Kiribati Port Authority v Attorney General iro The Beretitenti [2011] KIHC 56; Civil Case 144 of 2011 (14 November 2011)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

HIGH COURT CIVIL CASE 144 OF 2011

BETWEEN:

KIRIBATI PORT AUTHORITY
APPLICANT

AND:

ATTORNEY GENERAL iro THE BERETITENTI
RESPONDENT

FOR APPLICANT: MICHAEL TAKABWEBWE
FOR RESPONDENT: BIRIMAKA TEKANENE
Date of Hearing: 14 November 2011

JUDGMENT

This application was originally an ex parte application. The applicant, the Kiribati Ports Authority (hereinafter referred to as the KPA), in its originating summons, seeks the Court’s determination of the following questions:

1. the Order of the High Court in High Court Civil Case 113 of 2011 dated 10th October 2011 which is in the following terms;

“ Having heard Mr Takabwebwe of Counsel for the applicant and Ms Bruce of counsel of the respondent and bearing in mind that a stay is a discretionary remedy, and taking into account the authorities cited by counsel for the applicant, the Court therefore grants a stay of execution of the judgment of the High Court dated 28 September 2011 and any action connected with the execution of the said judgment until the appeal filed by the applicant/appellant is determined by the Court of Appeal.”

2. A declaration of the rights of the applicant under the Order dated 10 October 2011 that the appointment of new members of the Kiribati Ports Authority appears to be an action connected with the execution of the said judgment and therefore is in breach and in contempt of the above Order and thus invalid and of no effect, and

3. an injunction to restrain the new members of the Kiribati Port Authority as appointed by the Beretitenti by Order dated 13 October 2011 and from carrying out their duties and functions and from exercising their powers under this appointment until the determination of the appeal of the applicant by the Court of Appeal.

The court notes the importance of the questions to be determined and in the interest of justice require that the respondent be summoned to the hearing.

Before considering the substantive matter, it is imperative that we consider first the two preliminary issues raised by the respondent. The issues are as follows:

- Is the application in order so as to give this Court’s jurisdiction to hear and determine the questions put before it by the applicant?

- Does the person providing evidence by way of affidavit has a locus standi to make the application for and on behalf of the applicant (Kiribati Port Authority)?

Locus standi of Mr Aiaimoa

Counsel for the respondent submitted that the application cannot be filed for and on behalf of the Kiribati Port Authority by a person who has no locus standi. The application was filed in the name of the KPA but was supported by a one Aiaimoa. At the time the case was filed he was an acting Officer in Charge of the day to day management of the KPA in the absence of the General Manager. His directorship or membership was revoked on the 11 October 2011, 7 days before this application was filed. In other words, this application and supporting affidavit were filed 7 days after his membership had been revoked. That is the basis of this argument. Counsel for the respondent submitted that because Mr Aiaimoa’s membership had been revoked before he made his affidavit he has no locus standi to take out this proceeding.

Counsel for the applicant strongly argued that locus standi is not an issue here. And If it were an issue, his client or the old board were still there when the case was filed. He submitted that they did not know that their appointments had been revoked.

Although counsel submitted this from the bar table but there was no evidence to support this information. In fact the evidence that we have from Mr Aiaimoa as per paragraph 3 and 7 of his affidavit confirmed the opposite. He knew that his appointment had been revoked on 11 October.
Having stating arguments from both sides, the Court is then faced with an important question;
Whether or not locus standi of Mr Aiaimoa is an issue here?
Before considering this question it is important that we consider the law on locus standi.

Locus standi- The Law
The principle on locus standi is clearly defined in one of a free online dictionary which is the USLegal.com, http://definitions.uslegal.com/l/locus-standi/ as follows:

"...in law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case."

Lord Denning once wrote in R v Paddington, Ex parte Peachey Property Corporation Ltd [1966] 1 QB 380, that:

"The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done."

To my understanding locus standi is the principle that determines the rightfulness of the plaintiff's action in instigating a proceeding, whether he/she has a good standing to bring an action. In light of this understanding I will reject this argument. Mr Aiaimoa is not a plaintiff in this case, KPA is, and therefore locus standi of Mr Aiaimoa is not an issue. Mr Aiaimoa's involvement in this case is as a deponent only. As a general rule, an application could be supported by way of affidavit by any person whose evidence is relevant to the case.

However this is not the end of the matter, I feel that I must not stop here. It would only be fair that I expand this argument to consider whether or not KPA is the proper party in this case to seek the orders prayed for in the originating summons.

As a general rule a corporation such as KPA has the right to sue and be sued in its own name. A corporation can sue in respect of the rights that it has and be sued by others in respect of its liabilities. Section 4 (2)(e) of the Kiribati Port Authority Act 1990 states this. The law states that when the corporation or company suffers injury or when its interests and rights are being violated it is only the corporation/company itself to be the person enforcing its right. This is called the 'proper plaintiff' rule which comes from a well known case of Foss v Harbottle [1843] EngR 478; (1843) 2 Hare 461; 67 ER 189.

It follows then that the question to consider next is whether or not this application is for the benefits and interests of the KPA. Is the right to be declared in paragraph 2 of the Originating Summons is one that belongs to the plaintiff, the KPA? Is there a connection? Or is the action (as stated in paragraph 2) to be interpreted has sufficient connection to the right, benefit and interest of the KPA? By the wording of paragraph 2, the action to be interpreted as to whether it is in connection with the execution of the judgment is one that relates to the rights of the former members of the KPA. The KPA itself as a corporation has no connection to these rights. Although it was not argued along this line, I must say that KPA is not the proper party to seek this order from the court. Should the former KPA members want the Court to declare their rights in relation to the Beretitenti's action in appointing new members, they should do so by instigating proceedings in their own names.

Paragraph 3 of the originating summons seeks an injunction against new members of the KPA from carrying out their duties and powers as new members of the KPA. Is this really for the benefit and interest of the KPA? I found that this is totally against the company/corporation law principles. A corporation would want its members to carry out their duties and functions right after their appointment for the smooth and efficient running of its affairs. It would not be in the corporation's interest and benefit to restrain its board members from carrying out their duties and functions. Thus KPA is not a proper party to seek this order.

Although there are other actions by the Beretitenti which were also raised by Counsel for the plaintiff in his oral and written submission as being allegedly in breach of the Court Order dated 10 October 2011 the Court will not consider these actions as they were not pleaded in the Originating Summons. The actions are as follows:

- Order of the Beretitenti dated 11th October 2011 in which he transfers the responsibility in relation to the administration of the Kiribati Ports Authority Act (No.13 of 1990) from the Minister of the Ministry of Communications, Transports and Tourism Development to the Office of the Beretitenti; and

- Order of the Beretitenti dated 11th October 2011 which seeks to remove Kiribati Ports Authority from Ports and Harbour Services and hence from the Minister for Communications, Transports and Tourism Development;

Having said that this should be the end of the matter. There is no need to consider the other preliminary issue raised by the respondent. The same goes to the interpretation of the questions in the originating summons.

The application is, therefore, refused.

In view of the circumstances of this case, each party should pay his/her own cost.

TETIRO M SEMILOTA
COMMISSIONER