GOVERNMENT EXPROPRIATION OF OIL MINERAL RESOURCES AND LAND IN NIGERIA AND LEGAL POSITION OF LANDHOLDERS

CHAPTER FIVE
5.1       Introduction
            From our discussion so far, it has been made clear that the federal government is vested with the ownership of oil deposit in Nigeria. Crude oil, as of now, is Nigeria’s highest income earner; therefore, the need for proper monitoring of activities in the petroleum sector of the economy. This means that in Nigeria, mining concessions in the oil drilling field are very serious business.  Mining concession is the grant of rights to persons or companies by a Host Country to mine its natural resources for the benefit of the Host Country.[1]  

In this chapter, we shall discuss the various ways in which the Federal Government manages and controls its oils mineral resources and the processes of exploitation of oil in Nigeria.  Emphasis would be laid on issuance of various licences and the Right of way granted to the International Oil Companies (IOC). Secondly, an attempt would be made to examine the legal position of landholders vis a vis the right granted to the oil companies

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5.2 Federal Management and Control of Oil Mineral Resource and Processes of Exploitation of Oil in Nigeria

            The right to manage and control oil mineral resources in Nigeria is vested in the federal government.[2] This right is claimed to be derived from the UN General Assembly Declaration in Resolution 1803 (xvii) of 14 December, 1962, which provided for states sovereignty over their natural resources.
            Before the coming of the Petroleum Act, the early concessions granted were commonly referred to as traditional concession.[3] Under this system, the contracts was lopsided in favour of the IOCs, at the expense of the HC, because the HC knew little or nothing about the possibilities of the resources, and were too easily satisfied with the little loyalties received from the usually right powerful and knowledgeable IOCs. According to S.K.B. Asante[4] “The concessions granted were instruments of blatant exploitation.”
            But upon the inception of the Act,[5] the system is now somewhat in favour of the HC.  Under this segment below we shall be looking at the various licences and contractual agreement that Nigeria has either with these IOCs, and secondly the right of way (ROW) granted to the IOCs.

5.2.1.1            Issuance of Licences to Oil Companies
            Under the Act, the minister of petroleum resources is vested with the power to grant licences for oil exploration, oil prospecting and oil mining lease, to explore, prospect, search for, win, work, carry away and dispose of petroleum.[6] However, it is only a Nigeria or a company registered in Nigeria under Company and Allied matter Act (CAMA) or any corresponding law that can be granted licence or lease.
            The various mining concessions in Nigeria include the following:
(I)        Oil Exploration Licence (O.E.L)
The O.E.L entitles the licence holder to explore for petroleum within the area of the grant.[7] It is important to note that this kind of licence could be granted to more than one company (i.e to say that it is not exclusive) over the same area.  This is to encourage a healthy competition among the International Oil Companies.
(II)       Oil Prospecting Licence (O.P.L):
Unlike the Oil Exploration Licence, the Oil Prospecting License gives the licence exclusive right to explore and prospect for petroleum within the area of the grant.[8] This could equally be granted in respect of onshore and offshore petroleum reserve.
(III)     Oil Mining Leases (O.M.L):
This is the highest mining concession.  The oil-mining lease confers on the lessee the exclusive right to explore, carry away and dispose of petroleum discovered and won in the lessee’s operation, subject to the terms of the lease.[9] The operations are mainly offshore.[10]
            There were contractual agreements, which rose from the 1969 petroleum Act wherein the International Oil Companies partnered with the Nigerian government acting through the Nigerian national Petroleum Corporation (NNPC). The difference between the concession and these contractual agreements is that in the former, the international oil company run the expropriation independently subject to terms and conditions given by the Minister of Petroleum Resources, while in the later, Nigeria through the NNPC partner with the international oil company in expropriation of oil.
The contractual agreements in Nigeria include:
(1)       Joint Venture Agreement/Joint Operating Agreement (JOA):
            This is a type of contract wherein two or more parties/partners come together to establish and set out the terms of a joint venture between them under which petroleum exploration, development and production operations will be conducted.[11]
            The JOA specifies the legal relationship in the area of rights, duties and obligations between the partners.
            An example of a JOA/JVA is that, that was signed in July 1991 between NNPC and Shell p.D.  The Joint Venture partnership between NPPC and Shell PBC gad these shoves of percentage, NNPC 60%, Shell Petroleum Development Company 30%, Nigerian Agip Oil Company 5% and ELF Nigeria 5%. Shell was the operator of the Joint Venture.[12]
(II)       Service Contracts:
            These are sub-divided into risk service contracts, and pure service contracts. In risk service contract (RSC) the international oil company (in this case referred to as (“contractor”) bears all the risk of reproduction. There, discovery is made in commercial quantity, the expenses made by the contractor are recouped.[13] If no discovery is made the contract ceases to exist with no obligation on either parties.
            RSC has been extensively used in Brazil, Argentina and Colombia where a point of appeal appears to lie in the fact that sovereignty over resources is assumed at all times. On the other hand, pure service contract (PSC) is such that the state hires the services of an IOC.  The IOC performs its stipulated services and is paid a flat fee for this service.  This kind of contract exists mainly in the oil-rich Middle East Countries, e.g, Saudi Arabia, Kuwait, Qatar, Bahrain, Abu Dhabi.

(III)     The Production Sharing Contract:
            Under PSC the company bears all the risk of exploration and is often in charge of the operations and management of the contract area.[14] When oil is discovered in commercial quantities, the IOC is entitled to recoup its investments from the crude oil produced from the contract area. An example of a PSC in Nigeria is the one between NNPC and Ashland Oil (Nigeria) company AON.

(IV)     Technical Assistance Agreements (TAA):
            This is the newest type of agreement.  It is a great departure from the traditional concession.  In this type of contract, the IOC provides technical services without any interest in the oil at any time. Its remuneration consists solely of a specified agreed fee.  This type of agreement exists in countries such as Iran and Venezuela.
            The lessees and licences in mining concessions owe the following obligations to Nigeria,
(i)                Payment of taxes.[15]
(ii)             To conduct their operations continuously, in a vigorous and business like manner in accordance with the basic work programme approved for the licencee or lessee and in accordance with good oil field practice.[16]
(iii)           To pay all rents fees and royalties pertaining to their concessions to the minister.
(iv)           To pay compensation on any land entered into in exercise of their rights in the concession.
(v)              To use geological, geophysical and any other acceptable methods of examination for the purpose of arriving at the petroleum producing prospects, until the area has been adequately explored for that purpose.[17]
(vi)           To keep record of all boreholes and wells in a form from time to time approved by the Director of Petroleum.[18]
(vii)         To report the discovery of petroleum or petroleum-bearing strata to the Director of Petroleum resources.[19]
(viii)       To keep full and accurate accounts of the quantity of crude oil and casting spirit won.[20]
(ix)           Training and recruitment of Nigerians.

5.2.2 Right of Way Granted to Oil Companies
            When the Federal Government grants concession to an IOC, to prospect, explore or mine for oil that belongs to the Federal Government, it becomes clear to all and sundry that this cannot be possible without encroaching on the land as oil is entrapped in land and cannot be exploited without access to land.  The government has through legislation empowered the IOCs beyond access to oil so as shield them from the hostility of landowners.  This right is known as the Right of Way (ROW). This right is provided for under Regulation 15(1) of the Petroleum (Drilling and Production) Regulations which provides:
The rights and powers conferred on licensees and lessees under the Act shall include the right subject to all applicable laws and the approval in writing of the Director of Petroleum Resources and of other appropriate government agencies and to such conditions as they may impose.
(a)   To cut down and clear timber and under growth.
(b)  To make roads
(c)   To appropriate and use water found in the relevant area and collect and impound the same, but so that in the exercise of this right, the lessee shall not deprive any lands, villages, houses or watering places for cattle of a reasonable supply thereof or interfere with any rights of water enjoyed by any person under the Land Use Act or any other enactment;
(d)   To construct, bring, maintain, alter, operate, dismantle or remove:
(i)                Industrial buildings and installation, including drilling platform engines, power plants, flow lines, storage tanks, loading terminals harbours, jetties, piers, moles, landing places and derricks.
(ii)             Means of communication, including telephone lines and wireless stations.
(iii)           Facilities for shipping and aircraft.
(iv)           Living accommodation and amenities for the employees and workers of the licensee or lessee, and
(v)              Other building, installations, works chattels and effects;
(e)   To dredge
(f)    To search for, dig and get free of charge gravel, sand, clay or stone not subject to any licence or lease within unoccupied state land; on condition that
(i)                Upon termination or prior cessation or completion of work in relevant area excavations shall be filled in or leveled out and left by the licensee or lessee as far as may be reasonably practicable and to the satisfaction of the Director of Petroleum Resources in their original condition and, if so required by the Director of Petroleum Resources, fended or otherwise safe guarded.  
Section 15(2) provides that the licensee or lessee may exercise any of his rights or powers through agents or independent contractors, but shall be responsible for all the actions of the agents and contractors in question.
A juxtaposition of section 28(2) of the Land Use Act (LUA), with section 15(1) of the Petroleum (Drilling and Production) Regulations is to the effect that statutory or customary right of occupancy extinguishes upon the grant of oil concession to an IOC which is meant for mining purposes or oil pipelines. This is known as overriding public interest.  However, the Governor or the Local Government has discretion to re-settle persons displaced if the revocation affected developed land.[21]
In spite of the provisions of section 15(1&2) of the Petroleum regulation Act, section 16(1) grants the same power to the Federal Government (FG) but on a wider margin when it provided for “any purpose other than those for which a licence or lease has been granted.” The Governor of a state shall retain the power, in respect of such parts as are state land situated within the state, to exercise all rights conferred by law upon him.[22]
It is of note that these laws are not absolute.  Therefore Regulation 17 provides protection for some area except where the permission of the minister is sought and is granted.  Such areas include, any part occupied for  the purposes of the Government of the Federation or state, township, village, market, burial ground or cemetery, cultivated lands, grotto area, or things held to be sacred or the objects of veneration.
The licensee or lessee shall not also hinder any person from using any or having access to any road.  However, where such person causes damage to the road, he shall contribute to its upkeep.[23] The licensee or lessee is also restricted from cultivating any area or using any area in any manner inconsistent with the purpose of the rights granted under the concession.[24]
The licensee or lessee is equally expected in his operation to comply with the town planning laws.[25]
Similar provisions on the rights mentioned, rights and restrictions are contained in the Oil Pipeline Act.  The Act was enacted to regulate the grant of licensee for the establishment and maintenance of pipeline incidental and supplementary to oil fields and oil mining and purposes ancillary to such pipelines.  It provides protection for only built up areas, cultivated lands, burial grounds or lands containing any grave, grotto area, tree or things held to be sacred or the object or veneration.  The inference was that IOCs could enter into other lands i.e. farming lands left farrow, forest areas etc. without any notice to the community landlords.[26]

5.3       Legal positions of Land Holders
5.3.1   Compensation for Loss of Earning and grant of Right of
Way to Oil Companies.

            The granting of licensce or a lease to an IOC gives the IOC the power over oil within the subsoil.  However, for the IOCs to exercise this right, they need to acquire rights over the surface of the parcel of land and around the immediate geographical area in which it proposes to drill a well.  The paragraph 36 of the First Schedule to the Petroleum Act gives the people in lawful occupation or the owner of the land right to demand adequate compensation for the disturbance of surface rights.[27]
The acquisition of surface rights necessitates the payment of compensation to the land owner/holder or occupier for
(a) Land per se
(b) Items such as economic trees, cash crops, building, structures, etc on the land, which exist naturally (“fructus naturals”) or are on the land as a result of man-made improvements (‘Fructus indsustriales’).

5.3.1.1            Land per se
            Before the coming of the LUA, payment for compensation was made to the individual or community owner or occupier of Land that is to be acquired for oil operation.[28]  Compensation was in the form of annual rent or a one-time compounded payment made in respect of various terrains (dry land, seasonal swamps, fresh water swamps etc)[29]
            The arrival of LUA brought about a great change as to the party to whom compensation is payable. The Act has vested ownership of all lands in each state, in the Governor of the state.  By this is clear, that the Governor, according to Jobene Edu,[30] primafacie the proper party to whom compensation will be made payable to.
            However, this seems to be in confusion in the light of paragraph36 of the first schedule to the Petroleum Act that provides that compensation should be paid to any person who owns or is in lawful occupation of the leased land.[31]
            However; it is clear from the provision of sections 34 and 36 of the LUA, that subject to restriction by section 34(6), the LUA does specifically preserve the rights of persons in whom land was vested prior to the commencement of the Act.[32] In accordance with the Act such persons are deemed to be holders of their land as if they had been issued with statutory rights of occupancy in the context of urban land and customary rights of occupancy in respect of non urban land.[33]
            Jobene Edu amply captured the persons entitled to receive surface right compensation[34] in the following way:
(a)   Where the land is acquired, occupied and developed by the lessee prior to the LUA’s effective date, compensation therefore, which may be by way of annual rent would continue to be paid to the parties from whom the land was originally occupied.  The reasons being that their rights were not extinguished by the LUA.
(b)   Where the land is acquired by the lessee after the commencement of the LUA; compensation is payable to the person in whom the land is vested by the Act; such person could be:
(i)                the person in whom the land was vested immediately prior to the commencement of the Land Use Act; if the Land sought to be acquired is an undeveloped urban one having a size not being in excess of a half hectare.  It should be noted however that the state Governor would be within his rights to revoke any right of occupancy for overriding interest which includes purpose connected with running or oil pipeline.[35]
(ii)             The Governor, if the Land (in an urban area) is shown not to be vested in any person or any community as at the date of the commencement of LUA.  Also the Governor will be entitled to receive compensation if the land is in excess of half a hectare  of undeveloped land permissible by section 34(5) LUA
(iii)           Local Government in the cases to which section 6(1)a LUA is applicable.
The quantum of compensation is the same both before and after the coming into effect of the LUA.  The quantum is the market value of such land. Consideration is also given to its remoteness or closeness to urban area.



5.3.1.2            Items that Exist Naturally or as a Result of Man-
Made Improvements:
(a) Items Naturally Found on the Land (Fructus Naturales):
            These are those items that mainly grow naturally on the land without cultivation.  These include protected trees like Obeche, Iron wood, Mahogany, Abura, Iroko and most other trees with forest reverse.  These trees can only be cut or taken away by the lessee with the consent of the state authority that established the forest reserve by law.  Productive trees like raffia palms, palm trees, mangrove trees etc that can grow without cultivation are also included in the naturales.[36]
            Compensation for protected trees is to be the Area Forestry Department of the State Ministry of Agriculture. While compensation for productive trees is paid to the individual.  Although, sometimes this compensation will accrue to the community on the basis that it has not been improved by any individual.
(b)       Man-made Improvement (Fructus Industriales):
            These are those improvements on the Land, which were made by man. Such improvements include; cultivated crops; animal traps and fences; damned locks and canals; farm wells; fish basket fences; poles; stakes; traps and fishing gear; houses and huts, shrines, sacred bushes, forests and venerated objects, machinery and plants, yam stakes etc. 
            Compensation for this man-made improvement is paid to the individual occupier or owner of such land.  Payments are also made to communities where a community’s shrine, juju tree or venerated object or bush is involved.

5.3.2 Compensation for Pollution and Danger to
  Livelihood:

            Oil pollution is that pollution that comes from oil and gas operation.  Since the discovery of oil in commercial qualities in Nigeria, it is not surprising that pollution and the resultant environmental degradation have become serious problems in Nigeria.  Hence the effect of wastes from the petroleum industry is usually far reaching and very alarming.[37] In Otuku & Ors v. Shell BP39a it was alleged that: Large quantities of oil escaped from the well of the defendants polluted their drinking water, killed their fishes and marine life, desecrated their “juju” shrines which is the only medium the villagers communicate with their gods and ancestors.
            The census of this pollution have been identified to include among other surfaces; any stage of the oil industry operation, gas flaring, equipment failure, sabotage, human error, corrosion blow-out, engineering errors, natural causes, acts of other parties, erosion, accident.[38]
            To contend with these situations, Nigeria under her Petroleum Act 1969[39] generally empowers the minister to make regulation for the prevention of pollution of watercourse and the atmosphere that is a clear environmental protection provision.  However, experts see Regulation 25 of the 1969 enactment as an omnibus provision.  It is argued that these provisions suffer some defects based on the fact that:
It is exclusively (a restrictive provision); and the duty imposed on the polluter is neither clearly legal nor clearly moral.  If the duty is meant to be legal, then it is vague to merely require the operator or licenses “to take prompt steps to control, and if possible end it,”[40]  
            Omaka maintains that regulation 36 did not define “good oil field practice” which it asked the workers to be guided by.  The understanding and definition of this term will no doubt assist in its implementation.[41]
            Regulations 38 and 39 enjoin operators to use approved methods and practices for the production of oil and gas, and for confining petroleum respectively.  This, more or less, is a morally persuasive provision.  It therefore shows that these provisions have very low legal strength.
            Other statutes for the protection of the environment include interalia Federal Environmental Protection Agency (cap 131), Harmful waste (special criminal provisions etc) Act (cap 165), oil Pipeline Act, Oil in Navigable Waters Act (cap 06).
            Various states also have promulgated laws on environmental protection notably Delta State Pollution Compensation Law 1995, Bayelsa State Pollution Compensation Tax Laws 1998, River State Pollution Compensation Tax Laws of 1994 etc. these laws basically stipulate that apart from reporting any oil spillage to the Community Relations Committee, established under these laws, within 48 hours of its occurrence, the law imposes 10% withholding tax on the gross amount payable as pollution compensation to any pollution damage claimant.
            However, on the issue of compensation, existing statutory provisions, legal or extra legal, do not adequately cater for individual victims of oil pollution.
            A person whose property, farm or fish pond is destroyed or damaged as a result of the activities of the oil industry has a lot to contend with for him to get legal redress.[42] Compensation is the next available right the individual has in the oil pollution cases.  This remedy has been trivialized by the fact that oil operators are quite aware of the fact that it is highly unimaginable for the courts to grant an injunction against oil companies to stop oil activities. People have usually relied on Regulations 36, 21 and 23[43] which provides that on the occurrence pollution, that the operator should pay fair and adequate compensation to the victims.
            What does “fair and adequate compensation” mean? Who determines what “fair and adequate compensation” is? Is it at the point of view of the victim or the culprit? These and more questions arise when the aggrieved person wants to lay claim to his rights under the statutes.  Sections 20 of the Oil Pipeline Act recognize the right of any person to compensation who may have injuriously suffered harm or damage as a result of any breakage of, or leakage from the oil pipeline or any of its ancillary installations.
            It is now quite obvious that Nigeria is yet to evolve an adequate compensation regime along with feasible regulation on petroleum waste management and control.  For instance, under the law, the financial sanction that is usually levied against polluters’ makes compliance with environmental regulations subject to election.  Imagine that, the fine for failure to install oil pollution prevention equipment and for discharge of oil in Nigerian waters is not to exceed N2000.[44]     Breach of duty to keep record of pollution or oil spillage is at the fine of N1000.[45] Failure to place oil reception facilities as demanded by law attracts a fine not exceeding N200 for each day during which the default continues.[46] Section 10, places a fine not exceeding N400 on failure to report discharging of oil into waters of a harbour.  Commenting on this issue, Yinka Omorogbe[47] had this to say: “A fine of N100 is laughable and can only deter the very poor members of the population and certainly not oil corporation…. Even “high” fines of N20,000 cannot be said to be deterrent to oil companies.”
            From our exposition so far, it is obvious that all penalties throughout the Act and its attendant regulation and subsidiary legislations and the oil in Navigable Waters Act are grossly inadequate, in some cases non-feasible and at times impracticable. That is to say, on the face of the Nigerian environmental protection legislations, its provisions on waste management and prevention of pollution are very impressive, but on the other hand, the implementation of these provisions for sustainable development still leaves much to be desired.
            However, on the award of damages or compensation, when this pollution occurs, the couching of the statute makes proof difficult to entitle the individual for compensation.  The situation is no less easy for claimants when they elect to go to court to seek redress.  They even meet with more strict bottlenecks.  The victims, instead of going through the Petroleum Act, often opt to go through the law of tort.  This is because the Act requires high level of proof of the scientific aspects of petroleum operation of which the victims are usually untutored in.  Therefore, their actions are often brought under nuisance, negligence or under the Rule in Rylands v Fletcher. Except for the latter, victims of the first two modes and average claimants are usually frustrated in oil spillage cases.  Under the tort of negligence, the burden of proof is put on the plaintiff; and this burden is always difficult to discharge without special knowledge, which an average plaintiff lacks.  In the case of Anthony Alubin v Shell BP[48] where the chemical from the defendant’s pipelines escaped and destroyed fishes in the lake and farmlands belonging to the plaintiff, the Court held that the plaintiff could not had failed to prove any negligence on the part of the defendant leading to the escape.
             In public nuisance cases, the major huddle the plaintiff must cross to prove not only that he has an interest in the land in question, but also that he suffered over and above any damage suffered by the general public.[49]  The position is no longer good law in Nigerian legal system; individuals can now sue in public nuisance.[50]       
            However, it appears as Omaka noted that an individual’s best bet lies in suing under the rule in Rylands v Fletcher for non-natural use of land.  In Otuku v Shell-BP[51] and Umueje v Shell-BP the plaintiffs recovered damages for the escape of oil wastes which damages the plaintiff’s drinking well and fish pond killing fishes respectively, under the rule.
            It is apparent that the courts can award damages, but the award is one thing, and the quantum another.  Unfortunately, the damages awarded by our courts are usually insignificant and not worth the trouble.[52]
            From the foregoing, it is apparent that the individual claimants do not have easily available statutory or common law protection.  In cases where compensation or damage is to be awarded efforts should be made not to unduly trivialise them.  This is because of the effect of oil pollution on the environment, which we shall now examine.

5.3.3   Effects of Oil Pollution on the Niger Delta Environment.  
I pity you young people and those that will be born after you because the good things we enjoyed when we were your age are no more there. We used to drink fresh water from our streams, eat fresh and tasteful food from our farms and breathe fresh air.  We didn’t know what hospital is because we were always healthy, we eat variety of food and animals and we related with our nature.  This is not the case in your generation.  You people are suffering but you think you are enjoying; all the streams are spoilt, all the food products from the farms now have bad taste and odour if they have not disappeared totally, Most of our animals have disappeared, you are now regular customers to the hospital and diseases we never heard of before are now your bedmates.  I really pity you, for me I will soon go to join my ancestors and leave you and your problems.[53]
            This is a true picture of the state of environmental degradation in the Niger Delta.  Environmental groups accuse the oil companies of operating double standards, allowing practices in Nigeria that would never be permitted in North America or Europe, although the oil company denies this assertion, but they admit that their facilities in the Nigeria are in need of upgrading.
            The tragedy of oil pollution lies in the fact that land generally should be protected to sustain both the current generation and the generation yet unborn.  The devastation of the land leaves no legacy for the future generation that would be saddled with sterile land, lakes and rivers.  The rejuvenation of the land normally will take a very long process and the possibility of restoration of the land to its natural state would be almost impossible.  There is no gainsaying the fact that oil spillage constitutes hazards on the environment and utmost care must be taken to curtail to the barest minimum the incessant and frequent oil spills.[54]
            For the people resident in the Niger-Delta, survival is a daily miracle.  Everyday, they wake-up hoping that they would be lucky enough to make it till the end of the day, for within 24 hours any thing can happen, a man you see in the morning can die before nightfall, and the cause of death might be as little as headache, or you could just feel like taking a cup of water and from there develop some complications which can result to death.  This is because everything that makes life safe in the region is polluted; the air they breathe is polluted, water they drink is polluted.  The ponds where they fish are polluted; therefore the fishes, which they eat, are polluted.  Even the houses they live in are polluted right from the rooftop to their very foundation.[55]
            In view of devastating impacts, left behind by oil spills Chief Dr. Robinson Briggs, a native of Oloibiri holds that oil has been a curse to the indigenes of the Niger-Delta, and a shame on Africa and compared the story of oil in Niger-Delta to that of a crawling snail picked up by a hunter who brings out the meat inside, and throws the shell carelessly away.  According to Chief Tom Tompolo[56] who spoke to Vanguard group who visited his community,  
I have been on this land since when I was born; I am more than 90 years old. I am as old as this town. When I was young, things were so much easier then than now, if you set a trap to catch fish, your catch would fill a basket and you could feed a lot of people.  When the oil companies came to our land, we thought we would enjoy more but now we are suffering.  There are no more fishes in our rivers; bush animals are no longer in our area as a result of oil exploration and gas flaring.  You have come to our land and have seen our sorry state…. For more than 30 years, there has been no good drinking water.  No good fish and food. We all have been suffering here since the oil companies came to this land
            This phenomenon has led to the near collapse of the traditional economy and the people displaced from their traditional occupations, which included fishing, farming and palm oil production and canoe construction.
            There is nothing discernible to indicate that oil companies operating in the region are subjected to any obligation of environmental restoration in respect of numerous walk over wells, long pipeline ways and oil pollution blighted areas so as to make the affected land available for other economic uses.  The situation leads to a systematic loss of economically viable land to the people of the region and the consequent reduction of their capacity for sustainable development and intergeneration equity.  The larger implication of this is that the ability of the present generation to manage and use prudently the natural resources of the region in order to ensure that it does not pass unto future generations a worse environment that cannot fulfill their basic needs is also gradually impaired. Indeed, the question of prudence in the use of natural resources of government and people of the Niger Delta region does not even arise.  They do not own the natural resources as it were, having been dispossessed as already noted in Chapter 2 above.
            The socio-economic symptoms of the situation are many and varied. They include the ugly scenes of infrastructural decay, massive unemployment, youth restiveness, violent anti-social behaviour, high crime rate, inter-ethnic conflicts and investment hostile environment in the Niger Delta region.
            So far, the means through which people obtain remedy in court for oil pollution matters have been through the Regulations 21 and 23 of the Petroleum (Drilling and Production) Regulations 1969, enabled by section 9 of the Petroleum Act, however, this provision is vague and nebulous, and characterized with petroleum technicalities, thereby making it seldom impossible for the people to use it to ventilate their grievances. The others include the common rules rules of nuisance, negligence and rule in Ryland v Fletcher, which are characterised by numerous exceptions that tend to make them impotent.
            To save the soul of the Niger Delta and her peoples, this work, recommended that oil pollution cases should now come to court by way of the through Fundamental Rights (enforcement procedure) Rules 2009. The rules are quite liberal.  This is because the 1999 Constitution of the Federal Republic of Nigeria guarantees every one’s right to life and dignity of human person in its section 33 and 34 respectively.  The constitution in its section 46(1), and Order II Rule I of the Fundamental Right (enforcement procedure) Rule 2009 states that any person who alleges that any of his right “has been, is being, or is likely to be infringed, may apply to the court in state where the infringement occurs or is likely to occur for  redress.
            We therefore submit that oil pollution, spillage and gas flaring are of such a nature as likely to infringe on a person’s right to life.  Secondly, when people living in the Niger Delta Islands and rural communities are unconditionally subjected to drink polluted water, eat polluted food, breathe polluted air and are exposed to diseases, is likely to infringe on a person’s right to life; and the scenario is of a nature demeaning to human nature, and therefore, likely to infringe on the individual’s right to dignity of human person.
            Therefore, people can approach the court under Fundamental Right (enforcement procedure) Rule 2009 on oil pollution and gas flaring cases because is of such a nature to infringe on person’s right to life and dignity of human person.


[1] Jobene Ebu; Obligations, Rights and claims in mining concessions, A seminar paper delivered to the 2003/2004 cem class of Obafemi Awolowo University, in energy and natural resources law, (2004) p.4
[2] Ibid
[3] Ibid
[4] Ibid
[5] Petroleum Act 1969
[6] Section 2(1) Ibid
[7] Paragraph 2 of the First Schedule to the Act of 1969.
[8] Jobene Ebu, (Supra) p. 6
[9] Ibid p.7
[10] Ibid
[11] L. Atsegbua: Oil and Gas in Nigeria; theory and practice: 2nd Ed. (Lagos New Era Publication 2003) p.91
[12] Ibid
[13] This payment could be cash, but is mainly in crude oil.
[14] Y. Omorogbe: The Oil and Gas Industry: Exploration and production contacts (Ibadan Malthouse Press Ltd. 2001) p. 59
[15] Section 2 Petroleum Profit Tax Act 1959
[16] Section 24(1) Petroleum Act 1969
[17] Section 30 Ibid
[18] Regulation 48 Ibid
[19] Regulation 49, Ibid
[20] Regulation 51, Ibid
[21] Section 33 (1&3) of LUA
[22] regulation 16(2) Petroleum Regulation Act
[23] Regulation 19 Ibid
[24] Regulation 20 Ibid
[25] Regulation 18 Ibid
[26] Section 6 and 15 Ibid
[27] Jobene Edu, Op. Cit P. 22
[28]Paragraph 36 of the First Schedule to the Petroleum Act  
[29] Jobene Edu, op. cit p. 23.
[30] (supra)
[31] Supra)
[32] This is deemed right discussed in page 42 of this work.
[33] Etikerente (spura)
[34] Jobene Edu; Op. cit pag. 25-26
[35]Section 28(2) (c) of the Land Use Act, 1978.
[36] Jobene Edu; Cit Op.
[37] C.A. Omaka; Oil and Gas Pollution and the Nigerian Environment: The legal control (Unpublished).
170a Cited in Omaka (supra). P. 2
[38] C.N. Iefeachi & J.N. Nwankwo in “Petroleum Industry and the Nigerian environment” 1985 P. 109. cited in Omaka (supra) 
[39] Section 9(1) (b) 11
[40] C.A. Omaka, (Supra) P.7
[41] Ibid
[42] Yinka Omorogbe “Laws regulating the rights of individuals to compensation for injuries suffered as a result of oil industry activities” in an NNPC/UNIBEN Seminar at the P.T.I, Warri 6-7 September 1989.
[43] Petroleum (Drilling and Production) Regulation
[44] Section 1,3 and 5 of Oil in Navigable Waters Act.
[45] Section 7 Ibid
[46] Section 7 Ibid
[47] Yinka Omorogbe, op. cit.
[48] (Unreported) suit No. UHC/48/47.  Ughelli High Court delivered on 12/11/74
[49] Amos v. Shell. Bp (Unreported) Suit No. PHC/45/1972
[50] Adediran v Interland Transport (1991) 9 NWLR (pt. 214) pg. 155 at 16
[51] (Supra)
[52]  Omaka Op. cit P. 36
[53] The words of the Oldest man in Otugichi Town in Ogbia LGA of Bayelsa State to Journalists from Netherlands and Britain.
[54] Odidiwe C.F., “Oil Spillages and the Nigerian Environment: An appraisal;” Nigeria Environmental Law Review Vol. 1 No. 2,(Abakaliki, Kingdom Age Publications 2010) pg. 50.
[55] Ibid.
[56] Okeowo Blessing (2002) Heaven and Hell, side by side in the Niger Delta.
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