JUDGMENTBY: HASHIM YEOP A SANI J

This was an application for stay of execution or alternatively to allow the applicant to pay the judgment sum with interests and costs by monthly instalments of $ 500/= to be held in trust by the solicitors for the respondent.

From what can be gathered from the affidavit of the applicant and the reply by the respondent, judgment in a sum of $ 12,788/= together with interest and costs was entered in the Sessions Court against the defendant (now applicant). The application for stay of execution was made to the Sessions Court by the surviving partner of the defendant firm. On January 15, 1982 the Sessions Court allowed stay on condition that the defendant deposit the judgment sum with the solicitors of the plaintiff firm within 30 days of the order. Soon afterwards an application was made in the Sessions Court by the same partner of the defendant firm to pay instead by monthly instalments of$ 500/= on the grounds that he was in financial difficulties. But this application was refused. Hence the present application.

The law on the granting of an order for stay of execution has been examined a number of times in the courts of this country. It is trite law that the court has an absolute and unfettered discretion to grant or refuse an application for stay. As a rule the court will however only grant stay if there are special circumstances and which circumstances must be deposed in the affidavit supporting the application. The governing principle in all cases where the court is asked to exercis e its discretion is clearly expressed by Brown J. in Serangoon Garden Estate Ltd v Ang Keng [1953] MLJ 116 and the principle is this: the court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it. The principle enunciated here goes back to many years ago as can be seen in Monk v Bartram [1891] 1 QB 346. In that case stay had been refused by the trial judge and in the Court of Appeal it was held that where a stay of execution has been refused by the trial court an application made in a Court of Appeal for a stay pending appeal must be supported by special circumstances and allegations that there has been misdirection or that the verdict or judgment was against the weight of evidence, or that there was no evidence to support the verdict or judgment are not special circumstances. Lord Esher, M.R. in the Court of Appeal when refusing the application for stay said:

"We have made inquiries, and find that the practice in the Divisional

Court has been similar to that as to appeals in this court in cases of

trials before a judge without a jury. It has never been the practice in

either case to stay execution after the judge at the trial has refused

to grant it, unless special circumstances are shown to exist."

From the affidavit of the applicant here it seems clear that the sole ground relied on as special circumstances is to be found in paragraph 5 of the affidavit which reads as follows:

"I believe, it is imperative that a stay be granted as otherwise it

will cause a permanent deprivation of money if the Plaintiff firm

succeeds in the Appeal as there are merits in the Appeal in that there

are points of law and facts for arguments."

Based on past precedents and authorities this ground cannot be regarded as special circumstances to justify an order for stay. In my opinion the application here was misconceived and I accordingly dismissed the Motion with costs.

Motion dismissed.

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