By Onyewuchi Ojinnaka
A Federal High Court in Yenegoa, Bayelsa State has set aside the 45 percent Participating Interest in Ogbanabou Field (PPL-213) which was awarded by the Nigerian Upstream Petroleum Regulatory Commission (NUPRC), to
Petrodos Atlantic Energy Limited.
The court in its judgement delivered by Justice Isa Dashen in suit number FHC/YNG/CS/157/2024 instituted by a private limited liability company, Kalm Marine & Petroleum Services, had declared the letter with Reference No: NUPRC/LD/2531/2024/ 47 dated April 4, 2024, invalid, null and void.
In the judgement, the court held that the letter was issued in a manner inconsistent with the plaintiff’s right to fair hearing and right to own property as provided for in Sections 36(2) and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The defendants in the suit are, the Nigerian Upstream Petroleum Regulatory Commission (NUPRC), and Petrodos Atlantic Energy Limited.
Kalm Marine & Petroleum Services(Plaintiff) had in its Originating Summons, filed by its counsel G.E Ikpuri, prayed the court to determine as follows:
“Whether having regard to the 1st defendant’s letter with Reference No: NUPRC/LD/2531/2023/28 dated 17th May, 2023, expressly demanding the plaintiff to make payments for the assignment of 45 percent Participation Interest in Field (PPL-213) to the 2nd defendant, the failure of the 1st defendant to invite and hear from the plaintiff (who is to make the payment) before collecting money and unilaterally assigning 45 percent of the plaintiff’s participation Interest in Field (PPL-213) to the 2nd defendant, is not in breach of the plaintiff’s fair hearing and right to property as enshrined in Sections 36(2) and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
“Whether having regard to the text of the 1st defendant’s letter with Reference No: NURPC/LD/ 2531/28 dated 17th May, 2023, communicating Ministerial approval for the Plaintiff’s application for the sale of its 45 percent Participating Interest in Field (PPL-213) to the 2nd defendant, on the conditions that the Plaintiff makes the stipulated payment forty-five (45) days of the plaintiff’s receipt of the letter; and
failure to make the required payment within the stipulated time will amount to not receiving ministerial consent for the assignment”.
However, in their response the defendants challenged the jurisdiction of the court to entertain the suit, contending that the procedures for instituting action of this nature were not followed.
The defendants argued that the plaintiff having failed to commence the action by the proper procedure, the court lacks jurisdiction to entertain the suit as presently constituted and ought to be struck out.
Resolving the issues, Justice Dashen held that the 1st Defendant’s contentions that the suit ought to have been commenced by way of judicial review was grossly misconceived and therefore discountenanced.
The court held, “Having carefully reviewed the processes filed and also the written and oral submissions of counsel on this Notice of Preliminary Objection of the 2nd defendant/Objector, I am therefore in full agreement with the learned counsel for the Plaintiff/Respondent that this suit is properly commenced.
“I do not agree with the contention of the senior counsel that this suit was not commenced by proper procedure which ought to be by application for judicial review in particular by way of writ of mandamus.
“I therefore hold that none of the questions for determination and reliefs sought in the suit is seeking for an injunction restraining the 1st defendant or any other public body or person from acting in any office of which he is not entitled to act to bring this suit under the ambit of Order 34 Rule 1(1)(a)and (b) of the Federal High Court (Civil Procedure) Rule 2019 which is clearly inapplicable to the instant suit
“Accordingly, I also hold that by the statutory provisions and documents submitted for construction on the face of the Originating Summons, the questions for determination and the reliefs sought on the face of the Originating Summons and the provisions of Order 3 Rules 6 and 7 of the Federal High Court (Civil Procedure) Rule 2019, the commencement of the instant suit by way of the Originating Summons is the correct, proper and appropriate mode of commencing this suit which was therefore properly commence”.
On the substantive suit, the court held that it was indisputable that the 1st defendant’s unilateral assignment of 45 percent of the Plaintiff interest in Field (PPL 213) to the 2nd defendant without hearing the plaintiff, ought to be set aside by the court.
Justice Dashen held “There must be compliance with the doctrine of fair hearing. If fair hearing is not accorded to the affected party, such action, decision among or step is liable to be set aside
“It is indisputable that the 1st defendant’s unilateral assignment of 45 percent of the Plaintiff’s interest in Field (PPL 213) to the 2nd defendant without hearing the Plaintiff ought to be set aside by this court. There must be compliance with the doctrine of fair hearing. If fair hearing is not accorded to the affected party, such action, or step is liable to be set aside”
Consequently, the court directed the NUPRC to rectify its Register of Ownership of Participating Interests in PPL-213 (or such register where Petroleum prospecting licenses are kept) to reflect the 100percent ownership interest of Kalm Marine and Petroleum Services over PPL 213.
The court held “In the light of the foregoing, I hold that the sole issue should be and is hereby resolved in favour of the plaintiff and against the 1st and 2nd defendants.
“Reliefs 1, 2, 3 and 4 are all hereby granted. I make no order as to cost”
