CHECKMATING THE OIL SPILLAGE CONUNDRUM IN NIGERIA:

BROADENING THE FRONTIERS OF LEGAL INTERVENTION

Elijah C. Briggs LL.B (1st Class) BL, LLM (UK)

INTRODUCTION

“Man is both the creature and moulder of his environment, which gives him physical sustenance, and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet, a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of his basic rights…”1

Upon the demise of the Second World War, which was a prelude to the birth of the

United Nations, the global community seemed to have come to a sudden realization that

in spite of the giant strides in science and technology, vast quanta of people live in very

unhealthy conditions. This sordid situation is worsened by the emergence of densely

populated industrial districts which serve the duality of being an economic power house

on the one hand and casts an ominous pall on the environment on the other.

Nigeria, one of the world’s largest oil exporters, has a coastline of approximately 853km

facing the Atlantic Ocean. This coastline lies between latitude 4 10’ to 6 20’ N and

longitude 2 45’ to 8 35’ E. The Nigerian coast is composed of four distinct

geomorphology units namely the Barrier-Lagoon Complex; the Mud Coast; the Arcuate

Niger Delta and the Strand Coast. It is note worthy that about ninety to ninety-five

percent (90-95%) of export revenues in Nigeria is from the oil sector and consequently

Nigeria’s oil reserves are about 31.5 billion barrels, while Nigeria’s crude oil production

averaged 2.118 million barrels per day in the post-2000 era.2

1 A declaration made at the first International conference on the environment, Stockholm 1972, under the auspices of the United Nations2 Oshineye, A., “The Petroleum Industry in Nigeria: An Overview”. Modern Practice Journal of Finance & Investment Law. Learned Publihments Limited, 2000 . Vol. 4. No. 4

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Oil spillage poses a grandiose threat and has metamorphosed into a grimly intractable

environmental problem in Nigeria, hitherto and now. Between 1976 and 1996 Nigeria

recorded a total of 4,835 oil spill incidents, which resulted in a loss of 1,896,960 barrels

of oil to the environment. In 1998, 40,000 barrels of oil from Mobil platform off the

Akwa Ibom coast were spilt into the environment causing severe damage to the coastal

environment. Oil spillage has led to very serious pollution and destruction of flora, fauna

and resort centers, pollution of drinkable water, destruction of properties and lives along

the Nigerian coast.

As often blurted, there exists a flipside to every coin and without a scintilla of doubt, the

discovery, exploitation and sale of Oil and its overwhelmingly phenomenal economic

advantages accruing to the Nigerian state is to say the least a profound blessing.

However, in the same breath this “blessing” inadvertently elicits grandiose concern as to

the deleterious effects discernible from oil spills prevalent in the country. The fulcrum of

this momentous discourse revolves around the potency of the law and the promulgation

of a proactive legal framework as a panacea for this untoward and insalubrious

development.

DEFINITION AND SCOPE OF OIL SPILLAGE IN NIGERIA

Nigeria is doubtless a vast country, richly endowed with manifestly abundant resources

and reserves of the major energy sources such as oil and gas, coal, solar and

hydroelectricity. She stands tall as the sixth largest oil exporter in the globe.3 The

petroleum sector of the economy generates over 90% of the State’s foreign exchange

earnings and is to say the least the life line and chief pecuniary mainstay of Africa’s

“Giant”.

Against this backdrop, it is crystal clear that Nigeria ranks towering high in crude

exploitation and exploration, yet as aforementioned these seemingly robust blessings are

juxtaposed with overly cumbersome and distasteful effects, chief among which is the

3 G. Etikerentse, Nigerian Petroleum Law, 2nd Edn, Dredew Publishers, 2004, p. 144

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scourge of oil spillage. The word oil spillage is derived from the word spill. Spill can be

defined as (especially of liquid) accidental flow over the edge of a container4

Spill can also be defined as an amount of something which has come out of a container.5

It is trite to note that when oil has been drilled, the drilling site suffers a collateral damage

as some vestiges are spilled, albeit in infinitesimal quantities.

In Nigeria, prudent research evinces that fifty percent (50%) of oil spills is due to

corrosion, twenty eight percent (28%) to sabotage and twenty one percent (21%) to oil

production operations. One percent (1%) of oil spills is due to engineering drills, inability

to effectively control oil wells, failure of machines, and inadequate care in loading and

unloading oil vessels.

Thousands of barrels of oil have been let loose into the environment through our oil

pipelines and tanks in the country. This loss is as a result of our lack of regular

maintenance of the pipelines and storage tanks. Most pipelines from the flow stations are

obsolete. By international standards, oil pipes ought to be replaced after 15 to 20 years,

but most pipelines in use are 20 to 25 years old, making them subject to corrosion and

leakage. Some of these pipes are laid above ground level without adequate surveillance,

exposing them to wear and tear and other dangers.6 About 40,000 barrels of oil is spilled

into the environment through the offshore pipeline in Idoho.

Sabotage is another major cause of oil spillage in the country. Some of the citizens of this

country in collaboration with people from other countries engage in oil bunkering. They

damage and destroy oil pipelines in their effort to steal oil from them. Pirates are stealing

Nigeria's crude oil at a phenomenal rate, funneling nearly 300,000 barrels per day from

our oil and selling it illegally on the international trade market.

4 Oxford Advanced Learners Dictionary, 6th Edn, Sally Wehneier, 2001, P. 1146 5 Cambridge International Dictionary of English, Paul Proater, 1995, 13916 Oyem, A., 2001. Christian call for Action on Nigerian Oil Spill. Sage-Oxford’s Christian Environmental Group.

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Illegal fuel siphoning as a result of the thriving “black market” for fuel products has

increased the number of oil pipeline explosions in recent years. In July 2000, a pipeline

explosion outside the city of Warri caused the death of 250 people. An explosion in

Lagos in December 2000 killed at least 60 people. The NNPC reported 800 cases of

pipeline vandalization from January through October 2000.

In January 2001, The Nigeria lost about $4 billion in oil revenues in 2000 due to the

activities of vandals on our oil installations. Nigeria lost about N7.7 billion in 2002 as a

result of vandalisation of pipelines carrying petroleum products. The amount, according

to the PPMC, a subsidiary of NNPC, represents the estimated value of the products lost in

the process. The Nigerian government and oil companies say up to 15 percent of the

country's two million barrels per day oil production is taken illegally

The palpable effect of spillages could be enormous ranging from pollution of rivers and

other water bodies, extinction and substantial depletion of aquatic lives to defoliation of

the largely mangrove swamps to the sore contamination of groundwater, destruction of

the soil to annihilation of burrowing animals etc.

Semble, oil spills in Nigeria occur due to a number of causes, they include: corrosion of

pipelines and tankers and oil production operations. The largest contributor to the oil spill

is also gleaned to be the rupturing or leaking of production infrastructures that are

described as, "very old and lack regular inspection and maintenance".7

A reason that corrosion accounts for such a high percentage of all spills is that as a result

of the small size of the oilfields in the Niger Delta, there is an extensive network of

pipelines between the fields, as well as numerous small networks of flow lines—the

narrow diameter pipes that carry oil from wellheads to flow stations—allowing many

opportunities for leaks. In onshore areas, most pipelines and flow lines are laid above

ground. Pipelines, which have an estimate life span of about fifteen years, are old and

susceptible to corrosion. Many of the pipelines are as old as twenty to twenty-five years.]8

7 Impacts of Oil spills along the Nigerian coast (The Association for Environmental Health and Sciences) 8 Ibid

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Even Shell admits that "most of the facilities were constructed between the 1960s and

early 1980s to the then prevailing standards. SPDC [Shell Petroleum and Development

Company] would not build them that way today.”9 Sabotage is performed primarily

through what is known as "bunkering", whereby the saboteur attempts to tap the pipeline,

and in the process of extraction sometimes the pipeline is damaged or destroyed. Oil

extracted in this manner can often be sold for cash compensation.

Sabotage and theft through oil siphoning has become a major issue in the Niger River

Delta states as well, contributing to further environmental degradation.10 Damaged lines

may go unnoticed for days, and repair of the damaged pipes take even longer. Oil

siphoning has become a big business, with the stolen oil quickly making its way onto the

black market.11 While the popularity of selling stolen oil increases, the bodies are piling

up. In late December 2006, more than 200 people were killed in the Lagos region of

Nigeria in an oil line explosion.12 The 2006 explosion started after the oil line was tapped

by people siphoning the oil, with intentions of black market resale.

The Nigerian National Petroleum Corporation places the quantity of oil jettisoned into the

environment yearly at 2,300 cubic meters with an average of 300 individual spills

annually. However, because this amount does not take into "minor" spills, the World

Bank argues that the true quantity of oil spilled into the environment could be as much as

ten times the officially claimed amount.13

Among the largest individual spills include the blowout of a Texaco offshore station

which in 1980 dumped an estimated 400,000 barrels (64,000 m3) of crude into the Gulf of

Guinea and Shell's Forcados Terminal tank failure which produced a spillage estimated at

580,000 barrels (92,000 m3). One source projects that the total amount oil in barrels

spilled between 1960 and 1997 is upwards of 100 million barrels (16,000,000 m3).14

9 Shell International Petroleum Company, Developments in Nigeria (London: March 1995) 10 Anderson, I. 2005. Niger River basin: A Vision for Sustainable Development. The World Bank: Washington D.C. pp. 1-13111 CNN. 2006. Pipeline Explosion Kills at Least 200. Retrieved May 29, 2007, from http://www.cnn.com/2006/WORLD/africa/12/26/nigeria.blast/index.html 12 Human Rights Watch. 1999. The Price of Oil. Retrieved November 9, 200713 Nwilo, Peter C., and Olusegun T. Badejo, comps. Impacts And Management of Oil Spill Pollution Along the Nigerian Coastal Areas. Retrieved on 20 May 200714 ibid

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Oil spillage has a major impact on the ecosystem into which it is released. Immense tracts

of the mangrove forests, which are especially susceptible to oil (this is mainly because it

is stored in the soil and re-released annually with inundation), have been destroyed. An

estimated 5 to 10% of Nigerian mangrove ecosystems have been wiped out either by

settlement or oil. The rainforest which previously occupied some 7,400 km² of land has

disappeared as well.

Spills in populated areas often spread out over a wide area, taking out crops and

aquacultures through contamination of the groundwater and soils.15 In agricultural

communities, often a year's supply of food can be destroyed owing to the careless nature

of oil operations in the Delta; this will overtime cause the environment to grow

increasingly uninhabitable.

One may not be unmindful of the fact that the spill of petroleum products could yield to

the gutting of an entire landmass by the cruel hands of fire.16 Oil spill incidents have

occurred in various parts and at different times along our coast. According to the

Department of Petroleum Resources (DPR), between 1976 and 1996 a total of 4647

incidents resulted in the spill of approximately 2,369,470 barrels of oil into the

environment. Of this quantity, an estimated 1,820,410.5 barrels (77%) were lost to the

environment.17

Available records for the period 1976 to 1996 indicated that approximately 6%, 25%, and

69% respectively, of total oil spilled in the Niger Delta area, were in land, swamp and

offshore environments. Some major spills in the coastal zone are the GOCON’s Escravos

spill in 1978 of about 300,000 barrels, SPDC’s Forcados Terminal tank failure in 1978 of

about 580,000 barrels and Texaco Funiwa-5 blow out in 1980 of about 400,000 barrels.18

15 Though the consumption of dissolved oxygen by bacteria feeding on the spilled hydrocarbons also contributes to the death of fishes16 As typified in the Delta saga which occurred a couple of years ago; in Jesse precisely where loss of lives and utter destruction of property was manifest. 17 Inam Wilson: Modern Practice Journal of Finance and Investment Law, Nigerian and International Quarterly Comparative Review of Law and Practice. April 1999, MPJFIL Vol. 3, No.2. ISSN: 1116-7971. published by Law and Economic Development. P.329.18 Ibid

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Other oil spill incidents are those of the Abudu pipe line in 1982 of about 18,818 barrels,

The Jesse Fire Incident which claimed about a thousand lives and the Idoho Oil Spill of

January 1998, of about 40,000 barrels. The most publicised of all oil spills in Nigeria

occurred on January 17 1980 when a total of 37.0 million litres of crude oil got spilled

into the environment. This spill occurred as a result of a blow out at Funiwa 5 offshore

station. The heaviest recorded spill so far occurred in 1979 and 1980 with a net volume of

694,117.13 barrels and 600,511.02 barrels respectively.19

IMPACTS OF OIL SPILLAGE ON THE ENVIRONMENT

Little is known about the effects of petroleum pollution on shoreline communities.20

Major oil spills heavily contaminate marine shorelines, causing severe localized

ecological damage to the near-shore community. Ever since the discovery of oil in

Nigeria in the 1950s, the country has been suffering the negative environmental

consequences of oil development. The growth of the country's oil industry, combined

with a population explosion and a lack of environmental regulations, led to substantial

damage to Nigeria's environment, especially in the Niger Delta region, the center of the

country's oil industry.

Oil spills pose a major threat to the environment in Nigeria. If not checked or effectively

managed, they could lead to total annihilation of the ecosystem, especially in the Niger

Delta where oil spills have become prevalent. Life in this region is increasingly becoming

unbearable due to the ugly effects of oil spills, and many communities continue to groan

under the degrading impact of spills.21 In the Nigerian Coastal environment a large areas

of the mangrove ecosystem have been destroyed. The mangrove was once a source of

both fuel woods for the indigenous people and a habitat for the area's biodiversity, but is

now unable to survive the oil toxicity of its habitat. The oil spills also had an adverse

effect on marine life, which has become contaminated; in turn having negative

consequences for human health from consuming contaminated seafood. Oil spill has also

19 Ibid 20 Burn K.A., S.D. Garrity & S,C. Levings, 1993. “How many years until Mangrove Ecosystems Recover from Catastrophic Oil Spills?” pp. 239-248.21 See Note 6

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destroyed farmlands, polluted ground and drinkable water and caused drawbacks in

fishing off the coastal waters.

Oil spills in the Niger Delta have been a regular occurrence, and the resultant

environmental degradation of the surrounding environment has caused significant tension

between the people living in the region and the multinational oil companies operating

there. It is only in the past decade that environmental groups, the Nigerian federal

government, and the foreign oil companies that extract oil in the Niger Delta have begun

to take steps to mitigate the damage. Although the situation is improving with more

stringent environmental regulations for the oil industry, marine pollution is still a serious

problem

The harmful effects of oil spill on the environment are many. Oil kills plants and animals

in the estuarine zone. Oil settles on beaches and kills organisms that live there; it also

settles on ocean floor and kills benthic (bottom-dwelling) organisms such as crabs. Oil

poisons algae, disrupts major food chains and decreases the yield of edible crustaceans. It

also coats birds, impairing their flight or reducing the insulative property of their feathers,

thus making the birds more vulnerable to cold. Oil endangers fish hatcheries in coastal

waters and as well contaminates the flesh of commercially valuable fish.

In a bid to clean oil spills by the use of oil dispersants, serious toxic effects will be

exerted on plankton thereby poisoning marine animals. This can further lead to food

poisoning and loss of lives. Another effect of oil slicks is loss of economic resources to

the government when spilled oil is not quickly recovered, it will be dispersed abroad by

the combine action of tide, wind and current.

The oil will therefore spread into thin films, dissolve in water and undergo photochemical

oxidation, which will lead to its decomposition. The impacts of some major oil spill

incidents are given below.

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The Movement for the Survival of Ogoni People22 and other Ogoni activists have on

several occasions called on the Nigerian Federal Government to regulate the oil

exploration, drilling, and processing activities of Shell Oil and other oil companies in the

oil producing regions of Nigeria. The Ogoni have received virtually none of the $30

billion from oil pumped out of their lands, and they have been actively demonstrating

against such injustices. It is however disconcerting and heart-rending to recall the sordid

incident when Mr. Ken Saro-Wiwa, along with eight other MOSOP members, were

arrested and charged with the murder of four traditional chiefs belonging to a pro-

government group in the Ogoni region.

The murders occurred during a bloody clash in May 1994 between Ogoni activists and

Federal Government soldiers. On October 31, 1995, a Federal Military Tribunal

sentenced them to death. On November 10, 1995 the Nigerian Federal Government

hanged Ken Saro-Wiwa and eight others, in Port Harcourt. The death of the Ogoni

activists led to the suspension of Nigeria from the Commonwealth of Britain (a group

comprising of Britain and its former colonies); Under extreme pressure, the International

Finance Corporation cancelled a proposed $100million loan and $80 million equity deal

to Nigeria LNG, a company owned by the Nigerian Government and the top oil

producers in Nigeria (Shell, Elf and Agip), to produce a gas plant and pipeline in the

Niger Delta.23

MANAGEMENT OF OIL SPILLS

Bioremediation is a technique that may be useful to remove spilled

oil under certain geographic and climatic conditions. Bioremediation is

a proven alternative treatment tool that can be used to treat certain

aerobic oil-contaminated environments. Typically, it is used as a

polishing step after conventional mechanical cleanup options have

been applied. It is a relatively slow process, requiring weeks to months

to effect cleanup. If done properly, it can be very cost-effective,

22 Also known as MOSOP23 TED Case Studies, 1997. The Russian Arctic Oil Spill Case 265, Komi, see also http://www.american.edu/projects/mandala/TED/ted.htm

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although an in-depth economic analysis has not been conducted to

date. It has the advantage that the toxic hydrocarbon compounds are

destroyed rather than simply moved to another environment.24

There is however no gainsaying the fact that the above technique is largely known to

Geoinformatics, marine surveyors and the like, but is unknown to law and legal

semantics. As is the purport of this essay, one is saddled with the task of venturing into

how actively instrumental; a proactive legal framework can curb the menacing effects of

this ecological scourge.

In taking a decisive consideration of the corpus juris applicable to oil pollution in

Nigeria, a tripod distinction may be identified – Domestic Legislation25, International

Legislation26 and Judicial pronouncements27 a number of laws already exist in the

Nigerian oil industry. Most of these laws provide the framework for oil exploration and

exploitation. However, only some of these laws provide guidelines on the issues of

pollution.28

According to the Federal Environmental Protection Agency, Lagos Nigeria, the following

relevant national laws are in effect:

Petroleum Act

Oil Terminal Dues Act29

Petroleum Refining Regulations 1974

Associated Gas Re-Injection Act30

24 Hoff, R., 1993. Bioremediation: An Overview of its Development and use for Oil Spill Clean up. Mar. Pollut. Bull. 26, 476-481.25 This will include Nigerian made laws pursuant to the powers conferred on the Legislature in the 1999 Constitution to so promulgate. 26 This will include International Conventions, Protocols, Pacts, Treaties (whatever the nomenclature) ratified by Nigeria over the years. Having being incorporated into our Laws they are garbed with enforceable tenor. 27 This refers to Decisions of the Court in variegated cases brought before it to exercise its adjudicatory powers 28 Salu, A.O., 1999. “Securing Environmental Protection in the Nigerian Oil Industry”. Modern Practice Journal of Finance & Investment Law. Learned Publishments Limited. Vol. 3. No. 2.29 CAP O8 Laws of the Federation of Nigeria 200430 CAP A25 Laws of the Federation of Nigeria 2004

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Oil Pipeline Act

Endangered Species (Control of international trade and traffic) Act.31

Federal Environmental protection Agency Act.

Harmful Waste (Special Criminal Provision) Act

Petroleum (Drilling and Production) Regulations, 1969.

Mineral Oil (Safety) Regulations, 1963

Environmental Impact Assessment (EIA) Act

A succinct appraisal of some of these Legislations will suffice;

Harmful Waste (Special Criminal provisions) Act32

The relevant provision of this Act is contained in Section 12 wherein it stipulates that;

“(1) Where any damage has been caused by harmful waste

which has been deposited or dumped on any land or

territorial waters or contiguous or Exclusive Economic

Zone of Nigeria or its inland waterways, any person who

deposited, dumped or imported the harmful waste or caused

the harmful waste to be deposited, dumped or imported

shall be liable for damage except where the damage

(a) Was due, wholly to the default of the person who

voluntarily suffered it or

(b) Was suffered by a person who voluntarily accepted the risk

thereof.33

It is widely admitted that the incident giving cause to this piece of Legislation was the

importation by an Italian national, of a consignment of toxic waste in the port of Koko,

the headquarter of Warri North Local Government Area in Delta State in the late 1980s

which wreaked untold havoc. However the relevance of this legislation is that should any

31 CAP E9 Laws of the Federation of Nigeria 200432 CAP H1 Laws of the Federation of Nigeria 200433 Sub-section 2 defines “damage” to include the death of or injury to any person (including any disease and any impairment of physical or mental condition).

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harmful waste be generated in the process of offshore petroleum operations and should

damage things thereby, a tortfeasor stands liable to compensate victims thereof.

The Petroleum Act34 / Petroleum (Drilling and Production) Regulations

The Petroleum Act was primarily enacted to regulate the exploitation of oil from

exploration to production; including the granting of concessions, leases and licenses and

matters incidental thereto (it was stricto sensu not a pollution regulation statute). Perhaps

in recognition of the fact that oil exploration elicits environmental damage, the Act

generally empowers the Minister in Section 9(1)(b)(iii) to make regulations for the

prevention of pollution of watercourses and the atmosphere. Accordingly the Petroleum

Regulations 1969 contain provisions on environmental pollution. There is an “omnibus”

provision on pollution in Regulation 25, which provides that:

The licensee or lessee shall adopt all practicable precautions including the provision of up-to-date equipment approved by the Director of Petroleum Resources to prevent pollution of inland waters, rivers, watercourses, the territorial waters of Nigeria or the high seas by oil, mud or other fluid or substances which might contaminate the water, bank or shoreline which might cause harm or destruction to fresh water or marine life and where any such pollution occurs or has occurred, shall take prompt steps to control and if possible, end it.

It has been cautiously observed that this provision suffers from two major defects. First, a

rather vague legal duty is imposed, as all the operator is enjoined to do is to take prompt

steps “to control and if possible, end” the pollution in question.35 Secondly, it does not

deal with land pollution at all.36

Particular allusion is made at this point in time to Regulation 2337 which states that if the

licensee or lessee exercise the right conferred by his license or lease in such a manner as

unreasonably to interfere with the exercise of any fishing rights, he shall pay adequate

34 Cap P 10 Laws of the Federation of Nigeria 200435 Yinka Omorogbe, “Oil and Gas Law in Nigeria” 2001, (Malthouse Press ltd) p. 13636 It should be taken into utmost consideration that oil spillages affect land just as water and as such regulatory framework of this sort must encompass the entirety of land 37 See also Regulations 25, 40 and 45

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compensation thereof to any person injured by the exercise of those first mentioned

rights.

Accordingly, Regulation 36 enjoins the operator to carry out his operations in accordance

with good oil field practices and to take reasonable steps to control the flow and prevent

the escape of waste from relevant areas.38 The Petroleum Regulations 1967 prohibits

discharge or escape of petroleum into waters within harbour area and make provisions for

precautions in the conveyance of petroleum and rules for safe operation of pipelines.

Semble, it deals with downstream activities of the petroleum industry and contain

provisions against the leakage of petroleum products. Penalties for non-compliance are

revocation, and a fine of N100 with the option of imprisonment. It is however pertinent to

remark that the penalties are not feasible in practice. Revocation is unrealistic and

unlikely to be utilized unless it is a major environmental offence. A fine of N100 is

laughable and can deter only poor members of the society, not an oil corporation.39 The

prison term is equally impracticable for corporate offenders. One then wonders why such

scrawny laws subsist.

Oil Pipelines Act40

This is yet another momentous piece of environmental protection legislation in Nigeria. It

is no news that oil companies have inundated the Niger Delta region (including

residential areas) with a flurry of oil pipelines and this has resulted in some oil spills.

Thus, the Oil Pipelines Act is primarily concerned with the laying of pipelines. The

holder of a permit to enter any land, is required to take all reasonable steps to avoid

unnecessary damage to any land entered upon and any buildings, crops or profitable trees

thereon, and shall make compensation to the owners or occupiers for any damage or

discharge done under such authority and not made good.41

38 See also Reg. 38 – 39 which provide for the use of approved methods and practices for the production of oil and gas and for confirming petroleum respectively.39 See Note 27 at 13740 CAP O7 Laws of the Federation of Nigeria 200441 Section 6(8)

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In more specific terms, the Minister of Petroleum is empowered to make regulations to

prescribe measures, inter alia, in respect of the prevention of pollution of any land or

water. And in order to ensure compliance, the Act provides for the payment of

compensation by the holders of survey permit or pipeline license for any damages to

property of individuals or groups.42 It is crystal clear that if effectively utilized, this Act

possesses the inherent potency to contribute immensely to the protection of the Niger

Delta environment as well as the inhabitants of the region from the hard-hitting impact of

oil explorations.

Oil in Navigable Waters Act43

The Act (juxtaposed with attendant regulations) is a very elaborate anti pollution cum

water pollution control Law. In tandem with its recital, it is an Act to implement the

terms of the International Convention for the Prevention of Pollution of the Sea by Oil.44

It is believed that the primary aim of this legislation is to reduce drastically the incidence

of pollution of the world’s high seas and of Nigerian waters in particular. It generally

prohibits discharge of oil or any mixture containing oil into the territorial or navigable

inland waters.

Five pollution related offences are created by the subsistence of the Act under sections 1,

3, 5, 7 and 10 respectively.45 Essentially, they border around the prevention of pollution

of water by sea-going vessels (ships), Infact section 3 will be reproduced for its particular

significance to our imminent discourse. It states thus;

(i) If any oil mixture containing oil is discharged into

waters to which this section applies from any vessel, or

from any place on land, or from any apparatus (such as

pumping stations and pipelines)46 used for transferring oil

42 Section 33(c). So far no regulation has been made. This is probably because of the anti-pollution regulations made under the Petroleum Act.43 CAP O6 Laws of the Federation of Nigeria 200444 Nigeria acceded to and ratified this Convention on 22nd April 196845 See also S.946 See S. 11(2) Oil Pipelines Act for the definition of “Oil pipeline”.

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from or to any vessel (whether to or from a place on land or

to or from another vessel) or

(ii) If the discharge is from a vessel the owner or master

of the vessel or

(iii) If the discharge is from a place on land, the

occupier of that place or

(iv) If the discharge is from an apparatus used for

transferring oil from or to a vessel, the person in charge of

the apparatus, shall be guilty of an offence under this

section

Sub-section 3 further provides;

This section applies to the following waters, that is to say;

(a) the whole of the sea within the seaward limits of the

territorial waters of Nigeria, and

(b) all other waters (including inland waters) which are

within those limits navigable by sea-going ships.

The overriding import of S. 3 belies in the fact that it covers cases of oil spillages arising,

for instance from oil pipelines and effluent discharges from oil refineries. Under Section

6 of the Act, any person who violates the provision of the above section shall on

conviction by a High Court be liable to pay a fine.

Furthermore by virtue of the provisions of the Oil Terminal Dues Act,47 S.3 of the Oil in

navigable Waters Act extends in its application to “oil terminals”48 in Nigeria. Notably,

this section is deemed to be consistent with the National Environmental Policy on Water

47 S.6(1)48 Under the Oil Terminals Dues Act ‘oil terminal’ means an oil-leading terminal, pumping or booster station, or other than a terminal situated within ‘a port of any approaches thereto’ within the meaning of the Ports Act, see S.7(3)(a) and S.11

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Resources Management.49 Having regard to the causes of oil pollution and its effect on

the environment, this section would be a veritable vista to protect the environment.

Federal Environmental Protection Agency Act50

This law was enacted in 1988, after a long gestation period of about 12 years. It was the

first Nigerian Legislative brainchild to deal distinctly with the environment. The statute

establishes the Federal Environmental Protection Agency, which is to be saddled with the

task of working out proactive modalities and measures geared towards environmental

protection within the Nigerian precincts.

The Federal Environmental Protection Agency (FEPA), which was recently made part of

the Ministry of the Environment, is legally vested with the responsibility of protecting

and sustaining the Nigerian environment through formulation and implementation of

regulatory frameworks. The National Policy on the Environment comprises one of the

instruments developed by the agency to carry out its tasks. The document describes

guidelines and strategies for achieving the policy goal of sustainable development.51

In the effective discharge of its statutorily accorded duties, the FEPA has instituted a

number of Regulations, Guidelines and other rules aimed at controlling pollution and

protecting the environment. Some notable ones include; “Guidelines and Standards for

Environmental Pollution Control in Nigeria,”52 “Waste Management and Hazardous

Waste Regulations”53 etc.

The Environmental Impact Assessment (EIA) Act54

49 See para 3.3. National Environmental Policy 1989 (as revised)50 CAP F10 Laws of the Federation of Nigeria 200451 Ntukekpo D.S.,1996. “Spillage: Bane of Petroleum”, Ultimate Water Technology & Environment52 Enacted in 1991, directing industries to improve the quality of the environment and free it from pollutants and other environmental hazards.53 Enacted also in 1991 to regulate the collection, treatment and disposal of solid and hazardous wastes from municipal and industrial sources and provide a comprehensive list of chemicals and chemical wastes by toxicity categories.54 CAP E12 Laws of the Federation of Nigeria 2004

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This legal initiative was promulgated to protect and sustain our ecosystem. The law

makes EIA compulsory for any major project that may have adverse effects on the

environment.55 The Decree was to control activities that have environmental impact on

the host communities, facilitates the promotion and implementation of policy, encourage

information exchange.

It sought to assess the likely or potential environmental impacts of proposed activities,

including their direct or indirect, cumulative, short term and long term effects, and to

identify the measures available to mitigate adverse environmental impacts of proposed

activities, and assessment of those measures. The guidelines made provisions for offshore

operations, safety measures, liability and compensation.56

The law requires the publication of such assessment to enable interested parties examine

the environmental propriety and, if need be, object to the proposed project or activity

before its commencement. It also stipulates various penalties for non-compliance and

incorporates in its schedule a list of activities or projects for which environmental impact

assessment is mandatory.57

The Nigerian federal government has indicated that it is no longer willing to tolerate oil

companies absolving themselves of their responsibility to reduce pollution. The Federal

Government has noted that future drilling rights will be "closely determined by"

companies' environmental compliance, in addition to their submission of an

environmental impact assessment for the proposed site.

In July 2002, the Nigerian government ordered oil companies operating in the country to

comply with the Environmental Guidelines and Standards for the Oil Industry, published

by the Department of Petroleum Resources (DPR), the monitoring arm of the Nigeria

National Petroleum Corporation (NNPC), or risk paying a fine. The 300-page guidelines

55 Olagoke W., 1996. Niger Delta Environmental Survey : Which Way Forward ?, Ultimate Water Technology & Environment.56 Ozekhome, M., 2001. Legislation for Growth in the Niger Delta, Midweek Pioneer

57 See Note 32 at 140

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provide rules to reduce pollution and procedures for environmental monitoring. The

Nigerian government has taken action to show it is serious about enforcing environmental

regulations.

In March 2003, the Nigerian subsidiary of Shell was ordered to pay $1.5 billion to the

Ijaw tribe for the company's actions in the state of Bayelsa over a 50-year period. A

government committee that investigated Shell ruled that the company was responsible for

a number of oil spills and environmental incidents, including an epidemic in 1993-1994

in which 1,400 people were killed. The government committee blamed the prevalence of

cancer in the region on exposure to the company's oil spills, noting that Shell continually

refused to pay compensation for these spills, and where it had, the payment was

inadequate.

The Nigerian government in 1993 promulgated the Water Resources Act No 1058 of that

year, acting upon it by the Nigerian Constitution.59 In passing this Act, Federal Authority

was vested with the right to use and control certain categories of water resources in cases

where they affect more than one state in the federation . the Minister of water resources is

charged with the task of ensuring proper and adequate provision is made for the

environment through the supply of water for the drainage, the safe disposal of sewage

effluent and waterborne waste and the control and prevention of flooding, erosion and

damage to the water shed areas and also the protection of inland fisheries, flora and

fauna. A number of other state enacted laws have been seen around the country.60

Interestingly, there exist a handful of international statutes which directly or indirectly

affect the regulatory framework of oil spillage cases in Nigeria. The list of International

Conventions will include;

International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage, 1971

58 See supplement to the Official Gazette Extraordinary NO 27, vol. 80, 1993 part A, amended in 1995 to include certain provisions on irrigation 59 See part 1, 2nd Schedule, para. 62 of the 1999 Constitution60 For example in Edo state the Edo State Environmental Sanitation Law. Lagos State Environmental Pollution control Law etc.

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Convention on the Prevention of Marine pollution Damage, 1972

African Convention on the Conservation of Nature and Natural Resources, 1968

International Convention on the Establishment of an International Fund for the

Compensation for Oil Pollution Damage, 1971.

Convention on Civil Liability for Oil Pollution Damage 1969

United Nations Declaration on Human Environment, Stockholm 1972

Convention on Biological Diversity (Rio Conference)

Generally speaking, the aforestated treaties serve as legal instruments that guarantee

sustainable development both at the international and domestic level.61 Albeit, a cursory

glance at a few of these treaties will do adequate justice to the crux of this essay.

African Convention on the Conservation of Nature and Natural Resources, 1968

Although the definitive aspect of the Charter62 defines natural resources as “renewable

resources, that is soil, flora and fauna” thereby excluding crude oil, it is imperative to

note that crude oil pollution has a deleterious effect on soil, fauna and flora. Therefore the

Charter becomes indispensably relevant to oil pollution in a sense.

The Charter was signed by the Heads of State of about forty African countries (including

Nigeria) in Algiers (Algeria) on the 15th day of September 1968 and ratified by Nigeria in

June, 1974. The ratification of this Charter doubtless is a great step but it does not

become domestically enforceable in Nigeria unless enacted into law by an act of the

National Assembly.63

Convention on the Prevention of Marine Pollution Damage

Marine pollution arises chiefly from variegated sources, including the operation of

shipping, dumping at sea, activities on the seabed and the cacophonous effects of

pollution on the and entering the seas.64 Multitudinous treaties- bilateral, regional and

61 Ebirm O. & Ndukwe C.N. “Nigerian Law on Oil Pollution” 2008 (Spectrum Books Ltd) p.8662 Article 11163 On binding nature of international documents and their attendant effects see Abacha v Fawehinmi (2000) 6 NWLR pt 660 p.24664 Art 194 and 207 Convention on Law of the Sea, 1982

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multilateral, dealing with such issues and some of the more significant of them in the

field of pollution from ships will be expatiated albeit with conscious brevity.

The International Convention for the Prevention of Pollution of the Sea by Oil, 1954

prohibits the discharge of oil within 50 miles of land and has been essentially superseded

by the International Convention for the Prevention of Pollution from Ships, 197365

whose prime objective is concerned with the forms of non-accidental pollution from ships

apart from dumping.

Pursuant to Article 211(2), UN Convention on Law of the Sea, 1982; States are to

legislate for the prevention, reduction and control of pollution of the marine environment

from vessels flying their flag or of their registry. Such rules are to have the same effect at

least as that of generally accepted international rules and standards established through

the competent international organization.66

The Convention on the Establishment of an International Fund for Compensation

for Oil Pollution Damage was adopted in 1971 and enables compensation to be paid in

certain cases not covered by the Civil Liability Convention.67 It is of particular pertinence

to note that that The Convention and Protocols of 1976 and 1984 respectively were

superseded by a protocol of 1992 and the said Convention ceased to be in force on the

24th of may 2002. The 1992 Protocol established a separate and distinct International oil

pollution compensation Fund also known as the 1992 Fund.

The Maintenance of Cleanliness Law, 1984 has equally been promulgated and is meant

to be implemented via Inspectors, the Police and Voluntary Cleanliness Trustees. The law

prohibits the disposal of any refuse in public areas, including left on the beach or thrown

overboard a vessel in the sea within territorial waters.

65 Also known as MARPOL Convention66 The International Maritime Organization. See also www.imo.org for robust details67 P. Birnie and A. Boyle, International Law and the Environment, 2nd edn, oxford, 2002

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Conclusively, it is apposite to state that multifarious international Statutes exist on this

subject but only a succinct attempt at perusing these relevant statutes have been so made.

Thus it is believed, and rightly so, that International Conventions have affected the

Nigerian society and has contributed in no small measure to curative means of attaining a

tenable legal regulatory framework in curbing the oil spillage scourge. As Nigeria stands

as a signatory to these treaties, they invariably become part and parcel of our Municipal

laws.68

THE STANCE OF THE COURTS IN OIL SPILLAGE CASES

The era of growing environmental awareness was a fall out of the damage done to the

environment largely as a result of industrial activities. Pollution was a major problem in

the past but in recent times its grim reality has proved more colossal than previously

thought. It is well settled that the Law must not be static and its inherent dynamism

should be felt. Thus, the pertinent question is what posture does the Court (as temple of

justice) take on the issue of oil spillage? Or what distinct role do judges play in

checkmating the oil spillage scourge?

The stance of the courts in cases of oil spillage will for the purpose of this paper be

grouped into three (3) broad categories, viz; Negligence, Nuisance and Strict Liability.

To succeed in an action based on Negligence, the plaintiff has the onus of proving upon

preponderance of evidence, that the defendant owes him a duty of care.69 The plaintiff

further has to discharge the onerous duty of proving that the Defendant is in breach of the

duty of care and that the breach was the proximate cause of damage suffered.70

The case of Shell Development Company Ltd v Otoko,71 is aptly illustrative. Here, the

respondents/plaintiffs claimed for damages being and as representing compensation

payable by the appellants/defendants for injurious infection of and deprivation of the use

68 This is in so far as they remain consistent with S.1(1) Constitution of the Federal Republic of Nigeria 1999 and have been incorporated into our legal system through Legislative measures.69 Osipitan, “Problems of Proof in Environmental Litigations.” In Environmental Laws in Nigeria including Compensation, J.A. Omotola (ed.) p. 11570 Per Lord Wright in Luchgelly Iron and Coal Company v Mullan (1934) AC 2571 (1990) 6 NWLR pt. 159 p.693

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of Andoni river and creeks as a result of the spillage of crude oil caused by the

defendant’s negligence.

The appellants contended that the spillage polluted the Andoni river and creeks with

resultant damage to their properties; they alleged that their juju shrines were desecrated,

that drinking water in two wells owned by them were polluted; that fish and other living

creatures died and that their economic life was brought to a standstill. It was alleged that

the spillage was caused by the act of a third party, which removed a screw from the

manifold where the leakage occurred. The High Court ruled in the plaintiff’s favour. On

appeal, the appellants sought inter alia that the Court of Appeal determine whether the

defendant was liable in negligence..

Amosun JCA stated that there is credence in the appellants story that the said screw is not

one that would normally fall out of place and that anybody who can handle a spanner can

unscrew the valves. Negligence must be shown to be the proximate cause of the damage.

The appeal thus succeeded with cost awarded to the appellants.

Akin to this decision is the case of Jumbo v Shell Petroleum Development Company

Ltd72 where the appellate court dismissed the appeal since the appellant and his witnesses

failed to prove negligence and was not relying on the doctrine of res ipsa loquitur.73 It is

readily discernible from the above cases that the onus of proof of negligence is apparently

insurmountable on several fronts for the victims of oil pollution in Nigeria.

The Common Law tort of Nuisance is one of such products of an attempt by the law to

balance interests and enforce reasonableness in our imminent milieu. Nuisance as a cause

of action arises where a person’s act is harmful and unreasonable tot the degree that it

interferes with his neighbour’s possession or use and enjoyment of land (Private

nuisance). Public nuisance on the other hand, occurs whenever a person’s activity is

harmful to the general public or a particular section of the public. The precipitous rise in

72 (1999) 13 NWLR pt. 633 p.5773 See again the case of Chinda v SPDC (1974) 2 RSLR p.1.

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oil exploration and industrialization has birthed a cornucopia of litigations on nuisance,

but with regards to oil spillage, have they really succeeded?

It is worthy of note that the Attorney-General is the only proper person to sue in a case of

public nuisance. It is indeed disconcerting to assert that most of these actions in public

nuisance (oil spill cases) fail because they are brought by private persons. Thus the

Nigerian courts have time and again followed unrepentantly the common law rules and

principles and have always ruled that these plaintiffs lacked locus standi74

A cursory appraisal of the outcome of Amos & 4 Ors v SPDC75 speaks ample volumes.

The plaintiffs claimed from the defendants special and general damages for nuisance and

for unlawful damages caused by the defendants by deliberately or negligently blocking

for about three months the KOLO Creek. The issue before the Supreme Court was

whether a party can sue for damages for nuisance (public nuisance) without proof of

special damage. The Learned Chief Judge had, at the trial stage, held that the Kolo Creek

is a public waterway and its obstruction constituted a public nuisance; the plaintiffs failed

to prove any damage suffered over and above that of the general public and the claim

must not succeed. The Supreme Court, in dismissing the Appeal, affirmed the ruling of

the trial Judge.

A nippy peek at the nexus between oil spillage and Strict liability becomes germane at

this juncture. It is hackneyed to note that the occupier of land who for his own purposes

brings on his land and collects and keeps there anything likely to do mischief must keep it

in at his peril and if he does not do so is prima facie answerable for all the damage which

is the natural consequence of its escape76. This age-long principle was a judicial redress

for the hazards arising from highly advanced technology as evinced in the ground-

breaking ruling in the case of Rylands v Fletcher.77

74 It is the legal standing or capacity to appear in court.75 (1977) 6 SC p.10976 However he may excuse himself by showing that the escape was a consequence of force majeure or act of God etc.77 (1866) LR 1EXCH, 165 at 265

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According to the Rule in Rylands v Fletcher, liability is confined to the accumulation of

physical objects which escape and damage. Also there must be an accumulation of things,

such as water, gas, chemicals or explosives.78 There must also be an escape of the

accumulated matter from the defendant’s land to a place outside the land and probably, a

plaintiff who is not an occupier of adjoining land may sue under the rule.

A closer examination of these requirements would be very appropriate vis-à-vis an

analysis of the application of the said rule so far in Nigerian oil spillage cases. In

Umudje v Shell BP,79 the plaintiffs made a claim from the defendants as compensation

for the damages done to the plaintiff’s farmlands, fish ponds, and lakes by the defendants

through their agents. The plaintiffs explained in their statement of claim that the

defendants caused crude oil to escape and sip into the plaintiff’s fishing ponds thereby

causing damage to the fishes and hindered fishing in the said lakes and ponds. The source

of the pollution was found by the trial court to be crude oil, previously collected in a pit

burrowed by and in control of the appellants (Shell BP).

The plaintiffs/respondents brought this action under the rule in Rylands v Fletcher. The

Learned trial judge gave judgment in favour of the plaintiffs, the defendants appealed

against the judgment on the ground that the learned trial judge failed to observe that in

law, fishes – ferae naturae could not be subject of private ownership and accordingly, the

plaintiff could not claim damages for the alleged acts of the defendants which frustrated

their expectation to catch fishes in the ponds.

The Supreme Court held per Idigbe JSC that;

As already explained liability on the part of an owner or the person in control of an oil waste pit such as the one located at location E in the case in hand exists under the rule in Rylands v Fletcher, although the escape has not occurred as a result of negligence on his part. There is no evidence of any novus actus interveniens in regard to the escape of the crude oil waste, nor is there any evidence that respondents

78 Kodilinye and Aluko, Nigerian Law of Torts, p.11679 (1975) 5 UILR pt.1 p. 115

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either consented to or in any way contributed to the collection of the crude oil waste in location E, nor is there any evidence of justification, under any statutory provisions for collection of the same by the appellants who cannot therefore avail themselves of any of the exceptions to the rule aforesaid. The appellants are therefore liable under the rule in Rylands v Fletcher for changes arising from the escape of oil waste from the oil pit.

In respect of liability for loss of fishes to the pollution, the Apex court held that animals

ferae naturae may be the subject of qualified or limited property either on account of

confinement or their inability to escape from the land of the possessor. It was found as

fact in this case that the plaintiffs took advantage of flood season to fish in their ponds

and lakes because such season marks a voluminous ingress of fishes into those inland

water bodies.

On the possibility of maintaining an action in negligence as well as the rule in Rylands v

Fletcher, the Court remarked that “it is well settled that a single act of a defendant may

give rise to liability under both heads of tort, i.e. negligence and the rule in Rylands v

Fletcher.

Flowing profusely from the foregoing, it may be right to assert that Crude oil is in the

category of “anything likely to do mischief if it escapes”80 and in like manner could be

regarded as dangerous to the environment if allowed to spill. The Crude oil, whether

brought on land by means of a pipeline as in SPDC v Amaro81 or by dumping in a waste

pit as earlier gleaned in Umudje v Shell, was artificially accumulated on land and is in

the category of “things artificially brought or kept upon the defendant’s land.”82

It is heart-warming to note that the doctrine of Strict Liability (which has found its major

anchor in the Rylands Rule) has also been enacted into some statutory documents, among

them are the Oil Pipelines Act, Petroleum Act, federal Environmental Protection Agency

Act, Minerals Act etc. the extant provisions of these statutes which create the statutory

80 Rylands case (Supra) 81 (2000) 10 NWLR pt 675 p.24882 See Bartlett v Tottenham (1932) 1 Ch. P.114 @ 131 per Lawrence J.

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duty of strict liability for the operator/owner of the relevant facilities . For example, a

holder of a (pipeline) license shall pay compensation to any person suffering damage

other than on account of the malicious act of a third party, as a consequence of any

breakage or leakage from the pipeline or an ancillary installation, for any damage not

otherwise made good.83

The above statutory provision is closely knit with and brings to the fore the Polluter

Pays Principle. The principle is aimed at ensuring that the costs of environmental

damage caused by polluting activities are borne in full by the person responsible for the

pollution.84 The principle is a modern input in the field of Environmental law that fixes

liability for pollution on the polluter simpliciter. It is by nature a policy thrust urged on

the executive branches of government to ensure that liability for pollution is borne by the

polluter, and such polluter is not to be permitted to shift the liability to pay any other

class of the economic structure save consumers.85

Logically flowing from the above it is ostensible that Liability for oil spillage falls on the

operator of the facility as a result of the interplay of certain factors including the various

Legislations imposed by government or any of its agencies and this could extend to the

type of agreement existing between the operator and the contractor under the licensing

agreement. It is equally note worthy that operators of these oil equipments are saddled

with certain duties including the duty to use up-to-date equipments,86 duty to undertake

regular inspection and maintenance,87 duty to avoid pollution88 and duty to pay fair and

adequate compensation (where oil spills have caused damage to persons and properties).89

The underlying principle however for awarding damages is the same as that of warding

compensation, which is to restore the party to the position he was before the spill or

would have been but for the spill. The measure of damages which are classified as

83 S.11(5)(c) Oil Pipelines Act84 Susan Wolf & Anna White “The Principles of Environmental Law”, 2nd ed. p.1685 L. Kramer, Focus on European Environmental Law (London: Sweet and Maxwell 1992) p.24486 See Regulation 25 Petroleum (Drilling and Production) Regulations87 See Regulation 15 Mineral Oils Regulation88 See Regulation 36(d)(e) Petroleum (Drilling and Production) Regulations 89 S.11(5) & 6(3) Oil Pipeline Act

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normal, consequential and prospective covers all the heads of compensation and is

essentially compensatory in nature.90 In Shell Petroleum Development Company v

Tiebo VII91 about 600 barrels of crude oil spilled from the installations of SPDC and

covered the community’s swamp, land, streams, and ponds polluting their source of

drinking water and killed all the fishes in their swamps, thus paralyzing their fishing life

and occupation. Their economic trees like raffia palms were also destroyed. The Court of

Appeal awarded N400,000.00 as special damages for loss and injury to the young raffia

palms and the cumulative sum of N5,600,000.00 as general damages.

CONCLUSION

“The State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”92

In Nigeria, oil pollution has been a recurring consequence of oil drilling and refining. The

overwhelming impact of these operations and the concomitant pollution has been

palpably negative. But considering the utilitarian value of crude oil as the kernel of the

Nigerian economy, it is preposterous, fool-hardy and unrealistic to canvass vociferously

for the non-production of oil. In fact what is sociologically cum legally germane is that

more preventive and precautionary measures be adopted by oil companies and facility

operators on the one hand and the frontiers of legal intervention in checkmating the

subsistence and continuance of oil spills be broadened on the other.

There is no gainsaying the fact that much of the laws, principles and standards

concerning the use, conservation and preservation of the environment and its resources

are globally recognized. An ominous pall is cast on the state of affairs in Nigeria as

licensed operators of oil production in Nigeria are mainly multinational companies which

90 See particularly Shell Petroleum development company v Tarah (1995) 3 NWLR (pt 382) 148 91 (1996) 4 NWLR (pt 445) 65792 Section 20, Constitution of the Federal Republic of Nigeria, 1999

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observe most of the environmental standards, in their operations abroad and yet consider

it expensive, overly cumbersome and inexpedient to replicate same in Nigeria.

This provoking scenario elicits frantic calls for urgent legislative, judicial and executive

proactive action. Oil spillage reduces the quality of life, disturbs and distorts the

community structure and economic configuration of a people; as such the panacea for oil

spillage goes far beyond merely paying compensation and damages. Preventive measures

against oil spills should be stepped up and this will doubtlessly involve a painstaking look

at the Legislative framework under which oil companies operate and the administrative

supervisory mechanism of Key players in the oil sector (Government and non-

government alike).

Presently, it is crystal clear that no single Piece of Legislation in Nigeria deals

extensively and absolutely with the pertinent issue of oil spillage. It is disconcerting to

point out that unstinting reliance is made to the English Common Law in this regard and

as such technicalities (Locus Standi et al) most time frustrate very genuine and good

claims. It is thus overly expedient at this juncture for the Nigerian state to develop

alternative dispute resolution procedures to take care of this volatile issue.

Furthermore, there is no effective supervisory mechanism to ensure that oil operators

comply with the stipulated and clearly laid out statutory duties. The Fines and penalties

meted out to erring persons and corporate entities are likened to patting the backs of these

defaulters and urging them to cause more egregious blunder. It must thus be revised and

adequate punitive measures should be put in place to stifle and reduce to the barest

minimum flagrant violation of these laws.

The reckless operational practice of many multinational companies in Nigeria resulting in

the brazen decimation of our environment is a vicious cycle which must be broken for

sustainable development to be achieved. The right to a healthy environment is an

environmental right. It is a natural and inalienable right. Recently, it was said that the

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right to a healthy environment is an extension of the right to life.93 It is therefore a sacred

and sacrosanct duty of the present generation to preserve the environment so that the

future generation will enjoy a safe and salubrious ambience (Nigeria inclusive).

This essay like any other on this vexed subject matter would not and cannot but serve a

“summons” for an urgent and timeous intervention in protecting and preserving the

environment via the instrumentality of the law, for it is trite to note that the world is in a

continuous flux and so the law must by its inherent dynamism adapt speedily to the

attendant vicissitudes. William Boyd,94 an English commentator par excellence, in a

description of the plight of the Ogoni people of Nigeria stated that;

“The Ogoni’s great misfortune is that their homeland happens to lie above a significant portion of Nigeria’s oil reserves. Since mid-1950s, Ogoniland has been devastated by industrial pollution caused by the extraction of oil. What was once a placid rural community of prosperous farmers and fishermen is now an ecological wasteland, reeking of sulphur. Its creeks and waterholes poisoned by indiscriminate oil spillage and ghoulishly lit at night by orange flames of gas flares…”

The above gory tale and grim picture so aptly evinced by Boyd is a stunning reality; an

irrepressible truth that if left without immediate rapt attention will spell doom for not just

an individual nor village but an entire coastal region. A whole lot needs to be done but

more pertinent to the purport of this paper is the broadening and expansion of legal

frontiers in redressing this abominable wrong. Let Justice not only be done but should

manifestly and undoubtedly be seen to be done.

93 UN Declaration on human Environment, Stockholm Conference, 197294 W. Boyd, “Introduction” in Ken Saro Wiwa, A Month and A Day. Ibadan (Spectrum Books Ltd.) p.x

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