The Possible Impossible Hazard From A Transmission Mast; Judicial Activism, A New Page Could Start Today – By U.O. Okocha Esq.

INTRODUCTION

In this paper, the writer attempts to capture some of our fears – chiefly, the reflections will be on the consequences of the erection of tall transmission masts at residential areas. It is already a known fact that we are in the fourth industrial revolution where technology is set to make life worth living. In all the goodies that come with record-breaking technological advancement or enhancement is the dire need to recognise the consumers of the innovations – the beneficiaries that still remain you and I.  Before we all consider the realities our fears may have been two-faced to admit, let us use a second or two to answer the question: “Can you live in a house 10m away from a tall transmission mast 25m+ long? If no, then why?”

THE MYTH – NCC’S POSITION

The Nigerian Communications Commission (hereafter known as NCC), in a 2011 paper presented before Honourable Members of the House of Representatives, called the fears many people patronize as mythical in every standard. NCC relied heavily on WHOs 2006 publication which stressed that the levels of Radiofrequency exposure from Base Stations and wireless networks are so low that the temperature increases are insignificant and do not affect human health. It is tempting to say the fears of radioactive emissions from any such electromagnetic field are indeed mythical, given the submission from the World Health Organization. But whether it will inspire unbelief in the theory of this scientific fable may become our own interpretation to the take home of the WHO when it encouraged extensive research in this area through its research agencies.

NCC will eagerly maintain the following grounds:

1. A transmission mast falls under non-ionizing radiations and as such its effect on a human life is little or nothing; it bears a lesser radiofrequency than a kitchen microwave and it is a copper bottomed promise of “I will never bring cancer to humanity; I will let my people breathe.”
2. At a 5m distance, no hazard can be done to man in his residential abode. The height of the tower above 20m could see emissions en route the sky.
3. There is hardly enough evidence to substantiate the claims of claimants who cry they suffer health challenges from supposed radiations from the tall masts.
4. The failure to keep to the NESREA ACT and Regulations which stipulates that the distance between the mast and a residence must be 10m at the very least is not a matter under tort but attracts a criminal sanction.
5. The clamour for tort of nuisance will never hold sway due to the failure to prove the substantial impact of the alleged emissions on lives and properties – be it public nuisance (criminal in nature) or private nuisance (actionable under tort law).
6. The guidelines of NCC are always followed. There is no erection of a mast above 20m that does not go through scrutiny to attaining an imprimatur or what not.

The arguments are solid. They are almost unimpeachable and the records have proven so. We can even cite judicial authorities like HELIOS TOWER LTD V. BELLO (2015) LPELR-25206(CA) where the claimants could not persuade the Court of Appeal that they suffered health hazards from the emissions. Justice Boloukuromo Moses Ugo JCA was disturbed that the claimants could come arguing private nuisance without bringing expert evidence. The concern of the Court has not waivered as we saw same worries in a 2017 decision, REGT TRUSTEES TLBCC V. OLUBOBOKUN. It seems the myth is a reality and the Court will recognize it as so – after all, jurisprudence is science.

This writer sees what seems right in the sight of the Commission but also recognizes that a false credo is a path to destruction. The fear has not been tested objectively and even if it has, the Court will tag the emotional claimant as a seeker of sentiment. So let’s test a slender position and see if it tips the already superior position.

A REACTION

1. It is true that in the case of HELIOS TOWER LTD V. BELLO, the Justices of the Court of Appeal sided with the NESREA regulations that 10m was the good law. It is however a concern that NESREA and NCC will cling to different positions and fine-tune its yardstick to be that it is keeping to international best practices. Did the Court treat NESREAs finding as correct because it seemed obviously safer? How can we really assess the reasonableness of both of them when there is no impossibility that both positions could have been false? If NCC was wrong in the math, can it not be wrong again?
2. The curiosity of many concerned Nigerian Citizens has now been attributed to verboten myth and legends. The mere fact that WHO opens its porter to extensive research in this area should mean that there is a fraction of uncertainness and one should not throw caution to the wind even literally – we won’t forget the wind and storms that have brought masts to the ground like the WPMI-TV Tower, Robertsdale, Alabama, US on the 12^th of September, 2004 and all the recent catastrophes you will find on WIKIPEDIA. There is thus a tiny appreciation for English to treat an uncertain disposition to mean a consequential myth – they are strange bed fellows no matter how similar; this is beyond semantics but not above logical appreciation. While scientists hold that the emissions from the mast are under non-ionizing radiations, it is also within science that a continuous wave of a non-ionizing radiation could carry same resolve as an ionizing radiation which could be hazardous to human health like changing the genes in human system and bringing fatality to a doorstep. With the possibility, it is unfair to discard the carcinogenic suggestions of scientists especially the International Agency for Research on Cancer (IARC) which firmly believes that electromagnetic field’s emit radiations that are carcinogenic to humans.
3. While we can appreciate the role of the judiciary in keeping tabs with evidence led by the parties, it is curious how the realities of today is shelved in the homes of the Judges to fulfil the impracticable reliability on “facts pleaded” and “evidence led.” Maybe it is indeed practicable, but we read of judgments where the Court tries too hard to draw the line rather than serve what is just without making us seek the books to find new perspectives of what justice really is. Point is, the uncertainty in the findings of scientists should mean that precautionary measures should be in place rather than dismiss every action on nuisance till “a lab rat” tests positive to the emissions indeed. While the court should not deal with speculations, it should not forget that NCC and WHO merely placed a higher speculation on the non-effect of the radioactive frequency but not necessary ruling out the lighter speculations that it could be hazardous to human health. This is not unfounded if we ask ourselves questions like “what was the point of a 10m distance from NESREA all about? Why is WHO still undergoing extensive research?” The Court should not dismiss suits on grounds of speculations and find in favour of upholders of a speculation that ranks higher on a scale.
4. There is the fear that a mast could fall. Many masts have fallen. In Nigeria, we have had stories of a couple; we may even have been victims of such catastrophe. Is it not nuisance if we consider the tall mast falling down and destroying lives and/or properties? I bet it constitutes that. But the expected reaction will be that: “is it private nuisance if there is barely a likelihood of the mast falling?” Indeed, there is a trick in the question. If indeed we understand the role of the concierge of the Law, it would be agreed that if it be possible, the Court should strive to see that all lives and properties are preserved and precautionary or preventive mechanisms are necessary antes. To answer the question, it is incorrect to call that a private nuisance per se, but it is more precise to argue under anticipatory nuisance. There is such a thing as anticipatory nuisance and it is found in the Black’s Law Dictionary – the Spiritual Book lawyers read from. Whether it is known to our jurisprudence is not a proper question to ask; our concern is to quiz on why no one has argued this line. In the old case of ABIOLA V. IJOMA [1970] 2 ALL NLR 268 Dosunmu J cited the observation of Lord Loreburn that “the law of nuisance undoubtedly is elastic, as was stated by Lord Halsbury, who said: ‘what may be called the uncertainty of the test may also be described as its elasticity.” To this end, the test of the term “nuisance” transcends the scope of gaseous hazards (emissions in this case), water pollution, and the usual tested areas. The court should treat each case as it comes ex aequo et bono and consider the issue of anticipatory nuisance with respect to the consideration that the maintenance culture of Nigerian Establishments are weak to a core. The consideration remembers the everyday instances of governmental failures in bridge maintenance, bad roads, power outage due to damaged transformers, to mention a few catastrophes. In fact, this consideration falls within the presumption of the existence of certain facts by the Court of Law vide s.167 EA 2011. There is a need for the Court to disentangle itself from suffering the standard of proof in civil cases to read the onus on a prosecution. This blurry imaginary scale will never reflect the Court as the last hope of the common man.
5. The sections of the NESREA ACT, NESREA Regulations, NCC Guidelines and NCC ACT that talk about the 10 metres distance but allows for a mast to go as high as 35m (even more) is bad law. It is bad with respect to the possibility of the fall of a mast. If it must be erected in a residential area, apart from the issues of the alleged mythology of emissions, the distance between the mast and a house should be far enough that where the mast falls, it will hardly claim life or fall on a building. The argument that its fall will not bring the building down to the point that it claims a life as it is not mast is not same as a heavy boulders is moot. In fact, nuisance is complete where the hazard affects the premises and not necessarily the dweller. The argument that this activism is faulty on grounds that it may be a matter of too much sensitivity as it will be insane to pull down tall buildings say it was not a matter of tall masts, is unfounded. It will be inaccurate to appreciate this particular paragraph without absorbing former points. They are not disjointed and the focus is on a tall mast. We cannot talk about the entire global hazards in a single paper but we can take issues in bits. It is a call for precautionary measures rather than reactionary measures – NESREA and NCC made a mistake, the Court should not. Humans are not lab rats; there are still enough white rats in the market.

CONCLUSION

We cannot exhaust our concerns in this area. With all the alleged myths, it still does not stop the ruins in business lessors’ face in letting out premises that is a tall transmission mast concentrated area. Whether we like to tell it or deny it, the fact remains that lessors in this area have business losses and it leads to loss in the properties’ value. This paper is a call for judicial activism as beyond the uncertain carcinogenic effects of the electromagnetic fields are the certainty in poor maintenance culture of infrastructures in this country – the latter still being an argument under private nuisance. It is almost offensive to regard the sleeplessness of humans in such situation (living 10m opposite a 35m tall mast) as mere giving to phobia. We have had to learn the hard way that promises of good maintenance culture by the government are indeed the myths that emit catastrophes. The court is presumed to know these realities as even proved or certain facts are law or facts recognized in the Evidence Act.