Tekabu v Kaumai [2018] KIHC 73; Miscellaneous Application 17 of 2018 (6 April 2018)

IN THE HIGH COURT OF KIRIBATI 2018

MISCELLANEOUS APPLICATION NO. 17 OF 2018
ARISING OUT OF LAND APPEAL NO. 9 OF 2018

	[MATARENA TEKABU [	APPLICANT
BETWEEN	[AND

[
[TETAENIKAI KAUMAI IBUKIN TE UTU RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

5 April 2018

Ms Taoing Taoaba for Applicant
Ms Botika Maitinnara for Respondents

RULING

Muria, CJ: BY their application by way of Notice of Motion, the applicants seek a stay of the Eviction Order of the Magistrates' Court made on 16 December 2017. Before coming to this Court, the applicants sought a stay of execution of the Eviction Order before the Magistrates' Court. That application was refused by the Magistrates' Court. The applicants have now come to this Court.

Principally, the reason for seeking a stay of the Eviction Order is because the applicants have lodged an appeal against the Eviction Order. Ms Taoaba argued that if a stay is not granted it would be unfair to the applicant since the applicants and respondents are from the same family and that they all have same rights to the same land. Counsel further submitted that the Eviction Order was obtained exparte, a stay should be given to enable the family to talk things over concerning the use of the land.

Ms Maitinnara of Counsel for the respondents, on the other hand, submitted that both the applicants and the respondents settled on the land Tannakonimatang 787e adjoining to the land that is now under dispute Tannakonimatang 787a. The Eviction Order came about because the applicants took their raised floor kiakia huts and put them up on the family land Tannakonimatang 787a without discussion about it with the other members of the family. Counsel submitted that it is only right and proper that the Eviction Order remains effective to enable the family members to discuss and resolve the matter.

The principles governing applications for stay of execution pending appeal are well settled. The applicants must show special or exceptional circumstances justifying the grant of a stay of execution. The principles were reiterated in Redfern -v- Mikaere [2016] KIHC 1; Misc. App. 13 of 2016 (6 May 2016) where stated:

"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 reason 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 -vFelix 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 their Notice of Appeal, the applicants raised two grounds, namely:

1. The Single Magistrate erred in law in hearing the case ex parte;
2. The Single Magistrate erred in law in ordering an eviction when the application is for injunction only.
   

The merits of the grounds of appeal will be decided by the Court when the appeal is dealt with. For now, and in the light of principles se out above, the Court will have to decide whether injustice will result if a stay is not granted to the applicant. In the present case the interest of justice and the maintenance of peace and harmony are paramount consideration in the mind of the Court. This is because those involved in the present dispute are all from the same family. The Court in the exercise of its powers, must assist the arties where possible to amicably resolve their dispute.

The facts of the present case show that the land in question Tannakonimatang 787a belong to both parties. Both parties have been residing on the land Tannakonimatang 787e. The use of the land Tannakonimatang 787a is a matter that has to be discussed and agreed to by members of the family. It is therefore contrary to the family's understanding over the use of the land Tannakonimatang 787a that one party should take upon itself the decision to do what it feels like without regard to the concerns of the other members of the family. It is therefore hardly surprising that the respondents are not happy with the applicants' action in this case.

In the Court's view, the principle of maintaining a status quo is useful to be applied in this case. That means both parties should be put into the positions they were before the applicants put up their huts on the land. This means that nothing is to be done on the land Tannakonimatang 787a unless all members of the family sit together, discuss and agree upon. Effectively, this means that the applicant must remove their huts or kiakia from the land back to where they were before the dispute started. The status quo of the land in question must be maintained. In this way no injustice will result to either of the parties by preserving the status quo before the dispute started.

The result is that the application for stay is refused. The eviction order continues in force in order to restore the status quo of the land Tannakonimatang 787a.

Application refused.

Dated the 6^th day of April 2018

_________________
SIR JOHN MURIA
Chief Justice