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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 170 OF 2020 (CC1/IECMS)
BETWEEN:
RICHARD PUARA for and on behalf of
SEBERE GESO INCORPORATED LAND GROUP
First Plaintiff
AND:
ROBERT KEITH for on behalf of
SEBERE KUKUMA INCORPORATED LAND GROUP
Second Plaintiff
AND:
OIL SEARCH LIMITED
First Defendant
AND:
DAVID MANAU – SECRETARY,
DEPARTMENT OF PETROLEUM
Second Defendant
AND:
HON. KERENGA KUA, MP
MINISTER FOR PETROLEUM & ENERGY
Third Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
AND:
TONY KILA for and on behalf of the
NANO WEBO INCORPORATED LAND GROUP
Fifth Defendant
AND:
JACK HUMIA for and on behalf of
LAPILAPE INCORPORATED LAND GROUP
Sixth Defendant
AND:
PAUL YAWE for and on behalf of
APORO URRI RESOURCE OWNERS ASSOCIATION INC.
Seventh Defendant
AND:
MINERAL RESOURCES DEVELOPMENT COMPANY LIMITED
Eighth Defendant
AND:
PETROLEUM RESOURCES KUTUBU LIMITED
Ninth Defendant
Waigani: Anis J
2021: 19th August
2022: 9th March
NOTICE OF MOTION – application to dismiss proceeding – Order 12 Rule 40(a), (b) and (c) – National Court Rules – whether plaintiffs have standing – whether there is a real controversy that requires intervention by the Court – plaintiffs’ rights and interest under the various provisions of the Oil and Gas Act 1998 including ss. 10, 47, 48, 121 and 134 – considerations – exercise of discretion
Cases Cited:
The State v Lohia Sisia [1987] PNGLR 102
Golpak v. Alongkarea Kali & Ors [1993] PNGLR 8
Ronny Wabia v. BP Petroleum Explorations Operating Co. Ltd & 2 Ors [1998] PNGLR 8
Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107
The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438
Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425
Placer Dome (PNG) Ltd v. Yako (2011) N4691
Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977
Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175
National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068
Amos Ere v. National Housing Corporation (2016) N6515
Counsel:
E. Issac, for the Plaintiff
J. Kare, for the First Defendant
A. Koisen, for the Sixth Defendant
J. Kolo, for the Seventh Defendant
RULING
9th March, 2022
1. ANIS J: I heard the 6th defendant’s application to dismiss the proceeding on 19 August 2021 and reserved my ruling to a date to be advised.
2. This is my ruling.
BACKGROUND
3. This case has a long history. I decline to go down that path of its history except to state what is relevant for this purpose. The dispute or issue concerns a land area that is the subject of a petroleum development license, namely, Petroleum Development License 2 (PDL 2). The first defendant is the license holder. The plaintiffs and their land groups are from a tribe called the Fasu Tribe which is situated in the Southern Highlands Province. They seek various declaratory relief against the defendants concerning PDL2. They are aggrieved and claim that no social mapping or demarcation of land boundaries has ever been carried out by those responsible over their tribe concerning the PDL2 land area. They assert that they represent landowners whose land are included or formed as part of PDL2.
4. The applicant, who is the sixth defendant (applicant), raises, amongst others, various jurisdictional issues. It contends that the proceeding is filed prematurely, and secondly, that this Court has no jurisdiction to hear the matter as the allegations or contentions raised by the plaintiffs concern or involve dispute over customary land.
APPLICATION
5. The applicant’s notice of motion filed 23 June 2021 (NoM) seeks orders as follows, Pursuant to Order 12 Rule (40) a, b, c the entire proceedings are dismissed generally, ..... Pursuant to Order 5 Rule 09 of the National Court Rules, the Fifth Defendant, Sixth Defendant, Seventh Defendant, Eight Defendant and Ninth Defendant are removed as parties to the proceeding,...
6. The parties refer to and rely on various affidavits in support and in opposing the NoM.
COMMON GROUND
7. For this purpose, a fact that is certain and not disputed is this. As regards PDL2, there is already a dispute which, at this juncture, is or may be pending a hearing before the Mendi Local Land Court (MLLC). I also used the phrase ‘may be’ for the reasons as I will explain later below.
8. The parties to the dispute the subject of the MLLC proceeding which is or may be pending initially only concerned a separate Petroleum Developing License, that is, PDL5. The dispute over the land where PDL5 is situated was between 2 Huli clans of Hela Province, namely, Nano Webo Clan (fifth defendant) and the Yumbi Clan. On 2 May 2002, the MLLC awarded the customary land therein or over where PDL5 is situated, to the fifth defendant and his clan. The Yumbi Clan, aggrieved by the decision, appealed to the Provincial Land Court (PLC). On 11 January or 11 March 2006, the PLC handed down its decision where it upheld the appeal by the Yumbi Clan. In so doing, and in granting ownership rights to it, the Court, as later found by Thompson J in OS(JR) No. 844 of 2017, erroneously also included in its decision land and boundaries of the area where PDL2 is situated. This then caused the plaintiffs herein and David Yawe for the Lapilape Incorporated Land Group grievances and so they filed OS(JR) No. 844 of 2017 to challenge the whole of the decision of the PLC. The review was successful whereby Thompson J, on 24 January 2018, nullified the whole of the decision of the PLC.
9. And this is where it gets interesting, and I will for this purpose make the following remarks. The decision of Thompson J was adduced in evidence. The National Court’s final orders were as follows in part:
.....
10. I observe that there is no further order by the judicial review Court affirming the orders of the MLLC, or orders that say whether there shall be a further re-hearing of the appeal by a different magistrate in the Provincial Land Court. In practice, a judicial review Judge or the Supreme Court if the matter reaches that stage, will normally make such consequential or directive orders in a case where a decision of a provincial land court is quashed or overturned. I observe that such orders were not considered or made in OS (JR) 844 of 2017. I had made these observations to the parties during the course of the hearing. I make this observation still, and that perhaps is something that the respective parties therein may seek clarity on, perhaps before the same Court. I say this because I observe that without a definite order from the National Court as to what should occur, the status quo may be that the decision of the MLLC may be the surviving and final decision because it remains intact. Again, I say this only as a remark.
PRELIMINARY ISSUES
11. The plaintiffs raise a preliminary issue. They argue that the motion and issues had been raised and determined by this Court. The applicant argues otherwise.
12. I have considered the submissions and arguments of the parties.
13. I note that earlier in 2021, the fifth, sixth and seventh defendants sought to dismiss the proceedings on the basis of (i), want of s. 5 notice pursuant to the Claims By and Against the State Act, (ii), time bar pursuant to s. 16 of the Frauds and Limitations Act, and (iii), want of disclosing reasonable cause of action. The matter was argued before Tusais AJ. On 27 April 2021, His Honour delivered a written decision where he refused the 3 applications.
14. In the present NoM, the 6th defendant seeks to dismiss the proceeding on 3 main grounds, namely, (i), that the relief sought in the originating summons were premature, (ii), that the 5th, 6th, 7th, and 8th defendants should be removed as parties and (iii), that this Court has no jurisdiction to hear the matter on the basis that the dispute concerned involves customary land boundaries and landownership. These are the questions or issues this Court will address.
15. But it is obvious that the issues and grounds raised in the present NoM are different to those raised in the earlier applications. I find the plaintiff’s argument baseless and dismiss it.
JURISDICTION
16. The applicant raises jurisdictional issues and so I will begin there first, and in so doing, ask myself this. “Does this Court have no jurisdiction to hear the matter on the basis that the land in question is customary land and they are disputed?”
17. The issue is met with a further issue that was raised by the plaintiffs. The plaintiffs claim that they are not asking this Court to make a finding on customary land ownership but rather on the role of the respective defendants under the Oil and Gas Act 1998 (O&G Act), namely, to conduct land identification exercise or process.
18. To me, this then raises this material question, which is this: “What rights do the plaintiffs have that they seek to assert, protect or enforce by this proceeding?” It also raises this next question: “Whether the plaintiffs have standing and whether they may seek such relief under ss 10, 47(3)(5), 49(a)(c), 63(a) and 187 of the O&G Act.
19. There is no question that the National Court, except for its limited or specific powers under judicial review, has no jurisdiction to determine or make a finding on customary landownership. Such function or jurisdiction is bestowed by legislation upon the Local Land Courts, the Provincial Land Courts and the Land Titles Commission. The relevant legislations that impose these are (i), the Land Disputes Settlement Act Chapter No. 45 (LDSA), and (ii), the Land Titles Commission Act 1962 (LTCA). Section 1 of the LDSA states,... The purpose of this Act is to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land... The ‘machinery’ for resolving customary land dispute includes the Local Land Court and the Provincial Land Court, which are established under the said Act. And s. 15 of the LTCA states,... The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.
20. The settled case law on point includes The State v Lohia Sisia [1987] PNGLR 102, Golpak v. Alongkarea Kali & Ors [1993] PNGLR 8, Ronny Wabia v. BP Petroleum Explorations Operating Co. Limited & 2 Ors [1998] PNGLR 8 and Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC 1107.
21. In the present case, it is not disputed the plaintiffs have expressed their landownership interest or claim over PDL2. It is also not disputed that the customary land ownership for PDL2 has not been determined to date. Parties over the impacted areas where the petroleum licenses are issued continue to be recognized as persons with interests, which are equitable in nature, over the land, or for example that they are recognized as persons or groups who reside next to the well heads etc etc. It amazes me, if I may add, that these continue to be the position after all these years.
22. As for the land area where PDL2 is situated, no true landowners have been legally identified. And given the mistake in finding by the PLC to include PDL2 in its decision, which has since been overturned in OS (JR) 844 of 2017, parties who have equitable interests over PDL2 who are awaiting legal determination of their interests over the said license area, are affected or impacted by the said decisions. The status quo, as expressed as a remark above, may be for the affected parties to seek clarity before the same judicial review Court in OS (JR) 844 of 2017, or otherwise proceed to have a re-hearing of the appealed decision by a differently constituted Provincial Land Court.
23. However, I note that the plaintiffs’ argument herein is beyond that. They say they are not concerned with that process; that they simply want the Court to enforce the provisions under the O&G Act. And I stated above that it raises the question of whether they can raise such question or seek such relief. When I look at the source or jurisdictional basis that the plaintiffs rely on under the provisions of the O&G Act, I question their application and relevance for the type of relief that the plaintiffs are seeking.
24. I will address that below.
SECTIONS 10, 47(3)(5), 49(a)(c), 63(a) and 187 - O&GA
25. The plaintiffs make references in their amended originating summons to ss 10, 47(3)(5), 49(a)(c), 63(a) and 187 as relevant sources as well as to assert their ‘equitable rights or interests” over the land area where PDL2 is situated.
26. I will come back to this but let me consider the provisions. Section 10 states that issues or disputes that arise under the O&GA shall be determined by the National Court. It simply states that the superior Court, the National Court, has jurisdiction. As such, it cannot, in my view, be relied upon as a source for a party to rely upon or ask the Court to invoke, to grant the relief that a party is seeking.
27. Sections 47 and 48 are set out herein to appreciate their intention, function, and purposes. They read:
Division 5.—Social Mapping and Landowner Identification Studies.
47. Social mapping and landowner identification studies.
(1) It shall be a condition of every petroleum prospecting licence that the licensee undertake social mapping studies and landowner identification studies in accordance with this section.
(2 It shall be a condition of every petroleum retention licence that the licensee undertake social mapping studies and landowner identification studies in accordance with this section, to the extent that such studies have not been undertaken pursuant to a petroleum prospecting licence out of which the petroleum retention licence was granted.
(3) It shall be a condition of every petroleum development licence that the licensee undertake social mapping studies and landowner identification studies in accordance with this section, to the extent that such studies have not been undertaken pursuant to a petroleum prospectng licence or petroleum retention licence out of which the petroleum development licence was granted.
(4) Prior to first entry on to the licence area for the purposes of exploration pursuant to a petroleum prospecting licence or a petroleum retention licence, the licensee shall undertake—
(a) a preliminary social mapping study; and
(b) a preliminary landowner identification study,
of the customary land owners comprised in the licence area, with particular reference to that part of the licence area where the licensee's exploration activities are to be concentrated.
(5) If a licensee or a person makes an application for a petroleum development licence under Section 53, the licensee shall submit with that application a full-scale social mapping study and landowner identification study of customary land owners in—
(a) the licence area of that petroleum development licence; and
(b) other licence areas, including pipeline areas, which pertain to that petroleum development licence; and
(c) the land within five kilometres of any facility which would be a dedicated project facility (other than a facility which would be situated on such a petroleum development licence) of the petroleum project; and
(d) other areas which would be affected by the petroleum project if developed."; and
(5A) If a licensee makes an application for a variation of a licence under Section 58(1), to include an additional block or blocks in a petroleum development licence, the licensee shall submit with that application a full-scale social mapping study and landowner identification study of customary land owners in—
(a) the additional block or blocks that will form part of that petroleum development licence; and
(b) other licence areas, including pipeline easements, which are associated with the petroleum development licence upon variation of such licence; and
(c) the land within five kilometres of any facility which would be a dedicated project facility (other than a facility which would be situated on such a petroleum development licence) of the petroleum project; and
(d) other areas which would be affected by the development of the additional block or blocks.
(6) The Minister may by regulation prescribe the scope and method of a social mapping study or landowner identification study conducted in accordance with this section, and requirements as to reports of such studies.
(7) Copies of any social mapping or landowner identification studies undertaken in accordance with this section (excluding any information which is confidential to the licensee or to the local groups of landowners) shall be provided to the Director.
Division 6.—Project Consultation.
48. Development Forum.
(1) Subject to Section 169(8), prior to the first grant of a licence or licences in respect of a petroleum project, the Minister shall convene a development forum at a place close to the proposed licence area to provide ease of access, being a meeting to which are invited persons who, in the view of the Minister, will be affected by that petroleum project, including—
(a) the applicant or intending applicant for the licence or licences; and
(b) the project area landowners determined under Section 169(2) or their duly appointed or elected representatives; and
(c) the Local-level Government or Governments who would be affected Local-level Governments of the project if the application is granted; and
(d) the Provincial Government or Governments who would be affected Provincial Governments of the project if the application is granted; and
(e) the State.
(2 ) If subsequent to the first grant of a licence or licences in respect of a petroleum project there is an application for a further licence or licences or the variation under Section 58(1) of a petroleum development licence in respect of that petroleum project, the Minister shall convene a further development forum in respect of that petroleum project to which are invited persons who, as a result of social mapping and landowner identification studies, in the view of the Minister, fairly represent those parties defined in Section 48(1)(a) to (e) inclusive.
(3) The purpose of a development forum is to endeavour to reach agreement on matters on which agreement among those present is desirable, including the matters referred to in Part IV.
28. These are some of the express or mandatory provisions where an applicant or a licensee of a petroleum development license must furnish to the responsible Minister, the Director, or the Petroleum Advisory Board. As stated, the licensee or an application is required to undertake social mapping studies and landowner identification studies and furnish that to the Director. The Minister responsible is obligated to conduct development forums on the impacted areas of the grant or extension of the licenses.
29. Section 63 of the O&G Act talks of or sets the conditions of a petroleum development license which include the condition where the responsible Minister would direct the licensee to undertake social mapping studies and landowner identification studies as per the requirements under s. 47.
30. And finally, s. 187 as referred to in the amended originating summons, is part of the transitional provisions under the O&G Act that deals with the effects or applications of various petroleum licenses that had been issued under the former legislation.
CONSIDERATION
31. I begin my consideration of the amended originating summons by referring to the following cases: The Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438, Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425, Placer Dome (PNG) Ltd v. Yako (2011) N4691, Independent State of Papua New Guinea v. Central Provincial Government (2009) SC977, Dr. Onne Rageau v. Kina Finance Ltd (2015) N6175 and National Fisheries Authority v. New Britain Resources Development Ltd (2009) N4068. Justice Hartshorn, in my view, best summarises the tests or considerations that are to apply, in reference to these cases, in the case of Amos Ere v. National Housing Corporation (2016) N6515. At paragraphs 11 and 12, His Honour said in part and I quote:
Declaratory relief
11. As the plaintiffs’ seek declaratory relief, it is necessary to consider the factors that are required to be established before a declaratory order can be made.
12. The factors are:
32. The first preliminary observation I make is this. None of the provisions cited by the plaintiffs may be sought as declaratory relief in the amended originating summons. To merely restate the various sections of the O&G Act or any express provisions of an Act of Parliament, cannot be regarded as valid relief unless of course the provision provides for such or apply or where such a relief may be sought in that manner. And I ask myself this: Why are the plaintiffs asking the Court to proclaim or declare a law or a section in an Act of Parliament what it is when that section or provision is a law in itself? And also equally important is the fact that these provisions are not contested by the parties, and so it begs these questions, “why seek their declarations? Or how will the Court in granting these declarations protect the equitable interests of the plaintiffs over PDL2? The equitable interests of the plaintiffs over PDL2 are also not in issue so is the equitable interests of the 5th, 6th and 7th defendants over the customary land where PDL2 is situated. But their legal interests over these land are in dispute or are issues which this Court has no jurisdiction over. So, I also ask this question. Where or what is the real controversy that the plaintiffs seek that they wish this Court to determine?
33. I also note that the plaintiffs are not seeking damages for breach of statutory provision, so it also begs the question of the cause of action. And even if they may seek such damages, I very much doubt whether, they, as persons with interests over the customary land where PDL2 is situated, may seek such when their legal interests as landowners of PDL2 is still pending or has yet to be finally determined.
34. All these considerations make sense to me that perhaps the cause of action is premature as claimed by the applicant.
STANDING
35. I now come to ask myself this question. “What standing do the plaintiffs have in regard to the primary relief?” I have observed the provisions of the O&G Act and in particular I note the provisions under s, 47 as set out above in my judgment. Also relevant in my view, are ss. 121 and 134, which read:
Section 121 - DETERMINATION OF CUSTOMARY LAND.
(1) Where for the purposes of this Act it is necessary to determine the rightful owners or occupiers of, or persons having an interest in, any customary land, or any improvements on it other than in circumstances where Section 9 of the Land Act 1996 applies, the determination may be made under the provisions of the Land Disputes Settlement Act (Chapter 45) and for the purposes, and within the meaning, of that Act, there shall be deemed to be a dispute between such persons or groups as the court, within the meaning of that Act, may direct.
(2) Where the Director considers that a dispute of the type referred to in Subsection (1) exists, he may -
(a) refer that dispute to the Provincial Land Disputes Committee for the Province in question as a dispute under the Land Disputes Settlement Act (Chapter 45); or
(b) make an application in respect of the dispute to the applicable Local Land Court under Section 27 of that Act.
(3) Where the Director makes a referral or application under Subsection (2) -
(a) the dispute shall be deemed for the purpose of the Land Disputes Settlement Act (Chapter 45) to be a dispute relating to land; and
(b) the Director shall be deemed to be a party to the dispute for all procedural matters under that Act, and he or his representative shall be entitled to participate in any mediation or court hearing in relation to the dispute.
(4) Where the Director makes a referral under Subsection (2)(a) –
(a) the reference to the Provincial Land Disputes Committee shall be deemed to be a request by a Local-level Government under Section 9(1) of the Land Disputes Settlement Act (Chapter 45); and
(b) the Committee shall declare the area which is the subject of the dispute to be a Land Mediation Area and a single Land Mediation Division, and forthwith appoint a Land Mediator for that Land Mediation Division.
(5) Where the Director makes an application under Subsection (2)(b), the dispute shall be deemed to have been the subject of a certificate given by a Land Mediator under Section 27(1) of the Land Disputes Settlement Act (Chapter 45) and a certificate given by a Magistrate under Subsection 27(2) of that Act.
......
Section 134 - RIGHTS OF LANDOWNERS.
(1) The owner, occupier or other person having an interest in any private land in a licence area or occupied or to be occupied by a pipeline or petroleum processing facility or any part thereof may continue to use, occupy and enjoy the land, with the exception of any part of that land reasonably required from time to time by the licensee for the exercise of his rights under his licence.
(2) Where a dispute arises as to interests in customary land or the position of boundaries of customary land, such dispute shall not affect -
(a) the right of a person to make application for and be granted a licence under this Act; or
(b) the validity of a licence granted under this Act.
(3) A dispute referred to in Subsection (2) shall be settled as provided for in the Land Disputes Settlement Act (Chapter 45).
36. These provisions, in my view, clarifies the following. The plaintiffs as landowners who hold equitable interests over PDL2, like other landowners who may have similar interests, do not have standing or right, by virtue of these provisions, to challenge or raise issues concerning want of compliances of a licensee’s obligations to undertake social mapping studies and landowner identification studies over an intended or existing license including a petroleum development license. Such obligations, by these express provisions under the O&G Act, are bestowed upon a licensee or an applicant, to the responsible Minister or the Director, as part of the mandatory prerequisites when one is applying for or is seeking an extension to, a petroleum license. And only the responsible Minister or Director, in my view, has or would have standing or interest to raise issues or issue directions concerning matters such as reports or undertakings re social mapping studies and landowner identification studies. The O&G Act also provides regulatory provisions and penalties for non-compliances which may be enforced by the Minister or Director. For example, sections 153 and 154 provides,
153. General penalty.
A person who contravenes or fails to comply with—
(a) a provision of this Act applicable to him and for which no other penalty is provided; or
(b) a requirement, direction, order or instruction lawfully given or made under this Act, other than a direction under Section 133,
is guilty of an offence.
Penalty: A fine not exceeding K1,000.00.
154. Continuing offences.
(1) Where an offence is committed by a person by reason of his failure to comply, within the period specified in a direction given to him under this Act, with the requirements specified in the direction, the offence, for the purposes of Subsection (3), shall be deemed to continue so long as any requirement specified in the direction remains undone, notwithstanding that the period has elapsed.
(2 )Where an offence is committed by a person by reason of his failure to comply with a requirement made by this Act, the offence, for the purposes of Subsection (3), shall be deemed to continue so long as that failure continues, notwithstanding that any period within which the requirement was to be complied with has elapsed.
(3) Where, under Subsection (1) or (2), an offence is deemed to continue, the person who committed the offence commits an additional offence against this Act on each day during which the offence is deemed to continue and is liable, on conviction for such an additional offence, to a fine not exceeding K5,000.00.
37. These and other similar or express provisions of the Act apply to ss. 47(3)(4)(5)(5A), 49(a)(c) and 63(a). And they may be enforced by the Minister, Director and those authorized persons.
38. So can persons who claim to be landowners of customary land, such as the plaintiffs over PDL2, have standing to seek relief under ss. 47, 49(a)(c) and 63(a)? The answer to that, in my view is, “no, they do not have standing or right”. According to or for the purposes of ss 121 and 134, the interest of persons such as the plaintiffs, lie, fall under, or is limited to determinations made over their customary rights or interests over land that are subject to licenses issued under the O&G Act. And their rights or interests are limited to any customary disputes that may exist or are pending before a local or provincial land Court. They do not have standings or rights to enforce or assert compliances or want of it, in regard to ss 47, 49(a)(c) and 63(a) or on matters that relate to undertakings by licensees to conduct social mapping studies and landowner identification studies. These obligations or enforcement rights, by operation of law under the O&G Act, fall within the prerogative of the responsible Minister, the Director or those persons that are expressly named under the Act, which excludes landowners or persons with interests over customary land over areas of land that are subject to petroleum licenses.
39. In the present matter, it is not disputed that final determination on the interests of the plaintiffs and other defendants or landowners over their customary land where PDL2 is situated has not been finally settled or determined. It is also the settled position in law that this Court or the National Court, does not have jurisdiction to determine land disputes over customary land. In making this observation or finding, I note from the relief sought that the plaintiffs are attempting to seek declarations on the percentages of ownership of their customary interests to those of other persons or defendants, over PDL2, that is, and I refer to relief 3, 4 and 5 in the amended originating summons. These are followed by consequential relief under terms 6 to 12 in the amended originating summons. These relief, in my view, are also unattainable or untenable before this Court on the basis of want of standing and jurisdiction.
SUMMARY
40. In summary, I am inclined to exercise my discretion in favour of the applicant. This proceeding shall be dismissed for the stated reasons, namely, the proceeding is premature, secondly, there is no real controversy in the primary relief that are sought, and thirdly, the plaintiffs have no standing, right, business or interest, under the O&G Act to raise arguments concerning one of the prerequisites of a petroleum licensee’s obligation which is to undertake and furnish to the responsible Minister or Director, social mapping studies and landowner identification studies. The task, responsibility, and obligations including enforcement, is between the responsible Minister or Director and a petroleum licensee or applicant for a petroleum license.
COST
41. A cost award in this case is discretionary. I see no reason why cost should not follow the event by applying the standard costs scale, that is, on a party/party basis to be taxed if not agreed.
ORDERS OF THE COURT
42. I make the following orders:
The Court orders accordingly
________________________________________________________________
Emmanuel Lawyers: Lawyers for the Plaintiff
Bradshaw Lawyers: Lawyers for the First Defendant
Koisen Lawyers: Lawyers for the Sixth Defendant
Kolo Lawyers: Lawyers for the Seventh Defendant
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