Motire v Flood [2016] KIHC 9; Criminal Case 35 of 2016 (28 June 2016)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION NO. 35 OF 2016
(ARISING FROM LAND APPEAL NO. 19 OF 2016)

BETWEEN

FIALUA MOTIRE ET AL
APPLICANTS

AND

BEN FLOOD MTMM
RESPONDENTS

Before: The Hon Sir John Muria

24 June 2016

Ms Eweata Maata for Applicants
Mr Tabibiri Tentau for Respondents

JUDGMENT

Muria, CJ: By their Miscellaneous Application No. 35/16 the applicants seek the following orders:

1. That leave be granted to the Applicants to file their appeal out of time against Biklan 140/15; and
   
2. That leave be granted to the Applicants to file amended notice of appeal against Biklan 140/13;
   
3. That a stay against Biklan 140/13, Miscellaneous Application 62/15, Miscellaneous Application 70/15 be granted pending the determination of the Applicant’s appeal to the Court of Appeal and Application for Review 2016; and
   
4. Such further Order which this Honourable Court may deem just.
   

On 20 May 2016, in Miscellaneous Application 34/16, this Court refused the applicants’ application for stay of execution of Miscellaneous Application 62/15, Miscellaneous Application 70/15 and Biklan 140/13. There is presently an appeal to the High Court against the Magistrates’ Court’s decision in Biklan 140/13.

The applicants are now seeking a stay of execution of the same decisions (Biklan 140/13, Miscellaneous Application 62/15 and Miscellaneous Application 70/15) of the Magistrates’ Court pending an appeal to the Kiribati Court of Appeal against this Court’s decision given on 20 May 2016 in Miscellaneous Application 34/16 and pending the hearing of an application for Review under Order 61 of the High Court Civil Procedure Rules of the Magistrates’ Court’s decision in
CN 98/71.

At the hearing of this application, the Court pointed out to Counsel that the order sought in paragraph 3 of the Notice of Motion is exactly the same as that refused in Miscellaneous Application 34/16. However the applicants now wish to achieve the same order by another route, namely to apply for a stay pending an appeal against the decision of this Court in Miscellaneous Application 34/16 and pending a Land Review Application against the Magistrates’ Court’s decision in CN 98/71.

It is plainly obvious in this case that the applicants are seeking the same order which was already refused by the Court through another route. As pointed out to Counsel for the applicants during the hearing, that this is bordering on an abuse of the Court process and cannot be allowed. For this reason, the order sought to stay execution of Biklan 140/13, Miscellaneous Application 62/15 and Miscellaneous Application 70/15 cannot be allowed and it is refused.

There is also another reason why a stay cannot be granted pending an appeal to the Kiribati Court of Appeal against this Court’s decision in Miscellaneous Application 34/16 – which was an interlocutory application. The order refusing a stay pending appeal made on 20 May 2016 was an interlocutory order. Leave is required to appeal to the Court of Appeal against an interlocutory order of this Court. No such leave has been sought nor granted.

It must also be pointed out to the applicants that in Miscellaneous Application 34/16 this Court ordered that they must vacate the respondents’ land
Tebikeieta 695o within 14 days. If the applicants are still on the land, then that is a breach of the order of the Court. The fact that they filed an appeal to the Court of Appeal does not entitle them to remain on the land pending their appeal. It is incumbent on their legal Counsel to properly advise them of the application of the law in such matter as this, particularly, in view of the order of this Court in Miscellaneous Application 34/16.

Mr Tentau correctly pointed out that an appeal does not operate as a stay. Clearly, the applicants ought to have been advised that they would be better off to comply with the order of the Court while their appeal is pending either to the Kiribati Court of Appeal or this Court. The period of 14 days given to the applicants to vacate the respondents’ land had come and gone with the applicants still remaining on the land. This is a blatant disregard for Court order.

There has never been any application nor an order to stay the order of this Court made on 20 May 2016 for the applicants to vacate the land within 14 days.

In the circumstances of this case, the Court will now order an immediate compliance with its order made on 20 May 2016. Failure to do so would amount to wilful disobedience to Court order and punishable for contempt of Court order.

The other order sought in the application is for leave to appeal out of time against Biklan 140/15 and to amend Notice of Appeal against Biklan 140/13. After hearing Counsel for both parties, I feel the Court can exercise its discretion and grant an extension of time for the applicants to appeal against Biklan 140/15. The Court also grants leave to the applicants to amend their Notice of Appeal against Biklan 140/13.

The orders of the Court are as follows:

1. A stay of execution against Biklan 140/13, Miscellaneous Application 62/15 and Miscellaneous Application 70/15 pending appeal to the Kiribati Court of Appeal against the decision of this Court in Miscellaneous Application 34/16 and Application for Review is refused;
   
2. Leave is granted to the applicants to file an appeal out of time against
   Biklan 140/15;
   
3. Leave is granted to the applicants to amend their Notice of Appeal against Biklan 140/13; and
   
4. The order made on 20 May 2016 for the applicants to vacate the land Tebikeieta 695o must be complied with forthwith.
   

Dated the 28^th day of June 2016

SIR JOHN MURIA
Chief Justice