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GHANA BAR REPORT 1993 -94 VOL 4

 

Agyabeng v Annan[ 1992 – 93] 4 G B R 1441 – 1443 C. A

 

COURT OF APPEAL

 

AMPIAH, BROBBEY JJA, KWAPONG J

20 MAY 1992

 

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
 
 

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