Tebau v Inanoi Cooperation Society Ltd [2011] KIHC 68; Civil Appeal 27 of 2011 (17 November 2011)

IN THE HIGH COURT OF KIRIBATI
HELD AT BETIO
REPUBLIC OF KIRIBATI
CIVIL JURISDICTION

HIGH COURT CIVIL APPEAL 27 OF 2011

BETWEEN:

ANGINETI TEBAU
APPELLANT

AND:

INANOI COOPERATION SOCIETY LTD
RESPONDENT

FOR APPLICANT: BANUERA BERINA
FOR RESPONDENT: MANTAIA KAONGOTAO
Date of Hearing: 17 November 2011

JUDGMENT

This is an application for a stay in execution of the decision of the Magistrates' Court in Case No. 325/11. The sole ground of this application is that the Appellant has filed an appeal against this decision and that her application for a stay of execution of this judgment was refused by the Magistrate Court.

Case 325/11 is twofold, an application for an enforcement of the Magistrate's decision in Bet Civil Case 148/11 by the respondent and an application for a stay against this decision raised by the appellant. The Single Magistrate refused the stay for a reason that an appeal should not operate as a stay of execution pursuant to section 74 of the Magistrates' Courts Ordinance. The Court therefore ordered that the appellant should vacate the premises in dispute.

Mr Berina, for the appellant, is now applying for a stay against this judgment pending their appeal. Mr Kaongotao objected strongly to this application.

Section 74 of the Magistrates' Court Ordinance states as follows;

"In the case of any civil proceedings neither notice of appeal nor an appeal shall operate as a stay of execution or of proceedings under the judgment appealed from, except so far as the magistrates' court which gave such judgment, or the High Court, may direct, and any such direction may be given with or without the application of either party."

This section gives discretion to the court to allow a stay of execution of a judgment with a direction where it thinks proper.

After confirming that there is an appeal filed with the Court, and after considering arguments from both counsels and further, after considering section 74 above, it is the Court's decision that a stay is granted with a condition that the appeal is priority for hearing on the first day of the Court sittings next year which is the 30 January, at 2 pm.

A stay, is therefore, granted.

In view of the circumstances of this case I make no order as to cost.

TETIRO M SEMILOTA
COMMISSIONER