TABLE OF CONTENTS
CHAPTER ONE: GENERAL INTRODUCTION 1.1 Historical
Background: 1.2 Statement
of Research Problem: 1.3 Scope of
Research: 1.4 Objective
of Research: 1.5 Research
Methodology 1.6 Literature
Review: 1.7 Justification: 1.8 Organisational
Layout: CHAPTER TWO: CRIMINAL REMEDIES 2.1 Introduction: 2.2 Legal
Framework for Criminal Remedies: 2.3 Fines: 2.4 Term of
imprisonment: 2.5 Forfeiture 2.6 Constraints
to impositions of criminal remedies CHAPTER THREE: CIVIL REMEDIES 3.1 Introduction: 3.2 Compensation:
Provisions for Compensation: 3.2.2. Oil Pipeline
Act: 3.2.3 Petroleum
Act 3.2.4 Nigerian
Minerals Mining Act, 2007:- 3.2.5 Rio
Declaration vis-à-vis NESREA Act: 22.214.171.124 Quantum of
Compensation: 3.3 Damages 3.3.1 Legal
Framework for Remedy of Damages 3.3.2 Types of
Damages 126.96.36.199 Special Damages 188.8.131.52 General
Damages 3.3.4 Difference
between Special and General Damages 3.3.5 Grounds for
Award of Damages 184.108.40.206 Loss of Property and means of livelihood 220.127.116.11 Damages for Emotional Distress 3.4 Injunction 3.5 Restoration/Rehabilitation- 3.6 Resettlement 4.2 Litigation:
Militating Against Environmental Litigations: 18.104.22.168 Delays in
Prosecution of Cases: 22.214.171.124 Courts
Attitude to Victims Claim: 126.96.36.199 Corruption in
judiciary 4.3 Negotiation: 4.4 Mediation;
4.5 Conciliation: 4.6 Arbitration:
CHAPTER FIVE: SUMMARY AND CONCLUSION 5.1 Summary: 5.2 Findings: 5.3 Recommendations: 5.3.1 Need for
Express Constitutional Provision on Pollution: 5.3.2 Compendium
of Environmental Law: 5.3.3. Imposition
of Heavier Fines: 5.3.4. Extending
the Mandate of NESREA: 5.3.5 Shifting the
Burden: 5.3.6 Evolving New
Precedence: 5.3.7 Adoption of
Strict Liability: 5.3.8 Exploring
ADR: 5.3.9 Establishment
of Statutory Compensation Fund: Bibliography:
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Historical Background:
1.2 Statement of Research Problem:
1.3 Scope of Research:
1.4 Objective of Research:
1.5 Research Methodology
1.6 Literature Review:
1.8 Organisational Layout:
CHAPTER TWO: CRIMINAL REMEDIES
2.2 Legal Framework for Criminal Remedies:
2.4 Term of imprisonment:
2.6 Constraints to impositions of criminal remedies
CHAPTER THREE: CIVIL REMEDIES
3.2.1 Constitutional Provisions for Compensation:
3.2.2. Oil Pipeline Act:
3.2.3 Petroleum Act
3.2.4 Nigerian Minerals Mining Act, 2007:-
3.2.5 Rio Declaration vis-à-vis NESREA Act:
188.8.131.52 Quantum of Compensation:
3.3.1 Legal Framework for Remedy of Damages
3.3.2 Types of Damages
184.108.40.206 Special Damages
220.127.116.11 General Damages
3.3.4 Difference between Special and General Damages
3.3.5 Grounds for Award of Damages
18.104.22.168 Loss of Property and means of livelihood
22.214.171.124 Damages for Emotional Distress
4.2.1 Factors Militating Against Environmental Litigations:
126.96.36.199 Delays in Prosecution of Cases:
188.8.131.52 Courts Attitude to Victims Claim:
184.108.40.206 Corruption in judiciary
CHAPTER FIVE: SUMMARY AND CONCLUSION
5.3.1 Need for Express Constitutional Provision on Pollution:
5.3.2 Compendium of Environmental Law:
5.3.3. Imposition of Heavier Fines:
5.3.4. Extending the Mandate of NESREA:
5.3.5 Shifting the Burden:
5.3.6 Evolving New Precedence:
5.3.7 Adoption of Strict Liability:
5.3.8 Exploring ADR:
5.3.9 Establishment of Statutory Compensation Fund:
1.1 Historical Background
Before the advent of British rule, communities in present day Nigeria utilized customary methods in the settlement of environmental disputes. Thus, the management of the environment in most Nigerian communities is based on customary law concept where this has been modified or repealed by statute. The number of customary laws may be as many as the number of ethnic-groups. There are about 300 ethnic groups in Nigeria.1 Thus in the same state or among the same tribe there exist numerous customary laws.2 The various customs of different ethnic groups and communities in Nigeria contain remedies for environmental pollution. For example, in the Iroko community bush burning under customary law is prohibited. A violation of this law will lead to the arrest of the offender who is taken before the village head who imposes fine on the offender.3 Bush burning has a negative effect on the environment as it pollutes the air, and the fire spreads uncontrollable and on several instances destroyed large areas of land and also causes serious damage to other valuables. For example, in the case of Busari Adediga V. Abati.4 The plaintiff wrote the defendant requesting that he be informed when the defendant would set fire to his farm to enable the plaintiff protect his property. The defendant claimed to have informed the plaintiff although the plaintiff denied. The
defendant set fire to him farm and went fishing while the farm was burning. The fire went out of control and destroyed the plaintiff's farm. The customary court held that although bush burning is an acceptable customary practice, the defendant was liable for damage to the plaintiff‟s property.
Similarly, among the Egbas there exists customary law governing the general use of the stream and pollution. This practice, Adewale5 opined is uniform to some extent amongst various communities and state further that it is also the general practice in the eastern part of Nigeria. Customary law in most part of Nigeria prohibits trespassing, for example, in the north where Nomads move from one place to another for the purpose of grazing their animals. Often animals trespass into farm land and victims claim damages arising from their act6. These customary laws of various communities have been enforced long before the advent of colonial rule. Thus Amokaye7 refers to this period as the first stage of development of environmental law in Nigeria.
The introduction of common law principles and statutory laws by the colonial administration to regulate pollution activities marked the beginning of the second era. Under the common law principles, which forms part of Nigerian legal system it provides means for the institution of legal action for pollution under spheres of nuisance, negligence, trespass to land and the rule in Rylands v. Fletcher8. It should be noted that, nuisance are two types, private and public nuisance which by definition is said to be:
'Unlawful interference with a person's use or enjoyment of land or some right over or connected with it'9
While on negligence this is one of the most frequently entrusted common law means of instituting legal action by the victims of environmental pollution. Negligence may be an ingredient of another tort. For example Nuisance in common law, under which victims of environmental pollution may seek remedies of damage for trespass to land. This is said to be unjustifiable introduction by a person upon the land by another. Here defendant conduct must be intentional and not careless and to succeed the damage which results most be direct consequence of defendant's act10. Furthermore on common law victims of pollution must invoke duty of care which the defendant has breached that entitles the plaintiff to damages. For example, in the case of Onojoke v. Seismograph Services Company Limited11. Also victims of environmental pollution rely on the rule in Rylands v. Fletcher for none natural rule of land and the principle of strict liability in environmental claims.
Meanwhile under the statutes there are various remedial provisions against environmental pollution. The period can be portioned into 2 namely the colonial era and after independence. The first statutory frame work for public health and environmental problems with the Public Health Ordinance of 191912. However, Uwais CJN (as he then was) stated that:
The act of promulgation of laws to protect our environment and to compensate our citizens is of course, not new in Nigeria. As far back as 1915, the Water Ordinance, Cap 227 of the laws of Nigeria, 1948, provided for the protection of water been used for drinking, washing, cooking and for any domestic life. In 1916, the Criminal Code Ordinance, Cap 42 of the laws of Nigeria 1948 created offence against public health pertaining to the sale of unfit food or drink, diseased meat, fouling of water, burial in houses and fouling of the atmosphere so as to make it noxious to the health of person dwelling or carrying on business in neighbourhood. Again in 1917, the Public Health Ordinance Cap 133 of the laws of Nigeria, 1948, made provision against nuisance in general affecting the clearing of streets and open space in townships, infection disease, slaughter houses and sales of meat13.
Other statutes that were also enacted during the colonial era to address the issue of
environmental pollution include the Mineral Ordinance of 1914 amended in 1925, 1950
and 195814 respectively. The objective of this statute is the prohibition of pollution of
waters course15 and it provides for compensation for example Section 95 and 96 of the
Minerals Act. This Act was amended recently and referred to as Nigerian Minerals and
Mining Act, 2007. It make provisions for compensation for damages and pollutions, and
this is contained in Section 125. Also the Criminal Code 195816 provides for the legal
framework for seeking redress from environmental claims.
The colonial legislation was characterized with the fact that it was mainly aimed at accelerating pace of exploitation of the environmental resources17 which led to irreversible degradation of the environment; glaring example is the effect of Tin Mining in Jos Plateau State, where open-cast mining has been going on for several decades. There is a tremendous amount of scarification of land surface, resulting in the existence of numerous mine pits now abandoned. These pits constitute serous permanent danger to human health18.
Colonial legislations was also concerned with allocation, exploration and exploitation of natural resources than their management for example; the Forestry Law of 1938 focused on state monopoly rights and licensing for their exploitation. This laws, mostly never address the issues of rehabilitation of environmental damages19.
However, upon the attainment of independence in 1960 various statutes were enacted to address the issue of environmental pollution. Some of these were enacted on the wake of impact of industrialization on the environmental policy in Nigeria a new concept of environmental laws had to be articulated. This brought about series of legislation which include inter alia: Oil Pipeline Act 1956 amended in 196520, which provides for prevention of pollution of land and water resources as a result of petroleum operations and also for remedies of compensation and damages arising from operation
contained in sections 11 and 20 (1) (3) of (4) and 19, Oil in Navigable Waters Act 196821, Petroleum Act 196922 Petroleum (drilling and Production) (Amendment) Regulation 1973 petroleum refining 1974. It can be observed that the prevalence of these laws and regulations in the first decade of Nigeria independence is some indication of sudden shift in the concept of environmental law from what it was under colonial era. The protection of citizen's health, the balancing of the ecosystems, adequate management of natural resources the problem of compensation victims of pollution actual accounted for this moment in the concepts of environmental law.23
Nigerian government's effort towards the protection of the environment reached new height when it began to promulgate several stringent statutory environmental laws. Essentially these laws are directed at pollution activities arising from industrialization and modernization. Amokaye24 refers to this era as third stage of the development of environmental law in Nigeria. While Atsagbua25 refer to this period as post 1988 concept of development of environmental law in Nigeria, similarly, Okorodudu-Fabura26 see this period as an awakened the Nigerian public and the country's leadership from environmental inactivity to what has become a sustained environmental consciousness in the country.
Following the surreptitious dumping by ships load of toxic waste from Europe by an Italy company at a small town of Koko in present Delta State, South-South Nigeria, this incident actually motivated serious consideration by the government in formulating policies on environmental laws in Nigeria with the sudden realization of that the erstwhile scope and concept of environment needed a redefinition as well as drafting of new pollution measures to address emerging problems27.
Furthermore, it is pertinent to note that Koko incident of 1988 actually increased Nigeria's awareness of the need not only to identify pollution agents but also to adopt a conceptual and systematic approach in environmental pollution. Consequently, at this point in time the concept of environmental law/pollution in Nigeria began to follow the patterns of some develop economics of the world28. The Federal government of Nigerian organized an international workshop on environmental policy from which it came out with a document titled 'Federal Republic of Nigeria National policy on the Environment29. Among other things, the national policy on the environment formulated national pollution goals and strategies for implementation30. It is here that the establishment of an administrative and enforcement organ in the nature of Federal Environmental Protection Agency31 was proposed, prior to this workshop the Harmful
Waste (Special Criminal Provision etc.) Act32 was promulgated in the year 1988 and the waste same Act makes it criminal offence punishable with life imprisonment to carry, deposit, dump transport import sell or buy or negotiate trade in harmful within Nigeria territory or the exclusive economic zone and also provide for civil remedies arising from dumping of waste.
Also in the year 1988 saw the establishment Federal Environmental Protection Agency by the Act of Federal Environmental Protection Agency Act (FEPA)33. This statutory agency was charged with responsibility for overall protection of the environment. Similarly, FEPA was mandated to monitor the implementation of Harmful Waste Act34. The promulgation of FEPA Act mandated a shift from overdependence on common law principles to stringent statutory provision for environmental pollution.
By 1999 the Federal Ministry of Environment was created and it took over the functions of Federal Environmental Protection Agency which was created under the FEPA Act. Further in 2007 the National Environmental Standard Regulation Enforcement Agency Act (NESREA)35 passes into law and by virtue of section 36 of NESREA Act it repealed Cap F10 of the Laws of Federation of Nigeria 2004.
Earlier, promulgated since Nigeria‟s return to democracy is the National Oil Spill Detection Responses Agency, Act36 (NOSDRA). This Act provide for regulation of spillage oil and gas sector. Before now there were legislations such as Environmental
Impact Assessment (EIA) Act37 National Environmental Pollution (Efficient Limitation) regulations, National Environmental Protection (Management of solid and Hazardous waste) regulations.
Similarly, there are various International Treaties Charters Protocol Convention and Covenants which Nigeria is a signatory to ratified and domesticated and some of these international treaties by virtue of Section 12 of the Constitution38 have been implemented and deemed to be part of our laws. See Abacha v. Fawehimin39. These International Treaties such as International Convention on Civil Liability for Oil Pollution damage 1954 as amended in 1962 and 196940. This international law was introduced to check oil pollution and to compensate victims. The purpose of this is to provide uniform international rules and procedures to determine question of liability and provide adequate compensation to person who suffers damages cause by discharge of oil from ships.
Despite existence of these laws in Nigeria, there is no comprehensive statutory enactment for compensation of victims of pollution in Nigeria while some merely provides for punitive measures to be taken against polluters.
The injury caused to victim of environmental pollution can have far reaching effect on their activities and wealth. It is only fair that they be adequately compensated under our laws. No Act however perfectly and meticulously drafted can be free from
drawbacks, shortcomings and lacunae. These Acts, have not adequately address the plight victims of pollution in Nigeria. There is the need to appraise comprehensively the remedies of victims of environmental pollution in Nigeria and the mechanism use for the enforcement of environmental claims.
1.2 Statement of the Research Problem
Arising from the historical background are the following problems:
First, from the literature review there has emerged a problem of victims of environmental harm securing remedies for the harm they have suffered.
Secondly, Courts and Alternative Dispute Resolution mechanisms for environmental pollution are plagued with certain problems.
It is beyond dispute that pollution has adverse effect on man's health and wealth. Consequently various Acts are enacted to regulate pollution activities some of these Acts are laced with criminal remedies in forms of fines or terms of imprisonment. These are a common feature of environmental statutes in Nigeria. It was the practice under various customs in Nigeria to impose fine in the event of pollution. The numerous statutes that provide for remedies for victims of environmental pollution includes the Harmful Waste (Special Criminal Provision etc.) Act, Oil Pipeline Act, Oil in Navigable Waters Act, Petroleum Act Nigerian, Mineral and Mining Act and National Environmental Standard Regulation Enforcement Agency, all these Acts made provision in form of criminal or civil remedies at times both but these have not adequately address the plight of the victims of pollution.
Despite the provision for remedies for victims of pollution under some of these Acts victims has continue to suffer without remedies at the expense of this laws or body charge with the responsibility of interpreting the provision of these laws. The first problem this research investigates is the adequacy or otherwise of the statutory provision for remedies for victims of environmental pollution, is the fines and terms of imprisonment commensurate to the offences and compensation and damages fair and adequate?
This research investigates the mechanism for the enforcement of the claims for environmental pollution. Environmental litigation which is main tool for the enforcement of some of these remedies is faced with plethora of problems that are disincentives to the victims. Examples are; prove of claim that requires expert witness, proximate course, time and the attitude of the court to evolve new precedence as it tend to have made law of tort seem static. Thus the polluters exploit these weaknesses in the existing laws. Example statute such as Oil Pipeline Act provides for payment of damages to be awarded but there is no clearly define standard for quantum of damages to be awarded. In this regard courts are left with wide discretion to ward damages fair and adequate. This is a problem given the conservatism nature of our courts.
1.3 The Scope of the Research
The scope of this research work is determined by the objective as identified by the research problems as such only issues germane to remedies for environmental pollution particularly statutes that provides for such remedies that aid in the attainment of the
objective of this research will be given prominence. Thus issues that do not help the attainment of this research will not be considered except where the circumstance demands.
In other words, the scope of this research is circumscribed by its objectives. Statutes such as the Harmful Waste (Special Criminal Provision etc.) Act, Oil Pipeline Act, Oil in navigable Waters, Petroleum Act Nigeria Mineral and Mining Act, 2007, National Environmental Standard Regulation Enforcement Agency Act, 2006 and International Treaty such as Rio Declaration on Environmental Development will be assessed. The provision for both criminal and civil remedies will also be examined within the framework of the research problem.
Although, the statutory provisions for remedies contained in the main bodies of the Acts identified above will be examined, the scope of examination and analysis will be limited to the specific provisions of these Acts that provides for remedies for victim of environmental pollution in Nigeria. This research is titled legal remedies for victims of environmental pollution in Nigeria is located within the Nigerian environmental laws so, it is expected that territorially, the work should be apply to the whole country, while attempts are made to cite relevant examples within the country and where necessary from other jurisdictions.
1.4 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:
1. To identify the criminal and civil remedies for environmental pollution
2. To examine the problem if any, associated with the remedies provided under various laws on environmental pollution.
3. To enhance access to information on various mechanism that can be explore to enforce these remedies.
1.5 Research Methodology and Sources of Information
This research adopts doctrinal methodology i.e. content analysis. In other words, statutes, cases laws, and other relevant literature or data will be analysed. Therefore, this study is wholly library oriented research. Also, this research uses both primary and secondary sources. The primary sources here includes various Acts, and case laws, while the secondary sources of data for this research includes published and unpublished work of scholars relevant to the research. These include book; journals, articles, seminar papers, newspapers and other periodicals.
1.6 Literature Review
It is a fact that there are number of books and articles written and published in this area of environmental laws. There are also various legislations both national and international on this area. In this section we propose to review some existing literatures with the view of finding out the extent to which scholars, commentators and writers have
studied this all important area on one hand and on the other examine the lapses or lacunae in their presentations and the new development.
Amokoye's41 contribution dwelt on existing customary practice before the advent of colonial rule, to the era of colonial regime. His discourse give a good chronicle of various Ordinances, Act and International Treaties to which Nigeria is a party and signatory to, this the learned author did up to 2002. New statutes have been enacted and the basis of his earlier analysis is no longer the position of some of our laws.
Atsegbua et al42 their work focus on theory of environmental law in Nigeria this work besides its general treatment of pollution control and management it did not give any attention to the use of remedies for pollution. This is a major draw on this modest attempt by these authors.
Okorodudu-Fabura43 discourse draws extensively from Federal Environmental Pollution Agency Act, which has been repealed pursuant to National Environmental Standard Regulations Enforcement Agency Act. The learner author anchors the basis of claim of pollution on negligence and rule of Rylands v. Fletcher. These are not the only means of seeking remedies under our laws, more so, some statutes expressly provide for remedies of compensation and damages.
Abdullahi's44 work which is rather recent given the year of publication is bereaved of current legislation on environmental regulations in Nigeria. The work ought to have capture and discuss the provisions of Nigerian Mineral and Mining Act, 2007, NESREA and NOSDRA. The inability to cover these statutes is the major constrain of this piece of work.
Ogbuigwe's45 article is one of the earliest in this area and as at the time of the write up the writer admitted that there was no comprehensive statutory enactment on remedies for victims of oil Nigeria. The writer rightly observed that victims resort to the general principle of law of torts which in most cases are inadequate to meet with their plight given the then restrictive judicial approach. The contribution is anchored solely on oil pollution.
This is not the only environmental problem in Nigeria, moreso, new statutes have since been enacted.
Professor Ladan in his books Materials and cases in Environmental Law46 and Biodiversity, Environmental Litigation Human rights and Access to Environmental Justice47. The former is a comprehensive study of environmental law material and cases the author's analysis was based on the existing statutes while the latter which was published in 2007 did not deal with new statutes that had came into force.
Nwosu48 opined that broadly speaking environmental claims within the sphere of negligence trespass to land and nuisance, so as to extract compensation by the victims of pollution. It is an axiom there are inherent difficulties faced by victims in their quest to make claim under these common law rules. Victims can also make claims for remedies under various Acts and also there are new statutes in place.
Ebeku's49 work in this area of environmental law just likes many other authors or writers examine the common law of tort as base of claims for remedies. The major fault of this write-up is the inability to examine other approaches to addressing issues as it affects the victim of environmental pollution in Nigeria. Also the writer draws exclusively from the FEPA Act which is now repealed.
Fekumo‟s50 work sternly advocated that the victims of environmental pollution should prove strict liability and damages given the poverty level of most victims of environmental pollution in Nigeria. It will be a Herculean task for the victim to procure the services of expert witness also the judges and the legal practitioners are mostly ill equipped or marooned to appreciate the scientific issues involved or associated with environmental pollution cases. This is the problem of this contribution. It is also solely based on oil damages. It is worth noting that oil pollution has received perfunctory attention in Nigeria.
Ibidapo-Obe's51 discourse in premised on criminal liability resulting from pollution fines and other penalties- eventually imposed on the person responsible pollution do not impact on the victim for personal effects health and sources of wealth the pollution must have occasioned on them. This is the constrain of this write-up.
From the above it is glaring that there is no dearth of write-ups in this all important areas of environmental law. This literature will serve as foundation for this presentation. However, given the new Acts that have been enacted and coupled with the fact that statute such as FEPA which featured mainly in the earlier write-up has been repealed. Also it is quite clear that a great deal of academic research is still required to further enrich these existing literatures on legal remedies for victims of environmental pollution in Nigeria. For example, there is the need to clearly identify the adequacy or otherwise of these both criminal and civil remedies for pollution. What are the positions of the statute? What are the mechanisms for the enforcement of the laws? This research hopes to fill the gaps existing in the literature and to contribute to address issues as it relates to the topic under discourse.
1.7 Justification of the Research
This work is justified by the problems raised by the statement of the problems contained in section 1.3 of this thesis. The work is also justified by its relevance to law students, law lecturers, legal practitioners, courts and the general public.
It is a fact that the environmental pollution will always occurs, it is equally a fact that when this pollution occurs it must affect health and on wealth of some people, effort is therefore required to be made to ensure that people affected are compensated for the damages suffered. This research aims to appraise the existing legal remedies for victims of environmental pollution given the effect of same on the health, property and means of livelihood.
Consequently, it is significant to strengthen the statutes
that provide remedies for victims of pollution. This research is an effort in
that direction and therefore not only relevant but also timely.
Consequently, it is significant to strengthen the statutes that provide remedies for victims of pollution. This research is an effort in that direction and therefore not only relevant but also timely.