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  • SFLK (Nig) Ltd v. Intercontinental Bank Ltd
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  • 2004-05-10
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SFLK (Nig) Ltd v. Intercontinental Bank Ltd

SFLK NIGERIA LIMITED

FEMI IBRAHIM

( For himself and On behalf of the Estate of Late Mr. Mufutau Olaitan)

V

INTERCONTINENTAL BANK LTD COURT OF APPEAL

( IBADAN DIVISION )

SAKA ADEYEMI IBIYEYE, JCA ( Presided and Read the Lead Ruling )

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

OLUFUNLOLA OYELOLA ADEKEYE, JCA

CA/1/M.22/03

THURSDAY, 10TH JULY, 2003

APPEAL - Stay of execution - Filing of appeal - Whether constitutes a right to stay of execution

APPEAL - Stay of execution pending determination of appeal - What courts must take into consideration before granting or refusing same

BANKING LAW - Banking facilities - Deposit of title deeds for - Effect

COURT - Contempt of court - Party in contempt of court order - Whether can enjoy the exercise of court discretion in his favour

COURT - Discretion of to grant stay of execution - How exercised

COURT - Need for to take caution while ruling on interlocutory application COURT - Power of to preserve the res in their custody

COURT - What must take into consideration before granting or refusing stay of execution pending the determination of appeal

COURT - Whether can deprive successful litigant the fruits of his success

JUDGMENT AND ORDERS - Order of stay - Where granted when applicant is in default of court order - Effect

JURISDICTION - Effect of service of court process on jurisdiction of court

JURISDICTION - Issue of - Whether amounts to special circumstances that will justify a stay of execution

PRACTICE AND PROCEDURE - Contempt of court - Party in contempt of court order - Whether can enjoy the exercise of court discretion in his favour

PRACTICE AND PROCEDURE - Court process - Failure to serve same Effect

PRACTICE AND PROCEDURE - Court process - Service of - Essence of Mode of - Effect of on jurisdiction of court

PRACTICE AND PROCEDURE - Interlocutory application - Need for court to take caution while ruling thereon

PRACTICE AND PROCEDURE - Litigant - Whether court can deprive successful litigant the fruits of his success

PRACTICE AND PROCEDURE - Stay of execution - Application for Discretionary jurisdiction of court over same - How exercised

PRACTICE AND PROCEDURE - Stay of execution - Court’s discretion to grant - How exercised

PRACTICE AND PROCEDURE - Stay of execution - Filing of appeal Whether constitutes a right to stay of execution

PRACTICE AND PROCEDURE - Stay of execution - Order of - Where granted when applicant is in default of court order - Effect

PRACTICE AND PROCEDURE - Stay of execution - Order therefor - Duty not to use same to deprive successful party fruits of the judgment PRACTICE AND PROCEDURE - Stay of execution - Special circumstance that will justify grant of - Whether issue of jurisdiction amounts thereto

Issue:

Whether the Court of Appeal can grant application for stay of execution of the Order of the trial court made on 11th of June, 2002 for attachment and sale of the property at plot 64 Lahan Binuyo Odande family layout and Felele Layout Ibadan when the applicants are in default of the trial court’s order made on 11th March 2002 for installment payment of the debt due to the respondent.

Facts:

The appellants/applicants herein brought this application for an order of stay of execution of the order of the trial court made on 11th of June 2002  for the attachment and sale of the property at plot 64 Lahan Binuyo Odande family layout, Felele Layout, Ibadan pending the hearing of the appeal filed against the ruling.

The events before this application were that the 1st appellant/applicant

SFLK (Nig.) Ltd. applied for credit facility from the respondent

Intercontinental Bank Plc. The credit facility for a sum of one million Naira was granted on the personal guarantee of the 2nd appellant/applicant and one Mufutau Olaitan now deceased. The property now res in this application served as collateral for procuring the loans. In a move to secure repayment of the loan, the appellant submitted to judgment and the trial court in its ruling made on 11th March 2002 granted them an order to settle the outstanding debt by instalment, and held that in the event of any default in payment of an instalment, whatever is outstanding shall be recoverable at once by the respondent. After payment of some instalments, the applicants failed to comply with the terms of the order for instalment payment. The respondent thereafter filed an application to attach the property in this application. The trial court gave an order to this effect on the 11th of June 2002.

The appellants/applicants have now applied to the Court of Appeal for an order staying the said order. It was 1st applicant’s contention that only the 1st appellant/applicant submitted to the judgment in respect of the outstanding credit facility and that the property, plot 64 Lahan Binuyo Odande family layout at Felele Ibadan, belongs to the 2nd appellant/ applicant; it is not jointly owned by the 1st appellant/applicant. And that the motion on notice for attachment of movable property dated 14th of May 2002 was not served on the 1st appellant/applicant’s counsel and that the 2nd appellant/applicant was only served with an undated copy of the motion. The Court of Appeal took arguments of counsel.