This ruling is in respect of an Application for Stay of Execution pending Appeal filed by the Defendant/Applicant dated 4th November, 2022 with a supporting 16 paged Affidavit.
The mainstay of the application is that the Defendant/Applicant dissatisfied with the judgment of the court dated 7th September, 2021 has filed a Notice of Appeal dated 26th November, 2021 on the grounds that the appeal raises serious and fundamental points of law to be considered by the Appellate Court.
On the other hand, the Plaintiff/Respondent filed a 11 paged Affidavit in Opposition dated 11th November, 2022 urging the court to dismiss same on the grounds that the instant application is unmeritorious, frivolous and an abuse of the court’s processes which should not be entertained and granted by the court. That the case has been pending since 2001 with judgment delivered after 20 years of litigation in 2021 and that all fundamental and serious legal issues for determination were exhaustively dealt with in the said judgment.
BY COURT
The grant of stay of execution is a discretionary power exercised by the court. In exercising its discretion, the court must take into consideration the competing rights of the parties in line with the applicable legal principles governing the grant or refusal of an application for stay of execution pending appeal as highlighted in the case of NANA KWASI 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 frivolous because the grounds of appeal contained no merit and therefore there was no chance of its succeeding it should refuse an application for a stay. [TOMEKPE v. AHIABLE, Court of Appeal, 27 January 1970, unreported; digested in (1970) C.C. 44 and LEVANDOWSKY v. ATTORNEY-GENERAL (No. 2) [1971] 1 G.L.R. 49, C.A. cited;]
(d) Whether the grant or refusal of the application would work greater hardship on either party; and
(e) That the appeal if successful was not rendered nugatory.
See also BAIDEN v ANSAH (1973
