FORMS CAPITAL LTD VS WEBB BUILDERS LTD & ORS

This ruling is in respect of a Motion on Notice for an order for Stay of Execution filed by the Defendant/Judgment/Debtor/Applicant with a supporting 9-paged Affidavit dated 2nd March, 2023.

The mainstay of the application is that after Entry of Judgment was entered by the Plaintiff/Judgment/Creditor/Respondent in execution of the judgment obtained, several matters have occurred notably negotiations for rescheduling payment of the judgment debt and the payment of One Hundred Thousand Ghana Cedis (GHC 100,000.00) being a part of the judgment debt. The Applicant is therefore praying for an Order for Stay of Execution of the said Judgment delivered on 25th October, 2019.

On the other-hand, the Plaintiff/Judgment Creditor/Respondent is opposed to the instant application. In a 27-paragraphed Affidavit in Opposition dated 13th March, 2023 the Respondent averred that negotiations for rescheduling of the Judgment debt does not fall within the ambit of matters contemplated under Order 43 r 11. Further to that, the instant application is brought out of bad faith since the applicant has failed to retire the judgment debt since October 2019. The Respondent therefore prays the court to dismiss the application for Stay of Execution with punitive costs.

The issue to be determined by the court is whether there is/are any justifiable ground(s) which has occurred after the date of the judgment to warrant a stay of execution of the said judgment. I will now deal with the merits of the instant application.

It is trite that the grant of stay of execution is a discretionary power exercised by the court. In the case of an application for Stay of Execution pending Appeal, the court in exercising its discretion must take into consideration the competing rights of the parties and the applicable legal principles governing its grant or refusal. This position was highlighted in the case of NANA AKWASI AGYEMAN VIII v NANA HIMA DEKYI XIII (1982-83) GLR 453 as follows:

(a) If the court was satisfied upon any affidavit or facts proved of the conduct of the defeated party that he was bringing the appeal not bona fide to test the rightness of the judgment but for some collateral purpose the application should be refused;

(b) A court should not stay execution unless there were exceptional circumstances warranting a stay because it was well established that a successful litigant should not be deprived of the fruits of his victory;

(c) Where the court was satisfied that the appeal was f