Tabiteuea North Island Council v Koru [2021] KIHC 25; Miscellaneous Application 137 of 2020 (12 April 2021)

IN THE HIGH COURT OF KIRIBATI 2021

Miscellaneous Application No. 137 of 2020
Arising from High Court Land Appeal Case No. 53 of 2017

[TABITEUEA NORTH ISLAND COUNCIL
APPLICANT
[
BETWEEN [AND
[
[ABERAAM KORU
RESPONDENT

Before: The Hon Commissioner of the High Court

23 March 2021

Mr Monoo Mweretaka for Applicant
Ms Elsie Karakaua for Respondent

JUDGMENT

1. The Applicant, the Tabiteuea North Island Council by its Notice of Motion filed on 8 January 2021 applied for an order to stay the execution of the judgment in High Court Civil case 53 of 2017 delivered on 20 October 2020.
2. This court appreciate the submissions filed by both parties. However, before considering the arguments raised by counsels, I would like to point out the defects in complying to the Rules of this Court by the Applicant. The Notice of Motion filed does not state what Rule it is based on. Order 55 of our Civil Procedure Rules pertains to this issue of applications on motions. The Respondent on the other hand does not raise this valid point. It is vital for senior legal practitioners of this Court to always work in light of the Rules.
3. As Ms Karakaua pointed out and which are correct provisions of the Court of Appeal Act (1980), the relevant rules, applicable, are rules 25(a), 26(3) and 29(6). Those rules give the High Court power to order stay of execution or of proceedings pending appeal to the Court of Appeal. These provisions were never discussed by the Applicant when the Council is the one applying for recourse.
4. In this court’s decision of the former Chief Justice in Kiribati Insurance Corporation v ANZ Bank (Kiribati) Ltd [2011] 17, paragraph 12, it said that

“since the power to "prevent prejudice" under section 18(f) is exercisable by the Court of Appeal, the legal basis for this Court to order stay of execution must be found elsewhere. It is here that the difference between the power to order a stay by the High Court of its decision pending appeal and power of the Court of Appeal to grant a stay pending the determination of an appeal must be noted.”

I agree with the former Chief Justice’s decision and that this difference between the powers of the High Court and Court of Appeal should be clearly noted.

5. In considering the application, the Applicant’s sole ground for applying for a stay of execution is, that they have filed an appeal against the decision of this court to the Court of Appeal and that there is reasonable prospect of success in the appeal and injustice will occur if the stay is not granted. It is worth noting that the notice of appeal to the Court of Appeal was filed on the same date the Notice of Motion for a stay was filed, that was the 8^th day of January 2021 as shown by the official stamp of the High Court and disagree with Ms Karakaua’s submission about the lack of the High Court’s receipt stamp on the notice of appeal.
6. In Ms Karakaua’s submissions on behalf of the Respondent, Mr Koru, I agree with her submissions about the failure of the Applicant in filing its application to seek leave to appeal out of time. The judgment was issued on 20 October 2020 and the Notice of Appeal filed on 8 January 2021 more than the six weeks authorized by law. Even though that is the issue for consideration by the Court of Appeal, this court finds the Applicant’s appeal as unready and ill-prepared.
7. In considering the application for a stay, it is significant to mention that it is a well settled principles of law that a stay of execution is at the discretion of the court of law to be exercised judicially with respect to well-established principles.
8. The first legal principle is that the Court does not strip a successful party of the fruits of a judgment to its advantage and dispossess the successful party of the funds to which he is entitled, awaiting the outcome of an appeal. See Annot Lyle (1816) 1144; Lawrenawrence Okafor –v- Felix Nraife (16 Octo987) Supreme Court ourt of Nigeria, S.C. 89/87; see also Fortet Tourism Village Lage Limited –v- Attorney General et al (28/4/08) Cof Appf Belize, Civ. Apv. Apps 4 & 6 of 2008.
10. The second principle is that if a stay is not granted the applicant would be ruined and that he has some prospect of success in his appeal. This is settled in the case Lynotype-Hell Finance Ltd –v- Baker [1992]l ER 889.
11. The Applicant in its submission and application said that there is reasonable prospe success in their appeal toal to the Court of Appeal and that injustice shall occur if the stay is not granted. The submission of Mr Mweretaka reiterates the ground that they have reasonable prospect of success in that and with respect to the former Chief Justice’s decision, the license issued by the Ministry of Commerce does not in itself authorize the selling of liquor by the Respondent. There need to be another license approved under section 3(1) of the Liquor Ordinance which resulted in the seizing and prohibiting the selling of liquor by the Respondent.
12. The Respondent on the other hand argued that the Ministry of Commerce has issued the license allowing the Respondent to sell liquor as decided by the former Chief Justice and that the Applicant has no authority to seize or prohibit the Respondent from selling liquor.
13. Without any legal authority for the Applicant Council to seize and ban the Respondent from selling liquor, and given that the Ministry of Commerce has authorized the Respondent to conduct a liquor business, the Applicant is wrong to carry out and do such actions. With respect to the Court of Appeal, I agree with Ms Karakaua that the chance of the Applicant to succeed in this appeal is slim. Furthermore, this court finds that the affidavit of the Council’s clerk shows no specific explanation for what injustice to occur if the stay is not granted nor showed how the Applicant would be ruined.
14. The final principle is that the Applicant must show special or exceptional circumstances to justify the grant of a stay. The application and affidavit as well as submissions by the Applicant are not helpful in showcasing these special circumstances except to tell that an injustice shall occur. I find no exceptional circumstance to justify the grant of a stay in this case.
    
15. As a sitting Commissioner of the High Court, in light of the above considerations with respect to the three principles warranting a stay of execution of a High Court judgment, I exercise this court’s discretion and find that the application cannot stand and should be dismissed.
16. The application by the applicant for stay of execution pending appeal is dismissed with costs to the respondent, to be taxed, if not agreed.
    

Dated the 12^th day of April 2021

MR ABUERA URUAABA
COMMISSIONER