Tofiga v Tauman [2021] KIHC 28; Miscellaneous Application 28 of 2021 (5 October 2021)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

Miscellaneous Application 28 of 2021 arising out of High Court Civil Appeal 3 of 2021

BETWEEN	KILISONE TOFIGA Applicant
AND	MARETA TAUMAN Respondent

Hearing:	10 June 2021
Appearances:	Ms Eweata Maata for Applicant Ms Elsie Karakaua for Respondent
Judgment:	5 October 2021

JUDGMENT

1. The Applicant through his lawyer, Ms Maata, applied to stay the execution of the decision of the court below in civil case 113/20 and secondly to set aside the decision of the Magistrate denying their stay application in Miscellaneous Application 5 of 2021.
2. The Applicant’s main ground shown in his application is the fact that he had filed an appeal against the Magistrates Court decision Betciv 113/20. The application was supported by the affidavit of the Applicant.
3. In considering the application, submissions by both counsels as well as the affidavits of the Applicant and Respondent, it is vital that this court exercises its discretion judicially with respect to the well-established principles and the law.
4. Ms Karakaua raised a valid issue with respect to appealing an interlocutory decision of the court below in MA 5/2021. The Applicant in his application wished to set aside an interlocutory decision in MA 5/2021 denying the Applicant a stay of the decision in Betciv 113/2020.
5. The application in itself cannot stand. The valid question is, what is the reason to set aside the interlocutory decision of the Magistrate in case MA 5/2021? Is the Applicant appealing against the decision?
6. The Applicant is only appealing against the substantive defamation decision in Betciv 113/2020 and since only fourteen days is allowed to appeal against the interlocutory decision of the court below, and there being no appeal against the decision, the application to set aside the decision in MA 5/2021 is misconceived and should not have been included as one of the applications to this court. The only application that is valid is for a stay of execution of the decision in Betciv 113/2020. This court has power to hear the application to stay the execution of the decision in Betciv 113/2020 even though the court below has decided on the issue.
7. Like I mentioned earlier, the decision to stay the decision of the court’s below is made discretionally in light of the valid principles and laws. One of the principles is set out in Lawrence Okafor v Felix Nraife (16 October 1987) Supreme Court of Nigeria, SC 89/87, stating that the Court does not deprive a successful party of the fruits of a judgment in his favour and lock up funds to which he is entitled, pending appeal.
8. The Applicant after being denied by the court below a stay of the decision in Betciv 113/2020, did not appeal against the interlocutory decision nor applied for a stay of the interlocutory decision. The Respondent took enforcement proceedings sometimes after the stay of execution decision in MA 5/2021 to which the Applicant now applied for the setting aside of the interlocutory decision and stay of the decision in Betciv 113/2020. This court agrees that the delay and inaction of the Applicant is impacting the Respondent from reaping the fruits of the judgment in her favour. However, it is vital to pay attention to the second principle to be discussed next before deciding the outcome of the application based on the first principle.
9. The second principle to be validly considered in a stay application is set out in Lynotype Hell Finance Ltd v Baker [1992] EWCA Crim 1; [1992] 4 All ER 889 ascertaining that is a stay is not granted, the Applicant would be ruined and that the Applicant has some prospect of success in his appeal.
10. The affidavit of the Applicant shows that the Magistrates Court entered liability for a defamation suit by the Respondent in the amount of $8000.00. The Applicant’s submission through his counsel set out that they are appealing against both the finding of liability in the suit and damages awarded.
    
11. I have read the findings of the court below and I agree with the Applicant that there is some prospect of success yet to be considered but would be crucial to the appeal in particular the reasoning of the court below in terms of the damages awarded in the amount of $8000.00. This court finds that if the decision of the Magistrates Court in Betciv 113/2020 is not stayed, and in light of some prospect of success in the Applicant’s appeal, there will is clear prejudice to the Applicant. It is therefore the decision of this court despite a strong opposition by the Respondent, to grant the stay of the execution of the decision in civil case Betciv 113/2020 until the appeal in CA 3/2021 is entertained.
12. Given that the second principle has been considered for the Applicant, there is no need to consider the third principle and that the application should be granted.
13. Orders of this court:

1. Stay of execution of the decision in Betciv 113/2020 is granted until the appeal in CA 3/2021 is decided;
2. No order on cost.
   

Dated 5^th day of October 2021

__________________________
Judgment of Abuera Uruaaba,
Commissioner of the High Court