Situating the Legal Essence of Executive Order 9, 2026, Relating to Oil and Gas Revenues in Nigeria

Tope Adebayo
Senior Partner, Tope Adebayo LP

The decision by President Bola Ahmed Tinubu to sign Executive Order 9, 2026, pursuant to Section 5 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), on February 13, 2026, has ignited intense debate along legal and fiscal frameworks. At its core, the Order mandates the direct remittance of Royalty Oil, Tax Oil, Profit Oil, Profit Gas and other government entitlements into the Federation Account. In other words, it seeks to curb leakages and eliminate duplicative deductions.
Given the importance of the oil and gas sector, many people have expressed their opinions on Executive Order, with critics arguing that the Order effectively suspends portions of the Petroleum Industry Act (PIA), 2021, which is an Act of the National Assembly, particularly the provisions that permit the Nigerian National Petroleum Company Limited (NNPC Limited) to retain certain revenues while supporters believe it does not invalidate any law but enforces the Constitution.
Beyond the noise, however, the essential question are: what are the foundational components of the Executive Order and how does it reshape the landscape of revenue governance in the Nigerian oil and gas industry?
The legal, governance, and fiscal framework of the petroleum industry is regulated by the PIA, as Section 1 vests property and ownership of petroleum within Nigeria and its territorial waters in the Government of the Federation. This provision aligns with Section 44(3) of the Constitution, which establishes federal ownership and control of petroleum resources. By Section 64(b) and (c) of the PIA, the Nigerian National Petroleum Company Limited (“NNPC Limited”) is to retain 30% of Federation revenues as a management fee on Profit Oil and Profit Gas derived from Production Sharing Contracts, Profit Sharing Contracts, and Risk Services Contracts. The PIA also allows the retention of 30% of Profit Oil and Profit Gas for the Frontier Exploration Fund under Sections 9(4) and (5). The apparent inconsistencies between the provisions of Sections 9(4) and (5) and 64(b) and (c) of the PIA and Section 162(1) of the Constitution, underpin the Order.
The backbone of the Order lies in Section 162(1) of the Constitution, which provides that: “Any income or return accruing to or derived by the Government of the Federation from any source and includes –
any receipt, however described, arising from the operation of any law;
(b)any return, however described, arising from or in respect of any property held by the Government of the Federation;
(c)Any return by way of interest on loans and dividends in respect of shares or interest held by the Government of the Federation in any company or statutory body
shall be paid into and form one Consolidated Revenue Fund of the Federation,” commonly referred to as the Federation Account.
The use of the word, “shall”, is pivotal as it connotes “compulsion” and the implication is clear: oil and gas revenues generated under the PIA fall within the constitutional pool of funds payable into the Federation Account.
The Order, therefore, asserts that all royalty, tax, profit oil and profit gas entitlements must flow directly into that Account without prior deductions inconsistent with Section 162. The argument is straightforward: if the Constitution requires that all revenues be paid into the Federation Account, any statutory provision permitting prior deductions may be inconsistent and therefore void. Section 1(3) of the Constitution provides that any law inconsistent with its provisions “is void to the extent of the inconsistency.”
The central focus of the Order’s rationale is the trustee character of the Federation Account. In AG Bendel State v. AG Federation, the Supreme Court held that: “The position of the Federal Government in maintaining the Federation Account is, by virtue of S. 149 (1) of the Constitution, that of a trustee for the State Governments and the Local Government Councils of the States. It is settled that it is the duty of a trustee to keep a proper account of the trust he administers.”
Therefore, if the Federal Government is indeed a trustee, then it must demand transparency and full remittance because by ensuring that constitutionally defined revenues are neither diverted nor retained outside the shared pool. Opponents have argued that where an Act of the National Assembly is considered unconstitutional, the President’s proper recourse is either legislative amendment or judicial review. However, Lord Denning L.J. famously observed in U.A.C. Ltd. v. Macfoy: “If an act is void then it is in law a nullity… You cannot put something on nothing and expect it to stay there. It will collapse.” Also, in Uduche v. Uduche, the court stated: “When an act is void, it remains void and nobody, not even a Court, can validate it or give life to it.” Consequently, if the offensive provisions of the PIA are unconstitutional, they are void ab initio. The Executive Order, therefore, does not invalidate them but merely reiterates what the Constitution already states. The Order may be viewed as a mere surplusage or restatement of existing constitutional obligations.
As such, the argument that the President overstepped the limits of his executive authority, acted beyond his constitutional mandate and effectively breached provisions of the Constitution does not hold water. It is our argument that whether the Order directed adherence to the Constitution or the President approaches the court to strike down the offending provisions of the PIA or approaches the legislature to amend the law does not take away from the nullity of the said provision which in law is non-existent for being void. In fact, there is nothing to set aside by executive order as it were.
Beyond the courtroom, the fiscal results are profound. Direct remittance to the Federation Account increases immediate revenue allocation to states and local governments and could also recalibrate and alter NNPC Limited’s internal financial architecture.
Furthermore, by virtue of Section 1 (1) of the Constitution, the provisions of the Constitution are superior to every provision made in an Act or Law and are binding on and must be observed and respected by all persons and authorities in Nigeria.
In abiding obedience to the authority of the Constitution (which is highly placed than the PIA in the hierarchy of laws), the President, as the head of the Federal Government charged with the responsibility of maintaining the federation account as a trustee for the constituent units, has now taken upon himself the onerous duty (being head trustee of the Account) vide an executive order to not only maintain the Account, but to ensure that revenues and undertakings that improve the Account are collated and remitted thereto.
Going by the forgoing and in conclusion, Executive Order 9, 2026 is a constitutional intervention in Nigeria’s oil revenue architecture and is merely a rehash of the provision of the Constitution. It is therefore unlikely that any Court will set aside the executive order.