LECTURE DELIVERED BY SANITARIAN (BARRISTER) ROTIMI ADEYEMI
MANDATORY CONTINUING EDUCATION PROGRAMME (MCEP)
MODULE 2, BATCH 7; IBADAN, OYO STATE, 7TH – 9TH JUNE 2011
THE ENVIRONMENTAL HEALTH OFFICERS REGISTRATION COUNCIL OF NIGERIA (EHORECON)
Let me first of all commend the Environmental Health Officers Registration Council of Nigeria for organizing this Mandatory Continuing Education Programme (MCEP), which is aimed at sensitizing, updating practising Environmental Health Officers on the evolving environmental development in the field of environmental health, spur consciousness and also equipping them with adequate information to safeguard the environment from the dangers of misuse of as a result of lack of awareness of the environmental laws and consequently non-compliance with these laws.
Economic instruments, informational devices, voluntary agreements, command and control regulations are just some of the techniques modern states use to protect the environment. It is often alleged that environmental offences are not ‘real’ crimes.
They are merely ‘quasi-criminal’ regulatory offences. This paper rejects this view. It argues that environmental crime is a serious and growing problem. It examines some of the constituents of environmental offences and claims that environmental offenders often have very strong financial incentives to break the law. It claims that fines are currently too low and that serious consideration should be given to the increased use of civil and administrative penalties.
It should be noted that the best of environmental standards in the world will be innocuous if they are not complied with or effectively enforced. Compliance and enforcement therefore ensures good environmental governance, and respect for the rule of law. They equally determine the compatibility of environmental standards with practical realities and to a greater extent provide a yardstick for assessing whether the standards should be maintained, amended or repealed.
Like many other developing Countries, Nigeria faces the challenge of environmental health problems. A problem is basically a gap between what is and what ought to be, what we have and what we want or can reasonably hope to achieve. Environmental health problems are therefore, needs perceived to require mitigative action.
The Environment surrounds and affects man, while man also affects the environment. In view of that fact that man affects the environment, the responsibility of taking purposeful collective action, that may harmonise human existence with the rest of the environment falls on man, by putting in place laws that regulates such interaction between man and environment. One of such basic functions of Environmental Health Control is the protection of the environment in which people live and work.
THE HISTORICAL BACK GROUND OF ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT IN NIGERIA
Nigeria spans about 924,000 square kilometres of land area with ecological zones ranging from the dry savannahs in the north, to the water abundant Niger Delta which is rich in energy and mineral deposits. Nigeria possesses a well endowed environment and natural resource base both renewable and non-renewable, and has remained a key player in all global environmental initiatives since the 1970’s.
In 1987, Nigeria took a giant leap by becoming an environmentally conscious nation following the dumping of toxic waste in Koko village, in Delta State. The country was before this incident, ill- equipped to manage such environmental crisis, as there were no institutional capacity and legislations to address such matters.
WHAT THEN ARE THE EXISTING ENVIRONMENTAL LAWS, REGULATIONS AND POLICIES?
It is a law maxim that “ubi societe, ubi jus” meaning that whenever there is Society (Environment), there must be law that will regulate the interaction of man with the environment.
Law consists of a body of rules of human conduct which is imposed upon and enforced among the members of a given state while ‘Regulations’ on the other hand can be defined as a set of rules or orders prescribed for management or government. Regulations have their roots in laws and are put in place to ensure compliance with such laws.
The basis of environmental policy in Nigeria is contained in the 1999 Constitution of the Federal Republic of Nigeria. Pursuant to Section 20 of the Constitution, the State is empowered to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria. In addition to this, Section 2 of the Environmental Impact Assessment Act of 1992 (EIA Act) provides that the public or private sector of the economy shall not undertake or embark on or authorize projects or activities without prior consideration of the effect on the environment.
Law is a body of directions or commands requiring or prohibiting certain conduct, enforceable by legal sanctions. It is also a body of directions or commands that grant authority to a public body or agency or requires such a body or agency to carry out designated powers. Thus, environmental/public health law forbids persons to engage in activities that endanger the health of others, and it specifies government agencies to carry out certain programs to advance environmental/public health and to prevent activities that are harmful to the health of individuals or of the public.
In discussing environmental/public health, it becomes apparent that the "environmental/public" element is the legal component. Without the law (without legal authorization of environmental/public health programs, including the legal authorization and appropriation of public funds), the very existence of the field of environmental/public health is in question.
The topic above will be discussed under sub-topics of legal interventions in environmental health control and court processes.
Yes, the very existence of the field of environmental/public health is in question, because this lecture intends to x-ray the very interventions and contributions of laws, decrees and Acts that are relevant to and are of environmental/public health importance and their impact on environmental/public health.
The lecture is divided into three parts, the first being review of various laws, decrees and Acts of environmental and public health importance. The second part will give a short overview of what is a court, the various levels, the responsibility of an environment regulator to a court, the trial and prosecution of environment violators and court processes, while the third part is on questions and answers on the environment.
LEGAL INTERVENTION IN ENVIRONMENTAL HEALTH CONTROL
Nigeria is committed to a national environmental policy that will ensure sustainable development based on proper management of the environment. This has necessitated the Federal Government of Nigeria passing various laws and regulations to safeguard the Nigerian environment thus promoting positive demands and realistic planning that balances human needs against the carrying capacity of the environment. This requires that a number of complementary policies, strategies, management and approaches are put in place which should ensure, among others, that:
a) environmental concerns are integrated into major economic decision- making process;
b) environmental remediation costs are built into major development projects;
c) economic instruments are employed in the management of natural resources
d) environmentally friendly technologies are applied;
Environmental Impact Assessment is mandatorily carried out before any major development project is embarked on.
This policy, in order to succeed must be built on the following sustainable development principles:
a) The precautionary principle which holds that where there are threats of serious or irreversible damage, the lack of full scientific knowledge shall not be used as a reason for postponing cost-effective means to prevent environmental degradation;
b) Pollution Prevention Pays Principle (3p+) which encourages Industry to invest positively to prevent pollution;
i. The polluter pays principle (PPP) which suggests that the polluter should bear the cost of preventing and controlling pollution;
ii. The user pays principle (UPP), in which the cost of a resource to a user must include all the environmental costs associated with its extraction, transformation and use (including the costs of alternative or future uses forgone);
c) The principle of intergenerational equity which requires that the needs of the present generation are met without compromising the ability of future generations to meet their own needs;
d) The principle of intra-generational equity which requires that different groups of people within the country and within the present generation have the right to benefit equally from the exploitation of resources and that they have an equal right to a clean and healthy environment; and
e) The subsidiary principle which requires that decisions should as much as possible be made by communities affected or on their behalf by the authorities closest to them.
In discussing Legal intervention in Environmental Health Control one may like to ask; what is legal intervention, what is environmental health and what is environmental health Control.
Legal Intervention: is the procedure used in a lawsuit by which the court allows a third person who was not originally a party to the suit to become a party, by joining with either the plaintiff or the defendant.
In this instance, legal intervention implies the legal activism that give meaning to the import and intent of environmental health control and its impact in the taming of the environment in a manner that human activities no longer constitute danger to the environment though the instrumentalities of the laws, bye-laws, decrees, acts, policies and direction of governance.
Environmental Health comprises those aspects of human health, including quality of life that is determined by physical, chemical, biological, social and psychosocial factors in the environment. It also refers to the theory and practice of assessing, correcting, controlling and preventing those factors in the environment that can potentially affect adversely the health of present and future generations, while
Environmental Health Control is those services which implement environmental health policies through monitoring and control activities. They also carry out that role by promoting the improvement of environmental parameters and by encouraging the use of environmentally friendly and healthy technologies and behaviours. They also have a leading role in developing and suggesting new policy areas.
Having explained Legal Intervention, Environmental Health and Environmental Health Control, it is imperative to review some of the laws, decrees and Acts that are relevant to and are of environmental/public health impact in Nigeria. Such national legislations include the followings:
- The Public Health Laws (1917) now known as Public Health Law/Ordinance Cap 164 of 1958;
- The Food and Drugs Decree, No. 35 of 1974;
- The Standards Organisation of Nigeria Decree, No. 56 of 1971;
- The Animal Disease Control Decree, No. 10 of 1988;
- Federal Environmental Protection Agency Act of 1988
f. Harmful Wastes (Special Criminal Provisions etc.) Act of 1988 (Harmful Wastes Act).
- The Marketing of Breast Milk substitute Decree, No. 41 of 1990.
- Environmental Impact Assessment Act of 1992
- The National Agency for Food and Drugs Administration and Control (NAFDAC) Decree No. 15 of 1993.
In addition, there are some subsidiary policies and regulations made pursuant to substantive Laws, Decrees and Acts to safeguard the Nigerian environment. These include:
1. National Environmental Protection (Effluent Limitation) Regulations:
2. National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations;
3. National Environmental Protection (Management of Solid and Hazardous Wastes) Regulations.
4. Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) 2002, published by the Department of Petroleum Resources (DPR).
5. National Environmental (Pollution Abatement in Mining and Processing of Coal, Ores and Industrial Minerals) Regulations, 2009
6. National Environmental (Sanitation and Wastes Control) Regulations, 2009
7. National Environmental (Pollution Abatement in Chemicals, Pharmaceuticals, Soaps and Detergent Manufacturing Industries) Regulations, 2009
8. National Environmental (Pollution Abatement in Food, Beverages and Tobacco Sector) Regulations, 2009
9. National Environmental (Pollution Abatement in Textiles, Wearing Apparel, Leather and Footwear Industry) Regulations, 2009
10. The National Environmental (Wetlands, River Banks and Lake Shores Protection) Regulations, 2009
11. The National Environmental (Watershed, Hilly, Mountainous and Catchment Areas) Regulations, 2009
12. National Environmental (Ozone Layer Protection) Regulations, 2009
13. National Environmental (Noise Standards and Control) Regulations, 2009
14. National Environmental (Access to Genetic Resources and Benefit Sharing) Regulations, 2009
15. National Environmental (Permitting and Licensing Systems) Regulations, 2009. 
16. Abuja Environmental Protection Board (Solid Waste Control/Environmental Monitoring) Regulations 2005
17. Lagos State Environmental Protection Agency Law
18. Akwa Ibom State Environmental Protection and Waste Management Agency Law
19. Ondo State Waste Management Law 2002 among several others.
Of all the laws affecting the environment of particular concern are FEPA law, EIA Act, the National Environmental Practice Regulation and most recently, the establishment of NESRA.
(1) Federal Environmental Protection Agency Act of 1988 (FEPA Act).
The Act established a powerful Agency, a corporate body with perpetual succession and common seal, and gave it power for the responsibility of enforcing environmental protection measures. Its functions include:
- The responsibility for the development of the environment in general and environmental technology.
- Advising the Federal Government on national environmental policies.
- Preparation of master plans for the development of environmental science and technology.
- Promotion of co—operation in environmental science and technology with similar bodies inside and outside Nigeria.
Other relevant sections are: Sections 15, 16, 17, 18 and 19 of the Act.
The following Regulations were made pursuant to the FEPA Act:
i. National Environmental Protection (Effluent Limitation) Regulations:
ii. National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations; and
iii. National Environmental Protection (Management of Solid and Hazardous Wastes) Regulations.
(2) The above federal enactments however were not sufficient in capturing the whole essence of environmental law, thus, creating a vacuum in the effective enforcement of environmental laws, standards and regulations in the country and as a result of this, NESREA was born. In addressing the need for an enforcement Agency, the Federal Government in line with section 20 of the 1999 Constitution of the Federal Republic of Nigeria, established the National Environmental Standards and Regulations Enforcement Agency (NESREA) as a parastatal of the Federal Ministry of Environment, Housing and Urban Development.
(2). National Environmental Standards and Regulations Enforcement Agency (NESREA)
Is there no Conflict with the establishment of NESREA alongside FEPA?
By the NESREA Act, the Federal Environmental Protection Agency Act Cap F 10 LFN 2004 has been repealed.
What Is NESREA?
The National Environmental Standards and Regulations Enforcement Agency (NESREA), an Agency of the Ministry of Environment Housing and Urban Development is charged with the responsibility of enforcing environmental laws, regulations and standard in deterring people, industries and organization from polluting and degrading the environment.
When Was NESREA Established?
The NESREA Act was signed into law by President Umaru Musa Yar’Adua, GCFR, and this has been published in the Federal Republic of Nigeria Official Gazette No. 92, Vol. 94 of 31st July, 2007.
What Is The Mandate Of NESREA?
NESREA has responsibility for the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with, relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines.
What Is The Vision Of The Agency?
To ensure a cleaner and healthier environment for Nigerians.
What Is The Mission Of The Agency?
To inspire personal and collective responsibility in building an environmentally conscious society for the achievement of sustainable development in Nigeria.
What Is The Focus Of NESREA?
• To protect the environment
• Enforcement of Laws and Regulations on the Environment.
• Maintaining Environmental Standards.
• To create environmental awareness
• To engage in partnership in the protection of the environment.
What Are The Functions Of The Agency?
• Enforce compliance with laws, guidelines, policies and standards on environmental matters;
• Coordinate and liaise with, stakeholders, within and outside Nigeria on matters of environmental standards, regulations and enforcement;
• Enforce compliance with the provisions of international agreements, protocols, conventions and treaties on the environment including climate change, biodiversity conservation, desertification, forestry, oil and gas, chemicals, hazardous wastes, ozone depletion, marine and wild life, pollution, sanitation and such other environmental agreements as may from time to time come into force;
What Are The Powers Of The Agency?
The Agency has powers to:
• Prohibit processes and use of equipment or technology that undermine environmental quality;
• Conduct field follow up of compliance with set standards and take procedures prescribed by law against any violator;
• Subject to the provision of the Constitution of the Federal Republic of Nigeria, 1999, and in collaboration with relevant judicial authorities establish mobile courts to expeditiously dispense cases of violation of environmental regulation.
The Federal Ministry of Environment (FME) administers and enforces environmental laws in Nigeria. It took over this function in 1999 from the Federal Environmental Protection Agency (FEPA), which was created under the FEPA Act. FEPA was absorbed and its functions taken over by the FME in 1999. The Federal Ministry of Environment has published several guidelines for the administration of the FEPA and EIA Acts and procedures for evaluating environmental impact assessment reports (EIA Reports). Furthermore, the FEPA Act empowers the FME to require the production for examination of any licence or permit granted to any person, to enter and search any land or building, and to arrest any person whom they have reason to believe has violated any environmental regulation. The approach of regulatory agencies is the prevention of environmental damages, the regulation of potentially harmful activities and the punishment of wilful harmful damage whenever this occurs.
The environmental agencies also adopt the approach of engaging individuals and communities at risk of potential environmental damage in dialogue. The EIA approval process adopted by the FME involves a system of public hearings during the EIA evaluation process and interested members of the public are invited to such hearings.
However, pursuant to the FEPA Act, each State and Local Government in the country may set up its own environmental protection body for the protection and improvement of the environment within the State. Each State is also empowered to make laws to protect the environment within its jurisdiction.
All the States have environmental agencies and State laws; e.g. Abuja, the Federal Capita Territory has issued the Abuja Environmental Protection Board (Solid Waste Control/Environmental Monitoring) Regulations 2005 (“the Abuja Environmental Protection Board Regulations”) which principally governs solid waste control in Abuja. In Lagos State, the Lagos State Environmental Protection Agency Law, was enacted to establish the Lagos State Environmental Protection Agency (LASEPA). LASEPA’s functions include monitoring and controlling the disposal of waste in Lagos State and advising the State Government on all environmental management policies.
Lagos State has also enacted the Environmental Pollution Control Law, to provide for the control of pollution and protection of the environment from abuse due to poor waste management. Akwa Ibom State has enacted the Environmental Protection and Waste Management Agency Law, which established the Environmental Protection and Waste Management Agency. This Agency is charged with responsibilities which include identifying and proffering solutions to environmental protection problems in Akwa Ibom, and monitoring and enforcing environmental protection standards and regulations.
(3). Environmental Impact Assessment Act of 1992 (EIA Act).
The EIA Act was promulgated principally to enable the prior consideration of environmental impact assessment of public or private projects. Any person planning a project/activity which may have an impact on the environment is statutorily required to prepare an EIA Report, and the Report must set out the potential impact of the activity on the environment and plans for preventing/mitigating the same, as well as clean up plans. All such Reports must be approved by the FME. Attached to the EIA Act is a schedule of activities and industries for which environmental impact assessments are mandatory. These include Agriculture, Airport, Drainage and Irrigation, Land Reclamation, Fisheries, Forestry, Housing, Industry, Infrastructure, Ports, Mining, Petroleum, Power Generation and Transmission, Quarries, Railways, Transportation, Resort and Recreational Development, Waste Treatment and Disposal, and Water Supply. Any person who fails to comply with the provisions of the EIA Act commits an offence and is liable on conviction, in the case of an individual, to a fine or to a term of imprisonment for up to five years; and fines are also imposed on guilty firms or corporations.
(4) Harmful Wastes (Special Criminal Provisions) Act of 1988 Cap. 165 LFN.
This Act was enacted in the wake of the Koko saga, Section 1 makes it an offence for any person to carry, deposit, dump or be in possession of any harmful waste on Nigerian soil, inland water or seas. Section 2 of the Act lists parties to the crime, section 3 makes provisions for crimes committed in prosecution of a common purpose and section 5 includes the accessories after the fact. Any person found guilty of a crime under sections 1 to 5 of this Act shall be sentenced to imprisonment for life. And in addition,
i. Any carrier, including aircraft, vehicle, container and any other thing whatsoever used in transportation or importation of the harmful waste.
ii. Any land on which the harmful waste was deposited or dumped; shall be forfeited to and vest in the Federal Military Government, without any further assurance other than this Act. Other relevant sections are: Sections 9, 10, 11, 12 of the Act.
(5) National Environmental Health Practice Regulations 2007
These Regulations came into force in May, 2007 and the purpose of the Regulations as provided under Section 1 inter alia includes:-
(a) To provide a guideline for the enforcement of the regulatory powers in the Act to prevent and abate nuisance and to protect, preserve, and promote the physical, mental, spiritual and social well-being of the public.
(b) To prevent and control the incidence of communicable diseases through environmental health intervention.
The Practice Regulations contains 100 sections in eleven chapters where the duties and powers of Environmental Health Officers as well as the Health Authority are highlighted. This is in addition to two other important chapters which are chapters 12 and 13 on interpretations and schedules respectively.
Sections 8 — 10 of the Regulation provide that all owners of newly built premises are to apply for and obtain a certificate of fitness for habitation, while an owner of an existing premises shall cause to be inspected and be issued with a report, which shall qualify him for the issuance of a certificate of fitness for continued habitation or certificate of fitness for continued use.
Any licensed Environmental Health Officer is given the privilege of undertaking inspection of premises in this regard.
The 3 sections are reproduced below:
8. All owners of newly built premises shall apply for and obtain a certificate of fitness for habitation, as in schedule 1 to these Regulations before occupation from the Environmental Health Authority and for the purpose pay a prescribed fee.
9. (1) An owner of an existing premises shall, upon the commencement of these regulations cause to be inspected and be issued with a report which he shall present to the Environmental Health Authority for the issuance of fitness for continued use”, as in Schedule 1 to these Regulations and for this purpose pay a prescribed fee.
(2) The first certificate issued shall be valid for five years after inspection for every new building, thereafter, the building shall he issued “certificate of fitness for habitation”. “Continued habitation” or for “continued use” for a subsequent period of three years.
(3) After the issuance of a “certificate of fitness for continued habitation” or for “continued use” for a premises., any alteration in such a premises likely to threaten the health of occupants of the premises or their property shall render the certificate already issued for such purpose invalid.
(4) The Council shall from time to time issue operational guideline on the procedure for the inspection and issuance of related certificate, 10 any licensed Environmental Health Officer who undertakes such inspection shall submit a copy of the reports of such inspection to the Environmental Health Authority having jurisdiction over the area.
This function will give the Environmental Health Officers a lot to do. The Government will surely benefit in terms of revenue. But of concern is that we have only a few Environmental Health Officers on ground. The Government will need to employ more hands because in effect all existing premises in the State will have to be inspected. This is in addition to the new ones yet to be occupied and the certificates of fitness as aforesaid be issued. It is not a once and for all affairs. This may be five years in the first instance and thereafter every 3 years.
Section 12 (2) which provides that “Dead bodies shall be sanitarily disposed off or buried only in a place approved by the Environmental Health Authority in charge of the area” poses a new challenge which hitherto has not been tapped.
“Burial Authorization: - No corpse shall be buried in or on any private premises unless the deceased was by customary law entitled to be buried thereon and the person responsible for burying the corpse has obtained a written authorization from a Health Officer for the burial of the corpse.
Section 77 of Chapter 9 deals with Emission limit permit It provides that:-
1. Every owner of a motor vehicle or motorcycle shall cause to be assessed annually the emission permissible status of his vehicle to ensure that the emission level from such vehicle is within the permissible limit.
2. This assessment shall be carried out by a designated person certified by relevant government agency or authority.
3. The Environmental Health Authority, once satisfied that emission level of such a vehicle is within the permissible limit shall issue an Emission Limit Permit to such a vehicle for that year.
4. For the purpose of this section, Environmental Health Officers on duty with other relevant government agents shall have power to stop vehicle and demand for and examine the emission limits permit of such a vehicle or demand that the vehicle be taken to an appropriate facility for assessment or reassessment as the case may be”
Pollution control measure of this magnitude is necessary as its continuous unabatement constitutes danger to health of the public this is therefore a challenge to the Environmental Health Authority not to shy away from the execution of this aspect of the regulation.
Under this same chapter sections 81 and 82 provide for the noise pollution and radiation and health control respectively This is also an area which if not checked by the Health Authority noise pollution shall continue to be hazardous to the public health
Abatement of Nuisance Under Section 92 of the Practice Regulations
There is a similarity in what obtains under section 92 of the regulation and Section 8 of the Public Health Law only to the extent of service with the abatement notice.
Sections 92, 93 and 94 of the Regulation should be combined together and compared with section 8 of the Public Health Law.
Sections 92, 93 and 94 of the Practice Regulations are reproduced below:-
92 (1) An Environmental Health Officer shall if satisfied of the existence of a nuisance, serve a notice, hereinafter called an abatement notice (Schedule XV)
(a) On the person who causes or continuous to cause the nuisance or.
(b) If such person cannot be found on the premises occupier or owner or developer of the premises on which the nuisance was caused shall be served with notice requiring him to abate the nuisance within the time specified in the notice and to execute such works, and to do such things as may be necessary for that purpose and if the Environmental Health Officer thinks It desirable, may specify any work to be executed.
93 (1) Where an abatement notice has been served on a premises or industry and action is not taken within twenty four hours or as stated in such notice and if the Environmental Health Officer believes such a premises poses great danger to the public health, then, the Industry or the premises shall be sealed:
(2) A notice to seal any premises shall be signed by either the Head of the Local Government Environmental Authority, the Head of the State Environmental Head Authority or the representative of the Minister and posted in a conspicuous place in the premises. The notice to seal the premises shall be issued in the appropriate form as contained in schedule XIII to this Regulation; See Annexure A
(3) A notice to seal premises shall be deemed to have been served properly if it is served on an adult person in the premises, fixed in a conspicuous place in the premises or at the registered office of the company;
(4) A premises sealed under this section shall remain sealed under this section shall remain sealed until such a time when the reason for sealing of the premises has been rectified and the premises or any part thereof is no more a threat to Public health or Public safety.
94. Environmental and Hearth safety concerns shall prevail over any other considerations when carrying out environmental Health Services.
All that is required is that once an abatement notice has been served on a premises or industry on which a nuisance was caused and if the Environmental Health Officer is satisfied that the premises poses great danger to the health of the public and an action is not taken within twenty four hours, the premises may be ordered to be sealed, until the time when the officer ordering the sealing is satisfied that the nuisance no longer exist provided that the authority sealing the premises shall depose to an affidavit stating the facts about the nuisances found in the premises and its great danger to health. This must be attached to the Sealing Order Form and brought to a magistrate for approval. Once this is done the premises shall be sealed.
Section 99 of the Regulations provides for the penalty of any person or establishment that contravenes any of the provisions of the Practice Regulations. On conviction, such an offender will be liable to a fine not exceeding two hundred thousand Naira (N200, 000.00).
This penalty is unprecedented when we consider it with the fines we have in all the health laws existing before the Regulation came into effect on 8th May 2007. Since the Public Health Law, the Bye Laws and even the State Waste Management Law, are still subsisting; it is my belief that the court may be faced with the imposition of different penalties even for the same or similar charge preferred against different health offenders.
Among other federal enactments are:
(i) The Oil in Navigable Waters Act, 1968 which specifically states offences, defenses and penalties.
(ii) Petroleum Act (Cap. 350), LFN, 1990.
(iii) The River Basin Development Act (Cap. 269) LFN 1990.et.c
Having reviewed most of the laws, decrees and Acts that are relevant to and are of environmental/public health impact in Nigeria, it is apt to affirm the notorious fact that Nigeria as a nation since imperative to state that Nigeria as a nation since 1917 has had in place laws, decrees and Acts that are relevant to and are of environmental/public health impact and has progressively continued to develop on it.
There is no gain saying the fact that laws carries sanction and people in fear of being sanctioned often respect and obey laws. There has never being any study to give direction on whether our people obey laws, decrees and Acts that are relevant to and are of environmental/public health for the health benefit of fear of sanction and penalty that comes with non-compliance. Suffice to say that when people obey environmental/public health laws, the environment is made safe, healthy and conducive for human activities in a manner that the future use of this environment is guaranteed, while still adequately meeting up with the demand of the present, this is the principle of sustainable development.
I must quickly add that whenever and wherever environmental/public health laws are demeaned, there is always attendant environmental/public health crisis. No wonder that adherence to laws, decrees and Acts that are of environmental/public has hitherto played major role in the successes recorded in our current campaign and eradication of several endemic and communicable diseases like yawn, drancutiasis, smallpox and to some extent onchocerciasis and polio.
The environmental/public health regulators need to move a step further by educating the populace about the importance of obeying these environmental/public health laws both at promoting healthy living and at sustaining the environment. Environmental health officer by training is a health educator and a social mobiliser.
It reminds one of the military administrations of Major Generals Mohammed Buhari (Rtd.)/Tunde Idiagbon (late) as they then was who introduced the “War Against Indiscipline and Corruption”. You will all agreed with me that it was the regime also introduced the monthly sanitation in the country, thus the level of environmental/public health consciousness was at its peak then and every citizen of Nigeria knew what it means to be clean minded as you dare not urinate, defeacate or drop refuse or waste in the public places or indiscriminately.
My dear sanitarians, I want to submit that legal intervention has positively impacted on environmental health management and control. Our courts have also being forthcoming in the implementation, interpretation and prosecution of sanitary offenders or environment violators.
This act of our laws, decrees and Acts makers and the courts have assisted in taming the environment, so that it no longer constitute danger or pose threat to human existence within the ambit of the environment.
The above interventions and impact of laws, decrees of environmental/public health notwithstanding, there is still the danger of policy summersault that is not too healthy in the implementation of environmental/public health laws. These among others include:
a) environmental/public health policies/regulations that do not carry sanctions
b) inadequate re-training of environmental health officers in are of professional challenges
c) lacklustre attitude of court administrators on matter relating to environmental/public health laws
d) inadequate funding of environmental/public health activities
e) poor remuneration of environmental/public health officers
f) poor or inadequate logistics for effective performance of environmental/public health regulators
g) Lack of coordinate cooperation, understanding, intersectoral and interdepartmental synergy among the environmental/public health regulators among several others.
THE COURT PROCESSES.
The Nigerian legal system has had a lot of influence from English law on its growth. Right now, English law forms a substantial part of Nigerian law. However, the Nigerian legal system is somewhat complex, and has several sub-systems.
- At the Federal level, there is a general federal legal system that is applicable throughout the country.
- At the lower levels, each state (including Abuja) has its own legal system.
- Also, local customs are applicable laws in some states.
CLASSES OF LAW: PUBLIC & PRIVATE LAW
Public law is the part of the law that deals mainly with the state. It controls the relationship between different parts of the government, as well as the relationship between individuals and the state. It is criminal in nature.
The main parts of public law are:
The main parts of public law are:
- Criminal Law: the part of the law that deals with crimes being committed and punishment of those crimes. Criminal law is that part of the law dealing with crimes being committed. A crime or an offense is an act or omission punishable by the state, which is already contained as an 'offense' in the written law. Criminal proceedings are carried out mainly to punish the 'wrongdoer'. Criminal proceedings are controlled by the state although private persons may sometimes institute such proceedings.
In the southern states, crimes are classified by the seriousness of the crime, which can be a:
- simple offense
The seriousness of the crime is supposed to determine the length of jail time and/or the bail amount.
(I don't know if the northern states have the same classification or not.)
Southern states also classify crimes by whether they are indictable or non indictable offence is any offence which on conviction may be punished by a term of imprisonment exceeding two years or by imposition of a fine exceeding N500.00. (Section 2 Magistrates' Courts Law, Lagos, 2004.) Indictable offenses are based on being previously written in the law, or have a certain bail amount, or have a certain jail term to be served, while Non-indictable offence is any offence other than indictable offence.
Southern states also classify crimes by whether they are indictable or non indictable offence is any offence which on conviction may be punished by a term of imprisonment exceeding two years or by imposition of a fine exceeding N500.00. (Section 2 Magistrates' Courts Law, Lagos, 2004.) Indictable offenses are based on being previously written in the law, or have a certain bail amount, or have a certain jail term to be served, while Non-indictable offence is any offence other than indictable offence.
- Constitutional Law: the part of the law that deals with
- the structure of different parts of the government
- the relationship between them
- their principal functions
- Administrative Law: the part of the law that deals with the functions of the different government agencies.
- Revenue Law: the part of the law that controls taxation and other sources of government revenue.
Private law is the part of the law that deals mainly with the relationship between individuals. It is civil in nature. Civil law is the law governing conduct which is generally not punishable by state. Civil proceedings are carried out mainly to enable people to enforce their rights and receive compensation for injuries that other people have caused to them. Civil proceedings are usually taken by individuals, but the state may be a party to the civil proceeding.
Private law includes, but not limited to:
Private law includes, but not limited to:
- Law of Contract: when a written agreement is violated.
- Law of Tort: when a non-written agreement is violated.
- Law of Trust: when someone is supposed to deal with property for the interest of someone else.
- Law of Property: this controls title or interest in property. This can be further divided into:
- real property (like real estate)
- personal property, which can be further divided into:
- tangible property (property that can be touched, like stocks, etc.)
- intangible property (property that can not be touched, like copyrights, etc.)
- Company Law: the part of the law that governs the association of different people having a common object like a business undertaking.
- Partnership Law: governs the agreements between two or more people who have agreed to carry on a business and share the profits and losses in predetermined proportions.
- Commercial Law: controls trade and commerce.
- Family Law: deals with family issues such as marriage, parent-and-child relationships, custody, adoption, etc.
- Law of Succession: governs how property is passed on after someone dies.
- Private International Law: deals with cases that involve more than one legal system.
- Law of Evidence: relates to proof that is provided in a court room.
- Law of Remedies: governs the remedies given by the court for an offense.
- Damages: when money is offered as compensation for the offense.
- Mandatory Injunction: when the court orders an individual to perform a certain act.
- Prohibitive Injunction: when the court orders an individual NOT to perform a certain act, or to STOP performing a certain act.
- Specific Performance: when the court orders someone to fulfil an obligation. 
SOURCES OF NIGERIAN LAW
The sources of Nigerian law are:
- Nigerian legislation
- English law which consists of:
- the received English law which was introduced into Nigerian law by Nigerian Legislature, and consists of:
- the common law
- the doctrines of equity
- statutes of general application in force in England on January 1, 1900
- statutes of subsidiary legislation on specified matters
- English law made before October 1, 1960 (independence day) and extending to Nigeria (and was introduced into Nigerian law by the English Legislation, and must be repealed by the appropriate authority in Nigeria before it is no longer applicable in Nigeria, regardless of it's applicability in England).
- Customary law
- Judicial precedents: the principle of law on which a judicial decision is based.
Nigerian legislation consists of:
- Statutes: laws enacted by the Legislature (which is a part of the government). This further consists of:
- Ordinances: laws passed by the Nigerian Central Legislature before October 1, 1954.
- Acts: an enactment made by the Federal Legislature before January 16, 1966 and at the onset of this current democratic dispensation effective 29th May 1999.
- Laws: any enactment made by the Legislature of a region or of a State House of Assembly having effect as if made by that Legislature, or any subordinate legislation.
- Decrees: an enactment made by the Federal Military Government.
- Edicts: enactment made by a military governor, or by the administrator of a State.
- Bye-laws: any enactment made by the Councillors or the Legislature of a Local Government in Nigeria having effect as if made by that Legislature with a jurisdictional scope limited to the Local Government enacting the bye-law.
- Subsidiary Legislation: laws enacted in the exercise of powers given by a statute.
Customary law consists of customs that people in a certain community hold as being binding to them, and recognized as law by them. Customary laws may be relevant for certain ethnic groups, or certain religions, and sometimes even for certain states.
Ethnic customary law for the most part is unwritten, and of course, may adjust with the times. Religious customary law can usually be found in the applicable 'book'.
There are two ways of establishing customary laws before the courts:
Ethnic customary law for the most part is unwritten, and of course, may adjust with the times. Religious customary law can usually be found in the applicable 'book'.
There are two ways of establishing customary laws before the courts:
- By Proof: proving it to the court
- By Judicial Notice: obvious facts that don't need to be proved
Before going further, a few definitions will be made:
- Superior Court: Courts that have 'unlimited' jurisdiction.
- Inferior Court: Courts whose jurisdiction limits depend on the type and value of the subject matter.
- Court of Record: A court which has all matters dealt with documented and same can be recall, if and when the need arises and has the power to punish contempt.
Nigerian courts fall into the following levels:
- Supreme Court: It is established under Section 230 of the 1999 Constitution. It has no original criminal jurisdiction. It only entertains criminal appeals from Court of Appeal – Section 233 (1) of the 1999 Constitution. This is a superior court of record, and the highest level of courts in Nigeria.
- Court of Appeal: It is established under Section 237 of the 1999 Constitution. It has no original criminal jurisdiction. It only exercises appellate criminal jurisdiction from decisions of the State and federal High court, the High Court of the FCT and the Court Martial – Section 240 of the 1999 Constitution. This is a superior court (of record). It is mainly a court of appeal, and has exclusive jurisdiction to hear appeals from the State High Courts, the Federal Revenue Court now Federal High Courts, and other courts as specified by law.
- Courts of Resolution: This is a court mostly in the northern states, and it has the jurisdiction to resolve conflicts between the High Court and the Sharia Court of Appeal., or to decide which court has jurisdiction in cases where both decide that they do not have the jurisdiction.
- Sharia Courts of Appeal: This is a superior customary court of record which hears appeals from the Upper Area courts in cases on the Northern States and the Federal Capital Territory that involve Muslim personal law.
- Customary Courts of Appeal: This is a superior customary court of record which hears appeals from the customary courts in cases that involve customary and personal laws. It is for the Southern states and Federal Capital Territory.
- Federal High Court: The Federal High Court was first established by the Federal Revenue Court Act of 1973 and known under that statute as the Federal Revenue Court. It was restyled the Federal High Court by section 230 (2) of the Constitution 1979, now Section 249 of the 1999 Constitution. The criminal jurisdiction of FHC is provided in Section 251 (20 and (3) of 1999 Constitution. This court operates in at least 9 judicial divisions with more is still being established, and in the end, covers the entire country. The area of each division is determined by the president of the court. Most of its cases have to deal with matters of revenue.
- State High Courts: It is established under Section 270 of the 1999 Constitution. There is a single court for each State; the division of a State into judicial divisions is for administrative conveniences. These are courts set up in each state. If customary and area courts exist in the state, the High courts do not deal with Customary laws. Their jurisdiction is usually determined by the subject type and the monetary value. They can hear appeals from the lower courts.
- Magistrate Courts: Every state has a magistrate court. The magistrates in each state are divided into a number of classes, and the classification determines the level of jurisdiction and the powers that each magistrate owns. Magistrates are appointed, and the rules and classifications can differ from state to state.
- District Courts: These courts exist in some of the Northern states. Their jurisdiction involves civil cases dealing with monetary issues within a certain value.
- Customary and Area Courts: These courts exist in many states, and deal with issues that are covered in the customary law. They are under the control and supervision of the Minister of Justice of the state. They have unlimited civil jurisdiction in cases of family law, and criminal jurisdiction in a few areas.
- Juvenile Courts: Some states have special courts that are established for the trial of young offenders, and for the welfare of the young. They mainly consist of a magistrate and some other members.
- Coroners: A coroner is a person that can hold inquests on the body of a deceased person who seems to have died a violent or unnatural death, or a body that belong to any other class specified by the appropriate Coroner's law. Coroners can be Magistrates or other people. The main purpose would be to investigate the cause of death.
- National Industrial Courts: These courts deal with trade disputes (any dispute between employees, or between employees and their employer) and collective agreements (disputes between different organizations and/or employers).
- Military Courts: These courts exist in some parts of the country, and their jurisdiction is limited to members of the military.
- Tribunals: These are bodies performing judicial or quasi-judicial functions. They have been determined by the legislature to be experts in a particular area of the law, and are given permission to deal with a certain area of the law
POWERS OF ENVIRONMENTAL HEALTH OFFICER
Section 72 of the Public Health Law of 1957 states that “A health officer whilst acting as such shall have all the powers and privileges which could be exercised, or would be possessed by a Police officer (emphasis mine) for the purpose of enforcing the provisions of this Law including the power of such officer:
a) of detaining or arresting any person who has, or is reasonably suspected of having, committed an offence against the law;
b) to appear for the prosecution of such offences in a magistrate’s court or a customary court.
[Police Act 1967 No. 41: Chapter P19, Part IV Section 23 on Powers of Police Officer “Subject to the provisions of sections 160 and 191 of the Constitution of the Federal Republic of Nigeria (which relate to the power of the Attorney-General of the Federation and of a State to institute and undertake, take over and continue or discontinue criminal proceedings against any person before any court of law in Nigeria), any police officer may conduct in person all prosecutions before any court whether or not the information or complaint is laid in his name”]
Flowing from the above, Environmental Health Officers has enormous duties and power when it comes to environmental management and control. The health officer has the power to enter any premises at any time (Section 10 of the Public Health Law of 1957) for the purpose of examining as to the existence thereon of any nuisance.
Part I, Section 2 of the Public Health Law of 1957, define premises to means and includes messuages, buildings, lands, tenements, hereditaments, vehicles, tents, vans, structures of any kind, drains, ditches or places open, covered or enclosed, and any ship or vessel in any port or on any inland waters.
The law in Section 7 of the Public Health Law of 1957 empowers a health officer, if satisfied of the existence of a nuisance (Section 6 of the Public Health Law of 1957) to serve a notice called Abatement notice. This is the commencement of legal intervention in environmental health management and control. The non-compliance with the content of the abatement notice after the effusion of given time will lead to issuance of a Court summon.
What is a Court Summon? Is a processes to compel attendance of a court by an accused person, there are three different ways of securing the appearance of an accused before the court which will try him. These are:
(a) By summons
(b) By Arrest on Warrant and
(c) By Arrest without Warrant
Summons is usually preceded by a complaint laid before a magistrate or a judge.
Note: that a summons to appear and a warrant of arrest may be issued on or served on any day including - a Sunday or public holiday. See section 24 Criminal Procedure Act and 82 Criminal Procedure Act
Who may issue summons: A summons to appear may be issued by a court against any suspect. Section 8 of the Public Health Law of 1957, Section 80 Criminal Procedure Act and section 47(1) Criminal Procedure Code. Such a summon, must state in writing the substance of complaint, name of the accused, the date of issue, and must be in duplicate, signed by the Magistrate.
Manner of Service - Summons should normally be served personally on the person summoned. Part VIII, Section 68 of the Public Health Law of 1957, section 89(a) Criminal Procedure Act and section 49(1) Criminal Procedure Code.
Manner of substituted service:
This may be done, by leaving a copy of the summons with an adult male member of the accused family, occupier or affixed to a conspicuous part of the premises in which the accused ordinarily resides. Note the need for leave of court before substituted service.
Mode of receipt of service: Person served must acknowledge receipt by signing the back of the duplicate.
Note: that a person who refuses to sign such duplicate may be detained or committed to prison when the Court is formally informed as the act will be viewed by the Court as contempt.
What is Contempt of Court? Contempt of Court has variously been defined as:
a) ‘Scorn, disgrace, disregard of the rule or an offence against the dignity of the court…’See Chambers English Dictionary 7th Ed.
b) ‘any act which is calculated to embarrass, hinder or obstruct the court in administration of justice or which is calculated to lessen its authority or dignity and to adversely affect the confidence of the public in the courts ability to dispense justice’. See Blacks Law Dictionary, 6th Ed.
c) ‘any conduct which tends to bring into disrespect, scorn or disrepute the authority and administration of the law or which tends to interfere with and/or prejudice litigants and/or their, witnesses in the course of litigation’.- per Idigbe JSC in Atake v. A. G. FED. & anor (1972) 11 SC 175
d) ‘action or inaction amounting to an interference with or obstruction or having a tendency to interfere with or obstruct the administration or justice’. See Awobokun v. Adeyemi. (1968) NMLR 289.
The purpose of the power of court to punish for contempt is to preserve the honor of the court and to prevent undue interference with the administration of justice, but not to bolster up the power and dignity of the Judge as an individual. (See Parashuram Detram Shamdasan v King Emperor. (1945) AC (a) 268)
There are 2 types of contempt: Criminal and Civil Contempt.
Criminal Contempt: These are words or acts which obstruct or tend to obstruct or interfere with the administration of justice. It is an offence upon the court. Examples –
- To call a judge a liar.
- To allege that he is partial. VIDYSAGARA v. THE QUEEN 1963 AC 589.
- To say in the course of judgment, ‘that is a most unjust remark’. STAFFORD COUNTRY JUDGE 1888 – 57 LTQB 483 JORDAN 36 289.
- Comments that scandalize the court (oral and written).
- Insulting language, disrespectful attitude, acts of violence.
- Private communication with a judge to influence his judgment (whether or not accompanied with a bribe). See Awobokun v. Adeyemi (supra)
Civil contempt: This means contempt in procedure, consisting of disobedience to the judgments, orders or other process of court. It involves a private injury – in other words, it violates the rights of a person who benefits under a judgment or order, when such judgment or order is flouted.
Nature of Contempt: Contempt can either be in the face of the court – In-facie curie or outside the face of the court – ex-facie curie.
Contempt in-facie-curie: This means contempt committed in the face of the court, in other words contempt committed in the immediate view of the court room or so near the presence of the court, which obstructs or interferes with due administration of justice or is calculated to do so.
Contempt ex-facie-curie: This means contempt committed outside the face of the court. It consists of words (spoken or published) or acts outside the court which are intended or likely to interfere with or obstruct the fair administration of justice. See Dr. OLU ONAGORUWA FCA/E/117/79/NO 5/2/80. Examples are: Refusal to obey a lawful order of court such as an injunction.
Civil contempt falls under the category of contempt ex facie curiae. See generally – OBIEKWE ANIWETA v. THE STATE FSA/E/47/78 delivered on 16.8.78, Awobokun v. Adeyemi (1968) NMLR 289 at 294, Afe Babalola v. Federal Electoral Commission & anor, Suit No: AK/MA/77 of 21.2.78
Acts that amount to Contempt of Court
a) A breach of the duty to respect the judge may amount to contempt.
b) However it is not every act of discourtesy that amounts to contempt. See Izuora v. R 13 WACA p. 313.
c) It may not be possible to particularize the act that constitutes contempt. See Agbachom v. The State (1970) 1 All NLR p. 69
d) A fair and civil criticism made against a judge may not amount to contempt (even if it is strongly worded). See Okoduwa v. State (1988) 3 SCNJ 110
The following acts would amount to contempt of court –
a) Impeding service of court process.
b) Neglect of duties by Sheriffs and other officers of court.
c) Disobedience to a sub poena.
d) Refusal of witness to answer questions.
e) Insulting or Outrageous or Scandalous language to court.
f) Publication in a newspaper or article containing scurrilous personal abuse of a judge, with reference to his conduct as a judge in a judicial proceeding which has terminated.
g) Publication in the newspaper misrepresenting court proceeding. See S. 133(4) of the Criminal Code.
h) A letter accusing a Judge of bias is contemptuous. See Deduwa v. The State
(1975) 1 ALL NLR (pt. 1) 1
Proof of Contempt
Contempt of court is a quasi-criminal offence and the standard of proof is beyond reasonable doubt. See Agbachom v. The State (1970) 1 ALL NLR 71, See also Awobokun v. Adeyemi (supra)
a) Even a civil contempt such as refusal to obey a court injunction must be proved beyond reasonable doubt. See American Int. Security and Telecommunications systems(Nig) ltd v. Eugene Peterson & & anor Suit no: FRC/L/1077 of 27.10.78
a) For contempt in facie curiae, the High Court can deal summarily with the contemnor. The Judicial officer before whom the contempt is committed can put the contemnor in the dock (not the witness box) and ask him to show cause why he should not be punished.
b) However, the court must exercise caution. See Awobokun v. Adeyemi
c) The contemnor must be given fair hearing in accordance with the rules of natural justice.
d) Putting the contemnor in the dock is so as not to infringe his constitutional rights that no person accused of a crime shall be compelled to give evidence. S.36 (11) CFRN 1999.
e) The cases to be tried summarily should be such that the facts are so notorious as to be virtually incontestable.
f) When a contempt is not committed in the face of the court, a judge who has been personally attacked should not as far as possible hear the case. See Awobokun v. Adeyemi (supra)
g) A court may also adopt the procedure of apprehension/arrest, charge, prosecution etc. instead of the summary trial (where the act amounts to contempt ex facie). See Boyo v. A. G. Mid-West (1971) 1 ALL NLR 342, Oku v. The State (1970) 1 ALL NLR p. 60, Maharaj v. A. G. for Trinidad and Tobago (1977) 1 ALL NLR 411
Jurisdiction of Courts to Punish for Contempt
a) The inherent power of the High Court to punish for contempt summarily is for the preservation of the honor of the court, not for the personal aggrandizement of the Judge. See Obiekwe Aniweta v. The State (supra), Deduwa v. Okorodudu (1975) 2 SC p. 37
b) However, the power must be exercised with caution. See Awobokun v. Adeyemi (supra)
c) Under S. 133 C. C. and S. 155 P. C., any person who commits contempt as defined under the respective codes can be charged in a magistrate court and tried under the CPC and CPA respectively.
Punishment for Contempt
a) Contempt is viewed seriously and should be very sternly dealt with and in good time. See in Re Boyo (1970) 1 ALL NLR 116
b) The punishment is imprisonment, sometimes with option of fine. A contemnor may also be ordered to execute a security bond to be of good behavior for a stated period. See Kitkat v. Sharp (1882) 52 LJ ch. 134
c) A contemnor may be ordered to be kept in prison until he is purged of contempt. See Ikabala v. Ojosipe Suit no: LD/967/71 OF 30.3.72
d) A contemnor whose conduct is unintentional, and who purges his contempt by an apology + credible explanation will be pardoned. See The State v. Ekundayo & & anor. KWS/106/77 OF 2.9.77
e) Contempt under S. 133 C. C. carries a maximum of 3 months. Okoma v. Udoh (2002)1 NWLR (pt. 748) 438
f) Civil contempt carries a maximum of 6 months imprisonment.
See Afe Babalola v. Fedeco & & & anor AK/ML/77 of 21.2.78 at 17-23
Commencement of trial
The accused shall appear or be brought before the court, and the charge shall be read and explained to him to the satisfaction of the court by the registrar. He shall thereafter be asked to plead to the charge. See section 187(1) Criminal Procedure Code and section 215 Criminal Procedure Act. This is called arraignment. See Kajubo versus the State (1988) 1. NWLR 72 (Pt. 73). Ogunye versus State (1999) 5 NWLR (Pt. 604) 548; Kalu versus State (1998) 13 NWLR (Pt. 583, 531) See also Yahaya vs. the State (2002) FWCR (pt 93) P. 2044
Options open to an accused:
(i) Preliminary objection
He may raise a preliminary objection to the jurisdiction of the court to try him or to a defect in the charge. His objection shall be duly considered and if upheld, he shall be discharged. However, if overruled, then he shall be asked to plead.
(ii) Refusal to plead:
He may refuse to plead to the charge. He shall thereafter be asked by the court for his reasons. Where the court is of the view that those reasons are not valid and the accused still refuses to plead, a plea of not guilty" shall be entered on his behalf and the trial shall proceed. See Gaji versus the State (1975) 5 S.C. 60. See also section 220 Criminal Procedure Act and section 188 Criminal Procedure Code.
(iii) Stand mute:
He may stand mute and the court shall call evidence to determine whether his muteness is of malice or due to the visitation of God. If the Court finds that his muteness is of malice, a plea of not guilty shall be entered and the trial shall proceed. See Yesufu versus The State ( 1972) 12 S.C. 143, and The State versus Sawyer C.C.H.C.H/4/73 at page 11. However, if his muteness is of the visitation of God (e.g. insanity) the trial shall not proceed and the accused shall be ordered to be detained until the pleasure of the Governor is known. See R. versus Ogor (1961) 1 All NLR 70. Where the accused is found to be deaf and or dumb, the court shall further take evidence to determine whether the' , accused can be made to understand and follow the proceedings. If so, trial shall proceed; if not, the accused shall be remanded in custody or released on bail until the visitation is over, or until the Governor's pleasure is known.
(iv) Plea of guilty:
The accused may plead guilty to the charge. Such a plea of guilty shall be recorded by the court as nearly as possible in the words used by the accused. If the court is satisfied that by the plea, the accused intends to admit the truth of the essentials of the offence, it may proceed to convict him on the plea. See section 215: Criminal Procedure Act and sections 187 and 161(3) Criminal Procedure Code. See also Aremu versus The COP (1980) 2 N.C.R. 315; Ahmed versus The C. O.P (1971) N. M.L.R..409; Osuji versus The Police ( 1965) L.L.R. 143; Idah versus The Police (1964) NMLR 103.
Effect of plea of guilty:
The plea of the accused must not be ambiguous, otherwise the court shall not convict upon it. See Onuoha versus The Police (1956) N.NLR 96.
Facts stated by the prosecution must support the charge to which the accused has pleaded guilty otherwise the court shall not convict. See Abele versus Tiv N. A. (1965) N.NLR 425.
Where the plea of guilty is inconsistent with any statement made by the accused either to the police or in court, he shall not be convicted on his plea: See R. versus The Middlesex Justice Exparte Rubens (1970) 54 Cr. App. Rep. 183:
Where the offence to which the accused has pleaded can only be constituted by expert evidence, such 'evidence must be tendered before he can be convicted on his plea. See Stevenson versus The Police (1966) 2 All NLR 261; See also Ishola versus The State (1969) NMLR 259. Note: Essien versus The King 13 W.A.C.A 6.
(v). Plea of not guilty:
The accused may make a plea of not guilty. in which case he shall be deemed to have put himself upon his trial See section 217 Criminal Procedure Act and section 188 Criminal Procedure Code.
(vi). Plea of not guilty by reason of insanity:
The accused may plead not guilty by reason of insanity and the court shall proceed with trial and determine:
(a) whether the accused did commit the offence; and
(b) whether he was insane at the time of committing the offence. if the accused is found not to have committed the offence, he shall be discharged and the court shall not decide the issue of insanity.
If he is found to have committed the offence and to be insane at the time of committing it, he shall be remanded in prison custody until the Governor's pleasure is known. See R. versus Ogor (1961) 1 All NLR 70.
(vii). Plea of autrefois acquit or autrefois convict:
The accused may make a special plea of autrefois acquit or autrefois convict which has been provided for in section 36(9) of the Constitution , that: "No person who shows that he has been tried by a competent court for a Criminal offence and either convicted or acquitted shall again be tried for that offence or for a Criminal offence, having the same ingredients as that offence, save upon the order of a superior court". See also sections 221, 181 Criminal Procedure Act and 223 Criminal Procedure Code. This issue of this special plea shall be tried by the court and if found proved, the accused shall be discharged. If found not proved, the accused shall be asked to enter a plea and the court shall proceed with the trial.
Making and recording of plea:
Plea must be made by the accused and not by his counsel, unless the presence of the accused at the trial could be dispensed with. See R. versus Pepple and Another ( 1949) 12 W.A.C.A. 441.
The plea must be recorded by the court before the trial can proceed. See Sanmabo versus The State (1967) NNLR 314. When the accused is charged with more than one offence, a plea must be obtained and recorded in respect of each offence. See The Police versus Rosseck (1958) L.L.R. 73. Note: Akinde versus The Attorney General S.C. 1251 1965 decided on 30/4/65 and Ayinde versus The State (1980) N.C.R. 242.
What is a charge: A charge is a document containing the statement and particulars of offence(s) with which a person is accused and tried before a court of law. In the magistrates' courts in the South and the courts of the Northern States, it is referred to as a charge, while in the High Court in the South as information. It is usually drafted and signed by the appropriate authorities, having power to charge an accused person. In the High-Court, a law officer or private prosecutor can sign an information.
Rules guiding the drafting of Charges
a) Rule against ambiguity,
b) Rule against duplicity
c) Rule against misjoinder of offenders
d) Rule against misjoiner of offences
Rule against ambiguity: This rule postulates that a charge must be clear enough as to give the accused person adequate notice of the offence with which he is charged. Consequently, the rule attaches itself more particularly on the Count or, each of the Counts contained in the charge sheet or information.
A good charge free from ambiguity will reflect, in this order, the following:
a) the name of the accused;
b) date of commission of the offence
c) place of commission of the offence
d) the description of the offence by the name giving to the offence by the law creating it where the law defines the offence; or so much of the particulars of the offence as will give the accused sufficient notice of the charge against him; or person against whom the name of the thing in respect of which the offence was committed.
e) the section of the law under which the accused will be punished and the law itself.
(Sections 151 and 152(1) Criminal Procedure Act Sections 201 and 202 Criminal Procedure Code, Garba versus State (1999) 11 N. W.L.R. (Pt 627) 422.)
Effect of non-compliance:
As the whole essence of this rule is to give an accused person notice of the charge against him some errors on the part of the prosecutor will not essentially invalidate the charge or lead the court to set aside any conviction, based on the charge. (Duru versus the Police (1960) L.L.R 130. The court held that the errors in the charges were fundamental in Okeke versus The Police (1965) 2 All NLR 81).
Generally, the court does not regard any omission or errors in the charge as material except the accused was in fact misled by such error or omission.
In Obakpolor versus The State (1991) 1 N.W.L.R, 113, the Supreme Court held that objection to a defective charge should be made immediately after the charge is read over and explained to accused because pleading to such a charge is a submission to jurisdiction, if the defect does not deprive the court of its jurisdiction.
Rule against duplicity: This rule addresses the count in the charge as in the case of ambiguity. What the rule however forbids is that no count shall contain more than one offence except in permitted circumstances dictated by a statute. A charge is therefore bad for duplicity if it contains more than one offence. (Section 156 Criminal Procedure Act. Also Okeke versus the Police 10 W.A.C.A, 363; Awobotu versus the State (1976) 5 S.C. 49 Adebayo versus The State (1987) 2 N. W.L.R. 468 (Pt. 57). An accused must be charged for each of the offences committed by him separately on the charge sheet or information.
Effect of duplicity
A charge that is bad for duplicity does not necessarily invalidate the charge or the trial except it has occasioned a miscarriage of justice. (Awobotu versus The State (1976) 5 S.C. 49)
Rule against misjoinder of offenders: This rule forbids joining offenders together in a cause or matter before the court. Thus, generally, only an accused should be charged in the charge sheet, for the offence(s) committed by him. There are instances however in which it is permissible to join and try more than one accused person together. When more persons than one are accused of the same offence, they may be charged and tried together. (Okojie versus The Police (1961) W.NLR 91)
Rule against misjoinder of offences: Generally, every distinct offence with which any person is accused shall be charged separately. (Sections 157 - 161 of the Criminal Procedure Act and sections 213 - 216 Criminal Procedure Code)
Amendment of charges
Who has the authority to amend?
(a) The person who drafted the charge: The law permits the person who drafted the charge to alter the charge upon discovery of any error or in a bid to adding more counts to the existing ones. Note that in the South, the Police, the Law Officer or any other person as the case may be, is authorised to charge any person before a court and may therefore amend such charge. (section 162 Criminal Procedure Act , section 78(b) of Criminal Procedure Act See also The State versus Chief Magistrate Mbashi Experte Onukwe (1978) 1 L.RN. 316)
Note that if the amendment is after the commencement of the. trial, it has to be by the leave of the court.
(b) (b) The court can also amend a charge upon which an accused is tried before it. The court can equally amend the charge at any time before judgment. Note however that the amendment by the court must be sustainable under the imperfect charge. The new charge should merely continue the life of the original charge. It must bear the same charge number and be against the same accused person(s). It cannot be an independent separate charge, co-existing with the original charge. (Chief Magistrate Mbashi Experte Onukwe (1978) 1 L.RN. 316), Okwechime versus The Police (1956)-1 F.S.C. 73).
Note: the court should not permit the amendment of a charge if it will cause injustice to the accused. (R. versus Jennings 33 Criminal App. Rep. 143)
Failure to amend a defective charge:
The effect of failure on the part of the prosecutor to amend a defective charge depends on the nature of the defect. There are some defects which the law regards as substantial and upon which conviction cannot be made. In such cases, the appellate court will set aside a conviction based on a charge that is fundamentally defective, except before judgment there was amendment. (Okeke versus The Police (supra), The A. G. (Federation) versus Dr Clement Isong (1986) 1 Q.L.R.N. 75;
For example where the information refers to a repealed enactment and there is no similar offence known to the law, the error would be regarded as material and fundamental and will undoubtedly mislead the accused. (R. versus Osunremi (1961) 1 All NLR 467) In such a case there should be amendment of the charge before judgment. If not, the trials will be vitiated.
On the other hand, some defects are regarded as minor by the courts. Such defects are incapable of misleading the accused person and failure to amend such charges are usually overlooked by the courts. The law distinguishes between omissions or errors which are trivial and immaterial and will not vitiate a trial, and those which are material and will vitiate a trial.
A conviction founded upon a defective charge under the former category stand because the dictate of justice do not permit the acquittal of an otherwise guilty accused person upon fanciful errors contained in the charge. (Ogbomor versus The State (1985) 1 NWLR 223 (Pt. 2), Duru versus The Police (1960) L.L.R. 130; Ogbodu versus The State (1987) 3 S. C. 497)
Procedure after amendment
The new charge shall be read and explained to the accused person and he shall be asked to plead to the charge. (Sections 163 and 164 Criminal Procedure Act; section 208(2)Criminal Procedure Code, Youngman versus The police (1959) 4F.S.C. 283; Okosun versus The State (1978) 2L.R.N.,314; Okegbu versus The State (1981) 2 P.S.L.R. 14)
Note that where a trial before a Magistrate Court was a: result of the accused election to be tried by the Magistrate Court, apart from a fresh plea, his consent should also be sought afresh as to whether he still intends to be tried by the Magistrate Court, (Youngman versus The Police (supra); Jones versus The Police 5 F S.C. 38.)
The court shall ask the accused whether he is ready to be tried on such charge. (Section 164 (1) Criminal Procedure Act)
Either the accused or the prosecutor shall be given adjournment or a new trial order if to proceed immediately with the trial shall prejudice the accused in his defence or the prosecutor in the conduct of his case. (Section 164(2) (3) Criminal Procedure Act; sections 209 and 210 Criminal Procedure Code.)
The Court shall endorse a note to order for amendment on the charge. (Section 164(4) Criminal Procedure Act)
The prosecutor and the accused shall be allowed to recall or re-summon any witness who may have been examined and examine or cross-examine such with reference to such amendment. (Section 165 Criminal Procedure Act, Section 211 Criminal Procedure Code)
Note where the accused is unrepresented by counsel, the court must specifically inform him of this right. If he is represented, the court is not obliged to inform him. (Shoaga versus R. (1952) 14 W.A.C.A.22, Fayiga versus The Police (1973):5 C.C.H.C.H35, Osuolale versus The State (1991)
Effect of failure to comply with procedure after amendment:
Failure to comply with the statutory requirements render the trial null, void and of no effect, the appeal court, on appeal against conviction will set the conviction aside. However, where there are sufficient or overwhelming evidence at the trial, the appellate court may order a retrial. (Echeazu versus the C.O.P (1974}2 S.C. 55.)
The court is divided into:
a) The Bench – the bench is occupied by the court (Magistrate or Judge).
b) Court Clerk/Administrative table – it is for the use of the court and it is occupied by the Court Staff
c) The Bar – the Bar is usually the first two or three rolls and it is usually a space dedicated to the lawyers. A non-lawyer is never allowed to seat on these rolls.
d) The Prosecutor’s bench – this is usually occupied by the lay-prosecutors and the Police.
e) The Witness Box – It is usually a box with a seat located in either sides of the court. It is meant for those to give evidence or answer questions in the suit before the court.
f) The Dock – the dock is usually for the accused person. It sometimes contains a seat for a frail accused person.
g) The Court hall – the court hall contain long benches for the sitting of those members of the public who has cases before the court or merely come to witness the proceedings of the court.
DIAGRAM OF A MAGISTRATE COURTROOM
NOTE: It is only in the customary court and the Magistrate court that lay prosecutors like the Police or Environmental Health officers are allowed to prosecute. This is not allowed in the High Court and appellate courts; hence you will never find the prosecutors’ bench in the High court. The prosecution bench ends with Magistrate Court.
It is pertinent to mention that the sitting of a court must be in the open and any suit before the court in which judgment or decision is delivered becomes functus officio. However, there could be instances, in which the court will sit in the chambers or in camera when doing so become unavoidable.
Appearance and Addressing the Court.
Environmental Health Officer appearing for prosecution in court must be neatly dressed. The EHO must wear a clean dark coloured suit with tie or appear in professional uniform. He must endeavour to equip self with the rules of the court. The rules of court vary from State to State. The principle underlining all the rules of court is same.
There are specific modes of addressing a court. The president of the Customary courts is addressed “yours Honour”. The Magistrates is addressed “yours Worship”, while the Judges of the High Courts and higher courts are addressed “my Lord or my Lady, if she is a woman.
The court proceeding commences with the magistrate calling on the Court clerk to call the case/s for the day. It is the norm of the court for the magistrate to as, if there are applications and if none, the court will proceed to cases on the court list.
Usually, the prosecutor will open his case first, by announcing his appearance. It will be followed by the defence counsel.
It is important I mention at this juncture that the prosecutor with respect will alternate standing with the defence counsel. It is against the rules of the court for both the prosecutor and defence counsel to simultaneously stand up to address the court. It should also be noted that the Court is not a computer machine, record entry presently is done in longhand; hence the prosecutor or the defence counsel need to take caution by noting the rate at which the court is recording entry into the court records books, for conveniences purposes
Examination of witnesses
Having secured the attendance of a competent witness in court, the question is how does he give his evidence? Evidence in court must be obtained through and orderly process called examination.
Types of examination
1. The examination of a witness by the party who calls him shall be called examination-in-chief.
2. The examination of a witness by a party other than the party who calls him shall be called his cross-examination.
3. Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination.
Order of examination
The prosecutor/party beginning shall open his case and lead his witnesses in evidence-in-chief and the accused/defendant shall be entitled to cross-examine the witnesses. After the cross-examination, the witnesses may be re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. S. 189 E.A. The order in which witnesses are called is entirely at the discretion of the prosecutor/counsel- handling the matter.
Examination-in-chief is the method of putting questions to witnesses with a view to obtaining material evidence from them. It is conducted by the party calling the witness, usually through prosecutor/counsel: S. 188(1) E.A. Usually a witness is first examined in- chief before he is cross-examined by any other part who may so desire (S. 189(1)). The purpose of examination-in-chief is to place witness’s story before the court so as to obtain testimony in support of the facts for which the party calling that witness is contending. Examination-in-chief is strictly on relevant facts only and it cannot be based on leading questions. Leading questions are those which suggest the intended answers.
Leading questions cannot be asked if objected to by the adverse party except the court permits it. S. 195 E.A. Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
S. 196 E. A.
(1) leading questions must not, if objected to by the adverse party, be asked in examination-in-chief, or in re-examination, except with the permission of the court
(2) The court shall permit leading questions as to matters which are Introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
NOTE: A witness who has been allowed to be treated as a “hostile’ witness can be asked leading questions.
A witness is considered “hostile” when in the opinion of the court, he shows that he is adverse to the party calling him and is unwilling to tell the truth. Assume that A calls B to prove some fact in question. If B contradicts A and fails to tell the truth of the fact in question, he can be regarded as “hostile”. If the Court is satisfied from the general conduct of the witness that he is hostile to the party calling him, then the Court in its discretion may allow the party calling the witness to put leading questions to him or cross-examine him.
Rules for examination-in-chief
When a witness is testifying in- chief the following rules must be observed:
a) His testimony must be limited to facts; relevant facts and not law.
b) He shall not give his own opinion, except if he is called to testify as an expert.
c) He shall not testify to hearsay but direct evidence of what he saw, touched or felt. S. 77 E.A.
d) Ask one question at a time
e) Avoid complex questions
f) Ensure that fact pleaded are backed up by witness
g) No leading questions, except on matters introductory or facts that are undisputed or if the opposite party does not object to it. S. 196 E.A.
h) A leading question comes with a suggested answer prosecutor/counsel should use open questions in examination-in-chief, in preference to closed questions. This method guides the witness along a story line but allow him to tell his story. He is only prompted with open questions to remain on course as he tells his story. What was your reaction when you saw him? How did you get there?
a) They subtly direct the witness’ mind towards the desired answers, without necessarily “leading” him towards them.
b) They have the potential to confer credibility on a witness’ testimony since he would be telling his story.
One of the disadvantages of an open question is that a witness could become unguarded and begin to ramble, if given undue liberty to speak in-between questions.
a) A closed question does not give a witness the opportunity to tell a story. Rather, it limits his responses to ‘yes’ or ‘no’ or ‘I don’t know’ or some other specific response. Example,
- “Did you slap him?”
- Who gave you the money?
b) The advantage with a closed question is that it helps in achieving precision.
c) It is more capable of controlling a witness by keeping him on course than an open question might.
After the party calling a witness has finished examining him in-chief, any other party in the case may examine the witness (cross-examine). S.188 (2) In N.O.OKE’s book Guiding principles of cross-examination he said “cross-examination can be defined as the act of subjecting a witness to some questioning after his evidence-in-chief, by an adverse party in order to get the truth of the facts stated or other related facts from the witness so as to test the veracity or reliability of his evidence.
Taylor On Evidence Vol. 1 states thus “it is deemed indispensable to the proper administration of justice that every witness should be subjected to the ordeal of cross-examination by the party against whom he is called, so that it may appear, if necessary, what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his re-collection and his disposition to speak the truth. ”Grace Akinfe v. The State (1986); Adeleke v Aserifa (1986).
Cross-examination is not limited to facts that were elicited in examination in-chief. Leading questions can be asked in cross-examination.
Aim of Cross- Examination
S 200 E.A. When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend
a) to test his accuracy, veracity and credibility; or
b) to discover who he is and what is his position in life; or
c) To shake his credit, by injuring his character.
The aim of cross-examination was succinctly put by LORD HANWORTH, MR as follows: “Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the completeness of his story.”
Golden Rules of Cross Examination
Per Justice Oputa
1. Know what you need, STOP when you get it.
2. Risk no case on an answer that may destroy it.
3. Hold your temper while you lead the witness if necessary and convenient to lose his.
4. Ask as if wanting one answer when you desire the opposite, if the witness is against you, and reverse the tactics if he is more tractable.
Cross-Examination of an Expert Witness
· Avoid details relating to theory.
· Where more than one set of facts lend support to an opinion, be adroit and skilfully elicit those facts favourable to your case only.
· Do not give the expert the luxury of explanation for the basis of his conclusions, either.
· He should be confronted with other opinion by another expert in the same field so as to contradict him
· Confront him with relevant authorities such as published works so as to weaken the validity of inferences that can be drawn from proved facts.
This is a right which arises wherever there has been cross-examination. Re-examination (second stage of examination by the party calling a witness) is for the purpose of explanation of ambiguous terms us in the cross-examination and for shedding more light on any fact not too clearly stated in the cross-examination: S.188(3) E.A. Re-examination must be restricted to the explanation of matters referred to in cross-examination.
· And where the court allows new matters to be introduced, the other party must be allowed to cross-examine on the new matters raised in re-examination: S. I89 E.A.
· Similar to the position in examination in-chief, usually leading questions are not allowed during re-examination but the court has discretion to allow leading questions on disputed matters which in the opinion of the court have been sufficiently proved. S196 EA.
Under certain circumstances, permission may be granted to a witness under examination in- chief, or cross-examination or even re-examination to refer to some document so as to recall some matter. It should be noted, however, that he should not read aloud from the document, but should merely view it before giving his evidence. He can also be allowed to refresh his memory by referring to any writing made by him soon after the transaction in question: S. 216(1) E.A.
In Jimoh Amoo v R, the trial Judge allowed a witness to refresh his memory by the reading to him part of his deposition at the preliminary investigation, which deposition was taken some five weeks after the incidents to which the witness deposed. The Federal Supreme Court held that the trial judge erred in allowing the witness to make use of deposition to refresh his memory in these circumstances. Abike V Adedokun (1986)
Refreshing memory can be done at all stages of oral examination, whether in examination -in- chief, cross-examination or re-examination.
Procedure and foundation for tendering documents
· The Court will ask the Court Clerk to call the case of the case list
· The Court clerk will call the case number
· The accused will enter the dock
· The prosecutor will announce his appearance by saying: May it please this honorable court/your worship; C. O. Oremeji (Mrs.) appearing for prosecution, appearing with me is A.F. Morufu.
· If the accused has Counsel, the accused/defence counsel will announce appearance
· Court Clerk will read the charges to the accused to enter a plea
· The accused will enter plea for each count charge either guilty or not guilty
· If the accused enter a plea of guilty to the charges, the court will ask the prosecutor for the facts of the case.
· If the accused enter a plea of not guilty
· Court Clerk - All witnesses to be out of Court and Out of hearing.
· The prosecutor will state that; Your worship, with the kind permission of the court, I/we would like to call the 1st Witness Mr. Ganiyu Dauda
QUESTION FOR EXAMINATION-IN-CHIEF
Mr. Dauda an Environmental Health Officer as a Witness
Prosecutor: Give your name to this court.
Witness: I am Mr. Ganiyu Dauda.
Prosecutor: Where do you live?
Witness: I live at No l, Oke-fia Osogbo.
Prosecutor: Where do you work and as what?
Witness: I am an Employee of Osun State Local Government Service Commission and I work as an Environmental Health Officer
Prosecutor: Do you know the accused in this case?
Witness: Yes your worship.
Prosecutor: Now, tell this court how you know the accused person.
Witness: On 8th February 2010, at about 1000hrs, I was on Ikirun Road in accompanied by a health assistant on routine house to house inspection. I inspected the house of the accused person at No. 4, Ikirun Road, Osogbo. I discovered the absence of sanitary latrine and bathroom accommodations and I subsequently issued him an abatement notice giving him 30days within which is to comply with the abatement notice.
Prosecutor: Wait a minute; did I hear you say you issued him an abatement notice giving him 30days within which is to comply with the abatement notice.
Witness: Yes your worship.
Prosecutor: If you see the duplicate copy of the abatement notice will you recognize it?
Witness: Yes your worship
Clerk of Court: Is this the duplicate copy of the abatement notice you issued?
Witness: Yes your worship, this is the duplicate copy of the abatement notice
Prosecutor: Your worship, I am seeking leave of this honourable court to tender the duplicate copy of the abatement notice issued.
Magistrate: Court Clerk, show the duplicate copy of the abatement notice to the accused person or opposing counsel (where there is Counsel)
Opposing Counsel: No objection your worship
Magistrate: Duplicate copy of the abatement notice admitted and marked as exhibit “A”
Prosecutor: Thank you your worship. Health Officer (Witness) continue.
Witness: After the expiration of 30days given, I went to the house to see, if Mr. Amodu has provided the sanitary latrine and bathroom accommodations
Prosecutor: Did he do it?
Opposing Counsel: Objection your worship, the prosecutor is leading the witness.
Magistrate: Objection overruled. Prosecutor you may precede.
Prosecutor: Thank you your worship. Health Officer you said you went to the house to confirm compliance with the abatement notice, how can you prove this fact?
Witness: I was accompanied by two health assistants and issued him a verification note.
Prosecutor: If you see the duplicate copy of your verification note, will you recognize it?
Witness: Yes your worship, this is the duplicate copy of your verification note.
Prosecutor: Your worship, I am seeking leave of this honourable court to tender the duplicate copy of the verification note issued.
Magistrate: Duplicate copy of the verification note admitted as exhibit “B”
(Note: Opposing Counsel raises no objection and verification note is admitted as Exhibit ‘B’)
Prosecutor: Your worship, I am done with the witness and shall be seeking leave of this honourable court to let the 2 witness in.
QUESTION AND ANSWER ON LEGAL INTERVENTION IN ENVIRONMENTAL HEALTH CONTROL.
What is the basis of environmental policy in Nigeria and which agencies/bodies administer and enforce environmental law?
The basis of environmental policy in Nigeria is contained in the 1999 Constitution of the Federal Republic of Nigeria. Pursuant to section 20 of the Constitution, the State is empowered to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria. In addition to this, section 2 of the Environmental Impact Assessment Act of 1992 (EIA Act) provides that the public or private sector of the economy shall not undertake or embark on or authorise projects or activities without prior consideration of the effect on the environment.
The Federal Government of Nigeria has promulgated various laws and Regulations to safeguard the Nigerian environment. These include:
- Federal Environmental Protection Agency Act of 1988 (FEPA Act). The following Regulations were made pursuant to the FEPA Act:
- National Environmental Protection (Effluent Limitation) Regulations:
- National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations; and
- National Environmental Protection (Management of Solid and Hazardous Wastes) Regulations.
- Environmental Impact Assessment Act of 1992 (EIA Act).
- Harmful Wastes (Special Criminal Provisions etc.) Act of 1988 (Harmful Wastes Act).
The Federal Ministry of Environment (FME) administers and enforces environmental laws in Nigeria. It took over this function in 1999 from the Federal Environmental Protection Agency (FEPA), which was created under the FEPA Act. FEPA was absorbed and its functions taken over by the FME in 1999.
The Federal Ministry of Environment has published several guidelines for the administration of the FEPA and EIA Acts and procedures for evaluating environmental impact assessment reports (EIA Reports).
Other regulatory agencies with oversight over specific industries have also issued guidelines to regulate the impact of such industries on the environment such as the Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) 2002, published by the Department of Petroleum Resources (DPR).
However, pursuant to the FEPA Act, each State and local government in the country may set up its own environmental protection body for the protection and improvement of the environment within the State. Each State is also empowered to make laws to protect the environment within its jurisdiction. All the States have environmental agencies and State laws; e.g. Abuja, the Federal Capital Territory has issued the Abuja Environmental Protection Board (Solid Waste Control/Environmental Monitoring) Regulations 2005 ("the Abuja Environmental Protection Board Regulations") which principally governs solid waste control in Abuja. In Lagos State, the Lagos State Environmental Protection Agency Law was enacted to establish the Lagos State Environmental Protection Agency (LASEPA). LASEPA’s functions include monitoring and controlling the disposal of waste in Lagos State and advising the State Government on all environmental management policies. Lagos State has also enacted the Environmental Pollution Control Law, to provide for the control of pollution and protection of the environment from abuse due to poor waste management. Akwa Ibom State has enacted the Environmental Protection and Waste Management Agency Law, which established the Environmental Protection and Waste Management Agency. This Agency is charged with responsibilities which include identifying and proffering solutions to environmental protection problems in Akwa Ibom, and monitoring and enforcing environmental protection standards and regulations.
What approach do such agencies/bodies take to the enforcement of environmental law?
The EIA Act was promulgated principally to enable the prior consideration of environmental impact assessment of public or private projects. Any person planning a project/activity which may have an impact on the environment is statutorily required to prepare an EIA Report, and the Report must set out the potential impact of the activity on the environment and plans for preventing/mitigating the same, as well as clean up plans. All such Reports must be approved by the FME. Attached to the EIA Act is a schedule of activities and industries for which environmental impact assessments are mandatory. These include Agriculture, Airport, Drainage and Irrigation, Land Reclamation, Fisheries, Forestry, Housing, Industry, Infrastructure, Ports, Mining, Petroleum, Power Generation and Transmission, Quarries, Railways, Transportation, Resort and Recreational Development, Waste Treatment and Disposal, and Water Supply.
Any person who fails to comply with the provisions of the EIA Act commits an offence and is liable on conviction, in the case of an individual, to a fine or to a term of imprisonment for up to five years; and fines are also imposed on guilty firms or corporations.
Furthermore, the FEPA Act empowers the FME to require the production for examination of any licence or permit granted to any person, to enter and search any land or building, and to arrest any person whom they have reason to believe has violated any environmental regulation.
The approach of regulatory agencies is the prevention of environmental damages, the regulation of potentially harmful activities and the punishment of willful harmful damage whenever this occurs. The environmental agencies also adopt the approach of engaging individuals and communities at risk of potential environmental damage in dialogue. The EIA approval process adopted by the FME involves a system of public hearings during the EIA evaluation process and interested members of the public are invited to such hearings.
The respective State environmental agencies in Nigeria, e.g. the Lagos State Environmental Protection Agency (LASEPA), also take the same approach.
To what extent are public authorities required to provide environment-related information to interested persons (including members of the public)?
Public authorities are statutorily required to inform the public of environment-related issues. The FEPA Act requires FEPA to collect and make available through publications and other appropriate means and in cooperation with public or private organisations, information pertaining to pollution and environmental protection regulations.
The EIA Act provides for the maintenance of a Public Registry for the purpose of facilitating public access to records relating to environmental assessments. The Lagos State Environmental Pollution Control Law requires the Ministry of Environment and Physical Planning to educate the general public on the types of disposal methods acceptable by the State Government for domestic and Industrial wastes. In addition under the LASEPA law, LASEPA is required to carry out public enlightenment exercises and educate the public on methods of environmental sanitation and management.
The FME also issues guidelines from time to time for environmental impact assessments for different industries and it also has publications which inform the public of the prohibition of environmental pollution. Furthermore, members of the public and persons requiring clarifications on environmental issues can visit the offices of the FME or the relevant State environmental agency for environment-related information.
As stated in question 1.2 above public hearings to which interested members of the public are invited is a key part of the approval process for EIA reports by the relevant agencies.
When is an environmental permit required, and may environmental permits be transferred from one person to another?
The different pieces of legislation on the protection of the environment contain provisions for the issuance of environmental permits. Such permits are required for all potentially environmentally sensitive activities and are typically granted by the FME and the relevant State agencies. Specific legislation on permits include the Radioactive Waste Management Regulations 2006 which provides that any person generating or managing radioactive waste must apply for and obtain a permit from the Nigerian Nuclear Regulatory Authority; the FEPA Act and the regulations made thereunder.
The National Environment Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations made pursuant to the FEPA Act provide that a permit will be required:
- for storage, treatment and transportation of harmful toxic waste within Nigeria;
- where effluents with constituents beyond permissible limits will be discharged into public drains, rivers, lakes, sea, or as an underground injection;
- when oil in any form shall be discharged into public drains, rivers, lakes, sea, or as an underground injection; and
- for an industry or a facility with a new point source of pollution or a new process line with a new point source. Such an industry or facility shall apply to the agency for a discharge permit.
Some permits are industry specific; e.g. in the oil and gas industry, the Directorate of Petroleum Resources (DPR) also regulates environment issues, and operators in the industry are required to obtain the necessary permits.
The Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) 2002, published by the DPR provides that the Director of Petroleum Resources shall issue permits for all aspects of oil-related effluent discharges from point sources (gaseous, liquid and solid), and oil-related project development.
The EGASPIN also provides that environmental permits shall be issued for existing and new sources of effluent emission. All projects in the oil and gas industry must be issued with the requisite environmental permits, and failure to procure the same may lead to penalties.
Relevant state permits are also required i.e. pursuant to the Abuja Environmental Protection Board Act (Solid Waste Control /environmental Monitoring Regulations 2005), all sponsors of major development projects in Abuja must submit to the Abuja Environmental Protection Board ("the Board") details of the project i.e. its nature and scope, the site and area of the project, the activities to be carried out and any other relevant information. Upon submission, the sponsor is issued an Impact Clearance Permit by the Board. In Lagos State, the LASEPA law requires any person manufacturing or storing chemicals, lubricants, petroleum products, cement and other material used in building, radioactive materials, or gases in residential or commercial areas to obtain a permit.
The permits are typically not transferable as they are project specific. Where such permits are however transferable the consent of the regulator will be required prior to any such transfer.
What rights are there to appeal against the decision of an environmental regulator not to grant an environmental permit or in respect of the conditions contained in an environmental permit?
Any entity or individual affected by a decision of an environmental regulator has a right of appeal under the relevant laws and regulations. The EGASPIN which is applicable in the oil and gas industry provides that an aggrieved party shall be free to seek remedy at courts/tribunals. The FEPA Act allows an aggrieved person to bring an action in the Federal High Court against the FME for any act done in pursuance or execution of any environmental law or of any public duties.
Is it necessary to conduct environmental audits or environmental impact assessments for particularly polluting industries or other installations/projects?
Nigerian law makes it mandatory for EIAs and environmental audits to be carried out by polluting industries. The practice is that an EIA report must be prepared in respect of all major projects and approved by the FME and the environmental agency of the State in Nigeria in which the project is located. In addition, for oil and gas projects, the requisite environmental permit must be granted by the DPR.
Some activities have been classified as mandatory study activities under the EIA Act. They include Agriculture, Airport, Drainage and Irrigation, Land Reclamation, Fisheries, Forestry, Housing, Industry, Infrastructure, Ports, Mining, Petroleum, Power Generation and Transmission, Quarries, Railways, Transportation, Resort and Recreational Development, Waste Treatment and Disposal, and Water Supply. The effect of this is that no Federal, State or Local Government or any of their agencies shall exercise any power or perform any duty or functions that would permit the project to be carried out in whole or in part until the FME has approved the EIA for such a project.
Other legislation which requires EIAs is the Abuja Environmental Protection Board Act, which empowers the Board to request an EIA for a development project and the sponsor must submit reports to the Board from time to time. The Akwa Ibom State Environmental Protection and Waste Management Agency Act (EPWMA) empower the Agency to conduct pre and post EIAs of projects and make recommendations for corrective measures.
The EGASPIN sets out a list of activities in the oil and gas sector that require environmental assessment. They include all seismic operations; oil and gas field developments onshore, nearshore, offshore and deepshore; hydrocarbon processing facilities; construction of waste treatment; and/or disposal facilities.
After project completion, regular environmental audits must also be carried out. The FME requires an environmental audit to be carried out every 2-3 years. The DPR also carries out regular environmental audits of oil and gas installations, stations, depots, etc.
What enforcement powers do environmental regulators have in connection with the violation of permits?
Environmental regulators have wide ranging powers in the event of violation of environmental permits and environmental laws in general. The FEPA Act gives authorised officers of the FME powers to:
- require to be produced, then examine and take copies of any licence or permit, certificate or document required under the Act or regulations made thereunder;
- enter and search any land, building, vehicle, tent, vessel, floating craft or any inland water;
- cause to be arrested any person whom they have reason to believe has committed an offence against the Act or any regulations made thereunder; and
- seize any item or substance which they have reason to believe has been used in the commission of such offence or in respect of which the offence has been committed.
The LASEPA Law also contains similar provisions authorising officers to search and seize offending items and to arrest offenders. Some examples of offences under the LASEPA Law include the discharge of raw untreated human waste into any public drain, gorge, or any land in the State, and the discharge of any form of oil, grease, spent oil including trade waste brought about in the course of manufacturing into any public drain, water-course, water gorge and road verge.
Similar provisions are contained in the Akwa Ibom State EPWMA Act. The EPWMA Act empowers inspectors to inspect premises and take samples of waste generated on premises. The EPWMA Act also provides that any person who commits an offence under the Act shall be arraigned before the Environmental Sanitation Court. The Environmental Sanitation Court was established pursuant to the EPWMA Act to try offending individuals or organisations. Offences under the EPWMA Act include burying or dumping expired drugs or chemicals without a permit, using gamalin 20 or any herbicide, insecticide or other chemicals to kill fishes or any other aquatic life in rivers, lakes and streams.
Section 11 of the Harmful Wastes Act empowers the Minister charged with responsibility for works and housing to seal up an area or site used or being used for the purpose of depositing or dumping harmful waste.
Pursuant to section 37 of the Petroleum (Drilling and Production) Regulations 1969 (Drilling Regulations) the holder of an Oil Mining Lease (OML) or an Oil Prospecting License (OPL) is required to prevent the escape of petroleum into any water, well, spring, stream river, lake reservoir, estuary or harbour. The Drilling Regulations further authorises inspectors to examine the premises of the holder of the OML or OPL to ensure that such persons comply with the Drilling Regulations. Any person who fails to comply with the provisions of the Drilling Regulations may be prosecuted in court.
The DPR also has powers to seal up premises, seize offending substances, impose fines and require the clean up of environmental damage. Violators risk fines and in certain cases, a shutdown of the polluting/offending facility until there is compliance.
How is waste defined and do certain categories of waste involve additional duties or controls?
The relevant legislation defines "waste" and refers to categories of waste. The LASEPA Law defines waste to include "industrial, solid, liquid, gaseous gases containing substances such as sulphur dioxide, oxides or nitrogen, hydrogen-sulphide, carbon-monoxide, ammonia, chlorine, smoke and metallic dusts and particles, oil organic vapours, corrosive, reagent, flammable liquid solid, poison, poly-chloringhed hiphenlys, dynocyanide, methyl-melamine, ethylacetate, toxic substance, cement waste etc.". Under the Harmful Waste Act, "harmful waste" is defined "to mean any injurious, poisonous, toxic or waste-emitting radioactive substance if the waste is in such quantity, whether with any other consignment of the same or of different substance, as to subject any person to the risk of death, fatal injury or incurable impairment of physical and mental health; and the fact that the harmful waste is placed in a container shall not by itself be taken to exclude any risk which might be expected to arise from the harmful waste".
Certain categories of waste involve additional duties and controls. Poisonous, toxic or radioactive waste is treated differently from household or industrial waste or effluents that are non-toxic in nature. Under the Nigerian Radioactive Waste Management Regulations 2006 radioactive waste which does not qualify for discharge or release to the environment shall be disposed of in a near surface repository to be established by the government and licensed by the Nigerian Nuclear Regulatory Authority. In addition to this, radioactive waste must be categorised and kept in suitable containers with visible labels indicating the nature of waste generated, the date of waste generation, the waste category and other relevant information. The more dangerous or hazardous the waste is, the higher the level of control needed for its storage, disposal and treatment.
To what extent is a producer of waste allowed to store and/or dispose of it on the site where it was produced?
The laws allow the storage or disposal of waste on site subject to the issuance of relevant permits. Regulation 10 of the National Environment Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations made pursuant to the FEPA Act provides that no person shall engage in the storage, treatment or transportation of harmful toxic waste without a permit issued by FEPA. Where harmful toxic waste is produced on-site, it may only be stored or disposed on-site where a permit has been issued to the producer of such waste.
Where it is environmentally safe to so do, solid waste may be stored or disposed of on-site, subject to the issuance of the requisite permit - Regulation 16 of the National Environment Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations.
Do producers of waste retain any residual liability in respect of the waste where they have transferred it to another person for disposal/treatment off-site (e.g. if the transferee/ultimate disposer goes bankrupt/disappears)?
Producers of waste may retain residual liability, particularly where a transferee or person engaged to dispose of the same absconds. If the regulator is able to trace the waste back to the producer, it would be liable for the clean up.
The FEPA Act provides that the collection, treatment, transportation and final disposal of waste shall be the responsibility of the industry or facility generating the waste.
Regulation 11 of the National Environment Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations provides that the collection, treatment, transportation and final disposal of waste shall be the responsibility of the industry or facility generating the waste. The ultimate responsibility lies with the producer, as under Nigerian law, the "polluter pays" principle applies.
To what extent do waste producers have obligations regarding the take-back and recovery of their waste?
The law places the responsibility for the take-back or recovery of waste on the waste producer.
The Nigerian Radioactive Waste Management Regulations 2006 provides that the primary responsibility for the safe management of radioactive waste lies with the waste generator and the waste generator shall take all necessary actions to ensure the safety of radioactive waste unless the responsibility has been transferred to another person or organisation approved by the Nigerian Nuclear Regulatory Authority. The Regulations further provide that the waste generator shall be responsible for collection, characterisation and temporary storage of radioactive waste arising from his activities and discharge of exempt waste.
EGASPIN provides that as much as possible, all the reusable components of hazardous wastes should be recovered by using the best practicable technology currently available. The National Environmental Protection (Management of Solid and Hazardous Wastes) Regulations made pursuant to the FEPA Act provide that waste should be recovered at the point of generation, where practicable.
What types of liabilities can arise where there is a breach of environmental laws and/or permits, and what defences are typically available?
The FEPA Act provides that a person who breaches the provisions of the Act commits an offence and shall on conviction be liable to a fine, or imprisonment, or both. The FEPA Act also provides that where there has been a discharge of any hazardous substance in violation of environmental laws/permits, the person responsible for the discharge will bear the liability of the costs of removal and clean up.
The Harmful Wastes Act provides that any person found guilty of purchasing, selling, importing, transporting, depositing or storing harmful waste shall on conviction be sentenced to imprisonment for life.
A typical defence is that the act (e.g. discharge of hazardous substance into the air, or upon the land and the waters of Nigeria or at the shorelines) was done within the permissible limit or was authorised under any law in force in Nigeria.
Another defence under the law is that the breach of the environmental law or any permit given thereunder was caused solely by a natural disaster or an act of war or sabotage and as such, the owner or occupier of the facility would seek to avoid liability on this ground.
Ignorance of a breach of environmental law is typically not a defence to an environmental offence. Section 25(9) of the Environmental Pollution Control Law of Lagos State provides that it shall not be a defence for the owner of any land on which waste is buried or dumped to state that the offence was committed without his knowledge.
Can an operator be liable for environmental damage notwithstanding that the polluting activity is operated within permit limits?
An operator would typically not be liable for a polluting activity which is within the limits of any environmental permit granted to it, provided that such activity is strictly in compliance with the terms and conditions of the relevant permit.
The EPWMA Act provides that no person is allowed to discharge into any public drain, water course, or roads verge any form of oil, grease, spent oil brought about in the course of manufacturing or other type of business without the written permission of the Agency. The operator will be liable for any discharge outside the limit of the permit which is renewable annually.
Can directors and officers of corporations attract personal liabilities for environmental wrongdoing, and to what extent may they get insurance or rely on other indemnity protection in respect of such liabilities?
Directors and officers may in certain circumstances attract personal liability for environmental wrongdoing. Under the FEPA Act, directors and officers of a company who were in charge of or responsible to the company for the conduct of the business of the company at the time the environmental wrongdoing was committed shall be deemed to be guilty of an offence and shall be liable to be prosecuted and punished, usually by payment of a fine or imprisonment.
The EPWMA Act specifically provides that where an offence is committed with the consent or connivance of or attributed to any neglect or omission on the part of the director, manager, secretary or other similar officer of the company such person shall be liable on conviction to a maximum of five years imprisonment without an option of a fine.
The only defence open to such directors and officers is that the offence was committed without their knowledge or that they exercised all due diligence to prevent the commission of such offence.
Directors and officers are typically able to obtain the necessary indemnifications from the company with regard to liabilities arising in the course of business, including environmental pollution. It is also possible for companies to take out insurances protecting their officers, employees and directors from potential personal liability arising in the course of operations.
Under the provisions of the Companies and Allied Matters Act of 1990 (CAMA), an officer may be indemnified in respect of anything done or omitted to be done in the course of the company’s operations, if there is a subsisting provision (whether contained in the articles of the company or in any contract with the company) to this effect.
What are the different implications from an environmental liability perspective of a share sale on the one hand and an asset purchase on the other?
There are different implications from an environmental liability perspective of a share sale on the one hand and an asset purchase on the other. A shareholder of a company would typically not be personally liable for environmental damage or other liabilities of a company, under the principle of limited liability. A shareholder is liable to the extent of his shareholding in the company, unless he is proved to have been aware of the environmental breach and is involved in the offending acts. Thus, a shareholder who has purchased shares in a company that may have environmental liabilities arising from its operations would not be personally liable for any environmental damage arising from the company’s operations. Nigerian law places liability on the directors and officers of a company for environmental damage created by the company. The definition of officers of a company under CAMA does not include shareholders of the company.
An asset purchase, on the other hand, makes the purchaser an owner who may be held liable for any environmental liability. Under Nigerian law, environmental liability is based on the owner/occupier principle. Thus, the owner/occupier of premises where a polluting activity takes place is liable for the damage and will have the responsibility of cleaning up such pollution as well as paying any fines imposed. Such owner/occupier can only avoid liability if he is able to prove that the polluting activity took place prior to the asset purchase, in which case the actual producer of the waste will be liable, if he can be located.
What is the approach to liability for contamination (including historic contamination) of soil or groundwater?
The approach to contamination of soil or groundwater is that the polluter pays the costs of clean up and may also be liable to fines or imprisonment. The person responsible for the contamination will be required to restore the soil and groundwater to appropriate safety levels.
The FEPA Act provides that any person who discharges hazardous substances into the air, upon the land or waters of Nigeria shall upon conviction be subject to a fine and/or imprisonment for a term not exceeding 10 years. If this offence is committed by a company, the company shall on conviction be liable to a fine. The FEPA Act also provides that unless the owner or operator of any vessel or onshore or offshore facility from which the hazardous substance is discharged can show that the discharge was caused by a natural disaster or an act of war or sabotage, the owner or occupier shall be subject to the cost of removal and restoration or compensation as the case may be.
The Akwa Ibom EPWMA Act provides that any person who allows toxic waste to be dumped in any land or water commits an offence and shall be liable on conviction to a maximum term of five years imprisonment. EGASPIN provides as follows:
The Licensee/Lessee who is responsible for the generation of the waste shall be liable for any contamination associated with such waste.
Such Licensee/Lessee shall bear all the costs associated with the investigation, remediation and monitoring, even when the same are conducted at the discretion of the Director, Petroleum Resources.
Adequate compensation shall be paid appropriately by such Licensee/Lessee to the relevant community and landowners, in consultation with the local government(s) and the Director, Petroleum Resources
Under the Harmful Waste Act, where any damage (e.g. contamination of land or groundwater) is due to harmful waste, any person who deposited, dumped or imported the harmful waste or caused the harmful waste to be so deposited, dumped or imported shall be liable for the damage.
How is liability allocated where more than one person is responsible for the contamination?
Under the Harmful Waste Act, each of the persons responsible shall be deemed to have committed a crime. The liability of each such offender is several.
If a programme of environmental remediation is ‘agreed’ with an environmental regulator can the regulator come back and require additional works or can a third party challenge the agreement?
Regulators may require additional steps to be taken with regard to an agreed programme of environmental remediation i.e. pursuant to an environmental audit and it is subsequently determined that additional action is required.
Third parties may also challenge an agreed programme of environmental remediation. Such interested third parties may file claims in the Court challenging any arrangements they perceive to be inadequate to restore the contaminated land.
Does a person have a private right of action to seek contribution from a previous owner or occupier of contaminated land when that owner caused, in whole or in part, contamination; and to what extent is it possible for a polluter to transfer the risk of contaminated land liability to a purchaser?
A polluter can contractually transfer pollution liability to a purchaser. If the contract between the polluter and the purchaser says that all liability is transferred upon completion and no exceptions are made for contamination, a purchaser will be liable and will have no right of recourse to the previous owner. Nigerian law recognises the principle of ‘buyer beware’ and potential purchasers are deemed to have conducted proper due diligence prior to concluding asset purchase.
There is no general legal duty to disclose prior environmental pollution on any land or facility to a purchaser and a buyer who did not enquire about possible pollution during a due diligence exercise prior to purchase will be deemed to have liability for pollution whenever discovered unless indemnity for pollution was given by the previous owner. Lack of knowledge is no excuse.
However, a person may have a private right of action to seek contribution from a previous owner or occupier of contaminated land when that owner caused, in whole or in part, the contamination, and the agreement between the parties did not fully transfer such obligations.
Does the government have authority to obtain from polluter monetary damages for aesthetic harms to public assets, e.g., rivers?
Under the law, the government has the authority to obtain monetary damages from a polluter for aesthetic harm to public assets. The FEPA Act requires a polluter to pay for the costs of removal of any such pollution, including any costs which may be incurred by any government body or agency in the restoration or replacement of damaged or destroyed natural resources.
The EPWMA Act requires a polluter to pay compensation to affected persons and the State for environmental damage caused by the offender.
What powers do environmental regulators have to require production of documents, take samples, conduct site inspections, interview employees, etc.?
Nigerian environmental regulators have statutory powers to require the production of documents, take samples, conduct site inspection etc. in the course of carrying out their functions of preventing or investigating environmental damage.
The FEPA Act empowers the FME to require the production for examination of any licence or permit granted to any person, to enter and search any land or building to take samples, conduct site inspections, interview employees and to arrest any offender. Under the Akwa Ibom EPWMA Act, Environmental Protection and Waste Management Inspectors are empowered to inspect environmental standards on premises during reasonable hours between 6:00 am and 6:00 pm. similar provisions are contained in the LASEPA law.
If pollution is found on a site, or discovered to be migrating off-site, must it be disclosed to an environmental regulator or potentially affected third parties?
The law generally obligates anyone who discovers pollution on any site to report the same to the authorities.
Where pollution is found on a site or is discovered to be migrating off-site, there is a legal obligation to disclose this to an environmental regulator and to potentially affected third parties. Section 22(2) (a) of the FEPA Act provides that where there has been a discharge into the environment, the responsible party shall immediately give notice of the discharge to the FME and to any other relevant agencies.
The rule in Ryland’s v. Fletcher imposes liability for any damage that may be caused by pollution that has migrated to the site of a third party. The rule in Ryland’s v. Fletcher requires that the person who for his own purposes brings on his lands and collects and keeps there anything likely to cause damage if it escapes, must keep it 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 escape to the third party’s property.
When and under what circumstances does a person have an affirmative obligation to investigate land for contamination?
Nigerian law does not impose a general obligation to investigate land for contamination or any person saves for the statutory obligations of the relevant regulators. Such an obligation however arises for a project which meets the requirements of environmental laws and requires an EIA. For such a project to be undertaken, the EIA report must cover results of land/soil investigations on the suitability of the site for the proposed project and examine the determined potential impact of the project.
Upon discovery of contamination and reporting of the same, the EIA Report would typically provide an action plan for mitigating the effects of the potential contamination.
To what extent is it necessary to disclose environmental problems, e.g. by a seller to a prospective purchaser in the context of merger and/or takeover transactions?
There is no legal requirement on a seller to disclose environmental problems to a prospective purchaser. Under Nigerian law, the common law principle of ‘buyer beware’ is applicable, and the duty is on a purchaser to take all reasonable steps to protect itself by carrying out adequate due diligence prior to an asset purchase. However, a purchaser has a right to enquire about and obtain details of assets to be purchased. If such an enquiry is made, the seller has an obligation to provide full disclosure to the best of its knowledge. Failure to do so may lead to an action for fraudulent misrepresentation if his disclosures are subsequently found to be incorrect. A potential purchaser may engage experts to carry out environmental investigations and to request necessary indemnifications in the event that he suspects prior environmental pollution.
The same principle applies in mergers or takeover transactions. The potential purchaser must undertake necessary due diligence investigations in order to uncover any prior environmental pollution and make necessary enquiries on possible environmental damage from past activities.
Is it possible to use an environmental indemnity to limit exposure for actual or potential environment-related liabilities, and does making a payment to another person under an indemnity in respect of a matter (e.g. remediation) discharge the indemnifier’s potential liability for that matter?
It is possible to use an environmental indemnity to limit exposure for actual or potential environmentally-related liabilities. Parties may agree in their contractual arrangements on appropriate indemnifications for losses arising from prior pollution. This is very common in lending transactions where lenders seek to avoid liability for existing conditions on a project site which is being financed by them.
Making a payment to another person under an indemnity to cover losses incurred as a result of environmental damage would typically discharge the indemnifier’s liability to the person indemnified unless further or additional pollution is uncovered. The indemnifier’s potential liability is not discharged completely if further damage is discovered.
Is it possible to shelter environmental liabilities off balance sheet, and can a company be dissolved in order to escape environmental liabilities?
Companies typically do not reflect environmental liabilities on their balance sheets, as they are required to take out necessary insurance for all potential business risks. However where the potential environmental liability is immense, the details of the liability may be reflected on the accountant’s notes which form part of the company’s financial statement.
In Nigeria, a company may voluntarily be dissolved or wound up under the provisions of CAMA. CAMA however provides that the property of a company shall on its winding up be applied in satisfaction of its liabilities. Therefore, dissolution of a company cannot be a means of escaping environmental liabilities, as the property of such a company will be used to pay its liabilities. However an insolvent company may in certain circumstances be able to escape liability for environmental damage where its assets upon liquidation are insufficient to cover the cost of remediation. Shareholders, directors and officers may be personally liable for such damage if they were aware of the activities which caused the damage.
Can a person who holds shares in a company be held liable for breaches of environmental law and/or pollution caused by the company, and can a parent company be sued in its national court for pollution caused by a foreign subsidiary/affiliate?
The principle of limited liability protects a shareholder from being held liable for the acts of the company. A shareholder will only be held liable for breaches of environmental law and/or pollution caused by the company to the extent that the shareholder is in charge of or was for the conduct of the company’s business.
Under Nigerian Law, there is no presumption that a subsidiary (even a wholly-owned subsidiary) acts as the agent of its parent company. A subsidiary is a separate legal entity from its parent company. Its acts are not acts of the parent company and the parent company is not responsible for its acts or defaults, in the absence of specific provisions to that effect in a contract between them. Therefore, a parent company cannot be sued for pollution caused by a foreign subsidiary merely because it is a shareholder in the subsidiary. Such a parent must have been involved in management and/or been aware of the pollution activities.
Are there any laws to protect "whistle-blowers" who report environmental violations/matters?
Nigerian law contains provisions to protect whistle-blowers who report or testify in environmental violation matters. Section 37 of the EIA Act provides that where specific, direct and substantial harm would be caused to a witness by the disclosure of evidence at a Review Panel, the hearing by the Review Panel shall not be in public; and where the Review Panel is satisfied that the disclosure of evidence, documents or other things would cause specific, direct and substantial harm to a witness, the evidence, documents or other things shall be privileged and shall not, without the authorisation of the witness, knowingly be or be permitted to be communicated, disclosed or made available by any person who has obtained the evidence, documents or other things.
Are group or "class" actions available for pursuing environmental claims, and are penal or exemplary damages available?
I confirm that Nigerian law recognises class action by a group or a community of people for pursuing environmental claims. Such actions are fairly common in the oil and gas industry where communities claim damages and clean up for pollution of their lands, waters and general environment. In a recent case which involved Shell Petroleum Development Company the inhabitants of the community close to a major oil spillage filed a group action against Shell seeking damages of up to N60,000,000.00. The community won in the lower courts and the appellate court upheld the decision but reduced the damages awarded.
Nigerian courts have awarded special and general damages in actions for damages arising from environmental pollution. Such damages have been for the loss of fishing rights, pollution of drinking water, damage and hazards from pollution of the environment, general inconvenience, and miscellaneous losses. The courts typically do not award exemplary damages in the claims brought before them. Exemplary damages may be awarded only in the following three circumstances:
- where the plaintiff has suffered oppressive, arbitrary or unconstitutional action by a servant of the government;
- where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and
- where statute so provides.
Adeyemi Rotimi Emmanuel Tokunboh, B.L., LL.B., B.Sc., M.Env. Mgmt., MRSH
Deputy Director: Environmental Health
Local Government Service Commission, Akure
Ondo State, Nigeria.
Tel: Mob. (+234) 08033541714
. http://www.springerlink.com/content/pp37: Adefemi Olokesusi, The Environmentalist, Volume 7, Number 1,
 FAO/WHO Global Forum of Food Safety Regulators: Marrakesh, Morocco, 28 – 30 January 2002.
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