The Shell Petroleum Development Company of Nigeria Limited .V. The Minister of Petroleum Resources & 2 ORS- National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 28 JULY 2022 SUIT NO. NICN/LA/178/2022

BETWEEN

The Shell Petroleum Development

Company of Nigeria Limited - Claimant

AND

1. The Minister of Petroleum Resources

2. Nigerian Upstream Petroleum Regulatory Commission

3. Attorney-General of the Federation - Defendants

REPRESENTATION

Chukwuka Ikwuazom SAN, with D. D. Killi, Great Nnamani and Miss Janet Bamigbose, for the claimant.

Idris B. Imam, for the 1st defendant.

Leke Adeleke. with Samsom Abbah, for the 2nd defendant,.

Ekene V. Elodimuo, with A. H. Shaibu, for the 3rd defendant.

JUDGMENT

INTRODUCTION

1. The claimant had employed Mrs Gbenuade Joko Olanitori effective from 1 June 2008 (Exhibit SPDC 3). By a letter dated 2 June 2021 (Exhibit SPDC 2), the claimant had terminated the employment of Mrs Olanitori. Mrs Olanitori then petitioned the Department of Petroleum Resources (DPR), now replaced by the 2nd defendant, arguing that her employment was terminated by the claimant without due process i.e. that the claimant did not follow the provisions of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 made pursuant to Regulation 15(a) of the Petroleum (Drilling and Production)(Amendment) Regulations 1988, these 1988 Regulations made pursuant to section 9 of the Petroleum Act Cap P10 LFN 2004. The 2019 Guidelines make it mandatory for all companies operating in the oil and gas industry to seek and obtain the approval of the 1st defendant through the erstwhile DPR (now the 2nd defendant) before releasing any staff. Failure to comply with this directive attracts a fine of USD250,000.

2. Upon being queried by the DPR, the claimant maintained that it terminated the employment of Mrs Olanitori according to her contract of employment (and so it was proper) and that the said regulations, under which she complained to the DPR, are inapplicable in the circumstance. Despite series of communications in the matter, the 2nd defendant (which replaced the DPR) on its part maintained that there was a violation of the Guidelines and so the fine of USD250,000 was imposed on the claimant. The claimant is accordingly in this Court to determine whether the defendants are right in acting as they did in this matter.

3. The originating summons through which the claimant came to this Court was filed on 4 May 2022. In it, the claimant raised 7 questions for determination, namely:

(1) Whether the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 issued by the erstwhile Department of Petroleum Resources (now the 2nd defendant) on behalf of the 1st defendant pursuant to section 9 of the Petroleum Act, Cap P10 Laws of the Federation of Nigeria, 2004 is not ultra vires the powers of the 1st defendant and therefore null, void and of no effect whatsoever.

(2) Whether the erstwhile Department of Petroleum Resources (now the 2nd defendant) could validly issue the purported Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 on behalf of the 1st defendant having regard to the provisions of section 12(1) of the Petroleum Act Cap P10 Laws of the Federal Republic of Nigeria 2004 which expressly prohibits the 1st defendant from delegating to another person or authority his powers to make orders and regulations.

(3) Whether the purported Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 can validly govern the employment relationship between the claimant and its employees when the said Guidelines were not incorporated into the contract of employment executed by the claimant and its employees.

(4) Whether the imposition of the fine of US$250,000.00 (Two Hundred and Fifty Thousand United States Dollars) on the claimant by the 2nd defendant, via its letter dated 28 January 2022 for alleged failure to seek and obtain the 1st defendant’s approval prior to the termination of its employee’s contract of employment is not unconstitutional, illegal, null and void and ultra vires the powers of the 1st and 2nd defendants.

(5) Whether having regard to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), labour laws in Nigeria, relevant case law and international best practices, there is any obligation on the claimant to seek or obtain the approval of the 1st defendant before the release of its staff.

(6) Whether having regard to the provisions of the Constitution of the Federal Republic of Nigeria,1999 (as amended), labour laws in Nigeria, relevant case law and international best practices, the erstwhile Department of Petroleum Resources (now the 2nd defendant) can direct the claimant to recall and reinstate its ex-employees for non-compliance with the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019.

(7) Whether the defendants are empowered by law to enforce or continue to enforce any provisions of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 against the claimant when the said Guidelines (and its earlier versions) have been invalidated and rendered null and void by virtue of the decisions of this Honourable Court in Suit No: NICN/LA/411/2020: Petroleum and Natural Gas Senior Staff Association of Nigeria & 3 Ors v Chevron Nigeria Limited delivered on 26 February 2021 and the Supreme Court decision in Shell Petroleum Development Company of Nigeria Limited & Nwaka [2003] 6 NWLR (Pt. 815) 184.

4. The claimant then prayed for the following reliefs:

(1) A DECLARATION that the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 purportedly issued by the erstwhile Department of Petroleum Resource (now the 2nd defendant) on behalf of the 1st defendant pursuant to section 9 of the Petroleum Act, Cap P10 Laws of the Federation of Nigeria, 2004 is ultra vires the powers of the 1st defendant and is therefore null, and of no effect whatsoever.

(2) A DECLARATION that the erstwhile Department of Petroleum Resources (now the 2nd defendant), having regard to the provisions of section 12(1) of the Petroleum Act, could not validly issue the purported Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 on behalf of the 1st defendant.

(3) A DECLARATION that the purported Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 cannot validly govern the employment relationship between the claimant and its employees, when the said Guidelines were not incorporated into the contract of employment between the claimant and its employees.

(4) A DECLARATION that the 2nd defendant, not being a court of law, cannot impose any penalty, sanction or fine whatsoever on the claimant.

(5) A DECLARATION that the purported imposition of fine of US$250,000.00 (Two hundred and Fifty Thousand United States Dollars) on the claimant by the 2nd defendant via its letter of 28 January, for not obtaining the 1st defendant’s approval prior to the termination of the employment of one of its employees is unconstitutional, illegal, null and void and ultra vires the powers of the 1st and 2nd defendants, and is also an affront to the judicial powers of the judiciary.

(6) A DECLARATION that the directive to the claimant by the erstwhile Department of Petroleum Resources (now the 2nd defendant) via its letter of 16 August 2021, to recall and reinstate its staff for failure to comply with the Guidelines is unconstitutional, illegal, null and void and ultra vires the powers of the erstwhile Department of Petroleum Resources, and the 1st and 2nd defendants.

(7) A DECLARATION that the defendants cannot validly enforce or continue to enforce the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 on the basis that the Guidelines are null, void and of no effect whatsoever.

(8) AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, their agents, servants, representatives, and privies from enforcing the fine of US$250,000.00 (Two Hundred Fifty Thousand United States Dollars) imposed on the claimant in any manner whatsoever.

(9) AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, their agents, servants, representatives, and privies from enforcing the erstwhile Department of Petroleum Resources’ (now the 2nd defendant) directive to the claimant to recall and reinstate Mrs. Gbenuade Joko Olanitori in the claimant’s employment in any manner whatsoever

(10) AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd defendant, its agents, servants, representatives, and privies from imposing any further sanction whatsoever on the claimant arising from or connected with the termination of Mrs. Gbenuade Joko Olanitori’s employment with the claimant or howsoever interfering with or impeding the claimant’s conduct of its business.

(11)AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, their agents, servants, representatives, and privies from interfering or further interfering with the claimant’s relations with its employees especially as it relates to the release of the claimant’s staff from employment.

(12) AND SUCH ORDERS or further orders as this Honourable Court may deem fit to make in the circumstances.

5. In support of the originating summons is an affidavit with accompanying exhibits (Exhibits SPDC 1 to SPDC 15). Also filed is the written address.

6. Despite the service of the processes on the defendants, the defendants did not make any appearance or file any defence process until 26 July 2022 and 27 July 2022 when the 2nd and 3rd defendants respectively filed motions praying amongst other things to be allowed to defend this action. The two motions were moved but dismissed in two separate considered rulings of 28 July 2022.

7. On 14 June 2022, the claimant had filed a further affidavit in support of its originating summons with an exhibit (Exhibit SPDC 4A) attached. Since this further affidavit and its accompanying Exhibit SPDC 4A was filed without leave of court, it cannot be used in this judgment. It is accordingly discountenanced. I so rule.

THE CASE BEFORE THE COURT

8. To the claimant, by a letter dated 2 June 2021, the claimant terminated the employment of an ex-employee in accordance with the terms of her contract of employment dated 1 June 2008 and extant principles of Nigerian employment law. In addition, that the ex-employee was fully paid her terminal benefits/entitlements.

9. That by a letter dated 16 August 2021 and referenced DP/LA/CS/NC/SPDC/VOL.1/117, the DPR informed the claimant that it had received a petition from the ex-employee in which she alleged that the claimant had terminated her employment without due process. Consequently, the DPR sought to unlawfully interfere with the claimant’s termination of the ex-employee’s employment by alleging that the claimant violated the Guidelines and Regulation 15(a) of the Petroleum (Drilling and Production) (Amendment) Regulations 1988 (the “1988 Regulations”), by terminating the employment of the ex-employee without obtaining the prior approval of the DPR. By the same letter, the DPR directed the claimant to recall and reinstate the ex-employee and pay all entitlements from the date of the release.

10. The claimant went on that the Guidelines, amongst others, require employers in the Oil and Gas industry to obtain the approval of the 1st defendant before determining the contract of employment of a Nigerian staff where the anticipated exit is by way of involuntary retirement, dismissal, termination, redundancy, or release on medical grounds. That the Guidelines were purportedly issued on behalf of the 1st defendant by the DPR in accordance with the Petroleum Act, Cap. P10, LFN 2004 and Regulation 15(A) of the 1988 Regulations.

11. In response to the DPR’s letter dated 16 August 2021, the claimant, by a letter dated 6 September 2021 and referenced SPDC-HRS-2021-0003L, notified the DPR that the termination of the ex-employee’s employment was proper and consistent with the terms and conditions of her contract of employment with the claimant, and that the Guidelines cannot introduce additional terms and conditions into the contract of employment between the claimant and the ex-employee, being a contract between private persons. The claimant also noted that its position was consistent with judicial precedent on Nigerian employment law.

12. That notwithstanding the claimant’s representation to the DPR via its letter dated 6 September 2021 to the effect that the termination of the ex-employee's employment was consistent with her contract of employment and extant principles of Nigerian employment law, the 2nd defendant, the successor of the now defunct DPR, proceeded to issue the claimant with a Notice of Non-Compliance dated 6 December 2021 and referenced NUPRC/CS/ABJ/IER/Vol.1/175 (the “Notice”). By the Notice, the 2nd defendant alleged that the claimant violated Regulation 15A of the 1988 Regulations and section 44 of the Petroleum (Drilling and Production) Regulations 1969 by terminating the employment of the ex-employee without obtaining the prior approval of the DPR.

13. The claimant responded to the Notice by a letter dated 13 December 2021 and referenced as SPDC-HRS-2021-0007L. In the 13 December 2021 letter, the claimant reiterated its position that the termination of the ex-employee’s employment was consistent with the terms and conditions of the ex-employee’s contract of employment and the ex-employee’s terminal benefits had been fully paid to her.

14. Subsequently, by a letter dated 28 January 2022 and referenced as NUPRC/ABJ/CS/IER/SPDC/Vol.1/183, the 2nd defendant responded to the claimant’s letter of 13 December 2021, rejecting the claimant’s position that the termination of the ex-employee’s employment followed due process. The 2nd defendant also noted in the letter that the claimant’s termination of the ex-employee’s employment (i) constituted a disregard and breach of the Guidelines and Regulation 15A of the 1988 Regulations, and (ii) was inconsistent with an earlier decision of this Honourable Court in Suit No: NICN/LA/257/2013: Raphael Obasogie v. Addax Petroleum Development (Nig.) Ltd & anor, which recognised the powers of the 1st defendant to make regulations and issue guidelines on the release of staff in the Nigerian Oil & Gas industry. Consequently, the 2nd defendant imposed a fine of $250,000.00 (Two Hundred and Fifty Thousand United States Dollars) on the claimant for allegedly flouting the extant laws, procedures, and guidelines.

15. Dissatisfied with the imposition of the fine by the 2nd defendant (particularly against the backdrop of the invalidity of the Guidelines upon which the imposition of the fine was based), the claimant wrote a letter dated 18 March 2022 reiterating its position that the termination of the ex-employee’s employment was consistent with the ex-employee’s contract of employment and that given that the said contract of employment is a private contract between private parties, the 1st defendant lacked the power to regulate or interfere with its terms and conditions through the Guidelines. More specifically, the claimant noted in its response that it was not in violation of the Guidelines by virtue of the recent decision of this Honourable Court in Suit No: NICN/LA/411/2020: PENGASSAN & ors v. Chevron Nigeria Limited delivered on 26 February 2021 by Hon Justice E. A. Oji, PhD, where the Court held that the Honourable Minster of Petroleum Resources (the 1st defendant in this suit) is not empowered under the Petroleum Act and the 1988 Regulations to regulate and introduce terms into contracts of employment entered into between parties in their individual capacities.

16. Aggrieved by the fine imposed on it by the 2nd defendant, the claimant filed the instant originating summons seeking declaratory and injunctive reliefs against the defendants in relation to the validity of the Guidelines and the constitutionality of the fines imposed on it by the 2nd defendant, as well as the DPR's directive to the claimant to recall and reinstate the ex-employee.

THE SUBMISSIONS OF THE CLAIMANT

17. The claimant started its submissions with a review of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 (Exhibit SPDC 1). The Guidelines were issued on 17 October 2019 by the DPR. It contains 8 paragraphs. It requires holders 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 (employers in the oil and gas industry) to obtain the prior approval of the Minister of Petroleum Resources (the 1st defendant) before determining the contract of employment of a Nigerian staff where the anticipated exit is by way of involuntary retirement, dismissal, termination, redundancy or release on medical grounds. In this regard, paragraph 4.1 of the Guidelines provides as follows:

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.

18. The Guidelines equally require employers to notify the 1st defendant where a worker dies, resigns, abandons his/her duty post, or voluntarily retires. See paragraph 4.3 of the Guidelines. By paragraph 5.1 of the Guidelines, a reporting obligation is imposed on the employers regarding the names, designation, employment, and termination of any of their employees.

19. Finally, breach of any provision of the Guidelines attracts a penalty not exceeding USD250,000.00 (Two Hundred and Fifty Thousand United States Dollars) and possible cancellation or withdraw of an employer’s operational permit, lease or licence. Here, paragraph 6.1 of the Guidelines stipulates as follows:

As provided in Regulation 608 of the Petroleum (Drilling and Production) (Amendment) Regulations 2019 any person who fails to comply with these Guidelines is liable to a penalty issued by the Director of Petroleum Resources not exceeding Two Hundred and Fifty Thousand United States Dollars (USD$250,000.00), and in addition any permit, licence or lease granted to that person may be withdrawn or cancelled by the Director of Petroleum Resources.

20. That the questions raised in this suit challenge the validity of the Guidelines and the constitutionality of the fine or other sanctions sought to be imposed on the claimant by the 2nd defendant.

21. The claimant reiterated the seven questions it posed for determination in this suit, and from them raised a sole issue, which in its opinion answers the seven questions posed. The sole issue is: whether the defendants can validly enforce any of the provisions of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 20l9 against the claimant.

22. To the claimant, the defendants cannot validly enforce any of the provisions of the Guidelines which were purportedly issued in accordance with the Petroleum Act Cap. P10, LFN 2004 and Regulation 15(A) of the 1988 Regulations. The claimant’s submission is premised on the following:

(a) The Guidelines are ultra vires the powers of the Minister of Petroleum Resources (the 1st defendant)

(b) Section 12 of the Petroleum Act forbade the DPR from making the Guidelines on behalf of the 1st defendant. The Guidelines are, therefore, improperly made.

(c) The Guidelines, having not been incorporated into the contract between the claimant and its ex-employee, cannot validly govern their employment relationship and is, therefore, unenforceable against the claimant. The Guidelines constitute an unwarranted interference in the freedom of parties to enter into contract and determine the terms of same.

(d) The 2nd defendant’s unilateral imposition of the fine contained in the Guidelines is unconstitutional, illegal, and null and void. It also constitutes a usurpation of the constitutional powers exclusively vested in the judiciary.

(e) The decision of this Honourable Court in Suit No: NICN/LA/411/2020: PENGASSAN & ors v. Chevron Nigeria Limited, which has not been set aside, and the decision of the Supreme Court in respect of an earlier version of the Guidelines serves to prevent the continued enforcement of the Guidelines.

23. The claimant then addressed each of the points.

The Guidelines are ultra vires the powers of the Minister of Petroleum Resources

24. To the claimant, the law is settled that for a subsidiary legislation to be valid in a constitutional democracy like Nigeria, the legislation must not be ultra vires the principal or enabling Act, referring to Ewete v. Gyang [1997] 3 NWLR (Pt. 496) 728, Buhari v. Obasanjo [2005] 13 NWLR (Pt. 941) 1 SC, NNPC v. Famfa Oil Limited [2012] 17 NWLR 148 and SEC v. Big Treat Plc [2020] 5 NWLR (Pt. 1718) 502. That an act is said to be ultra vires when it is done without power, mandate, or authority, citing Damisa v. UBA Plc [2005] 1 NWLR (Pt. 931) 526. In this regard, that there is no doubt that the Guidelines are a subsidiary legislation to the Petroleum Act Cap P10 LFN 2004 (the Petroleum Act), the relevant principal legislation in this case. That the Guidelines were issued by the DPR on behalf of the 1st defendant, pursuant to Regulation 15A of the 1988 Regulations, which provides that the removal of a worker in the oil and gas industry shall be in accordance with guidelines specified by the Minister. Regulation 15A of the 1988 Regulations was in turn made pursuant to section 9 of the Petroleum Act, which authorises the Minister to make regulations in the oil and gas industry.

25. Therefore, to determine whether the Guidelines are valid and intra vires the powers of the 1st defendant, recourse must be had to the provisions of the Petroleum Act which provided the authority to make regulations. In other words, the Guidelines must be examined in the light of the enabling provision, in this case section 9 of the Petroleum Act. The said section provides as follows:

(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 return (including the reporting of accidents);

(v) Inquires 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;

(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 transport within a pot, landing transshipment 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 the examination and testing of petroleum and petroleum products, and prescribing the tests to be applied to ascertain its flashpoint and the method of applying these 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 vessels, 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 subjection (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

26. To the claimant, the above provisions clearly confer on the 1st defendant, the powers to make regulations in the oil and gas industry. However, the section equally stipulates the matters which are subject to regulations by the 1st defendant, and employment relations between employers and employees is clearly not listed as one of such permitted matters. In other words, the 1st defendant cannot go outside the powers expressly conferred on it to make regulations on matters not listed above. That to go outside the matters listed in section 9 above is to act ultra vires and will render the resulting regulation invalid for being inconsistent with the Petroleum Act, citing NNPC v. Famfa Oil Limited (supra). That the question, therefore, is whether the Guidelines can be accommodated under section 9 of the Petroleum Act. The claimant answered in the negative.

27. That the Petroleum Act does not empower the 1st defendant to regulate employment relations between employers in the oil and gas industry and their employees. The Act does not envisage that the Petroleum Minister will regulate how employees are employed or disengaged in the oil and gas industry. This is because the question of how a person is disengaged from service is a private affair between the employer and the employee. That this argument is supported by a plethora of decisions of the Supreme Court on the interpretation of statutes which settled the point that the express mention of a thing in the statute excludes the others, citing AG, Lagos State v. AG, Fed [2014] 9 NWLR (Pt. 1412) — the page is not supplied, and Ogbunyiya v. Okudo [1979] 6 - 9 SC 32. That since the provisions of section 9 of the Petroleum Act does not authorise the 1st defendant to regulate employment relations between employers and employees in the oil and gas industry, then the Guidelines and Regulation 15A of he 1988 Regulations are ultra vires the power of the 1st defendant and, therefore, null and void.

28. That in Suit No: NICN/LA/411/2020 – PENGASSAN & 3 ors v. Chevron Nigeria Limited (unreported decision of this Court delivered on 26 February 2021, per Honourable Justice Elizabeth Ama Oji), this Court after examining the provisions of section 9 of the Petroleum Act vis-a-vis the Guidelines held thus:

The above reproduced section of the Petroleum Act did not contemplate the type of the 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 the 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 instrument (emphasis is the claimant’s).

29. The claimant went on that it is obvious that the Guidelines are clearly ultra vires the powers of the 1st defendant, urging the Court to so hold. That the 1st defendant cannot by Regulation 15A of the 1988 Regulations increase the powers conferred on him to make regulations with respect to matters listed under the provisions of section 9 of the Petroleum Act. In essence, the attempt by the 1st defendant to unduly interfere in employment contracts in the oil and gas industry is not recognised by the Petroleum Act and such attempt is of no consequence whatsoever being an act immersed in illegality.

30. The claimant then urged the Court to resolve the sole issue for determination in favour of the claimant and hold that the Guidelines cannot be enforced by the defendants against the claimant as the Guidelines are ultra vires the powers of the 1st defendant.

Section 12 of the Petroleum Act forbade the DPR from making the Guidelines on behalf of the 1st defendant

31. Here, the claimant submitted that even if the contents of the Guidelines were within the powers of the 1st defendant as stipulated under section 9 of the Petroleum Act, the DPR was not competent to issue the Guidelines. That it is clear from Exhibit SPDC 1 that the Guidelines were signed by Mr A. R. Shakur, the Director of the DPR in 2019, in contravention of the express provisions of section 12 of the Petroleum Act, which forbids anyone from making guidelines on behalf of the 1st defendant. Section 12(1) of the Petroleum Act provides as follows:

The Minister may by writing under his hand delegate to another person any power conferred on him by or under this Act except the power to make orders and regulations (emphasis is the claimant’s).

32. That it is clear from section 12 of the Petroleum Act that the power to make regulations cannot be delegated by the 1st defendant to the 2nd defendant. In other words, it is only the Minister that is empowered to issue the Guidelines and no other person including the 2nd defendant. The implication is that the exercise of regulatory powers by the 2nd defendant is not cognisable under the law and therefore same is null and void. That the law is settled that where a statute stipulates the procedure for taking an action, such procedure must be strictly complied with, citing Dr. Arthur A. Nwankwo & ors v. Alhaji Umaru Yar’Adua & ors [2010] 6 SCM 121 at 143.

33. Furthermore, that section 12 of the Petroleum Act is in line with the established rule of law that a delegate cannot sub-delegate — delegatus non potest delgare. The claimant referred to Nwuka v. Nwaeche [1993] 5 NWLR (Pt. 293) 295. That in the instant case, the National Assembly in exercise of its power under section 4 of the 1999 Constitution enacted the Petroleum Act and delegated the power to make subsidiary legislation on the subject to the 1st defendant. That no such power was delegated to the DPR. Instead, there was a specific prohibition against such a delegation. So, it was wrong for the DPR to appropriate the powers it did not have by issuing the Guidelines. The claimant then urged the Court to resolve this issue in its favour and hold that the Guidelines are not enforceable as the DPR lacked the competence to issue them.

The Guidelines, having not been incorporated into the contract between the claimant and its ex-employee, cannot validly govern their employment relationship and is, therefore, unenforceable

34. To the claimant, assuming without conceding that the Guidelines are within the powers of the 1st defendant and could be made on its behalf by the DPR, they are still not enforceable against the claimant as they were not incorporated in the contract of employment between the claimant and its ex-employee, Mrs Olanitori. That parties are bound by their agreements; and in a contract of employment, the parties are bound by the terms and conditions agreed on, citing Hillary Farms Ltd v. MV Mahtra [2007] 14 NWLR (Pt. 1054) 210. That it is not for anybody or even a court of law to import terms and conditions into an employment contract. That extraneous documents cannot be used to alter, rewrite or amend the contract of the parties. In this regard, that the Guidelines without being incorporated in the contract of employment between the claimant and the ex-employee, cannot be imported into or implied in the said contract and cannot consequently be enforced by the 2nd defendant or any other person or authority against the claimant. That all the judicial authorities are id idem that the Guidelines cannot be imported or implied into the contract between employers and employees in the oil and gas industry, citing Chukwumah v. Shell Petroleum Development Company of Nigeria [1993] 4 NWLR (Pt.289) 512 SC, and Shell Petroleum Development Company of Nigeria Limited & ors v. Nwaka [2003] 6 NWLR (Pt. 815) 184 SC, which reiterated Chukwumah v. Shell Petroleum Development of Nigeria Ltd (supra).

35. That this Court is not left out in pronouncing that the Guidelines cannot be imported into an employment contract. That in Suit No: NICN/LA/506/2015 – Mr Michael Smith Atoe v. Petrofac Energy Services Nig. Ltd (unreported decision of this Court coram: Honourable Justice J. D. Peters, delivered on 6 June 2019), the claimant, Mr Atoe instituted an action at this Court seeking a declaration that the purported termination of his employment was illegal and contrary to the DPR Guidelines and Procedures on Release of Staff in the Nigerian Oil and Gas Industry, 2015 (which is a precursor to the 2019 DPR Guidelines). He argued that the defendant ought to have obtained the approval of the Minister prior to bringing their contractual relationship to an end. The defendant countered that the DPR was not a party to the employment contract and the 2015 DPR Guidelines constituted unlawful interference with the contract and accordingly, was of no effect. The defendant further contended that the 2015 DPR Guidelines did not form part of the agreement between the parties.

36. That in his judgement, His Lordship, Honourable Justice J. D. Peters held that in order to determine whether the termination of Mr Atoe’s employment was proper, recourse could only be had to the terms, which the parties voluntarily agreed, and that since the parties did not incorporate the 2015 DPR Guidelines into their contract, the Court could not rely on the 2015 Guidelines. The Court further held that the 2015 DPR Guidelines wee extraneous to the parties’ agreement and could not confer any benefit on Mr Atoe.

37. Similarly, that in PENGASSAN & ors v. Chevron Nigeria Ltd (supra) this Court declined to import the terms of the Guidelines into the contract of employment between the parties. In that case, the defendant, Chevron Nigeria Limited, in September 2020, embarked on a redundancy exercise because of the adverse effect of the coronavirus pandemic on its business operations. Its employees who are members of PENGASSAN, were duly notified of the defendant’s intention to reduce its workforce. The claimants instituted an action at this Court alleging that the defendant terminated the employment of the affected employees without any notice and that the defendant could not embark on the redundancy exercise without the written approval of the Minister by virtue of the 2019 DPR Guidelines. This Court held that the Minister is not empowered under the Petroleum Act and the 1988 Regulations (as amended) to regulate and introduce terms into contracts of employment entered between parties in their individual capacities.

38. From the above-cited authorities, the claimant submitted that it is beyond doubt that the Guidelines, even if considered valid, cannot be read into the employment contract between the claimant and the ex-employee. That the implication is that the claimant cannot be held liable for not complying with the Guidelines when it terminated the employment of the ex-employee in accordance with the relevant employment contract and without seeking the approval of the 1st defendant. That since the claimant cannot be held liable for not seeking the approval of the 1st defendant, it follows then that there is no basis for the 2nd defendant’s imposition of the fine of USD250,000.00 (Two Hundred and Fifty Thousand United States Dollars) on the claimant and the defendants cannot validly enforce the Guidelines against the claimant. The claimant then urged the Court to resolve the sole issue for determination in its favour and hold that the Guidelines, even if valid, cannot be enforced against the claimant as same was not incorporated into the employment contract between the claimant and the ex-employee. That the imposition of fine by the 2nd defendant is unconstitutional, illegal and null and void.

The imposition of fine by the 2nd defendant is unconstitutional, illegal and null and void

39. To the claimant, the law is settled that because fines and penalties are imposed as punishment for an offence or violation of the law, the powers to impose fines and penalties belong exclusively to the courts by virtue of section 6(6) of the 1999 Constitution, referring to Ahmed & ors v. Odutola [2019] LPELR-51022(CA) and Ojuya v. Nzeogwu [1996] 1 NWLR (Pt. 427) 713. That it is not for any government agency or administrative body to impose a penalty on any person for allegedly committing an offence. Such function is the exclusive preserve of the court. This is to avoid a situation, where such a government agency or body may constitute itself into the accuser, the prosecutor, and a judge at the same time. Section 6(6) of the 1999 Constitution clearly conferred judicial powers on courts established in the Constitution. Ministers and government departments do not have judicial powers and cannot perform judicial functions in Nigeria.

40. That the necessary implication of the above is that the 2nd defendant cannot usurp the powers of a court of law and begin to determine liability and assign penalties. The 2nd defendant is not empowered or equipped to perform judicial functions such as the determination of the guilt of any corporate body in Nigeria. That until the Constitution confers judicial powers on the 2nd defendant, the 2nd defendant cannot validly impose any fine on the claimant from the comfort of its office which is bereft of any judicial reasoning. The 2nd defendant’s letter of 28 January 2022 (Exhibit SPDC 11) which wears the apparel of a court judgment is, therefore, void and unconstitutional, urging the Court to so hold.

41. That in NOSDRA v. Mobil Prod. (Nig.) Unltd [2018] 13 NWLR (Pt. 1636) 334, the appellant, National Oil Spill Detection and Response Agency (NOSDRA), imposed a fine N10,000,000.00 (Ten Million Naira) on the respondent as penalty for allegedly violating the NOSDRA Act and Regulations. In voiding the imposition of fine on the respondent, the Court of Appeal declared the law as follows:

By the imposition of the fine, the appellant acted in a judicial capacity, which they are not imbued with under the Constitution. By so doing, the appellant became a judge in its own cause, the complainant as well as the judge, contrary to the maxim “nemo judex in causa sua”…On the facts and circumstances of this case, I am of the firm but humble view that the imposition of penalties by the appellant was ultra vires its powers, especially where no platform was established to observe the principles of natural Justice. Penalties or fines are imposed as punishment for an offence or violation of the law. The power as well as competence to come to that finding belong to the courts and the appellant is not clothed with the pawer to properly exercise that function in view of the law creating the appellant (NOSDRA).

42. That the above binding decision of the Court of Appeal clearly establishes that the 2nd defendant cannot constitute itself into a court of law and impose a fine of USD250,000 00 (Two Hundred and Fifty Thousand United States Dollars) or any amount whatsoever on the claimant. Notably, in the instant case, the 2nd defendant in imposing the fine on the claimant was the accuser, the prosecutor, and the judge. This cannot be. That the action of the 2nd defendant should not be allowed to stand. The 2nd defendant cannot and should not be permitted to arrogate to itself judicial powers which are the exclusive preserve of the courts. Accordingly, and on the authority of NOSDRA (supra), that the fine imposed on the claimant by the 2nd defendant is clearly unconstitutional and void, urging the Court to firmly hold that the 2nd defendant cannot enforce the provisions of the Guidelines on fine against the claimant.

43. Furthermore, That it is immaterial that paragraph 6.1 of the 2019 DPR Guidelines empower the 2nd defendant (NUPRC) to impose fines for non-compliance with the guidelines. That the 2019 DPR Guidelines cannot confer judicial powers on the NUPRC or empower the NUPRC to exercise judicial functions. Thus, to the extent that the 2019 DPR Guidelines purport to empower the DPR to issue fines, it is inconsistent with the Constitution and shall to the extent of such inconsistency be null and void, citing section 1(1) and 3 of the Constitution.

The Guidelines cannot empower the 2nd defendant to compel the claimant to recall and reinstate an ex-employee

44. To the claimant, assuming without conceding that the Guidelines were validly issued and are enforceable against the claimant, the Guidelines cannot be interpreted as giving the 2nd defendant the power to demand or compel the recall and reinstatement of a released employee. That to hold otherwise will be to do violence to well settled principles of law, which hold that the termination of an employment without statutory flavour cannot be declared ineffectual or void, as such will amount to compelling a willing employee on an unwilling employer, citing John Oforishe v. Nigerian Gas Company Ltd [2018] 2 NWLR (Pt. 1602) 35 SC at 53 - 54, Obanye v. Union Bank of Nigeria Plc [2018] LPELR-44702(SC) and Agwu & ors v. Julius Berger Nigeria Plc [2019] LPELR-47625(SC). That it is beyond dispute that the contract of employment between the claimant and the ex-employee was a private contract without statutory flavour. Therefore, as the authorities bear out, neither the 2nd defendant nor this Court can compel the claimant to reinstate an ex-employee.

The decision of the Honourable Court in PENGASSAN & 3 ors v. Chevron Nigeria Limited (supra), which has not been set aside, serves to prevent the continued enforcement of the Guidelines

45. The claimant submitted that the decision of this Court in PENGASSAN & 3 ors v. Chevron Nigeria Limited (supra) has invalidated the Guidelines sought to be enforced by the 2nd defendant against the claimant. Notably, in that case, this Court held that the Minister was not empowered to make the Guidelines. This Court specifically noted that the provisions of section 9 of the Petroleum Act did not contain any provision enabling the Minister, or the Director of the DPR on behalf of the Minster, to make the provisions stated in the Guidelines. That it is highly regrettable that the 2nd defendant continued to attempt to enforce the Guidelines when the said Guidelines have been declared ultra vires the powers of the 1st defendant by a court of competent jurisdiction. That the law is that an act which has been declared ultra vires is void, ineffectual, nugatory, and have no legal force or binding effect whatsoever. Such an act is without legal efficacy and is incapable of being enforced by law, citing Buraimoh v. Karimu [1999] 9 NWLR (Pt. 618) 310.

46. The claimant then noted that the 2nd defendant in its letter dated 28 January 2022 (Exhibit SPDC 11) wrongly relied on the decision of this Court in Suit No: NICN/LA/257/2013: Raphael Obasogie v. Addax Petroleum Development (Nig.) Ltd & anor (delivered on 4 December 2018) in making the point that this Court had recognised the powers of the Minister of Petroleum Resources to make regulations and issue guidelines on the release of staff in the Nigerian oil & Gas industry.

47. The claimant went on that the 2nd defendant’s reliance on Raphael is unhelpful to it because (a) the decision of PENGASSAN, which is later in time; and (b) the decision of this Court in PENGASSAN, unlike Raphael, is supported by the overriding decisions of the Supreme Court in Chukwumah v Shell Petroleum Development Company of Nigeria [1993] 4 NWLR (Pt. 289) 512 and Shell petroleum Development Company of Nigeria Limited & ors v Nwaka [2003] 6 NWLR (Pt 815) 184. In fact, that the reasoning in Raphael is consistent with the reasoning of this Court in PENGASSAN and it supports the claimant’s position. In the said Raphael, the Court recognised the fact that (i) an employment relationship between private parties can be terminated at any time in accordance with the terms of the employment contract, and (ii) a court cannot declare the termination of an employment between private parties ineffectual or void. Accordingly, that the decision in Raphael is unhelpful to the defendants. In fact, it is against them. That the 2nd defendant is bound by these decisions and cannot choose which to apply or to ignore, urging the Court to hold that the 2nd defendant is not empowered to enforce the Guidelines, which had earlier been declared ultra vires by this Court.

48. In conclusion, the claimant urged the Court to resolve the sole issue for determination in its favour, answer all the questions raised herein in favour of the claimant and grant all the reliefs sought in this originating summons.

49. As I pointed out earlier, especially the 2nd and 3rd the defendants belatedly entered appearance and sought to file defence processes. The applications for this were however dismissed.

COURT’S DECISION

50. I have to decide this case based only on the processes filed by the claimant given that the defendants neither entered any appearance nor filed any defence process — the motions of the 2nd and 3rd defendants respectively filed on 26 and 27 July 2022 praying to be allowed to defend the action having been moved and dismissed. Reliefs (1) to (7) prayed for the claimant are declaratory reliefs. And declaratory reliefs are proved on the evidence of the claimant, not on the weakness of the defence case or even on the admission of the defence. The law is that a claimant seeking for declaratory reliefs must prove his case on the strength of his evidence, not on the weakness of the defence of the defendant. See Okereke v. Umahi & ors [2016] LPELR-40035(SC), Nyesom v. Peterside & ors [2016] LPELR-40036(SC) and Mrs Catherine Udeogu & 11 ors v. Federal Airports Authority of Nigeria (FAAN) unreported Suit No. NICN/LA/326/2017, the judgment of which was delivered on 16 February 2018. Dmez Nig Ltd v. Nwakhaba & 3 ors [2008] 2 SC (Pt. III) 142 at 152 paras 10 to 25, relying on Bello v. Eweka [1981] 1 SC 101 and Motunwase v. Sorungbe [1988] 12 SC 1, insist that the claimant praying for a declaratory relief proves his case on his own evidence and not the evidence of the defendant.

51. So, the fact that the defendants did not enter appearance or file any defence process does not absolve the claimant from proving its case to the satisfaction of this Court. In Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC, given a similar scenario, this is what this Court said:

The defendants at first did not enter any memorandum of appearance, or show up, or were represented by counsel, or file any defence process in this matter; and this was despite the service of the respective hearing notices on them. Order 9 of the National Industrial Court Rules 2007 enjoins a party served with a complaint and the accompanying originating processes and who intends to defend the action to file defence processes as provided therein. Order 9, therefore, recognizes the right of a defendant not to defend an action filed against him/her. And by Order 19 Rule 2, where the defendant is absent at the trial and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her. This Rule, of course, accords with the minimal evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247…

52. It is in satisfaction of the minimal evidence rule that the claimant moved its originating summons. But in determining the merit of the claimant’s case, I must clarify a point the claimant did not avert its mind to. The claimant argued its case without any reference whatsoever to the Petroleum Industry Act (PIA) No. 134 of 2021, which came into effect on 16 August 2021. The affidavit evidence before the Court shows that the claimant terminated the employment of Mrs Gbenuade Joko Olanitori vide a letter of 2 June 2021 (Exhibit SPDC 2). This was before the coming into effect of the PIA. There were series of communications between the claimant and especially the 2nd defendant on the issue starting with the letter by the Department of Petroleum Resources (DPR) of 16 August 2021 (Exhibit SPDC 5), the date the PIA came into effect, and culminating with the letter of the 2nd defendant of 28 January 2022 (Exhibit SPDC 11), which imposed a fine of USD250,000 on the claimant. But for this fine, the claimant would not have come to this Court as it did in this matter, hence the claimant’s cause of action. The law is that the law applicable in deciding a matter is the law as at the time the cause of action arose. See Obiuweubi v. CBN [2011] LPELR-2185(SC), which held thus: “The Law in force, or existing at the time the cause of action arose is the law applicable for determining the case”.

53. Cause of action has been variously defined by the courts. AG, Adamawa State & ors v. AG, Federation [2014] LPELR-23221(SC) defined it thus: “…cause of action is the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief”. By Oko & ors v. AG, Ebonyi State [2021] LPELR-54988(SC): “A ‘cause of action’ invariably denotes a combination (group) of operative facts thereby resulting in one or more bases for suing. In a sense, a cause of action is a factual situation that entitles one person to a remedy in Court from another person”. And the concurring judgment of Ejiwunmi, JSC in Owodunni v. Registered Trustees of Celestial Church of Christ & ors [2000] LPELR-2852(SC) gave four definitions of cause of action thus:

(1) The words “cause of action” comprise every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court (See Read v. Brown (1889) 22 QBD 128, Per Lord Esher, M.R. at p.131).

(2) The phrase comprises every fact which is material to be proved to enable the plaintiff to succeed. See Cooke v. Gill (1873) L.R. 8 C.P. 107, Per Brett, J at 108.

(3) The words have been defined as meaning "simply a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person (Per Diplock, LJ, in Letang v. Cooper [1965] 1 QB 232 at 242).

(4) In Ireland, these words have been held to mean the subject matter of grievance founding the action, not merely the technical cause of action (O’keefe v. Welsh [1903] 2 JRP 218).

54. So, if cause of action is the fact or facts which establish or give rise to a right of action, or the combination (group) of operative facts thereby resulting in one or more bases for suing, then in the instant case the fact that the claimant’s right to come to court culminated only when on 28 January 2022 the fine of USD250,000 (Exhibit SPDC 11) was imposed on it, it means that the applicable law is the PIA, not just the Petroleum Act that the claimant copiously referred to. I so hold. This means that the claimant’s case, the combination (group) of operative facts resulting in the bases for the reliefs claimed (“a claim is circumscribed by the reliefs claimed”, as held in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47), cannot be decided without reference to the PIA. Reference to the Petroleum Act alone as the claimant did in its submissions is not sufficient to resolve its case. I acknowledge though that the PIA did not repeal the Petroleum Act, but it supplanted it in a number of respects. By section 317(2) of the PIA, “all rules, orders, notices or other subsidiary legislation made under the Petroleum Act…shall continue to have effect as if made under the corresponding provisions of [the PIA]”. Meanwhile, section 317(1) of the PIA saves everything done prior to 16 August 2021 (when the PIA came into effect) under the Petroleum Act shall be deemed to have been done under the corresponding provisions of the PIA. And by section 317(3) of the PIA, “all references in any other enactment to provisions of the Petroleum Act…shall be construed as references to the corresponding provisions of [the PIA]”.

55. I am not unmindful of the fact that the claimant did not address the court on the applicability of the PIA to its case, and this Court is bringing up and applying the PIA suo motu. Here, I find solace in the concurring judgment of His Lordship Rhodes-Vivour, JSC in Omokuwajo v. FRN [2013] 9 NWLR (Pt. 1359) 300 at 332; [2013] LPELR-20184(SC) 1 at 37 - 38, which is to the effect that the necessity of affording the parties a hearing when a judge raises an issue suo motu is excepted in any of these three instances:

(a) The issue relates to the Court’s own jurisdiction.

(b) Both parties are/were not aware or ignored a statute which may have a bearing on the case. That is to say, where by virtue of statutory provision the judge is expected to take judicial notice. See Section 73 of the Evidence Act.

56. His Lordship, the cerebral Affen JCA has in two recent decisions acknowledged and applied this concurring decision of His Lordship Rhodes-Vivour, JSC — Felix Ngozi Achi v. IGP [2022] LPELR-56647(CA) and Central Securities Clearing System Plc v. Zacchaeus Idunorba unreported Appeal No. CA/L/1188/2018, the judgment of which was delivered on 20 June 2022. I am accordingly applying the PIA to the matter before me on the basis of instance (b) of the Rhodes-Vivour formulation.

57. The claimant argued its case under six key points. I shall follow the same format.

58. The first ground of the arguments is that the Guidelines (Exhibit SPDC 1) are ultra vires the powers of the Minister of Petroleum Resources (the 1st defendant). Details of the Guidelines have earlier been highlighted in the submissions of the claimant. The argument of the claimant here is that section 9 of the Petroleum Act, which clearly confers on the 1st defendant the power to make regulations in the oil and gas industry, and equally stipulates the matters that are subject to regulations by the 1st defendant, does not include employment relations between employers and employees. The claimant relied on this Court’s earlier decision in PENGASSAN & 3 ors v. Chevron Nigeria Limited unreported Suit No: NICN/LA/411/2020, the judgment of which was delivered on 26 February 2021. Honourable Justice Oji had, relying on section 9 of the Petroleum Act vis-a-vis the Guidelines held thus:

The above reproduced section of the Petroleum Act did not contemplate the type of the 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 the 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 instrument.

59. There is a marked difference in the provisions of section 9 of the Petroleum Act and the corresponding provisions of the PIA as to make PENGASSAN & 3 ors v. Chevron Nigeria Limited distinguishable from (and so not applicable to) the instant case. First, section 317(2) of the PIA, which as I said earlier came into effect on 16 August 2021, provides thus:

All rules, orders, notices or other subsidiary legislation made under the Petroleum Act, the Petroleum Profits Tax Act, and the Deep Offshore and Inland Basin Production Sharing Contract Act shall continue to have effect as if made under the corresponding provisions of this Act.

60. Then by section 3(1)(a) and (i) of the PIA, the Minister shall: “formulate, monitor and administer government policy in the petroleum industry”; and “delegate in writing to the Chief Executive of the Commission or Authority any power conferred on the Minister by or under this Act” — the Commission being the 2nd defendant in the instant case. And under section 6 of the PIA, the 2nd defendant is charged with the responsibility of implementing government policies for upstream petroleum operations including “such other policies and objectives as are consistent with the provisions of [the PIA]” — section 6(k) of the PIA. Section 10 of the PIA grants the 2nd defendant power of enforcing regulations, policies and guidelines formerly administered by the Department of Petroleum Resources (DPR) or the Petroleum Inspectorate. Section 10(f) specifically grants the 2nd defendant the power to issue guidelines in accordance with the provisions of the PIA or any regulation in respect of upstream operations. Section 26(1) of the PIA grants the 2nd defendant special powers which include the power to require any person to answer any question that may be relevant to any inquiry, inspection, examination or investigation it undertakes.

61. These provisions (especially the power to “formulate, monitor and administer government policy in the petroleum industry”, which by the way can now, under the PIA, be delegated by the Minister) are wide enough to accommodate the Guidelines. The Guidelines represent government employment policy in the petroleum industry. Section 3(1)(a) of the PIA was not part of section 9 of the Petroleum Act and so must be read as a conscious act by the draftsman to validate the Guidelines. Accordingly, the argument of the claimant that the Guidelines are clearly ultra vires the powers of the 1st defendant, and that the 1st defendant cannot by Regulation 15A of the 1988 Regulations increase the powers conferred on him to make regulations, which in essence means that the attempt by the 1st defendant to unduly interfere in employment contracts in the oil and gas industry is not recognised by the Petroleum Act and such attempt is of no consequence whatsoever being an act immersed in illegality, cannot be sustained given the PIA, which today is the overriding law. I so hold. Accordingly, contrary to the submission of the claimant, the Guidelines can be enforced by the defendants against the claimant as the Guidelines are NOT ultra vires the powers of the 1st defendant. I so hold. Of course, with the passage of the PIA, decisions such as PENGASSAN & 3 ors v. Chevron Nigeria Limited (supra) have been overtaken.

62. There is additional support to the position I just took in some of the sections of the Interpretation Act. By section 318(4) of the 1999 Constitution, “The Interpretation Act shall apply for the purpose of interpreting the provisions of this Constitution”. This recognition of the Interpretation Act by the Constitution elevates the Interpretation Act to a pedestal that should not be toyed with.

63. Section 10, for instance, provides thus:

(1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.

(3) Where an Act is not to come into force immediately on the passing of the Act and confers power to make a subsidiary instrument, to give notices, to prescribe forms, to make an appointment or to do any other thing for the purposes of the Act, the power may be exercised at any time after the Act is passed so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of its commencement, so however that no subsidiary instrument made by virtue of this subsection shall come into force before the commencement of the Act conferring power to make the instrument except in so far as may be necessary for bringing that Act into force.

Of particular note for present purposes is section 10(2) of the Interpretation Act.

64. Section 12 of the Interpretation Act on its part provides thus:

(1) Where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include —

(a) power to make different provision for different circumstances;

(b) power, exercisable in the like manner and subject to the like consent and conditions (if any), to vary and revoke the instrument, proclamation or notification;

(c) in the case of a subsidiary instrument, power to prescribe punishments for contraventions of provisions of the instrument, not exceeding as respects a particular contravention —

(i) in the case of rules of court imprisonment for a term of three months or a fine of fifty Naira or both,

(ii) in any other case, imprisonment for a term of six months or a fine of one hundred Naira or both.

(2) A contravention of a provision of a subsidiary instrument may be prosecuted in a summary manner.

65. By section 12(1)(c) of the Interpretation Act, the power to make a subsidiary instrument such as regulations includes the power to prescribe punishment for contravention of the provisions of the subsidiary instrument. I shall return to this point when addressing the fourth ground of arguments of the claimant to the effect that the defendants especially the 2nd cannot impose a fine on the claimant as that would be usurpation of judicial function. In The State of Ekiti v. Adebayo Aderiye & ors [2016] LPELR-40681(CA), the Court of Appeal using section 12(1)(a) of the Interpretation Act validated its Practice Directions of 2013 in these words:

In this regard it is worthy to note that while the provisions of Section 12(1)(a) of the Interpretation Act expressly states amongst others that where an Act confers a power to make subsidiary instrument, proclamation or notification, the power shall include “power to make different provisions for different circumstances”.

66. For the reasons given, especially taking into account the PIA and the Interpretation Act, I answer question (1) posed by the claimant thus: The Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 issued by the erstwhile Department of Petroleum Resources (now the 2nd defendant) on behalf of the 1st defendant pursuant to section 9 of the Petroleum Act as supplanted by the PIA is NOT ultra vires (it is within) the powers of both the 1st and 2nd defendants and, therefore, valid i.e. NOT null, void and of no effect whatsoever. Accordingly, relief (1) as couched by the claimant is not grantable.

67. The second ground of the arguments of the claimant is that section 12 of the Petroleum Act forbade the DPR from making the Guidelines on behalf of the 1st defendant. The Guidelines are, therefore, improperly made. Section 12(1) of the Petroleum Act provides thus: “The Minister may by writing under his hand delegate to another person any power conferred on him by or under this Act except the power to make orders and regulations”. As can be seen, this provision has, however, been overtaken by the PIA. By section 3(1)(a) and (i) of the PIA, the Minister shall: “formulate, monitor and administer government policy in the petroleum industry”; and “delegate in writing to the Chief Executive of the Commission or Authority any power conferred on the Minister by or under this Act” — the Commission being the 2nd defendant in the instant case. The exception in section 12 of the Petroleum Act (“except the power to make orders and regulations”) has been done away with.

68. To the extent that:

(a) section 317(2) of the PIA provides that “all rules, orders, notices or other subsidiary legislation made under the Petroleum Act… shall continue to have effect as if made under the corresponding provisions of [the PIA];

(b) section 10 of the PIA grants the 2nd defendant power of enforcing regulations, policies and guidelines formerly administered by the DPR or the Petroleum Inspectorate; and

(c) section 10(f) of the PIA specifically grants the 2nd defendant the power to issue guidelines in accordance with the provisions of the PIA or any regulation in respect of upstream operations,

all that the DPR did under the Petroleum Act is accordingly validated by the PIA. I so hold.

69. I accordingly answer question (2) posed by the claimant thus: The Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 issued by the erstwhile Department of Petroleum Resources (now the 2nd defendant) were validly issued whether on behalf of the 1st defendant or on behalf of the 2nd defendant itself having regard to the provisions of section 12(1) of the Petroleum Act as supplanted by section 3(1)(i) of the PIA, which expressly permits the 1st defendant to delegate to the 2nd defendant “any power conferred on the Minister by or under [the PIA]”, which includes the power to “formulate, monitor and administer government policy in the petroleum industry”. Section 9 of the Petroleum Act, which expressly prohibited the 1st defendant from delegating to another person or authority his powers to make orders and regulations has effectively been abrogated. Accordingly, relief (2) as couched by the claimant is not grantable.

70. The third ground of the arguments of the claimant is that the Guidelines, having not been incorporated into the contract between the claimant and its ex-employee, cannot validly govern their employment relationship and is, therefore, unenforceable against the claimant. That the Guidelines constitute an unwarranted interference in the freedom of parties to enter into contract and determine the terms of same.

71. The argument of the claimant here is that given the authorities it cited, it is beyond doubt that the Guidelines, even if considered valid, cannot be read into the employment contract between the claimant and Mrs Olanitori, its ex-employee. That the implication is that the claimant cannot be held liable for not complying with the Guidelines when it terminated the employment of Mrs Olanitori in accordance with the relevant employment contract and without seeking the approval of the 1st defendant. Additionally, that since the claimant cannot be held liable for not seeking the approval of the 1st defendant, it follows then that there is no basis for the 2nd defendant’s imposition of the fine of USD250,000.00 on the claimant and the defendants cannot validly enforce the Guidelines against the claimant. The arguments of the claimant here bear affinity with the arguments as to the fifth ground of the arguments of the claimant — and so more will be said when the said fifth ground is considered.

72. The authorities relied on by the claimant include: Chukwumah v. Shell Petroleum Development Company of Nigeria [1993] 4 NWLR (Pt.289) 512 SC, Shell Petroleum Development Company of Nigeria Limited & ors v. Nwawka [2003] 6 NWLR (Pt. 815) 184 SC; [2003] LPELR-3206(SC), Mr Raphael Obasogie v. Addax Petroleum Development (Nig.) Ltd & anor unreported Suit No. NICN/LA/257/2013, the judgment of which was delivered by Hon. Justice J. D. Peters on 12 April 2018, Mr Michael Smith Atoe v. Petrofac Energy Services Nig. Ltd unreported Suit No: NICN/LA/506/2015, the judgment of which was delivered by Hon. Justice J. D. Peters on 6 June 2019 and PENGASSAN & ors v. Chevron Nigeria Ltd (supra). All these decisions predate the PIA and so did not consider the applicability of especially section 3(1)(a) and (i) as well as other provisions of the PIA or even the applicability of the Interpretation Act to the issues canvassed before the respective courts. On this score, these authorities relied on by the claimant are distinguishable.

73. This aside, even a look at the cases reveal interesting points that have been glossed over in successive applications of the cases — points that can easily distinguish the cases when applied to succeeding facts and circumstances, as in the instant case. To start with, Obasogie, Atoe and PENGASSAN are cases of this Court and so are merely persuasive, not binding. Accordingly, the cases requiring a closer consideration are: Chukwumah and Nwawka. The consideration of all these cases necessarily answers the claimant’s sixth ground of its arguments.

74. In Chukwumah v. Shell Petroleum Development Company of Nigeria, His Lordship Ogundare, JSC in the leading judgment held thus:

The general law is that the court will not grant specific performance of a contract of service. Therefore, a declaration to the effect that a contract of service still subsists will rarely be made. Special circumstances will be required before such a declaration is made and its making will normally be in the direction of the court…

Such special circumstances have been held to arise where the contract of employment has a legal or statutory flavour thus putting it over and above the ordinary master and servant relationship. Equally so where a special legal status such as a tenure of public office, is attached to the contract of employment. While I am not prepared to hold that the list of special circumstances is exhaustive, I must say however, that in the appeal on hand I can see no special circumstance to warrant a declaration being made in his favour having regard to his admitted breach of clause 6 of the terms of his contract with the defendant which required that during his employment he must give his whole time service to his employer (emphasis is this Court’s).

75. This quotation starts with the words, “The general law…” In law, the use of this phrase connotes or denotes that what is being said is not absolute; it admits of exception(s) or a qualification to the rule. What I thus gather from the holding is that the categories of special circumstances in which specific performance of a contract of employment can be ordered are not closed.

76. The precursor of the Guidelines was a government circular issued by the Federal Commissioner for Mines and Power, which the NNPC sought to implement in Chukwumah. The High Court and the Court of Appeal held it to be inapplicable. This is what the Supreme Court in Chukwumah said of the holding of the two courts:

The Court of Appeal agreed with the learned trial Judge on this issue. I also think that the learned trial Judge was quite correct in this exposition of the law. It is more so that the plaintiff did not make non-observance of the policy in Exhibit C part of his case for wishing to set aside his termination. I have referred earlier in this part of my judgment to the two paragraphs of his amended statement of claim touching on the relationship between the defendant Company and the Government of Nigeria. I can find nothing in those averments to suggest that Exhibit C was incorporated into Exhibit N17 and that it was plaintiffs case that non-observance of its contents rendered plaintiffs (sic) termination null and void. In any event, whatever the position of the NNPC in Exhibit B, it had been changed by its subsequent letter Exhibit S wherein it took the position -

However, we do appreciate that the strained relationship which has now developed between your management and Dr. Chukwumah does not provide a conducive (sic) atmosphere for the latter to perform properly as a medical doctor. For that reason, we would not object to Dr. Chukwumah withdrawing his services from your company under the terms of his employment.

It is in evidence from the plaintiff that he was advised by the defendant to withdraw his services but he bluntly refused. He thus left the defendant with no choice but to exercise its rights under Exhibit N17. I must also observe, as was rightly done by the learned trial Judge, that the Joint Venture Agreement was not put in evidence even thought (sic) plaintiff, in paragraph 7(b) of his reply, said he would found on it. It is, therefore, difficult to say that the policy statement contained in Exhibit C was validly made by the NNPC and binding on the defendant. It certainly could not be made the basis of an action by the plaintiff or any other employee, unless it is incorporated into the contract of service of such employee (the emphasis is this Court’s).

77. A look at especially the italicised part of the above quotation shows the peculiarity of the circumstances of the case, which formed the basis of the decision. Mr Chukwumah did not make the non-observance of the policy on release of staff part of his case as to warrant due consideration by the court. The initial position the NNPC took had even changed. And because the Joint Venture Agreement was not put in evidence, it was difficult for the court to come to the conclusion that the policy statement as to release of staff was validly made by the NNPC and binding on the defendant. The Supreme Court then concluded that it certainly could not be made the basis of an action by the plaintiff or any other employee. The point I seek to make is that it was not simply the fact that the release policy was not incorporated into the contract of service of Mr Chukwumah that led to the verdict arrived at in Chukwumah. Other factors, as pointed out earlier, were more determinant of the verdict than the absence of incorporation of the release policy into the contract of employment.

78. The claimant had argued that Nwawka reiterated Chukwumah. In Shell Petroleum Development Company of Nigeria Limited & ors v. Nwawka [2003] LPELR-3206(SC), His Lordship Ayoola, JSC in the leading judgment held thus:

I now turn to the cross-appeal. In regard thereto Counsel for the respondent contended that the Court below was in error in striking out claims 8 and 10 by which the respondent sought a declaration that the 1st to 4th appellants cannot disengage or declare the respondent redundant without a formal permission of the 7th defendant, that is, the Ministry of Petroleum Resources, and consequential injunction. The Court below relied on the case of Chukwumah 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 Chukwumahs (sic) 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.

I do not see the need for the issue made of the relevance or otherwise of Chukwumah’s case to this case. Quite apart from the fact that it has not been shown in the statement of claim how any ministerial directive deprived the 1st appellant of its freedom of contract, to such claimed extent that the 1st appellant could not determine it without the approval of a third party, there was no averment anywhere in the statement of claim that there was no such prior approval sought or obtained. Where the plaintiff's case is based on absence of an essential prior approval such must be pleaded by him, else there would be no cause of action disclosed. There is really no substance in the cross-appeal and I would dismiss it (emphasis is this Court’s).

79. In his contribution, His Lordship Belgore, JSC (as he then was) had this to say:

The rule in civil cases is that a matter not pleaded goes to no issue. The case of Chukwumah v. Shell Petroleum Development of Nigeria Ltd. (1993) 4 NWLR (Pt. 289) 512 has no relevance to this case. Therefore, the case of the plaintiff on the alleged non-approval by the minister which has not been pleaded is not relevant in this case (emphasis is this Court’s).

80. And to His Lordship Ejiwunmi, JSC in his concurring judgment:

It is manifest from his pleadings that the respondent wanted to expose the unsavoury conduct of the 1st appellant with regard to how they employ their expatriate staff; he needed to have pleaded also such facts that pertain to his own employment and how he was eventually “released” from his employment by the 1st appellant. In this respect, he should have averred in his pleadings such facts as are material and necessary for the purpose of formulating a complete cause of action (emphasis is this Court’s).

81. It needs to be noted that Ayoola, JSC was quite emphatic on these three points:

(a) It has not been shown in the statement of claim how any ministerial directive deprived the 1st appellant [Shell] of its freedom of contract.

(b) There was no averment anywhere in the statement of claim that there was no such prior approval sought or obtained.

(c) Where the plaintiff's case is based on absence of an essential prior approval such must be pleaded by him, else there would be no cause of action disclosed.

82. These points by Ayoola, JSC are reiterated by the concurring judgments of Belgore and Ejiwunmi, JJSC thus:

(a) The case of the plaintiff on the alleged non-approval by the minister which has not been pleaded is not relevant in this case.

(b) Mr Nwawka needed to have pleaded also such facts that pertain to his own employment and how he was eventually “released” from his employment by the 1st appellant.

83. Once again, the peculiarity of Nwawka can be seen. Incorporation of a government policy into a contract of employment is not sacrosanct going by the authorities cited by the claimant. The circumstances in which the precursor of the Guidelines was sought to be applied are not the same with those of today. I indicated earlier that the Guidelines have legislative backing in both the PIA and the Interpretation Act. Accordingly, incorporation into the contract of employment of Mrs Olanitori is unnecessary. I so hold. The Guidelines being government policy, and enjoying legislative character, even if as subsidiary legislation, make the privity argument also inapplicable. The privity rule itself is not absolute. It admits of exceptions — and legislation can impose any exception on it. As a common law rule, the privity rule is amenable to legislative control. I say more on this i.e. the relationship of common law to legislation when addressing the claimant’s fifth ground of its arguments.

84. I accordingly answer question (3) posed by the claimant thus: the purported Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019 can validly govern the employment relationship between the claimant and its employees even when the said Guidelines were not incorporated into the contract of employment executed by the claimant and its employees. The Guidelines have legislative support in the PIA and the Interpretation Act. Accordingly, relief (3) as couched by the claimant is not grantable.

85. The fourth ground of the arguments of the claimant is that the 2nd defendant’s unilateral imposition of the fine contained in the Guidelines is unconstitutional, illegal, and null and void. That it also constitutes a usurpation of the constitutional powers exclusively vested in the judiciary. Relying on NOSDRA v. Mobil Prod. (Nig.) Unltd [2018] 13 NWLR (Pt. 1636) 334; [2018] LPELR-44210(CA), the argument of the claimant here is that the 2nd defendant, not being a judicial body, cannot impose a fine on the claimant. By section 12(1)(c) of the Interpretation Act, where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include, in the case of a subsidiary instrument, power to prescribe punishments for contraventions of provisions of the instrument. This means that by the said section 12(1)(c), the imposition of a penalty for infringement is valid and legal. Incidentally, in NOSDRA v. Mobil Prod. (Nig.) Unltd, neither the lead judgment of Nwosu-Iheme, JCA nor the concurring judgments of Adah, JCA and Oyewole, JCA referred to the Interpretation Act.

86. Before NOSDRA v. Mobil Prod. (Nig.) Unltd, a number of Court of Appeal decisions recognised the power of regulators to impose civil penalties without recourse to the Courts. For instance, in Ogunniyi v. Hon. Minister of FCT & anor [2014] LPELR–23164(CA), the Court of Appeal considered the legal effect of the Approved Guidelines for the Sale of Federal Government Houses in the FCT to Career Public Servants (described in the case as an instrument of law), which was issued pursuant to section 14 of the Federal Capital Territory Administration (FCTA) Act Cap F6 LFN 2004. This FCTA Act empowers the President to make regulations generally for carrying into effect the provisions of the Act, which power was delegated to the Minister of the Federal Capital Territory vide section 18 of the Act. The Court of Appeal held that the Approved Guidelines for the Sale of Federal Government Houses in the FCT to Career Public Servants can pass as law since they were made by the Minister pursuant to the powers conferred on him by section 18 of the FCT Act. The Interpretation Act, which defines law to include instrument made under a law, was relied on by the Court of Appeal to arrive at this conclusion.

87. Another Court of Appeal decision which allowed a regulator to impose penalties without recourse to the court is Barrister Moses Ediru v. Federal Road Safety Commission (FRSC) and 2 ors [2015] LPELR-24790(CA); [2016] 4 NWLR (Pt. 1502) 209. However, the Court of Appeal here was quite specific that the respondents (the regulator and its staff) were not the imposers of the penalties — the legislature in the statute did. But hear the words of the Court of Appeal:

…the respondents are within the four walls of the law to enforce the penalties relative to the alleged offences. The point must be made that the respondents are not the imposers of the penalties. It is the statute promulgated by the legislature. They are quintessence of statutory penalty…The fines which the law gives the respondents the nod to enforce do not, in the least, derogate from the juridical powers of the Courts as enshrined in Section 10(7) - (9) of the Act and paragraph 113 of the Regulations. Put the other way round, there is no confluence point where the powers of the respondents and the Courts meet. The powers of both are not coterminous. They are mutually exclusive such that the respondents’ power of enforcement is not an (sic) usurpation of the judicial power of the Court.

88. A third Court of Appeal decision is Ebong v. Securities and Exchange Commission [2017] LPELR-43547(CA). Here, the Court of Appeal, relying on section 305(3)(a), (b) and (c) of the Investments and Securities Act (ISA) 2007, held thus:

The above provisions vest the Respondent with the power in itself to impose appropriate sanction on any person engaged in a market abuse or violation. The power is to be exercised by the Respondent herself and not by any other body, including the I.S.T. This is because there is no provision in the ISA for it to delegate this function to another body including the I.S.T. by taking such a matter to it. The law is that disciplinary power cannot be delegated unless there is express statutory authority to do so…

89. The last Court of Appeal decision prior to NOSDRA v. Mobil Prod. (Nig.) Unltd is CAC v. Seven-up Bottling Co. [2017] 5 NWLR (Pt.1558) at 258 & 259, which held that the CAC has the authority to impose civil penalties without recourse to the Courts.

90. Despite all these Court of Appeal decisions, NOSDRA v. Mobil Prod. (Nig.) Unltd would hold that it was usurpation of judicial function and power for a regulator like the appellant to impose a penalty.

91. A recent opportunity to review NOSDRA v. Mobil Prod. (Nig.) Unltd came up in Shell Nigeria Exploration and Production Co. Ltd v. National Oil Spill Detection and Response Agency (NOSDRA) [2021] LPELR-53068(CA). In this recent case, counsel to the respondent had submitted that the authority of the respondent to make subsidiary legislation is expressly conferred by section 26 of National Oil Spill Detection and Response Agency (Establishment) Act 2006 (NOSDRA Act) and that by virtue of section 12(1)(a) of the Interpretation Act, the respondent is given the latitude to insert in a subsidiary instrument, a provision which was not provided for in the principal legislation in order to enable it carry into effect the primary function of the principal Act. Thus, the NOSDRA Act as well as the Regulations being Act of the Parliament has nothing to do with section 6 of the 1999 Constitution.

92. The leading judgment of His Lordship Shuaibu, JCA did not specifically consider section 12(1)(a) of the Interpretation Act but held thus:

In the present case, the NOSDRA Act is the substantive legislation for all matters relating to Oil Spill response management while the NOSDRA Regulations is the subordinate legislation. Regulations 25, 26 and 27 being inconsistent with the substantive provisions are ultra vires.

93. On whether Regulations 25, 26 and 27 of NOSDRA Regulations amounts to usurpation of the judicial functions vested in Courts pursuant to section 6 of the 1999 Constitution, the leading judgment held that “the respondent not being a Court of law cannot impose any fine and the regulations to that effect are not only unconstitutional but capable of eroding the fundamental rights of the appellant herein as enshrined in sections (sic) 36(1) and (2) of the Constitution of the Federal Republic of Nigeria as amended”. I must note that no specific mention of, or reference to, sections 10 and 12(1)(c) of the Interpretation Act was made in the leading judgment.

94. Even the concurring judgment of Ekanem, JCA, after holding that a subsidiary legislation must be consistent with the principal legislation from which it derives its life, otherwise such subsidiary legislation is a nullity to the extent of the inconsistency, only referred to sections 13(3) and 35 of the Interpretation Act and then held that “Since the NOSDRA Act does not give power to the agency to impose fine, the said sections offer no help to respondent’s counsel”. Once again, no specific consideration of sections 10 and 12(1)(c) of the Interpretation Act was made. It must be reiterated that by section 12(1)(c) of the Interpretation Act, where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include, in the case of a subsidiary instrument, power to prescribe punishments for contraventions of provisions of the instrument.

95. To reinforce section 12(1)(c) of the Interpretation Act, section 17(1) of the Interpretation Act provides that: “where a punishment in respect of an offence is provided by an enactment, the enactment shall be construed as providing that an offender shall be liable in pursuance of the enactment to a punishment not exceeding the punishment so provided”. And by section 37 of the Interpretation Act: “enactment” means any provision of an Act or subsidiary instrument. The 1999 Constitution itself in section 318(1) defines “enactment” as “provision of any law or a subsidiary instrument”. Section 37 of the Interpretation Act then defines “subsidiary instrument” to mean any order, rules, regulations, rules of court or bye-laws made either before or after the commencement of the Interpretation Act in exercise of powers conferred by an Act. The implication of all these provisions is that the imposition of penalties even under a subsidiary legislation or instrument is valid and legal. It cannot be that it is the usurpation of judicial power as the earlier Court of Appeal decisions, which I referred to above held. And so in the instant case, the defendants (especially the 1st and 2nd) can impose penalties on the claimant taking into account the PIA, the Interpretation Act and the pre-2018 Court of Appeal decisions highlighted earlier, which decisions were not considered in NOSDRA v. Mobil Prod. (Nig.) Unltd and Shell Nigeria Exploration and Production Co. Ltd v. National Oil Spill Detection and Response Agency (NOSDRA) (all supra). I so hold.

96. The only caveat here is that no penalty shall exceed that imposed by law. Section 12(1)(c)(ii) of the Interpretation Act circumscribed the penalties that can be imposed by subsidiary legislation in these words: where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include, in the case of a subsidiary instrument, power to prescribe punishments for contraventions of provisions of the instrument, not exceeding as respects a particular contravention, in any other case, imprisonment for a term of six months or a fine of one hundred Naira or both. Section 12(2) even permits the prosecution in a summary manner a contravention of a provision of a subsidiary instrument.

97. So when a fine of USD250,000 was imposed on the claimant by especially the 2nd defendant, was that in conformity with the law? Section 12(1)(c)(ii) of the Interpretation Act delimits the penalty to “imprisonment for a term of six months or a fine of one hundred Naira or both”. But section 297 of the PIA makes a more specific provision as to penalty for defaults in these words:

(1) A person who fails to comply with the provisions of this Chapter or any regulation made under this Act for which no other penalty is specifically provided, shall be liable to an administrative penalty of N10,000,000, and where the default continues beyond a period stipulated by this Act or regulation, the person shall be liable to a further administrative penalty of N2,000,000 or such other sum as may by order be prescribed by the Minister of Finance, for each day the default continues.

(2) Notwithstanding the provisions of subsection (1), a person who is found guilty of an offence under this Chapter or in a regulation made under this Act for which no other penalty is specifically provided, shall, on conviction, be liable to a fine of N20,000,000 or other sum as may be prescribed by the Minister of Finance by an order and where the offence continues beyond a period stipulated by this Act or regulation, the person shall be liable to an additional fine of N2,000,000 or such other sum as may, by order, be prescribed by the Minister of Finance for each day the default continues or imprisonment for a term of six months.

(3) …………………….

(4) Any violation in respect of which a penalty is provided for in subsection (1) shall be deemed to occur in Nigeria.

98. I must point out that in section 297 of the PIA, subsection (2) is independent of subsection (1). In other words they exist independently. Subsection (1) imposes an administrative penalty for the infraction of any regulation made under the PIA. I indicated earlier that the Guidelines under consideration in the instant case are deemed to have been made under the PIA. And because the Guidelines made a specific penalty of USD250,000, it comes squarely within section 297(1) of the PIA; and is the penalty applicable, not the N10,000,000 imposed thereunder. I so hold. And because the PIA is later in time, it must be given effect to accordingly.

99. I note that section 297(1) of the PIA conforms with Barrister Moses Ediru v. Federal Road Safety Commission (FRSC) and 2 ors (supra) where the Court of Appeal noted that the respondents (the regulator and its staff) were not the imposers of the penalties — the legislature in the statute did. And that the imposition of the penalty is not a usurpation of judicial power. In section 297(1) of the PIA, the legislature imposed an administrative penalty so long as the regulation in issue did not impose one — but where one is imposed, then that takes priority, according to the legislature.

100. I have no hesitation whatsoever in coming to the conclusion that the imposition of the penalty of USD250,000 by especially the 2nd defendant on the claimant is valid and lawful. Accordingly, I answer question (4) posed by the claimant thus: the imposition of the fine of US$250,000.00 (Two Hundred and Fifty Thousand United States Dollars) on the claimant by the 2nd defendant, via its letter dated 28 January 2022 for alleged failure to seek and obtain the 1st defendant’s approval prior to the termination of its employee’s contract of employment is not unconstitutional, not illegal, not null and void, and not ultra vires the powers of the 1st and 2nd defendants. The imposition is valid and legal, and not a usurpation of judicial power under section 6 of the 1999 Constitution. Accordingly, reliefs (4), (5) and (8) are not grantable.

101. The fifth ground of the arguments of the claimant is that the Guidelines cannot empower the 2nd defendant to compel the claimant to recall and reinstate an ex-employee. The argument of the claimant here is that the Guidelines cannot be interpreted as giving the 2nd defendant the power to demand or compel the recall and reinstatement of a released employee on the ground that the termination of an employment without statutory flavour cannot be declared ineffectual or void, as such will amount to compelling a willing employee on an unwilling employer.

102. To start with, I reiterate the reasoning advanced by this Court regarding the third ground of the arguments of the claimant. I also reiterate the reasoning of this Court as to the validity and legality of the Guidelines as representing government policy on the issue. A valid government policy on an issue will necessarily apply, especially when the interest of an employee is in issue. As noted earlier, the Supreme Court itself acknowledged that the categories of special circumstances in which specific performance of a contract of employment can be ordered are not closed. So, when a government policy such as the Guidelines stipulate that an employee wrongly released be recalled, that is a special circumstance allowing for specific performance of a contract of employment that should be recognised. Today, labour law is replete with rules that favour the employee. Accordingly, found in labour law are rules such as ambiguity being resolved in favour of the employee [New Nigeria Development Company Limited v. Daniel Ugbagbe [2021] LPELR-56666(SC)] since the bargaining power tilts favourably on the side of the employer.

103. That there is paternalism of the law in labour relations is a given fact. Globally, the jurisdiction of industrial courts is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace. See the Supreme Court of India decision in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329. The argument of the claimant that it is not for anybody or even a court of law to import terms and conditions into an employment contract is one that cannot be absolute. Afrab Chem Ltd v. Pharmacist Owoduenyi [2014] LPELR-23613(CA), for instance, acknowledged that there could be implied terms in a contract of employment as may be necessary, stressing that the law would not, say, allow the imposition of servile conditions on an employee.

104. His Lordship Ogakwu, JCA would in Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola [2020] LPELR-51806(CA) cite with approval Arturo Bronstein - International and Comparative Labour Law: Current Challenges (Palgrave Macmillan), 2009 at pages 1 – 2:

…labour law is not just a means of regulating the exchange between labour and capital as civil or commercial law does with respect to civil or commercial contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as ‘decent work’…

I must add, contrary to the thinking of the claimant, labour law today goes much beyond that private contract between the employer and the employee.

105. So, is the argument of the claimant that the Guidelines cannot empower the 2nd defendant to recall and reinstate Mrs Olanitori founded? The rule against foisting a willing employee on an unwilling employer is a common law rule. The Guidelines as subsidiary legislation is defined as law by the Interpretation Act, and as by the 1999 Constitution. And the law, as His Lordship Karibi-Whyte, JSC (of blessed memory) put it in Patkun Industries Ltd v. Niger Shoes Manufacturing Company Limited [1988] LPELR-2906(SC), is that:

It is well settled law that where the provisions of a statute are positive, clear and unequivocal as to the abrogation of existing rights whether statute or common law, the words of such statutory provision must be given effect. Again where a statutory provision is in conflict or differs from common law, the common law gives place to the statute.

This was further affirmed in Owners of The MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] LPELR-2848(SC) per His Lordship Ogbuagu, JSC.

106. So, as the Guidelines qualifies as an enactment under the Interpretation Act (and even the 1999 Constitution), its words must be given effect to over and above the common law rule as to not foisting an employee on an employer. Ibrahim v. Barde [1996] 9 NWLR (Pt. 474) 513, (1996) 12 SCNJ 1 held that when a statute gives power to a person to prescribe rules or regulations, the donee of such power is imbued with authority to make a subsidiary legislation, which if made, becomes binding.

107. This line of argument, which I agree with, was advanced by Bimbo Atilola and Harrison Declan in their paper titled, “A perspective on DPR’s guidelines for the release of oil workers in Nigeria’s oil and gas industry”, available at https://businessday.ng/news/legal-business/article/a-perspective-on-dprs-guidelines-for-the-release-of-oil-workers-in-nigerias-oil-and-gas-industry/ as accessed on 26 July 2022. To these learned commentators (even though they described the Guidelines as draconian), relying on Patkun Industries Ltd v. Niger Shoes Manufacturing Company Limited:

…the principle of supremacy of the contract of employment in a master/servant relationship is derived from the common law of contract, (See Tobi, J.C.A. in Orient Bank (Nig) Plc v. Bilante Int. Ltd [1997] 8 NWLR 37 at 76) and where there is an express legislation covering a particular field, common law ceases to have jurisdiction over such field…

The effect of this line of argument is that the provisions of Regulations 15A of the Petroleum (Drilling and Production)(Amendment) Regulations, having been made pursuant to the Petroleum Act, override any common law provision on master/servant relationship as it relates to the Nigerian oil and gas industry, and as such, the Guidelines which were made pursuant to the said Regulations, are valid as same overrides the trite common law principles on master-servant relationship.

…The implication of the subject matter DPR Guidelines is that employment in the Nigerian oil and gas industry, at any level, is now clothed with statutory flavour and consequently, a staff terminated, dismissed or otherwise “released” from employment in the industry without the requisite approval of the DPR is liable to be reinstated by the Court, National Industrial Court in this case. This is because any purported termination, dismissal, redundancy or any form of “release” in the industry without the requisite approval of the DPR will be unlawful and null and void.

108. Even though Bimbo Atilola and Harrison Declan wrote prior to the PIA, and made no reference to the Interpretation Act, their argument is even truer of the PIA than it was under the Petroleum Act that they used. I adopt their reasoning and hold that the Guidelines empower the 2nd defendant to recall and reinstate Mrs Olanitori.

109. Nigeria may not have ratified the International Labour Organisation (ILO) Termination of Employment Convention, 1982 (No. 158), the Convention that promotes security of employment globally. And I must acknowledge that ILO standards, that is, Conventions, Recommendations and Codes of Practice, whether ratified or not, “not only reflect a certain universal wisdom, they also enjoy a social legitimacy that would seem hard to challenge” — Arturo Bronstein – “The Role of the International Labour Office in the Framing of National Labour Law” [2005] 26 Comparative Labor Law & Policy Journal 339 at page 346.

110. The Guidelines, as legislation, are, Nigeria’s response to ILO Convention No. 158 in the oil and gas industry. The Guidelines represent government policy that seeks security of employment of Nigerian nationals employed in the oil and gas industry. It is not a document that should be dismissed with a wave of the hand. In stating that Nigerian nationals employed in the oil and gas industry cannot be removed by involuntary retirement, dismissal, termination, redundancy or on medical grounds without the prior approval of the Minister of Petroleum Resources, the Guidelines have evinced a government policy meant to safeguard the interests of Nigerian nationals employed in the oil and gas industry. This policy deserves support. It should not be that it is the courts that are shooting it down when, aside from the PIA, the policy is also grounded under the Interpretation Act. I am here minded to cash in on the dictum of Edozie, JSC in Buhari v. Obasanjo [2003] LPELR-813(SC) (Pp. 68 paras. C) to the effect that:

The beauty of law in a civilized society is that it owes its respect and due observance to the society. It should be progressive and act as a catalyst to social engineering. Where it relies on mere technicality or outmoded or incomprehensible procedures and immerses itself in a jacket of hotchpotch legalism that is not in tune with the times, it becomes anachronistic and it destroys or desecrates the temple of justice it stands.

111. For the reasons given on this and other grounds of the claimant’s arguments, I will answer questions 5, 6 and 7 posed by the claimant against the claimant. Accordingly, on question 5, I answer that there is an obligation on the claimant to seek or obtain the approval of the 1st defendant before the release of its staff. And on question 6, I answer that the erstwhile Department of Petroleum Resources (now the 2nd defendant) can direct the claimant to recall and reinstate its ex-employees for non-compliance with the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019. Accordingly, reliefs (6), (7), (9), (10) and (11) as couched by the claimant are not grantable. Relief 12 is general and so must equally fail.

112. The sixth ground of the arguments of the claimant is that the decision of this Court in Suit No: NICN/LA/411/2020: PENGASSAN & ors v. Chevron Nigeria Limited, which has not been set aside, and the decision of the Supreme Court in respect of an earlier version of the Guidelines serves to prevent the continued enforcement of the Guidelines. For all the reasons earlier given, the circumstances today in which the said Guidelines (and its earlier versions) apply differ from the decisions of this Court in Suit No: NICN/LA/411/2020: Petroleum and Natural Gas Senior Staff Association of Nigeria & 3 ors v. Chevron Nigeria Limited delivered on 26 February 2021 and the Supreme Court decision in Shell Petroleum Development Company of Nigeria Limited & Nwaka [2003] 6 NWLR (Pt. 815) 184. The Guidelines accordingly are valid and so are not null and void. Accordingly, on question 7, I answer that the defendants are empowered by law to enforce or continue to enforce any provisions of the Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry 2019 against the claimant.

113. On the whole, and for the reasons given, the case of the claimant fails in its entirety. Accordingly, the claimant is bound to comply with the directive to recall and reinstate Mrs Olanitori, and also pay the fine of USD250,000 imposed on it. I so rule.

114. Judgment is entered accordingly. I make no order as to cost.

……………………………………

Hon. Justice B. B. Kanyip, PhD