By: Isatou Sarr
Justice Sonia Akinbiyi of the Banjul High Court on Thursday delivered her ruling in the suit brought against the Standard Chartered Bank (SCB) by over 80 staff members of the bank for the protection of their employment interests.
In delivering her ruling, Justice Akinbiyi said: “This is an application praying this court for an order staying the alternative prayers made by the applicant in the interlocutory application which births this application for stay, wherein the Defendant/Respondent was ordered to pay the sum of D250,000,000 into an interest yielding account as security payment pending the determination of the substantive suit, in lieu of granting the interlocutory injunction sought (as granting the restraining orders sought same was found by this court to be capable of negatively impacting both parties to the interlocutory injunction).”
She pointed out that the guiding principles that should guide courts in application for a stay of execution have been reiterated in many decisions of the appellate courts.
“Basically, a Judgment/ Creditor is entitled to have benefits of the fruits of his judgment Hisham Mahmoud V. Karl Bakalovic (Civil App No. 53/99 of 5th August 2008. And so, a court should not grant a stay of execution unless there are special or strong circumstances and in some cases, inherent matters which may, unless the order of stay is granted, destroy the subject matter of the proceedings, or foist upon the court, especially, the Courts of Appeal, a situation of complete helplessness or render nugatory, the Order of the Court of Appeal or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case and in particular; even if the Appellant succeeds in the Court of Appeal, there could be no return to the status quo,” she pointed out. Madam Akinbiyi added: “See Vaswani Trading Co. V. Savalakh & Co, See Lang Conteh & Ors V. T.K. Motors CA/8/05 of 19th December 2005, when a judgment or order of a lower court is not manifestly illegal or wrong, it is right for the Court of Appeal to presume that the Order or Judgment appealed against is correct or rightly made until the contrary be proved or established. For the foregoing reason, the court will not make a practice of depriving a successful litigant the fruits of his success unless under very special circumstances as observed by Brown L.J. in The Annot Lyle (1986) 11 P.D at page 116. See also Nigerian National Petroleum Corperation V. Famfa Oil Limited & Anor (2009) LPERL – 2023 (SC) Per Fabiyi, JSC (pp12-12 Paras E-D), Intercontractors Nigeria Limited V. UAC of Nigeria Limited (1998) LPELR-1521 (SC) per Oputa, JSC.”
She stated that in “exercising the imbued discretion to grant or to refuse this Application for Stay, the affidavit in support of the application for stay as well as the grounds of Appeal must be diligently examined to determine if failure to grant the Application for Stay will render the appeal nugatory, and whether special and exceptional circumstances has been established to warrant the grant of the prayer for stay of execution”. “See Bai Matarr Drammeh & Anor V. Deborah Forstwe & Ors (Civil Appeal No. 1807) delivered on the 17th of April 2007. See also Hatib Janneh V. Corendon International Travel GCA 056/2020,” she referenced.
She recalled that the “learned counsel for the appellant canvassed that there are substantial grounds of appeal to be tried on appeal”.
“Counsel noted further that there is nothing in the supporting affidavit to the interlocutory application to support the security sum of the D250,000,000, nor was the issue evaluated in the ruling save for it being claimed as an alternative relief. Counsel invited the court to look at the summons and the Statement of Claim noting that if the sum claimed is added to the thirty five million for breach of contract, the total sum will come to D140,000,000, consequently making the grant of D250,000,000 outside the jurisdiction of this Court, which constitute a substantial issue to try on appeal,” stated Justice Akinbiyi.
“Learned Counsel submitted strongly that the shareholders of the Defendant/Respondent increased its shareholdings and capitalization from GMD300,000,000 on 31st of December, and a security deposit of GMD 250,000,000 is not only overreaching the Respondent but will have a significant and negative impact on the Applicant’s business and financial transaction coupled with the fact that the plaintiff failed to disclose that they have been paid provident funds (see paragraph 7,9,10, and 12) of the affidavit in reply, all raises substantial issues that may prejudice the appeal if this application is not stayed, moreover that the ruling at page 21 failed to give an undertaking to damages in the event where the order granting the alternative prayer to make security payment is found to be wrongful.”
According to her, the counsel concluded by positing the defendant/ applicant is not vanishing from the jurisdiction, and also that the affidavit in opposition is invalid and that Order 43 Rule 18 has been complied with and referred to the case of Hatib Janneh V. Correndon International Travel Civil Appeal No. 26 of 2022 in finally urging the court to grant the prayer for stay.
“Learned counsel for the Plaintiff/Respondent, E. Sanneh Esq submitted that provision for Stay of Execution is embedded under Order 43 Rule 18(2) of the High Court Rules 2013, and that in the Court of Appeal case of Bai Matarr Drammeh & Ors V. Deborrah Anna Forster & Ors (Civil Appeal No. 1807), the Court of Appeal laid down two essential guidelines to wit- that there must be an arguable appeal and that there must be special and exceptional circumstances that is capable of defeating the appeal, if the appeal succeeds, noting that the security deposit is ordered to be and placed in the control of the Sheriff of The Gambia and not in control of the Plaintiff/Respondent to this application for stay, such that appeal of the Defendant/Applicant can never be rendered nugatory if they succeed on appeal, as the security deposit is in safe custody and safe keeping and liable to avail the victor when the suit is determined. He noted, also that lack of finance or money does not amount to a special circumstance for the court to consider in granting or refusing an order for stay as the Defendant/Applicant is a financial institution,” Justice Sonia Akinbiyi further stated.
“Counsel posit that the ruling of the 16th April 2025 was aimed at protecting the 82 Plaintiffs/Applicants, he submitted that the Applicant have not established Special Circumstances to justify the stay sought.”
She went on to state that the counsel submitted that where the provident funds is added to the sum claimed and also taking into consideration other reliefs claimed as well, and the facts that the case is ongoing, then the sum of D250,000,000 is apposite, and the court as a matter of law was entitled to order an amount that flow naturally and holistically from the relief.
“Learned counsel concluded that the assertion and contention that there were no undertaking made as to damages is overtaken as the security payment enures for the victor either way. He noted, and that Order 12 Rule 4 justified the grant of the security payment to be put in safe keeping with the Sheriff of the Gambia,” she added.
“Where the present capitalization of the Defendant/Applicant’s Bank is D300,000,000 as canvassed by learned counsel, and the security deposit payment is GMD 250,000,000 which is not rebutted by counsel to the Plaintiff/Respondent, substantial issues are automatically raised, (which issues of capitalization in the sum of GMD300,000,000 was not raised by the applicant for stay at the argument of the interlocutory application) even in the face of the alternative relief claimed by counsel to the Applicant.”
Justice Sonia said that where the position by counsel on capitalization is believed, then unless the order for stay is granted, a situation of complete helplessness capable of rendering the appeal nugatory arises. “However, the foregoing evaluation must be juxtaposed with the resultant consequences of a stay of execution of the security deposit which is in effect removing in its entirety the protective covering of the Respondent to this application for stay, which protective covering of the 82 Applicants/ Respondents as well as the Defendant/Applicant is the Deposit payment to be kept in the custody of the Sheriff of The Gambia and for safe keeping.”
“From the foregoing if the Ruling delivered on the 16th of April 2025 is to be stayed, then it will have to be on condition, see Order 43 Rule 18(2) to prevent any exposure of any of the parties in the circumstances. It is not in contention that the sum claimed in the substantive claim and sum claimed in breach totals D140,000,000 as diligently summed up by learned counsel to the Applicant for stay, Ida Drammeh Esq. and not rebutted by counsel to the Plaintiff/Respondent, E Sanneh Esq.”
Justice Sonia acknowledged that this notice of appeal raises arguable issues to be tried on appeal. She stated that the refusal of a stay of execution in the circumstances will render any success of the appeal nugatory, “and taking into consideration that the imminent and subsisting threats to the employment of the 82 Applicants is actual and raises several labour related issues of employer/employee, as the employees and contract staff are left in the hands of another bank via the merger, also issue of whether they want to be absorbed or not with the new employer etc are raised”.
“This stay cannot be granted without conditions as to do so will be an exercise of discretionary powers bereft of judicial and judicious considerations. See Mr. Mike Momah V. Vab Petrolium Inc (2000(LPELR 1905 (SC) per Uwais, JSC (p 20) (paras E-G) see Order 43 Rule 18(2) where an application for stay of execution is granted, the judgment debtor can be ordered to deposit in court the judgment debt pending the determination of the Appeal. Or apply other conditions deemed just in the circumstances,” she highlighted.
In the light of the fact that the judgment debt is well above the equity paid up capital of the applicant, she stated, the applicant will suffer a corporate death if the court insist on payment of the judgement debt, pending appeal.
Justice Akinbiyi concluded: “It is no doubt settled law that a court will vary the conditions. If the conditions are shown to be onerous, oppressive, unwarranted, unreasonable and/or punitive, the applicant would have established compelling exceptional circumstances” see Muteh (No1) V. Danso (No.1) 1997-2001 GR 215. Consequently, the condition to be ordered for the grant of this stay will be tailored along the undisputed computation of learned counsel to the Applicant for stay. The Application for Stay of execution succeeds subject to the Defendant/ Respondent depositing the sum of GMD 140,000,000 or its equivalent in treasury bills into an interest yielding account controlled and under the supervision of the Sheriff of The Gambia pending the determination of the substantive suit.”
