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Bureka v Quantick [2024] KIHC 27; Miscellaneous Application 77 of 2023 (8 January 2024)

IN THE HIGH COURT OF KIRIBATI 2021

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JUDGMENT
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1. The Applicants, by their Notice of Motion filed on 1 November 2023 applied for an order to stay the execution of the judgment in High Court Civil case 86 of 2020 delivered on 18 August 2023 and Magistrates’ Court cases Betlan 624/18 and Bailan 379/20.
2. There are three ground supporting the application including, that the Applicants have filed an appeal against the decision of this Court rejecting an application by the Applicants for an order extending the time to apply for leave to apply for order of certiorari, secondly, that the grounds of appeal do disclose an arguable case that may lead the Court of Appeal to reverse the decision of this Court, and finally, it may take some time before the Applicants’ appeal is heard unless an order staying execution is granted the Applicants’ appeal would be rendered nugatory and the Applicants would suffer great hardship. The affidavits of the Applicants Ben Bureka and Riin Bureka were filed to also support the application.
3. Ms Kabure, for the second Respondent strongly rejected the application based on a preliminary point of law that this Court has no jurisdiction to hear and consider the application. Both parties submit on this relevant point of law and the Court is very much assisted by these submissions (made orally, written submissions and through electronic mail).
4. Ms Kabure, emphasized that the relevant section for this type of application is section 18 of the Court of Appeal Act which is accepted by this court as clearly set out in this court’s decision in Koriri v Attorney General [2011] KIHC 14 and also in this court’s decision of Kiribati Insurance Corporation v ANZ (Kiribati) Ltd [2011]. This section provisioned for a Single Judge of the Court of Appeal to order a stay of this court’s decision. This court agrees with the Applicants’ submission that the provision as discussed by the former Chief Justice was done in the Court of Appeal by the Single Judge of the Court of Appeal (former Chief Justice who is President of the Court of Appeal as well as Single Judge of the Court of Appeal). To this extent, I agree with Ms Kabure that the Single Judge of the Court of Appeal decided in the Koriri case does not refer to the Commissioner of the High Court who is only appointed to perform the role of a Judge of the High Court and not appointed as Single Judge of the Court of Appeal.
5. The next valid issue to consider is whether the Commissioner of the High Court who performs the role of the Judge of the High Court can entertain the application currently considered?
   
6. The submissions pointed out as strongly argued by Mr Berina for the Applicants, and which are correct provisions of the Court of Appeal Act (1980), the relevant rules, also applicable in this case which 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.
7. 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.

8. However strong and persuasive Ms Kabure’s submission is, it is the decision of this court that the High Court judicial officers including the Commissioner of the High Court has power and jurisdiction to entertain the application for a stay of execution of this court’s decision pending the appeal to the Court of Appeal.
   

ORDERS OF THIS COURT:

1. The issue raised by the second Applicant on a point of law is rejected and that this court has power to hear the application.
2. Since Mr Berina has made submissions for a stay of execution of the judgment of this court and Magistrates’ Court judgments, Ms Kabure, should be ready to make reply submissions on 8 January 2024 at 2pm at High Court 2.
3. No order on cost.
   

Dated the 8^th of January 2024.

MR ABUERA URUAABA
COMMISSIONER OF THE HIGH COURT