Injunction is a judicial process restraining a person from committing a wrongful act (Prohibitory) or directs the doing of an act (Mandatory)
The granting of an injunction is a discretionary remedy that can either prohibit or restrict a defendant from carrying on an environment damaging activity. Normally, either the activity complained of has to be continuing at the date of the claim, or there has to be a threat that the activity will continue.
Even where the activity has ceased at the time of the trial, an injunction can still be sought if it existed when the claim was brought. Although injunctions are discretionary however, the general principle in the two torts where containing damage is likely:- nuisance and trespass – is that claimants can expect to obtain an injunction unless the activity complained of is not of sufficient gravity or duration to justify stopping the defendant’s action.1 An injunction is not an appropriate remedy in oil pollution claims, based on the economic argument.
The normal alternative to it is damages in lieu of injunction. The principles guiding the award of such damages were succinctly stated by Madarikan J. S. C. in Ibenwelu V Lawal. 2. One of the principles that are relevant here is the one that protects the defendant’s interest, that is, when granting an injunction would be oppressive to the defendant. Another important issue to consider is where the effect of making an award of damages in lieu of an injunction might be to compel the plaintiff to part with his property for money.
There are situations where it is possible to obtain an injunction before the occurrence of the even causing injury or damage. Such anticipatory injunctions do not require proof of environmental damage at all. Injunctions are rarely specific in nature; the court merely sets the standard for the defendant to meet and this standard can be achieved in any way possible.
COMPENSATION AND DAMAGES In INJUNCTIONS
Claimant can demand that the court award damages. The aim of such damages is to place to place the claimant as far as possible in the position they would have been in had the wrongful act not occurred. This could be calculated in two ways; on the cost of clean-up operations necessary to restore the property to its previous state, or the difference between the value of the property as it was after the pollution had affected it, and before. The approach of the court now, however, is to calculate damages according to the latter method. So, where there has not been physical damage, damages will be based on the difference in possible rental value during the period of the nuisance.
In the case of trespass caused by oil pollution affecting farmlands and economic trees, the general principle is to restore the property to its original position. The mode of assessment with respect to economic trees is supported by the case of S. D. Lar v Stirling Astaldi (Nigeria) Ltd (already mentioned).
In private nuisance, the assessment is along the line of trespass which is the difference between the money value and interest before and after the nuisance and thus no provision is made for general damages.
In public nuisance, unlike in private nuisance, general damages are allowed and the respondent is liable to pay the total damages for loss suffered by the plaintiff.
The assessment of damages in negligence is relevant to oil pollution with respect to personal injuries and where death occurs, the assessment is as was recorded in the Texaco Oil Blow-out. The two main factors are (9) the financial loss resulting from the injury and (6) the personal injury, actual shortening of life and mere discomfort of inconvenience. The fullness and the adequacy of damage awarded, as compensation will in each case, depend on proved solid facts of the case and a just and fair assessment of the effect of the injury complained of.15the police of deaths, then report must be first made to the police before commencing civil litigation since it is a case of involuntary manslaughter not punishable with death.
Exemplary or punitive damages can be awarded in specific instance. The basis of such an award is to determine the defendant and others from committing torts which may result in financial benefit to the person responsible. The scope for these damages is, however, limited to cases where there has been oppressive, arbitrary or unconstitutional action by government officials or public servants, or where the defendant’s conduct was calculated to make a profit which would exceed the damages payable.
It is also disheartening to note that the Petroleum Act did nto detine the meaning of the expression “fair and adequate compensation”. Assessment of compensation has been left to the Local Government Chairman. This is most unsatisfactory. In Godspower Nweke of Anor V Nigerian Agip Oil Company Ltd, the Plaintiffs were forced by the Supreme court to accept the amount offered by the defendant as compensation. A more liberal approach was accepted in shell PDC Co. & Farah although both parties were Adldem that compensation had been paid, such was not fair and adequate because it was paid for the crops and economic trees at the time of damage. No compensation as paid for the damage to the land. The compensation as paid for the mange to the land. The compensation to be fair and adequate all facts relating to the magnitude of damage even to the land-ought to have been explained and agreed as the basis for gratification. Court of Appeal awarded damages as follows:
1. Loss of Income - N2,371,307
2. Social Effect/General - N250,000 Inconvenience
3. Rehabilitation of land - N22,000,000
In Shell PDC CO. (Nig) Ltd V Tiebo VII,20 the Court of Appeal confirmed the lower court’s awards of N400,000.00 as special damages and cumulative sum of N5,600,000.00 awarded as general damages for a 1987 oil spill. These are very encouraging trends in judicial attitude