Stay of Execution


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The court observed that the applicant raised the point that the failure of the application would render the subsequent judgment nugatory but failed to prove exceptional circumstances to merit the suspension of the order. Accordingly, the application was dismissed. Litigation was commenced to recover a debt from a company incorporated in Australia that was wholly owned by a Ghanaian company. The High Court granted judgment in favour of the appellant for the amount due.

The judgment was appealed because the respondent proposed a scheme of arrangement to reorganise their debts with their creditors. The court granted to wind up the company. However, the Court of Appeal granted a stay of execution of the winding-up before the respondent appealed the original decision of the High court to pay the amount due. The appellant did not succeed with the appeal because they did not prove that the Court of Appeal failed to take relevant matters into consideration, considered irrelevant matters of misapplied the law.

The respondent bought a piece of property from a third party. After the respondent had taken possession of the property, he became aware of the fact that his predecessor-in-title had mortgaged the property to the appellant. The respondent paid off the outstanding debt and thereafter demanded the release of the title deeds to him. Instead, the appellant demanded some authorisation from his predecessor-in-title before the documents could be released to him.

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The respondent instituted a claim on this basis. After the respondent attached the property the appellant filed an application praying for an order staying execution of the judgment, particularly the sale of the property and ordered release thereof; before hearing of the application. The trial court dismissed this application. The appellant eventually appealed to this court asking for the same. The appellant urged this court to allow the appeal, set aside the ruling of the court below and grant an order directing the High Court to retain the amount deposited as per judgment.

This court held that the order sought to be stayed was made by the trial court and there was no appeal against that order to the Court of Appeal. That being the case, it was held that it would be a wasteful academic exercise to delve into the merit of the issue. Consequently the appeal was dismissed. This was an appeal against a garnishee order granted by the court. The appellant contended that the garnishee proceedings were null and void because the first respondent did not disclose that the second respondent fell within the jurisdiction of the lower court.

Further, the appellant argued that there was abuse of court process because the garnishee order was made after the appellant was granted leave to appeal. The respondent argued that the appellant was not a party to the garnishee proceeding and cannot challenge the procedure. In deciding the matter, the court held that the question of the judgement creditor establishing that the garnishee was within jurisdiction was not for the judgement debtor to determine but the court.

It found that the appellants were not parties to the garnishee proceedings and that an appeal does not operate as a stay of execution. The appeal was thus dismissed. The court noted that in any civil proceedings, where the notice of appeal has been lodged in accordance with rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from except so far as the high court or tribunal may order, nor shall execution of a decree be stayed by reason of an appeal having been preferred from the decree order but the court may upon good cause shown, order stay of execution of such decree or order.

The court may, upon good cause shown order stay of execution of the decree or order. It is only where there is an order for order for stay of execution that a trial court is estopped from issuing an execution order. The execution process has two stages. The first stage is the issuance of an executive order and the second stage is the enforcement of that order which is normally done in the registry or other designed officer in the registry. The courts took into consideration the fact that there was no order or stay of execution and concluded that it could make an order for execution despite the pendency of an appeal suit.

This was an appeal and application for a stay of execution of the order granted in the initial application. The respondent argued that the appeal was incompetent because it lacked a certificate from the Court of Appeal certifying that it concerned a question of great public or general importance. The respondent also argued that the execution was complete because he was in sole occupation of the suit land. If a court was to grant an application for stay of execution, the applicant must establish that the appeal has a likelihood of success, or the prima facie case of his right to appeal; applicant will suffer irreparable damage or the appeal will be rendered nugatory if a stay is not granted; and the application was instituted without delay.

In assessing whether the appeal raised issues which merit consideration, the court held that the matter raised whether the issue was already adjudicated on. On the second criterion, the applicant established that irreparable damage would be suffered if the stay was not granted as a house would be destroyed. It was also accepted that the application was brought without delay.

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Warren Hill's second stay of execution: 'This is the cruellest thing imaginable'

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