Litigation as a Tool for Environmental Protection in Nigeria

Environmental Litigation as a Tool for Environmental protection is very important in Nigeria, as it serves as a means whereby Nigeria’s Environmental is being managed and protected for the well being of the citizens.

Abstract

Nigeria is currently facing many environmental challenges and is even vulnerable to the effects of climate change due to its geographical local, and anthropogenic activities.

However, victims of environmental damages occasioned by anthropogenic activities or laxity in its regulatory frontier rarely get a remedy compared to other jurisdictions. This article examined the essence of environmental litigation as a tool for environmental protection in Nigeria. It highlighted the opportunities and challenges attendant to it and suggested ways forward.

Introduction

The environment is fundamental to humans, animals, and plants; this means that the environment must be protected at all costs. Our environment is vital and can play a crucial role in our health. Nigeria is an Oil producing country is one of the major emitters of greenhouse gases (GHGs). 

Nigeria is the 5^th highest gas flaring nation on earth.¹ 

The environmental cost of gas flaring in Nigeria amounts to #28.8 Billion annually.² Victims of environmental mishap occasioned by the reckless activities of Oil Companies, mineral mines, industries, ignoble uses of peoples’ properties among others rarely secure remedy and these activities remain largely unabated.

However, there exist very few environment-centered litigations (both criminal and civil) in Nigeria. This is due to lack of expertise in Environmental laws by both the Bar (both the prosecutors and private practitioners) and the Bench. Also, many judicial officers have placed economic benefits above environmental concerns.³

The judiciary until recently had adopted a passive approach to environment-related cases.⁴ Most remedies of environment related claims are accessed through the common tort remedies which are not specifically designed to address such claims.² Hence the need for Environmental Litigation as a Tool for Environmental protection.

The essence of Environmental Litigation in Nigeria

Human beings and society, for good or for bad, are largely dependent on the environment. Human development and technology have introduced large scale degradation of the environment⁵.

Such degradation includes pollution which by its nature causes extensive damage to the environment, human lives and property as well as means of livelihood. Laws for the protection of environment may be preventive or remedial or a combination of both.² Such environmental laws put in place mechanisms to protect the environment and victims and create liability in the event of any breach of their provisions.

Issues of liability and compensation to environmental damage is reflected in Principle 13 of the Rio Declaration which provides that States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damages within their jurisdiction.²

The domestic environmental laws are also not left out in providing for compensation in the event of environmental damage which come in the form of civil or criminal liability.²

On paper, environmental protection and regulation in Nigeria have no doubt received considerable attention.² The Government has consistently declared its commitment to the pursuit of people centred environmentally sound regime 1112. The average citizen understands that a clean and healthy environment is in his best interest as anything short of that is a risk.⁶

However,⁷ where such remedies seem to exist, the remedies available are grossly inadequate due to lack of a recognisable environmental right for pollution victim, litigation hurdles, and ineffective regulatory regime to rescue the course of these victims. Courts usually award damages that are laughable and most times, not enough to even settle legal fees, and allow some reasonable recompense to accrue to the plaintiff and also serve as a deterrent to the defendant.⁸

For instance, in Sam Ikpede v. Shell BP (Nig. Ltd),⁹ the plaintiff’s ponds, lakes and farmlands were damaged as a result of escape of oil waste previously collected in a pit burrowed by and in control of the defendants. Only N5, 100 was awarded as compensation even though a total claim of N15,000 was made by the plaintiff.

Where the judiciary is assertive, innovative and inspirational, it will consistently keep the executives and the legislature on their toes in the implementation of appropriate environmental strategies.¹⁰

Environmental litigation is not only vital for inducing the state to implement or enforce the provisions of environmental regulations; it also serves as a strategy for holding polluters responsible for the adverse environmental consequences of their activities.²

However, litigating the right to a healthy environment & environmental wrongs in Nigeria is largely dependent on the access of the victims of environmental pollution to Court, which is usually dependent on a recognized legal right and the procedural gateways created by law for the enforcement of such rights.¹¹

Environmental Litigation In Nigeria

Environmental litigation¹² is the process of resolving disputes concerning protecting and maintaining the environment by instituting a complaint in court.
There are three stages when it comes to Environmental litigation in Nigeria,

1. Pre-colonial Era
2. Colonial Era
3. The Era of independence
   These 3 Eras witnessed varying degrees of Environmental degradation;

Pre-Colonial Era

During this time, the state of the environment was primarily based on customs, for example some parts of the state, do not fish because some of them believe that fishes are gods, while some believe that in a particular river in Ijebu Ijesha, the fishes do not cooks no matter the time it stays on fire. While some states in the south worship snakes, some even lions, this acts one way or another, preserving the environment.

Colonial Era

During this time, there was a lack of awareness about environmental issues. Environmental litigation was more or less a tool for sanitation. A significant motivation driving colonialism was the desire to secure access to the natural resources of the colonies.

Without specific environmental laws, remedies for environmental violations were sought within the English common law torts negligence, strict liability, public nuisance, and trespass. To illustrate, the English case Rylands v. Fletcher established the doctrine of strict liability. In this no-fault liability, responsibility is imposed for damage caused by a defendant’s actions, regardless of intent. This principle has provided an important precedent in subsequent Nigerian cases, including Umudje v. Shell British Petroleum. The country is premised on a duty of care. This case has been adopted as a binding precedent in subsequent Nigerian cases.

The Era of Independence

Environmental litigation marked a chance after Independence. Due to our leaders’ focus on other things when we had just newly gained Independence, laws on the
environment were a minor topic. Koko Crisis In August 1987, an environmental catastrophe ignited and energized efforts to pass meaningful environmental legislation.

An Italian company imported several tons of toxic industrial waste and deposited it in Koko, Delta State, within Southern Nigeria. The waste leaked into the surrounding environment and resulted in the endangerment of some¹³ residents of that community. AllarIrou v. Shell B.P. In that case, the judge refused to grant an injunction in favour of the plaintiff whose land and fishpond had been polluted by the defendant’s operations. also, in NNPC v Sele, which has similar facts to Adediran v Interland Transport Ltd, the Court of Appeal allowed the appeal of the Appellants on the ground that a claim of special damage cannot be sustained in a representative action.

Environmental Litigation from a Global Perspective

Urgenda Foundation V State of Netherlands: This case has to do with the Netherlands’ commitment to UNFCCC to reduce their emission, but the Government went on to introduce policies and projects, which means that they were going 23 back on the commitment under UNFCCC, the matter went up to the Supreme Court of Netherlands, the court held that if the Government fails to meet the obligation under the UNFCCC that the human right of the people will be affected.

Legharia V Republic of Pakistan, in this case, an ordinary farmer, challenged the failure of the Pakistan government to implement its national policy on Climate change, saying that the failure to do so is a breach of articles 9, 14, and 23 of the Pakistan Constitution The court held that Environmental right is at the center of the Pakistan constitution and therefore Allowed the claim of the farmer.

The cases above are very important because they show how even a mere farmer was able to challenge a whole government, part of the problems in Nigeria is how difficult litigation can be because of status . The cases above shows how pragmatic Environmental Litigation can be were issues like corruption is removed.

Current issues with environmental litigation and ways forward

Factors that limited Environmental Litigation in Nigeria and their remedies ; Poverty; Government should fund litigation by creating accessible lawyer , who are paid by the Government, in order to reduce the cost of litigation . Illiteracy; because of this factor people tend to fall into bribery, where they feel like the little change they get is worth the rights given to them is being violated.
Lack of enlightenment of the civilians; Government or Organizations should enlighten civilians on their rights¹⁴

In Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation

The plaintiff claimed for the restoration and reinstatement of the affected community, especially the people of the Ineh and Aku streams whose environment was polluted by a spill of crude oil in their community; provision of drinking water for the community and the compensation of the victims of the spill. trial court and the Court of Appeal struck out the suit for want of locus standi on the part of the plaintiff.

The Supreme Court in a landmark decision allowed the appeal and held that an NGO has the requisite locus standi to sue in an environmental matter. The Court noted that other common law jurisdictions like the United Kingdom, India, Canada, and Australia have long departed from a restricted and rigid application of the doctrine of locus standi.

Conclusion

Environmental Litigation as a Tool for Environmental protection is very important in Nigeria, as it serves as a means whereby Nigeria’s Environmental is being managed and protected for the well being of the citizens.

References

• Pricewaterhouse Coopers (PWC) 2018. Assessing the Impact of Gas Flaring on the
  Nigerian Economy. Retrieved on May 15, 2023
• A.I. Olatunbuson & K.O.N. Onu (2020) Liberalization of the Concept of Locus Standi in Environmental Suits in Nigeria
• Olanrewaju F. 2012.Mournful Remedies Endless Conflicts and Inconsistencies in
  Nigeria’s Quest for Environmental Governance: Rethinking The Legal Possibilities for Sustainability Abuja: NIALS Press.
• Michael R. A., Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in the LDC, Paper for Discussion at WDR Meeting, 16-17 August 1999,
• TOYIN FALOLA. A HISTORY OF NIGERIA 93 (Frank W. Thackeray & John E.
  Findling eds. 999).
• Rebecca Bratspies, Do We Need a Human Right to a Healthy Environment?, 13 SANTA CLARA J. INT’L L. 31, 46 (2015).
• THE LIBERALIZATION OF LOCUS STANDI IN ENVIRONMENTAL CASES IN NIGERIA Adeniyi I. Olatunbosun and Kingsley Osinachi N Onu.
• THE JUDICIARY AND ENVIRONMENTAL LITIGATIONS IN NIGERIA Onu, Kingsley Osinachi N
• Michael R. A., Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in the LDC .
• Onyeabor, E. Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus.
  Lecture Series on Environmental Law.

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About Author

1. Pricewaterhouse Coopers (PWC) 2018. Assessing the Impact of Gas Flaring on the Nigerian Economy. Retrieved on May 15, 2023 from https://www.pwc.com/ng/en/assets/pdf/gas-flaring-impact1.pdf.1. [↩]
2. Ibid. [↩] [↩] [↩] [↩] [↩] [↩] [↩]
3. Irou v.SPDC,unreported Suit No: WW/89/71. [↩]
4. Ibid. See also A.I. Olatunbuson & K.O.N. Onu (2020) Liberalization of the Concept of Locus Standi in Environmental Suits in Nigeria: An Appraisal of the Supreme court’s Decision in the Case of Centre for Oil Pollution Watch v. NNPC [2019] 5 NWLR (pt. 1666) 518, The Gravitas Review of Business & Property Law, 1-11. Link: https://gravitasreview.com.ng/shop/liberalisation-of-locus-standi-in-environmental-cases-in-nigeria/ [↩]
5. Onyeabor, E. Senior Lecturer, Faculty of Law University of Nigeria, Enugu Campus. LectureSeriesonEnvironmentalLaw. [↩]
6. Olanrewaju F. 2012.Mournful Remedies Endless Conflicts and Inconsistencies in Nigeria’s Quest for Environmental Governance: Rethinking The Legal Possibilities for Sustainability. Abuja: NIALS Press. [↩]
7. Example is the militancy that happened and is still being experienced in Nigeria Delta region. [↩]
8. Is was the case in R, Mon &Anor v. Shell B. P, where the Court the awarded the sum of N200 as a fair calculation of the damage suffered [↩]
9. (1973) MWSJ 61 [↩]
10. Olanrewaju F., 2012. Mournful Remedies Endless Conflicts and Inconsistencies in Nigeria’s Quest for Environmental Governance: Rethinking The Legal Possibilities for Sustainability. Abuja: NIALS Press. [↩]
11. Michael R. A., Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in theLDC, Paper for Discussion at WDR Meeting, 16-17 August 1999, , available at http://siteresources.worldbank.org/ INTPOVERTY/Resources/WDR/DfiD-Project-Papers/anderson.pdf [↩]
12. Cornell’s DICTIONARY [↩]
13. TOYIN FALOLA. A HISTORY OF NIGERIA 93 (Frank W. Thackeray & John E. Findling eds. 999). [↩]
14. Federal Environmental Protection Agency Act. 2004 [↩]