Environmental Justice Beyond Time Constraints: The FREP Rules and the Enforcement of Human Rights in Nigeria (Part 1)
Limitation periods play a crucial role in ensuring the timely resolution of legal disputes by establishing a specific window within which a party must bring a claim before it becomes time barred. These laws are designed to prevent the prosecution of stale claims, offering clarity and certainty to both claimants and defendants. However, in the context of environmental claims, particularly those related to oil spills, determining when the limitation period begins can be a complex issue. This complexity is further exacerbated by the interplay of domestic Nigerian laws and international human rights frameworks, notably the African Charter on Human and Peoples’ Rights.
This article critically examines the conflict surrounding the application of limitation laws to environmental claims, with a specific focus on oil spill cases in Nigeria. It examines relevant statutory provisions, judicial interpretations, and gaps in the legal framework regarding limitation periods for such claims. The article proposes a rights-based approach to addressing the challenges of limitation periods in the enforcement of environmental claims arising from oil spills, particularly by leveraging the provisions created under the FREP Rules 2009.
The Conflict of Limitation Laws in Oil Spillage Claims: A Critical Analysis of Nigeria’s Legal Landscape
In Nigeria, there exists a significant conflict regarding the appropriate Limitation Laws to apply in cases involving the breach of statutory provisions on oil spillage and the tort of negligence under common law. The issue centers around whether the Limitation Act, a federal enactment, should apply to matters on the Exclusive Legislative List, such as oil spillage, or whether state laws, specifically the Limitation Laws of the state where the breach occurred, should be adopted. This article aims to critically analyse these conflicting positions, which remain unresolved by the Supreme Court.
Constitutional and Statutory Framework
Section 11 of the Oil Pipelines Act deals with issues related to oil mining and spills. The Oil Pipelines Act, a federal law, intersects with Part 1, Item 39 of the Exclusive Legislative List of the Nigerian Constitution, which assigns the federal government exclusive jurisdiction over matters related to oil fields, oil mining, geological surveys, and natural gas. These matters fall within the federal government’s domain, meaning that the National Assembly has the authority to regulate laws governing oil exploration and related activities. Under the Nigerian Constitution, matters in the Exclusive Legislative List fall under the exclusive jurisdiction of the federal government. State governments lack the authority to enact laws that conflict with federal legislation within these areas. It is well established that states do not have the power to legislate on issues within the parameters of the Exclusive Legislative List, as these matters are solely reserved for the National Assembly. However, in practice, questions arise regarding the applicability of state laws, particularly when federal law remains silent on the limitation period for claims arising from issues within federal jurisdiction. This debate is crucial in cases like oil spillage, where defendants often argue that the Limitation Law of the state where the breach occurred should apply.
The Role of State Limitation Laws
The controversy arises from the lack of a clearly defined limitation period in federal laws, such as the Oil Pipelines Act. In the absence of a federal statute specifying a limitation period, a legal debate emerges regarding the applicability of state laws concerning the limitation of actions, especially when the cause of action originates within a specific state. This issue is exemplified in cases where defendants assert that a claimant’s action is statute-barred due to the claimant’s failure to initiate the action within the five-year limitation period established by the Limitation Law of Rivers State. If applicable, this state law would impose a time limit within which the claimant must pursue legal action. The central question, therefore, is whether state limitation laws can govern matters that fall under federal jurisdiction.
Section 16 of the Limitation Law of Rivers State, Cap 80, 1999 states: “No action founded on contract, tort, or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.
Statutory Provisions: Limitation Act vs. State Law
The Limitation Act, a federal statute, does not prescribe a specific limitation period for cases related to oil spills or the violation of fundamental rights. However, the Limitation Law of Rivers State, under Section 16, stipulates that “no action founded on contract, tort, or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.” Similar provisions exist in the limitation laws of most states in Nigeria.
This situation raises a central issue: which statute of limitations applies in this case? While the cause of action undeniably arose within the jurisdiction of Rivers State, it pertains to oil exploration and spillage, which fall under federal jurisdiction. The question is whether the federal Limitation Act, which is silent on this matter, should take precedence or if the Limitation Law of Rivers State should govern this claim.
Judicial Precedents: A Divided Court
The question of which statute of limitations applies to environmental claims, particularly those arising from oil spills, has been the subject of considerable judicial debate in Nigeria. While the Supreme Court has not yet issued a definitive ruling on the matter, several Court of Appeal decisions have provided differing perspectives, with most favoring the application of state limitation laws in the absence of a specific federal provision.
In cases such as Shell Petroleum Development Co. of Nig. Ltd. v. Chief Zedie Williams & Ors and Mrs. Comfort Olufunmilayo Asaboro & Anor v. Pan Ocean Oil Corp. Nig. Ltd & Anor (2006), the Court of Appeal leaned towards applying state limitation laws in instances where federal law does not specify a limitation period. These decisions suggest that state laws may govern actions arising from breaches of federal statutes, especially when the claims are brought within the state’s territorial jurisdiction.
In contrast, the Court of Appeal’s decision in Benson v. Mobil Producing Unlimited (2012) presents a different perspective. In this case, the court ruled that the limitation law of Bayelsa State could not apply to an oil spill claim because the subject matter, oil pipelines, fell under the Exclusive Legislative List. The court reasoned that the Oil Pipelines Act, a federal law, outlines the procedure for claiming compensation for damages caused by oil spills. Since the Act does not prescribe a limitation period, the state limitation law was deemed inconsistent and inapplicable.
The Benson decision reinforces the view that the limitation of actions related to petroleum and oil spills falls under the federal government’s legislative authority. Therefore, only the National Assembly has the power to legislate matters concerning the limitation of actions in this context.
The Current State of the Law
The legal framework surrounding limitation laws is currently divided. While the Benson decision supports the view that state limitation laws should not apply in matters within the federal government’s exclusive jurisdiction, recent rulings from the Court of Appeal suggest that state laws may still be applicable when federal law is silent on the limitation period.
The most recent authority, SPDC v. Dodoye West (2018), favors the application of state limitation laws, particularly when the action is filed within the state’s jurisdiction. This perspective appears to be gaining traction; however, it still awaits the Supreme Court’s final determination.
Until the Supreme Court provides clarity, litigants must navigate these conflicting judicial precedents. A prudent litigant should be prepared for the possibility that a future panel of the Court of Appeal may align with either the Benson position or the more recent pro-state limitation law decisions, pending a definitive ruling from the Supreme Court.
Given the conflicting judicial decisions, it is my opinion that the Limitation Act, being the federal enactment governing matters on the Exclusive Legislative List, should apply to this case. Since the Limitation Act does not specify a limitation period for oil spillage claims or for
fundamental rights actions, the claims made under the statute and the fundamental rights provisions would not be time-barred.
However, the claim based on tort may be subject to the Limitation Act, which prescribes a limitation period of three to five years, depending on the nature of the action. While the Limitation Act is likely the appropriate statute for cases related to oil spills, the application of state limitation laws continues to be a contentious issue.
Until the Supreme Court provides clarity on this conflict, legal practitioners must navigate the varying interpretations when handling oil spill claims and negligence under common law. To address the unresolved conflict effectively, adopting a rights-based approach to tackle the environmental challenges posed by oil spills may be the most suitable solution, especially when the spill infringes on other enforceable rights under Chapter 4 of the Constitution, such as the right to life (Section 33) and the right to human dignity (Section 34). Notably, the Fundamental Rights (Enforcement Procedure) Rules of 2009 effectively remove any limitation periods that typically apply to claims involving fundamental rights.
Moreover, although the Constitution guarantees the right to a clean and healthy environment under Section 20, this right is generally not justiciable due to the limitations imposed by Section 6(6)(c) of the Constitution.
Right to a Clean and Healthy Environment: Interpretation and Enforceability under Nigerian Law
Section 20 of the Nigerian Constitution guarantees the right to a clean and healthy environment. This provision is located within Chapter 2, which is generally regarded as non-justiciable. Section 20 states: “The State shall protect and improve the environment and safeguard the water, air, land, forests, and wildlife of Nigeria.” However, being part of Chapter 2, Section 20 is not directly enforceable or justiciable. Judicial powers in Nigeria are vested in the courts by Sections 6(1) and 6(6)(b) of the Constitution, which empower the courts to adjudicate disputes between individuals or between the government and individuals, specifically regarding civil rights and obligations. Section 6(6)(c), explicitly excludes judicial powers concerning acts or omissions by any authority regarding the fundamental objectives outlined in Chapter 2, including environmental protection goals stated in Section 20.
Section 6(6)(c) reads:
“The judicial powers vested in accordance with the foregoing provisions of this section shall not, except as otherwise provided by this Constitution, extend to any issue or question regarding whether any act or omission by any authority or person, or whether any law or any judicial decision conforms with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter 2 of this Constitution.”
The non-justiciability of Chapter 2 was reinforced in the case of Uzoukwu v. Ezeonu, where the Court of Appeal referenced Section 6(6)(c) to clarify that rights outlined in Chapter 2, while significant, are not directly enforceable in court. Nevertheless, this interpretation is not absolute. Over time, judicial interpretations have evolved, allowing exceptions to the non-justiciability of rights under Chapter 2, particularly when fundamental rights are at risk.
In the landmark case of Olafisoye v. Federal Republic of Nigeria, the Supreme Court addressed a challenge to Section 15(5) of Chapter 2, which pertains to the fight against corruption. While the court acknowledged that the provisions of Chapter 2 are not inherently justiciable, it recognised that they could become so if the National Assembly enacts relevant legislation under its constitutional powers. Justice Niki Tobi, delivering the lead judgment, emphasized that the non-justiciability of Section 6(6)(c) is not absolute and that exceptions may apply. Through the joint interpretation of Item 60(a) of the Second Schedule and Section 15(5), the provisions of Chapter 2 could potentially be rendered justiciable.
Two key exceptions facilitate the enforceability of Chapter 2 rights, particularly those related to environmental protection:
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Legislative Action by the National Assembly:
The National Assembly possesses the constitutional authority to enact laws that endorse and enforce the objectives outlined in Chapter 2. Several significant pieces of legislation implementing Section 20 include:
- The National Environmental Standards and Regulations Enforcement Agency (NESREA) Act (2007): This legislation establishes NESREA as the principal agency responsible for enforcing environmental standards across Nigeria.
- The Environmental Impact Assessment (EIA) Act (1992): This act mandates that environmental impact assessments must be conducted prior to the approval of major projects, ensuring public participation in environmental decision-making.
- The Harmful Waste (Special Criminal Provisions, etc.) Act (2004): This law criminalizes the improper disposal of harmful waste and establishes penalties for environmental pollution.
- The National Oil Spill Detection and Response Agency (NOSDRA) Act (2005): This act ensures prompt and effective responses to oil spills while setting rigorous standards for oil spill remediation.
- The Petroleum Industry Act (2021): This comprehensive legislation includes provisions for environmental protection within the oil and gas sector, requiring environmental remediation efforts and the establishment of a Host Communities Development Trust.
- The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (1983): This act guarantees the right to a clean environment and reinforces the enforceability of environmental rights within Nigerian law.
Through these legislative measures, the National Assembly plays a crucial role in ensuring that environmental rights are not only recognized but actively enforced. This fosters a legal framework that prioritises the protection of the environment.
The Supreme Court has interpreted Section 20 and its enforceability in various cases. In Attorney-General of Lagos State v. Attorney-General of the Federation, the Court upheld that urban and regional planning tied to environmental protection is a valid means of achieving the environmental goals of Section 20.
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Linkage with other justiciable provisions of the Constitution
When any provisions of Chapter 2 are rendered justiciable by other provisions of the Constitution, the implications become significant. In Centre for Oil Pollution Watch (COPW) v. Nigerian National Petroleum Corporation (NNPC), the Supreme Court linked violations of environmental protection provisions, typically considered rights under Chapter 2 to violations of fundamental rights, such as the right to life and dignity under Chapter 4 of the Constitution. The Court ruled that when environmental harm leads to violations of these fundamental rights, the environmental protection provisions in Section 20 become enforceable. In this context, damage caused by pollution is directly related to the enforcement of fundamental rights.
Justice Chima Centus Nweze provided clarification that Section 6(6)(c) of the Nigerian Constitution does not entirely preclude the justiciability of rights contained in Chapter 2. When a provision in Chapter 2 can be read in conjunction with justiciable rights found in Chapter 4, the court may enforce such provisions. Consequently, the environmental protection rights outlined in Section 20 can be enforced when they intersect with fundamental rights like the right to life and dignity.
Although Section 20 remains part of the non-justiciable Chapter 2, judicial interpretations have evolved to allow its enforcement under certain conditions. These conditions include the enactment of relevant legislation by the National Assembly and the intersection of environmental rights with other justiciable rights in Chapter 4, such as the right to life and human dignity. Significant cases, such as Olafisoye and COPW, illustrate how the courts have developed the enforcement of Section 20, providing remedies in instances where environmental harm infringes upon fundamental human rights. Some scholars argue that the apex Court’s findings in COPW are obiter dicta and do not accurately reflect the current state of Nigerian jurisprudence on this matter, a topic that merits further discussion. Additional cases, such as Jonah Gbemre v. SPDC and Mobil Producing (Nig) Unlimited v. Ajanaku, have also upheld these exceptions.
In the case of Ajanaku, Ogbuinya JCA made significant observations, particularly on pages 51 and 62, stating, “The law mandates an owner/operator of oil pipelines, like the appellant, to maintain and repair them to prevent crude oil leaks that cause damage to human lives and the environment (see Centre For Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518; Section 11 of the Oil Pipelines Act, Cap. 407, Laws of the Federation of Nigeria, 2004). The importance of socio-economic rights in the life of any citizen cannot be overstated. A person’s fundamental right to life, grounded in Section 33 of the Constitution, cannot be fully realised without access to a hospitable environment, including clean water, air, land, forests, and wildlife, rights all guaranteed under Section 20 of the same Constitution. These rights are interconnected and should be enforced together. It is impossible to actualize the right to life if socio-economic rights are neglected. Hence, the award addressed both the financial needs of the respondents and the severe consequences of the oil spill”
Having established that the right to a clean and healthy environment, as enshrined in Section 20 of the Constitution, becomes justiciable when linked to other enforceable rights under Chapter 4 or when made justiciable through legislation enacted by the National Assembly, I will now address the application of limitation laws in relation to the rights guaranteed under Chapter 4 of the Constitution and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
To be Cont’d…
Dear Reader, stay tuned for Part 2 of this article, where we delve deeper into the FREP Rules and the enforcement of human rights in Nigeria.
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