Insight By Abubakar D. Sani

Introduction

This puzzling poser is prompted by the ongoing practice of the Weights and Measures Department of the Federal Ministry of Industry, Trade & Investment (FMIT & I), of regulating weighing and measuring instruments in ‘filling’ (petrol or gas) stations, to ensure that consumers get value for money.

This practice has continued for almost half-a-century (since the enactment of the Weights and Measures Regulations of 1965, in fact). That subsidiary instrument itself was made pursuant to the provisions of the Weights and Measures Act, Cap W3, LFN, 2004. I believe that this is something of an aberration (an anomaly) at least in the midstream and downstream sectors of the petroleum industry, what with the copious provisions made by the Petroleum Industry Act, 2021 which have explicitly conferred such functions on a separate agency of government (the Midstream and Downstream Petroleum Regulatory Authority).

Is that view correct? Has the latter law displaced the former? Are the operatives of the Weights and Measure Department right to continue ‘harassing’ owners of petrol (‘filling’) stations across Nigeria to open their facilities for assessment and inspection ostensibly in compliance with the Weights and Measures Act and subsidiary legislation made thereunder? Let’s find out. We start by examining the relevant provisions of both laws.

The Weights and Measures Act

The provisions of this Act which appear to empower the Department of Weights and Measures of the Federal Ministry of Industry, Trade & Investment to regulate fuel- dispensing pumps in petrol stations are the following:

Section 7(2): “No person shall use any article for trade as equipment to which this section applies, or have any article in his possession for such use, unless that article, or equipment to which this section applies in which that article is incorporated, or to the operation of which the use of that article is incidental, has been passed by an inspector as fit for such use and, except as otherwise expressly provided by or under this Act, bears a stamp indicating that it has been so passed which remains undefaced otherwise than by reason of fair wear and tear. If any person contravenes this subsection he shall be guilty of an offence, and any article in respect of which the offence was committed shall be liable to be forfeited”.
Section 16:“General powers of inspection and sealing of premises
(1) Subject to the production of his credentials, if requested, an inspector may, within the area for which he was appointed.

(a) at all reasonable times-

(i) inspect and test any weighing or measuring equipment which is used for trade or which he has any reasonable cause to believe may be so used, or which is in the possession of any person or upon any premises for such use;

(ii) inspect any goods to which any of the provisions of this Act or any subsidiary instrument made thereunder for the time being applies for which he has reasonable cause to believe to be such goods;

(iii) enter any premises at which he has reasonable cause to believe there is any such equipment or goods as aforesaid, not being premises used only as a private dwelling-house; and

(b) at any time seize and detain- (i) any article which he has reasonable cause to believe is liable to forfeiture under this Act; (ii) any document displayed with any goods as evidence of price or quantity of the goods and which the inspector believes may be required in the course of proceedings under or pursuant to this Act.

(2) If an inspector finds any equipment, goods or articles as are mentioned in subsection (I) of this section on any premises and has reasonable grounds to believe that any offence under this Act has been, is being or is likely to be committed on such premises, he may seal the premises in question”.

Section 17: “Obstruction of inspectors
(I) Any person who-

(a) wilfully obstructs any inspector acting in the execution of his duty under this Act; or

(b) wilfully fails to comply with any requirement properly made of him by an inspector entering under section 16 of this Act; or

(c) without reasonable cause fails to give to any inspector acting as aforesaid any other assistance or information which the inspector may reasonably require of him for the purposes of the performance by the inspector of his functions under this Act or any order or regulation made thereunder, shall be guilty of an offence”.

Section 25:“Delivery on sale by false weight, etc.
Any person who sells any article by weight, measure, or number and delivers or causes to be delivered to the purchaser a less weight, measure, or number, as the case may be, than is purported to be sold or than corresponds with the price charged, shall be guilty of an offence”.

Section 30:“Use of false or unjust weights, etc.
Subject to the provisions of this section, any person who for the purposes of any sale, contract or other dealing uses or has in his possession for use-

(a) any weight, measure, weighing instrument or measuring instrument which is false or unjust; or

(b) any weight, measure, weighing instrument or measuring instrument not stamped or marked as required by this Act, or in respect of which no certificate of verification is in force, shall be guilty of an offence”.

The Petroleum Industry Act

The relevant provisions of the PIA, which, in my opinion, authorise the Midstream and Downstream Petroleum Regulatory Authority to inspect the facilities of petrol stations (inter alia) are the following:

Section 29(1):“There is established the Nigerian Midstream and Downstream Petroleum Regulatory Authority (in this Act referred to as ‘the Authority’) which shall be a body corporate with perpetual succession and a corporate seal;
Section 31 (b):“The objectives of the authority shall be to ensure efficient, safe, effective and sustainable infrastructure development of midstream and downstream petroleum operations”
Section 32: “The functions of the authority shall be to-
(a) Regulate and monitor technical and commercial midstream and downstream petroleum operations in Nigeria;

(b) Regulate commercial midstream and downstream petroleum operations, including-

(i) petroleum liquids operations.

(s) promote the interest of customers with regard to midstream and downstream petroleum operation”.

(l) set, define and enforce approved standards and regulations for designs, construction, fabrication, operation and maintenance of plants, installations and facilities used or to be used in midstream and downstream petroleum operation”.

(q) establish customer protection measures in accordance with the provisions of this Act;

(cc) develop, specify and monitor technical and safety standards for wholesale marketing, processing plant, retail marketing of metering pumps and related measurement facilities and bunkering of petroleum products.

(dd) ensure the accuracy of metering pumps and related measurment facilities in midstream and downstream petroleum operations

(jj) implement and enforce compliance with laws, regulations, and policies relating to midstream and downstream petroleum operations”.

It can be seen that, whilst the provisions of Weights and Measures Act the apply to the weighing and measuring instruments used for trade as defined in Section 51(1) and (2) of the Act, the aforesaid provisions of the Petroleum Industry Act specifically apply to the midstream and downstream sectors of the petroleum industry. It is trite law (expressed in the maxim: generalia specialibus non derogant) that specific statutory provisions derogate from general ones. This principle has been applied by the apex court consistently over the years. A few instances will suffice.

ATTORNEY-GENERAL OF THE FEDERAL v ATIKU ABUBAKAR (2007) All FWLR Pt. 375, Pg. 405 at 472E ; per Onu, JSC: ‘Where there are two enactments, one making specific provisions and the other general provisions and the other general provisions, the specific provisions are impliedly excluded from the general provisions’;
GOVERNMENT OF KADUNA STATE v KAGOMA (1982) 6 S.C.87 at 107, per Fatai – Williams, JSC;
HON. JUSTICE ARAKA v HON. JUSTICE EGBUE (2003) 10 SCM 178;
MADUMERE v OKWARA (2013) LPELR – 1 at 15;
R. E.T. v E. S. B. I. R (2014) All FWLR pg. 759, pg. 1144 at 1167;
ATTORNEY-GENERAL OF OGUN STATE v ATTORNEY- GENERAL OF THE FEDERATION (2003) FWLR pt. 145, pg. 206 at 246.
In the context of the PIA, Section 309 thereof affirms its over-arching superiority by providing categorically as follows:

“Subject to the Constitution of the Federal Republic of Nigeria, 1999, upon the commencement of this Act, where the provisions of any other enactment or law except the Nigeria Oil and Gas Industry Content Development Act are inconsistent with the provisions of this Act, the provisions of this Act shall

prevail and the provisions of that other enactment or law shall, to the extent of that inconsistency, be void in relation to matters provided for in this Act”.

Conclusion

The prevailing practice of the Department of Weights and Measures of undertaking spot-check and paying surprise visits to petrol stations ostensibly to ensure compliance with the metrology provisions of the Weights and Measures Act, is wrong. By virtue of relevant provisions of the PIA, that Department has been divested of that function and it is now to be performed exclusively by the Midstream and Downstream Petroleum Regulatory Authority. So, next time those guys barge into your facility, tell them (politely, of course), that they are imposters, and that, such behaviour is tantamount to criminal trespass.