Redfern v Mikaere [2016] KIHC 1; Misc. Application 13 of 2016 (6 May 2016)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION NO. 13 OF 2016
(ARISING FROM COURT OF APPEAL LAND APPEAL NO. 4 OF 2016)

BETWEEN

ALICE REDFERN
APPLICANT

AND

TEKAAI MIKAERE
RESPONDENT

Before: The Hon Chief Justice Sir John Muria

14 April 2016

Ms Eweata Maata for the Applicant
Mr Banuera Berina for Respondent

JUDGMENT

Muria, CJ: The applicant unsuccessfully appealed to the High Court in HCLA Case No. 13 of 2015 and has now filed her appeal to the Court of Appeal. The applicant now asks for a stay of proceedings and execution pending the determination of her appeal to the Court of Appeal.

In support of her application the applicant relied on her affidavit filed on
11 March 2016 which sets out the reasons why she is appealing to the Court of Appeal against the decision of the High Court. The main argument advanced by the appellant in support of her appeal to the Court of Appeal is the alleged failure by the High Court to consider the question of the discretionary power of the Magistrates’ Court in BetLan 1214/14 which disrection, the applicant says, the Magistrates’ Court has also failed to exercise.

It is further argued that the High Court simply dismissed the applicant’s appeal on the basis that her side had failed to disclose any probable defence before the Magistrates’ Court without considering the issue of the exercise of the discretion by the Magistrates’ Court.

When asked by the Court as to the basis for bringing the application for stay of execution, Ms Maata of Counsel for the applicant stated that if the stay is refused and the execution of the Magistrates’ Court decision is allowed to proceed, the applicant will suffer injustice.

Mr Berina of Counsel for the respondent accepted that if the application is refused, the appeal, if successful, would be meaningless. However, Counsel submitted that the applicant had come to the High Court two or three times on the same claim over the same land. On the first occasion, the applicant withdrew her case (HCCiv Case 73/08). The second time the appellant came to this Court was in Civil Review No. 1 of 2012 in which the Court refused extension of time to seek leave to issue certiorari proceedings against Case No. BikLan 286/09, the case which authorized the sale of the land in question to the respondent who was then registered as owner of the land. The third time the applicant came to this Court over the matter was in High Court Land Appeal No. 13/15, appeal against the Magistrates’ Court decision in BetLan No. 1214/14. This Court again dismissed the applicant’s appeal, hence the applicant’s appeal now to the Kiribati Court of Appeal.

THE PRINCIPLES
The power to grant or refuse a stay of execution pending appeal is discretionary and it is exercised on well-established principles. The general principle applicable in this type of application is that the applicant must establish special or exceptional circumstances to justify the grant of a stay of execution pending appeal The underlying reasons for that principle is that in a contested case the successful party ought not to be deprived of the fruit of a judgment given in his favour. See Kiribati Insurance Corporation –v- ANZ Bank (Kiribati) Ltd [2011]
KIHC 17, Civil Case 135 of 2010 (6 May 2011). See also Fort Street Tourism Village Limited –v- Attorney General and Others (23 April 2008) Court of Appeal of Belize, Civil Appeal 4 of 2008; Lawrence Okafor –v- Felix Nraife (16 October 1987) Supreme Court of Nigeria, S.C. 89/1987; Annot Lyle (1886) 11 P.D. 144,and
MBW –v- Commissioners of HM Revenue and Customs [2008] EWCA Civ. 1028.

On the other hand, the Court’s discretion is also exercised taking into consideration, on the side of the applicant, the principle that if the stay of execution is not granted, the applicant’s prospect of success in her appeal would be ruined: Lynotype-Hell Finance Ltd –v- Baker [1992] EWCA Crim 1; [1992] 4 All ER 889. See also
Fort Street Tourism Village Ltd (above). Put another way, the Court will grant a stay of execution if there will be a risk that injustice will result if a stay is not granted to the applicant. Gater Assets Ltd –v- Nak Naftogas Ukrainity [2008] EWCA Civ. 1915.

In considering whether it is in the interest of justice to grant or refuse a stay of execution, the Court will consider the prospects of success in the appeal on which the application for stay is based. In this regard the prospect of success means reasonable prospects of success, and not a mere hope that the appeal will succeed, based on fanciful grounds of appeal.

In the Lynotype-Hell Finance Ltd (above) the English Court of Appeal found that the applicant had “an arguable appeal” based on a triable issue as to whether or not the defendant signed the authority to execute the guarantee on the mortgage claim. It is not necessary, in the present case, to consider the issues raised in the grounds of appeal at this stage. Suffice to say that on the face of the grounds of appeal there must be shown that the points raised are clearly arguable.

In the present case, it is clear that, both in the Magistrates’ Court and in this Court, the person who originally owned the land in question, Antebuka 835a/2e, Betio, was Captain Teitia Redfern, the applicant’s father. There is no dispute that
Teitia Redfern was registered as the sole owner of the said land. Teitia Redfern owed one Geoffrey Hughes Pty Ltd a substantial debt resulting in him having to sell the land for the sum of $189,000.00 to the respondent in 2008 in order to pay off his debt to the company.

The applicants having learned of their father selling the land to the respondent, brought a High Court civil case No. 73/2008 against their parents and respondent. The applicant later discontinued that case.

There is no dispute that Teitia had the right to sell the land to the respondent. There is also no dispute that the respondent had properly registered the land in his name following the purchase of the land from the applicant’s father. Both in the Magistrate’s Court and High Court, no argument had been mounted against the right of Teitia to sell the land to the respondent nor was there any argument against the respondent’s right to register the land in his name after he purchased the land.

The applicant has taken the matter to the High Court three times. On the first occasion, the applicants challenged her father and respondent over the sale of the land. That case was withdrawn. On the second occasion, her application seeking extension of time to apply for leave to issue certiorari proceedings against the Magistrates’ Court’s decision approving the sale of the said land to the respondent was dismissed. The third occasion was an appeal against the Magistrates’ Court’s decision in Betlan No. 1214/14 ordering the applicants to leave the respondent’s land Antebuka 835a/2e at Betio. The appeal was dismissed by this Court which found that the applicant failed to show any defence to the eviction proceedings brought by the respondent.

Against the factual circumstances, as stated above, it would seem that any real chance of success for the applicant in challenging the respondent’s right to the land in question would be far-fetched. A reasonable chance of success in the appeal is one that has legal basis for succeeding, and not a mere hope of success.

It is for the Court of Appeal to decide whether the appeal actually succeeds or not. However, the facts and the arguments in this case do not justify the grant of a stay of execution pending appeal in the light of established principles set out above.

For the above reasons, the applicant’s application for stay of execution pending appeal is refused.

The costs of this application to be paid by the applicant to the respondent, to be taxed if not agreed.

Dated the 6^thday of May 2016

SIR JOHN MURIA
Chief Justice