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March 27, 2023
HIGH COURT
GHANA
CORAM
MOTION ON NOTICE FOR STAY OF EXECUTION PENDING APPEAL
The instant application is a Motion on Notice for Stay of Execution Pending Appeal which was filed on 3rd February, 2023.
I have read through the Motion Paper, affidavit in support and attached Exhibits. I have also read through the Affidavit in Opposition.
Careful consideration has been given to the various written submissions of both Counsel in support of and in opposition to the instant application.
The main grounds of appeal as indicated in the Notice of Appeal are that the Trial Judge erred by relying heavily on Exhibits ‘B’ and ‘C’ when the said Exhibits contains so many inconsistencies as well as the Court’s failure to properly appreciate and apply Sections 4(1) and 19 (1) of NRCD 54 which in essence determined whether or not the suit was statute barred.
That for these reasons the appeal has a high chance of success and if execution of the Judgment of this Court is not stayed and the determination of the appeal turns out to be favourable to Defendant Applicant, it will be rendered nugatory.
The main ground in opposing the instant application is that Defendant Applicant failed to establish any exceptional circumstances in the instant application to merit a grant.
That this is especially so when Applicant has failed to demonstrate that the appeal is likely to succeed. That in the unlikely event that the appeal is successful, Respondent being a going concern will be capable of refunding the Judgment Debt.
THE LAW GOVERNING THE INSTANT APPLICATION
In the case of NDK Financial Services Ltd v Yiadom Construction & Electrical Works & Others [2007-2008] SCGLR 93 at 96-99, the Court listed the general principles in granting or refusing such applications as follows:
1. Whether the appeal is frivolous because the grounds of appeal contain no merits.
2. Which of the Parties would suffer greater hardship if the application for stay is granted or refused.
3. Whether the appeal would be rendered nugatory if it succeeds.
In considering applications for Stay of Execution pending Appeal, the merits of the appeal are usually not discussed in detail but where on the face of the Judgment and from the Affidavits filed; the appeal would fail, the Motion is usually refused. See the cases of The Managing Director of Sadisco Hotel v Marmon [1984-86] 1 GLR 333.
In the application before this Court, there is the need to consider whether the appeal has a high likelihood of success.
From a careful study
AI Generated Summary
Justice Afi Agbanu Kudomor of the High Court of Ghana decided a motion for stay of execution pending appeal filed on 3 February 2023, arising from a judgment delivered on 21 December 2022 in a long-running dispute over the unpaid price of a vehicle originally transacted in 2012. The Defendant Applicant argued that the trial judge erred by heavily relying on Exhibits B and C and by misapplying Sections 4(1) and 19(1) of NRCD 54, and that execution would render its appeal nugatory. The Respondent opposed the motion, contending that there were no exceptional circumstances and that, as a going concern, it could refund any sums if the appeal succeeded. Applying established principles, including those in NDK Financial Services v Yiadom Construction and other authorities, the Court held there was no likelihood of success, no risk of nugatory appeal, and that hardship favored the Respondent; it therefore dismissed the motion and awarded costs of GH2,000 against the Applicant.