Temwaka v Moreti - Judgment [2013] KIHC 35; Civil Case 153 of 2011 (1 March 2013)

IN THE HIGH COURT OF KIRIBATI 2013

CIVIL CASE NO. 153 OF 2011

BETWEEN

TOORUA TEMWAKA
TAUNTEANG BIIRA
PETITIONERS

AND

MARTIN MORETI
RESPONDENT

Before: Hon Chief Justice Sir John Muria

6 February 2013

Ms Taoing Taoaba for Petitioners
Mr Banuera Berina for Respondent

JUDGMENT

Muria CJ: This is an application for security for costs brought by the respondent, as a result of an election petition brought by the petitioner.

Following the national General Election on 21 October 2011, the respondent was declared elected as MP for Aranuka Constituency having polled 283 votes. His opponents polled respectively: Amberoti Nikora, 187 votes and Bauteiti Kokia, 90 votes. The election petition was filed by the petitioners were not candidates at the election. They brought the petition, however, on the basis that they were respectively, an elector and a registered voter, in the Constituency. No dispute has been raised as to the standing of the petitioners to bring the petition or to question their status as an elector and/or a registered voter. The Court therefore assumes that the respondent accepts that the petitioners were respectively an elector and a registered voter in Aranuka Island Constituency.

Mr Berina of Counsel for the respondent/applicant argued that this is an appropriate case for security for costs to be paid by the petitioners. There are many witnesses involved and this involves heavy financial expenses to ensure their attendance at the trial here in South Tarawa. Most of the witnesses are in Aranuka Island. Further Counsel submitted that there is also the legal costs in defending the petition. Should the respondent succeed in defending the case, he must be compensated for the costs of doing so.

In support of his application the respondent relied on his affidavit sworn to and filed on 27 January 2012. Paragraphs 2 to 5 of his affidavit set out his reasons for asking for security for costs:

"2. I have come to realize that defending the case against the petitioners is a very costly exercise. Not only am I going to pay my lawyer's fees for a trial that may last for days I may also have to pay for my witness' expenses including their airfares and subsistence whilst in South Tarawa.

3. Even if the hearing were conducted in Aranuka it will still be an expensive exercise because I will still have to meet the airfares of myself and two witnesses from Tarawa along with the airfare of my lawyer along with his subsistence allowance whilst in Aranuka.

4. My main concern is that should I be successful in defending the election petition against me, how am I going to be compensated for my expenses?

5. Both the Petitioners are unemployed. As such it is most unlikely that they will not be able to pay my costs should they lose their case".

I must say that the above paragraphs set out the respondent's cogent reasons for seeking an order for security for costs.

On the other hand, Ms Taoaba of Counsel for the petitioners submitted that, the petitioners are unemployed and have no means to pay security for costs. Counsel further added that for the Court to order the petitioners to pay security for costs when they have no means, would amount to depriving them of their right to pursue their case in their petition.
Ms Taoaba, therefore, submitted that this is not an appropriate case to order payment of security for costs.

The first issue to determine is the Court's power to order payment of security for costs. I have not been able nor Counsel were able to inform the Court of the existence of rules relating to election petition in Kiribati. Both Counsel, however, were aware of the Election Ordinance (Cap 29B) and its subsidiary legislation, the Elections Regulations 1977. In some jurisdictions, Election Petition Rules were made to provide for the procedure to be followed in election petition cases. Perhaps, and it is respectfully suggested, that such Rules be also made in this jurisdiction.

In the meantime, we can fall back on Section 37 of the Election Ordinance. That section provides:

"37. Subject to this Ordinance, and without prejudice to any power to make rules under the Constitution, the Chief Justice may from time to time make rules for regulating the practice and procedure to be observed in relation to election petitions, and subject to such rules the procedure at the hearing of an election petition shall, as near as circumstances will admit, be the same, and the Court shall have the same powers, jurisdiction, and authority, as if the Court were hearing a civil action; and witnesses may be subpoenaed and sworn in the same manner, as near as circumstances will admit, as in the hearing of a civil action in the Court, and shall be subject to the same penalties for perjury".

Thus, as Mr Berina submitted, in the absence of rules of practice and procedure on election petition, a fall back must be made on our High Court Civil Procedure Rules. I agree and the basis for it is section 37 (above) of the Election Ordinance.

Mr Berina also very helpfully referred the Court to the positions in other Pacific Islands jurisdictions, namely, Solomon Islands, Samoa and Papua New Guinea on the Court's power to order security for costs. In those jurisdictions, rules have been put in place imposing the mandatory requirement of security for costs in election petitions. I agree with Mr Berina that in our case, it is still very much a matter of discretion of the Court, in the exercise of its inherent jurisdiction.

The rules relating to costs in civil cases are set out in Order 65 of the High Court (Civil Procedure) Rules. In particular, O.65 r.4 provides as follows:

"4. In any cause or matter in which security for costs is required, the security shall be of such amount, and be given at such times, and in such manner and form, as the Court shall direct".
'
The question of costs is a matter of discretion of the Court. However where the Court determines that security for costs is required in an election petition, the Court will order it to be given, normally by the petitioner. Once security for costs is ordered, any non-compliance of it may render the petition liable to be struck out or stayed.

In the absence of legislative provisions governing election petitions, I feel the appropriate approach would be that before the Court can exercise its discretion to grant an order for security for costs, it has to be satisfied that it is just to make such an order, taking into consideration, in particular, the fact that respondent's costs if ordered to do so at the end of the trial, would not be met. This is the classic test for granting an order of security for costs.

In this case the petitioners themselves deposed to the fact that they were unemployed and would be unable to meet the amount of $20,000.00 security for costs as suggested in the respondent's affidavit of
27 January 2012. In her submission, Ms Taoaba reiterated the fact that the petitioners are presently unemployed and do not have funds to pay any costs. I must say that the admission by the petitioners of their inability to pay costs, lends support to need for an order of security for costs to be made. If the respondent succeeds in showing that the petitioners would be unable to pay the costs ordered against them if their claim fails, then the Court can order them to pay security for costs. It would not be fair to the respondent who has successfully defended the petitioners' claim only to be left uncompensated for the expenses he had to put through.

The Court, in most cases, will fix an appropriate amount as security for costs taking into account the circumstances of the parties and the case as a whole. I am mindful of according to the petitioners the opportunity to exercise their right to challenge the result of the election in Aranuka, which they claimed was tainted with illegal practices. In the same note, I also bear in mind that the respondent was duly declared elected through lawful electoral process. He is entitled to the presumption of the validity of his election until otherwise proved.

Bearing all these considerations in mind, I am satisfied that an order for security for costs is appropriate in this case. I therefore order that the petitioners pay security for costs in this case.

I accept the suggestion that the sum of $20,000.00 is slightly on the high scale in this case. Mr Berina did not press for the amount of $20,000.00 either. Counsel suggested a figure within the range of $10,000.00 would be acceptable as security for costs in the circumstances. I feel the proper amount of security for costs should be one of $12,000.00 to be paid within 30 days.

ORDER: (1) The respondent's application for security for costs is granted.
(2) The Petitioners to pay into Court $12,000.00 as security for costs within 30 days from the date of this order. Failure to comply with this order renders the petition liable to be struck out or dismissed upon application by the respondent.
(3) Costs of this application to be costs in the cause.

Dated the 1st day of March 2013

SIR JOHN MURIA
Chief Justice