By Mbanasor, Victoria Chinyeaka

Abstract

The Nigerian juridical attitude is a rather demoralizing one for environmental litigants and activists alike. It is in fact, a disappointing departure from one of the fountains of justice flowing living principles as guideposts from which the judiciary drinks from in the dispensation of justice. This guidepost is the most instructive directive that the spirit of justice dos not reside in forms and formalities, nor in technicalities, nor in the triumph of successfully picking one’s way between pitfalls or technicalities, but in the substance of the matter to be examined.[1] However, Nigerian courts in sheer disregard of this principle, often deprive litigants of the right to access justice due to reliance on certain exclusionary technicalities, such as the issue of locus standi. This Article critically interrogates the concept of locus standi in environmental litigation in light of the judicial attitude to it and the challenges it portends to litigants. In the final analysis, this article shall recommend solutions to this dilemma.

Key Words: Locus Standi, Environmental Litigation, Litigants, Judicial Attitude, Nigeria.

1.0. Introduction

There is a cynical parlance in the legal sphere to the effect that where there is a wrong, there is a remedy-ubi juis ubi remedum. However, the application of this parlance is not absolute in that such person must be clothed with the garb of a capacity to sue; a capacity that has overtime found expression in the Latin term “locus standi.” In the context of environmental justice in Nigeria, locus standi connotes the ability of an individual or group to bring a case before the court on grounds of environmental damage or harm caused to them or the community by a defaulter.[2] The Black’s Law Dictionary defined it as a place of standing (to sue) in court. A right of appearance in a court of justice, or before a legislative body, on a given question. The principle is a restrictive common law tool developed in the landmark UK case of R v IRC ex parte National Federation of Self-Employed and Small 15 Businesses,[3] where the House of Lords upheld the test of sufficient interest as a prerequisite for competently invoking the jurisdiction of the court, to insulate the courts from floodgates of suits from interlopers who have remote or ill-grounded claims without “sufficient interest.”

In Thomas v Olufosoye,[4] the supreme court per Obaseki (J.S.C as he then was) gave the concept a judicial breath when it stated that the core of locus standi is that it focuses on the party seeking to get his complaint before the court and not on the issues he wishes to have adjudicated. Hence, intending litigants must have the capacity to institute legal proceedings on matters that sufficiently touch directly and personally on their interest, in that they are substantially affected or likely to by the action or omission in question, and not merely that they fall within the class of persons in whose general interest that statute was passed.[5] Similarly, in Odimegwa & Ors v Ibezim & Ors,[6] the supreme court directed thus:

“The test of sufficient interest is whether the party seeking for the redress or remedy will suffer any injury or hardship arising from the litigation. If the Court is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the like connected with it, whether present or future, ascertained or potential; provided that the possibility is not too remote, and the question of remoteness, depends upon the purpose which the interest is to serve.”

This paper examines the operation of locus standi in environmental litigation through a critique of the judicial attitude to the application of the principle. This paper asserts that environmental wrongs carry with them special species of implication,[7] as court decisions on them does not affect only the litigant, but goes further to create a ripple effect which encourages the defaulter which invariably fuels environmental degradation.

2.0. Insights into the Attitude of the Judiciary: An Overview

Environmental degradation is one of the crises of our time, especially since the oil boom of the 1970s in Nigeria, industrialization and commercialization, including the continuous breaking of C02 records. Consequently, laws and policies have been enacted to address the inevitable damage these adverse environmental activities may cause on the environment, lives and properties. In other words, the import of the diverse environmental frameworks is that they, amongst other things, provide the promise of redress and the platform for such to affected or likely-to-be-affected individuals. At the forefront of these laws are the concomitant force of section 6(6)(b) which vests the power of adjudication of cases on the courts, and section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its impartiality and independence.

The National Environmental Standards and Regulations Enforcement Agency Act 2007, the Environmental Impact Assessment Act 1992, the Oil in Navigable Waters Act 1969, the Minerals and Mining Act 1999, the Petroleum Industry Act 2021, the Harmful Waste (Special Criminal Provisions etc) Act, and other relevant environmental instruments also empower individuals affected by any form of unlawful environmentally deleterious activity, such as water pollution in form of indiscriminate sewage disposal, oil spillage, disposal of untreated hazardous substances and effluents into water bodies; land pollution, noise pollution, etcetera, to approach the courts for redress. Accordingly, complainants may appeal from the administrative body or bodies implementing the provisions of the Act to the courts for review of either the findings of fact, or of law, or of both.[8] Thus, aggrieved individuals are empowered under the law to seek judicial intervention once they are faced with environmental issues or grievances, either through civil claims or criminal actions. Unfortunately, the concept of locus standi constitutes a bar to the exercisation of this right afforded by the Constitution and other relevant enactments.

Prior to the introduction of public interest litigation, called “citizens suit[9],” the attitude of the judiciary was more emphatic of whether the rules of procedure were followed by environmental law litigants than it was of the plight of the litigants and the substance of the matter instituted. This was especially the case for pollution victims of the rural parts Niger Delta regions and other oil producing states in the South-south zone who are unable to institute environmental claims themselves as a result of financial impediments, illiteracy or ignorance of their right to approach the courts. Thus, other well-meaning indigens or residents who feel affected by such degradation or in fright of the tendency of such act to become disastrous to a particular community if continued, institute environmental degradation proceedings to protect the community and those affected. However, due to undue attachment to the technicality of locus standi by the courts, their pursuit of justice gets defeated. In other words, when it comes to environmental litigation in Nigeria, the courts are adamant on the requirement that a litigant who sues for damages arising from an environmental denigration by an individual or corporation, must show that he suffered damages.[10] In Shell Petroleum Development Company Nig. Ltd v Chief Otoko and Others,[11] the respondents who were plaintiffs at the Bori High Court in Rivers State claimed the sum of N499, 855.00 in a representative suit as compensation payable to the defendants (appellants herein) for the deprivation of use of the Andoni Rivers and creeks as a result of crude oil spillage. The Court of Appeal held that it is essential that the persons who are to be represented and the person(s) representing them should have the same interest in the cause of matter, and that given common interest and a common grievance a representative suit would be in order, if in addition to the relief sought, it is in its nature beneficial to all whom the plaintiff proposes to represent. The Court rejected and dismissed action.

Another furnishing example is the notorious case of Oronto Douglas v Shell & 5 Ors[12] where the plaintiff brought an action that the provisions of section 7 of the Environmental Impact Assessment Act which requires all environmental impact assessment submitted by a proponent to be made available to members of the public for comments before the Agency charged with environmental protection allows the take off of such project, had not been met by the proponents of the Nigerian Liquidified Natural Gas Project. The defendants contended through a preliminary objection that, the plaintiff lacks locus standi in the matter and therefore cannot institute the action. The Court, per Belgore C.J. (as he then was) in concurrence with the arguments of the defendants, dismissed the plaintiff’s suit holding inter alia, that the plaintiff lacked locus standi to initiate the suit since he had shown no prima facie evidence that his right was affected or any injury caused to him, or that he suffered any injury more than the generality of the people.

This decision has been regarded as a rape on the quest for citizens’ rights in the enforcement of the environmental right, as the decision amounted to forcing the citizenry to stand by and watch not only the pollution of their environment but also an unwarranted breach of the law.[13] Here, the court lost yet another opportunity to make a resounding and consequential pronouncement in respect of the pursuit of justice on environmental issues, hence justice was lost. However, on appeal in 1988,[14] the decision was quashed on the ground that the lower court misdirected itself when it arrived at its decision before the filing of pleadings, but no pronouncement was made as to the rightness or otherwise of the Federal high Courts ruling on locus standi.

Similarly, in Environmental Rights Action/Friends of the Earth Nigeria & Another v. Nigerian National Petroleum Corporation[15] where the plaintiffs, who were environmental rights activists, challenged the issuance of an oil prospecting license to the Nigerian National Petroleum Corporation (NNPC). It was held that the plaintiffs lacked locus standi because they had not shown that they had suffered any special injury or damage that was different from the injury or damage suffered by the public.

These caselaws, beyond shedding light on the operation of locus standi in justice dispensation, lays solid insight into the attitude of courts to environmental litigants and how the last hope of the common man and woman has used the instrumentality of locus standi to limit access to justice in environmental cases in Nigeria. In many cases, citizens and civil society groups are denied the right to challenge environmental violations because they cannot demonstrate that they have suffered any special damage or injury that is different from the damage or injury suffered by the public. This effectively prevents them from seeking redress for environmental harm caused by corporations and other entities, and contributes to the continued degradation of these environments especially by oil miners and gas flarers who pollute the surroundings with impunity knowing that their actions cannot be successfully challenged in court due to procedural inclinations.

3.0. The Environmental Litigant’s Dilemma.

The attitude of Nigerian Courts to environmental litigation has enormous implication on the litigants.

The first is that it creates a lack of confidence in the system which can create disastrous effects. This is because where courts unduly rely on locus standi to short-circuit the course of justice, litigants become frustrated and ultimately lose confidence in our legal system. And one can imagine what doom that could spell to the safety of our environments, not to mention how it can push victims into a place of rebellion, as seen in the Niger Delta regions where unsuccessful litigants and frustrated communities have had to resort to violence, vandalization of oil pipelines, bunkery and other vices to drive home their grievances. Although the concept of locus standi finds justification in the fact that it is a necessary evil against litigation bloodhounds who would harass and waste the time of the court with unmeritorious cases which do not affect them, nevertheless, its application should be done cautiously and deployed in the most appropriate circumstances.

To wit, the decision of the court in Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation[16] where the court took a liberal approach is preferable.. Here, the plaintiff, an NGO whose objective inter alia is to ensure the restoration and reinstatement of the environment, claimed for the restoration and reinstatement of the Acha Community of Isukwuato Local Government Area of Abia State affected by oil spillage emanating from the negligence of the defendant, especially the people of the Ineh and Aku streams whose environment was polluted by the spill; provision of potable drinking water for the community and the treatment/compensation of the victims of the spill.

The defendants/Respondents filed a preliminary objection challenging the locus standi of the Plaintiff/Appellant to invoke the court’s jurisdiction. The trial court found for the defendants and struck out the suit for want of locus standi. However, on appeal, the Supreme Court in a commendable landmark decision allowed the appeal and held that an NGO has the requisite locus standi to sue in an environmental matter. The apex court went further to state that the meaning of a person under the Interpretation Act extends to ‘anybody’ or ‘persons corporate’ or ‘incorporated,’ and enjoined that the lower courts should be judiciously cautious in determining environmental issues where locus standi is invoked, as other common law jurisdictions like the United Kingdom, India, Canada, and Australia have long departed from a restricted and rigid application of the doctrine of locus standi.[17]

The profound impact of this case is in twofold, in that it has helped put the future of both environmental litigant and that of environmental protection on the right course and rekindled confidence in the judiciary as the last hope of the common man. As succinctly adumbrated by Justice Nweze J.S.C (of blessed memory) who delivered the lead judgment:

“…there is considerable force in the view that it is by liberalizing the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law, in all, then, I take the humble view that, in environmental matters, such as the instant one, NGOs, such as the plaintiff, in this case, have the requisite standi to sue. After all, as Dr Thio opined, and I agree with the erudite author, the “judicial function (is) primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public…”

Another commendable case in point, is the notable Ijaw Youth Council v Chevron Nigeria Limited[18] where the Portharcourt High Court upheld a public interest litigation, which involves using the courts to address environmental injustice. The suit alleged that Chevron had caused widespread environmental damage in the Niger Delta, including the destruction of fishing grounds, loss of livelihoods, and health problems. The court ruled in favor of the plaintiffs and awarded damages to the affected communities. However, whilst the judicial approach in these later cases are applaudable, they nevertheless constitute a small fraction of the overall environmental abuse victims and litigants denied justice on the basis of locus standi.

Secondly, undue reliance on locus standi often times leads to miscarriage of justice, or its subversion therefrom. Kayode Eso J.S.C[19] (as he then was) emphasized this point in State v Salihu Mohammed Gwonto[20] where he stressed that the court has for sometime now laid down as a guiding principle in that it is more interested in substance than in mere form. To him, justice can only be done if the substance of the matter is examined, and reliance on technicalities leads to injustice. Oputa J.S.C (as he then was)[21] further elucidated this point when he said that the picture of law and its technicals rules triumphant and justice prostrate may no doubt have admirers, but but the spirit of justice does not reside in forms and formalities, nor in technicalities, nor in the triumph of the successfully picking one’s way between pitfalls or technicalities. Therefore, the courts should listen to any person whose circumstances of an oppressive or hostile nature exist and where rights of the citizens guaranteed under the law are curtailed, invaded or breached by non-compliance with relevant environmental law regime.

Finally, undue hinge on locus standi by the court leads to human right violations in some cases. Section 20 of the Constitution embodies a reassuring and reinforcing provision, to the effect that: the state shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria. This provision lays the foundation for the basis of environmental rights as human rights in Nigeria, as rendered justiciable by the African Charter on Human and Peoples Rights and section 12 of the constitution. However, these rights bearing on citizens’ right to a safe, favourable and healthy environment in Article 24 of the African Charter, alongside other incidental rights, such as the right to dignity of the human person and the right to life operates only to the extent to which the courts allows. This is because failure to recognize the environmental right in Section 20 and address aggrieved parties without the undue barrier of locus standi, may be an impediment to their ability to bring an interdict application successfully and invoke their right.

To this effect, the learned Environmental law writer, Akpofurere[22] enjoins that it is imperative for the courts to aver their minds to Principle 10 of the Rio Declaration on Environment and Development 1992 which admonishes that environmental issues are best handled with the participation of all concerned citizens at the relevant level, and further obligates States to facilitate and encourage public awareness and participation by making information widely available, including effective access to redress and remedy from judicial and administrative proceedings. This reflects the spirit and letters of our law as seen in section 20 of the constitution. But what is law without implementation?

In Shell Petroleum Development Company (SPDC) v. Chief Gbemre & Others,[23] Chief Gbemre and other members of the Itsekiri community in Delta State against the SPDC instituted an action in court, alleging that the defendant’s oil exploration activities had caused environmental damage to their community and violated their human rights to a safe and healthy environment. The Federal High Court of Benin City Division rightly made a finding that environmental damages infringe on fundamental rights to life and dignity of the human person, hence, the applicants have the locus standi to proceed on a representative action against the defendants.

This is a landmark decision that is in tandem with global trends in developed countries on the fact that All citizens are entitled to the right to healthy environment and it should not matter whether or not it directly affects a person or not. However, on appeal, the court of appeal upturned the decision on the ground that the plaintiffs lacked locus standi because they could not show that they had suffered any distinct special damage from that suffered by the public, and dismissed the suit. This goes to show how much the preconstitutional approach to locus standi still holds sway in our Courts, and unless the judiciary learns to downplay this technicality and adhere to the views expressed by our erudite Justices above, the present and future of of environmental justice in Nigeria will remain bleak.

4.0. Recommendations & Conclusions.

From the foregoing, it is evident that the issue of locus standi poses a barrier to environmental justice in Nigeria as justice is only realizable when litigants or victims are afforded access and opportunity to have their displeasures and grievances addressed by the court. This is because as already established, the judiciary plays a distinct and sacrosanct role in ensuring that the law is applied in a way that is both effective and just as to offer succour to the common man and woman, and punitive as to deter offenders and ultimately protect the environment. And this role is most crucial in these times of porous leadership and socio-economic delicateness. Hence, activist steps should be taken to widen and downplay the requirements of locus standi and its scope therefrom in such a way that technicalities are not used to obstruct substantive justice in an attempt block gold digging litigants; the two should not be conflated. In this respect, the proactive development of public interest suits by the courts, is most commendable and the judiciary is respectfully enjoined to embrace the furtherance of such suits in view of the welfare of the victims and sustainable development principles.

Mbanasor, Victoria Chinyeaka

Bio: Mbanasor, Victoria Chinyeaka is a 500 level law student of the University of Nigeria Nsukka. She has interests in Environmental Law and Climate Policies, Human rights Law, Corporate and Commercial Law, and Technology and Data Privacy Law.

Contact: +2349067571739, Email: [email protected]

[1] Kayode Eso in “Thoughts on Human Rights Norms vis-a-vis The Courts and Justice: An African Court or Domestic Court,” (Lagos, NIALS, 1995)p.26.

[2] Oyetola Atoyeb, ‘Locus Standi as an Obstacle to Environmental Justice in Nigeria’ (2023) accessed 8 December 2023.

[3] [1982] AC 617

[4] [1986] 2 S.C 325

[5] Adekunle Owoade, ‘Locus Standi, Criminal Law and the Rightsbof the Private Prosecutor in Nigeria: Fawehinmi v Akilu and Togun Revisited’ (1989-199) Nigerian Juridical Review Vol. 4, p.111

[6] (2019) LLJR-SC

[7] Emmanuel Onyeabor, ‘Liabilities for Environmental Damage’ Faculty of Law, UNN Lecture Note.

[8] T Okonkwo, ‘Remedies For Environmental Damage Under The National Environmental Standards And Regulations Enforcement Agency (Nesrea) (Establishment) Act 2007 And The Harmful Waste (Special Criminal Provisions, Etc) Act 19881’