Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Teteki v Yeeting [2021] KIHC 22; Miscellaneous Application 36 of 2021 (4 November 2021)

JUDGMENT

1. By their notice of motion, the Applicants in this application applied for a stay of execution of the decision of the Magistrates’ Court in case Biklan 421/20. The main ground of making their application relates to their appeal against the decision. The motion was supported by Kaato Teteki’s affidavit.
   
2. The decision of the court below in 421/20 evicted the Applicants from land Banga 644a/1 and 644a/2. The Single Magistrate hearing the case found that the land is owned by the Respondent thus evicting the Applicants who have no title to the land.
   
3. The Applicants applied in the Magistrates’ Court in case MA91/2021 in which Principal Magistrate Amten considered the stay application and rejected the application.
   
4. Now the Applicants are applying again to have the decision of the Magistrates’ Court in Biklan 421/20 and MA91/2021 stayed until the appeal is decided. Ms Maata for the Applicants submitted that they filed their appeal with the High Court registry but seeing the copy tendered to this court, the notice of appeal was not endorsed and have not been officially received upon filing by the High Court registry. However, there is another endorsed copy in the substantive land appeal file 10/2021 but not officially received upon filing (no received stamp).
   
5. It is vital for counsel and the Applicants to ensure that they properly filed their notice of appeal according to the Rules of this Court and the court below.
   
6. Ms Maata, in her submission put emphasis on their prospect of success in their appeal against the eviction order decided by the Single Magistrate in Biklan 421/2020. I will discuss on this further below.
   
7. Mr Berina, who represented the Respondent strongly opposed the application submitting that the Respondent is the title-holder of land Banga 644a/1 and Banga 644a/2 and the Applicants are not. This assertion was not opposed by Ms Maata, only to respond that the Applicants have an interest in the land and to issue further proceedings to ascertain their ownership.
   
8. In considering an application for a stay of execution of a judgment whether in the court below or this court, it is the court’s discretion to decide based on the merit of the application.
   
9. The Principal Magistrate was correct when entertaining the stay application, to consider the merit of the appeal, exceptional circumstance of the Applicants warranting a stay, and whether there will be injustice to the Applicants if a stay is not granted.
   
10. After considering counsels’ submissions, there is no special or exceptional circumstance of the Applicants to warrant a stay of execution of the eviction order given in the Magistrates’ Court nor there will be injustice to the Applicants if the stay is not granted. Why I reached this conclusion is justified in who is the legal owner of land Banga 644a/1 and 644a/2. The Single Magistrate in Biklan 421/2020 after considering the evidence including the certificate of ownership found that the Respondent is the owner of the subject land and not the Applicants. In evicting the Applicants from the land owned by the Respondent, the Single Magistrate was right to gave the order.
    
11. Ms Maata, submitted that the Applicants will apply to correct their ownership of the land in dispute. There is nothing to prevent the Applicants from ensuring that they have a day in court to prove their right to land Banga 644 however, they should not just move onto or continue living on the land which is legally owned by the Respondent. Such action is a clear infringement to the right of the Respondent and his family to enjoy living on their land peacefully. With no legal title to the land in dispute, the Applicants prospect of success in their appeal is questionable and weak.
    
12. In light of the reasoning above, this court exercises its discretion to reject the application by the Applicants to stay the decisions in Biklan 421/2020 and MA91/2021.
    
13. ORDERS
    1. The application to stay executions of judgments in Biklan 421/2020 and MA91/2021are rejected and the case is dismissed;
    2. The Land Appeal 10/2021 should be fixed immediately after the translation is completed.
    100. No order on costs.
         

Dated the 4^th day of November 2021

__________________________
Judgment of Abuera Uruaaba,
Commissioner of the High Court