Tag: quest

• Continued from last week

The main safeguards for the citizen against oppressive or faulty acts and omissions of government agencies are usually through judicial review of administrative action, vide which superior courts are able to exercise a residual controlling power on matters such as vires as these are relevant to the legality of official decisions. The good work of judicial review notwithstanding, it was also realized that access to court if absolutely unqualified will place too heavy a burden on public authorities if they have to defend every act against every disgruntled and dissatisfied member of the public. This will impede the administration of government. Consequently, the law gave statutory protection in the form of concept of pre-action notice.

In all of the statutes that have pre-action notice, the approach towards enforcing the seeming mandatory and fundamental nature of its rules has been the same, namely, that the failure to give it as prescribed by the relevant statute is not a mere irregularity which could be waived by the defendant. It would be construed as a failure to comply with a condition precedent and its effect would be to deprive the trial court of competence to look into the case.92 In the face of current thinking, approaches and practices towards evolving an enduring strategic environmental management system, other jurisdictions have adopted a different approach to giving effect to pre-action notice.

The nature of environmental risks is such that an injunction quia timet of ex parte nature is what may be required to avert the prospects of imminent danger that loomed large. In this case, a provision requiring notice of 1 month to 3 months, as the case may be, may result in harm of irremediable nature. Consequently, the approach in other jurisdictions have been to hold that the notice provision is merely procedural such that the court will be prepared to stay proceedings and allow notice to be served rather than dismissing or striking-out the suit93; or to approve that citizen suits can be brought without prior notice under federal question jurisdiction;94 or for the legislature to always add a savings clause to pre-action notice provisions to the effect that such provisions shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief.95

In order to infuse a change in the way the Nigerian judiciary approaches the issue of pre-action notice as relevant to environmental issues, I articulated my position in an article published in 2001 entitled ‘Retheorising Pre-Action Notice as a Tool for Strategic Environmental Management in Nigeria’.96 I further discussed my concerns with members of my post-graduate class which included my respected friend and brother, Mr. Mike Igbokwe, SAN, and also forwarded copies of the published article to all the learned justices of the Supreme Court at the time. I was pleasantly thrilled when Mr. Igbokwe excitedly called me in 2002 to note that the Supreme Court in the case of Mobil Producing (Nig) Unlimited v. LASEPA, FEPA & Ors97 has held inter-alia, that the service of a pre-action notice is at best a procedural requirement and not an issue of substantive law. Interesting as this development would appear to be, it has little promise in that non-compliance with pre-action notice still renders an action incompetent, except where it is not raised by a defendant in which case it would be taken as a mere irregularity. It is my respectful submission that it is time for the Supreme Court to lift the stakes in purposive construction, and at the minimum allow for stay of proceedings while the notice is being served. This will enable courts to be in position to grant orders of injunction in deserving situations.

(ii) Limitation periods

The main purpose of limitation periods is to avoid a defendant having the indefinite threat of a claim. Consequently, on the premise that the ability of a defendant to prepare a defence is undermined where a claim is revived after a period of time, a statute of limitation sets the maximum time after an event that legal proceedings based on that event may be initiated. Thus, it is not unusual to see provisions like that of the Nigerian National Petroleum Corporation Act which provides that claims against the Corporation and its subsidiary companies must be instituted within a period of one year from when the cause of action arose.98

Given that a considerable period of time can pass from the time a pollutant is put in the environment and when it is discovered to have impacted its victims, it is often a difficult problem for potential litigants when they are faced with a statute of limitation in respect of which time starts to run from the date the act or omission occurred, and not the date of knowledge. In order to meet the challenge of limitation periods for environmental matters, what some jurisdictions have done is to provide that time runs from the date the cause of action accrued or, if later, the date of the claimant’s knowledge. Some others provide that the starting date is the earliest date the claimant knew that the damage was sufficiently serious to justify proceedings, that it was attributable to the alleged negligence, and the defendant’s identity.99 I respectfully submit that it is along these lines that Nigeria must urgently begin to re-engineer its laws if it is to ensure the protection of her citizenry in the context of environmental concerns and sustainability.100

(iii) Standing

Another hurdle that environmental litigants seeking to use the civil liability regime must face is that of establishing standing. The concept of standing is viewed as a fundamental gate-keeping requirement for access to the court system. The traditional, strict test of standing (locus standi or standing to sue) as espoused by the cases is that a person should have a direct personal and proprietary relationship with the subject matter of litigation. In other words, he must have suffered special damage peculiar to himself from the interference with the public right.101

Aside of serving as ‘gate-keeper’ against the busybody and the crank,102 the concept of standing, it is believed, also confines the judiciary to its limited role in the system of separated powers in the way it helps ensure that cases filed in court involve the type of well-defined, adversarial contests which the courts are institutionally competent to resolve. While some jurisdictions have approached the application of the doctrine with its traditional rigidity, others have shown a preparedness to allow for a more flexible approach. Overall, three principal positions have been identified, namely: (1) the extensive approach which permits public interest actions to be brought in the form of actio popularis; (2) the restrictive approach which requires a potential litigant to demonstrate a breach of one of its own rights. This approach does not accept of law suits to protect collective interest or diffuse interests; and (3) the intermediate approach. Here the concept of ‘interest’ is broader than the requirement of a subjective right, but still ensures that a connection exists between the plaintiff and the cause of action.103

With respect to Nigerian courts, there is still no clearly established right of standing beyond that traditionally recognized under the common law. Following the decision of the Supreme Court in Fawehinmi v. Akilu,104 it was the view of many that the common law concept of locus standi has been broadened from the inconsistent and conflicting interpretation of section 6(6) (b) of the 1979 Constitution in the earlier decided case of Abraham Adesanya v. President of Federal Republic of Nigeria.105 By the time the case of Owodunni v. Registered Trustees of the Celestial Church of Christ106 was decided, it became clear that the Supreme Court was more disposed to the restrictive approach underscored by Bello JSC in Adesanya’s case.107

The wider implication of what has happened at the Supreme Court in relation to the concept of standing is that it has facilitated inconsistent, contradictory and confusing tendencies in the exercise of discretion by the lower courts. While some have continued to affirm the traditional individualistic application of locus standi, others have embraced the contrasting communitarian approach.108 Premised on this, there have been strident calls for the Supreme Court, being the apex court, to give clarity on what should be the approach of the judiciary.

With particular reference to environmental litigation, the reason why it has been urged that it should be viewed differently from other forms of litigation is primarily because the environment does not have a voice of its own. It often needs committed representatives, independent from government functionaries who in certain situations could be compelled to act in defence of a state entity engaged with impunity in activities detrimental to the environment. Among the advantages that have been canvassed in situations where rules of standing have been relaxed to allow for public interest litigation are: first, that the existing enforcement deficit prominent with environmental law could be tackled more successfully if more litigation rights exists; second, that it will contribute towards the democratic endeavours of the Aarhus Convention both with regard to general public awareness building as well as to participation rights. Third, that it would even the playing field and not leave the financially strong industries to be in position to challenge stringent regulations, while those harmed by pollution are not liable to challenge weak government regulations. Finally, that it induces positive environmentally friendly actions. The possibility that a polluter can be sued will itself have a positive effect by inducing public authorities and business enterprises to examine more carefully the compatibility of their decisions and activities with environmental law stipulations.

If we put in proper perspective the weak governance system that Nigeria has, it is clearly of importance for her to reform her rules of standing particularly in the way it affects environmental matters. This could be by way of judicial influence or legislation. For the judiciary, what is important is that judicial expansion of standing must be done with clear principles that will ensure the court system retains a consistent, efficient image and not one that bases a citizen’s right to bring litigation on subjective discretion. The following list109 presents one of such guides. Starting with the least harm required for law suits seeking compliance with informational or public participation rights on one end of the continuum and ending with the highest burden for lawsuits seeking compensation for harm from pollution:

i) If the plaintiff is seeking to exercise a public right to gain access to information or to participate in a public process, the burden is minimal since the right attaches to all interested members of the public;

ii) To seek an adequate environmental impact statement, the plaintiff would not need to prove that the underlying project will cause harm, but merely that the plaintiff would be affected by the project and that there is sufficient evidence of potential harm to warrant an analysis in an environmental impact statement;110

iii) To enforce a zoning standard, the plaintiff may need to be impacted by the project, but need not prove that the project will cause particular harm if the zoning standard is violated because the legislative body already made that judgment;

iv) To require adherence to a permit or regulatory standard, the plaintiff need not prove that violation of the standard will cause personal injury, since the permit or standard embodies a judgment that the enterprise must abide by the limit;111

v) To obtain compensation from harm from pollution, the plaintiff would need to be the person harmed by the pollution.

The kind of approach stated above is what will serve the view expressed by Tobi JCA (as he then was) in the case of Busari v. Oseni,112 where His Lordship urged as follows:

In my view, the frontiers of the concept of locus standing should not be static and conservatively so at all times. The frontiers should expand to accommodate the dynamics and sophistication of the legal system and the litigation process respectively. In other words, the concept must move with time to take care of unique and challenging circumstances in the litigation process. If the concept of locus standi is static and conservative while the litigating society and the character and contents of litigation are moving in the spirit of a dynamic changing society, the concept will suffer untold hardship and reverses. That will be bad both for the litigating public and the concept itself.

In relation to legislative intervention, this is what has been used critically to broaden access to courts and give a boost to public interest litigation. The approach is either to enact broad standing provisions in a framework law pursuant to which the courts can liberally interpret the rules of locus standi, or to enact prevention-oriented statutes that (1) establish minimum standards, (2) require polluting facilities to obtain permit that incorporate and adapt those standards to the particular enterprise, and (3) authorize governmental and citizens suits to enforce both the requirement to obtain a permit and compliance with the particular permit.113 Using these approaches, countries like the United States, Australia,114 Portugal, France, the Netherlands, Belgium,115 Greece, Brazil, Philippines,116 and Bangladesh117 have in relation to environmental matters been able to reduce or put an end to the burdensome requirement of standing. In Africa, countries like Tanzania, Uganda and Kenya118 have also reduced the excessive burdens of the proof of standing on plaintiffs and the courts.

At the very general level, environmental protection is seen in opposition to economic development, and often the latter tends to prevail.