HIGH COURT, KUMASI
DATE: 29TH JUNE, 1962
BEFORE: APALOO, J.
NATURE OF PROCEEDINGS
RULING on an application for a stay of execution pending appeal.
COUNSEL
S. K. K. Sotomey for the defendant-applicant.
B. Asumadu-Sakyi for the plaintiff-respondent.
JUDGMENT OF APALOO J.
On the 18 th June, 1962, I entered judgment for the plaintiff against the defendant for the sum of £6,000 and costs. The defendant says he is appealing against that judgment and accordingly brought this application for an order to stay execution of that judgment.
I have read the grounds of appeal and propose to refrain from making any comments about them. In any case, counsel has reminded me that it is not for me to say whether it contains any substance or not. The ground which counsel stresses for this application is the fact that the plaintiff has no visible means and it may not be possible to recover this sum from her if the appeal is successful. I do not see that that ground has really been answered by counsel for the respondent who seriously resists this application. I think this ground is real and substantial.
Counsel for the respondent has however asked me to bear in mind the balance of hardship. I understand the substance of his argument to mean that greater hardship would be caused in granting this application than in refusing it. There can be no doubt that considerable hardship will be caused to the plaintiff and her children if this application is granted in its present form. There is also the equally well established principle that unless very good grounds exist, a successful litigant ought not to be deprived of the fruits of his judgment merely because of the pendency of an appeal.
What I conceive I have to do in this case is to balance the plaintiff’s right to her entitlement to reap the fruits of her judgment, against the equally well settle right of the defendant, that the appeal, if successful should not be nugatory. Counsel for the applicant told me that his client is prepared to pay the judgment debt and costs into court. This will have to be done and the plaintiff ought to have at least a portion of this sum provided she gives reasonable guarantee that she would refund it to the defendant if the appeal proves successful.
Accordingly, the order which seems to me to achieve an equitable balance between the plaintiff and the defendant and which I think it right to make is that the defendant shall pay the judgment debt and costs into court on or before the 10th July next. Two thousand pounds of this sum together with the costs shall be paid to the plaintiff by the registrar on her written application. This payment shall, however, not be made unless and until the plaintiff enters into a bond with two sureties in the sum of one thousand pounds each to refund this sum to the defendant if this appeal is successful. The sureties shall be men who are known to the registrar to be substantial and who own immovable property within the jurisdiction of this court. The balance of four thousand pounds shall remain in court and shall be paid to the plaintiff in the event of the appeal being successful.
I make an order in terms set out above. There will be no order for costs on this application.
DECISION
Application granted on terms.
