The Right of the Child to a Clean Environment by Agata Fijalkowski Malgosia Fitzmaurice

Author:Agata Fijalkowski, Malgosia Fitzmaurice [Agata Fijalkowski, Malgosia Fitzmaurice]
Language: eng
Format: epub
ISBN: 9781138707917
Barnesnoble:
Goodreads: 39232134
Publisher: Routledge
Published: 2017-11-22T00:00:00+00:00

3. Nigerian National Law

3.1 Private law rights

The torts of trespass to land, nuisance and negligence, and also liability under the rule in Ry lands v. Fletcher, are very much a part of Nigerian law, and they are of obvious relevance to environmental protection. However, the limitations of these as a means of guaranteeing a right to a clean environment have been much commented upon.

As regards trespass, the tort is committed when a person, without lawful justification, directly places or projects any material object upon land which is in the possession of another. It has been written that this should be a more fruitful avenue for environmental claims than experience would suggest, since trespass to land is actionable per se and the plaintiff does not need to prove intention or negligence on the part of the defendant to found an action;32 and there is no need to prove damage. However, liability in trespass requires that the placing or projecting of the offending material on the plaintiff’s land must be direct.33 The consequence of this, it has been written, is that for example, ‘while the deliberate dumping of industrial waste on farmland is direct and will found an action in trespass, the dispersal of waste being transported in open trucks on to private property will at best found an action in nuisance’.34 As regards private nuisance, the simple requirement is significant interference with the use of land. This tort is of even more limited utility, because it can only be successful where the interference in question is with the rights of the plaintiff only, or with the rights of the plaintiff in a unique manner. In cases of environmental pollution, the damage will normally be caused to other property users in the area, and this will be fatal to a claim in private nuisance. This reflects the limits of these torts in the context of environmental protection; the environment as such is not the object of protection. Rather, the concern is with the rights of the users of property. For most children, this would, in practice, mean that these torts would not come within the right to a clean environment.

The rule in Rylands v. Fletcher has proved a little more useful from the point of view of environmental protection. The main reason for this is that it founds a strict liability tort where the plaintiff has brought onto the land in the course of a non-natural user of the land something which is likely to do mischief if it escapes. In Umudje v. Shell BP35 the plaintiff complained that the defendants had blocked and diverted a natural stream, thus interfering with their fishing rights, and also that the accumulated oil waste on land under the defendants control had escaped onto his land and had caused damage. The plaintiffs were held liable for the second complaint. In Ikpede v. Shell36 it was held that for the purposes of establishing liability under this rule, the laying of pipes carrying crude oil through swamp forests is a non-natural user of land.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.