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Ensuring Environmental Accountability in Nigeria through the Liberalisation of the Locus Standi Rule: Lessons from some Selected Jurisdictions

Document Cited authorities 2 Cited in Related
Vincent
Pages473-496
Author
DOI10.3366/ajicl.2019.0287
Published date01 November 2019
Date01 November 2019
INTRODUCTION

Environmental degradation from oil pollution is a daily occurrence in the Niger Delta region of Nigeria. The bulk of petroleum operations in Nigeria are carried out by oil exploration and production companies in partnership with the state-owned Nigerian National Petroleum Corporation (NNPC). While some of these corporations conduct responsible international business,1 there is evidence to suggest that some oil companies in Nigeria conduct their operations with disregard for human rights and environmental concerns.2 This is so despite the existence of several environmental regulations in Nigeria. This is partly due to the cost of accessing judicial justice and the fact that the people most affected by environmental damage resulting from oil exploitation often do not possess the financial clout or expertise needed to prosecute their claim effectively.3 More importantly, even for those with the necessary financial clout, a plaintiff must establish that his civil rights are in danger of being violated by the act complained of. Satisfying this requirement in instances where the environmental degradation does not infringe or threaten fundamental human rights has proved problematic for public-spirited citizens and non-governmental organisations (NGOs) interested in the overall protection of the environment in Nigeria.4

This has led to a situation where victims of environmental damage are unable to seek judicial justice owing to their inability to raise the cost of litigation or hire the relevant experts needed to sustain a claim, thereby leaving the polluter without responsibility.5 Thus, while there are several environmental NGOs with the necessary resources and capacity to ensure that those who pollute the environment are held accountable, locus standi rules in Nigeria do not allow for the intervention of such NGOs. The implication is that ensuring environmental accountability is sacrificed sometimes on the altar of satisfying procedural rules. This is against the notion of environmental accountability which implies that the responsibility for the deterioration of the natural environment should lie with the economic activity that caused such deterioration.6

Access to justice in cases of actual or threatened degradation of the environment is considered a powerful tool in the overall protection of the environment.7 In cases of environmental degradation or pollution, it also constitutes an effective strategy for ensuring that polluters are held accountable for the adverse consequences of their activities.8 For this reason, countries with more access to judicial justice are more likely to have a better environmental protection regime and less pollution.9 However, despite the importance of the role of access to justice in the protection of the environment and the realisation of the right to a healthy environment, access to justice is limited by the fact that the court system is essentially reactive, and the court will only commence proceedings, receive evidence and give judgment once a litigant has petitioned it.10 Thus the ability of an aggrieved person or someone concerned by actual or threatened environmental degradation to petition the court is vital to accessing judicial justice.11

In practice, however, the ability of a person or group of persons to petition the court is dependent on the legal rights and procedural gateways created in law.12 This institutional factor invariably implicates the issue of locus standi, a procedural requirement that has come to play a critical role in oil-related environmental litigation in Nigeria.13 It refers to the right to stand before a court of justice to present a case for adjudication.14 The aim of conferring that right is to avoid frivolous suits from persons who have no interest in the matter.15 The legal concept of standing or locus standi is predicated on the assumption that no court is obliged to provide a remedy for a claim in which the applicant has a remote, hypothetical or no interest.16

It is the challenges posed by the strict interpretation of this rule on environmental accountability in Nigeria and for which this article argues in favour of the liberalisation of the rule that forms the basis of this article. The article explores the lessons Nigeria can learn from the development of standing rules in three different jurisdictions: the UK, Australia and South Africa. Selecting these jurisdictions reflects the common law origin of the rule and the peculiar role played by related environmental issues in its development in these jurisdictions. The first part of the article examines the rule as applied in Nigeria. This is followed by an analysis of the rule's development in the three selected jurisdictions. This is then followed by a reflection on possible lessons Nigeria can learn from the selected jurisdictions. The article concludes with some recommendations on the test that should be applied under a liberalised locus standi regime as a way of ensuring environmental accountability in Nigeria.

 <italic>LOCUS STANDI</italic> IN NIGERIA: ACCESS TO JUSTICE AND THE QUEST FOR ENVIRONMENTAL ACCOUNTABILITY

The term locus standi refers to the right to stand before a court of justice to present a case for adjudication.17 In Nigeria, the test for locus standi was formulated by the Nigerian Supreme Court in Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor.18 This case is regarded as the ‘locus classicus’ on the issue of locus standi in Nigeria.19 Importantly, the test applies in all contexts regardless of the cause of action or the remedy sought, albeit some progress has been made to abandon the test in human rights-related litigation.20 According to the court, in that case, standing will only be accorded to a claimant who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of. This decision was based on the interpretation of section 6(6) of the 1979 Constitution of the Federal Republic of Nigeria.21 The court interpreted that section to mean that the judicial powers of the courts can only be invoked on matters, actions and proceedings for the determination of any question as to the civil rights and obligations of the person who invokes the jurisdiction of the courts. Thus a link between standing and the jurisdiction of the courts to adjudicate was established by the court.22 Several cases have since followed the Supreme Court decision in Adesanya.23 The construction of section 6(6) of the constitution in the Adesanya case has, therefore, made standing an issue of constitutional requirement to be applied in all cases.24 Apart from serving as ‘gatekeeper’ against the busybody, the concept of standing, it has been argued, also confines the judiciary to its limited role in the system of separated powers in a way that helps ensure that cases filed in court involve the type of well-defined, adversarial contests which the courts are institutionally competent to resolve.25

Despite the relaxation of the rule in some jurisdictions in recent times, the Nigerian Supreme Court, after toying with the possibility of relaxation of the rule in Fawehinmi v. Akilu26 has since gone back to the strict interpretation of the rule in line with the Adesanya case.27 However, the strict application of the rule in environmental litigation has come with some consequences. As discussed in the preceding paragraphs, in places like the Niger Delta, individual claimants’ in oil-related environmental litigation may be unable to procure the experts required to succeed in a civil suit due to the high level of poverty in the area.28 Perhaps more importantly, in cases where individuals are unable to satisfy the standing requirement, the environment when threatened or degraded does not have a voice of its own to act.29 The need for some representatives in the form of public-spirited citizens or NGOs independent from regulatory agencies can, therefore, not be overemphasised.30

However, it is doubtful if any Nigerian court will confer standing on an environmental activist or an environmental NGO under the guise of ensuring environmental protection or accountability. In Centre for Oil Pollution v. Nigeria National Petroleum Corporation,31 the appellant, an NGO, had sued the respondent on behalf of the Acha Community Abia State and public interest for an oil spill resulting from the defendants’ pipeline and relied on a scientific report and opinion to show the devastating effects of the spill even after the defendants had stopped it. The case was dismissed on the ground that the appellant as a legal entity had not suffered any injury or damage as a result of the alleged spill. It is doubtful if individuals or the community on their own would be able to gather the resources to procure the expertise or scientific opinion that may be required to successfully sue the defendant. This becomes even more important bearing in mind that the courts may be unwilling to give judgment to a claimant without scientific proof of claims resulting from the oil spill.32

While the above represents the position of the Supreme Court of Nigeria on the subject, there are some lower court decisions on standing that are worth exploring with regard to oil-related and other forms of environmental litigation. For instance, in Fawehinmi v. President, Federal Republic of Nigeria,33 the Court of Appeal was of the view that although the term locus standi cannot be divorced from the provisions of section 6(6)(b) of the 1999 Constitution, an individual taxpayer will have some concerns should the tax money he contributed or is contributing towards the running of state affairs are being wasted.34 According to the court, such persons are deemed to have sufficient interest in seeking to enforce the law to ensure that his tax money is utilised prudently.35 In the area of oil-related environmental litigation, one common challenge has been the reluctance by...

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