CHAPTER FOUR
4.1 Liabilities for Oil Pollution
The term “liability” according to Blacks Law
Dictionary[1]
is the quality or state of being legally obligated or accountable; Legal
responsibility to another or to the society, enforceable by civil remedy or
criminal punishment. In other words, it is a legal responsibility for
something, especially for paying money that is owed or for damage or injury.
On
the other hand, liability for oil pollution could then mean the legal
responsibility for payment of compensation in lieu of damage arisen from oil pollution.
In Nigeria,
there have been several incidences of oil pollution especially in the Niger
Delta area resulting to destruction of farm lands and fish ponds leading to
death of wishes which forms the means of lifelihood to the people of that
area.
However, it is provided under the petroleum Act[2]
That:
The holder of an oil exploration license, oil
prospecting license or oil mining lease, shall, in addition to any liability
for compensation to which he may be subject under any other provision of this
Act, be liable to pay fair and adequate compensation for the disturbance of
surface or other rights to any person who owns or in lawful occupation of the
licensed or leased lands.
In essence, the wrong
in which the defendant was held liable could either be private or public in
nature. In other words, the defendant company could either be liable in civil
offence, in which case an action could be brought under tort for either damages or injunction or be responsible for criminal
liability[3]
in which case there is more stiff penalty for either imprisonment with option
of fine or both imprisonment and fine. As noted above the liabilities for oil
pollution comprised of the followings;
i. Civil Liability for Oil Pollution:
The traditional rule
of liability is applied here primarily to indemnify the victim of oil pollution
of his losses and at the long run, to compel the oil company to put all
practicable measures in place to prevent the possible re-occurrence of such
incidents.
Furthermore, it is a prima facia evidence to establish by the victims or plaintiffs that there
was a spill or escape of the defendant’s oil which resulted to the damage of
the plaintiff’s property. This position has a nexus with the principle of
strict liability propounded in the case of Ryland
v. Fletcher (Supra) and has since be
adopted in so many cases in Nigeria.
Example was seen in the case of Sam Ikpede
v. Shell BP Petroleum Development Co. Limited,[4]
where the court found the shell petroleum company liable dismissing the
defense’ argument that the plaintiff failed to establish particular damage for
reasonable and adequate compensation.
It is important to note
that the leniency of the court in respect of oil pollution is restricted to the
extent of the damage suffered by the individual or plaintiff seeking for
compensation. Where the claims have some traces of public undertone, or where
it is of the evidence that the defendant did not suffer specific damage, the
court never hesitate to rule against such claimant. This example was found in
the case of Douglas v. Shell BP & Ors.6 Here, the court denied the plaintiff an
injunction brought to restrain the defendant from setting up its project
pending the certification and approval
of the environmental impact assessment agency.[5]
Another instance where
the court ruled out the claims of the plaintiff on the ground of the inability
of the plaintiff to prove that he had suffered a specified damage is witnessed.
In Chief A.S. Amos & Ors v. Shell BP
Petroleum Development Co. (Nig) Ltd.[6]
In this case, the plaintiff/appellants claimed from the defendants/respondents
special and general damages for nuisance, and for unlawful damages caused by
the defendants by deliberately or negligently blocking for about three months
the kolo creeks new waterways.
Evidently, it was
revealed that the five plaintiffs, sued on behalf of the entire Brass division
comprising 42 villages, which were spread several miles apart. However, the
defendant proved to the satisfaction of the courts that before the construction
of the temporary dam, compensation was negotiated and paid to the villagers.
All the items of the special damages suffered were not established.
The learned trial
judge held that the kolo creek is a public water ways and that its obstruction
constituted a public nuisance. On appeal to the Supreme Court, the
plaintiffs/appellants agreed that the nuisance complained was a public nuisance
but maintained that they ought at, least to have been awarded “general
damages”, since the defense admitted in evidence that the blocking caused the
plaintiff inconvenience.
The appeal was
dismissed as the Supreme Court was satisfied that the learned trial judge
expressed the correct statement of the law. And on the finding of fact as found
by him. The foregoing, not withstanding, the court has in no less occasions taken steps to
remediate the effects of oil pollution on the victims by way of award of
damages in Lieu of compensation.
Several cases to this effect have been cited in this work. And compensation
proper will be discussed under 4.2 of this chapter.
ii. Criminal Liability for Oil Pollution
Nigerian legal system
had made the offences of oil pollution a criminal offence with stiff penalties.
Under the criminal code Act[7],
it is a misdemeanors offence with six months imprisonment, to corrupt or foul
any water or spring, stream, well, tank or reservoir or place so as to render
it less fit applicable to an offence of noxious act.[8]
Similarly, various
offences created under the oil in navigable waters Act, 1968, including
discharge of oil into the prohibited sea areas, failure to report presence of
oil in the Harbour Waters and failure to keep oil reception facilities by the
Harbour authorities, have already been discussed under chapter two of this
work.
Nature of Defences
For Oil Pollution Damage
The
most discouraging things about these offenses are the defenses available for
them. Except of cause, the defenses of event of war, natural causes and act of
God, the defense of discharge of oil for the purpose of saving vessels or life
at sea provided under S. 4(1) of the act[9]
is unthinkable. Because, it would rather be a misplacement of fact to permit an
act in order to save few lives which at the long run, will cost the lives of so
many other individuals snot comparable in number to the few lives saved.
Perhaps, the balance of the importance of lives on boarding a ship and the
lives of those other large number of individuals which will invariably be
affected by the cause of the discharge of oil on the sea is practically, in
comprehensible.
Again, it seems that
the oil companies sometimes take undue advantage of the provision of s. 22 (1)
of F.E.P.A,[10]
where it provides inter alia that
compensation shall not be paid for any damage resulting from oil pollution
which occurred as a result of natural causes or act of sabotage. Since no modality was provided
by the law for proving this act of sabotage, the oil companies have often time
take cover on this defense. Example was seen in Friday Alfred Akpan v. shell[11]
where in an action for compensation for damage to fishponds, streams, farmland,
and economic trees, the court held that the defense of act of sabotage avails
the defendant company.
4.2 Compensation and the challenges of its adequacy under the
Nigerian L. It was
commented per Ogbuigwe, that
“pollution is not a necessary and inevitable phenomenon in an oil producing
country”[12].
In other words, the environmental problems created by the multinational oil
companies in Nigeria
are indeed preventable.
In view of the above,
the oil pipeline Act[13] and the petroleum Act, - 55 -[14]
in their various provisions, made the holder of an oil license liable to pay
compensation to any person who suffered damage by the reasons of its negligence
resulting to oil pollution in Nigeria.
The term ‘compensation’ has been defined as;
A pecuniary remedy that is
be awarded to an individual who has sustained an injury in order to replace the
damage caused by the injury.13
The various provisions of the
laws stated above envisaging the payment of compensation in relief of damage
suffered by the victims of oil pollution, to my humble opinion, is the most
appropriate panacea to such circumstance. Although these laws, in its provision
omitted the definition of what constitute adequate compensation leaving it to
discretion of the court with jurisdiction to entertain oil pollution matters.
(Jurisdiction of the courts in respect to oil pollution has been discoursed in
chapter three of this work). It is not in doubt however, that Nigerian judicial
system, the court for instance, has construed as matter of seriousness the
issues of compensation to the victims of oil pollution vis-Ã -vis the strict application of section
11(1-5) of the pipeline Act.14This
forms the dictum of the court Per Ovia Whiskey in San Ikpede v. The Shell BP Petroleum Development Co. Ltd,15 that:
All companies who have been
granted a license to prospect for crude oil in this country under the petroleum
Decree 1969 No. 51 can only lay pipelines carrying crude oil on or under the land by virtue of a license granted
to them under the provisions of the oil pipelines Act, shall pay compensation
to any one suffering damages as a result of its operation.
However, the
provisions of the legal instruments above, has made clear the legal position on
compensation for oil spillage in Nigeria. Having noticed the legal position in
respect to payment of compensation for oil pollution damage aforesaid another
question that comes to mind is how does courts go about the measurement of the
amount of compensation accruable to a particular damage so as to adequately
quantify the cost incurred by the victim.
An answer to the above question is provided for by the
oil pipeline Act under section 19 (3) where it provided as follows;
In determining the value of
loss or interests in land of a claimant, the court shall assess the value of
the land or interests injuriously affected at the date immediately before the
grant of the license and shall assess the residual value to the claimant of the
same land or interest consequent upon and at the date of the grant of the
license and shall determine the loss suffered by the claimant as the different
between the value so found, if such residual values is a lesser sum.
The provision is to my
humble view, ridiculous, and can never fit in as accurate mechanism for
measuring quantum of compensation for economic loss over a period of time. The
act itself is not unaware of the confusion and inaccuracy occasioned by this
section, hence, it provided under subsection (6) that:
If the total sum awarded by
the court in accordance with this section does not exceed an amount already
offered to the claimant by the holder of the license, the court may order such
holder to pay the cost of the proceedings. If the sums so awarded exceed the
amount offered to such claimants, the court shall either order the claimant to
pay the cost of the proceedings or order each side to bear its own cost.
Commonsensical, the value, extent or
quantum of loss is rather determined by the actual economic value of the item,
commodity or interest upon which such loss is incurred at the point of the
incident words, the loss could rather be measured based on the economic value
of such interest at immediately before or after the occurrence of the damage.
Putting into consideration all the circumstances and factors which might have
directly or indirectly affects the extent of compensation to the damage
incurred.
Similarly, G.O. Uduehi in his book,[17]
highlighted some factors that could affect quantum of compensation for oil
pollution to includes;
(a) Population
and the type of community affected;
(b) The
size of the crops affected, whether they are seedlings, medium or mature; the
amount of money put in their care and the farm-gate prize of the items;
(c) The
area polluted; whether it is an area of high value of land or riot;
(d) Time
of the year: whether the pollution occurs in the dry or rainy season and
(e) The
fact that pollution at times acts as fertilizer which could at the long run be
to the advantage of the victims in future.
Apart from measurement of quantum of compensation, the
second issue attempted to address by subsection (6) of the oil pipeline Act
(Supra) is the settlement prior to court action by the parties. This subsection
pre-empted a circumstance where either of the parties to the negotiation for
settlement of damage resulting from oil pollution will discover an omission or
mistake from either side and decided to approach the court to seek redress for
such mistake. It then provides that the court in determining the issue, will
order either the claimant, where the total sum offered to him by the defendant
company in the prior agreement, exceed the amounts of damages awarded by the
court or the defendant where such award or damage is not in excess of the prior
arrangement to pay the costs of the court proceedings. This was the contention
in Odim
& Ors v. SPDC (Nig) Ltd,[18]
where the claimant went to the court subsequent to earlier negotiation before
him and the polluter wherein he had already collected certain amount of money
as settlement for the damage done to his farmland, economic trees and
fishponds. He contended that the amount he negotiated to collect for the damage
was not commensurable to the loss he incurred. He therefore sought an award of
N56, 687, 83 as an unpaid balance of
compensation adequate to quantify his loss . The court held that the prior
settlement was due and adequate and in line with the provisions of the Oil
Pipeline Act,[19] and
that further payment could not be contemplated.
However,
the truth remains that the yardstick for assessing quantum of compensation is
directly depended upon the open market value of the subject matter at that
point in time. On the other hand, the position of the court in Odim’s
case above is appropriate. It would have been unconscionable for the
court to decide otherwise, considering the fact that one is not expected to
approbate and reprobate at the same time, not even in such a serious matter.
Furthermore,
it has been acknowledged that such factors as; social and economic factors are
also put into consideration by the courts in determining of these cases
involving the oil company. Thus, in any instances where the claims of the
victim is so outrageous that it could force the oil company out of business
thereby rendering hundreds and thousands
of oil workers, jobless, the court never hesitate to turn-down such prayer. It
was a similar fact of this nature that forms “ratio decidendi” in Allar Iron v. Shell BP,[20]
where the court refuse to grant an injunction restraining the defendant further
operation on the instance of the plaintiff. The judge considered among other
things that if such injunction is granted, it could stripped the defendant of
his trade and render many workers who
are engaged with the company jobless.
In
consideration of what constitute fair and adequate compensation: steps are
being queued along side the analysis above. Perhaps, the “locus classicus” in
respect to compensation in Nigeria,
(the petroleum Act),[21]
only provides that;
The holder of an oil
exploration license, oil prospecting license, or oil mining lease, shall in
addition to any liability for compensation to which he may be subjected under
any other provision of this Act, be liable to pay fair and adequate
compensation for the disturbances of surface or other rights to any person who
owns or is in lawful occupation of the license or leased lands.
The Supreme Court C. Per
Ademola J.N,[22]
had earlier on tried to bring out steps that could lead to the determination of
what amounts to reasonable compensation. To wit: proving the loss by the
claimant who is to be compensated. Followed by the measurement of the alteration
caused by the disturbance without which the thing would otherwise had
continued.
The position of the learned judge above was clearly
illustrated in the following English case, Birmingham
City Corporation v. West Midland Baptist (Trust) Association (inc)[23],
where Lord Morris, opined as follows:
Compensation for disturbance
is either the replacement costs or costs of resettlement. And this cost must be
the cost of something that is to take the place of what is taken away. That
cost must however, be the reasonable cost. The reasonable cost, depending on
the facts of particular case, will be the actual incurred or can be expected to
incur: it will
be such cost at the time when equivalent reinstatement does or should take
place.
All the above statutory and judicial
positions are in agreement and had established a common ground that the issue
of what constitutes fair and adequate compensation is determined by the court
and by the court alone not only in Nigeria but also under English
judicial system. As seen in Birmingham City Corporation Case (supra).
4.3 The Victims Legal Rights
over Oil and Industrial Pollution
Before the advent of oil in
commercial quantity in Nigeria, there has been a judicial recognition of
individual rights to property and compensation for infringement on such rights
in Nigeria. Even during the colonial era, 1903, to be precise, the Supreme
courts of the colony, Per Viscount
Haldane, held among other things that
although government may take
any land acquired for public purposes, it must do so in consideration of a
compensation to be agreed on or determined by the Supreme Court of the colony.[24]
And that the court is to
assess the compensation according to the value at the time when the notice was
served, inclusive of damage done by severance.
Similarly, right to property is recognized and
constitutionally empowered under Chapter IV of the Constitution of the Federal
Republic of Nigeria.[25]
And such immovable property as provided by the Constitution is inclusive of
land. However, it is also followed that act of possession or enjoyment of such
land may be evidence of ownership.[26]
Having established the individual ownership and right to
property in Nigeria,
it therefore follows that any infringement on these rights of persons will
definitely result to legal action. Such infringement could be as a result of an
unlawful act to such property. And an unlawful Act to property is defined under
section 440 of the Criminal Code Act,[27]
to mean
An act which causes injury
to the property of another and which is done without his consents is unlawful,
unless it is authorized or justified by law.
Further recognition for individual rights to
property such as land has been further stretched under section 14 of the land use Act, [28]where
it provides as follows;
Subject to the other
provisions of this Act and of any laws relating to prospecting for mineral oils or to mining or to oil
pipelines and subject to the terms and conditions of any contract made under
section 8, the occupier shall have exclusive rights to the land the subject of
the statutory right of occupancy against all persons other than the Governor.
The Act aforesaid further
provide for compensation under section 29, payable to the holder of the right
of occupancy, in any event of revocation by the government. Section 30 of the
Act, however, provided that
where arises any dispute as
to the amount of compensation calculated in accordance with the provision of
section 29 of this Act, such dispute shall be referred to the appropriate land
use and Allocation Committee.
This provision was carefully followed by the
court in Attorney General of Bendel State & 2 Ors v. Adeyan.[29]
wherein the Court of Appeal sitting in Benin was supported by the Supreme Court
both upheld the judgment of learned justice Moje Bare J. of the Benin High
Court who had earlier on awarded the sum of N1,500.000.00 as fair and adequate
compensation for the plaintiff’s story building converted for public use by
the government.
Consequently, considering that one’s
constitutional right to property is inviolable, it therefore suffice that such
right is not questionable nor can be denied of the holder. The court had
followed the provision of section 35 of
the Evidence Act (supra), in arriving in its decision in Hallelujah Bukuma Fishers Development Co.
(Nig) Ltd. v. SPDC (Nig) Ltd.[30]
In this case, the defense counsel had contended that the plaintiff cannot claim
damages for his right in creek unless he can show that he had exclusive right
to fish therein. The learned judge held that the plaintiff need not establish
an exclusive right in the Bukuma Creeks
and that his common right for fishing in the tidal waters is recognized and
cannot be derogated from.
Evidently, the citizen’s right to
property which gave rise to further right to legal action has been widely
acknowledge under the Nigerian legal system. Good number of examples had been
provided above. But it is also a notorious fact that some factors have placed
constraint on the attainment of these rights. Such factors as follows have in
one way or the other hampered the victim’s interest in pursuing their cause
through judicial means in Nigeria.
(1) Financial
constraint: Money plays a very big role in pursuing cases in court. For
victim to have his case filed in court by his legal representative, he ought to
have paid his consultation cum professional fees and other payments. And most
at times, some of these oil pollution victims are mere peasants farmers who
mainly depended on their farm produce for food and financial means. To some of
them, the only important issue to address in the event of oil pollution is how
to feed their family. Pursuing compensation in court form a secondary matter,
that is where there is extra fund to so do.
(2) Delay in court
litigation: Another
important issue which negate the interest of the oil pollution victim in
pursuing their cases in Nigerian courts is the unending proceedings that
characterize litigations in court. After several adjournment in court, a bored
victim would rather prefer to lose the advance payment he made to his lawyer
than going to listen to endless ranting in court at the expense of his time. It
was upon these facts that I found my basis for recommending A.D.R. as an
alternate to court litigation in determining compensation for damage caused by
oil pollution under 4.5 of this chapter. Other factors includes; illiteracy and
lack of interest.
4.4 Compliance to
International Standard on Oil Pollution Management and Determining Quantum of
Compensation for oil Pollution Damages
Oil pollution is a global
phenomenon with a uniformed effect. The nature of oil pollution damage has
remained the same in the world over irrespective of continental, regional and
sub-regional differences.
The United Nation (UN) has in an attempt to provide “a
like term” system of tackling oil pollution insurgency, organized several fora,
wherein diverse opinions and ideas of committee of nations were collected
together and put to use in the management of oil pollution damage and the
matters of compensation. Some of these international conventions had already
been discussed in chapter 2 of this work and more will still be mentioned at
the cause of completing this chapter.
In 1994, a guideline for admissibility and assessment of
claims for oil pollution damage was adopted in Sydney
at the 35th International Conference of the Committee Maritime
International (C.M.I)[31]
held on 2nd -8th Oct. 1994 in Sydney.[32]
One of the objects of this convention had been drawn up in the belief that many
national courts will thrive, when applying laws based on International
Convention, to do so in a manner which is consistent with the approach taken in
other countries.
Some of the provisions of this Convention will be
considered side by side with Nigerian practices. Article 2 of the Convention,
provides that compensation may be refused if a claimant fails to take
reasonable steps to avoid or mitigate any loss, damage or expense. The real
interpretation of this provision presupposes that the claimants have some
duties and responsibilities on their side in preventing or mitigating the
effect of pollution damage which could form their defense of good fate in court
in an action for oil pollution damage.
In Nigeria
however, such question as whether the claimant in any way attempted preventing
or mitigating the effect of the pollution is rare. Usually in Nigerian
instances, immediately the claimant establishes a prima facia case that
pollution was caused by the activities of the defendants and that the pollution
destroyed his property, then the challenge shifted to the court on how to
measure the extent of the damage caused in lieu
of determining quantum of compensation. It is important to note that the
expenses incurred in respect to the preventive measure is to be borne by the
polluter as provided under Article 10 (a) of the Convention.[33]
In compliance to the above, a Federal Judge in Louisiana (the jurisdiction of Mexico) has awarded the total sum
of 7.8 billion U.S. dollars in Re oil spillage case on 21st
Dec. 2012.[34]
For the settlement of damage for those affect by the BP 2013 oil spill in the Gulf of Mexico. The learned Judge stated that the
settlement was fair, reasonable and adequate. One thing that is important about
this case is that the compensation covers 2.3 billion dollars spent on the mitigation
of the effects of the pollution by the seafood compensation program.
Furthermore, Article 6(1),[35]
provide that each state party must establish a national system for responding
promptly and effectively to oil pollution incidence. Note that Nigeria
is also a signatory to this convention. Expectedly, the only thing in doubt
about this provision is whether Nigerian government has a functional system or
agency that respond even if it is partially to mitigate the effect of oil
pollution incidents. It is noted in Re oil spill case (supra) that a
certain amount was awarded to the sea food crew as a compensation for economic
loss resulting from mitigation of oil pollution damage. This demonstrate to a
great extent that the provisions of the convention had been strictly followed
in other jurisdictions of the world.
Having expounded the above evaluation, I am tempted to
take side with Oladele G.A. in his
article[36]
where he said
The oil pollution laws in
Nigeria are not comprehensive enough to effectively control and prevent oil
pollution in the country. Even the existing ones have not been reviewed in a
long time. The penalties stipulated under the FEPA Act and the oil in Navigable
waters Act are too liberal. The amount of fine and terms of imprisonment stipulated
is just low considering the devastating effects of oil pollution on the
Nigerian environment and on the lives of people living in oil producing areas
(Niger-Delta area).
With the avalanche of
evidences above, it cannot be out of place to say that Nigeria has not fully complied with
the international standard in the management of oil pollution damage.
4.5 Alternative Dispute
Resolution (A.D.R) as an Alternate to Litigation for Oil Pollution Damage
The premise that the society should not
exclusively rely on the courts for resolution of disputes, becomes the idea of
Alternative Dispute Resolution. A.D.R
has been defined in the Black Law Dictionary as A procedure for settling
dispute by means other than litigation such as arbitration or mediation.[37]
The
idea of adopting alternative dispute resolution by the victims of oil pollution
damage in pressing home demand for adequate compensation was aptly conceived by
the concluding part of section 11 (5) of the pipeline Act,[38]
where it provides among other things, that,
If the amount of
compensation to be paid is not agreed between such persons and the holder of
the license, such compensation shall be fixed by a court in accordance with
part iv of this Act.
The above provisions presuppose that the claimants can exploit
their agitations through all the available alternative means of settlement. And
if a reasonable agreement in respect to ascertaining the adequate compensation
commensurable to the loss incurred is not feasible, then they can approach the
court for judicial intervention. The provision of this section was judiciously
followed by the court in Odim’s case (supra) where the court
ruled that the amount collected by the claimant in out of court settlement is
fair, reasonable and adequate and as such, for closes further court award.
However, the importance of A.D.R as an alternative to
court litigation to settlement of oil pollution matters cannot be over
emphasized. The victims is disposed to make a choice from all the available
methods of resolving disputes, be it Negotiation,[39]
Medialion,[40]
Arbitration,[41]
or any other mechanism of their choice. What is important is that they are at
liberty to control the very process that decides their rights.
As a matter of emphasis, the benefits derived from A.D.R
cannot be adequately expressed in the cause of this work. However, one of its
important that has a direct proximity to the object of this work is that with
A.D.R, such issues as lack of jurisdiction will not be raised to deny the
victim of his right to compensation. In a good number of cases, an attempt have
been made by the defense counsel to terminate the claimants hope for
compensation in court on the ground that such court lack jurisdiction to
entertain the matter. An example of this is witnessed in Ports and Cargo Handling
Service Co. Ltd & Ors v. Migfo (Nig) Ltd & Ano,[42]
in this case, the defending counsel, had contended that Federal High Court
sitting in Lagos Lack the jurisdiction to entertain admiralty matter. But the
court held against such contention and declared that it had jurisdiction over
such matter.
Secondly, the process and nature of alternative dispute
resolution is rather facilitating easy assess to justice and minimizing costs
and delay in reaching decision. It is obvious fact that the highly expensive
nature of count process had denied many victims not only the victims of oil
pollution pursuing litigation in court, assess to justice. And the most
offensive part of it all is time wastage due to congestion already prevalent in
the court system.
With the expositions above, it is admitable that
litigation may not ‘’with all due examination carried out already’’, standout
as the best form of dispute resolution. And what more, the claimant of
compensation for oil pollution damage are advised to adopt Alternative Dispute
Resolution ADR in seeking for their rights. Considering the fact that the
process of Alternative Dispute Resolution will always give them the opportunity
to have a say in measuring what they receive as adequate and fair compensation.
Unlike the process where such decision as what constitute reasonable, fair and
adequate compensation is left in the hands of the judge a lone.
[1] Brayan
A. Garner, “et al” Law Dictionary, 9th
edition (West Publishing Co. 2009).P997
[2]
Paragraph 37 of the first schedule of the petroleum Act, Cap. P10 L.F.N., 2010
[3] A tort
may be defined broadly as a civil wrong involving a breach of duty fixed by the
law such duty being owned to
persons generally and its breach being
redressible primarily by an action for damages.
[4] (5)
[1973] M.W.S.J. 61 pages 88-89, per Ovia Wisky J.
[5] [1994]
6NWLR(Pt350) P.256
[6] [1977]6
S.C. 109 at page 114
[7] Cap C38,
Law of the Federation of Nigeria, 2010.
Section 245.
[8] S. 247
ibid (a) vitiates the atmosphere in any
place, so as to make it noxious to the health of persons generally dwelling or carrying on
business in the neighbourhood or passing along a public way or (b) does any act which he knows or has reason to believe to be
likely to spread the infection of any diseased dangerous to life whether, human or animal is guilty
of misdemeanour and it is liable to imprisonment to six months.
[9] Oil in
Navigable Waters Act, Cap 06 Law of the Federation of Nigeria, 2010.
[10] Federal
Environmental Protection Act Cap. F10 Laws of the Federation of Nigeria, 2010.
[11] Supra P5
[12]
Ogbuigwe “Compensation and Liability on Oil Pollution in Nigeria”
(J.P.P.L,1985) P23
[13] Section
11 (5) of the Oil Pipeline Act Cap. 145 Laws of the Federation of Nigeria,
2010.
[14]
Paragraph 37 Regulation I of the Petroleum Act Cap. Laws of the Federation of
Nigeria, 2010.
[15] Supra.
[16] Cap.
145, L.F.N., 2010. Which provides among other things that the holder of such
license shall pay
compensation to any person suffering damage as a consequence of any leakage from pipeline
(18) [1973]
M.W.S.J
(Pt. 61) Psy.88-89.
[17]
G.O. Uduehi, “Public land Acquisition and Compensation Practice in Nigeria” (
John west Publication, Ikeaja,1987) p.
119-
[18] [1974]2
R.S.L.R (Pt. 93) at 109, Per Wai-Ogbosu J.
[19] Cap.
145, L.F.N 2010; S. 11 (5), “a holder of pipeline license is obliged to pay
compensation to any person who
suffers loss or damage caused by the leakage or breakage of an oil pipeline or
any ancillary
installation. However, if the amount of the compensation is not agreed
between the parties, it shall be fixed by a
court in accordance with part IV of the Act.
[20] [2012]
Unreported. Suit No. w/89/71190 available at
htt/./www.vathek.org/enlr.2012.14.4348 searched on 10/07/2013.
[21] Cap. P.
10 L.F.N., 2010, Paragraph 37 of the First Schedule
[22] William
v. Kamond [1968]1 All N.L.R (Pt. 399) Ps.406-407; “A claimant who is to be
compensated for
disturbances has to prove loss resulting from that disturbance. The
disturbance consists in the alteration of something
that would otherwise have continued.
[23] 1969]2
All E.R, 172 p. 185.
[24] Amodu
Tijani v. The Secretary of Southern Province [1921] www.Nigeria-law.org/Amodu
% 2520 Tijani searched
on 04/07/2013.28 S. 43 of the
Constitution of the F.R.N., 1999 (as amended) which provides as follows,
“subject to the provisions to acquire and own movable and immovable property
anywhere in Nigeria.
[25] S. 43
of the Constitution of the F.R.N., 1999 (as amended), provides as follows,
“subject to the provisions of this constitution, every citizen of Nigeria shall have right to acquire and own
movable and immovable property anywhere in Nigeria.
[26]
Evidence Act 2011. Section 35.
[27]
Criminal Code Act, Cap C38, L.F.N., 2010.
[28] Criminal Code Act, Cap C38, L.F.N., 2010
[29]
[1989]SC 131 Per Nnaemeka-Agu J.S.C.
[30]
[1989]SC 131 Per Nnaemeka-Agu J.S.C.
[31] The
C.M.I has as its objectives the
unification of maritime laws, and since its foundation in 1897, it has been
wholly or partly responsible for the preparatory work leading to several
international conventions in the
maritime field. Not less than 88 states
have ratified this convention including Nigeria.
[32] For
more on committee Maritme International C.M.I see Guideline on oil pollution
Damage-Committee Maritime
Int’l,www.committeemaritime.org
[33] Article
10(a) of the Convention provides that “The costs of preventive measures
includes (clean-up and disposal)
is recoverable in so far as both the measures themselves and the cost thereof
were reasonable in the
particular circumstances.
[34] Re-oil
Spill, by the Oil Rig Deepwater Horison in the Gulf of Mexico, April 20, 2010.
Unreported suit No.
10-02179,
2012-wL6652608 (E.D.La.Dec.21,2012)www.blog.Thomasorcuters.com/index.php/j
searched on
07/07/2013.
[35]
International Convention on Oil Pollution Response and Co-operation 1990.
[36] Oladele
G.A. A Comparative Study of the Legal Control of Oil Pollution in Nigeria and
under International
Law. Commercial and Industrial Law journal
(Faculty of Law Ebonyi State University, Abakaliki Heirloom
Educational Service, 2012) Vol. 1 2012 P144.
[37] Brayan
A. Garner et al., (Op. Cit).
[38]
Negotiation is a voluntary process by which two disputing parties negotiate
with each other for the purpose of
reaching compromise.
[39]
Mediation is another method of resolving dispute wherein a neutral third party
(mediator), assist two or more parties in dispute to reach an agreement.
[40] Mediation is another method of resolving
dispute wherein a neutral third party (mediator), assist two or more parties in
dispute to reach an agreement.
[41]
Arbitration is a mechanism for dispute resolution wherein the disputing parties agreed to appoint a neutral
third
party (an arbiter, who assist the parties to
come to terms which is usually binding.
[42]
[2009]11 N.W.L.R CA/L/214M/07.
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