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  • Philko Limited v. Wema Bank Plc
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  • 2012-07-02
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Philko Limited v. Wema Bank Plc

PHILKO LIMITED

MR. WALID KHORI

V

WEMA BANK PLC

COURT OF APPEAL

( KADUNA DIVISION )

MARY U. PETER-ODILI JCA ( Presided and Read the Lead Ruling )

THERESA N. ORJI-ABADUA JCA

JOSEPH TINE TUR JCA

CA/K/99M/2010

WEDNESDAY, 19 JANUARY 2011

COURT - Judicial powers of - How invoked

PRACTICE AND PROCEDURE - Academic questions or hypothetical questions - Attitude of courts thereto

PRACTICE AND PROCEDURE - Court - Judicial powers of - How invoked

PRACTICE AND PROCEDURE - Stay of execution - Court of Appeal Jurisdiction of to grant

PRACTICE AND PROCEDURE - Stay of execution - Purpose of - Principles therefor

Issue:

Whether having regard to the materials placed before the court by the applicants, they are entitled to the exercise of the court’s discretion in their favour to warrant the grant of order of stay of execution pending appeal.

Facts:

The 1st applicant was a current account customer of the respondent in its Kano branch, while the 2nd applicant is the Managing Director of the 1 st applicant and sole signatory to the account.

The 1st applicant was granted banking facilities in form of loans and overdrafts which were guaranteed by the 2nd applicant and secured by a property belonging to the 1st applicant’s sister company and situate at No. 185 , Club Road, Kano.

Following a series of demand of the respondent for settlement of the facilities, which demand the applicants failed to heed, the respondent instituted action against the applicants, wherein it sought to recover the sum of N30,631,646.76k (thirty million, six hundred and thirty-one thousand, six hundred and forty-six naira, seventy-six kobo) together with interest on the judgment sum at 21% from September 2008 till full liquidation of the entire judgment sum, solicitors fee and cost. The suit was placed under the undefended list and judgment entered for the respondent as claimed.

Dissatisfied, the applicants filed a notice of appeal against the judgment and filed an application for stay of execution of the judgment. The respondent filed an application before the lower court, praying for leave to dispose the property mortgaged to it as security for the banking facilities granted the applicants.

The trial court in its ruling refused the application for stay of execution, but granted the respondent leave to sell the property pledged as security.

Dissatisfied, the applicants filed an application before the Court of Appeal for stay of execution of the judgment of the lower court.