It is clear the rule is that an appeal shall not operate as a stay of execution or of proceedings under the decision appealed and the granting of a stay of execution of an order is entirely at the discretion of the Court. Despite RM2m graft conviction, Tengku Adnan avoids jail after High Court grants stay of execution pending appeal. Ï[àC[PÛ!iÏûœ¡Žá PÀ¢l”ÉŒOÇé„Q8ž@åíÎ RSphÕN‹:ë;¨±Ìã9¦Jíâ¬u‡)Å"ÏM*G¾’¶ÞÓϵª¼eŒ2WÐÂ@ÇnO͂¶ stay of execution. However, Suhail’s execution had been stayed, pending the appeal. In short, CPR 52.7 provides that unless the appeal court or the lower court orders otherwise an appeal does not operate as a stay of execution of the orders of the lower court. 13. The appeal was based on the claim that the garnishee order was made without hearing the appellants’ earlier motion for a of stay execution. Because liability was in issue, and the prospects of restitution if the appeal succeeded would be doubtful, this Court would almost certainly have granted a stay of execution pending the appeal in accordance with the principles stated in Antoniadis [No DEMPSTER v COATES – BC8802081. The appeal was against a garnishee order attaching a sum of approximately N97 million belonging to the appellant granted by the lower court. On 1 June, three other judges of the same Court of Appeal threw out a similar appeal for a stay of execution by MA Kharafi & Sons stating that “neither the commission of inquiry nor the government white paper can make enforceable judicial orders that are capable of execution” and that “since there is no enforceable order before [the] court capable of execution, there is nothing to be stayed”.  Further once the money was in court protection was granted to protect enforcement proceedings. EXECUTION, APPEALS TO THE HIGH COURT AND COURT OF APPEAL AND STAY OF EXECUTION PENDING APPEAL 23. BY KENNETH TEE. Nonetheless the existence of a compelling reason is only a necessary rather than sufficient factor. “The legal principles applicable to the imposition of conditions and to stay of execution pending appeCPR 52.3(7) provides that: This paragraph of Part 53 applies to any court with jurisdiction to give permission to appeal. The court needs to balance the risks of injustice which may be occasioned by the grant or refusal of a stay. His lawyer, Mr M Ravi, had filed a Judicial Review application in the High Court on Sept 16, which was dismissed the following day. A perusal of the decisions of both courts show that the principles to be applied when considering an application for stay of execution pending appeal are the same. w˜¢Ÿ€Ù6\6´§‚¡Ô\'EÚ1MîRgtŽ¸3> Â:OWtŠ$¤X®Òº£SñØTiaÆ`ÈÌ®/=9r}ÒlPûŠ¾è1š¿Q£]ÃمÚÎj»p†ñ(R¿#œ+‚vç*Ôö@lêë¹Â*V. 2, Rule 64.18 (1) (b) of the Civil Proceedings Rules 1998 (“CPR”) empowers a single judge to order a stay of execution on any judgment or order against which an appeal has been made, pending the determination of the appeal. "The Court may suspend the execution of any order for such period as it may deem fit" . The court needs to balance the risks of injustice which … Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application, — (a) order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or (b) ]mBœŠ–Þ °Uä,Ë8ôS4~ƒ8¤ð»*òùpݝ“p]’04œT½ Ղ£ã ÐÁ»u¯ ŠXs¡êP[L The grant of a stay is discretionary. Syed Suhail, 44, had been scheduled to be executed last Friday (Sept 18) but the High Court ordered an interim stay of execution the day before. He argued that stay of execution Appeal Court granted APC is on score that it is the party that statutorily contests an election and that did not translate to mean that Tonye Cole and those produced through the Direct Primaries already voided by the state High Court should be fielded by the party. Samuel Ortom, Benue State governor The Benue State government has prayed the Supreme Court to stay the execution of the judgment of the National Industrial Court directing the seizure of N1.4bn worth of her assets in a garnish proceedings initiated by 211 aggrieved employees of the state. They are merely illustrations of the proper exercise of the discretion on particular facts. It is also clear that a granting of a stay is necessarily followed by the The power to grant an application for stay of execution pending appeal is a discretionary one on sufficient cause being shown, where the applicant may suffer substantial loss; the application is made without unreasonable delay and on provision of such security as the Court may impose. Excerpts and links may be used, provided that full and clear credit is given to Gordon Exall and Civil Litigation Brief with appropriate and specific direction to the original content. An appeal does not operate as a stay of proceedings under a decree or order appealed from, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree. On 18th … A payment into court does not automatically prevent enforcement by a judgment creditor but, in the event that the payment is made, it seems to me that the appellants ought to be entitled to protection from double exposure, and from the risk of bankruptcy proceedings at the instance of HMRC between payment in and judgment on the appeal which would then follow.”. Change ), You are commenting using your Google account. See for example holding (i) in the case ofIsrael Solomon Kivuyo v. Wayani Langoi and Naishooki Wayani, (1989) TLR 140 where a single judge of the Court held: - “In the case of an application for stay of execution of a decree pending an appeal where no notice of appeal has been given, the application will not be entertained”. Subdivision (a). Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. Change ). He also prayed that the costs of the application be provided for. 2. If, after judgment in an action, the court orders that the proceedings be stayed during the period within which an appeal may be brought, and an appeal has been brought and security is given to the satisfaction of the Registrar for the judgment and costs, the stay continues until the appeal is disposed of or until the court or Supreme Court otherwise orders: s 128(1) and (2). The last comes from the citation in the Days Medical case of paragraph 22 of the judgment of Potter LJ in Bell Electric Limited v Aweco Appliance Systems GmbH & Co KG [2003] 1All ER 344. Change ), You are commenting using your Twitter account. The appellate court may, however, for sufficient cause, order stay of execution of such decree. A Blog about Civil Procedure, Costs, Limitation, Sanctions & Evidence by Gordon Exall, Barrister, Zenith Chambers Leeds & Hardwicke Building London. The obvious risk of injustice if the stay is refused is that the appeal may be stifled. Even where a compelling reason is shown, the question remains a matter for the court’s discretion: see per Clarke LJ in the Hammond Suddard case at paragraph 40. SINGAPORE - A day before he was scheduled to hang on Friday (May 24), a Malaysian drug mule on death row got a temporary reprieve after the Court of Appeal granted him a stay of execution. The applicant Gashumba Maniraguha brought this application for an order staying the execution of the judgment of the Court of Appeal in Civil Appeal No.23 of 2005 until the determination of his appeal to this court. The Court of Appeal for Ontario in Tiernan v.Dietrich, 2011 ONCA 263 has declined to stay execution of a foreign judgment pending appeal.The matter involves an action to enforce a judgment obtained in Michigan against the defendant, a former Michigan attorney. At B 1-330 Erasmus, Superior Court Practice, the author says the following:- "As a general rule the Court will grant a stay of execution where real and substantial justice requires such a stay … The issue of whether or not payment into court of the judgment sum was heard on the first day of the appeal hearing. “It follows from the foregoing that I would not have granted a stay of execution, if no condition had been imposed. ( Log Out /  Separate each address with a semi-colon (;) Example: The relevant rules and principles governing the imposition of conditions are encapsulated in part of the judgment of Lord Justice Briggs. On Tuesday (Sept 22), Mr Ravi wrote in a Facebook post that the Court of Appeal had heard Suhail’s appeal in what he called an “intense” hearing.  This led to the substantive appeal being adjourned. (2) The court will only exercise its power under paragraph (1) where there is a compelling reason for doing so.”. When the rescission application was dismissed, the fifth respondent duly noted an appeal in terms of Rule 52 (1) (a) to the High Court on 14 July 2011 and thereafter, within the four week period prescribed by Rule 52 (1) (a), the fifth In the Suneco case a stay of execution was granted pending the appellant raising sums to be paid into court as a condition of the appeal. an order suspending the execution of the order pending the outcome of the application for rescission.  The appellant has to apply for a stay and the court can grant conditions. The word "execution" does not necessarily mean the death penalty (although it can); it refers to the imposition of whatever judgment is being stayed. The first four of those factors emerge from the Hammond Suddard case. Something more than mere non-payment of the judgment debt needs to be shown although, as both cases show, a deliberate failure to pay by a judgment debtor with the resources to do so may be a factor supportive of the imposition of a condition. The Court of Appeal sitting in Abuja will today hear the motion for stay of execution filled by the embattled Governor of Abia State Dr Okezie Ikpeazu against the judgment of Justice Okon Abang of FHC Abuja which ordered that he should vacate office as Governor. . Meanwhile, on 6thJanuary 2017, the applicant made another application to the Court of Appeal Chamber Court for a stay of the execution of the order. Unauthorized use and or duplication of the material contained on this blog without permission from this blog's author is strictly prohibited. SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL ( Log Out /  stay of … Calltel Telecom Limited v Revenue and Customs Commissioners, DENTON APPLIED IN THE TAX & CHANCERY CHAMBER: LEEDS -v- COMMISSIONERS CONSIDERED, CIVIL EVIDENCE AND WITNESS STATEMENTS – HERE’S THE CATCH: THE JUDGE CAN ACCEPT SOME OF THE EVIDENCE SOME OF THE TIME, ATTEMPTING TO RELY ON MATTERS WHERE PERMISSION TO AMEND HAD BEEN REFUSED: A BRIDGE TOO FAR, “MISSING WITNESSES”- THE INFERENCES TO BE DRAWN: THE USE OF YOUR OPPONENT’S WITNESS STATEMENTS – ITS ALL OR NOTHING, WITNESS STATEMENTS: SAYING “I AGREE WITH HIM” IS HARDLY GOOD PRACTICE, ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS, REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER, WHAT IS THE DATE OF SERVICE? That there be a stay of execution of the judgment in default of defence dated 17 November 2004, filed in the Supreme Court on 18 November 2004, perfected on 23 June 2008 and amended after being refiled in the Supreme Court on 10 November 2011 and the orders of Daye J dated 5 and 6 December 2013 refusing to set aside the The order is of course subject to variation or discharge by the full Court, pursuant to Rule 64.18(2). I agree, Hon Mr. Justice E.E Roberts, JA … I do not buy into the argument by the Respondent that the Court of Appeal decisions are inapplicable to applications for stay of execution pending appeal before the High Court. 18. It reflects the undoubted fact that a condition such as a requirement to pay or secure payment of the judgment debt is not routinely applied as a condition for permission to appeal. A stay of execution will stop the enforcement process. Counsel before us did not suggest that we should do otherwise, and for my part I am content to do so. of Col. v. Capital Transit Co., 94 U.S.App.D.C. It is similar to an injunction . The grant of a stay is discretionary. 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 only of an appeal having been '-, -,' :',. You can send the message to up to 4 other recipients. On 13thMarch 2017 that application was refused on the basis that the judge had no jurisdiction to hear it. §1651.  The law and principles governing granting conditions on appeal is summarised in the recent Court of Appeal decision Sunico -v-  Commissions for HMRC [2014]  EWCA Civ 1108. 24. When there is an appeal pending against the judgment; When there are special circumstances making it inexpedient to enforce a writ of control or the applicant is unable to pay They are concisely summarised in paragraph 22 of the judgment of Clarke LJ in the. The appellants filed their notice of appeal of three grounds together with an application for stay of execution of the Court of Appeal’s judgment. Nor is the fact that an unsuccessful defendant wishes to appeal to be taken as a routine shortcut to the need to enforce a judgment, by the obtaining of the requisite condition for payment. Court of Appeal: allows stay of execution on costs order not the subject of appeal (Boxing Brands v Sports Direct International and others) Send to Email address * Open Help options for Email Address. There is at first sight a curious and unexplained tension between the power to impose conditions under Part 52.3(7)(b) and the power to do so under Part 52.9(1)(c), since the latter is, but the former is not, constrained by the requirement that a compelling reason for doing so be identified. Former Federal Territories minister Datuk Seri Tengku Adnan Tengku Mansor is pictured leaving the Kuala Lumpur Court Complex December 21, 2020. ― Picture by Yusof Mat Isa THE DIFFERENCE BETWEEN THE “DEEMED” DATE OF SERVICE AND THE “EFFECTED” DATE OF SERVICE, SETTING JUDGMENT ASIDE: DELAY & PROMPTNESS, PART 36, THE COMPENSATION RECOVERY UNIT AND COSTS: A SIGNIFICANT COURT OF APPEAL DECISION, WITNESS STATEMENTS ARE FOR FACTS: KNOWING THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS (AND WHY IT MATTERS), APPLYING TO SET ASIDE WITHOUT NOTICE ORDERS: BE QUICK: BE VERY QUICK, PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A "NON-ADMISSION" & A "DENIAL" EXPLORED, EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM SET ASIDE: A CASE ALL CLAIMANTS SHOULD KNOW, DELAY AND NON-COMPLIANCE: ACTION STRUCK OUT: A "GAME CHANGER", SETTING ASIDE A DEFAULT JUDGMENT AFTER AN ORDER IS STILL SUBJECT TO CPR 13: JUDGMENT SET ASIDE WHEN NO GOOD REASON FOR DEFENDANT'S DELAY, Accidents at Work & Loss of Earnings claims, Munkman on Damages for Personal Injuries and Death, The APIL Guide to Fatal Accidents 3rd edition, Nearly Legal – Housing Law News and Comment, The principles applicable to an application for a stay of execution pending appeal are very well known indeed. 13. The Application for a Stay of Execution of the Order of the Court of Appeal dated 26th January 2010 is refused, Cost of this application assessed at Le 1,000.000,00 (One Million Leones) to be paid by the Appellant/Applicant to the Respondent. It is unhelpful to treat the particular circumstances identified in each of those two cases as giving rise to a compelling reason for the imposition of a condition as indicative of any more detail in the underlying legal principle. 140, 214 F.2d 242 (1954). CPR 52.9 provides as follows: (a) strike out the whole or part of an appeal notice; (b) set aside permission to appeal in whole or in part; (c) impose or vary conditions upon which an appeal may be brought. Sunico were appealing against a judgment of £1,278,527.71. The Suneco case, coupled with the cases cited in are essential reading for anyone applying for a stay of execution pending appeal or a party seeking the imposition of a condition. A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. Further, I consider that the appellants ought to be entitled to protection, once having made that payment into court. ( Log Out /  Nonetheless, in the only two authorities cited to us about the principles applicable to the exercise of this power, namely Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 and Days Medical Aids Limited v Pihsiang Machinery Manufacturing Co. Limited and ors [2004] EWCA Civ 993, the court was minded to proceed on an assumption, without deciding the point, that the compelling reason requirement applied in both cases, notwithstanding the linguistic anomaly. 25. I n short, CPR 52.7 provides that unless the appeal court or the lower court orders otherwise an appeal does not operate as a stay of execution of the orders of the lower court. © Gordon Exall, Civil Litigation Brief, 2013-2017. Nonetheless the following emerged from those cases as factors which, depending on the overall circumstances, may point towards the imposition of a condition: (1) Difficulties of enforcement of the court’s judgment in a foreign jurisdiction; (2) An apparent sufficiency of resources to enable the judgment debtor to continue to fund litigation; (3) The absence of convincing evidence that the appellant lacks the resources, or access to the resources, which would enable it to pay the judgment debt; (4) Inadequate disclosure by the appellant of its financial affairs, or a lack of confidence on the part of the court that it has been shown the truth; i) A deliberate breach of an order to pay the judgment debt. There are several sets of circumstances under which the court may order a stay. Enter your email address to follow this blog and receive notifications of new posts by email. And the Supreme Court has termed the power “inherent” (In r… (c) where an application is made for. ( Log Out /  Eastern Greyhound Lines v. Fusco, 310 F.2d 632 (6th Cir., 1962); United States v. Lynd, 301 F.2d 818 (5th Cir., 1962); Public Utilities Commission of Dist. Monday, 21 Dec 2020 01:49 PM MYT. Although the mere taking of an appeal generally does not operate to stay enforcement of or execution upon, a judgment, in some jurisdictions it is provided by statute that the mere filing of a notice of appeal operates to stay execution upon the judgment, without any judicial action, or that execution on a judgment is stayed pending appeal where the appellant is the state, a political subdivision thereof, or an agency … Change ), You are commenting using your Facebook account. But I have been persuaded by Mr. Lakha that, if the condition as to payment into court is imposed, then the appellants do need or deserve protection from further enforcement measures by HMRC while they seek to raise the money to make that payment by the end of September. 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