Exercise of ministerial powers under Nigeria’s petroleum industry act

Abstract

The Nigerian Petroleum Industry Act, 2021 (PIA) repealed and replaced the Petroleum Act, 1969. Under the Petroleum Act 1969, the minister responsible for petroleum matters had wide discretionary powers including the power to grant petroleum exploration and production licences, power to revoke such licences and power to acquire the interest of any party in a petroleum joint operating venture. The minister had general supervisory and oversight powers over the petroleum industry. The PIA seeks to whittle down those powers, but still leaves the minister with considerable authority to exercise discretion and also exercise some control over the statutory bodies established by the PIA with responsibilities that would have effectively reduced the powers of the minister and ensured transparency and accountability. This paper reviews these powers and the legal limitation on the exercise of such statutory powers and suggests options for remedies available in cases of arbitrary or unreasonable exercise of such powers.

Keywords:

• minister
• transparency
• reasonableness
• judicial review

Acknowledgements

Thanks to David Thomas QC of Keating Chambers, London, UK, whose notes to me on the case of Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 were used in this paper.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Petroleum Act 1969; Laws of the Federation of Nigeria 1990, ch 350; Laws of the Federation of Nigeria 2004, ch P10, effective 27 November 1969–16 August 2021

2 From Address by Dr Momodu Kassim-Momodu, Editor, Petroleum Technology Development Journal (PTDJ) on the occasion of the public presentation of the PTDJ at the International Conference Centre, Abuja, Nigeria on 19 July 2011

3 Ibid

4 PIA Section 3(1)(a) and (b)

5 Established by Section 4(1) of PIA

6 PIA Section 3(g) and (h)

7 PIA Section 3(1)(h) and (i)

8 Established by Section 29(1) of PIA

9 PIA Section 3(2)

10 PIA Section 3(3)

11 PIA Section 3(4)

12 PIA Section 3(1)(f)

13 PIA Section 3(4)

14 PIA, Section 53(3) and Section 5, Schedule 8

15 PIA, ch 1, has provisions on vesting of petroleum, the powers of the Minister, Nigerian Upstream Regulatory Commission, Nigerian Midstream and Downstream Petroleum Regulatory Authority and Nigerian National Petroleum Company Limited.

16 (2012) 17 Nigerian Weekly Law Report (NWLR), p 148

17 Laws of the Federation of Nigeria, 1990, ch 192

18 Section 10 (1) of the Interpretation Act

19 Appeal no CA/A/173/2006

20 Section 44 of the Constitution of the Federal Republic of Nigeria 1999 protects the right to property. This property right protection was extended to interest in OMLs by the Supreme Court in NNPC v Famfa Oil Limited and Anor (2012) 17 NWLR, p 168

21 Ibid

22 (2012) 17 NWLR, p 148

23 PIA, Section 53(3) and Section 5, Schedule 8; Laws of the Federation of Nigeria, 1990, ch 192

24 eg Order 34, Rule 3(4), Federal High Court [FHC] Rules; Order 40, Rule 3(4), Lagos State High Court Rules

25 Order 34, Rule 1(b), FHC Rules; Order 40, Rule 1(b), Lagos State High Court Rules; Order 54, Rule 2 Rules of Supreme Court (RSC)

26 Order 34, Rule 1(2), FHC Rules; Order 40, Rule 1(2), Lagos State High Court Rules; Order 54, Rule 3 RSC

27 Order 34(7) FHC Rules; Order 40(7) Lagos State High Court Rules

28 (1981) Law Pavillion Electronic Law Report (LPELR)-147, Supreme Court (SC)

29 (2002) LPELR-1258 (SC)

30 (1981) LPELR-147 (SC)

31 at p 34, para A–D

32 (2002) LPELR-1258 (SC)

33 Per Samson Odemwingie Uwaifo JSC, 46–47, para C–D

34 See R. v The Guardians of Lewisham Union (1897) 1 QB 498; R. v Leicester Guardians (1899) 2 QB 632; R. v Customs and Exercise Commissioners ex parte Cook (1970) 1 Weekly Law Report (WLR) 450 at 455

35 See also De Smith's Judicial Review of Administrative Action, 4th edn, 550, and 551–564; R. v The Assessment Committee of the City of London Union (1907) 2 Kings Bench (KB) 764 where a rating authority was held not to have a sufficient legal interest to obtain a mandamus to compel an assessment committee to perform its statutory duties properly, and there, Fletcher Moulton LJ took the view at p 793–794 that, a fortiori, members of the public would have no locus standi.

36 Supreme Court 256/1989 (SC.256/1989)

37 Governor of Oyo State v. Oba Folayan (1995) 8 Nigerian Weekly Law Report (NWLR) (Pt.413) 292

38 R. v Secretary for the Home Department, Ex parte Brind (1991) 1 AC 696, 762G; 767G; Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223; Chief Constable of the North Wales Police v Evans (1982) 1 WLR 1155

39 (1948) 1 KB 223, 234

40 (1982) 1 WLR 1155, 160F

41 Supreme Court 256/1989 (n 36)

42 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 410

43 Op. Cit

44 OP. Cit

45 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1, at para 230

46 Ibid, at para 229, emphasis added by author

47 Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374, at 228

48 Ibid at 229

49 Civil Appeals 2nd edn; ch 9 – Administrative Law at 9-409

50 Laws of the Federation of Nigeria, ch 192

51 [2006] All England Law Report (All ER) (D) 180 (May)

52 [2005] 2 All ER 970

53 [2013] England and Wales High Court (EWHC)1009 (Admin); [2013] Administrative Court Division 98; para 104, 106, 109–114

54 Constitution of the Federal Republic of Nigeria 1999, Interpretation Act, ch 192; Laws of the Federation of Nigeria 1990; Petroleum Industry Act 2021