Remedies are available to parties who have been confronted with hazardous contamination or pollution. Lawsuits against responsible parties may be brought under traditional common law theories such as negligence, trespass, nuisance, injunction or award to damages. The remedies are commonly used in environmental suits.
Trespass to Land.
Environment: Trespass to land is an unjustifiable interference by one person with the possession of land of another. This tort may be committed either physically by the person or by his causing an object to intrude on to the land of another which results from his act or omission. Incidentally, this tort has not been directly pleaded in oil pollution cases in Nigeria. This is unfortunate as trespass to land is actionable per se and the plaintiff needs not prove intention of negligence on the part of the defendant to found an action in trespass to land.
All he needs do is to show that oil which spilled from the defendant’s facilities entered his premises and did mischief from which he suffered injuries. Once the court finds this to be true, the only question left to be determined is the quantum of damages or the restoration of the plaintiff’s property.
For an action to lie in trespass, the action that occasions injury must be direct and not consequential. A mere consequential as opposed to a direct injury e.g. by allowing a structure to decay and fall on the plaintiff’s land is actionable, probably in nuisance but not trespass.
Although, we have had a few cases of actions in trespass in Environment or environmental pollution generally, the tort of trespass to land appears not to have been directly pleaded in oil pollution litigation. In Umudge and Anor V Shell B. P. Dev. Co, the claimant alleged that a pollution or whatever classification “spread all over the respondent’s farm and into their lakes and ponds”, destroyed crops and killed fishes in ponds. A clear case of trespass to land especially with respect to the farm lands was made out.
Where action in trespass occasions to a plaintiff, the quantum is cost of reasonable reinstatement since damages is usually diminutive in value to the plaintiff.
Again, in the case of Akinwale V illiasu, the respondents who were plaintiffs before the trial Oyo State high Court, Ibadan Division claimed jointly the sum of twenty thousand naira (20,000.00) being special and general damages for trespass committed by the defendants (appellants on appeal), their servants and workmen in unlawfully breaking and entering into the respondents piece of land situate at ita-Ege ogunfalu Compound, idi-Aro Area, Ibadan and damaging part of the respondents’ building and fence, and perpetual; injunction retraining the appellants from committing further acts of trespass on the said property.
The Oyo State High Court held that the reliefs of the respondents were meritorious and granted same. The court of Appeal also upheld the decision of the trial court. The court of Appeal, on the meaning of trespass and nature of an action in trespass held that trespass is a violation of a possessory right and an action therefore is maintainable in possession or one with a right of possession. The tort of trespass to land appears not to have been directly pleaded in any oil pollution litigation
Nuisance. A nuisance is an act or omission which is an interference with, or disturbance or annoyance to a person in the existence or enjoyment of a right as a member of the public (i.e. in public nuisance) or his ownership or occupation of land or some casement, profit or other right used or enjoyed in connection with land (i.e in private nuisance). Actions in nuisance for oil pollution cases have not been particularly successful as the courts often conclude that the nuisance is of a public nature, redressable only by Attorney – General.
In Seismograph services (Nigeria) ltd V. R. K. Ogbeni, the plaintiff claimed that the shorting operations carried out by the defendants while prospecting for oil caused extensive damage to his buildings. This action failed, as he could not prove the default of the defendants which was not within his knowledge.
However in Adediran & Anor V Inter-land and Transport Ltd.,95 the plaintiff also sued for nuisance due to noise, vibration, dust and obstruction of roads in an estate. In his judgment, Karibi-whyte JSC Stated
“It is well-settled that a nuisance whether public or private is an injury which confers on the person affected a right of action. The individual who suffers injury has a right of action because of the cause of action. 96
Proof of the tort of nuisance depends largely on the nature or type that is whether it is private or public nuisance. In a private nuisance, the plaintiff should show that it interfered with his personal use or enjoyment of land or of some right connected with land. He should also show that the act of interference is on a right, which he does not enjoy in common with members of the public. Consequently, to constitute private nuisance, the plaintiff should show that he suffered damage or inconveniences which is exclusive to him.
Environment: In case of gross violation, interference of a person’s sole right over his land through pollution, the individual has right to sue on his individual capacity either for damages or for an injunction. Private nuisance does not depend upon a physical invasion of the land or interference with exclusive possession. According to pers Ashworth Q. C. in Home Breweries PLC V William Daris and Company. The gist of the action is and unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it. In essence, the whole of the law of private nuisance represents on attempt to preserve a balance between two conflicting interests: that of one occupier in using his land as he thinks fit and that of his neighbor in the quiet enjoyment of his land.
A public nuisance is usually considered to be a crime while private nuisance is always tort. A public nuisance is akin to statutory or common law nuisance. As a result of the above hypothesis that the injury caused by public nuisance, if at all, is one to the public at large.
When there is interference with enjoyment of a right belonging to a person as a member of the public, it is a public nuisance. Public nuisance is punishable with penalty. As stated above, public nuisance is redress able only by Attorney-General. In Patrick Udegbe V A. G. Bendel State, It was held that only the attorney General who is the chief law officer as well as the guardian of the right of the public that can sue in public nuisance.
A failure to bring an action in the name of the Attorney General will thereof, render it procedurally defective and incompetent20 Individual will only have right of action if he can show that he has suffered some particular direct and substantial harm to his person or property over and above that sustained by the community at large; then he has a right of action in tort for nuisance.
Negligence Of Environment
Environment: Negligence is regarded as the single most important cause of oil pollution in the Niger Delta Area and connotes the complex concepts of causation, duty, breach and damages suffered by the persons to whom a duty is owed. However, for an action of succeed in Negligence, it must be established that the defendant was careless or negligent in the exercise of specific duty to take care.98 An aggrieved party may file an action on the tort of negligence in an environmental litigation or under Ryland V Fletcher.
In oil pollution cases, it may require the plaintiff to show that the pollution was caused by the defendant’s failure to observe good oil field practice” and the burden is on him to prove so. This burden is especially difficult to discharge when the plaintiff does not possess the special knowledge necessary to do so.
Environment: In shell Petroleum Development Company of Nigeria V Chief Otoko and others, the plaintiffs sued the defendant for negligence arising from spillage of crude oil which resulted in injurious affection and deprivation of the use of the Andoni River and Creeks. The learned trial judge gave judgment to the plaintiffs. Applying the Rule in Rylands V Fletcher, the learned trial judge said:.
“It is noteworthy that the rule in Rylands V. Fletcher which is alternatively pleaded by the plaintiffs in this case applies to the circumstances of this case. The crude oil which passed through the pipelines could not naturally have been there.
The defendant gathered the crude oil into the pipes and it was a substance which was dangerous and likely to escape. It was not a natural user of land but was brought in there by the act of the defendant. Since therefore it had escaped and caused damage, the defendant is liable in the consequences of this case. In the circumstances of this case, the rule in Ryland’s F Fletcher applies and there was no third party act which caused the escape of the oil”.
The court of Appeal held that the learned trial judge applied the correct law and that his finding was sound.
To maintain an action on the tort of negligence, the plaintiff must prove the following: (a) that there was a duty on the part of the defendant towards him; (b) that the defendant negligently performed or omitted to perform that duty and (c) that such negligent was the effective cause of the injury or damage to the plaintiff. In an action on negligence, the onus is on the plaintiff to establish that the defendant was negligent. Failure to prove these three components could be fatal. In the Judgment of a Dutch court,
Environment, Shell Petroleum Development Company was found guilty negligence in a situation where oil spills have been a long-running source of contention between the oil company, Local people and environmental campaigners, shell was found negligent in failing to prevent the sabotage of the oil spill which was caused by people extracting oil for their own purposes.
The difficulty of proving all the ingredients of negligence has caused victims of pollution to sometimes rely on the principles of Res Ipsa Loquitur. Actually, two conditions are necessary to prove this maxim. The thing that inflicted the damage must be under the sole management and control of the defendant or of someone for whom he is responsible the occurrence must be such that would not have occurred without negligence or want of care.