Practice and
procedure –
Execution – Stay
pending appeal –
Appellant applying for stay of
execution in trial court –
Appellant accepting order for
stay in court below on condition
imposed by court –
Appellant not entitled to repeat
application in appeal court
–
Whether appeal court may
nevertheless make orders on
repeat application before it.
Practice and
procedure
– Execution
– Stay pending appeal
– Conditional stay –
Court may stay execution for
limited period pending
completion of record of appeal
–
Failing completion of record
within period, judgment creditor
to proceed into execution.
By its judgment, the trial court
ordered the appellant to vacate
her shop by the specified date.
She appealed and applied to the
trial court to stay execution of
the order, which the trial court
granted for a limited period in
expectation that the record of
appeal would have been
completed. The appellant applied
to the court below for extension
of the stay order on the ground
that despite efforts on her part
the record could not be
completed on time. The court
declined the application and the
appellant applied to the Court
of Appeal for stay of execution
of the order to vacate the shop.
The respondent’s counsel
submitted at the hearing of the
application that since the
applicant had accepted the
initial grant of stay of
execution in the trial court,
she was not entitled to apply to
the Court of Appeal.
Held, the applicant having
accepted the order of stay of
execution in the court below,
could not apply to the appellate
court for the same order. If the
appellant were dissatisfied with
the grant in the court below,
she could have applied to the
appellate court for stay of
execution, as a partial or harsh
grant constituted a refusal. The
court below would have granted a
longer period if it envisaged
that the record of appeal could
not be completed. Since the
appellant’s lease was running
out, it was necessary that the
appeal was heard expeditiously
or the appellant be permitted to
remain in possession. In order
that the appellant would not
feel a denial of justice, the
court would grant an extension
for a specified time. If by the
expiry of that period the appeal
was not listed, the applicant
must vacate the premises or be
ejected without further order.
APPLICATION to the Court of
Appeal by the appellant for an
order for stay of execution
pending appeal.
Kwaku Baah
for the applicant.
C O Nyanor
for the respondent.
AMPIAH JA.
On 28 October 1991 judgment was
delivered against the
appellant-applicant herein and
she was ordered to vacate the
store in which she traded by the
end of January 1992. The
applicant appealed against the
judgment and applied for stay of
execution of the order to the
trial court. The court granted
her a stay of execution up to
February 1992 hoping by that
period the record of proceedings
would have been completed.
According to the applicant, try
as she did to have the record
completed, the record was not
ready. She therefore went to the
court below once more ostensibly
to ask for a further stay; what
she really needed was extension
of time. The court refused her
application saying that the stay
granted earlier had not been
given on terms. Being aggrieved
by this order or refusal, the
applicant has applied to this
court for a stay of execution of
the order of the court below.
In his argument, counsel for the
applicant submitted that
although there was a stay of
execution by the court below in
the first application, the grant
was made on the presumption that
the record would be ready by
then and that when the applicant
realised that the record was not
ready, even though the court
itself had promised to “work
conscientiously” to have it
completed, she had gone back to
that court to ask for extension
of time. It was after the
application was refused that the
applicant came to this court.
Counsel for the respondent
argued that the applicant had
come to this court by the wrong
procedure. He submitted that
once the applicant had accepted
the terms of the order below, it
did not lie in her mouth to come
to this court to ask for a stay
of execution; she should have
appealed against the order
refusing the extension of time.
It is trite learning that once
an applicant has accepted the
order of stay of execution he or
she cannot come to the appellate
court for the same order. The
authorities have it however that
if for any reason, the applicant
is not satisfied with the grant
in the court below because it is
a partial grant or the order as
granted appears to be harsh, he
can apply to the appellate court
for a stay of execution, as the
partial grant or the harsh grant
would be deemed to be a refusal.
The facts in this application
are peculiar and must be treated
as such. Even though the court
below had granted the stay, the
order was made on the
presumption that the record
would be ready. The applicant,
finding herself in a dilemma
because the record was not
ready, went back to the court
below to inform it and to ask
for more time. This was refused.
It was then that she decided to
have a second bite at the
cherry. I am in no doubt that if
the applicant had considered the
time given her as harsh and
therefore amounted to a refusal
of her application she could
have applied to this court for a
second look at her application.
Her attempt to go back to the
court below for an extension of
time must be taken as a
misapprehension of the legal
situation by her counsel. This
court is to do justice in this
case. Even though the
application had been granted
partially, the court itself
envisaged the difficulty in the
way of the applicant. We are
sure that if the court had
realised that the record would
not be ready, it would have
granted a longer time. The
record, we are told, is still
not ready.
The complaint of the respondent
is that he has only a short
period left of the demise to
him. It is necessary that there
should be an expeditious hearing
of the appeal or that she be
allowed to enjoy the remaining
part of the demise. If only to
let the applicant feel that she
has not been denied justice, we
would grant an extension of time
in which she would stay in the
premises. We give her up to the
end of June 1992 to have the
appeal listed or to vacate the
premises. If by that date the
appeal is not listed, the
applicant is to vacate the
premises or the respondent is to
take steps to enforce the
judgment without any reference
to this court.
Costs of ¢20,000 to the
respondent.
BROBBEY JA.
(sgd)
KWAPONG J.
(sgd)
Application for stay of
execution granted on terms.
S Kw |