gives the meaning of “safeguard” as ‘a person or thing that ensures protection against danger, damage or injury etc; a document authorizing safe conduct; to defend or protect’. If you separate this word into its component parts, in the Dictionary “safe” means ‘affording security or Protection from harm; free from danger; secure from risk; certain, sound, unable to do harm; not dangerous’. And “guard” means ‘watch over or shield from danger or harm, protect, to keep watch over, a person or group who keeps protecting, supervising or restraining; watch or control over people etc’.
It is my respective view that the words italicized above are the operative words in Section 20 of the 1999 Constitution. … The main object of S. 20 in my view is to protect the external surroundings of the people and ensure that they live in a safe and secure atmosphere free from any danger to their health or other conveniences… “
The learned Justice stated further that “it is more concerned with effective planning, management and protection of environment particularly with how to handle activities which degrade or pollute the air, land and water.” It is clear from these definitions that Environmental Impact Assessment comes within the areas over which the Federal Government has an exclusive preserve to legislate by the provisions of Section 20 of the 1999 Constitution.”
Per ABIRU ,J.C.A in Pp. 68-71 paras. F
In the same matter the very learned Appellate Court, went on to state further thus:
“In other words, and to put it concisely or tersely, whether the Federal Government has powers either exclusively or concurrently with the States, to legislate on environmental matters within the spheres of the States. This is the tenor of the question the Appellant is raising in the first arm of this issue. The Appellant is not alone, as these concerns have been expressed at many quarters including the Lagos State Government in the case of A. G. Lagos v. A. G. Fed (Supra) concerning the negation of the Federal nature of our country especially when the Federal Environment Protection Agency (FEPA) Act was established. The answer to this question must be found in the Constitution and case law.
The legislative powers of the F.R.N vested in the National Assembly are set out in Section 4 (1), (2), (3), (4) of the Constitution. While the legislative powers of the House of Assembly are set out in Section 4 (7).
The Exclusive Legislative list set out in Part 1, 2nd Schedule to the Constitution does not include as an item, environment or environmental matters nor does the Concurrent list contain matter of environment.
By legal implication, the matter should be residual for the States to legislate upon.
However, the Exclusive Legislative list has 68 items. Item 60(a) empowers the National Assembly to make laws for
“The establishment and regulation of authorities for the Federation or any part thereof to promote and enforce the observance of the fundamental objectives and Directive principles contained in this Constitution.”
The fundamental objectives and Directive principles of State policy are contained in Chapter II of the Constitution from Section 13 to 24. Section 20 provides:
“The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.”
As it stands, it is clear that item 60(a) has incorporated into the Exclusive Legislative list all the matters listed in Chapter II, in Sections 13 to 24 as matters identified to promote the fundamental objectives and Directive principles of State policy. What this means is that item 60(a) of the Exclusive Legislative list has not only incorporated into the Exclusive Legislative list matters contained in Sections 13 – 24 of the Constitution but has also made any such matter which the National Assembly decides to legislate upon to become justiciable, though items in Chapter II without any specific legislation, are not justiciable. See F.R.N vs. Alh. Mika Aneche & Ors in Re: Chief Adebiyi Olafisoye (supra).
The Supreme Court has spoken loudly and clearly on effect of item 60(a) on matters contained in Chapter II of the Constitution in the case of A.G. Ondo vs. A.G. Fed. (supra) when it upheld the Constitutionality of the I.C.P.C. Act. The Apex Court said inter alia:
“It is a legitimate and fair interpretation that item 60(a) has incorporated into the Exclusive Legislative List the intendment of Section 15(5); and it does not appear to matter in all the circumstances that this was not done by inserting a separate item. The framers of the Constitution obviously used terse words to incorporate as it were the declarations in Chapter II into the Exclusive Legislative List as subject sub-items but all brought under item 60(a). It is for the National Assembly to select from time to time those sub-items that are suitable subject for legislation…..”
In essence, although the words “abolish corrupt practices” are not inserted specifically as an item in the Exclusive legislative list, item 60(a) has incorporated it to the list.
Following its decision in A.G. Ondo State vs. A.G. Fed. (supra) among others, the Supreme Court in the case of A.G. Lagos State vs. A.G. Fed. (supra) per Uwaifo, JSC who read the leading judgment, accepted the argument of the A.G. Federation (1st Defendant in the matter at the lower Court) that it is the National Assembly that can legislate on such matters as “Environment.” The Court stated thus:
“It is only the National Assembly that is empowered to legislate on behalf of the entity known as the Federal Republic of Nigeria in regard to any of the matters under Chapter II, through item 60(a) in the Exclusive Legislative List by virtue of Section 4, Subsection (1), (2) and (3) of the Constitution. One of such matters is ‘Environment’ in Section 20.”
The Apex Court also accepted the submission by the learned A.G. of Anambra State that the Federal Environmental Protection Agency Act was the statutory threshold of environmental protection in the country.
However, the Court refused to accept any argument that the environment contemplated in Section 20 of the Constitution includes the conception, design and implementation of urban, town, and Regional planning laws, which are within the competence of the States to legislate upon. The power of the National Assembly to legislate on environment the Supreme Court held, does not necessarily imply the power to legislate on Regional, urban planning even when the meaning of the Section is strained to its limits. Thus, town/urban planning laws are within the legislative competence of the State House of Assembly, as they deal with the planning and control of citing and erection of buildings and other structures, the provision of open spaces and similar use of land for the improvement of human environment. See Town Plannings Registration etc, Act, Cap.431 LFN 1990.
Indeed, in the English jurisprudence, town planning simply described is, “how much of what is put where.”
Well, for the environmental matters contemplated in Section 20 of the Constitution, Section 20 is meant to support such laws as the FEPA Act Cap 131 LFN 1990, the harmful wastes (Special Criminal Provisions) Act Cap 165, the Environmental Impact Assessment Decree No. 86 of 1992, the National Environmental Protection (Pollution of Abatement of Industries and Facilities Generating waste) Regulations, 1991 etc. See page 41 fines 12 – 22 Per Uwaifo JSC in A.G. Lagos vs. A.G. Fed. (supra).
It thus means that as the law now stands, environmental matters within the scope and contemplation of Section 20 of the Constitution, which such laws as the Environmental Impact Assessment Act, under consideration is meant to support, are within the Exclusive legislative competence of the National Assembly. The State House of Assembly lacks the vires to legislate on such matters. The matter has been laid to rest and our mouths are sealed, and the inks are dry at least at this level and all Courts below this Court, for now, to say or write anything to the contrary, by our well respected, well cherished and treasured doctrine of stare-decisions.”
Per WAMBAI ,J.C.A in (Pp. 38-43 paras. B)
The resolution of the powers to legislate on such matters as regarding the environmental vis-à-vis pollution issues settles to a large extent the question of requisite judex for to accommodate such complaints and issues; the jurisdiction to entertain environmental pollution matters to a large extent as it relates to party and subject matter jurisdiction vests with the Federal High Court pursuant to Section 251 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and Section 7 of the Federal High Court Act.
On the issue of the hybrid and symbiotic relationship between the breaches of the rights of the citizens by an act of environmental pollution and the fundamental human rights of the individual, the Courts have come in to settle the dust in a couple of instances.
In JONAH GBEMRE V. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD. AND ORS (2006) LPELR-11798(CA) the Court held that the practice of gas flaring is unconstitutional as it violates the guaranteed fundamental rights of life and dignity of human persons provided in the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples Rights.
On the highly contentious issue of whom has the locus standi to litigate in environmental pollution issues, we opine that Locus Standi is a Latin word which means “a place of standing”; “standing in court”, thus meaning simply the standing to sue. It is the ability of a party to demonstrate to the court or a competent tribunal, a sufficient and direct interest to, and /or connection to the harm complained against, upon which a redress is sought from the law.
In lay terms it is the legal capacity to bring an action in Court; hence, once a party has no Locus Standi, it affects his ability to present or defend a claim in court, and renders the action incompetent as constituted.
In ADESANYA V. PRESIDENT OF THE REPUBLIC OF NIGERIA & ANOR, ADESANYA V. PRESIDENT (1981) 1 NCLR 38; the Apex Court stated that the term “Locus Standi” denotes the legal capacity to institute proceedings in a court of law; hence once the claimant has some justifiable interest which may be affected by the action or that he will suffer injury or damage as a result of the action, he has the requisite locus standi to approach the court.
The penultimate question which then arises from environmental pollution claims is since the effect of the pollution is often felt by the community as a whole; then on whom vests the requisite locus standi to approach the court in environmental pollution matters?
These problems associated with the lack of the requisite Locus Standi has resulted in the failure of many environmental pollution litigations in Nigeria; notable amongst many is the case of ORONTO DOUGLAS V. SHELL DEVELOPMENT COMPANY LTD (1998) LPELR-6457(CA), Where the plaintiff seeking compliance with the provisions of the Environmental Impact Assessment (EIA) Act in relation to the Liquefied Natural Gas (LNG) project at Bonny being executed by the defendants ran into the stormy waters of a lack of locus standi at the trial Court which was of the view that no personal interest was disclosed to have vested locus standi on the plaintiff.
The horizon of the scope of Locus Standiin relation to environmental pollution and degradation matters has however been recently been expanded by the Supreme Court in the locus classicus case of CENTRE FOR OIL POLLUTION WATCH v. NNPC (2018) LPELR-50830(SC), therein Apex Court overturned the decision of the Court of Appeal which held that the Appellant had no Locus Standi to bring an action against the NNPC for failing to clean up or reinstate the Ineh/Aku streams after its corroded pipeline ruptured, fractured and spewed its entire contents into the surrounding streams and rivers in Abia State, Nigeria.
In the statement of claim, filed by the Centre for Oil Pollution Watch; a Non-Governmental Organisation at the Federal High Court carrying out the function of ensuring reinstatement, restoration, and remediation of environments impaired by oil spillage/pollution. In defending the action filed by the Centre, the NNPC denied liability for the oil spillage and also filed an objection challenging the Locus Standi of the Centre to file the action. The Federal High Court agreed with NNPC’s objection and struck out the Centre’s action. The Centre, not satisfied with the decision, filed a Notice of Appeal against this decision at the Court of Appeal; however, the Court of Appeal affirmed the ruling of the Federal High Court and dismissed the appeal.
The Centre subsequently filed a Notice of Appeal at the Supreme Court against this decision. In allowing the Centre’s appeal, the Supreme Court the Apex Court per the very erudite Ejembi Eko JSC, not only expanded the frontiers of whom has the requisite locus standi to institute an environmental pollution matter, but went further to ascertain the availability of such locus standi to public interest litigation in his holding thus:
“I wish, at this juncture, to point out that no statute that I know of (except rules of the High Court on judicial review) has made any definitive provision prescribing who has the right generally to sue. Locus standi was evolved by the common law Courts to protect the Courts” from being used as a playground by professional interlopers, busy bodies who really have no stake or interest in the subject matter of litigation” – per Rhodes-Vivour JSC in Sunday Adegbite Taiwo v. Sarah Adegboro & Anor. (2011) 11 NWLR (pt. 1259) 563 at 597.
In administrative law, particularly in the area of judicial review, the rules of trial Courts prescribe that an applicant for judicial review shall have “sufficient interest in the matter to which the application relates.” See for instance, Order 34, Rule 3(4) of the Federal High Court (Civil Procedure) Rules, 2007.
The decision in Chief Gani Fawehinmi v. Col. Halilu Akilu & Anor. (In Re: Oduneye, D.P.P) (1987) 12 SC 136; (1987) 18 NSCC (Pt. 2) 1269, (1987) 4 NWLR (Pt. 67) 797, (1987) 11- 12 SCNJ 151 was in respect of an application for order of mandamus. Obaseki JSC, in his judgment stated:
“It is fundamental that an applicant for leave to apply for an order of mandamus must have locus standi to make the application before leave can be granted by the Court. Indeed, the party making any claim bringing an application before the Court must have locus standi. See Adesanya v. The President, Federal Republic of Nigeria (supra); Irene Thomas v. Olufosoye (supra); Amusa Momoh v. Jimoh Olotu (1970) 1 All NLR 117, (1970) NSCC 99, (1970) ANLR 121. If the plaintiff has no locus standi, the Court has no jurisdiction the matter and it must be struck out. See Oloriode & Ors v. Oyebi & Ors (1984) 5 SC 1, (1984) 1 SCNLR 390 at 28. When a party’s standing to sue (i.e. locus standi) is in issue, the question is whether the person whose standing is in issue is the proper person to request an adjudication of a particular issue and not whether the issue itself is justiciable. Oloriode & Ors v. Oyebi & Ors… Per Obaseki JSC. Thus, one has to look at the cause of action and the facts of the case to ascertain whether there is disclosed a locus standi or standing to sue, Adesanya v. The President, Federal Republic of Nigeria (1981) 2 NCLR 358, (1981) 5 SC 112, (2001) FWLR (Pt. 46) 859 at 392. The cause of action, if any, will disclose facts from which it could be ascertained whether there is an infringement of or violation of the civil rights and obligations of the party which, if established before the Court, will entitle him to the relief or remedy.”
Chief Gani Fawehinmi, a lawyer and a human rights activist, was in the case held to possess locus standi or standing to sue and seek order of mandamus compelling the Director of Public Prosecution of Lagos State to initiate proceedings for the prosecution of the alleged killers because among other facts, he was a personal friend and the lawyer of the victim, Dele Giwa, who was murdered in a parcel bomb attack, and also for the fact he had demonstrated his interest in prevention of crime and the punishment of those who committed crimes. The action, obviously, was therefore neither ill motivated nor an abuse of Court’s process. It is on this basis that Obaseki JSC further stated in Fawehinmi v. Akilu & Anor (supra).
“The Criminal Code and the Criminal Procedure Law of Lagos State, in so far as prevention of crime and punishment of those committing crimes are concerned, have made every one of us, any, all Nigerians our brother’s keeper.”
Accordingly, every person, including NGO’s, who bona fide seek in the law Court the due performance of statutory functions or enforcement of statutory provisions or public law, especially laws designed to protect human lives, public health and environment, should be regarded as proper persons clothed with standing in law to request adjudication on such issues of public nuisance that are injurious to human lives, public health and environment.
Fawehinmi v. Babangida (2003) FWLR (Pt. 146) 835, (2003), (2003) 3 NWLR (Pt. 808) 604, (2003) LPELR-1255, (2003) 12 WRN 1 SC, was a suit filed by a citizen wherein the issue raised was whether the National Assembly, pursuant to the legislative powers vested in it by Section 4(2), (3) & (4) and the Exclusive and Concurrent Legislative Lists contained in the Second Schedule to the Constitution, can enact for the Federation a general statute, as the tribunals of Inquiry Act, Cap 447, 1990 LFN? The suit that challenged the constitutionality of the said Tribunal of Inquiry Act, was apparently brought to enforce Section 13 of the Constitution of the Federal Republic of Nigeria, 1999, that charged all the authorities and persons, exercising legislative, exclusive and judicial powers to conform to, observe and apply the provisions of the Constitution. The plaintiff in Fawehinmi v. Babangida (supra) had invoked his right, as a citizen, to be governed constitutionally and by laws duly and properly enacted in accordance with the Constitution. There was no ill-motive on the part of the plaintiff in seeking to ensure that Nigerians are governed by law, lawfully and constitutionally enacted and forming part of the corpus juris.
What precisely is this standing in law to seek adjudication on an issue. The word standing has not been authoritatively defined. I find in Black’s Law Dictionary, 9th Edition, at page 1536, what the author – Joseph Vining: Legal Identity 55 (1978), says of standing to sue. The learned author is quoted as saying:
“The word standing is rather recent in basic judicial vocabulary and does not appear to have been commonly used until the middle of our own century. No authority have I found introduces the term with proper explanations and apologies and announces that henceforth standing should be used to describe who may be heard by a judge. Nor was there any sudden adoption by tacit consent. The word appears here and there spreading very gradually with no discernible pattern. Judges and lawyers found themselves using the term and did not ask why they did so and where it came from.”
The Courts in Nigeria have used various tests to find the standing to sue in various cases. In Fawehinmi v. President, Federal Republic of Nigeria (2007) 4 NWLR (Pt. 1054) 275 at 333, the Court of Appeal seemingly confusing locus standi in private law with locus standi in public law says –
“Under public law, an ordinary individual will generally not have locus standi as a plaintiff. This is because such litigations concern public rights and duties which belong to, or are owed all members of the public including the plaintiff. It is only where the individual has suffered special damage over and above the one suffered by the public generally that he can sue personally”
In an action to assert or protect public right or to enforce the performance of a public duty; it is only the Attorney-General of the Federation that has the requisite locus standi to sue. A private individual can only bring such an action if he is granted fiat by the Attorney-General to do so in his name. This is referred to as a “relator action”.
Let me ask: what if, as in this case, the defendant alleged to be the committer of the public nuisance is the government itself or a statutory corporation? In all cases against Government, the Attorney-General is the dominis litis and is always sued “virtute officii” (by virtue of his office) as the representative of Government. What if, for political exigencies and as a party interested, the Attorney-General refuses or is lethargic to enforcing the performance of his public duty? This was the situation in Fawehinmi v. Akilu and Anor (supra). I do not think that there is anything in the Constitution that says, through a relator action, that the Attorney-General is the only proper person clothed with the standing to enforce the performance of a public duty. This Court, in Ransome-Kuti v. Attorney-General, Federation (1985) 2 NWLR (Pt. 6) 211 seems to have declared petitions of right unconstitutional, or to have said that petitions of right, on which is predicated the concept that the government can commit no tort, has become anachronistic with the 1979 Constitution. In the present dispensation, the government and/or its agencies enjoy no immunity for any wrong they committed. Section 36(1) of the extant Constitution is very clear: in the determination of his civil rights and obligations by or against any government or authority, the parties are entitled to fair hearing in the adjudication.
Section 6(6)(b) of the Constitution, which defines the scope of the judicial powers vested in the Court by the Constitution, says expressly that the judicial powers extend to all matters between persons or between persons and government or authority for the determination of any question as to the civil rights and obligations of the parties. In the determination of the question: whether the plaintiff has standing to request adjudication upon an issue; this Court, in Ladejobi v. Oguntayo (2004) All FWLR (Pt. 231) 1209, (2004) 18 NWLR (Pt. 904) 149, (2004) 7 SCNJ 298, (2004) 7 SC (Pt. 1) 159, identifies two things or factors to bear in mind; that is –
i. Locus standi should be broadly determined with due regard to the corporate interest being sought to be protected bearing in mind who the plaintiff is or plaintiffs are, per Uwaifo JSC at page 170, and
ii. It is important to bear in mind that ready access to the Court is one of the attributes of civilized legal system… (It) is dangerous to limit the opportunity for one to canvass his case by rigid adherence to the ubiquitous principle inherent in locus standi which is whether a person has the stand in a case. The society is becoming highly dynamic and certain stands of yesterdays may no longer stand in our present state of our social and political development.” Per Pats – Acholonu JSC at page 177.
It is obvious, from the dictum of lord Diplock in Reg v. Inland Revenue Commissioners, Ex-Parte National Federation of Self-Employed and Small Business Ltd (1982) AC 617 that rigid adherence to the common law rule that insists on locus standi for prospective genuine claimants or applicants is posing a hindrance to enforcement of the rule of law. Hear the law lord advocate liberal attitude to locus standi:
“the outdated technical rules of locus standi should not be used to prevent an individual or group of public spirited individuals from bringing a matter of unlawful conduct that violates the rule of law to draw the attention of the Court.”
This is the case where the plaintiff, a Federation of self-employed and small scale businesses, brought an action to prevent the Inland Revenue Commissioners (IRC) from waiving payment of tax payable to the public treasury by granting amnesty to some tax payers. Section 13 of Taxes Management Act, 1970 expressly charged IRC to “collect and cause to be collected every part of inland revenue.” The provision is mandatory. It was held that the plaintiff had a standing to request the adjudication on whether a public authority can condone illegality by abdicating or striking its statutory responsibility. Every person, including NGOs, public spirited individuals or associations, have sufficient interest in ensuring that public authorities or corporations submit to the rule of law and that no public authority has power to, arbitrarily or with impunity, break the law or general statute. The right of the citizen or lawful associations to see that the rule of law is enforced vests in him or the association sufficient standing to request the Court to call to order a public authority allegedly violating the law. There is such aspiration in Section 17(2)(a) of the extant Constitution, 1999 that provides that “every citizen shall have equality of rights, obligations and opportunities before the law.”
The views expressed in the Ladejobi v. Oguntayo (supra) by this Court clearly have dealt fatal blows on the rather rigid and unacceptable posture of the Court of Appeal in Fawehinmi v. President, Federal Republic of Nigeria (supra). “The ready access to Court (being) one of the attributes of civilised legal system” that Pats – Acholonu JSC, alluded to above, is in fact part of the aspirational objects of the social order which in Section 17 (2) (e) of the Constitution of the Federal Republic of Nigeria,1999, includes “the independence, impartiality and integrity of Courts of law, and easy accessibility thereto (that) shall be secured and maintained.”
Mr. Mahmoud SAN, amicus curiae submits, and I agree, that in order to broadly determine locus standi, under environmental rights as human rights, Article 24 of the African Charter on Peoples’ and Human Rights should be read together with Sections 33(1) and 20 of the “Constitution of the Federal Republic of Nigeria,1999, on the role of the State in preserving the environment for the health and by expression (lives) of Nigerians”, and that “it is apparent that the right to a healthy environment is a human right in Nigeria.” The above referred provisions are herein below reproduced: Article 24 African Charter on Peoples’ and Human Rights (Ratification And Enforcement) Act, provides:
24. All people shall have the right to general satisfactory environmental favourable to their development.
Section 33(1) of the Constitution states, inter alia, that “every person has a right to life”; while Section 20 of the same Constitution provides –
20. The State shall, protect and improve the environment and safeguard the water, air and land, forest and wild life of the country.
The African Charter on Peoples’ and Human Rights, an international treaty, having been domesticated, forms part of our corpus juris. For as long as Nigeria remains signatory to the African Charter on Peoples’ and Human Rights, and other international treaties on environment and other global issues for so long also would the Nigerian Courts protect and vindicate human rights entrenched therein, if I may borrow from Agbakoba J., his words inMolokwu v. C.O.P (1972) 2 ECSLR 979 at 801, which words are resonated in Adewole v. Jakande (1981) 1 NCLR 262.
The Acha Community and all people living around and beside Ineh and Aku streams, who depend on the two rivers as their source of drinking water, fishing and other economic activities, “have a right to a general environment favourable to their development.” They, each, have the right to life guaranteed by the Constitution. The State, including the defendant, a statutory corporation, owes the community a duty to protect them against noxious and toxicant pollutants and to improve and safeguard the water they drink, the air they breathe, the land and forest, including wild life in and around the two rivers, they depend on for their existence, living and economic activities.
The issue in this suit is whether the plaintiff NGO is a proper person (clothed with locus standi) to request adjudication over this matter of the nuisance of the crude oil spill, allegedly caused by the defendant that had massively polluted the two rivers of Ineh and Aku Community? Both Chief Awomolo SAN and L. E. Nwosu SAN, both amici curiae, maintain that the Acha community comprised mostly “natives (who) are uneducated peasant farmers who have no means, capacity or courage to access the Court” to seek redress for the environmental injustice. We have dearth of authorities in our jurisdiction on this issue of public interest litigation by NGOs or other persons with public interest. The High Court of Ghana, in Public in Law & Anor v. Tema Oil Refinery – unreported suit No. E 12/91/07, “had recourse to other common law jurisdictions to see what pertains there.” The persuading decision was about the oil spillage into the Chemu Lagoon caused by the Tema Oil Refinery. The 1st plaintiff was a non-profit NGO like the instant plaintiff herein; while the 2nd plaintiff was an indigene of Tema resident in Tema Manhean in the Tema municipality. The two plaintiffs sought declarations that the defendant was negligent in spilling oil into the Chemu Lagoon, and that the oil spillage violated the rights of the inhabitants of Chemu settling along the banks of the Lagoon to clean and health environment guaranteed by the Constitution and international law. They, consequently, sought mandatory order enjoining the defendant, a public corporation, to clean up the Chemu Lagoon under the supervision of EPA; and also an injunction perpetually restraining the defendant from further polluting the said Chemu Lagoon through oil spillage or by other means. The High Court had recourse to the English case of R v. Inspectorate of Pollution & Anor, ex parte Greenpeace Ltd (1994) All ER 329, in dismissing the objection of the defendants on the ground that the plaintiffs, particularly 1st plaintiff, lacked the standing to maintain the suit. In dismissing the objection, the High Court stated, among other things that –
“Public interest litigation seems a new concept in our jurisprudence; and it ought, in my considered opinion, to be encouraged. I believe it is an antidote to the problem of direct victims of acts of environmental degradation or pollution being unable to take cases to Court.”
In R v. Inspectorate of Pollution ex parte Greenpeace Ltd (supra), Otton J, in affirming that Greenpeace Ltd had sufficient interest and standing to bring the review proceedings stated:
“If I were to deny standing to Greenpeace, those it represents might not have an effective way to bring the issue before the Court. There would have to be an application either by an individual employee of BNIFL or a near neighbour. In this case, it is unlikely that either would be able to command the expertise which is at the disposal of Greenpeace.
Consequently, a less well-informed challenge might be mounted which could not afford the Court the assistance it requires in order to do justice between the parties.
Further, if the unsuccessful applicant had the benefit of legal aid it might leave the respondent and BNIFL without an effective remedy in costs. Alternatively, the individual (or Greenpeace) might seek to persuade Her Majesty’s Attorney-General to commence a relator action which (as a matter of policy or practice) he may be reluctant to undertake against a Government department. Neither of these course of action would have the advantage of an application by Greenpeace who, with its particular expertise in environmental matters, its access to experts in relevant realms of science and technology (not to mention law), is able to mount a carefully selected, focused, relevant and well argued challenge. Acting on the principle that their country’s commitment to international law and treaty obligations to protect their environment, the Indian Supreme Court has been consistent in holding that the responsibility of the State to protect environment is now a well accepted notion in all countries. And that it is this notion, in international law, that gave rise to the principle of “state responsibility” to prevent pollution in its own territory. Thus, when called upon by an NGO specialising on environment to restrain the government from alienating ancient/historical tanks which serve as percolation sources that help to preserve level of underground water table and also providing drinking water, as well as irrigation etc, to the community, the Indian Courts readily affirmed the locus standi of the NGO to bring and maintain the action in Intellectual Farm, Tirupathi v. State of A.P. – Appeal No. 1251 of 2006. The action was brought to halt/stop the desire of the planning authorities to dismantle the ancient tanks. The Supreme Court of India, while deciding the case, also considered the United Nations Conference on Human Environment, Stockholm 1972 (the Stockholm Convention), which India was signatory to and stated:
“The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be strengthened for the benefit of the present and future generations through careful planning and management, as appropriate.”
My lords, let us see the other grounds on which, in other common law jurisdictions, locus standi of plaintiffs who request adjudication is readily affirmed. The major consideration is, once the plaintiff establishes that the public nuisance endangers human lives, he is readily accorded the standing to request adjudication to enforce statutory duties imposed on the public authority to prevent and control nuisance. That was the situation in the Ghana case – the pollution of Chemu Lagoon earlier referred to. In the Indian case: Metha v. Union of India (1989) LRC 885 the action was taken to get the authorities to abate the nuisance of waste dumping, including the dumping of human and animal corpses and other noxious materials, into River Ganges that endanger lives of those using the water of the river. These are echoes of our own principle: every individual being his brother’s keeper: Fawehinmi v. Akilu & Anor (supra). In almost all these cases, the relevant or material question is whether what is complained of as constituting nuisance was either expressly or impliedly prohibited by statute. In the English case – Pride of Derby & Derbyshire Association Ltd & Anor v. British Calanese Ltd & Ors (1953) 1 All E.R. 179 (C.A), injunction was granted restraining the defendants from discharging sewage matter, insufficiently treated and neutralised, into the river by defendants. The 1st plaintiff owned a fishery beside the river. The 2nd plaintiff, a riparian, operated his occupation on both banks of the river. The plaintiffs depended on the fresh clean water of the river for their businesses. Section 109(1) of the Derby Corporation Act, 1901 which authorised the corporation to construct and maintain their sewage words, contained express prohibition, which was of general application, against the corporation operating works so as to cause nuisance.
In Rev. v. Greater London Council, Ex Parte Blackburn (1976) 1 WLR 550, Mr. Blackburn and his wife, both citizens of London and rate payers, who averred that they had children who may be harmed by exhibition of pornographic films by the defendant, were held to have sufficient interest to request adjudication to restrain the defendant, a public authority or statutory corporation, from acting in excess of the powers granted it by statute. At the Court of Appeal, lord Denning M.R. repeated his earlier statement in McWhirter’s case (1973) QB 649 at 649, to wit –
“I regard it as a matter of high constitutional principle that if there is good ground for supposing that Government Department or Public Authority is transgressing the law, or is about to transgress it, in any way which offends or injures thousands of Her Majesty’s subjects, then anyone of those offended or injured can draw it to the attention of the Courts of law and seek to have the law enforced, and the Courts in their discretion can grant whatever remedy is appropriate.”
The Oil and Gas Pipelines Act imposes a duty on the owners/operators of oil pipelines to maintain and repair their oil pipelines, and ensure that the crude hydrocarbon oil they transport through the pipelines, a dangerous substance, do not escape and cause havoc to human lives and the environment. This duty of care is not only statutory, it is also on the authority of Rylands v. Fletcher (1868) L.R 3 H.R 330, a common law duty of care. This suit, in essence, seeks the enforcement against the defendant of their obligations qua the rights of the Acha Community to maintain the environment, including their rivers, air, land and forest free of pollutants. The defendant, operators and owners of the oil pipelines owe, prima facie, the community this obligation by virtue of the provisions of the Oil and Gas Pipelines Act, and the regulations made thereinunder. Their obligation includes periodic maintenance of their pipelines for purposes of environmental impact assessment of their activities.
My lords, as suggested by the appellant in their brief of argument, on the authority of Sommerset County Counsel ARC Southern Ltd, Ex Parte Dixon (1998) Environment LR 111, the Court when considering the issue of standing has to ensure that the plaintiff, in bringing his suit, is not prompted by all ill motive. Once from his pleadings his genuine interest, as the present appellant has, it is disclosed that the defendant is transgressing the law or is about to transgress it by his objectionable conduct which injures or impairs human lives and/or endangers the environment the plaintiff, be he an individual or an NGO should be accorded the standing to enforce the law and thereby save lives and the environment. From the facts of this case, the appellant cannot be regarded as a mere busybody or troublemaker who is out merely to abuse the due process of the Court by the suit they had filed to enforce against the respondent the duty to remedy the nuisance caused to Ineh and Aku rivers and the Acha Community who depend on the clean water of the said rivers for their livelihood. A contaminated water and impaired environment by noxious toxicant material such as crude hydrocarbon oil not only destroys environment and the entire ecosystem, it is injurious to public health and human lives.
I have, from the foregoing, shown that the Courts, in recent times, applied more liberal tests, and the trend is away from the restrictive and technical approach to questions of locus standi. The approach these days is one finding out whether the plaintiff has a genuine grievance.”
Per EKO ,J.S.C in (Pp. 130-152 paras. A)
CONCLUSION AND RECOMMENDATION.
It is recommended that a the party seeking to ensure a successful litigation arising from environmental pollution must have in his war gear a forensic approach to the constitution of the matter, the proper venue to ventilate his claim, the drafting of the reliefs sought which usually lie in torts and the doggedness to follow up ruthlessly with whatever awards are made in his favour by the Courts ; because needless to state the opposition usually made up of multi nationals have a deeper pocket and have shown a streak of using every trick legally available to hinder an expeditious administration of justice; including hiring of the best lawyers in the land with the sole purpose of using technicalities restrict access to substantial justice, and the use of our local banks to fight proxy wars when needed.
Our judicial system needs to rise up to this menace and foster a system where matters related to environmental pollution especially those arising from oil and gas pollution will be expedited and adopt an attitude of non-tolerance of unnecessary use and reliance of technical arguments in the determination of such matters; the appropriate and apposite Court Rules may need to be reviewed to accommodate a broad based appreciation of the plight of the litigants in these scenarios; judgment sums arising from these nature of matters should as a rule of the thumb be paid into the Courts custody pending the determination of the relevant appeals arising therefrom as our banks seem to be in cohorts with these multi-nationals and so called guarantees issued by them have become suspect in most cases as they have adopted a mercenary approach to payment when called up to meet their obligations and will start another round of litigation on behalf of the defaulting parties rather than pay up.
While the enormous burden and task presently laid on the judiciary cannot be understated; it is hoped that a more modern and reality-based approach to these issues will be adopted in the adjudication and enforcement of their decisions related to environmental pollution and degradation matters. There may be the need to have these matters heard by specialized Courts manned by Judges well trained in those specific areas of law, and the matters fast tracked as it applies to fundamental human right cases, because after all the interests/rights are entwined and ought not to be separated from each other in the adjudicatory process.
It is hoped by the very elementary chirpings of the author on these issues; a slightly above mediocre understanding and appreciation of what is necessary for successful litigation in environmental pollution matters and how the Courts can assist the pitiable litigants in deserving cases has been achieved.
Thank you.
