“The Supreme Court has warned time without number that our courts should only resort to English Law when there are no adequate local provisions in Nigerian Law. In other words, where there are adequate local provisions on a matter, resort should not be made to English law”
“[W]here there are no known Nigerian decisions on a principle of law, the court should be persuaded to apply the decisions of foreign courts, especially where the issue involved is common law ie tort of libel”
“(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them.”
“Mr Speaker, Sir, Hon Members will be aware that large oil companies are energetically exploring Nigeria for oil. Wells have been bored in a number of localities and traces of oil found, but unfortunately it is as yet too early to say whether it has been found in commercial quantities. But if, though I would much prefer to say when, it is found in such quantities it is essential that the company finding it should have facilities to convey the oil easily and cheaply to a place of shipment or to its place of utilisation. The Minister went on: “The Bill now before the house is designed, in view of the extremely heavy capital investment required before oil can be found, to give the discoverer of oil in commercial quantities the right to facilities for the installation of a pipeline for the conveyance of the oil. But though its right is granted, the actual route over which the pipeline will run must be approved by the Minister, and before it is so approved full opportunity must be given for the lodging and hearing of objections, the safeguarding of the rights of other interested parties and the payment of compensation… The grant will be one of an oil pipeline licence, which, I would stress, would convey no title to the land itself. The license will be held for any period up to 99 years, or during the currency of the relevant oil prospecting licence or oil mining lease, and will enable mineral oils, natural gas, their derivatives and components, and steam and water so far as that is incidental to the main purpose, to be conveyed. The licensee will be responsible for compensating not only those whose lands or interests in lands are dangerously [sic. Injuriously] affected, but also for damage suffered by any innocent persons by and breakage or leakage of the pipe, unless maliciously caused by a third party. The main principle behind the bill is not a new one. There are already examples in Nigerian law of rights to run electric cables or water mains across land not owned by the power or water authorities which control the cables or pipes. It is not only logical to extend this principle of oil pipelines but essential if Nigeria is to obtain the full benefit of any oil under her soil. Sir, the objects and reasons at the end of the bill clearly explain its various clauses, and honourable members will not wish it to go into further details at this stage.”
“23. In our judgment, the function of the expert witness on foreign law can be summarised as follows: (1) To inform the court of the relevant contents of the foreign law; identifying statutes or other legislation and explaining where necessary the foreign court’s approach to their construction, (2) To identify judgments or other authorities, explaining what status they have as sources of foreign law; and (3) Where there is no authority directly in point, to assist the English judge in making a finding as to what the foreign court’s ruling would be if the issue was to arise for decision there. 24. The first and second of these require the exercise of judgment in deciding what the issues are and what statutes or precedents are relevant to them, but it is only the third which gives much scope in practice for opinion evidence, which is the basic role of the expert witness. And it is important, in our judgment, to note the purpose for which the evidence is given. This is to predict the likely decision of a foreign court, not to press upon the English judge the witness’ personal views as to what the foreign law might be.”
“(3) The court’s approach to conflicts of expert evidence is to resolve the conflicts in the same way that it approaches other conflicts of fact (4) In doing so, the court must bear in mind the purpose for which the evidence of foreign law is given: “This is to predict the likely decision of a foreign court, not to press upon the English judge the witness’s personal views as to what the foreign law might be” … (5) “If the law is contained in a code or written form, the question is not as to the language of the written law, but what the law is as shown by its exposition, interpretation and adjudication”
“Considerable weight is usually given to the decisions of foreign courts as evidence of foreign law…But the court is not bound to apply a foreign decision if it is satisfied, as a result of all the evidence, that the decision does not accurately represent the foreign law. Where foreign decisions conflict, the court may be asked to decide between them, even though in the foreign country the question still remains to be authoritatively decided.”
“29. But it is, I think, appropriate to acknowledge at the outset that preliminary issues often look more appealing and definitive in the early days of a case than when they come on later to be adjudicated. That which appeared to be conclusive, when a preliminary issue was directed, is not infrequently subsequently revealed to raise further questions; and that which appeared to be capable of discrete determination is often found later to be inextricably linked to issues whether of fact or law or both which cannot safely and satisfactorily be summarily determined. 30. Furthermore, where the issues are of both novelty and importance, the prospect of appeals is real; and a bifurcated process may result, with the preliminary issues on appeal and the trial which may or may not become necessary, being stalled in the meantime. It is a truism that preliminary issues are often a source of regret, as being an apparent short cut to what turns out to be a longer journey in the end.”
“A short statement as the above is certainly inconclusive to support the proposition that statutes of limitation are aspects of the substantive law. It seems to me that, such statutes only take away the right of action from a party without destroying that right since it can be enforced in other ways, for example by exercise of a right of lien. In Ojokolobo v Alamu (supra), this Court would appear to have accepted that limitation laws are matters of practice and procedure only by quoting with approval the observation of Vaughan Williams LJ in THE YDUN (1899) P.236 … The court below, in the lead judgment per Ogebe JCA observed at page 80 of the record thus: “The trial Judge failed to determine whether or not the Limitation Edict of 1994 is a substantive or procedural law. In the case of Ifezue v. Mbadugha (1984) 5 SC. 79 at P.82; (1984) 1 SCNLR 427. Obaseki JSC tried to define procedural law in the following words: ‘In the procedural law or adjectival law including rules of court, the law or rule normally fixed time for doing of an act or the taking of a step in the proceedings.’…I have no hesitation in holding that the Limitation Edict of 1994 of Imo State is a procedural law as defined above. It does not give any rights or obligations to the parties. It only limits the right of action by a party and that is purely procedural.” …It is apparent that the court below correctly decided that the Limitation Edict 1994 of Imo State is a procedural law. Being such a procedural law, it operates retrospectively…”
“ …the subject matter of the controversy herein lies in the propriety of the lower Court’s decision to consider a jurisdictional issue…Jurisdiction has been describe as a threshold issue. A threshold in the sense that it is the legal power which enables any Court or Tribunal to adjudicate over any dispute presented by by an aggrieved party, and as a consequence, proceedings conducted in its absence thereof are generally described as a nullity ab initio…” “Indeed, jurisdiction is the livewire and soul of adjudication, and due to its innate significance and the need to protect the sanctity of our judicial system, this Court has numerously expressed the view that an inquisition into a jurisdictional question would not be impeded or curtailed by Rules of Court or procedure.” “Again, and at the risk of repetition, a Court’s innate obligation to consider a jurisdictional issue would not be afflicted by the Rules of Court, conduct of the parties, or even an express submission to jurisdiction by a Defendant” (quoting from MV Arabella and other authorities emphasising that “the question or issue of whether or not an action is statute barred is one touching on or goes to jurisdiction”, and continuing) “The foregoing principle was reiterated and adopted by this Court…. lending further credence to the principle that the statute of limitation being jurisdictional and of a fundamental class, can be raised for the first time even orally before this Court.” “As I have reiterated in no small measure, jurisdiction transcends the boundaries of regulations and procedural provisions. It is very much in a class of its own…”
“The issue of jurisdiction is very vital and fundamental in our jurisprudence and it is settled law that a judgment or an order of Court given where such a Court lacks jurisdiction is a nullity…The issue of statute of limitation is one of jurisdiction”
“The holder of a licence shall pay compensation – (a) to any person whose land or interest in land (whether or not it is land respect of which the licence has been granted) is injuriously affected by the exercise of the rights conferred by the licence, for any such injurious affection not otherwise made good; and (b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work structure or thing executed under the licence, for any such damage not otherwise made good; and (c) to any person suffering damage (other than on account of his own default or on account of the malicious act of a third person) as a consequence of any breakage or any leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good. If the amount of such compensation is not agreed between any such person and the holder, it shall be fixed by a court in accordance with Part IV of this Act.”
“[t]he licensee will be responsible for compensating not only those whose lands or interests in lands are injuriously affected, but also for damage suffered by any innocent persons by any breakage or leakage of the pipe, unless maliciously caused by a third party”
“section 11(5)(b) and (c) of the [OPA] makes a holder of a license (in this case, the appellant) liable to pay compensation to any person suffering damages as a result of the negligence of the agent or servants or workmen of the appellant but excludes liability when the damage is caused by the default of the person suffering damage or the malicious act of a third person” (ii) Dr Ajibade accepted that the court in Firibeb had addressed and interpreted both sub-sections but pointed out that sub-section (b) was not specifically engaged by the appeal, suggesting that it was a slip on the part of the judge in eliding both, when the appeal in fact engaged only (c). (iii) John Okeh v SPDC is a first instance decision of the Federal High Court. The claim was a common law claim in negligence and Rylands v Fletcher, not for breach of statutory duty under the OPA, although it appears that the defendant nevertheless raised a successful defence under section 11(5)(c) of OPA and section 26(2) of OSDAR arguing that liability should not be imposed where a spill had been caused by third party interference or sabotage. In the course of its long judgment the court found that negligence was not proved. The judge proceeded to set out section 11(5)(c) recorded the reliance on section 11(5)(c) and section 26(2) before finding that the claim failed because the spill had been caused by third party interference. As Ms Day pointed out, there does not seem to have been any allegation by the plaintiffs in Okeh that third party interference should have been foreseen or guarded against. There is no mention of section 11(5)(b) in the judgment. (iv) Similarly in Agadia & Uruesheyi v SPDC, another first instance decision in the Federal High Court, the claim was brought in common law negligence but the defendant relied on section 11(5)(c) as a defence. In his judgment the judge noted that the plaintiffs had “anchored their claim on …’Res ipsa loquitor’ as well as the Rule in Ryland v Fletcher (sic)”
“(g) Short of a policing or military or paramilitary defence of the pipelines, it is my judgment that the protection requirement within Section 11(5)(b) involves a general shielding and caring obligation. An example falling within this would be the receipt by the licencee of information that malicious third parties are planning to break into the pipeline at an approximately definable time and place; protection could well involve informing the police of this and possibly facilitating access for the police if requested. Other examples may also fall within the maintenance requirement such as renewing protective coatings on the pipeline or, with the advent of new and reliable technology, the provision of updated anti-tamper equipment which might give early and actionable warning of tampering with the pipeline. 93. The answer to Issue 2 is strictly speaking “No”; there has to be neglect on the part of the licencee. It is conceivable however that neglect by the licencee in the protection of the pipeline (as defined above) which can be proved to be the enabling cause of preventable damage to the pipeline by people illegally engaged in bunkering which causes spillage could give rise to a liability; this may be difficult to prove but there is that theoretical possibility. I cannot at the moment see that damage caused from illegal refining by criminal gangs of crude oil criminally taken from pipelines which have been broken into could fall within a duty “to protect…any work structure or thing executed under the licence” because (I assume) that the illegal refinery has not been executed under licence by the licencee.”
"…what the plaintiffs require…is that the Defendant should post security men on all paths/routes where it had laid pipes and to keep a 24 hour vigil to ensure that 3rd parties – which is the main plank of the Defendant's defence, do not tamper with its facilities: This, if it is to be done, I believe must be in respect of not only the Ughelli-Rapele Pipeline, but for all pipelines laid and buried throughout… the country where oil or oil products are conveyed via the same medium. That, I hold the view is neither practicable nor realistic."
“Q And it would have been obvious, wouldn’t it, that if oil took off in Nigeria, you would need hundreds of thousands of miles of pipelines A: Yes Q: And obviously pipelines aren’t like a refinery where you can just build a giant concrete wall around them, The legislature would never have expected that you could effectively run a fence straight across the Niger Delta, would they? Build a giant wall across the Niger Delta? A: No, No, that would have been unreasonable.”
“It is conceivable however that neglect by the licencee in the protection of the pipeline (as defined above) which can be proved to be the enabling cause of preventable damage to the pipeline by people illegally engaged in bunkering which causes spillage could give rise to a liability; this may be difficult to prove but there is that theoretical possibility. I cannot at the moment see that damage caused from illegal refining by criminal gangs of crude oil criminally taken from pipelines which have been broken into could fall within a duty “to protect…any work structure or thing executed under the licence” because (I assume) that the illegal refinery has not been executed under licence by the licencee.”
“Q: ..can I suggest that that is a perfectly correct analysis that the Nigerian Supreme Court would very likely adopt, for all the same reasons that we went through in relation to the common law, which is that it is a harm that really emanates not from the licensed activity but from a separate illegal enterprise of illegal refining. A: No I don’t agree. And I think…with the greatest respect to Justice Akenhead, I think the gap in the analysis is by reason of. This portion of his judgment seems to be talking about protect, and limiting the scope of the duty to protecting, basically transposing the illegal refinery into Shell’s facilities, and saying, well there is no obligation to protect the illegal refinery. But that to my mind…doesn’t appear to be logical. What the protect – it talks about the holder of a licence shall pay compensation to any person suffering damage “by reason of any neglect”, it’s not talking about the protection of the third party’s facilities, it is talking about the consequences of failure to protect the licence-holder’s own facilities”
“[a]ccordingly, a master, which in an appropriate case may include a company or corporation, is liable for the tort, negligence or wrongful act of its servant or agent so long as the same is committed in the course of his employment, namely the authorised master’s business, or the master’s business which he was held out as authorised.”
“…the law stipulates that a principal will only be vicariously liable for the acts of the agent where they were done in fulfilment of the terms and conditions of the agency.”
“The standard of proof is a matter for the national Courts which are determining the issue of liability, whether they are applying the laws of France or their own national law. Rome II specifically identified the burden of proof as being for the law determining the issue of liability and did not mention the standard of proof. There are very good reasons for that. It is clear that the manner in which matters are proved in civil law jurisdictions and common law jurisdictions can be very different, with a much greater emphasis on oral evidence in common law jurisdictions. Rome II was not intended to deal with the manner in which matters are proved, which remains for national Courts applying their own rules of evidence and procedure. This is different from the question about which party has the burden of proof, which is intimately connected to the law governing the issue of liability.”
“Although the Regulation is expressed not to apply to “Evidence and procedure”, this is without prejudice to Art.22, headed “Burden of proof”
“The OPA ousts claims in common law for oil pipeline spills against the licence-holder and any other person acting in concert with or under the control of the licence holder, such as its workmen, agents or servants of the licence-holder…but does not oust claims in common law against any other person not included in this list. It is also important to state that an agent of a licence holder may include another company or even its parent company, provided that such company acted in the place of, or under the instructions of the licence-holder”
“I do not consider it follows that, because the OPA does not make provision against parties other than the licence-holder in respect of the matters governed by the OPA…, the conclusion must be that the common law remedies continue to apply. Whilst that is one possible reading of the OPA, the other is that the OPA ousted the common law for matters within its scope and replaced the common law with a statutory right of action only against the licence-holder.”
“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.”
“It is perfectly possible to have two persons legally liable for the same damage. Indeed, if SPDC became insolvent (which is at least a possibility, given the size of the claim), it would be very important to recognize the liability of others as well, if the relevant test for liability is satisfied.”
“(d) There are substantial differences between the statutory scheme and the common law both in terms of substance and in terms of procedures. The statutory scheme goes much wider in terms of liability (both as to scope and to what has to be established) than the common law. The statutory scheme is compensatory in nature and therefore excludes any entitlement to aggravated, exemplary or punitive damages otherwise available under some of the common law remedies. There is a much wider range of potential claimants (based largely on the causation test). The procedures were novel (and sensible). Taken overall, the differences are substantial albeit that if one looks at some of the individual differences (for instance, payment of compensation in instalments) they are not on their own substantial enough. (e) There could be a form of chaos or setting at nought if both common law and statutory regimes co-existed with, for instance, there being no or only a restricted res judicata regime in place for the statutory claim but a fully rigorous res judicata regime deployable for the common law claim. There could be some very real tension if the court thought that on a valid statutory claim the compensation should in total or in part be paid to the local headman, but this policy would be defeated if there was a parallel valid common law claim pursuant to which no such provision could be made.”
“The holder of an oil exploration licence, oil prospecting licence 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 is in lawful occupation of the licensed or leased lands.”
“With time, the determining factor was whether the defendant’s fault caused the accident. In a further effort to determine negligence, the courts draw a dichotomy between the causa causans, that is the effective factor and the causa sine qua non, that is the factor without which the damage could not have occurred… Causation, as a fault-finding placing mechanism, whether in criminal law or in the law of tort, has an element of fluidity in its practical application to any given situation as it lacks specific fixation. It does not therefore serve any useful purpose to seek a precise test. The more acceptable criterion is to identify first, the factor or factors but for which the damage complained of should have not occurred and then “to select what appears to be the most responsible cause”
‘whose negligence substantially caused the accident?’
“Q: the second paragraph (of ANTS) refers to there being no need for apportionment when the negligent party is identified. But it is implicit in that, isn’t it that..there may need to be apportionment where you have more than one person treated as a legally effective cause of the damage? A: well it says that if the negligent party can’t be identified then you can apportion. Q: Yes. If they can’t be identified and you have two or three or more people in play, then it is possible that questions of apportionment may arise. A: Questions of what? Q: Apportionment. A: Apportionment of liability? Q: Yes, of liability between different tortfeasors. A: Yes, but here it says you have to look for the person who is the primary and most effective responsible person. A: Yes, but you might have scenarios in which you can’t do that. If you cant do that, that is what you look for, but you may equally have situations where you cant do that, correct? A: Yes, in that situation, I think again you will have to - - the Nigerian court will look at what is fair and just in the circumstances and apply that principle”
“The law states that an employee alleging negligence on the part of his employer need not strictly prove that the breach of duty of care was directly responsible for his injuries…. [referring to English industrial disease cases including McGhee v National Coal Board[1972] 3 All ER 1008 ] In the last case, the House of Lords held that a defendant was liable to the plaintiff if the defendant’s breach of duty had caused, or materially contributed to, the injury suffered by the plaintiff notwithstanding that there were other factors, for which the defendant was not responsible, which had contributed to the injury”
“There is another basis upon which a defender may be held liable for damage to neighbouring property caused by a fire started on his (the defender’s) property by the deliberate wrongdoing of a third party. This arises where he has knowledge or means of knowledge that a third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him (in the limited sense explained by Lord Wilberforce in Goldman v Hargrave[1967] 1 AC 645 , 663-664) to prevent any such fire from damaging neighbouring property. If, for example, an occupier of property has knowledge, or means of knowledge, that intruders are in the habit of trespassing upon his property and starting fires there, thereby creating a risk that fire may spread to and damage neighbouring property, a duty to take reasonable steps to prevent such damage may be held to fall upon him. He could, for example, take reasonable steps to keep the intruders out. He could also inform the police; or he could warn his neighbours and invite their assistance. If the defender is a person of substantial means, for example a large public company, he might even be expected to employ some agency to keep a watch on the premises. What is reasonably required would, of course, depend on the particular facts of the case. I observe that in Goldman v Hargrave, such liability was held to sound in nuisance; but it is difficult to believe that, in this respect, there can be any material distinction between liability in nuisance and liability in negligence.”
“A person who carries on himself or causes to be carried on by his servants, agents or independent contractors any operation which involves the creation of fire is under a duty to see that the fire is harmless to third parties [referring to English authority] … But a man could not prevent a fire about which he knew nothing of, or which he could not have known of even with reasonable care [again referring to an English case].In the same way, a person who is not responsible for causing the act which is the foundation for an action in nuisance could not be liable to a third party. The defendant in this case was shown to be a banker not a rabbit hunter. The use of small fires to catch rabbits does not fall within its daily routine. It seems to me that it could not therefore be held liable for a nuisance caused by strangers.”
“(1) Is the harm (loss, injuryand damage) which is the subject matter of the claim actionable in negligence? (the actionability question) (2) What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question) (3) Did the defendant breach his or her duty by his or her act or omission? (the breach question) (4) Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question) (5) Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question) (6) Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different executive cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question).”
“I am satisfied that no enlargement of duty or breach is effected by allowing the Illegal Refining Amendments”
“the term scope of duty is sometimes used to refer to the concept of “remoteness” … As a concept separate from remoteness, a contention that the loss is outside the scope of the duty of care refers to the principle recognised in SAAMCO. However, this principle has no application here. There can be no issue about the scope of the relevant duty, being the commonplace duty to take care to avoid causing physical damage to another person’s property.”
“37. The scope of duty principle may also be of analytical value and of central importance in other circumstances, such as where a claimant seeks to establish liability arising from a defendant’s omissions. One example is when the court is considering whether a defendant owed a duty to prevent injury or damage to the person or property of a claimant which has been caused by a third party. [citing Smith v Littlewoods, Mitchell v Glasgow City Council [2009] A.C. 874 and Michael v Chief Constable of South Wales Police [2015] A.C. 1732] 38. In our view it is often helpful to ask the scope of duty question before turning to questions as to breach of duty and causation. It asks “what, if any, risks of harm did the defendant owe a duty of care to protect the claimant against?”
“While some of the provisions of Chapter IV can only be enforced against the Government, there are some others which can be enforced against both the government and the individual. Whether a fundamental right is enforceable against the government or against the individual or against both depends upon the particular wordings of the right… “ He then referred to Uzuokwu, before going on to state “And what is more the generic wording of section 42 of the Constitution [the forerunner of section 46 in the 1999 Constitution] lends credence to the position taken that the rights could be enforced against a private individual, depending upon what right is involved and in what circumstance or situation”
“..the spirit behind the declarations in the bills of right of various governments…was to eschew arbitrariness, despotism absolutism or dictatorship by the ruler. But in actual practice, it has become necessary to extend the protection of individuals within the state against the excesses of fellow citizens. The result is that where fundamental rights are invaded not by government agencies but by ordinary individuals, such victims have asserted similar rights against the individual perpetrators of the acts as they would have done against state actions, Therefore, in my opinion, it seems clear to me that in the absence of clear positive prohibition which precludes an individual to assert a violation of invasion of his fundamental right against another individual, a victim of such invasion can also maintain a similar action in a court of law against another individual for his act that had occasioned wrong or damage to him or his property in the same way as an action he could maintain against the state for a similar infraction… “ Later in his judgment, having reviewed a number of authorities he summarised the position thus: “The opinion of the Court [in Uzuokwu] is that from the wordings of some of the provisions of Chapter IV…that violations of fundamental rights may entitle an individual to seek redress against an individual or state, having regard to the circumstances of the right violated. To this view, and for reasons earlier state…I subscribe”
“..in the interpretation of the provisions of Chapter IV..the courts must lean in favour of the protection of the rights of the individual, unless there is a contrary intention in the Constitution. In other words the Courts do not have jurisdiction to restrict the fundamental rights of the individual by a miserly demarcation of the constitutional freedoms beyond the traditional derogation clauses contained in the Constitution…”
“There are quite a load of rights [relied on by the appellant]. But that is not important. What is important is the wording of the rights in the Constitution, …I have carefully examined the wordings of the above sections of the Constitution and I do not see any restrictive provision to the effect that the rights contained therein could only be enforced against Government and not against private persons. In the light of the omnibus and generic wording of the sections, I am of the view that they can be enforced against both Government and private persons if a case of breach or violation is made out by an applicant…. … It appears from the submissions of [the respondent] that the appellants rights are in tort and not in the Constitution. While I agree with learned counsel that the appellant can commence action on tort against the respondents, that does not deny her of the constitutional right which is available under the [FREP rules].”
“The position of the law is that where fundamental rights are invaded not by government agencies but by ordinary individuals, as in the instant case, such victims have rights against the individual perpetrators of the acts as they would have done against state actions. It follows therefore that in the absence of clear positive prohibition which precludes an individual to assert a violation or invasion of his fundamental right against another individual, a victim of such invasion can also maintain a similar action in a court of law against another individual for his act that had occasioned wrong or damage to him or his property in the same way as an action he could maintain against the state for a similar infraction”
“Q: So Peterside says horizontal enforceability depends on the right and the circumstance? A: Absolutely Q: Do you accept that that is still the law? A: That is the law, generally.”
“Besides, I do agree with the Learned Counsel for the Respondents relying on the decision [in Peterside] that certain provisions of the chapter IV of the Constitution can only be enforced against government depending on the wording of such rights and that the provision of Section 33…cannot be enforced against individuals because there is a sanction prescribed in the Criminal Code for whosoever threatened the life of another, the right to life is only enforceable against the State or any of its agencies. The above position of the law is shared by academic writers…(referring to an article by a Dr J M Elgido)”
“Q: So there is a line of authorities that section 33 cannot be enforced against individuals? A: Yes Q: Right. You say though that line has been overtaken by the decision in Abdulhamid? A: Yes Q: Do you say Abdulhamid overruled Peterside? A: Abdulhamid is a Supreme Court decision, yes. Q: Did you say it overruled Peterside? A: No, no, it didn’t overrule Q: Is it consistent with? A: Consistent,. Yes. Q: You need to look at the right and the circumstances? A: Yes”
“There is yet another important area of the principles of interpretation of our Constitution. Ours is a Nigerian Constitution, written in a Nigerian background, with a Nigerian Sociology and Nigerian experience. In the interpretation of the Constitution, Judges must have at the back of their minds the unique Nigerian nature and character of the Constitution. What this means is that a Nigerian Judge should not find himself importing a foreign decision given in a country which fundamental rights provisions are not similarly worded as ours…”
“(1) Every individual is entitled to respect for the dignity of his person and accordingly – (a) No person shall be subject to torture or to inhuman or degrading treatment; (b) no person shall be held in slavery or servitude; and (c) no person shall be required to perform forced or compulsory labour”
“1. Enforcement of provisions of African Charter on Human and Peoples’ Rights As from the commencement of this Act, the provisions of the African Charter on Human and Peoples’ Rights which are set out in this Schedule to this Act shall, subject as thereunder provided, have force of law in Nigeria and shall be given full recognition and effect and be applied by all authorities and persons exercising legislative, executive or judicial powers in Nigeria. (emphasis added) [Schedule.]” [Schedule.]”
“The Member States of the Organization of African Unity Parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them”
“Q: And article 1 tells you, doesn’t it, who has to recognise the rights, duties and freedoms under the African Charter? A: Yes Q: And the person who has to recognise them is the state? A: Yes, the member state.”
“Every individual shall have the right to respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of degradation and exploitation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited”
“The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them”
“A cursory look at the claim filed in the case…shows that the appellant’s main grouse is about pollution generated from gas flaring. This without mincing words is a matter that cannot be knighted as a fundamental right under Chapter IV…and under the African Charter… The fundamental rights to life and dignity of human person as prescribed in sections 33 and 34…are very clear, specific and identifiable. The issues of gas flaring, oil exploration and environmental impact assessment which are the substantive complaint of the appellants in this case, are not issues of fundamental right. There is no legal craftsmanship found in this case that can weave them into fundamental rights to life and dignity of human person under Chapter IV ..or under the African Charter”
“[Mr Mahmoud] equated environmental rights with human rights and argued that while he was aware that the provisions of Chapter II of the Constitution are ordinarily non-justiciable but pointed out that there seems to be a shift in the thinking of the courts which make the provisions of Chapter II of the Constitution justiciable…He pointed out that the present action is an oil pipeline that burst, allegedly spilling crude into waterways, polluting drinking sources and destroying aquatic life, plant and fauna and also endangering the health and lives of the people of the community. In this regard section 33 of the Constitution provides for the right to life and any act or omission, which threatens the health of the people of the community also threatens their lives and is in breach of the guarantee to right to life provided by the Constitution. He then referred to sections 13 and 20 of the Constitution which empower the National Assembly to enact laws and in exercise of that mandate promulgated the [OPA]….He maintained that the Oil and Gas Pipeline Regulation 9(a)(ii)(b)(ii)(iii) read together requires the oil pipeline licence holder to institute mechanisms for prevention of accidents (like crude oil spill) and for remedial action for the protection of the environment and control of accidental discharge from the pipeline. He then referred to National Policy on the Environment…which recognizes the role of NGOs in protecting the environment…On this basis learned senior counsel is of the view that there is enough to invite this court to hold that the National Assembly having promulgated the [OPA] with its environmental protection provisions with regard to oil pipelines have made sections 13 and 20 justiciable and consequently required the courts to give vent to the said sections 13 and 20 of the Constitution and protect the environment by applying the [OPA]”
“These provisions show that the Constitution, the legislature and the African Charter on Human and People’s Rights, to which Nigeria is a signatory, recognise the fundamental rights of the citizenry to a clean and healthy environment to sustain life”
“Mr Mahmoud…submits, and I agree, that in order to broadly determine locus standi under environmental rights as human rights, Article 24 of the African Charter…should be read together with sections 33(1) and 20 of the “Constitution on the role of the State in preserving the environment for the health and by extension (lives) of Nigerians”, and that “it is apparent that the right to a healthy environment is a human [right in] Nigeria”
“Once in his pleadings….., it is disclosed that the defendant is transgressing the law or is about to transgress it by his objectionable conduct which injures or impairs human lives an/or endangers the environment the plaintiff, be he an individual or an NGO should be accorded the standing to enforce the law and … thereby save lives and the environment”
“On the issue of the scope the law to life in the instant case, the Court recalls that the dumping of he toxic waste led to the death of at least seventeen (17) people with more than one hundred thousand (100 000) contaminated, There is, therefore, no argument as to the fact that the dumping of the waste violated the right to life. Furthermore, the Court is of the view that the obligation to prevent the violation of the right to life is applicable not only in cases of death but also to all victims. Though the toxic waste had different effects on victims, it was a automatically violated the right to life for all persons who [were] exposed to it. The Court finds, therefore, that the obligation of the States to respect and guarantee the right to life stands in the face of threats and situations which put life in danger even though the threats may not result in death”
“(1) Every individual is entitled to respect for the dignity of his person and accordingly – (a) No person shall be subject to torture or to inhuman or degrading treatment; (b) no person shall be held in slavery or servitude; and (c) no person shall be required to perform forced or compulsory labour”
“Thus any action which inflicts intense pain to the body or mind of a person or any act of physical cruelty which endangers the life or health of a person or creates a well-founded apprehension of danger or an act done in such a manner as to bring a person to public ridicule, disgrace, dishonor or contempt comes within the provision of Section 34(1)(a) of the 1999 Constitution (referring to Uzuokwu).”
“When an application is brought under the [FREP rules], a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental right or the securing of the enforcement thereof should be the main claim and not an accessory claim. Enforcement of fundamental right or securing the enforcement thereof should, from the applicant’s claim as presented, be the principal or fundamental claim, and not an accessory claim”. (2) Sea Trucks was a claim brought under the FREP rules for wrongful termination of employment, raising claims in breach of contract and for violations of the fundamental rights to freedom of movement and association. The key, and oft-quoted passage setting out the ancillary principle comes from the leading judgment of Ogundare JSC in Sea Trucks at p.175: “I think the proper approach is to examine the reliefs sought by the applicant. The grounds for such reliefs and the facts relied upon. If they disclose that breach of fundamental right is incidental or ancillary to the main complaint it is incompetent to proceed under the [FREP] rules”
“Q: We saw that in Sea Trucks. The court looked at relief 3 and relief 4 and contrasted that with relief 2. So what it is doing is weighing them and asking itself what is the centre of gravity of this claim because if the fundamental rights are not the centre of gravity, I don’t have jurisdiction under the FREP rules. A: Absolutely”