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July 17, 2019
HIGH COURT
GHANA
CORAM
Counsel for the Defendant/Judgment Debtor/Applicant (Applicant) has moved the Court for an Order for Stay of Execution of the Judgment of the Court dated 30th April 2019, pending appeal.
The grounds for this application are encapsulated in a 16-paragraped affidavit in support which I have read.
The Applicant also annexed a notice of appeal, filed on 18th June 2019, which indicates that the judgment of this Court is against the weight of the evidence, and that if execution is not stayed, it would be difficult to retrieve any substantial amount paid out to the Plaintiff/Judgment Creditor/Respondent (Respondent), which is a medium sized Company.
It is the case of the Applicant that the Respondent will not suffer any hardship or inconvenience if this application is granted.
In opposing the application, Counsel for the Respondent relied on the affidavit filed on 16th July 2019. It was deposed in the said affidavit that the Applicant has not demonstrated any special circumstances that will warrant the grant of this application.
It was further deposed that the Respondent will be denied the fruits of the judgment delivered in its favour if this application is granted.
In the case of Nana Kwasi Agyeman VIII v. Nana Hima Dekyi XIII (1982-83) GLR 453, the Court laid down the guiding principles in considering an application for stay of execution as follows:
1. If the Court is 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;
2. 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 derived of the fruits of his victory;
3. Where the Court is satisfied that the appeal was frivolous because the grounds of appeal contained no merit and therefore there was no chance of it succeeding, it should refuse an application for stay;
4. Whether the grant or refusal of the application would work greater hardship on either party; and
5. That the appeal, if successful, would not be rendered nugatory.
In determining an application of this nature, it is not the duty of the trial judge to assess the possibility of the appeal succeeding, as was held in the case of Asumadu-Sakyi II v. Owusu& Ors (1979) GLR 423, HC.
I however agree with the submission by Counsel for the Respondent
AI Generated Summary
Justice Angelina Mensah-Homiah of the High Court considered an application by the Defendant/Judgment Debtor (the Applicant) for a stay of execution of a judgment dated 30 April 2019, pending appeal. The Applicant filed a 16-paragraph supporting affidavit and annexed a notice of appeal on 18 June 2019, asserting the judgment was against the weight of the evidence and that, absent a stay, recovering payments from the Plaintiff/Judgment Creditor (the Respondent), a medium-sized company, would be difficult. The Respondent opposed, contending the Applicant had shown no special circumstances and that a stay would deny it the fruits of judgment. Applying the principles in Nana Kwasi Agyeman VIII v. Nana Hima Dekyi XIII and related authorities, and emphasizing the Court’s duty to avoid nugatory appeals while balancing hardships, the judge found the appeal bona fide and an arguable case shown. The Court granted a conditional stay: payment of 40% of the judgment debt into court within 14 days, with the funds invested pending appeal.