Kautuntarawa v Kirata [2023] KIHC 50; Civil Case 29 of 2023; Miscellaneous Application 2023-02681 (22 December 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 29 OF 2023
MISCELLANEOUS APPLICATION 2023-02681

BETWEEN:
KAUTU KAUTUNTARAWA
KIATAAKE KAUTUNTARAWA
MANIKIATA TUTU
NEI KAUTU TETEKI
Applicant

AND:
REVEREND BARANITE KIRATA, TRUSTEE FOR KIRIBATI PROTESTANT CHURCH FOR KPC TIBERETI
Respondent

Date of Hearing: 20 DECEMBER 2023
Date of Judgment: 22 DECEMBER 2023

Appearances: Ms. Taaira Timeon for the Applicant
Mr. Banuera Berina for the 1^st Respondent

R U L I N G

1. This is an application for a STAY of execution of the Writ of Possession dated 1 December 2023.
   
2. The applicant, through Counsel, made submissions on the guiding principle for granting a stay, which is well illustrated in the case of Kiribati Insurance Corporation v ANZ Bank (Kiribati) Ltd High Court Civil Case 135 of 2010. As both parties agreed and as stated in our Court of Appeal Act section 29(6) and in the above case, the decision to grant the stay is entirely at the court's discretion. Further, neither party disputes the principle that an appeal shall not operate as a stay of execution. Section 25(1)(a) of the Court of Appeal Act is also specific on this principle.
   
3. For this Court to consider whether or not to grant the stay, two well-established principles must be regarded as a guide to this balancing exercise. The principles are as follows:
   
   • - The Court does not deprive a successful litigant of the fruits of his/her litigation;
   • - An appellant should not be deprived of the fruits of a successful appeal;
   • - The appellant must show special or exceptional circumstances to justify the grant of a stay. This principle is also used in support of the above principle.

4. The Australian case of The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited [1986] C.L.R 160 is referred to by the applicant in support of their application. Justice Dawson, in that case, is quoted below;
   

“Special circumstances justifying a stay will exist where it is necessary to prevent an appeal, if successful, from being nugatory. Generally, that would occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering money paid pursuant to the judgment. Special circumstances are not limited to that situation, and they will exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.”

5. Generally speaking, the above statement means that special circumstances exist if the application for a stay is not granted and the appeal would have no purpose. In order words, special circumstances will exist where, for whatever reason, there is a real risk that it will not be possible for the applicants to be restored substantially to their former position if their stay is not granted and judgment against them is enforced.
   
6. Counsel for the applicants submitted that the applicants’ special circumstance is stated in paragraphs 9 and 14 of Kautu Kautuntarawa’s affidavit which mentions that the applicants are residing on the land that no rents have been paid for by the Government and that they still have the belief that they want to stay on that land which they had received no rents. In my view, the argument about the rent certainly does not qualify as a special circumstance. As stated above, a special circumstance exists if the applicant can prove that their situation would not be restored substantially if enforcement is carried out. A good example is stated in the case above, which says that because of the financial state of the respondent, it would not be possible to recover the money paid out to him pursuant to the judgment. I believe if the applicants return possession of the land to the respondent, they can still take over it, together with the building on it, once their appeal is successful, as the land would still be there.
   
7. Counsel for the applicant also made submissions that the applicants’ special circumstance is that they have no other lands apart from this disputed plot and would be ruined if their stay is not granted. Unfortunately, as Counsel herself also agreed, this is evidence from the bar table as it is not supported anywhere in the affidavit of Kautu Kautuntarawa.
   
8. The second principle to consider is that the appellant is not deprived of the fruits of a successful appeal. This requires this Court to consider the prospect of success in the appeal. There are three significant grounds of appeal submitted by Counsel for the applicant. First, the choice of the process taken by the plaintiff (KPC Tibereti) under the Squatters (Recovery of Lands) Act, which gives no locus standi to the respondent to recover his sublease. The second is that the land in question is not leased. The third is the argument that they were not given an opportunity to cross-examine the witness of the respondent.
   
9. I agree with my predecessor, Justice Muria, in the Kiribati Insurance case mentioned above that, as High Court judges, it is not within our authority to say that the appeal will or will not succeed, as the Court of Appeal will properly decide the appeal. However, based on relevant factors, we can determine that the prospect of a successful appeal is slim, as in this case. There is a 2007 High Court Review case number 12 of 2007, which ruled that the land in dispute, the same land as in this case, is leased by the Government. As for the third ground regarding the right to cross-examine, I fail to see any evidence to show the evidence they would have stated to the court through their cross-examination. Nothing about this is mentioned anywhere in the affidavit of Kautu Kautuntarawa. These two findings are more than enough to declare that the prospect of success of this appeal is slim.
   
10. As I already mentioned in paragraphs 6 and 7 above, the applicant failed to show their special circumstance for this Court to grant their stay; the respondent would be prejudiced if the stay is given as they have been in occupation of the subleased land for more than 20 years when the applicants took over it in the middle of this year (a fact not disputed). For this, I adopt the first principle that the Court does not deprive a successful party of the fruits of their judgment.
    

Conclusion:

11. For all the reasons stated above, this Court makes the following decision;
    1. The application for a STAY is dismissed.
    2. Cost is awarded to the respondent to be agreed or taxed.
       

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice