Thursday, January 15, 2009

The gen-set and diesel generation

THERE are at least four major implications of the proliferation and use of power generators in Nigeria. These are the economic, health, environmental and legal. The economic impact was highlighted last week when The Nation and Daily Independent newspapers reported the scandalous amounts budgeted by the Presidency, the National Assembly, Ministries, Departments and agencies of the federal government for the purchase, operation and maintenance of gen-sets as the most reliable alternative to the chronically erratic public power supply from the Power Holding Company of Nigeria (PHCN).

According to the newspapers, the estimated cost of running the various generators is N2 billion at the federal level. But we can extrapolate in order to appreciate the wider implications. Therefore, take all 36 states of the federation and Abuja. They have ministries, departments and agencies, which also have to provide their own electricity. Add to this the 774 local government areas, however remote, because every once in a while, especially as most, if not all, have jettisoned the use of Olympia typewriters, there will be need to run generators as sources of power for computers. At the level of businesses and corporations, expenditures on gen-set operation and maintenance are routine.

Furthermore, from the census exercise of 2006, it is possible to glean the number of households in urban Nigeria. As the PHCN has deteriorated to previously unseen levels of abysmal performance, individual households in Nigeria have turned to gen-sets. It may be a huge task, but economists should research into how much Nigeria and Nigerians are losing each year owing to the inefficiency of PHCN. As we buy more generators, we keep the economies of the manufacturing countries alive, while our own people are wallowing in acute unemployment and want. With merchants ever ready to supply imported diesel, petrol and all, it is clearer still that we, by our inefficiency, are keeping the economies of other countries healthy, while our poverty deepens.

The simple message which the official budget of the federal government coveys is that there is no end in sight to the darkness that has enveloped the country. Diesel and gen-set traders are thereby assured of mouth-watering returns on their investment. The message also states that we have lost another milestone in our sluggish attempt at becoming one of the world's top 20 economies by Year 2020. With so much being voted for diesel and gen-sets this year, it is clear that 2009 cannot be a year of redemption. It is doubtful, then, what the next 10 or so years might unfold to place the country firmly among the world's leading economies - that is, assuming the notion itself wasn't a huge joke in the first place.

What is not so obvious are the other hidden costs and implications of the country's shameful reliance on private gen-sets. Operating a generator has become a necessity, but it is a huge inconvenience. It is also a delicate business. Scores have been killed when their generators exploded. Fires have broken out in homes owing to fuel seepage from gen-sets, which then ignited. A generator at work needs to be monitored to avoid the associated hazards. So, when you are asleep, your body clock is primed to wake up at a certain time for you to switch off the gen-set. Last week, in Benin City, Edo State, a family of five, including a 75-year-old, his 50-year-old wife and their three children became the latest exemplification of the hazards of operating gen-sets, when they died after inhaling noxious fumes from their generator.

Pollution arising from generators is so pervasive as to amount, in effect, to involuntary piecemeal suicide. Every minute we are inhaling carbon monoxide from the smoke belched by vehicles and especially, generators. Our body system is daily exposed to unacceptable high levels of poisons in the air. We are killing ourselves, just because the government is so inept it cannot tackle the power crisis on which the Olusegun Obasanjo administration blew about $16 billion, and the country remains far worse than it had ever been.

With noise pollution from gen-sets, we are virtually hard of hearing and are therefore insensitive to lower decibels. That is why Nigerians shout at the top of their lungs. Combine that with the extreme inconvenience that arises from erratic public power supply, the nuisance of a neighbour whose generator is noisier than yours, or the neighbour who leaves his noisy generator on throughout the night, it is easy to discern why Nigerians are irritable, aggressive and angry. This is the behaviour we carry across our borders and which makes foreigners wonder just what kind of breed we are. It gives us an image problem.

Scientists have propounded the theory of animal omens, by which certain animals by their behaviour foretell impending natural disasters, such as earthquakes. Dogs, for instance, are said to behave in a funny manner when the earth is rumbling underneath. One can speculate that if Nigeria were an earthquake-prone region, we would have lost the benefit of animal omens because the sensitivity of the animals would have been deadened by the excessive noise from our generators. Dogs would have been disoriented from the cacophony of generators vibrating the ground and blasting the canine ear drums.

The use of generators has also altered our jurisprudence in ways that are both subtle and dramatic. One area with such implication is the law of torts; in particular, the tort of private nuisance. There are three categories of private nuisance - physical injury to the plaintiff's property, substantial interference with the plaintiff's user and enjoyment of his land, and interference with easements and profits. It is in the second category, where for example the plaintiff complains of unreasonable noise and smells emanating from a neighbour, that the change has occurred most dramatically in our legal system.

Two cases illustrate how different the attitude is today. In Abiola v. Ijoma (1970) 2 ALL NLR 268, the defendant in 1969 purchased 400 day-old chicks which he kept in his poultry at the rear of his house adjoining the plaintiff's property in Surulere, Lagos. Abiola sought damages together with an injunction to abate the nuisance of nauseating smells and excessive noise from the poultry, which interfered with his comfort. The learned trial judge found in favour of the plaintiff.

He held: In any organised society, everyone must put up with a certain amount of discomfort and annoyance from the activities of his neighbours; and in this case I have to strike a fair and reasonable balance between the defendant, who likes to keep poultry for his pleasure in his house and a neighbour who is entitled to the undisturbed enjoyment of his property. The standard in respect of the discomfort and inconvenience which I have to apply in this case is that of the ordinary reasonable and responsible person who lives in this particular area of Surulere. He concluded: I do not believe that the plaintiff is being fanciful in all his complaints of excessive noise and smells, and they are, in my judgment, more than a trifling inconvenience that an ordinary person living in that part of Surulere, which is a residential area, can be called upon to bear.

The other case, Tebite v. Nigeria Marine & Trading co. Ltd (1971) I U.I.L.R. 432, involved a legal practitioner who had his chambers at 11, Robert Road, Warri, Delta State. The defendants occupied the adjacent property, No. 9, where they engaged in boat building and repairing. The plaintiff sued the defendants for nuisance arising from the defendants' continuous operation for several hours a day, machines which emitted loud and excessive noise and noxious fumes which the plaintiff alleged caused him much discomfort and inconvenience.

The trial judge, Justice Atake, held: The defendants' counsel has very rightly pointed out that generally, people in Nigeria make a lot of noise in their neighbourhood and homes, and that the average Nigerian does put up or should be able to put with a lot of noise. That is not a point that can, for sentimental reasons, be dismissed with a wave of the hand, for counsel was in all seriousness and honesty stating that which we must all acknowledge is very true.

So, what has to be considered in this case is the standard of the ordinary Nigerian, and what one ought to do is to apply the tests laid down in the authorities strictly to the circumstances in our country. But one cannot set an arbitrary and fixed standard and expect it to be applicable in all parts of the country, or indeed in all parts of a town or village. The locality or neighbourhood has all the time to be considered. Further, His Lordship held, the noise produced by the defendant, is certainly a good deal more than any noise that can be produced even in the noisiest Nigerian district... He found for the plaintiff.

Certainly, the noise produced in Nigeria at the time Justice Atake delivered his judgment in favour of the plaintiff was not anywhere close to the bedlam that the use of generators has become. As an indication of the diminution of the value of the remedy available against the tort of private nuisance, particularly as it relates to substantial interference with user and enjoyment of land, Nigerians these days make a joke about the cacophony of various gen-sets in operation in their neighbourhood. In making that jest, Nigerians are simply saying that excessive noise and air pollution arising from the operation of private generators have of necessity become part of our daily usage. By implication, this enlarges the defence available to a tortfeasor in private nuisance. So, why go to court?

As more potential plaintiffs shun the courts in seeking redress for the wrongs committed, so does that class of remedy fall into abeyance. Under the current diesel and gen-set-regime, it is unthinkable that anyone would even contemplate an action in that respect. The courtroom where the case will be tried will most probably be powered by a generator. The wider implications are thus for the rule of law. The rule of law does not begin and end with government-government, or government-citizen relationships as well. A disincentive to enforce rights against wrongs is a relapse to arbitrariness.