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 … 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”. The appellate court may, however, for sufficient cause, order stay of execution of such decree. 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. SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 18. 13. And the Supreme Court has termed the power “inherent” (In r… “It follows from the foregoing that I would not have granted a stay of execution, if no condition had been imposed. ( Log Out /  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. 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 … 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. an order suspending the execution of the order pending the outcome of the application for rescission. Enter your email address to follow this blog and receive notifications of new posts by email. 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. 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. Counsel before us did not suggest that we should do otherwise, and for my part I am content to do so. On 18th … 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. 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. 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 '-, -,' :',. Change ), You are commenting using your Twitter account. iii) Ability to pay, but a failure to do so cynically based upon the difficulties for the respondent in enforcing the judgment in a foreign jurisdiction.  Further once the money was in court protection was granted to protect enforcement proceedings. 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. 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 obvious risk of injustice if the stay is refused is that the appeal may be stifled. 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. ( Log Out /  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 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. They are merely illustrations of the proper exercise of the discretion on particular facts. 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. He also prayed that the costs of the application be provided for. Further, I consider that the appellants ought to be entitled to protection, once having made that payment into court. 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. 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. 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 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. 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. 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). 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? 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) 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 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. On 13thMarch 2017 that application was refused on the basis that the judge had no jurisdiction to hear it.  The appellant has to apply for a stay and the court can grant conditions. The appeal was against a garnishee order attaching a sum of approximately N97 million belonging to the appellant granted by the lower court. 140, 214 F.2d 242 (1954). 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. They are concisely summarised in paragraph 22 of the judgment of Clarke LJ in the. 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. 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. 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.  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. 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 While the power of a court of appeals to stay proceedings in the district court during the pendency of an appeal is not explicitly conferred by statute, it exists by virtue of the all writs statute, 28 U.S.C. It is similar to an injunction . Sunico were appealing against a judgment of £1,278,527.71. 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