Environmental Litigation And The Issue Of Locus Standi – Abanikanda Happiness

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 INTRODUCTION

The Niger Delta region in Nigeria are mostly oil-producing area and they account for the most important source of Nigeria’s foreign exchange since the discovery of oil in Olibiri in 1956. Since then they has been increased number of exploration, onshore drilling, offshore drilling, export and many more. It is a known fact that these oil activities have generated immense financial benefits for the country, however there have also created health and hazardous environmental problems, a cursory look  at the state of living in those areas, it is such a disaster, these people live in a pitiable conditions, the lands there are polluted with oil and the rivers are polluted with oil as a result of exploration activities going on in that region, and I ask what is the source of livelihood in some of the agrarian community given these facts?

In a bid to protect, preserve and sustain environmental resources, Nigeria has developed body of laws and rules to solve environmental degradation, gas flaring and also to strike a balance between its physical development and the sustainability of resources. However it is saddening that most of these laws are mere paper tiger having no force in them, the more reasons corporations violate the laws with impunity. Moreover, with the increase in oil, activities and its consequences, it is obvious that the common law remedies do not avail much for the victims seeking redress of the wrong. The victims hardly get justice from the court. This is because of the many impediments that comes with environmental litigation, the most notorious being the issue of locus standi, others include the issue of jurisdiction, cost of litigation and many more.

Although we would all agree that natural resource governance in a weak state results in transnational oil corporations neglecting or watering down the environmental laws. In Nigeria the Niger delta oil companies are extracting oil and gas with corporate impunity resulting in catastrophic environmental degradation and gross human right violation

IMPEDIMENTS TO ENVIRONMENTAL LITIGATION IN NIGERIA

Generally, there are several problems associated with litigation in Nigeria, and this is regardless of whether such litigation is an environmental litigation or other subject matter, unfortunately, these impediments are not limited to a particular area or sector. Some of these factors include delay, cost of litigation, services of legal practitioner, ignorance of the law on the part of citizen, and many more. In Nigeria so many cases in court take time and unnecessary delay is attributable to it. It is recorded that the average length of litigation in superior courts of record lasts between five to six years and these cases that are heard eventually proceeds with no sense of urgency[1]. This is a minimum time a victim of environmental pollution in an instance will take to assert his right.

This factor discourages people with genuine concerns who could have resorted to court to assert their right. The other impediments is directly linked to the former. With delay comes the increased cost of litigating, this includes: the cost for the services of lawyers and filing of processes. This is prohibitive, and as such prevent most victims from approaching courts to seek redress over breach of their right or for any other tortious incident. Another general impediments to litigation is the remoteness of courts from victims. Most victims of environmental pollution or disasters are rural dwellers with courts often situated in the urban settlements. Others include general impediments identified with litigation include lack of independent judiciary and lack of political will to enforce compliance of some decisions[2].

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Furthermore, the hurdle that confronts claimants in environmental litigation, is the burden of proof often placed on the claimant in proving his claim. The burden of proof or evidence is placed on the victims who may not have the means to hire technical experts to testify on their behalf.

LOCUS STANDI.

Locus standi is a Latin word which means the place of standing. Traditionally, it means that a person who applies to the court for redress should have sufficient, interest to approach the court. The litigant must suffer harm or the harm should be about to happen to the litigant. Reduced to its bare bones, it simply means that only litigants with sufficient interest in the circumstance of the case have the right to bring an action in the interest of the public, to have a court declare a law unconstitutional or challenge the actions of the government and its agencies.

Locus standi  is enshrined im section 6(6)(b), in Bewaji v Obsanjo[3] according to per Omoleye JCA held,

“Section 6(6)(b) of the constitution does not confer locus standi on persons. Under it, the courts have power to adjudicate on a justiciable issue touching on the rights and obligations of a person who brings the complaint to court. The complainant must show that the act of which he complains affects rights and obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury. The interpretation of section 6(6)(b) of the Constitution of Federal Republic of Nigeria 1999, is that a person who files a suit in court must be a proper person, natural or legal and the action must relate to him specifically and exceptionally without prejudice to a person being rightly in representative capacity”.

Nigerian courts generally interpret the principle of locus standi very strictly, they mostly accept cases where a person shows that he or she has personal interest in the subject matter of the litigation or the violation complained of affects the part directly. In Owodunmi V. Registered Trustee of Celestial Church and ors[4] Ogundare JSC in his lead judgment held on page 338 as follows:

The term locus standi or standing denotes the legal capacity to institute proceedings in a court of law standing to sue is not dependent on the success or merit of a case; it is a condition precedent to a determination on the merits. It follows logically that if the claimant has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits his cade must be thrown out as bring incompetent”. For locus standi to be proven, a plaintiff must establish

  1. That the act being challenged has caused the plaintiff actual injury;
  2. That the interest sought to be protected is within the zone of interest meant to be regulated by the statutory or constitutional guarantee in question.

Similarly in Adesanya v President of Republic of Nigeria[5]. It was held, that the term locus standi denotes legal capacity to institute proceeding in a court of law. It is used interchangeably with the terms like standing or title to sue.

In Nigeria, no issue has impeded the success of environmental justice like the issue of locus standi, it is trite law that standing is assessed by the trial judge on a case by case basis, the parties alleging separate injuries may not be joined. According to Frynas[6], the great weight given to standing would seem to indicate that the legal system could benefit greatly, from an unambiguous, bright lined rule determining when suits may be filed, and by whim. Hence in several lines of cases decided by the superior courts of record, the test articulated was that sanding will only be accorded to a claimant who shows that his civil rights and obligation have been or are in danger of being violated or adversely affected by the act complained of.

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Locus standi is construed strictly, however the court adopts a more liberal approach in fundamental rights cases. Anyone can institute an action in fundamental right cases, whether or not such individual has locus standi or not, see Asemota v Yesufu[7]. In Fawehinmi v Akilu[8], the Supreme Court held,

“The narrow confines to which section 6(6)(b) restricts the class of persons entitled to locus standi in civil matters have been broadened by the criminal code, the criminal procedure law and the constitution of the Federal Republic of Nigeria 1999. The powers of arrest and prosecution conferred by the various sections of the criminal code or criminal procedure law on “any person” has the magic effect of giving locus standi to any person who cares to prosecute an offender if and only if he saw him committing the offence or reasonably suspects him of having to commit the offence”.

Interestingly, the Fundamental Rights (Enforcement Procedure ) Rules, 2009, provides that the court shall encourage and welcome public interest litigations in human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well as any non-governmental organization, may bring human rights applications on behalf of any potential applicant[9].

Environmental suits and claims are usually objected to by the defendants for lack of the capacity of the claimants to sue. However in order to find a way around the issue of locus standi in environmental issues, NGOs have resorted to jurisdiction outside Nigeria to seek environmental justice for victims of pollution. For instance in the case of Registered Trustee of the socio-economic rights&accountability project (serap) v president of The Federal Republic of Nigeria[10], was instituted at the ECOWAS community court of justice. In that case SERAP, an NGO sought the court’s jurisdiction for a declaration that the failure and complicity and negligence of the defendants individually or collectively to effectively and adequately clean up and remediate contaminated land, water, to address the impact of oil-related pollution and environmental damage on agriculture and fisheries and to establish an effective system of monitoring the impact of oil on humans.

The claimant relied on the African charter on Human and Peoples’ Right particularly article 24, and other international instrument. The defendant raised a preliminary objection on the ground that claimant lacks locus standi to institute the action. While ruling on the preliminary objection the court brought a human right approach to the case and held that an NGO duly constituted according to national law of any ECOWAS member state, and enjoying observer status from ECOWAS institutions, can file complaints against human right violation in the case that the victim is not a single person.

The apex court in Nigeria provided a lead way on the issue of locus standi in Environmental litigation in the case of Centre for Oil Pollution Watch V NNPC[11]. The brief fact of the case in view are that the appellant, in enforcing its mandate, sued the respondent at the Federal High Court, Lagos for the alleged neglect of its pipelines in Acha autonomous community in Abia state consequently causing oil spillage in the said community and among other things denying the inhabitants of the community portable water from its only source. The respondent filed its defence and included therein an argument on the issue of locus standi, arguing that the appellant lacked the capacity to sue it. The respondent argued further that even if it was negligent towards looking after the pipelines, the appellant could not use it as it was not a member of the community affected by the oil spillage neither had it shown that it suffered  any damage as a result of the oil spillage.

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The Supreme Court in giving its judgment after considering a host of foreign judgments from Commonwealth jurisdictions had on the matter, lived to its billing as it held that the appellant has the right to institute the action by expanding the scope of locus standi on environmental matters in Nigeria. The court further held that there is nothing in the Constitution that says the Attorney- General is the only proper person clothed with the standing/power to enforce the performance of a public duty or institute public interest litigation such as the instant suit.

In conclusion, the interpretation of locus standi before the courts in most common law jurisdictions is liberal. Nigerian courts, however, interpret the principle of locus standi strictly, in the sense that standing is accorded the person who shows cause of action or sufficient. The doctrine of locus standi  have continued to be precedent in Nigerian jurisdiction and for one to access the  court the litigant must show locus standi in environmental litigation claim in Nigerian courts.

To curb the issue of locus standi in environmental litigation, it is important that the lawmakers need to review the extant legislation to give locus standi to individuals to institute actions for the protection of environment where there is occurrence of environmental pollution and degradation without necessity to prove damage suffered as it is currently the law or the need to seeking redress outside the Nigerian shore in the environmental litigations. Doing these will encourage litigants to seek redress for the breach of their environmental rights without fear that the case will be struck out in limine for want of locus standi.

Abanikanda Happiness is currently a student of the Nigerian Law school, Abuja campus. She can be reached at Woorah50@gmail.com

REFERENCES.

  • Fagbemi and Akpanke; Environmental Litigation in Nigeria: The Role of the Judiciary.
  • M Tumai,’Strengthening Locus Standi In Public Interest Environmental Litigation.
  • Alex Cyril Ekeke, Access To Justice And Locus Standi Before Nigerian Courts.

[1] O. Oko, ‘seeking justice in transitional societies: an analysis of the problem and failures of the judiciary in Nigeria’ (2005) 31 Brook. J.int.Law,9: 14 L McCaskill, when Oil Attacks: Litigation options for Nigerian Plaintiffs in US Federal courts.

[2] SA Fagbemi, ‘A Discourse of the Role and the Impacts of Nigerian Judiciary in Enhancing National security’(2017).

[3] [2008] 9 NWLR (Pt. 1093) 540 @ 573, 576.

[4] (2000) 10 NWLR(Pt.675) 315

[5] (1981) NSCC at 146.

[6] JG Frynas, Legal change in Africa; Evidence from Oil-Related Litigation in Nigeria, (1999)

[7]

[8] (1987) 4 NWLR (Pt.67) 797

[9] Paragraph 3(e) of the preamble to the fundamental Human Right (Enforcement procedure) Rules, 2009.

[10] Suit No. ECW/CCJ/APP/08/09 and RUL.No. ECW/CCJ/APP/07/10.

[11] [2019] 5 NWLR(PT.1666)518.

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