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Wednesday 15 November 2017

AN APPRAISAL OF CRIMINAL PROSECUTION OF OIL COMPANIES UNDER THE HARMFUL WASTE (CRIMINAL PROVISION) ACT LFN 2004



CHAPTER THREE
LEGAL FRAMEWORK
3.0.0 Introduction
In this chapter, efforts will be directed toward the legal framework and under the following headings;
§  The History of Environmental regulations in Nigeria
§  NESREA 2007
§  Harmful Waste (Special Criminal Provision) Act LFN 2004
§  Rules of common law and equity on waste
§  International Laws Regulating Harmful Waste
§  Basel Convention on the control of Trans-Boundary Movement of hazardous waste and other disposal 1989
§  Organization of African unity (OAU) Convention 1991
§  Bamako Convention on the Ban of import to Africa and the control of Trans-Boundary Movement and Management of Hazardous Waste within Africa
§  The Vienna Convention for the Protection of the Ozone Layer 1985
§  National Framework on Waste Management
§  1999 Constitution (Section 20)
§  Federal Environmental Protection Agency Act (FEPA) 1988
§  The National Environmental Management: Waste Act 59 of 2008
§  Petroleum Act Cap.P10 LFN 2004
§  The Environmental Impact Assessment Act 1992
§  Oil in Navigable Water Act LFN 2004
§  Oil Pipeline Act Cap07 LFN 2004
§  State and Local statue
§  Lagos State Environmental Pollution Control Edict 1991
§  Kano State Environmental Protection and Planning Agency Edicts 1990
§  Anambra State Environmental Sanitation Authority Edicts No15
§  Customary law

3.1.0 The History of Environmental regulations in Nigeria
The development of Nigerian environmental regulations can be divided into two:
1) The pre 1988 era
2) The post 1988 era



The Pre 1988 Era: During the colonial era, Nigeria was not concerned about the protection of the environment; it was not a priority. Accordingly, there was no policy aimed at preserving and protecting it. The tort of nuisance was more prominent because disputes in environmental law were not viewed as public matters warranting state intervention.   The few environmentally related laws that were applicable criminalized activities that could degrade the environment. One of the laws was the Criminal Code Act of 1916, which prohibited water pollution and air pollution. In 1917, the Public Health Act was enacted. Although, somewhat broad in scope, this Act did not contain provisions of relevance to the regulation of land, air and water pollution. At this time, matters relating to the environment were dealt with in a rudimentary manner, from the view point of environmental sanitation.

Following Nigeria’s independence in 1960 and the discovery of oil in commercial quantities, laws dealing with the environment obviously became grossly inadequate. This was owing to the fact that most of the provisions on environmental protection were scattered throughout different laws, resulting in ad-hoc response to different needs in different situations. During the decade following independence, the Government criminalized polluting activities, particularly those relating to the discharge of oil in navigable waters and environmental degradation as a result of petroleum activities.
The 1970s saw the further development of the Nigeria’s environmental regime in response to the individual growth associated with the oil boom. River basin authorities64 were created and environmental units were established in some government ministries. The laws were, however, typically “knee-jerk” responses to emergency situations.


 
64. River Basin Development Authority Act, 1987.


Assignment Topic: Question: In the case of Citec Inter Estates Ltd V Edimicosa Inter Inc. & Associates unreported SC 163/2006 decided on 9th June, 2017, the apex court finally settled on the meaning of section 60 of CAMA. So answer the following questions:



INTRODUCTION


Edicomisa International Inc. & Associates, registered under the laws of the United States of America as a corporate entity, was engaged by the Appellant as its “Architects and Engineers-Consultants and Sole-Contractor to do for the Appellant and the Federal Government of Nigeria, the conceptualisation, design, infrastructure and construction of Five Thousand Housing Units at Nbora District in Abuja”.

Part of the business was for the commitment of the Respondent to build two factories for the production of Simplex Cepol Wall and Slab Panels, as well as other elements to be used in the construction of the Housing Units for the Appellant. The Respondent bought all the machinery, equipment and vehicles for the building and operation of the said factories which it had built and immediately commenced the production of the Simplex Cepol Panels for the model houses, in furtherance of the agreement. Although the Respondent was paid for the supply of two new factories at the Nbora site, the Appellant terminated the contracts on the ground that the Respondent had installed second hand and fairly used equipment in the factories, while the factories constructed were unserviceable and unfit for purpose. Upon the termination of the contracts, the Respondent filed an action against the Appellant at the High Court of the Federal Capital Territory, Abuja to enforce its rights.

THE REAL IMPORTANCE OF THIS JUDGMENT

Though section 60 of CAMA was enacted to enhance international trade/commerce; hence, it permits the enforcement by a foreign company, a legal right accruing to it from a lawful business or transaction. The Section does not vest in a foreign company, a legal right to enforce an illegal contract. The situation envisaged by the Legislature when enacting Section 60 is where, for instance, a foreign company has had a transaction with a Nigerian or a Nigerian entity, which transaction could be enforced in Nigeria, but which of course may not have been as a result of any business the foreign company is carrying on in Nigeria.  In this wise, the real importance of this judgment is to discouraged illegal business activities in Nigeria by foreign companies.  A lot of foreign companies are not registered in Nigeria and are carrying out businesses. Some of them evade tax.