LEGAL PRINCIPLE: CIVIL PROCEDURE – Stay of Execution – Merit of Appeal is Relevant
PRINCIPLE STATEMENT
It is not correct to say that the merit of the substantive appeal is irrelevant when considering a stay of execution. Where the grounds of appeal raise substantial points of law, the court usually leans in favour of granting the application.
RATIO DECIDENDI (SOURCE)
Per Wali, JSC, in Josien Holdings Limited v. Lornamead Limited (1995) NLC-1831992(SC) at p. 13; Paras C--D.
"It is not a correct statement of the law to say that the merit of the substantive appeal is irrelevant when an application for a stay of execution is being considered. Where, from the grounds of appeal filed there is a likely chance that the appeal might succeed or the grounds of appeal raise substantial point of law, procedural or substantive, the court usually leans in favour of granting the application."
EXPLANATION / SCOPE
The merits of the appeal are relevant to stay applications. If the appeal raises substantial points of law, the court may grant a stay. The principle balances the judgment creditor’s right to enforce and the appellant’s right to appeal. The court will examine the grounds of appeal. The rule applies to all stay applications. The applicant must show that the appeal has a realistic chance of success. The court will not grant a stay for a frivolous appeal. The principle promotes fairness.