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  • 2003-12-08
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S.P.D.C. vs. Arho-Joe (Nig.) Ltd.

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA

V

ARHO-JOE NIGERIA LIMITED

COURT OF APPEAL

( BENIN DIVISION )

RABIU DANLAMI MUHAMMAD, JCA ( Presided )

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA KUMAI BAYANG AKAAHS, JCA ( Read the Lead Ruling )

CA/B/94/2002

WEDNESDAY, 16TH APRIL, 2003

PRACTICE AND PROCEDURE - Stay of execution - Applicant for - What must show

PRACTICE AND PROCEDURE - Stay of execution - Application for - What must be based on

PRACTICE AND PROCEDURE - Stay of execution - Application for Discretionary power to grant or to refuse - How exercised

PRACTICE AND PROCEDURE - Stay of execution - Discretion to grant or refuse application therefor - What must take into account

Issue:

Whether it is proper to grant an unconditional stay in view of indication by applicant’s counsel of his willingness to provide a bank guarantee for the judgment sum.

Facts:

This motion is brought pursuant to section 18 of the Court of Appeal

Act and Order 3, rule 3 of the Court of Appeal Rules, 1981 praying for:“An order varying the orders of conditional stay of execution made by the High Court of Justice Warri on the 13th day of May, 2002 in Suit No. W/304/2001: Arho-Joe Nigeria Limited vs. Shell Petroleum Development Company of Nigeria, to wit: that the defendant pay the judgment sum of N97,200,000.00 ( ninety-seven million, two hundred thousand naira) to the Assistant Chief Registrar of the High Court of Justice, Warri within seven days etc; for order granting unconditional stay of execution of the said judgment or on such more favourable terms as this Honourable Court may deem fit to make in the circumstance until the determination of the appeal filed in respect of the said judgment.”

The grounds upon which the application is made are:-

(i)             That the order of conditional stay of execution made by the High Court is onerous, punitive and unreasonable in the circumstance.

(ii)           That the judgment was entered in violation of the fundamental right of the applicant as provided for in section 36 of the 1999 Constitution of the Federal Republic of Nigeria as the defendant was not heard in its defence or given a fair hearing before judgment was passed against it.

(iii)         That the defendant has shown good and substantial ground of appeal.

(iv)         That granting unconditional stay or on more favourable terms shall meet the justice of the case.

This application is for stay of execution. The applicant was granted a conditional stay of execution by the trial court but it found the terms to be onerous, punitive and unreasonable. The appellant’s counsel has indicated his willingness to furnish a bank guarantee but the respondent’s counsel was opposed to the bank guarantee on the ground that it will not meet the justice of the case but prefers rather that the judgment debt be paid into an interest-yielding account in the bank to await the outcome of the appeal.

The Court of Appeal heard arguments of counsel for both parties.