Tannang v Nakabuta [2021] KIHC 19; Miscellaneous Application 135 of 2020 (10 February 2021)

IN THE HIGH COURT OF KIRIBATI 2020

Miscellaneous Application No. 135 of 2020
Arising from High Court Land Appeal Case No. 68 of 2020

[KATEIA TANNANG APPLICANT
[
BETWEEN [AND
[
[RAIBO NAKABUTA
RESPONDENT

Before: The Hon Commissioner of the High Court

4 & 10 February 2021

Ms Kiata Kabure for Applicant
Ms Maere Kirata for Respondent

JUDGMENT

1. By her Notice of Appeal No. 68 of 2020 appealing against the Magistrates’ Court decision Miscellaneous Application 7/20, the Applicant in this case intended to appeal against the decision delivered on 26 August 2020. The Applicant in this case by her Notice of Motion applied for stay of execution of the decisions of the Magistrates’ Court in Miscellaneous Application 7/20 and Biklan 718/17. The motion was supported with grounds shown in the Motion and the sworn affidavit of the Applicant, Kateia Tannang.
   
2. The case Biklan 718/17 was the Respondent’s eviction case against the Applicant evicting her from land Tenono 741e/2a/1 which the Respondent owns as shown by certificate of ownership. The court below decided that the Applicant in this case should vacate the land belonging to the Respondent. The decision was given on 13 March 2020. Another vital decision for a stay of 718/17 was given in July 2020 in Miscellaneous Application 77/20. The court ordered a stay with respect to the judgment.
   
3. In the Miscellaneous Application 7/20, the Applicant brought an application to the Magistrates’ Court to do a retrial as per the decision of the High Court in High Court Land Appeal Case 122/87 of the distribution of the estate of an issueless owner Kabangaki Tekaie.
   
4. The court decided in Miscellaneous Application 7/20 that the Applicant has no locus standi to bring the application as she has no relation to the issueless owner Kabangaki Tekaie. The Applicant in this application then appealed against the decision in 7/20 in Land Appeal 68/2020 filed on 10 November 2020.
   
5. The Applicant in the court below applied to for a stay of decision 7/20 in the same case number but the court did not grant their application in its decision handed down on 9 December 2020.
   
6. On 28 January 2021, the Magistrates’ court issued an order against the Applicant to vacate land Tenono 741e in Ambo enforcing the eviction decision of Case Number 718/17.
   
7. On 29 January 2021, an ex-parte application was made by the Applicant’s lawyer to stay the eviction order issued as per decision made in case number Biklan 718/17. The court granted an interim stay on the eviction order until the decision is given in this application.
   
8. Section 74 of the Magistrates Court Ordinance states that in civil proceedings neither notice of appeal nor an appeal shall operate as a stay of execution of proceedings under the judgment appealed from unless this court decides otherwise clarifying directions. In other words, the power of this court is discretionary when it comes to ordering a stay on a judgment when applicable.
   
9. The written and oral submissions of both counsels are helpful in setting a clear picture of the events and proceedings between the parties.
   
10. The evidence before this court with respect to the application and the response of the Respondent is that, the Respondent owns land while the Applicant claims for her right to land Tenono 741e which is an issue to be decided in Land Appeal 68/2020 and has been living on the land for nearly ten years.
    
11. The Respondent and family have defended and issued many proceedings against the Applicant ascertaining their right to their land understood by this court however, it is also vital that the Applicant’s appeal relating to the same land is entertained before an eviction order is issued.
    
12. After thorough consideration of both parties’ submissions, it is in the best interest of justice that stay of execution of judgments in Miscellaneous Application 7/20 and Biklan 718/17 are made.
    
13. ORDER
    1. Application to stay executions of judgments in Miscellaneous Application 7/20 and Biklan 718/17 are granted;
    2. Stay of orders related to these judgments are granted;
    100. Land Appeal 68 of 2020 should be on the first hearing list of land appeal cases.
         
14. In light of the circumstances of this case, no order is made for cost.
    

Dated the 10^th day of February 2021

ABUERA URUAABA
COMMISSIONER