BURNING ISSUES ON THE DPRS GUIDELINES FOR THE

RELEASE OF WORKERS IN THE NIGERIAN OIL AND GAS

INDUSTRY
ABSTRACT
Employment in Nigeria is governed by the legislation and the
English

common

law.

These

laws

basically

place

the

relationship between an employer and an employee subject to

the agreement between the both parties. In such instances, the
employer/employee relationship is governed by the contract
voluntarily entered into by the parties so long such contracts
are enforceable within the precincts of Nigerian law and other
international labour treaties to which Nigeria is a signatory to.
In

some

other

restricted

instances,

the

employment

relationship is governed not only by the agreement of the

parties, but by statutes. In such instances, the employment is
said to be clothed with statutory flavour and as such same can
only be determined in accordance with the provisions of those
statutes1.

Bimbo Atilola, ACIArb(UK), LL.M (Lagos) is the Managing Partner

of Hybrid Solicitors and the Editor-in-Chief of the Labour Law Review. He
can be contacted via bimboatilola@hybridsolicitors.com.
Chika
Agbasi (Mrs), LL.B, BL, is a Senior Associate with Hybrid Solicitors
and can be contacted via chikaagbasi@hybridsolicitors.com.
Harrison Declan, MCIArb(UK), LL.M (Aberdeen) is a Senior
Associate with Hybrid Solicitors and can be contacted via
harrisondeclan@hybridsolicitors.com.

1 See Idoniboye-Obu v. NNPC (2003) 2 NWLR (Pt. 805) 589; Shitta-Bey v.

Federal Civil Service Commission (1981) 1 S.C. 40; NEPA v. Isieveore

(1997) 7 NWLR (Pt. 511) p. 135; P.T.I & Ors v. Nelsimone (1995) 6 NWLR
1

In the Nigerian oil and gas industry, the Petroleum (Drilling and
Production) Regulations (as amended) (the Regulations)
made pursuant to the Petroleum Act 2 also contains provisions
that govern employer/employee relationship. These provisions
have largely lain dormant since they were enacted, not until
recently when the Department of Petroleum Resources issued
Guidelines pursuant to the Regulations that seek to govern
employment relationships in the Nigerian oil and gas industry.
Do the provisions of the Guideline make employment in the
Nigerian oil and gas industry statutorily flavoured? In other
words,

have

the

provisions

of

the

Guidelines

elevated

employments in the Nigerian oil and gas industry to the special

category of employments spiced with statutory flavour?
The Guidelines seek to give the Minister of Petroleum
Resources powers over employment relationships and as
expected has generated ripples in the Nigerian oil and gas
industry. This paper seeks to isolate the legal issues arising
from the said Guideline. It begins by examining the provisions
of the Guideline. Thereafter it seeks to settle some dust raised
by stakeholders within and outside the oil and gas industry.
Issues like the constitutionality of the Guidelines and the
economic cum social implications of the Guidelines are all
considered herein.
(Pt. 402) 414; Bamgboye v. University of Ilorin (2001) 10 NWLR (Pt. 622)
690; Eperokun v. UNILAG (1986) 4 NWLR (Pt. 34) 162; Imoloame v. WAEC
(1992) 3 N.S.C.C 374; Olaniyan v. UNILAG (1985) 2 NWLR (Pt. 9) 599;
Olatubosun v. NISER (1988) 3 NWLR (Pt. 80) 25.
2

CAP. P10 LFN, 2004.

2

Introduction
On the 5th of March, 2015 the erstwhile director of the
Department

of

Petroleum

Resources

(DPR)

signed

the

Guidelines and Procedures for the Release of Staff in the

Nigerian Oil and Gas Industry. The Guidelines were issued
pursuant to Regulation 15A of the Petroleum (Drilling and
Production)(Amendment)

Regulations,

which

provides

follows:
The holder of an oil mining lease, licence or permit
issued

under

the

Petroleum

Act

1969

or

under

regulations made thereunder or any person registered to

provide any services in relation thereto, shall not remove
any worker from his employment except in accordance
3

as

with guidelines that may be specified from time to time

by the Minister.
Regulation 15A was itself issued pursuant to section 9 of the
Petroleum Act which empowers the Minister of Petroleum
Resources to issue regulations for the purpose of giving effect
to the Act. The implication of these provisions is that the
Guideline derives its validity from an Act of the National
Assembly, the Petroleum Act. In view of this, can it be said that
the Guidelines have the force of law and as such are
enforceable?

If

actually

they

are

enforceable,

are

they

appropriate? Do the Guidelines contravene well-established

labour and employment laws which make a contract of
employment

the

foundation

and

bedrock

of

every

employer/employee relationship?3
Indeed, the Guideline raises a lot of issues and stirs a lot of
controversies. Some of these have been publicly expressed. 4
This paper sets out to take a deeper legal examination of this
Trojan instrument and hopes to answer every legal question
that might be asked in relation thereto.
Application of the Guidelines
The Guidelines is to apply to an employer and for the benefit
of a worker as defined therein. With respect to an employer,
3

See Union Bank of Nigeria v. Edet (1993) 4 NWLR (Pt. 287) 288.

4 See Godwin Etim, DPR Guidelines and Procedures for Release of Staff: A

Welcome Illegality? BusinessDay Thursday 8 October 2015. See also

Harrison Declan, Problems with the DPRs Guidelines for Oil Workers, The
Punch Newspapers, October 26, 2015.
4

an employer

is defined as any organisation, company,

partnership, or registered business name which holds an oil

mining lease, licence or permit (or interest therein) issued
under

the

Petroleum

Act

or

under

Regulations

made

thereunder or any person registered to provide any service in

relation thereto. The implication of this definition is that the
Guidelines

apply

to

upstream

companies,

downstream

companies, oil servicing companies, and even oil refining

companies.5 Upstream companies are caught by the Guidelines
as they hold their oil mining lease pursuant to section 2 of the
Petroleum Act.6 Downstream companies also hold their licence
or permit pursuant to section 4 of the Petroleum Act.7 Oil
servicing companies are covered by the part of the Guidelines
which says any person registered to provide any services in
relation thereto. Oil refining companies hold their licence
pursuant to section 3 of the Petroleum Act.8
With respect to a worker, the Guidelines define it as any
Nigerian national who is employed by the holder of an oil
5

See Harrison Declan, n. 3.

6 Section 2(1) of the Petroleum Act provides that subject to the

provisions of this Act, the Minister may grant (a) a licence, to be known
as an oil exploration licence, to explore for petroleum; (b a licence, to be
known as an oil prospecting licence, to prospect for petroleum; and (c) a
lease, to be known as an oil mining lease, to search for, win, work, carry
away and dispose of petroleum.
7 Section 4(1) provides that subject to this section, no person shall

import, store, sell or distribute any petroleum products in Nigeria without

a licence granted by the Minister.
8

Harrison Declan, n. 4.
5

mining lease, licence or permit issued under the Petroleum Act

or

under

Regulations

made

thereunder

or

any

person

registered to provide any services in relation thereto. From

this definition, the Guidelines apply to only Nigerians employed
in the oil and gas industry, and do not benefit foreigners or
expatriates. It is also important to note that the Guidelines do
not

distinguish

between

category

or

grade

of

workers.

Consequently, it can be argued that all classes of workers,

including menial, casual, part time, outsourced, junior staff,
senior staff, office as well as field workers are all contemplated
and protected by the Guidelines.
Obligations Imposed by the Guidelines
On providing information of employees
The Guidelines mandate every employer to submit to the
Director of Petroleum Resources within seven (7) days of the
employment of a new worker, the following information on the
worker: name of the worker, date of birth of the worker, date of
commencement of employment, designation of the worker at
the time of commencement of employment, and one coloured
passport sized photograph of the worker. 9
With respect to its current and existing employees, the
Guidelines require every employer to submit to the Director of
Petroleum Resources, within sixty (60) days of the enactment of
the Guidelines, the following information on each worker in its
current workforce: name of the worker, date of birth of the
worker, the date the worker commenced work, the designation
9

See Para. 4.1.

6

of the worker at the time of commencement of work, the

workers current designation, and one coloured passport sized
photograph of the worker.10
Procedure for staff release
The Guidelines require any employer who wishes to release a
worker from its employment to apply for the consent of the
Director of Petroleum Resources prior to such release, and the
application must be in writing. It must also state in the
application the compensation due to the worker and the
proposed replacement for the worker (if any). Documents
relevant to the workers employment shall accompany the
application. This will include contract of employment, letter of
confirmation, letter of promotion(s), if any, queries and
response to queries (if any), and the documents required to be
submitted under paragraphs 4.2. 11 Where these documents are
not provided, the application for staff release will not be eligible
for consent under the Guidelines and the Petroleum Act. 12
The Guidelines define staff release to mean the removal of a
worker from the employment of an employer company as
defined in the Guidelines.13 This could be in the form of
dismissal,
10

retirement

(whether

voluntary

or

forced),

See Para. 4.2.

11 See Para. 5.1 of the Guidelines. For these documents, see the heading

Obligations imposed by the Guidelines above.

12

See Para. 5.2 of the Guidelines.

13

See the heading Application of the Guidelines above.

7

termination,

redundancy,

release

on

medical

grounds,

resignation, death or abandonment of duty post. 14

Employers shall not release any worker without the prior
consent of the Minister through the Director of the department.
However, in the following instances, a mere notification to the
Director will suffice without a formal application for staff
release:
i.
ii.
iii.
iv.

Where
Where
Where
Where

the worker is retired at his instance;

the worker resigns;
the worker dies;
the worker abandons his duty post. In this case,

the employer may release the worker two weeks after

notifying the DPR.
Upon submission of the application for staff release, the DPR
shall conduct an investigative inquiry into the proposed staff
release and make a Decision on whether to grant consent or
otherwise. Until the DPR has given its decision, the employer is
prohibited from advertising, publishing or making a press
release in respect of the release of the worker. 15 Once the DPR
gives its decision, it shall be implemented by the employer no
later than ten (10) days after the decision is delivered. 16
Penalties for default

14

See Para. 3.1 of the Guidelines.

15

See Para. 5.4 of the Guidelines.

16

See Para. 5.5 of the Guidelines.

8

The Guidelines created five (5) offences for which penalties

were imposed. An employer who fails to submit information on
the employment of a new worker will:
a. pay a fine of N100,000.00 for every day the employer
fails to submit the information after the 7 day period and
grace period of 3 months
b. Receive a letter from the Department indicting the
company
c. Have its permit and approvals in the DPR suspended.
An

employer

who

fails

to

submit

information

on

the

employment of current workers will:

a. Pay a fine of N150,000.00 for every day the employer fails
to submit the information after the 60 days period and a
grace of 3 months
b. Have its lease, licence or permit suspended
c. Have its lease, licence or permit cancelled.
An employer who fails to seek the DPRs consent prior to
release of a worker will:
a.
b.
c.
d.

Pay a fine of N10,000,000.00 (ten million naira)

Recall the worker until a decision is reached by the DPR
Have its lease, licence or permit suspended
Have its lease, licence or permit cancelled.

An employer who publishes information on staff release prior to

obtaining consent of the DPR or without obtaining the DPRs
consent will pay a fine of N5,000,000.00 (five million naira)
An employer who fails to implement the DPRs decision on staff
release will:

a. Pay a fine of N5,000,000.00 (five million naira)

b. Have his lease, licence or permit suspended.
Legal issues arising from the Guidelines
Legal status of the Guidelines
The legal status of a Guideline is primarily dependent on
whether it is made pursuant to powers conferred by a law. If it
is made pursuant to such powers, then it is deemed as a law.
However, if it is not made pursuant to a law, then it is a mere
advice or guidance to help understand how to comply with a
law. In the case of Ogunniyi v. Hon. Minister of FCT & Anor 17, the
Court of Appeal was considering the legal effect of Exhibit Q,
which was the Approved Guidelines for the Sale of Federal
Government Houses in the FCT to Career Public Servants, and
was issued pursuant to section 14 of the Federal Capital
Territory Administration Act, CAP. F6 LFN 2004 which empowers
the President to make regulations generally for carrying into
effect the provisions of the Act, and which such powers was
delegated to the Minister of the Federal Capital Territory vide
section 18 of the Act. The Court held that the Guidelines 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
Court went further to examine the meaning of law as defined
in the Interpretation Act, CAP. I92 LFN 2004 in which it was said
to include instrument made under a law.
Giving support to this position that the legal status of a
Guideline is dependent on its source rather than its content is
17 (2014) LPELR 23164(CA).
10

the decision of the Court of First Instance of the Court of Justice

of the European Union in the case of Archer Daniels Midland
Co. v. Commission of European Communities 18 where the court
held as follows:
First, the Guidelines are capable of producing legal
effects. Those effects stem not from any attribute of the
Guidelines as rules of law in themselves, but from their
adoption and publication by the Commission.
As was with the Ogunniyis case, the enabling law for the DPR
Guidelines is Regulation 15A of the Petroleum (Drilling and
Production) Regulations 0f 1969 (as amended) which was made
pursuant to Section 9 of the Petroleum Act. It is submitted that
this gives the DPR Guidelines a legal status and a force of law.
The power of the Director to issue the Guidelines
Another issue worth considering is the power of the Director of
DPR to issue the Guidelines. It has been argued that the
Director does not have the powers to issue the Guidelines as
the said power having been delegated to him by the Minister of
Petroleum Resources, ought to be gazetted. 19 This submission
was anchored on the provisions of section 3(1) of the Ministers
Statutory Powers and Duties (Miscellaneous Provisions) Act.
Indeed, this is the correct position of the law. However, there
are instances where powers are delegated by statute, in which
18 Case T-59/02, Judgment of the Court of First Instance (Third Chamber)

27 September 2006, para. 43.

19

See Godwin Etim, n. 3.

11

case there would be no need for a notification in the Federal

Gazette. Again, the Ogunniyis case and the Federal Capital
Territory Act (FCT Act) come in handy here. Section 18 of the
FCT Act delegates the powers of the President to the Minister of
the Federal Capital Territory. Giving judicial endorsement to this
practice, the Court of Appeal held as follows:
Section 14 of the FCT Act empowers the President to
make regulations generally for carrying into effect the
provisions of FCT Act. These powers were delegated by
the President to the Minister of Federal Capital by s. 18
of the Act. These guidelines published as PUBLIC
NOTICE NO 1 Exhibit Q, were made by the Minister
pursuant to the powers conferred on him by Section 18
of the FCT Act.
Similarly, vide section 10 of the Nigerian National Petroleum
Corporation Act20 the Minister of Petroleum Resources has
delegated his regulatory powers over the Nigerian oil and gas
industry to the Director of the DPR. The said section provides as
follows:
notwithstanding

the

foregoing,

any

regulatory

function conferred on the Minister pursuant to the said

Acts [i.e. the Oil Pipelines Act, the Petroleum Act, or any
other enactment] or any other enactment shall, as
from the appointed day, be deemed to have been
conferred upon and may be discharged by the chief

20

CAP. N123 LFN 2004.

12

executive of the Inspectorate [i.e. the Director of the

Department].
The effect of the foregoing is that even without a notification in
the Federal Gazette, the Director can exercise the powers of the
Minister of Petroleum Resources including the powers to issue
Guidelines, and as such the power to issue the Guidelines was
validly exercised.
Are the Guidelines effective and enforceable?
It wont be out of place to describe the Guidelines as being
draconian21 with unimaginable effects on the Nigerian oil and
gas

industry.

This

makes

it

highly

undesirable.

This

notwithstanding, it is submitted that the Guidelines became

effective the day it was signed by the Director of the DPR. It is
important to state at this point that a Guideline need not be
gazetted before it becomes operative or effective. It becomes
effective upon signing not upon gazetting, or upon the day it is
declared in the Guideline to be effective. This is because the
primary purpose of a gazette is for notification only. It is the
main vehicle of communicating Acts of both the Federal and
State governments.22 In Ogundipe v. The Minister of FCT 23 the
Court of Appeal per Joseph Tine Tur, JCA defined a gazette as
21 See Nigeria Issues Draconian Guidelines on Release of Workers in the

Oil and Gas Industry, http://afrienergy.blogspot.com.ng/2015/10/nigeriaissues-draconian-guidelines-on.html, visited 16 October, 2015.

22 See Tobi, JCA in Imade v. Military Administrator of Edo State (2001) 6

NWLR (Pt. 709) 491.

23

(2014) LPELR-22771(CA).
13

an official publication of the Federal Government of Nigeria or

a State in which the official acts of the government e.g.
appointments, notices and other legal matters are reported.
As regards the time an enactment becomes operative, Section
2(1) of the Interpretation Act24 provides as follows:
When no other provision is made as to the time when a
particular enactment is to come into force, it shall,
subject to the following subsection, come into force
(a) in the case of an enactment contained in an Act of
the National Assembly, on the day when the Act is
passed;
(b) in any other case, on the day the enactment is
made.
Section 37 of the Interpretation Act defines enactment as any
provision of an Act or subsidiary instrument. The Guidelines
will pass as a subsidiary instrument, since they were made
pursuant

to

the

Petroleum

Act.

As

such,

they

became

enforceable the day they were made, which is the date it was
signed by the Director of the DPR.
Do the Guidelines offend the law on Master and Servant?
As noted earlier,25 employment in Nigeria is governed by
legislation and common law and other international labour
treaties to which Nigeria is signatory to. The question is
24 CAP. I23 LFN, 2004.
25

See the Abstract to this piece.

14

whether the Guidelines offend the age long and trite principles
of labour and employment law.
In this light, two arguments can be canvassed. The first is that
one cardinal principle of Nigerian labour law is that the court
will not foist a willing employee on an unwilling employer and
vice versa. Thus, except in cases of employment with statutory
flavour, an employment relationship is primarily governed by
the contract of the parties and each party (the employer and
the employee) is at liberty to terminate the contract whenever
he deems fit subject to the giving of the agreed length of
notice.26 This principle is as old as the Garden of Eden when
Adam committed gross misconduct by disobeying lawful orders.
He was dismissed from his duty post as the keeper of the
Garden of Eden, despite his unwillingness to leave. At common
law, a master is at liberty to terminate the employment of his
servant for good reason, bad reason or no reason at all 27 and
the motive for doing so is irrelevant28.

26 See Ezekiel v. W.M.D.N.L (2000) 9 NWLR (Pt. 672) 248; Nwaubani v.

Golden Guinea Breweries Plc (1995) 6 NWLR (Pt. 400) 184; College of
Medicine of the University of Lagos v. Adegbite (1973) 5 SC 149;
International Drilling Co. v. Ajijola (1976) 2 SC 115.
27 See Isievwore v. NEPA (2002) 13 NWLR (Pt. 784) 417 at 434; Ihechukwu

v. UNIJOS (1990) 4 NWLR (Pt. 146) 598; Chukwu v. NITEL (1996) 2 NWLR
(Pt. 430) 290 at 303.
28 See Nfor v. Ashaka Cement Co. ltd (1994) 1 NWLR (Pt. 319) 222 at 232,

Chukwuma v. Shell (1993) 4 NWLR (Pt. 289) 512 at 560; Commissioner for
Works (Benue) v. Devcon Development Consultants Ltd (1988) 3 NWLR
(Pt. 83) 407 at 423; Ajayi v. Texaco Nig Ltd (1988) 3 NWLR (Pt. 62) 577,
593-594.
15

The second argument is that the principle of supremacy of the

contract of employment in a master/servant relationship is
derived from the common law of contract, 29 and where there is
an express legislation covering a particular field, common law
ceases to have jurisdiction over such field. In such instances,
solace will be found in decisions like Patkun Industries Ltd v.
Niger Shoes Manufacturing Company Limited 30 where KaribiWhyte, J.S.C. held 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.31
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
29 See Tobi, J.C.A. in Orient Bank (Nig) Plc v. Bilante Int. Ltd (1997) 8

NWLR 37 at 76.
30 (1988) LPELR-2906(SC).
31 See also Harka Air Services (Nigeria) Ltd v. Keazor (2011) LPELR

1353(SC); B.J. Export & Chemical Company Ltd v. Kaduna Refining &
Petro-chemical Company Ltd (2002) LPELR-12175(CA).
16

pursuant to the said Regulations, are valid as same overrides

the trite common law principles on master-servant relationship.
Reference, in support of this line of argument is also made to
employments

with

statutory

flavour.

By

statute,

such

employments are taken above the ordinary common law of

master/servant relationship and are governed by statute not
the contract of employment simpliciter. The case of Longe v.
First Bank of Nigeria Plc32 defeats the possible argument that
employments with statutory flavours only exist in government
establishments or public sector employment.
While the above two arguments are convincing, the latter,
based on a long list of judicial authorities, is certainly the
correct position of law. 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.

32 (2006) 3 NWLR (Pt. 976) 228. For further readings on Longe v. First

Bank of Nig PLC, see Bimbo Atilola, Expanding the Frontiers of

Employment with Statutory Flavours: A Review of the Supreme Courts
Decision in Longe v. First Bank in Labour Law Review (NJLIR) Vol 5. No. 3
2011, p. 1.
17

Employment is said to have a statutory flavour when the terms

and conditions, especially appointment and termination, is
governed by a statute, a subsidiary legislation, or a regulation
made thereto. In Imoloame v. WAEC33, the Supreme Court
stated inter alia that it is now accepted that where the
contract of service is governed by the provisions of a statute or
where the conditions of service are contained in regulations
derived from statutory provisions,34 they invest the employee
with a legal status higher than the ordinary one of masterservant. They accordingly enjoy statutory flavour.
The DPR Guidelines, though not a regulation itself, was made
pursuant to Regulation 15A of the Petroleum (Drilling and
Production)(Amendment) Regulations which in itself was made
pursuant to section 9 of the Petroleum Act.
Whatever may be the intention of the DPR in issuing the
Guidelines, suffice to say that the Guidelines and even
Regulation 15A of the Petroleum (Drilling and Production)
(Amendment) Regulations are highly undesirable and should
not have a place in our society. It is indeed unthinkable that
every single person working in an oil and gas company,
irrespective of his level and nature of employment, cannot have
his employment terminated by his employer in accordance with
the contract of employment freely entered into by the parties. If
the consent of the DPR is needed to terminate a worker, is the
(1992) 3 NSCC 374 at 383. See also Fakuade v. O.A.U.T.H (1993) 5
NWLR (Pt. 291) 47.
33

34

Emphasis supplied.
18

consent of the DPR needed before a worker resigns his

employment? It is the opinion of these writers that this is a case
of regulation taken too far and the regulator is advised to
retrace its steps and withdraw the said Guidelines. The
legislators are also called upon to review the Petroleum (Drilling
and

Production)(Amendment)

Regulations

and

expunge

Regulation 15A. That way, the undesirable tree would have

been taken out from its root.
Conclusion
The DPR Guidelines have raised a lot of issues, all of which
have been addressed in this paper. The summary of these
issues is that the DPR has the powers to issue the Guidelines,
the Guidelines have legal effect, they are effective and
enforceable, but highly undesirable and may be counterproductive in the short and long run.
The Guidelines will cause more harm than good and as such
should be vehemently kicked against. It wont be out of place
for oil companies who will be affected by this Guideline to lobby
the National Assembly for a repeal of the Regulation 15A. They
may also bring a representative action in Court challenging the
said

Guidelines

and

getting

the

Court

to

make

pronouncement on it. That way, the issue can be settled once

and for all. It is hoped that the Regulator will let reason and
realistic aspirations prevail.

19