Law: Environmental law class 300 level

Course outline - First semester. 

1. The concept of environmental law and environmental protection 
2. Sources of Nigerian environmental law 
3. Basic principles of environmental law 
4. Sources of environmental pollution in Nigeria 
5. The legal framework on environmental pollution - the air, water, noise and land  
6. Available remedies for pollution
7. Environmental crimes and litigation 
8. Environmental regulatory agencies 
Assignments
4 groups 
Group 1 write a short note on existing Nigerian legislations on the environment. It must
include the aims and objectives/ purpose, loopholes, date of enactment. and duties of
regulatory bodies/agencies.  
Group 2 - Sources of environmental pollution in Nigeria 
Group 3 - short note on international environmental laws applicable in Nigeria
Group 4 – available remedies

Meaning of environment 
- Environment is as old as nature, but policing the environment started late. 

What is Environment - Everything that surrounds us, the air, our neighbour, water, plant, land
wild- animals etc. 

The sources of Nigerian environmental law 

Sources of Nigerian law includes 
1 common law, 2. International Law 3. Nigerian statutes/legislation 4. Constitution 5. Case
laws 

Common law – consists of - Negligence, Nuisance, trespass to land, strict liability Ryland

v Fletcher's rule 

- Common law is the principle of law familiar to the whole of England, while the doctrine of
equity evolved to mitigate the harshness of common law to do justice. However, all these
laws are received in Nigeria since 1900. 

Classification of Environmental law

- Judging from the word environment, someone might think it is exclusively under the public
law domain. However, protecting the environment is not an exclusive domain of public law;
it can also be classified under private law.
- In most common law countries, private law, characterized by the torts of nuisance
negligence, trespass and strict liability rule in Ryland and fletcher, has traditionally been
applied to remedy earlier environmental degradation arising from individual and industrial
polluting activists.
- The Law of Torts is the area of law under the common law that mainly prescribes the
control of environmental pollution. A tort is a civil wrong that entitles the injured party to
claim damages for his loss or seek an injunction to discontinue or prevent the wrong.
 
-  Common law is relevant because 
- It is made applicable under local statute 
- It fulfils only a minor and residue role in environmental protection. 
- It is relevant in the control of environmental pollutions which is covered by the law of torts
limitation
it is rigid, filled with various technicalities 

- As earlier stated there are four torts specifically relevant to controlling environmental
pollution: Negligence, Nuisance, Trespass and Strict Liability

Negligence 
Nature and Meaning of Negligence
- Negligence in law generally means
- 1. There is a duty to take care not to injure the Plaintiff or any other persons by the
defendant, 
- 2. this duty has been breached by the defendant and
- 3. this breach has led to legal injury on the Plaintiff. 
 
- The tort of negligence can therefore be defined broadly as the breach of a legal duty to take
care, resulting in damage undesirable by the defendant, to the Plaintiff

In environmental law 
- There are three main elements to the tort that the Plaintiff must prove:
 a. A duty of care owed by the polluter to the plaintiff/victim 
b. The polluter is in breach of that duty of care
 c. The breach has caused foreseeable damages to the Plaintiff 

It is important that where the Plaintiff can prove his case successfully, the following remedies
are available to him, damages and injunctions, which may be mandatory or prohibitive.
Remedies will be treated later

Case review 
Negligence is also called the neighbourhood principle which was established in the celebrated
case of Donoghue v. Stevenson, where the English House of Lords held that
a manufacturer shall be liable in negligence to the plaintiff consumer in respect of a
bottle containing its product in which a noxious matter was found. 

- Fact of the case - the case involved Mrs May Donoghue drinking a bottle of ginger beer in a
café in Paisley, Renfrewshire. Unknown to her or anybody else, a decomposed snail was in
the bottle. She fell ill and subsequently sued the ginger beer manufacturer, Mr Stevenson.
The House of Lords held that the manufacturer owed a duty of care to her, which was
breached because it was reasonably foreseeable that failure to ensure the product's safety
would harm consumers. There was also a sufficiently close relationship between consumers
and product manufacturers.
 
- The lower Court had earlier dismissed the suit since, according to them, there was no legal
connection between the girl and the manufacturer. 
 
- But in the reasoning of Lord Atkin,
The rule that you are to love your neighbour as yourself becomes in law that you must not
injure your neighbour… it would be best if you took reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbour. 
- Who then is your neigbour? Biblical [Good Samaritan story]
- In law - The answer seems to be, persons who are so closely and directly affected by my
act.

- Negligence is an independent tort; by its very nature,

- it is not actionable per se. -  This is because the tort of negligence can only be established
when it is shown that the Plaintiff has suffered a legal injury due to the defendant's act
or omission and that as a result of the legal injury, the Plaintiff has suffered damages.

- The tort of negligence cannot be established where the Plaintiff establishes a legal injury but
cannot show the damages suffered by him as a result of the legal injury.

The Extent of the Usefulness of the Tort of Negligence in redressing pollution – using
Oil and Gas Pollution damage as an example  
Sources and types of pollution will be treated later

Generally speaking, a claimant for compensation for oil pollution damage under the common
law principle of negligence faces a bulwark of challenges.
·The first is that the burden of proof in the common law tort of negligence is of limited
application to environmental damages.
 
- This is because the multi-national oil company is engaged in a legitimate and approved
business, once they have complied with the duties imposed on them by law in their line of
business, they would have discharged the duty on them not to injure their host communities.
 
- A corresponding puzzle is that when oil spills or leaks occur, it is almost impossible for
those outside the context of the oil companies to establish with certainty the actual cause of
the incident to determine whether the defendant oil company has failed to discharge its duty
of care towards members of the host communities. The modus operandi is scientific and
upbeat technology which most times may need experts to understand on how their production
operations.
- The consequence is that the Court may unwittingly decide to go along with the story of the
pool of experts who can be easily pooled together by the multinational oil companies owing
to their financial muscles. 
- Also since the defendant can rebut the inferences of negligence by calling an expert witness
to prove that he took all reasonable care in his operation. 
- Lastly the defendant can defend himself by raising a defence of the third party
 
See Shell Petroleum Development Company v. Chief Otoko, [ citation ] the respondents who
were the plaintiffs at the High Court claimed damages for the injurious effect of crude oil
spill on the Andoni River and the consequent deprivation of the use of the creeks and rivers
as a result of the defendant's negligence. The appellants contended that the spillage polluted
the Andoni River and Creeks, damaging their properties. They alleged that their juju shrines
were desecrated and that drinking water in two wells owned by them was polluted, fish and
other fauna and flora perished and their economic life came to a standstill. In defence, the
applicants who were the respondent at the high court argued that the spillage was caused
by the act of a third party who removed a screw or bolt from the manifold from where the
spill occurred The Appeal Court held that negligence was not proved and that since the
spill was caused by a malicious act of a third party whom the appellant did not instigate,
the appellant could not have reasonably foreseen that any sane person will want to
unscrew the valves. The appeal succeeded and the judgment of the trial court was set
aside.

Again, in Atubi & ors v. Shell Petroleum Development Co, [citation] the Plaintiff claimed
that the defendants caused crude oil, gas and chemicals from their facilities to escape from a
pipeline under their control, thereby destroying their farmlands and fish in the lakes. The
Court held that the plaintiffs failed to prove that the defendants were negligent, and the matter
was dismissed. 

In a similar scenario in Chinda v. Shell B.P. Petroleum Development Company of Nigeria

Ltd, the plaintiffs' case was that the defendants were negligent in the management of their
flare sites. Consequently, much damage was done to the plaintiffs' trees, land and houses in
the plaintiffs' village, which is within a short distance from the plane sites. The Court held
that Plaintiff's claim failed because he had not produced any evidence to show negligence in
the defendant's operation of the plane sites.

 Another problem faced by victims of oil pollution in attaining redress through the
common law tort of negligence is the issue of locus standi. Locus standi has been
defined as the legal capacity to institute, initiate or commence an action in a court of
law or tribunal without any inhibition, obstruction or hindrance from any person or
body whatsoever. The Nigerian courts are reluctant to grant locus standi to people
who have not suffered in any way different from that of others or who may not share a
common interest with others whom he claims to be representing.

- In Jumbo v. Shell Petroleum Development {citation], the appellate Court found that the
Plaintiff who sued on behalf of 9,600 fishermen of the Jumbo House of Bonny was not
himself a fisherman and held that those directly concerned ought to have instituted the action
themselves. 
 
- Similarly, in Shell (Nig) Development Company Ltd v. Otoko, the Court of Appeal held
that - The allegation is of the fact that, the spillage injuriously affected fishermen, farmers,
persons bathing and washing in the Andoni River and adjoining creeks, persons using the
river and the adjoining creeks for cassava processing. It is plain to me that there was a
diversity of interests, there was no joint tort, and the damage caused to each of them can only
be personal to each of them so chief Otoko cannot bring an action on behalf of others.  
 
- It is clear from the above that the question of locus standi plays a significant role in the
determination of hostility for the tort of negligence in oil pollution cases.
As a result of these shortcomings the tort of negligence offers little hope to Plaintiff in cases
of environmental pollution 

. Nuisance –
- The relevance of tort of nuisance to environmental protection could be seen in the areas of
polluter's action leading to material injury to the property of the Plaintiff such as flooding,
depositing poisonous substance on crops and sensible personal discomfort.
- The tort of nuisance arises when the emission of noxious or offensive materials from the
defendant's premises significantly spoils/harm the use and enjoyment of plaintiff’s
property or prejudicially affects plaintiff’s health, comfort or convenience.
- In a simply term, it is a liability to one's physical neighbours. i.e One should not use his own
property in such a manner that will injure another person.

Historically -
- When agriculture was the main occupation in Nigeria, pollution was not that common
because use of land then, rarely affect other person's property. A person can use his land
without creating a nuisance. But when the industrial revolution increased, entrepreneurs who
operated industrial facilities were inherently less able to use their property without emitting
smoke and other pollution that infringed upon the interests of others.
 
Types of Nuisance
- Nuisance is divided into two public and private. 
 
- Private nuisance is an unreasonable and unlawful interference with other people’s interest in
the private use and enjoyment of their land. A private nuisance is defined as a substantial or
unreasonable interference with a person's use and enjoyment of land occupied by him.
- This type of nuisance is important but private nuisances are not crimes but give rise to an
action for damages which may be brought by the person who has suffered a loss. It was
described as "unlawful interference” with a person's use or enjoyment of land and some
right over or in connection with it. 
- Private nuisance for example have abated/minimized noxious odours emitted by human
faeces depot maintained by local authority in Olutimehin v Lagos city council 1968 ALL
NLR 517. Noise and vibration from neighbours' activities in Tebite v Marine co. ltd 1971 1
U.I.LR 432and lastly (Abiola v. Ijeoma 1970) 2 ANLR 768) poultry maintained by a private
individual

- While on the other hand, public or common nuisance refers to a conduct which materially
affects the enjoyment of a right which members of the public have in common. 
- Public nuisance is criminal in nature. A person is guilty of a public nuisance if he commits
an act not warranted by law or omits to discharge a legal duty where the effect of the act or
omission is to endanger the life, health, property, morals or comfort of the public or to
obstruct the public in the exercise of rights common to the citizens.

Limitations 
- It is pertinent to note that before 1979 and under Common Law, actions based on the public
nuisance can only be instituted with the consent of the Attorney General of the Federation or
that of the State as the case may be. Any action contrary to this principle/rule will be
considered incompetent. The hurdle is that Public nuisance is deemed a crime that can only
be prosecuted by the Attorney–General Fed. or that of the State. See in Amos and Ors vs.
Shell BP Petroleum Development Company of Nigeria Ltd. (1977) 6 Sc p9

Under common law and before 1979 Constitutions, 

- An individual can only bring an action under public nuisance when he is able to prove
special damages by way of personal injury, property damage over and above that suffered by
members of the general public 
 Case review
-  Amos v shell BP, where the Supreme Court affirmed the lower Court's holdings that, since
the creek was a public waterway, its blockage by the erection of a temporary dam was a
public nuisance. No individual could recover damages for a public nuisance without a public
right. 
- In the case, the defendant made a large earth dam across their creek during their mining
operation, flooding the upstream and drying the downstream of their creeks. It also hampered
the movement of canoes and negatively affected economic and agricultural activities within
the area. The trial court ruled that blocking of the stream was a public nuisance because the
creek was a public waterway and a representative action could not be maintained because the
interest of any losses suffered by the victims were separate in character and not communal) 
- see also Lawani v West African Portland cement co. The people of Itori brought an action
against MNC who engaged in cement production for the damage allegedly done to their
crops, building streams and other properties. The Court demised the action on the technical
ground that the act complained about was a public nuisance.

Supremacy of the law over common law [provision that is inconsistent with the
constitution is null and void]
Moreover, after the introduction of the 1979 Constitution of the Federal Republic of Nigeria
particularly, with the decision in Adediran v Interland Transport Limited (1986) 2
NWLR pt 20, 78, it is interesting to note that, the consent of the Attorney General is no
longer required for the competence of action in Public nuisance. The Supreme Court
interpreted the provisions of section 6) 6) b of the 17 constitution as entitling a private citizen
to sue in public nuisance without the leave of the AG, or without him as a party. 
. 
The tort of a nuisance now plays a residue role in the control of pollution, which is now
the subject of extensive statutory control like public health law, environmental
sanitation laws, and environmental pollution control laws.

3. Trespass to land: 
This tort consists of any unjustifiable intrusion by one person upon the land in possession of
another. It occurs when a company dumps waste and noxious material on the land of another
without his consent.
Essentials
Actions can be brought against anybody in situation where-
- Where someone enters upon land that belongs to the Plaintiff,
- Remains upon such land or
- Places an object upon such land.

- Trespass to Land is a direct and immediate interference by one person with the possession
of the land of another. It may be committed physically by the person or by causing the object
to intrude on another land. It must be intentional and not careless, and the resultant damage
must be direct rather than indirect consequences of the defendant's liability
- Placing some waste or noxious substance on the Plaintiff's land is trespass see salmon v
Houston [citation]
A victim of pollution can sue for trespass if he is the owner or he is in rightful possession of
the land trespassed upon. 
.  
4. Strict liability
 Rylands v Fletcher (1868) LR 3 HL 330 is a leading decision by the House of Lords which
established a new area of English tort law. It established the rule that one's non-natural
use of their land, which leads to another's land being damaged as a result of dangerous
things emanating from the land, is strictly liable.

Case review
Rylands employs contractors to build a reservoir. As a result of negligent work done, the
reservoir burst and flooded a neighbouring mine, run by Fletcher, causing £937 worth of
damage (equivalent to £93,600 in 2021). Fletcher brought a claim under negligence against
Rylands. At the Court of first instance, the majority ruled in favour of Rylands. Bramwell B,
dissenting, argued that the claimant had the right to enjoy his land free of interference from
water and that Rylands was guilty of trespass and the commissioning of a nuisance.

Relevance in environmental actions

- Ryland v fletcher has been invoked in the past to address environmental hazards inflicted on
the victims, particularly water and oil pollution cases. The rule as developed by Blackburn
that any person who for his own purpose brings on his land and collect and keeps there
anything likely to do mischief, it escapes must be kept the defendant’s peril.

- The principle states that polluter is liable, irrespective of wrongful intent of negligence.
Liability is strict in those cases where the defendant is liable for damage caused by his act,
irrespective of any fault on his part. 
  
The essential requirement for liability 
The defendant must bring, collect and keep something on his land for his own purpose 
The thing must not be naturally there
The thing must escape and then 
 The defendant is liable for the natural and anticipated consequences. For example,
explosives, waste management etc.

- R v F rule can be successful and defendant is held strictly liable if the Plaintiff can prove
that there was an escape of something dangerous from defendant company premises to
somewhere outside his occupation or control. Then the Plaintiff will be required to prove a
non-natural use of land. 
The efficacy of this rule has been whittled down by the liberal defences open to the
defendant.
- The defendant can avail himself of any of the defence such as ‘Act of God,’ ‘Act of Default
of Plaintiff,’ ‘consent of plaintiff,’ ‘independent act of third party’ and statutory authorities
see Ikpede v Shell BP [1975 citation] where defendants were not held liable under the rule
because their pipeline was laid pursuant to a license obtained under the Oil Pipeline Act.   

B. The Constitution
This is the grundnorm of any nation, is the constitution, and it plays a significant role as one
of the sources of any law relating to people.
1,The Constitution is the supreme law of a state.
2. It directs the process of governance, specifies the duties and functions of different arms of
government,
3. portrays the fundamental rights and obligations of citizens.
 4. All other laws derive their relevance from it; any law inconsistent with the provision of the
Constitution is void to the extent of its inconsistency.

Naturally, there have been a whole lot of environmental menace that most environmentally
conscious countries have handled through legislative action; some countries have given these
problems constitutional status for the State to deal with, and most of the third world countries
have enacted laws to minimize the menace, Nigeria, South Africa, Mali, India, Chile to
mention a few
As we have seen that section 20 of the 1999 Nigerian Constitution which states that: “The
state shall protect and improve the environment and safeguard the water, air and land, forest
and wildlife of Nigeria.” This is however the first time that the need to protect the
environment would be specifically mentioned in the constitution.

As we can see that the constitution, as the national legal order, recognizes the importance of
improving and protecting the environment and makes provision for it. the inclusion of the
Environmental objectives in the constitutions is seen in these relevant sections:
- Section 20 makes it an objective of the Nigerian State to improve and protect the air, land,
water, forest and wildlife of Nigeria.
- Section 17 [2d] also provides that exploitation of human and natural resources in any form
whatsoevers for reasons other than the good of the community shall be prevented.

- Section 4[1 &2] confers legislative power on National Assembly who have the power to
make law for the peace, and good government or any part listed in the exclusive list part 1 of
schedule 2 in the constitution e.g mineral and mining activities, oil and gas, aviation see the
constitution.
- While section 4[7] confer on State house of assembly power to make laws on matters in the
concurrent list eg industrial, commercial or agricultural development see the constitution
- While the local government to the residual list see schedule 4 of the constitution

- Section 12 establishes, though impliedly, that international treaties (including environmental

treaties) ratified by the National Assembly should be implemented as law in Nigeria.
- Section 33 and 34 which guarantee fundamental human rights to life and human dignity
respectively, have also being argued to be linked to the need for a healthy and safe
environment to give these rights effect.

Judicial interpretation
- To regulate environmental pollution activities is challenging between the organs of the
government on matters especially in the concurrent list, the principle of rendering the
power of the SH of A void on the ground that its inconsistency/ in conflict with federal
law
See AG Ogun v Aberuagba [ citation ]
also AG Lagos v A.G Federation& ors [ citation ]
AG ondo v AG. Federation [citation}

Technicalities in the Constitution towards environmental protection

Enforcement and justifiability clause section 6[6]

Its exception
C. Introduction to various environmental laws/legislations/ statutes
Part 1
- Prior to June 1988, Nigeria responded to most environmental problems on an ad hoc basis.
The discovery of toxic waste dumped in Koko, a remote part of southern Nigeria, in June
1988, and the attendant media and public outcry prompted the government to react swiftly.
Through diplomatic channels, the Nigerian government succeeded in getting the Italian
government and the Italian company that was the culprit to lift the toxic waste out of the
country.
There were many statutes enacted before the 1988 Koko incident which are environmentally
related under the military and the civilian regimes, including the Petroleum Act, the Oil
Mineral Act, the Factories Act and the Criminal Code. Then following the Koko incident,
more cognisant efforts has been made to tackle the environmental problem through some
specific legislations and they include, Harmful Waste (Special Criminal Provisions) Act 1988
and the Federal Environmental Protection Agency Act Cap 131 LFN 1990 to deal specifically
with the illegal dumping of harmful waste. 

Case Review
KOKO's case 
- Koko, Nigeria incident: In 1988, Italian businessmen illegally dumped over 2000 drums,
sacks, and containers full of hazardous wastes in a small fishing village in southern Nigeria.
The dealer claimed the waste to be fertilizers that would help poor farmers, but instead, it
became a nightmare. A few months later, the containers started leaking, causing stomach
upset, headaches, failing sight and death in the local community. The area around the
dumpsite was rendered inhabitable, and 500 residents were evacuated.
 

 Part 2
- Statutes or state laws mean the law made by the organ of government whose primary duty is
to make law for the State. Laws made by this body (legislative arm) are known as statutes or
legislation. Nigerian legislation consists of statutes and subsidiary legislations. However, it is
imperative to note that Subsidiary legislation is the statute made in exercising powers given
by a statute. It could also be referred to as delegated legislation. 
- Nigeria statutes consist of ordinance, Acts, Laws, Decrees and Edicts. Ordinances are laws
passed by the Nigeria Central Legislature before October 1, 1954, which ushered in a Federal
Constitution into Nigeria
- A statute enacted by the Federal Legislature (the National Assembly comprising of the
Senate and the House of Representatives) is an "Act".
- The statute made by the House of Assembly of a state is called "Law".
- In a military administration, an enactment or promulgation made by the Federal Military
Government is known as a "Decree" and the one made by the Government or Military
Administrator of a state is known as "Edict". 

Note that all existing Federal Statutes in Nigeria up till 1990 have been consolidated in Laws
of Federation of Nigeria (LFN) 1990. These decrees and Edicts are an invaluable source of
Nigerian Law.

[For Assignment.]

D. Case Laws
 Naturally, the courts are saddled with the responsibility of interpreting the state laws and
international conventions once an issue to that extent has arisen. However, the role of case
law in this respect is best appreciated where there is judicial activism and judicial precedent.
It is also important to say that the law is what the Court says it is.

Case law, a source of Environmental law in Nigeria

- In Adediran v. Interland Transport Ltd (1986) 2 NWLR Pt 20 Pg 78, the Court held that the
consent of an Attorney General is no longer necessary for the competence of action in public
nuisance. Note that the riparian doctrine was also applied in Nigeria as it is a common law
doctrine, a landowner has a right to the water which flows, across his land and his right to use
the water should be reasonable. see Braide vs. Adoki (1931) 10 NLR 15 45 
- Gbemre v shell petroleum, [citation]wherein the Court in Nigeria first declared gas flaring
as illegal and as a breach of fundamental rights.
 
E. International law
See the attached article.

Good day class.