Nigeria has experienced litigation challenging private actors for their climate unfriendly operations.

In addition to the human rights grounds that was used in Gbmere v Shell Petroleum Development Company Nigeria Ltd and Nigerian National Petroleum Corporation and Ors, the law of torts has been used. In Chinda v Shell-BP, the Plaintiff sought an injunction against the defendant’s gas flaring activities, which had contributed in destroying his land, houses and economic trees. The court however declined to grant an injunction.

Considering their pro-economic stance, Nigerian courts are more likely to grant compensation rather than injunction. This can be seen from the other tort-based environmental cases such as Allar Irou v Shell BP Development Company (Nigeria) Ltd, where the Plaintiff suffered damage as a result of the Defendant’s oil operations and sued for compensation and injunction. Like in the Chinda case, the court declined to grant injunction, but granted compensation for the damage suffered.

When it comes to standing, the plaintiff must be able to prove the direct injury to the person or community’s wellbeing resulting defendant’s actions to have standing in tort cases (Chinda v Shell-BP).

Whilst there has been climate litigation against private actors, a number of these cases fail because plaintiffs are unable to discharge the burden of proof, as the scientific evidence required is expensive and time consuming. The other reason is the pro-economic stance taken by courts.

In Nigeria, there has been no case challenging the State or governmental department/agency for the approval of projects (likely to) contribute to climate change.

However, there is at least one case that was filed against a government entity for its participation in emitting activities. In Gbmere v Shell Petroleum Development Company Nigeria Ltd and Nigerian National Petroleum Corporation and Ors, a representative of the Iwherekan community in the Niger Delta filed a suit against a private entity (Shell) and the state oil corporation for gas flaring. The suit was based on the ground that the flaring was a violation of the Applicant’s fundamental right to life and dignity guaranteed by Sections 33(1) and 43(2) of the Nigerian Constitution and reinforced by Articles 4, 16 and 24 of the African Charter on Human and Peoples’ Rights. The court held in favour of the plaintiff granting the following remedies: a declaration that the continued gas flaring by respondents violated the Applicants rights to life and human dignity, an order restraining the respondents from further gas flaring, and an order directing the federal government to amend the gas flaring legislation and regulation, that allows for gas flaring, to bring them in line with the constitution.

In addition to the above human rights ground, another ground could be failure to conduct a proper Environmental Impact Assessment (EIA). The Nigerian EIA Act generally subjects activities that could lead to a rise in greenhouse gas emissions to the procedural requirements of the Act: requiring an EIA study to inform the authority’s decision-making on such projects and to allow for public participation within the process. Failure to perform an EIA for a climate unfriendly project could constitute a violation of the Act’s procedural requirements.

Regarding standing, the recent Supreme Court decision in Centre for Oil Pollution Watch V. NNPC [2019] 5 NWLR (Pt. 1666) 518 expanded the standing requirements in environmental matters by introducing public interest litigation. Previously, the standing requirements were restrictive since plaintiffs were required to show that their ‘civil rights’ – narrowly taken to mean ‘private legal right’ – have been or are in danger of being violated or adversely affected by the violation ((Adesanya v Nigeria; Oronto Douglas v Shell Petroleum).  

The lack of litigation against the State or governmental department/agency for project approval could be attributed to:

• The weak and porous judicial review provisions, which, for instance, provide that judicial review of EIA decisions shall be refused where the sole ground is defect in form or a technical irregularity.
• The unreasonably wide discretion and unstrained powers of the public authority in the EIA processes so that such decisions are not questioned by courts.
• Existing laws permitting high emitting activities such as the Gas Re-Injection Act which authorise gas flaring.
• The pro-economic stance of Nigerian courts in general which favour economic benefits of oil industry over environmental protection.

Whilst no climate litigation has been brought by citizen(s) challenging Nigeria’s climate policy, a claim could be filed based on breach of human rights, particularly the right to a healthy environment and the right to life.

Article 24 of the African Charter on Human and Peoples’ Rights states that ‘all peoples shall have the rights to a general satisfactory environment favourable to their development.’ This can be invoked in Nigerian domestic courts as the Charter has been domesticated into Nigerian law (Social and Economic Rights Action Centre and Another v Nigeria). The Nigerian Supreme Court has held that the provisions of the African Charter are enforceable before Nigerian courts (Abacha v Fawehinmi). Secondly, Section 33 of the Nigerian Constitution guarantees the right to life, which implicitly includes a right to a clean and healthy environment and the government has a duty to protect and not to threaten or violate this right (Centre for Oil Pollution Watch V. NNPC).

For standing, any person can file personal, representative, and public interest suits in the enforcement of the fundamental human rights provisions of the Constitution and African Charter.  Additionally, no human rights case may be dismissed or struck out for want of locus standi. (Paragraph 3 of the Preamble of the Fundamental Rights (Enforcement Procedure) Rules (2009).

If found to be in violation of the rights above, a court may declare the climate law incompatible with human rights provisions of the Nigerian Constitution and the African Charter on Human and People’s Rights, and consequently invalidate it (Sec. 1(3) Nigerian Constitution). The court only declares an incompatibility and does not order replacement of the law, rather it is left for the executive and legislative branches to revise the law and bring it in compliance with the Constitution and the Charter.

A possible reason for the lack of litigation could be the absence of a legislative instrument focusing on climate change that would be the subject of such challenge. While there exists a Climate Change Policy Response and Strategy, it is merely directional and not enforceable in court.