Shell Petroleum Dev. Co. Of Nig. Ltd. V. Chief N.Y. Allaputa (2005)
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JOHN AFOLABI FABIYI, J.C.A.
This Ruling is sequel to the arguments canvassed in respect of the motion on notice dated 21st March, 2005 and filed on the same date. Therein, the Applicant prayed for the following orders:-
“1. An order staying execution of the judgment of F.N.N. Ichoku, C.J. (as he then was) of the High Court of Rivers State, sitting in Port Harcourt delivered on 29-01-2001 in Suit No. PHC/2504/2000 (Chief N.Y. Allaputa v. Shell Petroleum Development Company of Nigeria Limited (as confirmed by) and the decision of the Court of Appeal dated 28-02-2005 pending the determination of the Applicant’s appeal to the Supreme court of Nigeria against the decision of this Honourable Court delivered on 28-2-2005.
- An order of injunction, for the preservation of the subject matter of this appeal and/or preservation of the status quo pending the determination of the Applicant’s appeal to the Supreme Court against the decision of this Honourable court dated 28-2-2005.
- An order of injunction restraining the Respondents from taking any step whatsoever to apply for and or collect the judgment sum in this court deposited in an interest yielding account in Zenith Bank Plc pursuant to the order of this Honourable Court on 13-07-2001 pending the determination of the Appeal to the Supreme Court filed by the Applicant against the judgment of this Honourablc Court dated 28-02-2005.
The application was supported by an affidavit of 14 paragraphs. Four Exhibits marked A, B, C, and C1 were annexed therewith. Exhibit ‘A’ is the judgment of the trial CJ in which he entered judgment for the Respondent in the sum of N405,000,000.00 (Four Hundred and Five Million Naira) as well as interest in the sum of N15,750,000.00 (Fifteen Million, Seven Hundred and Fifty Thousand Naira) plus cost fixed at N5,000 on 29-1-2001. Exhibit ‘B’ is the judgment of this court delivered on 28-2-05 in which the sum due to the Respondent was reduced to N305,000,000.00 (Three Hundred and Five Million Naira) plus costs assessed and fixed at N5,000=. Exhibit ‘C’ is the Notice of Appeal filed on 28-2-2005. Exhibit ‘C1’ is another Notice of Appeal filed on 8-3-2005.
The averments which appear germane in the affidavit in support are that the Notices of Appeal contain substantial arguable grounds and that judgment sum ordered by the trial Court which is already deposited in an interest yielding account with Zenith Bank Ltd on the order of this court will be collected and distributed among over a million people. It will be impossible to recover same and any judgment that the Supreme Court may enter for the applicant will be rendered nugatory. It was further averred that it is in the interest of justice that the application be granted as it will not in any way whatsoever prejudice the Respondent.
The Respondent placed reliance on the affidavit deposed to by Ibeawuchi Chimezie Esq. Three Exhibits were annexed to same. Exhibits N1 and N2 relate to execution of the judgment of the trial Court while Exhibit N3 contains the order of this court made on 13-7-2001 that the judgment sum, as entered by the trial Court, be deposited in an interest yielding account with the Zenith International Bank, Trans-Amadi, Port Harcourt pending the determination of the appeal to this Court.
It is agreed by both sides that the judgment sum as ordered by the trial Court was deposited into an interest yielding account with Zenith International Bank Limited. The Respondent maintained that the Bonny Chief’s Council, as Trustees, are ready and willing to refund the judgment sum if the appeal filed by the Appellant is successful. The Respondent feels that it will be in the interest of justice to dismiss the application.
Arguing the application, the Senior Counsel for the Applicant observed that the res is money. He submitted that the issue is whether or not the Appellant will be able to recover its money if the appeal to the Supreme Court is successful. He maintained that where there are special circumstances, the court will stay monetary judgment. He referred to the case of VASWANI TRADING CO. v. SAVALAKH (1972) All NLR 922 at 926.
Senior Counsel submitted that the onus is on the Respondent to show that the money will be available to the Appellant if it wins and that the Respondent has not shown that the sum can be refunded. He felt that if money is shared, there is no way by which it can be retrieved from so many individuals. The Respondents, according to Senior Counsel, failed to state their Bank account with the balance therein. He maintained that since the money is already in an interest yielding account, that status quo should be maintained to protect the interest of both sides. He referred to the cases of GOVT. OF OYO STATE v AKINYEMI (2003) 1 NWLR (Pt. 800) 1 at 18 G – H; ATAYI FARMS LTD V. NIGERIA AGRIC CO-OP. LTD & ANR (2003) 4 NWLR (Pt. 810) 427 at 456 – 457. He feels that there is a valid appeal and that the grounds of appeal should be perused carefully.
The Senior counsel for the Respondent felt that since execution has been levied, no order for stay can be granted. He referred to the case of RACE AUTO SUPPLY CO. V. ALHAJA F. HAKIM (2001) 1 NWLR (Pt.695) 463 at 471.
Senior Counsel submitted that the grounds of appeal have not shown recondite issues to be determined. He opined that balance of convenience tilts in favour of the Respondent.
Senior counsel for the Applicant in reply, maintained that the fact that there is execution does not prevent this court from exercising its power to preserve the res. He felt that the order of this Court in Exhibit N3 supercedes the earlier execution carried out.
In the realm of law relating to stay of execution, authorities are legion. Five main considerations appear to underlie the grant by a court of a prayer for stay of execution pending appeal. They are as follows:
- A stay of execution will not be granted if to grant it might deprive the winner in the court below of the fruit of this victory. See Vaswani Trading Co. v. Savalakh (supra).
- A stay of execution should not be refused if the effect of such refusal would render the appeal nugatory: if it should be eventually successful.
- If the request for stay and the subject matter of the appeal have the same substratum so that the grant of the one would dispose of the other, the stay of execution should be granted. See Deduwa V. Okorodudu (1974) 6 S.C.21
- An applicant for stay of execution has the duty to show exceptional circumstances which point conclusively to the fact that balance of justice weighs in favour of a grant of stay. However, what constitutes special circumstances will no doubt vary from one case to the other. See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129.
- In considering whether or not to order stay of execution, a court has to exercise its discretion judicially and judiciously as well. The court has to balance the competing rights of both sides properly before pronouncing on the justice of the matter. Discretion is the art of being discrete and circumspect. Judicious means proceeding from or showing sound judgment marked by wisdom and good sense. See Eronini v. Ihenko (1989) 3 S.C. (Pt.1) 3. In relation to the grant of order for stay of execution, there are no hard and fast rules. Each application must be determined based on the confine of its own peculiar facts.
It is clear that in Exhibit N3 attached to the counter affidavit, this court granted a conditional stay of execution of the judgment of the trial court. The order was made by consent of both parties to pay the sum of N420,750,000 into an interest yielding account in Zenith International Bank, Trans-Amadi, Port Harcourt. By any standard, the amount involved is substantial. It is a big chunk. This order supercedes the earlier execution levied by the Respondent at the trial court in my considered opinion. Can it be said that further stay of execution pending the determination of the Appellant’s appeal to the Supreme Court should not be granted in the prevailing circumstance? I think not and I shall give my reasons anon.
The amount is, no doubt, a huge one. The Respondents have not shown that they can easily repay same if, per chance, the appeal to the Supreme Court is successful. They have not shown their bank account depicting the balance therein. The Appellant/Applicant said that the money would be shared amongst over one million people in Bonny Kingdom and that it would be difficult to recover it and thus render the judgment of the Supreme Court nugatory in the event of appeal being successful. The averment was not directly controverted. A similar situation arose in WILSON v CHURCH (No.2) (1879) 12 Ch.D 454 at 460. Therein, Cotton, L.J, pronounced thus:-
“That possibly was rather novel, but it was right, in my opinion, to make that order to prevent the appeal; if successful, from being nugatory. Acting on the same principle, I am of opinion that we ought to take care that if the House of Lords should reverse our decision (and we must recognize that it may be reversed) the appeal ought not to be rendered nugatory. I am of opinion that we ought not to allow this fund to be parted with by the trustees, for this reason: it is to be distributed among a great number of persons, and it is obvious that there would be very great difficulty in getting back the money parted with if the House of Lords should be of opinion that it ought not to be divided amongst the bond-holders.”
Without any shred of hesitation, I endorse the above reproduced opinion. In the matter at hand, parties should tred gently. If, per chance, the appeal to the Supreme Court favours the Appellant, such should not be rendered nugatory. A conditional stay of the judgment of the trial Court was granted pending the determination of the appeal to this court. Caution demands that a further stay of the judgment of this court be granted to allow the Apex Court have a say and ensure that same is not rendered nugatory if the Appellant eventually succeeds. There is nothing to worry about as the judgment sum is already in an interest yielding account with Zenith International Bank on the order of this court and any of the parties who wins the appeal can go there and carry the rather huge money with all accrued interest.
In sum, I find that the application for stay of execution of the judgment entered by this court on 28-02-2005 has merit. An order granting a stay of execution of same is hereby granted pending the determination of the Applicant’s appeal to the Supreme Court. For avoidance of doubt, the judgment sum entered by the trial Court deposited in an interest yielding account with Zenith International Bank shall remain intact pending the determination of the appeal to the Supreme Court. I make no order on costs.
Other Citations: (2005)LCN/1745(CA)
