CC421/07                                       2007                                          S NO75

IN THE HIGH COURT OF SIERRA LEONE CIVIL JURISDICTION)

SEABULK CARRIERS INC C/O REGENCY PROJECTS LIMITED 48A, 49A OLDGATE HIGH STREET

LONDON E.C3N 1AL                    -                     PLAINTIFF/ RESPONDENT

VS.

MAJESTIC OIL EXPLORATION MARKETING AND REFINERY COMPANY LIMITED

3, QUEEN ELIZABETH ROAD KISSY DOCK YARD FREETOWN

AND

ALIEU THORLU BANGURA C/O MAJESTIC OIL EXPLORATION MARKETING AND REFINERY COMPANY LTD

3, QUEEN ELIZABETH ROAD KISSY DOCK YARD

FREETOWN                                  -                    DEFENDANTS/APPLICANTS

WRIGHT & CO.SOLICITORS for the Plaintiff/ Respondent Nasiru D. TEJAN - COLE Solicitor for the Defendants/Applicants

RULING DELIVERED THIS 17TH DAY OF JANUARY 2008

D.B. EDWARDS, J. By Notice of Motion dated the 7th day of JANUARY 2008 made under action intituled CC421/07 A NO75, the Applicants herein, the defendants in this action applied to this Honourable Court inter alia for an order that the Judgment of this court dated 17th day of December 2007 and all subsequent proceedings thereto be stayed pending the hearing and determination of the defendants' Appeal to the Court of Appeal. The application was supported by the affidavit of Alieu Farama Thorlu-Bangura sworn to on the 24th of December 2007 together with the exhibits referred thereto to wit exhibits A, B and C.

From the facts before me as gleaned from all documents before this Court, the background leading up to this motion was that in an action instituted at the instance of the plaintiff for the repayment of the sum of US$363,300.00 as debt due and owing to the plaintiff and for US$41, 520 representing 10% interest on the aforementioned sum with effect from 27th March 2006 to 10th May 2007 , this court presided by Hon Justice Desmond Babatunde Edawards J had delivered Judgment in favour of the Plaintiffs. The full terms of the Judgment of the court dated 17th December 2007 are represented in exhibit A in the affidavit of Alieu Farama Thorlu-Bangura sworn to on the 24th of December 2007. The defendants, dissatisfied with the said Judgment, appealed to the Court of Appeal. A copy of the said Appeal is exhibited in the said affidavit of Alieu Farama Thorlu-Bangura sworn to on the 24th of December 2007 as exhibit B. Pursuant to Order 28 of the Court of Appeal Rules PN No 29 of 1985 which provides that an appeal does not operate as a stay, the Appellants therein, herein defendants /applicants have applied to this court for a Stay of execution of the said Judgment dated 17th December 2007 pending the hearing and determination of their Appeal.

This matter, as is expressly indicated, concerns stay of execution and the circumstances in which it could be granted. It is well settled by a long line of cases that it is in the discretion of the Court to grant or refuse a stay and that this stay will only be exercised in favour of the applicant where he can convince the court that the special circumstances of the case so warrant.

In HALSBURY'S LAWS OF ENGLAND 3rd EDITION VOL 16 PARA 51 AT PAGE 35 the wide discretionary powers of the courts and the principle on which it will grant a stay of execution were stated thus:

"The Court has an absolute and unfettered discretion as to the granting or refusing of a stay and as to the terms upon which it will grant it, and will as a rule, only grant it if there are special circumstances which most be deposed to in an affidavit"

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It is for the applicant to bring or place before this court those facts which it believes constitute special circumstances. But it is for this court to decide whether those facts indeed constitute special circumstances as to warrant it exercising its discretion in favour of granting the application. Each case stands on its own and depends on its merits. Where the facts are in the opinion of the court special circumstances, then stay will be granted, and if not, stay will be refused.

In its search for what constitutes special circumstances the court would try to consider from the applicant's affidavit(s) whether a case has been made out for depriving the plaintiff of the fruits of the Judgment which he has obtained and it is for the applicant for a stay to make that case before the court. In the instant case the defendants /applicants have deposed as follows:

In Paragraph 6 "The Frame work Agreement, ................ stipulates inter alia the formation of a joint venture to be operated through a Marshal Island Company (Newco) and the parties agree to instruct and fund Derrick French solicitor in London to form Newco and prepare all corporate papers . This has not been done. A copy of the frame work agreement dated 26th March 2004 is shown to me produced and marked C"

Relying on this paragraph and the said agreement which is exhibit C, the defendants applicants' solicitor argued that they were prepared to pay the loan .Payment, however, they argued, was to be made on specific conditions that they were going to form a joint venture Company outside Sierra Leone and that it was out of the funds generated out of the venture that the loan amount was to be paid.

Further the defendants deposed in Para 8 and 9 respectively as follows Para 8. That Mr Saleem Ali is a non Sierra Leonean and a Pakistan national and in the event of the appeal being successful it will be difficult to recover the amount.

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Para 9 The defendant company has only recently been incorporated and registered as a limited company and is indigenous and in its infancy stage. The business is the re-establishment of an indigenous Sierra Leone Oil Refinery.

The said depositions the defendants' solicitor argued constituted special circumstances. In their affidavit too the defendants deposed to the fact that the grounds of appeal are substantial and that their defence contains triable issues which are fit to go to trial.

The question which this court has to decide is whether any of these facts as highlighted by the defendant and even in a broader sphere as deposed by the defendants /applicants affidavit sworn to on the 24th of December 2007 do constitute facts which this court, invoking its discretionary powers, could properly regard as special circumstances?

The plaintiff's Solicitor for his part opposed the application stating that the above could not be regarded as special circumstances mainly because the defendants through their solicitor even if out of candour had admitted their indebtedness to the defendant to the tune of the Judgment debt. He observed that those who have the interest of the nation at heart must pay the debt to their external lenders to protect the interest of the nation. He finally referred to the total amount of the debt as being very minuscule in oil refinery business.

I have considered keenly the arguments by both parties for and against the stay of execution. I totally disagree with the defendants' solicitor when he argued that repayment of the loan was to be made on specific condition that the parties were going to form a joint venture Company outside Sierra Leone and that it was out of the funds generated out of the venture that the loan amount was to be repaid. In as much as this point may be relevant, in so far as whether the appeal stands a chance of succeeding, in which case it would be rendered nugatory, if the appeal succeeds, two points go squarely against the appeal being successful. These are i) that the action was effectively a debt action and the national indigenous defendants are not denying and /or have accepted the indebtedness to the foreign national and secondly, that the fact that the

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frame work agreement exhibit C did not at any time state expressly or by necessary implication that the repayment of the Loan was conditional on the formation of the Joint venture company. To my mind this argument by the defendants is just an argument to beg for time and do not in any way constitute special circumstances .Indeed the formation of the joint venture company could have facilitated repayment of the debt by the defendant through the proceeds generated therefrom and it was in the interest of the defendants to have expedited its formation, but this by no means mean that the repayment of the loan was conditional on the formation of the joint venture company by the terms of the frame work agreement .

In the same vain the fact that the plaintiff is a foreign national therefore there is likelihood that if the appeal succeeds it would be difficult to recover the amount as constituting special circumstances cannot be special circumstances. This is so, because as of now the defendants have accepted their indebtedness and it is the plaintiff that must as a matter of course recover an amount US$404, 820.0 if at all, and there is no likelihood of it being the other way as the defendants would want this court to believe. Without assets in Sierra Leone the plaintiff willingly gave out the money that has now become a debt still unpaid after 3 years. Without wanting to pre-empt the Court of Appeal's decision on the matter, I find it difficult to accept that the defendants could succeed in reversing the decision on Appeal whereby their appeal stands the risk of being nugatory if the stay is not hereby granted. Foreign national or not, all honest debts must be paid and they themselves are not contesting the debt but have stated through their solicitor that they are ready to give an undertaken as to payment.

In the case of ATKINS VS G W RAILWAY (1886) TIMES LAW REPORT AT P 400 it was held that.

"As a general rule the only ground for a stay of execution is an affidavit showing that if the damages and costs were paid there is no reasonable probability of getting them back if the appeal succeeds"

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In this particular case, if the Judgment debt is paid it is what the plaintiff / respondent is entitled to being a debt that was incurred by the defendants and never denied during the course of the proceedings in this Court; further, even expressly accepted by their solicitor out of candour to this court and which by all accounts will have to and / or must be paid, such that if and when paid, the issue of no reasonable prospect of getting them back if the appeal succeeds does not even arise, as the debt has never been disputed . As decided in the Court of Appeal decision of WILSON VS CHURCH LR 12 CHANCERY 454 the court would not interfere and grant a stay where the appeal appears not to be bonafide. It is the view of this court that this appeal cannot be bonafide in view of the fact that the defendants have admitted their indebtedness to the plaintiff.

The defendants' solicitor has indicated that they are prepared to give an undertaken in respect of the debt . Such undertaken should have been deposed to in an affidavit and perhaps the method in which they intend to settle the debt and perhaps discussions held between the parties so as to guide this court on the terms of the said under taken . Against the foregoing, I have advised myself to exercise the discretion in favour of refusing a stay of execution.

I therefore order as follows:

1. Interim stay of execution granted by this honourable court is hereby rescinded.

2. Stay of execution of Judgment of the court dated 17th December 2007 is refused.

3. Costs of this application to be taxed if not agreed.

Hon. Mr. Justice D.B. Edwards J.

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