IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA
ON FRIDAY THE 5TH DAY OF JUNE, 2009
CORAM
ALOMA MARIAM MUKHTAR JUSTICE, SUPREME COURT
PIUS OLAYIWOLA ADEREMI JUSTICE, SUPREME COURT
CHRISTOPHER MITCHELL CHUKWUMA-ENEH JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI JUSTICE, SUPREME COURT
OLUFUNLOLA OYELOLA ADEKEYE JUSTICE, SUPREME COURT
BETWEEN
NIGERIA NATIONAL PETROLEUM CORPORATION APPELLANT
AND
FAMFA OIL LIMITED & ANOR RESPONDENTS
RULING
A well known principle of law governing the application of a stay of execution is that the applicant must disclose exceptional or special circumstances to warrant the grant. It is in the supporting affidavit to the application for an order for the stay of execution that such special circumstances will be found. In this respect I will reproduce the salient depositions in the affidavit in support of this application here below. They are: -
"22. Agbami Oil field has current crude oil production capacity of two hundred thousand (200,000) barrels per day which translates to daily gross earnings of about US$20 million at current crude oil price of US$124.00 per barrel.
23. If the 1st Respondent is allowed to assume a 60% equity participation in OML 127, it stands to earn revenue of approximately US$10 million per day, which translates into US$3,650,000,000 per annum.
25. The Appellant/Applicant engaged the firm of Legal Standard Consulting and Chimezie L. Nwokohu & Associates based in Abuja to conduct a corporate search at the Corporate Affairs Commission (CAC), Abuja and N. U. Chianakwalam, Esq. of the said firm and Chimezie Nwokohu, Esq. informed me and I truly believe the said counsel that:--
(i) The 1st Respondent is a company incorporated on 3rd September 1991 to principally carry on the business of establishing, maintaining and operating shipping, air transport, and road transport services public and private and all ancillary services;
(ii) The 1st Respondent has a share capital of only ten thousand (10,000) divided into 10,000 share of N1.00 each;
(iii)The last annual returns made by the 1st Respondent to the Corporate Affairs Company's Balance sheet contained in its Audited Financial Statements filed along with the returns showed total assets (less current liabilities of N24,525,402.00) and a loan/liability of N177,624,155.00 leaving a negative net asset of (153,098,753.00).
26. The existence of the 1st Respondent as a going concern is in doubt in view of the non-filing of annual returns for 2004 to date and the recent decision of the CAC to de-register any company that fails to file Annual Returns as at when due.
27. If this application is not granted by this honourable court, the Federal Government would be losing expected revenue from OML 127 amounting to a projected sum of US$l0 million on a daily basis which would have been applied for the benefit of the common good of all Nigerians in the pendency of the Appellant/Applicant's appeal.
28. In the event that the Appellant/Applicant succeeds in its appeal before this honourable court there is no likelihood that it can recover any money made by the 1st Respondent from the 50% equity participation which the Court of Appeal directed the Appellant/Applicant to return to the 1st Respondent.
29. On the other hand if this honourable court grants this application, the Appellant/Applicant has enormous financial obligation(s) that may arise vis-a-vis the 50% equity participation in OML 127 in the unlikely event that it loses its appeal at the Supreme Court.
30. In addition to the sub-paragraph(s) above, the Appellant/Applicant has an annual revenue well in excess of the revenues receivable from OML 127 with substantial deposits in Nigerian Commercial Banks and reserve.
31. The Grounds of Appeal contained in the Notice of Appeal referred to in paragraph 16 above raise issues which are substantial and recondite."
In essence, the purport of the above depositions are that the 1st respondent is weak in terms of finances and would not have the wherewithal to pay whatever profit it would have derived within the period between now and the delivery of the judgment of this court in the event of the success of this appeal. That the 1st respondent is not buoyant enough to pay whatever accrues to him does not automatically translate to the fact that the 1st respondent should be deprived of the fruits of its judgment. I hold this view, because of the counter-affidavit of the 1st respondent, the depositions of which read as follows:--
"12.1 With reference to paragraph 25 and 26 of the Appellant/Applicant's Affidavit, the First Respondent states that it has filed its Annual Returns, (Form CAC 10) at the Corporate Affairs Commission for the periods 2004, 2005 and 2006. Copies of the said Forms CAC 10 as stated above together with the receipt of payment of all of which are hereto attached and marked "Exhibits J 061, J 062, J 063 and J 064 respectively.
12.2 With the filing of the above, the respective interest of both the First Respondent and the Appellant/Applicant in OML 127 is not in any way jeopardized but very well secured.
13.1 Contrary to the assertion of the Appellant/Applicant in Paragraph 30 of its affidavit the First Respondent states that the Appellant/Applicant is a near bankrupt organization as admitted by its Group Managing Director Alhaji Abubakar LawaI Yar'adua in a publication contained in the "THE GUARDIAN" Newspaper of Wednesday March 26th, 2008. Extract of the said publication reads as follows: "NNPC is living on credit and if not for the credit facility, we have up to 90 days within which to pay for the product, it would have been extremely difficult. That is what we live on."
13.2 I very believe that it will not be in the interest of justice to allow a near bankrupt organization to deprive a successful litigant with no debt burden but with adequate resources to compensate the Appellant/Applicant with Profit Oil on the unlikely event of its success at the Appeal, the fruit of its success.
13.3 A Certified True Copy of the extract of the publication of ?"THE GUARDIAN" Newspaper dated the 26th day of March, 2008 on pages 1 and 2 of its volume 25 No.10. 682 is hereto attached and marked "Exhibit J 07!" and also that of the 'VANGUARD Newspaper marked Friday the 4th day of April, 2008 on page 6 of its Vol. 24. No 60557. Extract of which reads as follows: "Nl7bn NNPC debt. Copy is also hereto attached and marked 'EXHIBIT J 07B".
14.1 With reference to Paragraph 31 of the Affidavit of the Appellant/Applicant. I verily believe that there is nothing novel, obtruse, or little known in the matter before the Honourable court as to make it recondite and the Appeal is not arguable."
It is manifestly clear that the depositions in the applicant's affidavit reproduced supra, have been attacked by the 1st respondent, and the effect, to my mind is that it balances the equation. In other words, if the 1st respondent is financially weak, then the applicant is equally financially weak, as is manifested in the publications. So the question is, who is in a better position to enjoy and maintain the status quo? The 1st respondent I would say, because it has the advantage of the valid judgment in its favour, and the trite law is that a successful litigant must not ordinarily be deprived of the fruit of its judgment. See Deduwa v. Okorodudu 1974 6 SC. page 21, Shodeinde v. Registered Trustees of the Ahmadiya Movement in Islam 1980 1-2 SC. 163, and Okunloye v. Adeniran part 734 page 699.
As for the principle of the special or exceptional circumstances required by the law, I am not satisfied that the depositions in the supporting affidavit which I have reproduced above are convincing enough to establish the governing principle of law. They have not disclosed good reasons to warrant the exercise of the court's discretion in favour of the applicant. See Okafor v. Nnaife 1987 4 NWLR part 64 page 129, and S.T.B. Ltd. v. Contract Resources (Nig.) Ltd. 2001 11 NWLR part 725 page 518.
In the instant case it is my firm belief that the application of the appellant/applicant is bereft of the requirement of special or exceptional circumstances, and so the application is devoid of merit. Again, the law enjoins this court to exercise its discretion in an application of this nature judicially and judiciously, and not in accordance with its whims and caprices, to wit it must consider the overall position and circumstances of the case i.e. the effect a grant or otherwise of such application may have on the outcome of the appeal. See the cases of Vaswani Trading & Co. v. Savalak & Co 1972 12 SC. 77, and Josiah Cornelius Ltd v. Ezenwa 2000 8 NWLR part 670 page 616. This court in dealing with this application is exercising its discretion judicially and judiciously. Finally, I fail to see that the grounds of appeal are recondite to warrant the grant of the application for stay of execution.
I have had the opportunity of reading in draft form the lead ruling delivered by my learned brother, Fabiyi, JSC. I am in full agreement with the reasoning and conclusion reached in the ruling. I also dismiss the application for it lacks merit. I abide by the order of costs made in the lead ruling.
A.M.MUKHTAR
JUSTICE, SUPREME COURT
Mrs. Olabisi Soboyejo SAN, with her Femi Adegboye and Kemi Balogun for the appellant/applicant.
Mr. B. A. M. Fashanu SAN., with him O. Adeojo for the 1st Respondent.
Mrs. A. O. Mbamalu DCL Fed. MOJ, with her Chinede Achunire S.S.C., with I. K. Okore S.S.C. for the 2nd respondent.
JUDGMENT
(Delivered by P.O. Aderemi, JSC)
By the application dated 10th September 2008 but filed on 17th September 2008, the appellant/applicant is praying for this court for the grant of an order staying the execution of the judgment of the Court of Appeal [ Abuja Division] delivered on the 10th of December 2007 in Appeal No. CA/A/173/2006: Famfa Oil Ltd. V. Hon. Attorney General of the Federation & Anor pending the determination of the appeal lodged against that judgment in this court. The Court Appeal, Abuja Division (hereinafter referred to as the court below) had entered the said judgment of 10th December 2007 after taking arguments of counsel for both parties in respect of the appeal lodged against the decision of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/275/2000 where the 1st respondent as the plaintiff before that court of first instance sought for two reliefs against the respondents as follows:-
(1) A declaration that the purported acquisition by the Federal Government of 40% out of the
Famfa's 60% interest in the claimants' Oil Producing Licence (OPL 216) is illegal, unconstitutional and void and of no legal consequence whatsoever and as such, is not capable of divesting from Famfa the said 40% of its participating interest in OPL 216 or any interest whatsoever thereon and cannot confer any right or interest therein in the Nigerian National Petroleum Corporation.
(2) An order of perpetual injunction restraining the Nigerian National Petroleum Corporation from claiming or exercising any right in or over the present interest of the claimant in the said OPL 216 or any portion thereof.
Suffice it to say that the court of first instance granted the two reliefs. Between January and April 2005, the 1st respondent again received two letters from the Department of Petroleum Resources notifying him of acquisition of 5/6 and 50% of the interest in 1st respondent's OML 127: No reasons for the acquisition were forwarded to the 1st respondent. After the notice of acquisition the 2nd defendant (NNPC) immediately started carrying out exploration and production activities on the block through the Technical Partners of the 1st respondent without any negotiation with the 1st respondent. In its reaction to this act, the 1st respondent as plaintiff by way of Originating Summons sought the following reliefs:-
(1) A declaration that the President, Vice-President or Officers in the Public Service of the
Federation CANNOT grant any Oil Prospecting License (OPL) or any Oil Mining Lease (OML) or any Interest whatsoever in respect of any "minerals, mineral oils and natural gas in, under or upon the territorial waters and Exclusive Economic Zone of Nigeria" to any person or persons except under and in accordance with the provisions of the Petroleum Act CAP 10 of the Laws of the Federal Republic of Nigeria, more especially Section 2 (1) (a) (b) and (c) as well as Section 2 (3).
(2) A declaration that by virtue of paragraph 8 of the First Schedule to the Petroleum Act, the first Respondent cannot grant an Oil Lease to any other person or persons EXCEPT the HOLDER OF AN OIL PROSPECTING LICENSE.
(3) A declaration that the President, Vice-President or Officers in the Public Service of the Federation CANNOT acquire any interest in an Oil Prospecting Licence (OPL) or Oil Mining Licence (OML) except under and in accordance with the provisions of:-
(a) Paragraph 35 of the First Schedule to the Petroleum Act.
(b) Section 44 (1) of the Constitution of the Federal Republic of Nigeria.
(4) A declaration that the purported acquisition, interest or any interest whatsoever in OML 127 in as much as it was done in compliance with the provisions of the law stated above is illegal, unconstitutional, null and void and cannot confer any interest whatsoever in OML 127 in the second respondent (that is due process of the law must be followed).
(5) A perpetual injunction restraining the second respondent, its assigns, servants, privies, subsidiaries, whomsoever, howsoever, whensoever from exercising any right in the said OML 127 or any part or portion thereof.
The trial judge dismissed the reliefs sought by the plaintiff/lst respondent after a full trial. An appeal against the decision of the trial court was lodged with the court below (Court of Appeal) which, after taking full arguments from counsel in a reserved judgment delivered on the 10th of December 2007, allowed the appeal and made necessary consequential orders in favour of the successful plaintiff/appellant.
Being dissatisfied with the said judgment, the present appellant who was the second respondent before the court below, has since appealed to this court and brought a similar application on the 20th of February 2008 praying for a stay of execution before the court below. The said similar application filed before the court below on the 20th of February 2008 could not be heard by the court below for the reason that the Record of Appeal had been entered in the Registry of this court.
When this application came before us for argument on the 23rd of March 2009, Mrs. Soyebo, learned senior counsel for the appellant/applicant (NNPC) in moving the application filed on 17th September 2008 praying for an order staying the execution of the judgment delivered on 10th December 2007 by the court below, relied mainly on the 37-paragraph affidavit together with the 18 annextures and a44-paragraph further affidavit filed on 19th of February 2009.She submitted that special circumstances have been shown through the aforesaid depositions - by paragraphs 4-36 of the affidavit and paragraphs 5-43 of the further affidavit. Arguing further, she submitted that the depositions have not been contradicted or controverted by the 1st respondent; adding that the 1st respondent has not made any investment in the oil block business and that the share capital of the 1st respondent/company is only N10,000.00. She again submitted, while referring to paragraph 32 of the further affidavit, that the reason for the grant of the concession by the Government is to encourage indigenous participation in oil industry and that this was further expatiated upon by the 1st respondent through paragraph 7.1 of its counter-affidavit filed on 13th October 2008. The depositions of the 1st respondent in its counter-affidavit were responded to by the appellant/applicant in paragraphs 8 - 10 of the further affidavit. On the principles guiding the consideration of this type of application, she referred to the decisions in (1) VASWANI V. SAVALAKH (1972) ALL NLR 922 at 926 and (2) MARTINS V. INCARNAR FOODS (1985) 1 NSCC Vol. 19 at page 613. While finally submitting that Exhibit J04 - a document captioned "Expectation of Secondes", the learned senior counsel urged that the application be granted.
Mr. Fashanu, learned senior counsel for the 1st respondent while relying on the paragraphs of the counter-affidavit of the 1st respondent-particularly paragraphs 3.2,7.1,8.3 and 9.1,he submitted that no special circumstances have been shown by the appellant/applicant on its depositions as to warrant the grant of this application notwithstanding that it is a government parastatal, he called in aid of this submission, the decision in (1) AIRY V. A-G GRENADA (2002) AC Vol.1 167 at 180-181. It was his submission on the issue of preservation of the RES that the RES is a depleting asset which is capable of disintegrating. On the submission that the share capital of the 1st respondent is only N10,000.00, learned counsel referred to paragraph 8.4 of the counter-affidavit-that Profit Oil was never expressed in terms of money and therefore no determinable amount was due to any of the partners, adding that the formula for sharing profit oil between the parties is as contained in Exhibit J02 attached to the counter-affidavit. He finally urged us to dismiss the application.
Mrs. Mbamali, learned counsel for the 2nd respondent aligned herself with the submissions of Mrs. Soyebo, learned senior counsel representing the appellant/applicant and further submitted that the status quo was what was before the judgment
of the court below and that, according to her, should be preserved; she called in aid the decisions in SARAKI V. KOTOYE (1990) 4 NWLR (pt.143) 411 and GLOBE FISHING LTD. V. COKER (1990) 7 NWLR (pt.162) 165; she finally urged that the application be granted.
Mrs. Soyebo, on points of law only, submitted that the status quo is as contained in paragraph 12 of the supporting affidavit.
I shall start the consideration of this ruling by first saying, on decided judicial authorities, the granting of a stay of execution is a matter of discretion for the court and any action or conduct calculated to stifle the exercise of such discretion must not be entertained by a court of justice. But that discretion being judicial in nature must at all times be exercised not only judicially but judiciously on sufficient materials. It then follows that in order to obtain an order staying execution of judgment against a successful party, an applicant must show substantial reasons to warrant the deprivation of the successful party of the point of his judgment by the court. I go further to say that an order for stay will be granted where, from the nature of the case, justice demands that the status quo be maintained until a final determination of the appeal. See CONSTRUZIONI GENERALI FARSURA COGEFAR - S.P.A. V. NIGERIAN PORTS
AUTHORITY & ANOR (1972) 12 SC. 107. Of course, when an appeal raises a substantial issue as to jurisdiction an order of stay of execution will be granted. See (1) MARTINS V. NICANNER FOODS (1988) 2 NWLR (pt.74) 75 and (2) ADEFULU V. OKULAJA (1993) 2 NWLR (pt. 274) 227.
Having set out the principles that must regulate the grant or refusal of an application of this nature, I shall now examine the materials placed before us by the parties. The applicant had deposed that the 1st respondent is a personality of straw in that its share capital is just N10,000.00. Should the judgment of this court go against it, it would not be able to pay any judgment debt standing against it. The applicant would like to continue to take 50% in the operation of OML 127. I must continue to bear in mind that the judgment of the court below was and still remains in favour of the 1st respondent. Also, were the applicant very vigilant, it would have known that the share capital of the 1st respondent was only N10,000.00 from the time the transaction was negotiated. And if it considered the issue of share capital very vital to entering into agreement with the 1st respondent, it would have at that state put an end to the transaction thus freeing itself from any monetary or financial calamity should the business go bad. After all, eternal vigilance is said to be the price of freedom. That, the applicant failed to do. In paragraphs 19 and 20 of the affidavit, the applicant had deposed that the 1st respondent never made any monetary investment in the Oil Block covered by OML 127 and that all investments made up to date were by STAR DEEP and PETROBRAS - these depositions were not challenged or contradicted by the 1st respondent. But in its paragraph 7.1 of its counter-affidavit, the 1st respondent deposed that no known Nigerian company or any company world-wide over undertakes such a highly capital intensive project by itself; rather the usual practice is for such company to enter into financial arrangements with multinationals who themselves make a practice of sharing the risk among themselves; it went further to say that the applicant, though a government parastatal, does not have such expertise or know-how or even the financial capability to solely undertake such a venture. This all-important deposition by the 1st respondent remains undisputed. What more, the 1st respondent in paragraph 8.4 of its counter-affidavit deposed that in accordance with the agreement between the parties PROFIT OIL is never expressed in terms of money but in terms of available crude oil and he exhibited the formula for sharing profit oil between the parties in the document marked Exhibit J02. I have read Exhibit J02 and I make bold to say that it represents a complete answer to the contention of the applicant on this point. All I wish to say is that the submissions of the learned senior counsel for the application on this point do not advance the case of her client. I have had a very careful reading of the grounds of appeal, though seemingly arguable, they are a far cry from touching on recondite points of law. Therefore, they cannot, on their own, persuade any court to grant this application. The contention of the learned senior counsel that the share capital of the 1st respondent is a mere N10,000.00 is absolutely inconsequential when considered alone with the deposition of the applicant in paragraph 32 of the further affidavit which is to the effect that the main reasons for the grant of the concession by the government is to encourage indigenous participation in oil industry. I will say no more on this point at this stage realising as I must do that the substantive appeal is yet to be heard.
I have had the privilege of reading in draft, the lead ruling of my learned brother, Fabiyi JSC. I agree, in toto, with his reason and conclusion that this application is unmeritorious. For the little contribution I have made above, but most especially for detailed reasoning contained in the ruling of my learned brother, Fabiyi JSC, I shall also dismiss this application. And I so do. I abide with all the consequential orders contained in the lead ruling including the order as to costs.
Hon. Justice P.O.Aderemi
Justice, Supreme Court
Mrs. Olabisi Soyebo, SAN for the appellant/applicant with her, Mr. Femi Adegboyega and Mr. Femi Balogun.
Mr. B.A.M. Fashanu, SAN for the 1st respondent with him, Mr.O. Adeojo.
Mrs. A.O. Mbamali, (Director of Civil Litigation, Federal Ministry of Justice, Abuja) for the 2nd Respondent with her, Mr. Chinedu Achimu (Senior State Counsel, Federal Ministry of Justice, Abuja).By the application dated 10th September 2008 but filed on 17th September 2008, the appellant/applicant is praying for this court for the grant of an order staying the execution of the judgment of the Court of Appeal [ Abuja Division] delivered on the 10th of December 2007 in Appeal No. CA/A/173/2006: Famfa Oil Ltd. V. Hon. Attorney General of the Federation & Anor pending the determination of the appeal lodged against that judgment in this court. The Court Appeal, Abuja Division (hereinafter referred to as the court below) had entered the said judgment of 10th December 2007 after taking arguments of counsel for both parties in respect of the appeal lodged against the decision of the Federal High Court, Abuja in Suit No.
FHC/ABJ/CS/275/2000 where the 1st respondent as the plaintiff before that court of first instance sought for two reliefs against the respondents as follows:-
(1) A declaration that the purported acquisition by the Federal Government of 40% out of the Famfa's 60% interest in the claimants' Oil Producing Licence (OPL 216) is illegal, unconstitutional and void and of no legal consequence whatsoever and as such, is not capable of divesting from Famfa the said 40% of its participating interest in OPL 216 or any interest whatsoever thereon and cannot confer any right or interest therein in the Nigerian National Petroleum Corporation.
(2) An order of perpetual injunction restraining the Nigerian National Petroleum Corporation from claiming or exercising any right in or over the present interest of the claimant in the said OPL 216 or any portion thereof.
Suffice it to say that the court of first instance granted the two reliefs. Between January and April 2005, the 1st respondent again received two letters from the Department of Petroleum Resources notifying him of acquisition of 5/6 and 50% of the interest in 1st respondent's OML 127: No reasons for the acquisition were forwarded to the 1st respondent. After the notice of acquisition the 2nd defendant (NNPC) immediately started carrying out exploration and production activities on the block through the Technical Partners of the 1st respondent without any negotion with the 1st respondent. In its reaction to this act, the 1st respondent as plaintiff by way of Originating Summons sought the following reliefs:-
(1) A declaration that the President, Vice-President or Officers in the Public Service of the Federation CANNOT grant any Oil Prospecting License (OPL) or any Oil Mining Lease (OML) or any Interest whatsoever in respect of any "minerals, mineral oils and natural gas in, under or upon the territorial waters and Exclusive Economic Zone of Nigeria" to any person or persons except under and in accordance with the provisions of the Petroleum Act CAP 10 of the Laws of the Federal Republic of Nigeria, more especially Section 2 (1) (a) (b) and (c) as well as Section 2 (3).
(2) A declaration that by virtue of paragraph 8 of the First Schedule to the Petroleum Act, the first Respondent cannot grant an Oil Lease to any other person or persons EXCEPT the HOLDER OF AN OIL PROSPECTING LICENSE.
(3) A declaration that the President, Vice-President or Officers in the Public Service of the Federation CANNOT acquire any interest in an Oil Prospecting Licence (OPL) or Oil Mining Licence (OML) except under and in accordance with the provisions of:-
(a) Paragraph 35 of the First Schedule to the Petroleum Act.
(b) Section 44 (1) of the Constitution of the Federal Republic of Nigeria.
(4) A declaration that the purported acquisition, interest or any interest whatsoever in OML 127 in as much as it was done in compliance with the provitions of the law stated above is illegal, unconstitutional, null and void and cannot confer any interest whatsoever in OML 127 in the second respondent (that is due process of the law must be followed).
(5) A perpetual injunction restraining the second respondent, its assigns, servants, privies, subsidiaries, whomsoever, howsoever, whensoever from exercising any right in the said OML 127 or any part or portion thereof.
The trial judge dismissed the reliefs sought by the plaintiff/lst respondent after a full trial. An appeal against the decision of the trial court was lodged with the court below (Court of Appeal) which, after taking full arguments from counsel in a reserved judgment delivered on the 10th of December 2007, allowed the appeal and made necessary consequential orders in favour of the successful plaintiff/appellant.
Being dissatisfied with the said judgment, the present appellant who was the second respondent before the court below, has since appealed to this court and brought a similar application on the 20th of February 2008 praying for a stay of execution before the court below. The said similar application filed before the court below on the 20th of February 2008 could not be heard by the court below for the reason that the Record of Appeal had been entered in the Registry of this court.
When this application came before us for argument on the 23rd of March 2009, Mrs. Soyebo, learned senior counsel for the appellant/applicant (NNPC) in moving the application filed on 17th September 2008 praying for an order staying the execution of the judgment delivered on 10th December 2007 by the court below, relied mainly on the 37-paragraph affidavit together with the 18 annextures and a44-paragraph further affidavit filed on 19th of February 2009.She submitted that special circumstances have been shown through the aforesaid depositions - by paragraphs 4-36 of the affidavit and paragraphs 5-43 of the further affidavit. Arguing further, she submitted that the depositions have not been contradicted or controverted by the 1st respondent; adding that the 1st respondent has not made any investment in the oil block business and that the share capital of the 1st respondent/company is only N10,000.00. She again submitted, while referring to paragraph 32 of the further affidavit, that the reason for the grant of the concession by the Government is to encourage indigenous participation in oil industry and that this was further expatiated upon by the 1st respondent through paragraph 7.1 of its counter-affidavit filed on 13th October 2008. The depositions of the 1st respondent in its counter-affidavit were responded to by the appellant/applicant in paragraphs 8 - 10 of the further affidavit. On the principles guiding the consideration of this type of application, she referred to the decisions in (1) VASWANI V. SAVALAKH (1972) ALL NLR 922 at 926 and (2) MARTINS V. INCARNAR FOODS (1985) 1 NSCC Vol. 19 at page 613. While finally submitting that Exhibit J04 - a document captioned "Expectation of Secondes", the learned senior counsel urged that the application be granted.
Mr. Fashanu,learned senior counsel for the 1st respondant while relying on the paragraphs of the counter-affidavit of the 1st respondant-particularly paragraphs 3.2,7.1,8.3 and 9.1,he submitted that no special circumstances have been shown by the appellant/applicant on its depositions as to warrant the grant of this application notwithstanding that it is a government parastatal, he called in aid of this submission, the decision in (1) AIRY V. A-G GRENADA (2002) AC Vol.1 167 at 180-181. It was his submission on the issue of preservation of the RES that the RES is a depleting asset which is capable of disintegrating. On the submission that the share capital of the 1st respondent is only N10,000.00, learned counsel referred to paragraph 8.4 of the counter-affidavit-that Profit Oil was never expressed in terms of money and therefore no determinable amount was due to any of the partners, adding that the formula for sharing profit oil between the parties is as contained in Exhibit J02 attached to the counter-affidavit. He finally urged us to dismiss the application.
Mrs. Mbamali, learned counsel for the 2nd respondent aligned herself with the submissions of Mrs. Soyebo, learned senior counsel representing the appellant/applicant and further submitted that the status quo was what was before the judgment of the court below a