Robati v Tabwaia [2019] KIHC 129; Miscellaneous Application 59 of 2019 (16 July 2019)

IN THE HIGH COURT OF KIRIBATI

MISCELLANEOUS APPLICATION NO. 59 OF 2019
(ARISING FROM LAND APPEAL NO. 22 OF 2019)

[MATAKAI ROBATI
[RUTIA ROBATI
[TEARAOI TEKEA
[TEMAREWE TEKEA
[KIATAAKE KAUTUNTARAWA
[MORETI KAMOIRERE
[TAOIA TARATONGA Applicants
[
BETWEEN [AND
[
[TEAKATIA TABWAIA MTMM
[FOR THE FAMILY Respondents

Before: The Hon Sir John Muria

8 July 2016

Mr Banuera Berina for Applicant
Ms Taaira Timeon for Respondents

JUDGMENT

Muria, CJ: The applicants are seeking an order to stay execution of the Eviction Order made by the Magistrates’ Court on 23 May 2019. A temporary order staying the execution of the Eviction Order was issued by this Court on
6 June 2019.

2. In support of the application, the applicants rely on the affidavit of Temarewe Tekeaa who is one of the applicants. The applicants are all members of one family and are all residing on the said land in question which was the subject of the dispute between the parties in case Betlan 451/15.

3. The Magistrates’ Court’s decision in Betlan 451/15 was made on
9 June 2016 and the Eviction Order was issued on 23 May 2019 in Miscellaneous Application No. 105/18. The applicants have filed an appeal against the Magistrates’ Court’s decision made on 9 June 2016 in Betlan 451/15 together with an application for extension of time to appeal.

4. The application for extension of time to appeal and the grounds of the draft Notice of Appeal raise serious legal issues, in so far as the rights of the parties on the said land 824e, Betio is concerned. On the face of it, the provisions of the Limitation Act 2004 as raised in the grounds of appeal, may have impact on the rights of the parties in this case, having occupied the land for over 60 years without interruption. That issue can only be properly considered if the applicants who raised the issue are allowed the opportunity to be heard on it.

5. Additional to the serious issue on time limitation, the applicants could not raise the issue of their continuous uninterrupted occupation of the said land because they were not served with Notice to attend the Magistrates’ Court hearing in Betlan 451/15. For that reason, the justice of the case demands that an opportunity be given to the applicants to be heard on such an important legal issue.

6. There is always discretion in the Court to grant or refuse stay of execution: Kiribati Insurance Corporation –v- ANZ Bank (Kiribati) Ltd [2011] KIHC 17; and Redfern –v- Mikaere [2016] KIHC 1. In many cases the discretion is exercised taking into account the risk of injustice to either of the parties in the case:
Koriri –v- Attorney General [2011] KIHC 14.

7. In the present case, taking into account the arguments made on behalf of both parties and considering the matters raised in the parties’ respective affidavits, the Court is of the view that justice will be served in this case if a stay of execution of the Magistrates’ Court’s Eviction Order made on 23 May 2019 is granted. There are serious issues that the Court needs to properly consider in this case when the applicants’ application for extension of time to appeal and the appeal itself are dealt with by the Court.

8. The applicants’ application for stay of execution of the Magistrates’ Court’s Eviction Order issued on 23 May 2019 is granted pending the hearing and determination of the applicants’ application for extension of time to appeal and/or the appeal.

9. ORDER:
1. Application granted

2. Eviction Order of the Magistrates’ Court dated 23 May 2019 is stayed accordingly.
   

Dated the 16^th day of July 2019

SIR JOHN MURIA
Chief Justice