The Shell Petroleum Development Company Of Nigeria Limited V. Chief Arthur John & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Lead Ruling)

By a Motion on Notice dated 10th June 2010 and filed same, the Appellant/Applicant prays for the following Orders:

1.An order staying execution and or enforcement (whether by garnishee or howsoever) of the judgment of the Federal High Court, sitting in Umuahia per J. T. Tsoho, J., dated 17/11/2005 in Suit No. FHC/UM/CS/03/2000 – Sir Arthur John & Ors v. The Shell Petroleum Development Company of Nigeria Ltd.) as confirmed, by and or, the judgment of the Court of Appeal, Owerri Division dated 10/6/2010 in Appeal No. CA/PH/103/2006, pending the determination by the Supreme Court of the Appellant/Applicant’s appeal against the said judgment of the Court of Appeal.

2. An order or injunction for the preservation of the subject matter and/or preservation of the status quo by the parties pending the determination of the applicant’s appeal by the Supreme Court against the judgment of the Court of Appeal, Owerri Division dated 10/6/2010 in Appeal No: CA/PH/103/2006 (The Shell Petroleum Development Company of Nigeria Ltd., v. Sir Arthur John & Ors).
3. An Order or injunction restraining Zenith Bank, Plc from paying to the Judgment Creditor/Respondent and the Judgment Creditor/Respondent from receiving from Zenith Bank, Plc the Judgment sum stated in the Zenith Bank Guarantee dated 28th day of October, 2009 (or otherwise honouring the said guarantee) pending the determination of this motion and/or the Appellant/Applicants appeal against the aforesaid Judgment of the Court of Appeal.

The grounds for this application are stated as follows:-

1. For the Applicant to pay the judgment sum of One Billion, Eight hHundred and Forty-Nine Million, One Hundred and Eight-Seven Thousand, Five Hundred and Sixty-Eight Naira (N1,849,187,568.00) will entail disposing its operational assets and folding up its business.
2. The Umuorie community which is the real judgment creditor in this case is an indeterminate number of persons from whom it would be impossible to recover the judgment sum in the event of Applicant’s appeal succeeding.
3. The grounds of appeal are substantial and arguable.
4. Applicant is prepared to furnish a banker’s guarantee to secure the judgment sum.
5. The Guarantor/Respondent (Zenith Bank, Plc) had furnished a guarantee to the Plaintiffs/Judgment Creditor/Respondents

In moving the application learned Senior Counsel for the Appellant/Applicant Chief R. Akinjide states that the motion on Notice is dated and filed on 10/6/2010 with a 14 paragraphs supporting affidavit, that also filed is a further affidavit of 28/9/10 containing 14 paragraphs with 8 exhibits attached. That they also filed a 26 paragraph Reply Affidavit deposed to on 28/10/10. That they also filed an 11 paragraph Reply Affidavit deposed to by Onyiyechi Akaga to the Respondent Counter-affidavit filed on 28/1/2010.

Learned Senior Counsel for the appellant/Applicant states that their written address is dated and filed on 21/10/10 in support of the application. That they also filed a Reply Address dated and filed on 2/11/10. Learned Senior Counsel for the Appellant/Applicant adopts the written address and the Reply address and move in terms of the motion papers and urged the Court to grant the application.

Mr. L.E. Nwosu SAN, for the 1st, 2nd and 3rd Respondents states that he is opposing the application and pursuant to the Order of this Court filed a written address on 28/10/10 and it is dated same date. Learned Senior Counsel adopt the written address and reply on their Counter-affidavit sworn to on 21/9/10 particularly Exhibits DE 3 and DE 4 attached thereto. He also filed a further affidavit on 28/10/10 and rely on Exhibit DE 6 attached thereto. Learned Senior Counsel also rely on Exhibit DE, 7 also heavily rely on the Applicant further affidavit filed on 28/9/10 especially Exhibit B., Learned Senior Counsel placed reliance on the Applicant’s Exhibit C which is the Counter-guarantee by First Bank to Zenith Bank particularly paragraph 2 of the Exhibit, Exhibit “D” of the Applicant’s further affidavit of 28/9/10 in which the Judgment of the Rivers State High Court determined the status of the Guarantee between Zenith Bank Plc and the Respondents. The Notice of Appeal by Zenith Bank against that Judgment in Exhibit “E” to the Court of Appeal Port Harcourt, Exhibit “F” is the motion for stay of execution brought before the Court of Appeal Port Harcourt, that this Court not being a Court of First Instance cannot be invited to interpret the liability or not on the 1st, 2nd and 3rd Respondents right to sue based on the Guarantee Exhibit “B” and this Court has no Jurisdiction to seat over an appeal of the High Court of Rivers State. Learned Senior Counsel urged the Court to dismiss the application.

Mr. Giadom Counsel to the 4th Respondent informed the Court that he is not opposing the application.

Mr. Nwuzor, Counsel for the 5th Respondent after the adoption of written address by the Parties applied for an adjournment to enable him contact his client for the process served on them which was not forwarded to him to enable him re-act to the application. The application for adjournment was vehemently opposed by Counsel to the Appellants/Applicants and the 1st, 2nd and 3rd Respondents and the Court ruled refusing the application for adjournment which it considered an abuse of the process of this Court after adoption of addresses for Counsel to apply for adjournment to consult his Client over a process that has been duly served on them before the hearing of the application.

By an Order of this Court the Parties filed written addresses which were subsequently adopted at the hearing of this application. In his written address, learned Senior Counsel for the Appellants/Applicants submitted four Issues for determination. The Issues are:-

a) Has the Appellant/Applicants shown special circumstance and or recondite point of law to warrant stay of execution?

b) Does the fact that SPDC gave a Bank Guarantee pursuant to the Order of this Court of Appeal as a condition for stay of execution of the judgment of the Federal High Court destroy or whittle down the constitutional right of SPDC to appeal to the Supreme Court against the Judgment of this Court of Appeal delivered on June 10, 2010 and consequently the right to apply to this Honourable Court to stay its own Judgment pending the determination of the Supreme Court appeal.

c) Are the conducts of the Plaintiffs/Respondents in seeking to realize the bank guarantee using the High Court of Rivers State with the full knowledge of the pendency of the present application not an abuse of the process of this Court?

d) If (c) is answered in the affirmative, what proper order should your Lordships make in the circumstances?