Koriri v Attorney General [2011] KIHC 14; Civil Appeal 14 of 2011 (18 April 2011)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION

Republic of Kiribati
Held at Betio

Civil Appeal 14 of 2011

Between:

Tianta Koriri
Appellant

And:

Attorney General (in respect of Director of Lands)
Respondent

BEFORE: HON SIR JOHN MURIA CJ

For the Appellant: Ms Kiata Kabure
For the Respondent: Mr Birimaka Tekanene

Date of Hearing: 18 April 2011

JUDGMENT

This is an application for stay of execution of the order of High Court made on 4 April 2011 as well as that of 15 December 2010. This application is made to me to exercise the power of a single judge of the Court of Appeal.

The powers of the single judge of the Court can be found in section 18 of Court of Appeal Act in respect of Civil Appeals. That power includes the power to stay execution of judgments.

I have read the Court records on the disputes over the land Baroaka 514/515 in question. It is quite obvious that the matter had gone through the judicial determination processes from Magistrates' Courts, to the High Court and Court of Appeal. In all the Courts, the respondent's right of ownership over the land had been confirmed. Thus the merits of the disputes between the parties had already been considered and determined. In such a case, the burden on the applicants is a much greater one than if they were seeking a stay pending the hearing of the merits of the case or pending trial.

Of course, it is also clear on the authorities e.g. in Virgin Atlantic v Premium Aircraft [2009] EWCA Civ 1513, that a stay should not be refused automatically even after a decision on the merits had been given. This is part of the balancing exercise taken by the Court to minimize the risk of injustice to the party in whose favour the decision on the merits stands. In such a case an undertaking as to damages would be an important consideration in the balancing exercise. None has been tendered in this case.

The applicants contended in support of their application, through counsel, that there is still pending an appeal to the High Court Land Appeal No. 35/09 in respect of this same land. The strength of that appeal (due to be heard on Wednesday 20 April 2011) is now virtually subject to a consent order agreed to by the parties on 5 November 2010. That consent order agrees that the Land Appeal to the High Court No. 35/09 would be bound by whatever decision made by the High Court in Civil Case No. 107/10.

The High Court gave its decision on 15 December 2010 in Civ. Case 107/10 in favour of the respondent. The High Court, again in that judgment, confirmed that:

"The respondents (now appellants/applicants) no longer have any title or claim to the land. They are not entitled to be on it".

The High Court then issued an injunction restraining the respondents, now appellants/applicants, from entering on to or interfering in any way with the said land Baroaka 514/515.

On 4 April 2011, the High Court issued an order enforcing the order of 15 December 2010. There was no mention of the pending appeal to the Court of Appeal against the High Court's decision of 15 December 2010 at the hearing on 4 April 2011. The appeal was said to be filed on 31 March 2011.

I am mindful of the principles stated in Virgin Airlines case mentioned earlier and that an undertaking would be a factor to be considered for a grant of a stay. However, in this case, it would be fruitless exercise to insist on the appellants/applicants to give an undertaking as to damages to be paid to the respondent, should they lose their appeal in the Court of Appeal, because all the Courts in the land have determined the respondent to be the rightful owner of the land in question, Baroaka 514/515.

Equally, the finality in litigation principle very much applies in this case. This is very much so, as in this case, the prospect of success in the appeal is very slim.

In the circumstances, therefore, the appellants/applicants have been unable to make out any exceptional circumstances to justify a grant of a stay of execution of both the High Court judgment of 15 December 2010 and order of 4 April 2011.

The application for a stay sought is refused with costs to be taxed, if not agreed.

Order accordingly.

Dated the 18th day of April 2011

SIR JOHN MURIA
Chief Justice