INTRODUCTION

1.1       Historical Background

Before the advent of British rule, communities in present day Nigeria utilized customary methods in the settlement of environmental disputes. Thus, the management of the environment in most Nigerian communities is based on customary law concept where this has been modified or repealed by statute. The number of customary laws may be as many as the number of ethnic-groups. There are about 300 ethnic groups in Nigeria.1 Thus in the same state or among the same tribe there exist numerous customary laws.2 The various customs of different ethnic groups and communities in Nigeria contain remedies for environmental pollution. For example, in the Iroko community bush burning under customary law is prohibited. A violation of this law will lead to the arrest of the offender who is taken before the village head who imposes fine on the offender.3 Bush burning has a negative effect on the environment as it pollutes the air, and the fire spreads uncontrollable and on several instances destroyed large areas of land and also causes serious damage to other valuables. For example, in the case of Busari Adediga V. Abati.4 The plaintiff wrote the defendant requesting that he be informed when the defendant would set fire to his farm to enable the plaintiff protect his property.

The defendant claimed to have informed the plaintiff although the plaintiff denied. The 1 Adewale, O. Customary Environmental Law. In Ajomo and Adewale(eds) Environmental Law and Sustainable Development in Nigeria NIALS Lagos and The British Council 1994 p 158. 2 Obilade, A.O Nigeria Legal System, Sweet and Maxwell London 1979 p.83. 3 Adewale, O. Op cit. 4 Ake ‘A’ Native Court 50/1934.  defendant set fire to him farm and went fishing while the farm was burning. The fire went out of control and destroyed the plaintiff's farm. The customary court held that although bush burning is an acceptable customary practice, the defendant was liable for damage to the plaintiff‟s property. Similarly, among the Egbas there exists customary law governing the general use of the stream and pollution. This practice, Adewale5 opined is uniform to some extent amongst various communities and state further that it is also the general practice in the eastern part of Nigeria. Customary law in most part of Nigeria prohibits trespassing, for example, in the north where Nomads move from one place to another for the purpose of grazing their animals. Often animals trespass into farm land and victims claim damages arising from their act6. These customary laws of various communities have been enforced long before the advent of colonial rule. Thus Amokaye7 refers to this period as the first stage of development of environmental law in Nigeria.

The introduction of common law principles and statutory laws by the colonial administration to regulate pollution activities marked the beginning of the second era. Under the common law principles, which forms part of Nigerian legal system it provides means for the institution of legal action for pollution under spheres of nuisance, negligence, trespass to land and the rule in Rylands v. Fletcher8. It should be noted that, nuisance are two types, private and public nuisance which by definition is said to be: