IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HER LORDSHIP HON. JUSTICE E. A. OJI, PhD

 

DATE:  FRIDAY 26TH FEBRUARY 2021                      SUIT NO: NICN/LA/411/2020

 

BETWEEN

PETROLEUM AND NATURAL GAS SENIOR

STAFF ASSOCIATION OF NIGERIA

(PENGASSAN)

1.     OYEGBANREN OMATSONE ETE

2.     AGHAUNOR LAVIN IFEAKACHUKWU                                       CLAIMANTS

3.     AKATA MICHAEL BIBOEBI

(SUING FOR THEMSELVES AND ON BEHALF OF ALL

THE MEMBERS OF PETROLEUM AND NATURAL GAS

SENIOR STAFF ASSOCIATION OF NIGERIA

CHEVRON BRANCH)

AND

CHEVRON NIGERIA LIMITED                                                             DEFENDANT

 

Representation:

M I Abu for the Claimants

Etigwe Uwa (SAN) for the Defendant, with L. Soetan and O Omaghomi(Mrs.)

 

 

JUDGMENT

Introduction:

 

1.   By an Originating Summons dated 7th October 2020, the Claimants instituted this action against the Defendant seeking the Court’s determination of the question:

Whether by virtue of GUIDELINES FOR THE RELEASE OF STAFF IN THE NIGERIA OIL AND GAS INDUSTRY 2019 dated 17th day of October 2019, the DEFENDANT ought not to obtain the written approval of the Minister of Petroleum Resources before embarking on any staff reduction and or redundancy exercise.

 

2.   The Claimants in addition seeks the following reliefs:

 

a.                  A Declaration that the Defendant is bound by the provisions of the Guidelines for the Release of Staff in the Nigeria Oil and Gas Industry 2019 dated 17th October, 2019.

b.                 A Declaration that the refusal of the Defendant to obtain the necessary approvals of the Minister of Petroleum Resources before embarking on any staff reduction or redundancy exercise affecting members of the Claimants in its employ is manifestly illegal, unjust and wrongful.

c.                  An Order of perpetual injunction restraining the Defendant from embarking on any staff reduction exercise either by way of redundancy, expression of interest in redundancy, reapplication and or wrongful transfer of members of the Claimants in its employ in breach of Nigerian law and international labour practices.

d.                 An Order directing the Defendant to pay the Claimants the sum of N200,000,000.00 (Two Hundred Million Naira) as damages and compensation for unfair employment practices, emotional/psychological trauma, wrongful acts and untold hardship suffered as a result of the alleged wrongful, arbitrary, illegal and oppressive actions of the Defendant.

e.                  Costs of the action.

 

3.  The Originating summons is supported by an affidavit deposed to by Aghaunor Lavin Ifeakachukwu (3rd Claimant).  The Deponent stated that he had the consent of the other Claimants and all the members of the Petroleum and Natural Gas Senior Staff Association of Nigeria (Chevron Branch) to depose to the affidavit and to institute this action.  He stated that the Claimants were comprised of two thousand and eighty-seven (2,087) strong senior personnel in the employment of the Defendant with identical letters of appointment and conditions of service some of which are also enshrined in the Collective Bargaining Agreement. The Defendant, in recognition of the representative status of the Claimants voluntarily entered into a Collective Bargaining Agreement (CBA) dated 16th day of December 2019.   

 

The Claimants’ Case:

4.   It is the Claimants’ case that their employment is also regulated by the GUIDELINES FOR THE RELEASE OF STAFF IN THE NIGERIA OIL AND GAS INDUSTRY 2019 dated 17th day of October 2019.  That on 22nd day of September 2020, the Defendant invited the 3rd Claimant and other members of the Petroleum and Natural Gas Senior Staff Association of Nigeria (Chevron Branch) to a meeting at Eko Hotel and Suites, 1415 Adetokunbo Ademola Street, Victoria Island, Lagos State and made a presentation on its intention to embark on a staff reduction exercise. On the 28th day of September 2020, without any agreement or consensus or discussions on the gratuities, pensions and other emoluments payable to members of the Claimants as Senior Employees as dictated by the law and international labour standards and practices, the Managing Director of the Defendant, acting in concert with some members of the management committee rolled out an illegal redundancy project tagged “Project Evolution.” Sometime in October, 2020 the Defendant decided to sack 25% staff from the workforce without any notice whatsoever. Since the Defendant blatantly refused to comply with the provisions of the Collective Bargaining Agreement and Guideline, the members of the 1sT Claimant decided to embark on an industrial action. Based on the industrial action, the Defendant was compelled to suspend the implementation of the decision to reduce the workforce by 25%.

 

5.  It is further the Claimants’ case that though the planned reduction of staff has been suspended, the Defendant is looking for a most auspicious time to carry out the plan.  The Deponent states that the Defendant has a duty to ensure that the written approval of the Minister of Petroleum Resources is first had and obtained before embarking on any staff reduction exercise; and the Defendant has neither sought nor obtained the written approval as required by law.  That, the Defendant has declared its desperation to complete the staff reduction exercise; and has informed all the members of the 1st Claimant that their last day of employment shall be 27th November 2020. 

 

6.  In their Written Address in support of the Originating Summons, the Claimants raised a lone issue for determination; to wit:

 

Whether by virtue of Nigerian law, the Defendant is under an obligation to take steps as prescribed by the guidelines for the release of staff in the Nigeria oil and gas industry 2019 dated 17th October 2019 before embarking on any staff reduction exercise.

 

7.  Arguing the lone issue set above, the Claimants stated that where the law prescribes the method of doing a thing, that method and no other method must be followed; relying on the case of Yaki v. Bagudu (2015) 18 NWLR (PT. 1491) 288 at 348 paragraphs E - F; Saude v. Abdullahi (1989) 4 NWLR (PT. 116)387 @ 422; and Adhekegba v. Minister of Defence (2013) 17 NWLR (PT. 1382) 126 @ 147. The Claimants submit that the Defendant has no legally justifiable reason for refusing to comply with the provisions of the Law as no one is above the law. The Claimants argued that there is considerable weight and force in the Regulations on the Release of Staff in the Nigeria Oil and Gas industry dated 17th October 2019; and referred to the case of Amasike v. the Registrar General CAC & Anor (2010) LPELR-456 (SC) P. 106, Paras. B-D wherein the Court held that; “a public body or authority vested with statutory powers must act within the law and take care not to exceed or abuse its powers. It must keep within the limits of the authority given to it”.  the Claimants further argued that the provisions of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 will override any and all of the provisions of the Collective Bargaining Agreement by virtue of Clementina Ogunniyi v. Hon. Minister of FCT & Anor (2014) LPELR-23164(CA) in the event of any conflict. 

 

8.  Relying on the case of ACB Plc v. Nwodika (1996) 4 NWLR (pt. 443) 470 and Texaco v. Kehinde (2001) 6 NWLR (pt. 708) P. 224 at 239 the Claimants argued that they can enforce the Collective Bargaining Agreement in this court provided they come in a representative capacity.  They submit that they are on a terra firma in relying on the Collective Bargaining Agreement “save Article 19 which is invalid as parties cannot by consent or acquiescence or failure to object, nullify the effect of a legislation”.  The Claimants further submit that the said Regulation is in line with the obligations of the Ministry of Petroleum Resources and Department of Petroleum Resources as a government agency to carry out its statutory duty to ensure stability of industrial relations and for the promotion and protection of sound labour practices in the Nigerian oil and gas industry.  The Claimant also argued that Section 91 of the Labour Act does not apply to the Claimants as they do not fall under the definition of a "worker" under that law. 

 

 

 

Case of the Defendant

 

9.  The Defendant responded to the originating summons by filing a counter affidavit deposed to by Kenneth Narebor, its Industrial Relations Manager.  The Defendant is a company engaged in oil exploration and production. The Defendant is also the operator of the Nigerian National Petroleum Corporation (NNPC)/Chevron Nigeria Limited Joint Venture (NNPC/CNL JV).  As a result of the current low global oil prices and the very deleterious effect of the COVID-19 pandemic, the Defendant is constrained to reorganise its departments and roles in order to streamline its process and operate with reduced overheads and staff cost as has been done by Defendant’s affiliates all over the world.  The Defendant then conceived Project Evolution under which programme some departments and roles were to be merged and the resulting organisation would reduce manpower requirements. Existing members of staff would be informed of the roles available in the new organisational structure and the requirements for each position. Members of staff would be required to apply for roles which they consider themselves suited for. The Defendant’s management will then select the most suitable candidate for each role.   Members of staff who are not selected for any roles in the new organisation would be offered a redundancy package upon terms that were in accordance with the Collective Agreement between the 1st Claimant and the Defendant.  Members of staff who were not interested in any of the roles in the new organisation could also apply directly for redundancy under the programme.

 

10.  The Defendant arranged a meeting with the 1st Claimant to intimate it of Project Evolution.  The Defendant explained its need to reduce the staff strength as well as the plan to invite all employees to apply for new roles in the Defendant.  The Defendant also informed the 1st Claimant of the terms of the redundancy programme. The Defendant then invited its staff to express interest in the programme but the 1st Claimant and its members refused to consider the proposal and then embarked on a strike action.  The plan to reduce the number of the Respondent’s staff is provided for under the Collective Agreement between the 1st Claimant and the Respondent. It is also a widely accepted business practice in difficult economic times.  The 1st Claimant and its members embarked on the strike action without the knowledge that the terms of Project Evolution was already being examined by the Department of Petroleum Resources (DPR) and the NNPC. 

 

11.  The Defendant asserts that it is not bound by the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 but that it did inform the DPR of its intention to commence a reorganisation. Thereafter, the NNPC invited the 1st Claimant and the Defendant to meetings to discuss the terms of Project Evolution and to see if there could be consensus on how to implement the programme. Pending the outcome of the meetings with the NNPC, the Defendant suspended Project Evolution. However, during the pendency of the meetings with NNPC, the Claimants filed this Originating Summons. The Defendant states that the approval of the Minister under the Guidelines is only to be sought when the workers to be made redundant have been identified; and that the Defendant’s workers to be declared redundant had and have not yet been identified. 

 

12.  In its written address, the Defendant raised two issues for determination:

1.      Whether having regard to the current Nigerian law, the Defendant is under an obligation to comply with the Guidelines for the Release of Staff in the Nigeria Oil and Gas Industry 2019 dated 17th October 2019 before embarking on any staff reduction exercise.

 

2.      If the Defendant is under an obligation to comply with the Guidelines for the Release of Staff in the Nigeria Oil and Gas Industry 2019 dated 17th October 2019, is the present action not premature considering all the circumstances of the case?

 

13.  In arguing issue one, the Defendant submits that a matter of termination of an employee can only be subject to the contractual relationship which is usually between the employer and the employee; and that the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 is not binding on the Defendant.  They relied on the case of Shell Petroleum Development Company v. Nwawka & The Director of Petroleum Resources, [2001] 10 NWLR (Pt. 720) 64 where the Court held that:

A directive from a stranger or third party to a contract may not be construed to derogate from such contractual relationship and that the DPR cannot issue any directive that could have the effect of affecting that contractual relationship.

 

14.  On its issue two, the Defendant submits that assuming without conceding that the Defendant is bound by the Guidelines, it has not breached the said Guidelines.  Firstly, that there is no provision of the Guidelines that mandates the Defendant to seek permission before commencing its redundancy procedure. The Guidelines only seek to proscribe the declaration of a worker as redundant before approval is obtained. The Defendant argues that its workers to be declared redundant had and have not yet been identified and that it had only reached the stage where it asked members of its staff to apply for positions in the new organisation or express interest in being made redundant.  Furthermore, that even if the Guidelines were applicable and had been breached, the provisions can only be enforced by the Director of the Department of Petroleum Resources (DPR) and not private or individual persons. The Defendant submits that in the circumstance, Claimants would be better off petitioning the DPR to enforce its right which they assume have been breached.

 

15.  The Claimants alongside the originating summons filed a motion on notice seeking the following orders:

 

1.                 AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Respondent either by themselves, their agents, privies, servants whatsoever and howsoever described from conducting or supervising or carrying out any staff reduction exercise either by way of invitation to members of the Claimants to express interest in redundancy or reapplication for fresh jobs or forceful transfer to another job pending the hearing and determination of the Originating Summons.

 

2.                 AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Respondent, either by themselves, or through their officers, officials, subordinates, staff, agents, servants, privies, assigns or any person claiming through or deriving authority from them or in any manner, howsoever, from commencing or continuing any plan, action or activity directed at or having the effect of interfering with, stopping, preventing, impeding, obstructing, hindering or in any manner, howsoever, or by any means whatsoever, with the employment rights of the Claimants and its members pending the hearing and determination of the Originating Summons.

 

3.                 AN ORDER OF INTERLOCUTURY INJUNCTION restraining the Respondent whether by themselves or by their agents or privies from continuing with the forceful expression of interest, redundancy, reapplication for fresh jobs or forced redundancy, pending the hearing and determination of the Originating Summons.

 

AND FOR SUCH FURTHER ORDERS or other orders as this Honourable Court may deem fit to make in the circumstances.

 

16.  The Claimants brought the application on the grounds that being employees of the Defendant; they are entitled to have their rights protected under the law.  Being that the matter filed on the 13th of October 2020 came up for the first time on 15th of December at which time the parties had filed all their processes in relation to both the originating summons and the motion on notice, it was agreed that the best way to go would be to take the motion together with the originating summons.  The facts upon which the application is founded are exactly the same as the facts supporting the originating summons.

 

17.  In their argument in support of the application, the Claimants raised the issue whether they have placed sufficient materials before this Honourable Court to be entitled to the preservative orders sought.  The Claimants then submit that they have and that there is real risk and likelihood of dissipation and total erosion of the res in this suit that may render the eventual decision of this court in this suit nugatory. 

 

18.  The Defendant responded to the application by filing a counter affidavit and arguments in opposition. The counter affidavit contains substantially the same facts as those averred in Defendant’s counter affidavit in opposition to the originating summons.  In addition, the deponent, Kenneth Narebor stated that the reliefs sought by this application are reliefs which overlap on the substantive issues raised in the Originating Summons and that the Applicants failed to give an undertaking as to damages in their affidavit in the event that their claims are unsuccessful.

 

19.  The Defendant, in its written address in raised four issues for determination:

                             i.            Whether an injunction can be granted to restrain an employer from imposing a redundancy as sought in this application.

 

                          ii.            Whether the applicant has made out a case satisfying the requirements for the grant of an application for interlocutory injunction.

 

                        iii.            Whether a court faced with a motion for interlocutory injunction must not refrain from making any pronouncement on the substantive issues at an interlocutory stage.

 

                        iv.            Whether a court is not entitled to strike out paragraphs of an affidavit which contains extraneous material.

 

20.  In arguing the issues, the Defendant submits that Defendant’s actions of conducting its reduction exercise on the basis of redundancy, which this application seeks to restrain, will not foist a fait accompli on this Court; and that the Courts have always been enjoined not to grant any form of injunction against an employer that would force a willing servant on an unwilling employer. The Defendant on issue two contends that the Claimant has not made out a case satisfying the requirements for the grant of an interlocutory injunction.  The Defendant submits that the Claimants have not established that they have a legal right to stay in the employment of the Defendant or that an award of damages will not adequately compensate for any wrong that may occur.  The Defendant further submits that the Claimant made no undertaking as to damages.  On its issue three, the Defendant submits that it is the law that a Court of Law will refrain from delving into substantive issues at a preliminary stage of the proceedings. Finally, the Defendant submits on its issue four that paragraphs 7, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of the affidavit in support of the application offends the provision of section 115(2) of the Evidence Act 2011 and should be struck out.

 

DECISION:

21.  There are two matters for resolution in this judgment.  First is the motion on notice for interlocutory injunctions dated 13th October 2020.  The second is the originating summons also dated 13th October 2020.  Being that the application for injunction and the originating summons are being determined together, it would appear that it is totally unnecessary to begin a resolution of the application for interlocutory injunction since the res sought to be preserved, is also being determined at the same time.  However, since by Order 17 Rule 10; “ every motion filed before the Court shall be set down and ruled upon and no motion shall be left in abeyance”; and Rule 11; “in any case pending before the Court, any motion filed as an interlocutory application shall be heard and ruled upon before the final judgment is delivered in the matter”; I shall proceed with the resolution of the motion for interlocutory application under issue one and the resolution of the originating summons under issues two and three as set out below:

(I)    Whether the Claimants are entitled to the orders sought in the motion on notice;

(II)                        Whether by virtue of Guidelines for the Release of Staff in the Nigeria Oil and Gas Industry 2019 dated 17th day of October 2019, the Defendant ought not to obtain the written approval of the Minister of Petroleum Resources before embarking on any staff reduction and or redundancy exercise; and

(III)                    If the resolution of issue two above is in the positive, whether that obligation had arisen in the circumstances of this case.

Issue one

22. The conditions for the grant of interlocutory injunctions listed in the case of Kotoye v. CBN (1989) 1 NWLR (PT. 98) 419 at 441) have been followed in a plethora of cases, that need no mention.  This is so especially since the parties both agree on the applicability of the said authority to this application.  According to Nnaemeka-Agu JSC, in the said celebrated case of Kotoye v. Central Bank of Nigeria:

In an interlocutory injunction application, the Court has to decide a number of important factors including:

(a)             That the applicant must show that there is a serious question to be tried i.e. that the applicant has a real possibility, not a probability of success at the trial, notwithstanding the defendant’s technical defence (if any). [Obeya Memorial Specialist Hospital v. A – G, Federation (1987) 3 NWLR (Pt. 60 325 followed)];

(b)             That the applicant must show that the balance of convenience is on his side, that is, that more justice will result in granting the application than in refusing it. [Missini v. Balogun (1968) 1 All N.L.R. 318 referred to];

(c)             That the applicant must show that damages cannot be an adequate compensation for his damage or injury if he succeeds at the end of the day;

(d)             That the applicant must show that his conduct is not reprehensible, for example that he is not guilty of any delay;

(e)             No order for interlocutory injunction should be made on notice unless that applicant gives a satisfactory undertaking as to damages save in recognised exceptions.

(f)               Where a court of first instance fails to extract an undertaking as to damages, an appellate court ought normally to discharge the order of injunction on appeal.

23.  What is required to be determined is if this application meets all the requirements for the grant of an interlocutory injunction listed above.  I have considered the basis for the application as stated on its face, in the affidavit in support and the arguments of Counsel.  Two things are obvious: the facts relied on in the motion are exactly the facts relied on in the originating summons; and the reliefs sought in the motion can be summarised into relief three sought in the originating summons.  Trial Courts have been cautioned to be wary and not grant the main Reliefs sought in the main suit, at an interlocutory stage.  In George Okechukwu Enwezor v. Withech Industries Limited & ors  2008 LPELR -4193 (CA) the court held that:

It is well settled that in dealing with an interlocutory injunction, and indeed, any interlocutory application, the court ought to be wary not to decide the main question or issue in the substantive suit. This is the outcome of the decision of this Court in the case Nigerian Civil Service Union V. Essien (1985) 3 NWLR (Pt.12) 306 at 316 where Nnameka - Agu J.C.A. (as he then was) stated: "In this state of the facts, it appears to me that ... the learned trial judge was in error to have proceeded to hear and determine the application for injunction the affidavit in support of depended largely on the main issue which had been joined in the substantive suit at this stage." To the same effect were the statement of Lords Diplock in the case of American Cyananied Co. V. Ethicon Ltd. (1975) 1 A.E.R. 504 at 510 where he said: "It is no part of Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature deliberations. These are matters to be dealt with at the trial." To do otherwise is to violate the right of fair hearing - the audi alteram partem principle of natural justice." Per TSAMIYA, J.C.A. (Pp. 23-24, paras. F-F) -.

24.  This Court should therefore not make pronouncements in an interlocutory application on a matter which will still have to be considered and decided between the parties in the main suit that is pending.  See also Ajidahun & Ors v. Olabode & Ors (2016) LPELR-40092(CA).  I heed to this caution and refrain from considering the substance of this application as it will invariably lead to a resolution of issues in the substantive suit.  The reliefs sought in this application are refused, and the application dismissed.  The injunction of Mohammed JSC in D.P.C.C. Ltd v. B.P.C. Ltd (2008) 4 NWLR (Pt. 1077) 376 at Pp. 407-408, paras. D-A; P. 408, paras. A-E has been appropriated in this case.  His Lordship had enjoined that:

“In practically most applications for interlocutory injunction, the justice of the case can quite often be met by accelerating the hearing instead of granting an order of interlocutory injunction”. The originating summons having been heard expeditiously actually dissipates the need to make a ruling on this interlocutory application.  Be that as it may, based on the reason already stated in paragraph 22 above, the application for interlocutory injunction is refused, and dismissed.  A successful application for interlocutory injunction simply keeps matters in status quo until completion of hearing. But a successful hearing disposes of the matter for good. The better view is, therefore, that whenever it is possible to accelerate the hearing instead of wading through massive affidavits and hearing lengthy arguments on interlocutory injunction, the court should accelerate the hearing and decide finally on the rights of the parties."

Issue two:

25.  Issue two seeks to determine the main question put to this Court in this suit, “Whether by virtue of Guidelines for the Release of Staff in the Nigeria Oil and Gas Industry 2019 dated 17th day of October 2019, the Respondent ought not to obtain the written approval of the Minister of Petroleum Resources before embarking on any staff reduction and or redundancy exercise.”  The Claimants in their affidavit in support of this originating summons referred to five documents; while the Defendant referred to the letters of employment of the 2nd, 3rd and 4th Defendants.  These documents are now marked as exhibits A1-3 to E for purposes of easy reference, as follows:

1.                  Copies of the employment letters of 2nd to 4th Claimants are exhibit A1-3.

2.                  The Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 is exhibit B.

3.                  The Collective Bargaining Agreement between the 1st Claimant and the Defendant is exhibit C.

4.                  News Report on Defendants 25% job cuts dated 2nd October, 2020 is  exhibit D.

5.                  Report of the Industrial action is exhibit E.

 

26.  During the hearing of the originating summons, Learned Senior Counsel for the Defendant in adumbration challenged the admissibility of exhibit B on the ground that it is a public document and ought to have been certified as a true copy; which was not done.  I have considered this objection vis-à-vis the nature of the document.  Exhibit B is shown as having been issued pursuant to the provisions of Regulation 15A of the Petroleum (Drilling and Production) Regulations 1969 (as amended), which in turn is made pursuant to Section 9 of the Petroleum Act, Cap P10 LFN, 2004.  This in my view makes exhibit B a subsidiary legislation. If it is so, then it has the force of law. Subsidiary legislations just like legislation are to be cited in Court; and are not to be tendered as exhibits. In this respect, Section 122(1) and (2)(a) of the Evidence Act 2011 provides that:

 

122 (1). No fact of which the Court shall judicial notice under this section needs to be proved.

(2) The court shall take judicial notice of the following facts: 
(a) all laws or enactments and any subsidiary legislation made there under having the force of    law now or heretofore in force, or hereafter to be in force, in any part of Nigeria;

(b) all public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly. as the case may be, ancl all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House Assembly to be judicially noticed.

 

I am of the view that the Guidelines (exhibit B) is admissible as the Court can ordinarily take judicial notice of it.  It is important on this point to note that the Defence actually listed the Guidelines as number “a” in its list of statutes.  I must also note that this finding has no implications on its applicability to the Defendant as sought to be established in this suit, except to allow this Court to consider it. 

 

27.  However, assuming I am wrong in ascribing the Guidelines with the character of subsidiary legislation, I note that the Defence did not challenge the fact of the existence or authenticity of the Guidelines.  On the contrary, the Defendant recognised and argued on the content and its import in relation to the parties.  This suggests to me that the challenge on the admissibility of the document is founded on technicality.  The Courts have condemned any judicial decision that unduly adheres to technicality, at the expense of justice.  See Broad Bank Nig. Ltd v. Alhaji S. Olayiwola & Sons Ltd & Anor (2005) All FWLR (Pt.251) 235 at 249-51 SC and Olam Nigeria Plc. v. Onaghinor (2011) LPELR-8956(CA) and Bello v. A.G. Oyo State (1986) 5 NWLR (PT.45) 528. The Court of Appeal in Ekpenetu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276 @ 297, citing Famfa Oil Ltd. v. AGF (2003) 18 NWLR (Pt. 852)453, stated that Courts of Law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned.  Justice can only be done in substance and not by impeding it with mere technical procedural irregularities occasioning no miscarriage of justice.

 

28.  His Lordship Nweze JSC, stated the essence of requiring the certified true copy of public documents in the case of Emeka v. Chuba-Ikpeazu & Ors (2017) LPELR-41920(SC) as follows: "The whole essence of the Court's insistence of the scrupulous adherence to the above certification requirement of public document is to vouchsafe their authenticity vis-a-vis the original copies, to third parties”.  Assuming therefore that this document is such as requires certification, since the Defendant has not in any way challenged the authenticity of the tendered document, but has actually recognised its existence, I am convinced it will not be in the interest of justice to throw this document away, and not determine this matter on the merits.  It is on this basis that I am convinced that this is a good cause to call in the provision of section 12 (2) of the National Industrial Act which enables this Court to (a) regulate its procedure and proceedings as it thinks fit; and (b) be bound by the Evidence Act but may depart from it in the interest of justice.  I so apply this section and proceed to consider the applicability or otherwise, of the said Guidelines to the Defendant.

 

29.  It is trite that in a contract of employment, parties are bound by the agreement and the Court may not introduce any term or condition not agreed by the parties.  Thus, where a party asserts that a particular term applies to him, it is the responsibility of that party to show how that term has become applicable to him.  The Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 contain terms which the Claimants allege apply to their employment.  Relevant portions of the Guidelines are produced below for clarity:

 

1.1 These Guidelines are issued pursuant to the provisions of Regulation 15A of the Petroleum (Drilling and Production) Regulations 1969 (as amended), which are made pursuant to Section 9 of the Petroleum Act, Cap P10 LFN, 2004.

1.2 Regulation 15A of the Petroleum (Drilling and Production) (Amendment) Regulations 1988 states that “the holder of an oil mining lease, licence or permit issued under the Petroleum Act 1969 or under regulations made thereunder or any person registered to provide any services in relation thereto, shall not remove any Worker from his employment except in accordance with guidelines that may be specified from time to time by the Minister.

1.3 The purpose of these Guidelines is to establish the procedure for obtaining the approval of the Minister of Petroleum Resources through the Department of Petroleum Resources, for the release of any Worker employed by the holder of an oil mining lease, licence or permit under the Petroleum Act or under Regulations made thereunder or any person registered to provide any services in relation thereto.

           

            4.0 PROCEDURE FOR STAFF RELEASE

4.1 Any Employer who wishes to release a Worker shall apply in writing to the Director for the Minister’s approval stating the manner of staff release, the reasons for the proposed release, the compensation due to the Worker, and any proposed replacement for the Worker. The application shall contain a copy of any document relevant to the Worker’s employment including the Employer’s Conditions of Service as defined under these Guidelines. 

 

            4.4 Where the Worker’s release is by involuntary retirement, dismissal, termination, redundancy or on medical grounds, the DPR shall conduct an inquiry into the circumstances of the proposed staff release and make a decision on whether to convey the Minister’s approval or otherwise. To this extent the Employer shall not advertise, publish or make a press release in respect of the release of the Worker prior to the DPR’s decision as such an advertisement, publication or press release may prejudice the outcome of the inquiry.

 

30.   The 2019 Guidelines is clearly shown to be issued pursuant to powers derived from the Petroleum (Drilling and Production) Regulations, 1969 (as amended) (“PDPR”) and the Petroleum Act. There is a specific reference to “Regulation 15A of the Petroleum (Drilling and Production) (Amendment) Regulations 1988” and the provision of that Regulation is stated in the Guidelines.  It is clear from the provision itself, that the Guidelines can only contain powers ordinarily exercisable by the Minister.  Neither Regulation 15A of the Petroleum (Drilling and Production) Regulations 1969 (as amended), nor Section 9 of the Petroleum Act, Cap P10 LFN, 2004  donates powers of regulation of private contracts of employment, to the Minister.  The above mentioned legislations did not empower the Minister to regulate and introduce terms into the contracts of employment entered between parties in their individual capacities.      

 

31.  Section 9 of the Petroleum Act is also reproduced for purposes of clarity. 

9.   Regulations

(1)  The Minister may make regulations—

       (a)        prescribing anything requiring to be prescribed for the purposes of this Act;

       (b)        Providing generally for matters relating to licences and leases granted under this Act and operations carried on thereunder, including—

       (i)       Safe working;

       (ii)       The conservation of petroleum resources;

      (iii)       The prevention of pollution of water courses and the

 atmosphere;

     (iv)     The making of reports and returns (including the

reporting of accidents);

       (v)        Inquiries into accidents;

       (vi)    The keeping and inspection of records, books, statistics,

     accounts and plans;

       (vii)   The measurement of production; and

       (viii)    The measurement of crude oil delivered to refineries;

       (c)       Regulating the construction, maintenance and operation

of installations used in pursuance of this Act;

       (d)    Regulating refineries and refining operations, and, where two or more refineries are in operation, specifying—

(i)               The proportion or quantity of crude oil to be supplied to each refinery;

       (ii)        the share of each refinery in the total market; and

       (iii)        the prices of refinery products;

       (e)        regulating the importation, handling, storage and distribution of petroleum, petroleum products and other flammable oils and liquids, and in particular (without prejudice to the generality of the foregoing)—

       (i)        prohibiting the importation or exportation of petroleum or petroleum products except at specified ports or places;

       (ii)        prescribing the notice to be given (and the person by whom the same shall be given) on the arrival at a port of a ship carrying petroleum or petroleum products as cargo;

       (iii)        defining dangerous petroleum and dangerous petroleum products, prescribing anchorages for ships carrying dangerous petroleum or dangerous petroleum products as cargo and requiring those ships to proceed to and remain at those anchorages;

       (iv)        regulating the loading, unloading, transport within a port, landing, trans-shipment and shipment of petroleum and petroleum products;

       (v)        providing for the licensing of lighters and other craft to carry petroleum and petroleum products within a port;

       (vi)        prescribing conditions and restrictions to be imposed upon vessels arriving at a port after having carried petroleum, petroleum products, dangerous petroleum or dangerous petroleum products;

       (vii)        providing for the examination and testing of petroleum and petroleum products, and prescribing the tests to be applied to ascertain its flash-point and the method of applying those tests; and

       (viii)        subject to subsection (2) of this section, regulating the transport of petroleum and petroleum products, prescribing the quantity of petroleum and petroleum products which may be carried in any vessel, cart, truck, railway wagon or other vehicle, the manner in which they shall be stored when being so carried, the receptacles in which they shall be contained when being so carried and the quantities to be contained in those receptacles, and providing for the search and inspection of any such vessel, cart, truck, railway wagon or other vehicle;

       (f)        conferring or imposing on public officers for the purposes of this Act powers and duties additional to those conferred or imposed by section 8 of this Act;

       (g)        where paragraph (a) of this subsection does not apply; prescribing—

       (i)        forms to be used for the purposes of this Act; and

       (ii)        fees to be charged in connection with the operation of this Act (including, without prejudice to the generality of the foregoing, fees for the giving of any permission by the Minister and for the supplying of any document or other material, the carrying out of any examination and the doing of any other thing by him); and

       (h)        providing for such other matters as in his opinion may be necessary or desirable in order to give proper effect to this Act.

(2)  Regulations made under subsection (1) (e) (viii) of this section shall apply only where petroleum or petroleum products are being transported—

       (a)        on the waters mentioned in item 36 (a) and (b) of Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999; or

[Second Schedule. Cap. C23.]

       (b)        by railway or transport ancillary thereto; or

       (c)        on trunk roads within the meaning of item 62 of that Part of that Schedule.

 

32.  The above reproduced section of the Petroleum Act did not contemplate the type of regulation contained in the Guidelines under consideration.  The non-inclusion of the power to regulate private employment contracts is in consonance with the age-old principle of sanctity of contracts.  In this case where parties have agreed on contractual terms, I have not found the legal justification to allow the Minister or his designate, to modify the terms by means of Directives, Circulars, Guidelines and similar instruments.  In the case of S.P.D.C.N. Ltd. v. Nwawka (2003) 6 NWLR (Pt.815)184, the Supreme Court restated the sanctity of contracts and refused to allow the application of the Directive of the DPR into an individual contract; and held that:

 

The Court below relied on the case of Chukwuma v. Shell Petroleum Development of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) 512 to hold that the directive of the 7th defendant could not affect the contractual relationship of the parties. The respondent argued in the cross-appeal that the court below was in error. In Chukwuma's case this court refused to rely on an extraneous agreement and policy statement not part of the contract between the parties and not incorporated into the contract as basis of the plaintiff's action. 
 

33.  This is because as held in Nigerian National Petroleum Corporation & Anor. v. Famfa Oil Limited (2012) LPELR-7812(SC) (Consolidated) , subsidiary legislation must conform with the Principal Law.  According to the Apex Court:

The Petroleum Act is substantive or Principal Law. It is the principal law that provides subsidiary legislation the source of its existence. Without Principal Law there can be no subsidiary legislation, and so subsidiary legislation must conform with the principal law. The petroleum Act is principal law, a statute. Where it prescribes a particular method of exercising statutory power the procedure so laid down must be followed without any deviation whatsoever. See F.G.N v. Zebra Energy Ltd. 2002 18 NWLR pt. 798 p. 162 Ogulaji v. A.G. Rivers State 1997 6 NWLR pt. 508 p. 209 UNTHMB v. Nnoli 1994 5 NWLR pt. 363 p. 326 If any provision of the Regulations are inconsistent with the provisions of the Act/Statute the provisions of the Regulation shall to the extent of inconsistency be declared void. "Per RHODES-VIVOUR, J.S.C.(P. 47, paras. A-G).

34.  From the reproduced section 9 of the Substantive Act, the Petroleum Act, there is no provision enabling the Minister, or the Director on his behalf to make the provisions stated in these Guidelines.  To this extent, I find that the Guidelines for the Release of Staff in the Nigeria Oil and Gas Industry 2019 cannot operate to obligate the Defendant to obtain the written approval of the Minister of Petroleum Resources before embarking on any staff reduction and or redundancy exercise. I so hold. 

 

35.  This Court in the case Raphael Obasogie v Addax Petroleum (Unreported suit No: NICN/LA/257/2013 judgment delivered on December 4, 2018; per Peters J. held the provision mandating employers in the oil and gas sector to 'apply for official approval of the Honourable Minister of Petroleum Resources' before disengaging any Nigerian staff from employment; did not elevate the employment status of such a Nigerian staff into one of statutory flavour. Also, in the case of Michael Smith Atoe v Petrofac Energy Services Nig. Ltd. (Unreported) Suit No. NICN/LA/506/2015, judgment delivered on 06 June 2019 Peters, J refused to read the 2015 Guidelines replaced by the current 2019 Guidelines, into a disengaged worker’s terms of employment.  The Court held as follows:

… I need to stress the obvious that the parties in this case voluntarily entered into a written contract with applicable terms and conditions. Exh. SA6 is that contract. That contract did not include, incorporate or make any reference to Exh. SA3 i.e the Department of Petroleum Resources Guidelines and Procedures for the Release of Staff in the Oil and Gas Industry. I think it is now well settled and beyond contention that when a Court of law is approached to resolve a dispute arising out of a written contract, the Court will solely concern itself with the terms and conditions of the contract as agreed by the parties. It is not for the Court to import into the contract terms and conditions not so contained in it. It is also not for the Court to import any extraneous documents not within the contract or within the contemplation of the parties. This Court does not need to go beyond the content of Exh. SA6 in deciding this case...

… The case of the Claimant was founded on a weak foundation. That foundation is the applicability of Exh. SA3. That exhibit being extraneous to Exh. SA6 the contract of employment cannot under any guise be imported to confer any benefit on the Claimant…

36.  The above stated position in the case of Michael Smith Atoe v Petrofac Energy Services Nig. Ltd. is applicable here, as the Claimants’ contracts (exhibits A(1-3) never referred to nor incorporated the Guidelines sought to be applied.  Based on all the reasons given above, I resolve the question submitted by the Claimant against the Claimant and hold that by virtue of the Guidelines for the Release of the Staff in the Nigeria Oil and Gas Industry 2019, the Defendant OUGHT NOT to obtain the written approval of the Minister of Petroleum Resources before embarking on any staff reduction and or redundancy. 

 

37.  Assuming I am wrong in holding as I have done above, I proceed to consider if the Claimant is entitled to the reliefs sought in the Originating Summons.  From the facts as established in the parties’ affidavits, and the exhibits in support, I find that the Claimants have not established that the Defendant has breached the provisions of the Guidelines to be entitled to the declarations and orders sought.  A clear reading of the Guidelines show that it envisages that where the employer  wishes to release a worker, that employer shall apply in writing to the Director for the Minister’s approval stating the manner of staff release, the reasons for the proposed release, the compensation due to the worker, and any proposed replacement for the worker.  I have closely considered the averments in Claimants’ affidavit.  It does not state that any staff has been identified or pencilled down for any form of release.  My understanding of the Guidelines is that the approval is to be sought before the release, but does not prevent the process leading to the identification of persons to be so released.    Further, from the exhibits tendered in support of Claimants’ cases, no document is shown to emanate from the Defendant effecting any form of release of any of member of the 1st Claimant or pencilling down persons for release. Exhibits D and E are news bulletins which do not emanate from the Defendant.  The Claimants have not tendered any document overtly indicating that the Defendant has identified or communicated names of persons to be declared redundant to crystallise the application of the Guidelines.  In that context, this action is definitely premature.  I so hold.

 

38.  The Claimants also attached the Collective Agreement between the 1st Claimant and the Defendant.  The purpose of the Collective Agreement, it would appear, is to authenticate the status of the Claimants as union members.  That is not in dispute in this case.  I say this because save for asserting the status of parties as representing other members of the 1st Claimant, the Claimants is not seeking to enforce the provision of the collective agreement relating to redundancy.  In fact, the Claimants argued against the application of article 19 of the collective agreement relating to redundancy benefits; when they submitted that:

           ...it is respectfully submitted also that the Claimants are on a terra firma in   relying on the Collective Bargaining Agreement save Article 19 which is invalid as parties cannot by consent or acquiescence or failure to object, nullify the effect of a legislation contrary to the decisions in Adedeji v. N.B.N Ltd (1989) 1 NWLR (PT. 96) 212…

39.  The said article 19 provides that before declaring an employee redundant, the Company shall have failed to find him or her alternative employment after using its best endeavour to do so.  The Company shall continue to keep the Association fully informed of any anticipated redundancy and will discuss the situation in detail. 1t also agreed that in determining which employees are to be released on redundancy, the principle of  “first in, last out” shall apply to those who in the opinion of the Company arc of comparable skills and efficiency.  The collective agreement did not refer to or incorporate the provisions of the Guidelines that the Claimants are seeking to enforce.

40.  It would appear that in this case, the Defendant had begun to rely and implement the provisions of the above article of the collective agreement; whereas the Claimants sought to enforce the provisions of the Guidelines, instead.  I have however held that the Guidelines do not apply against the Defendant, in the circumstance of the present case. 

 

41.  On a final note, the Defendant had drawn the attention of the Court to the affidavit of the Claimants in support of this suit.  The affidavit was deposed to by Aghaunor Lavin Ifeakachukwu (3rd Claimant) described as Branch Chairman of the PENGASSAN (Chevron Branch).   However, in the first paragraph he stated that he is the Secretary of the PENGASSAN (Chevron Branch). I see the inconsistency.  However, I am convinced that the Defendant was not misled or affected by that deposition, in responding to the issues that called for determination.  The Court was not, either.  I also note Defendant’s observation that the Claimant’s affidavit is dated 14th October 2020 whereas the originating summons has an earlier date.  The Claimants did not respond to this.  I still take the view that justice is better served in hearing the substance of the case, than bearing undue adherence to technicalities. 

 

42.  Having considered the issues raised for determination, and made findings on them, I hold that on a preponderance of the evidence before me, the Claimants have failed to establish their entitlement to the reliefs they seek in this suit.  This suit therefore fails and is hereby dismissed.

 

Judgment is entered accordingly.  I make no orders as to cost.

 

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Hon. Justice Elizabeth A. Oji PhD