By O G. Chukkol

Black market hawkers or retailers of fuel, kerosene, gas and other petroleum products are found in every nook and cranny of towns in Nigeria though they tend to be found more in the oil producing states. They trade in jerrycans, drums, and tanks, and are steadily patronised by commercial vehicle operators popularly known as keke and okada, as well as the regular taxi drivers, some private motorists and other individuals who buy for household uses.

This article establishes that selling of fuel or any other petroleum products, without license, is a criminal offence and since to every general rule there are exceptions, the article explained various circumstances that one may escape liability and punishment.

THE OFFENCE OF SELLING PETROLEUM PRODUCTS WITHOUT LICENSE

The meaning of “Petroleum products” is the meaning given to it by the petroleum Act Cap. P10, LFN, 2004 under section 15 thereof to include “motor spirit (popularly known as petrol), gas oil, diesel oil, automotive gas oil, fuel oil, aviation fuel, kerosene, liquefied petroleum gases and any lubrication oil or grease or other lubricant.”

The requirement of the law is that those selling Petroleum products must have licence from appropriate authorities before venturing into the business. Doing that without license is impermissible, illegal and criminal.

Other actions that can render one liable to punishment include offer to sale; distribution; importation; exportation; or otherwise dealing with any of the above petroleum products. The offence extends to doing any act for which a licence is required under the Petroleum Act. See section 1(17) of the Miscellaneous Offences Act, Cap. M17, LFN, 2004

Section 4(1) and (6) of the Petroleum Act make similar provision. It criminalize importing; storing; selling; or distributing any petroleum product in Nigeria without licence

That is why in the case of Nomany V FRN (2018) LPELR-44546(CA), the Appellant was convicted for storing 3,423.097 metric tons of crude oil. The Appellant in the case of Shahinul V FRN (2018) LPELR-44528(CA) was also convicted for the same reason.

It should be noted that even as a transporter, you will be liable if the petroleum product you are transporting belongs to a third party who does not have a license. This was emphasized in the case of Hepa Global Energy Ltd v FRN (2017) LPELR-44033(CA). In this case the Appellant vessel owner argued that the petroleum product it was transporting belonged to a third party so they ought not to be liable. The court rejected the argument and held that the most important thing is possession, not ownership. Since the actual owner did not have license, they must be liable.

I agree with my Noble Lords in the case of Hepa Global Energy Ltd v FRN (supra). The decision accords with common sense and the law regarding “willful blindness”.

It is submitted that a person in charge of any means of conveyance (be it car, vessel etc), one is expected to take reasonable steps to not only know what you are carrying, but the legitimacy of it. You cannot be heard to give excuse that you didn’t know that what you were carrying is illegal. In the case under discourse the company should have taken steps to verify if the owner of the Petroleum Product had license.

This writer further submits that dealing with petroleum products without licence is a strict liability offence. The physical presence of a petroleum product on one’s possession or custody effectively discharges the need for proof of mens rea on the part of the accused persons. See M. V. Island V FRN (2018) LPELR-43479 (CA) and the decision of Ikyegh, J.C.A in Hepa Global Energy Ltd V FRN (supra) where he held thus:

“Statutory provisions dealing with unlawful possession of product or substance and/or without licence or lawful authority wear the toga of strict liability. Once a person is found in possession of the controlled product or substance or the prosecution has proved possession the onus shifts to the person found in possession of the product or substance to justify his possession.”

See also the proviso to Section 36 (5) of the 1999 Constitution, Section 139 (1) of the Evidence Act and NIGERIA AIR FORCE V KAMADEEN (2007) ALL FWLR (PT 367) 1676.

WHEN ONE CAN BE EXCUSED FOR DEALING WITH PETROLEUM PRODUCT WITHOUT LICENSE

There is only a maximum quantity of 500 litres specified in the law beyond which storage becomes an offence. In other words, if the petroleum product that one possesses is not above 500 litres, it would be lawful to store or sell them without license. See Sub section (2) of Section 4 of the Petroleum Act.

The minister can also grant an exemption pursuant to Section 4 of the Petroleum Act.

Furthermore, if one is just a passenger in a car or any other means of conveyance that is transporting the petroleum product, liability will not arise. See Abass V FRN (2018) LPELR-43695(CA). This position also accords with common sense. It will be highly illogical to hold a passenger who has no business or link with the petroleum product being carried.

In affinity to the above position, and of course to create a balance, the law says if a person on board has link with either the product being conveyed or the car/vessel carrying the product, then the person will be liable. In Normany V FRN (supra), the Appellant was merely on board the vessel as an engineer. The court held that by such, he could be liable for conspiracy since he was hired to take care of the vessel. The court added that he could have been aware of the unlawful carriage of the Petroleum Product without license.

Another instance when one cannot be liable is when one carries or possesses the product as an agent of someone who has a license. In Danjuma V FRN (2018) LPELR-45194(CA), the Appellant was caught with 33000 litres of petrol and thereby convicted. The conviction was set aside on appeal on the basis that the Appellant carried the product as an agent of someone who had the license.

Similar thing happened in Ogbagbe v FRN (2018) LPELR-45240(CA) and the conviction of the Appellant was set aside.

The last two decisions also accord with the agency jurisprudence which absolves an agent from liability. The principal is always presumed to be the one acting unless the agent acts outside the scope of his duties.

PUNISHMENT FOR THE OFFENCE

The penalty for dealing in Petroleum Product depends on the law a person is charged under. Section 1(17) of the Miscellaneous Offences Act provides maximum sentence of life in prison and the forfeiture of the mode of transportation of the product.

Section 4 of the Petroleum Act on the other hand provides maximum sentence of 2 years in prison or a fine of N2,000 or both as well as the forfeiture of the petroleum product.

It follows therefore that what is common to both laws is forfeiture. But even at that, Miscellaneous Offences Act provides for forfeiture of the means of transportation only while Petroleum Act provides for forfeiture of the Petroleum Product. In Hepa Global Energy Ltd V. FRN (supra), the monies in the account of the company were forfeited. In M. V. LONG ISLAND V. FRN (2018) LPELR-43479 (CA) the vessel that carried the Petroleum Product was forfeited.

In view of the foregoing, it is suggested that a prosecutor should charge suspects under both laws if he wants the forfeiture of both the means of conveyance and the product being conveyed

CONCLUDING REMARKS

As rightly observed by Olalere, Adefarati and Matthew (all of S. P. Ajibade & Co), Petroleum and its allied resources play a prominent role in the economic well-being and stability of Nigeria as a country. They constitute the highest source of revenue of the country.

It is unfortunate however that Nigeria has suffered from oil theft, pipeline vandalism, militancy in the oil producing states and allied nefarious activities resulting in the country’s loss of revenue, lack of stable and sustainable power supply for the country’s development, inflation, etc., hence the need to enact and enforce adequate laws that will regulate its production, distribution and transportation.

The Law is also necessary because most black market fuel dealers allegedly source the products from illegal bunkering and pipeline vandalization. Indeed, information is in the cyberspace that many petrol stations also source their petroleum products mainly through illegal bunkering as they pay less at the point of purchase.

Tanker drivers are said to be complicit in the entire illegal process of fuel dealing. They aid and abet the illegal sale of fuel through diversion of the product to hawkers. Some tankers don’t discharge their content completely to their designated petrol stations and the undischarged product is instead sold to the black market dealers.

The Law is therefore commendable and would help a lot in curbing the foregoing nefarious activities relating to petroleum products.

Let me lend my voice to Olalere, Adefarati and Matthew in suggesting that the stakeholders in the upstream, downstream, or midstream of the Nigerian Petroleum industry, who always require one licence or the other or DPR Consent, should ensure that all appropriate consents and licenses are obtained to avoid unpleasant experience. Black market hawkers should also take note

O.G. Chukkol is a final year student, Faculty of Law, ABU, Zaria and may be reached via [email protected] or 08032470318