[I] Civil Procedure-execution-stay-stay granted only on proof of exceptional circumstances-court's discretion to be exercised only after consideration of all facts: The granting of a stay of execution is based on proof by the applicant of exceptional or special circumstances, and the court should consider all the facts of the case before deciding to exercise its discretion in the matter (page 116, lines 27-32). [2] Civil Procedure-execution-stay-stay not to be granted merely because delay between judgment and appeal substantial-applicant can be compensated by damages if appeal successful: The fact that there will be a substantial delay between the giving of a judgment and the hearing of the appeal from that judgment is not of itself a circumstance which will cause the court to grant a stay of execution; if the appeal is successful, the applicant may be compensated by damages (page 116, line 35-page 117, line 33). [3] Evidence-burden of proof-stay of execution-burden on applicant to show exceptional circumstances justifying stay: See [1] above. The plaintiff (now the respondent) brought an action against the defendant (now the applicant) to recover possession of certain premises. 5 10 15 20 25 The defendant was the tenant of a portion of premises which 30 the owners sold to the plaintiff, who had previously been the defendant's sub-tenant. The plaintiff alleged breaches of covenants in the lease by the defendant, and instituted the present proceedings for possession of the premises. The Supreme Court (Beoku-Betts, J.) held that the defendant had broken certain covenants in the lease, 35 refused to grant him relief from forfeiture of the lease and gave judgment for the plaintiff. Execution was stayed for several days. These proceedings are reported in 1950-56 ALR S.L. 97. The defendant then applied for the stay of execution to be extended until the hearing of the appeal. 40 The Supreme Court considered the nature of the circumstancesm which a stay of execution will be granted, and whether they pertained to the present case. Cases referred to: 5 (1) Farmer v. Labi (1945), 3 S.L. Law Rec. 66, dicta of Graham Paul, C.J. applied. (2) Tuck v. Southern Counties Deposit Bank (1889), 42 Ch.D. 471; 61 L.T. 348, applied. 10 R.B. Marke for the defendant-applicant; Betts for the plaintiff-respondent. BEOKU-BETTS, J.: This is an application by the defendant for a stay of execution 15 of a judgment in favour of the plaintiff. When judgment was given ordering recovery of possession, an application was made for stay of execution on the ground that, as the effect of the judgment was immediate, recovery of possession would follow unless a stay was granted and the defendant would be immediately turned out 20 of the premises. I considered the application and decided that a fortnight stay of execution was desirable. This is an application that the stay of execution should be extended until the hearing of the appeal. In the affidavit filed in support of the application it is stated 25 that the appeal is not likely to be heard before November next, unless a special sitting of the court is held, and by that time the lease under which the defendant holds would have expired. The granting of a stay of execution is based on proof of exceptional or special circumstances. In Tuck v. Southern Counties Deposit Bank 30 (2), it was held that the court should consider all the facts before deciding whether they constitute proper facts for its discretion to be exercised. In the case of Farmer v. Labi (1), decided by the Supreme. Court on May 25th, 1945, Graham Paul, C.J. said, inter alia (3 S.L. Law Rec. at 67) : 35 "It is · common ground that the appeal is not likely to be heard before March, 1946, i.e. nearly a year after the date of the judgment. It is stated that to refuse the stay of execution would render the appeal nugatory and that therefore I should not refuse the stay. Wilson vs. Church L.R. 12 Chancery 454 40 was quoted in support of that proposition. I am unable to . find that Wilson vs. Church or similar cases have any application  here. The reason the stay of execution was granted in Wilson vs. Church was that the judgment under appeal was for distribution of a fund among a very large number of persons who were not parties to the suit and there would obviously be very great difficulty in getting back the money parted with if 5 the House of Lords be of opinion that the money ought to have been so divided. That was a very special case and has no direct application to the present case which deals with the possession of solid premises which cannot disappear or be dissipated. It would be quite open to the Appeal Court to 10 order that the judgment be reversed and that if possession had been obtained by the plaintiff under the judgment it was to be given up to the defendant, and that order could be carried out with no difficulty whatever. The only question before me is whether a case has been 15 made out for depriving the plaintiff of the benefit of the judgment which he has obtained. It is for the applicant for a stay of proceedings _ to make that case before the court, and in my opinion, he has failed to show any special reason why the court should do so. If this application were granted it would be a 20 precedent which would have the effect of making every appeal against a judgment for possession in this class of case ipso facto a stay of execution." The grounds for the application are that judgment was delivered after the March appeal sessions had been cancelled. That is not a ground 25 for stay of proceedings. I could not have delivered judgment before as I had several cases to deal with, the nature of the matter involved required such careful consideration and I would have been wrong to rush my judgment to make it possible for either party to appeal. I do not share the view that if the would-be appellant 30 succeeds he could not be compensated by damages. The principles stated by Graham Paul, C.J. show clearly that damages can compensate a party if he subsequently succeeds in the appeal. In this case I have to consider not only the defendant's side but the plaintiff's as well. In this case the defendant committed 35 breaches of tenancy of such a nature that I did not feel disposed to relieve him from forfeiture. The breach continued even during the action. The defendant also impugned the title of the plaintiff. I do not think in all the circumstances the stay of execution should now be extended. I therefore refuse the application for stay of 40 execution with costs.

Application dismissed.