Toatu v Tiaeki [2020] KIHC 13; Miscellaneous Application 65 of 2020 (9 June 2020)

IN THE HIGH COURT OF KIRIBATI 2020

MISCELLANEOUS APPLICATION NO 65 OF 2020
(ARISING FROM HIGH COURT CIVIL CASE NO. 46 OF 2019)

[DR TEUEA TOATU APPLICANT
[
BETWEEN [AND
[
[ETEAMA TIAEKI
[MOIAREREI ATAUEA
[DR KAUTU TENAUA
[BETERO ATANIBORAU RESPONDENTS

Before: The Hon Chief Justice Sir John Muria

2 June 2020

Ms Elsie Karakaua for Applicant
Ms Taoing Taoaba for 1^st and 2^nd Respondents
Ms Kiata Kabure for 4^th Respondent
Mr Banuera Berina (on record, but not present) for 3^rd Respondent

JUDGMENT

Muria, CJ: The applicant in this case, Dr Teuea Toatu, is one of the three respondents in an election petition brought by the petitioners who are the respondents in this application. To keep it simple and consistent with the substantive election petition case, I will refer to the parties as the “petitioners” and “respondents”.

Brief background

2. Following the recent Parliamentary Election, the petitioners filed an election petition against the three successful candidates for the Abaiang Constituency. The three successful candidates were able to secure their seats after the second round of voting which took place on 22 April 2020.

3. One of the successful candidates who is the first respondent in the election petition has now applied to the Court for an order that the petitioners pay security for costs in respect of the election petition.

Security for costs

4. Security for costs is part of the measures taken by the Courts to ensure that a party against whom a case is brought recovers his costs of being dragged into Court and the action against him fails. The rules empower the Court to order a plaintiff or a claimant to pay security for costs, so that if he successfully defends the case against him he does not suffer the injustice of not being able to recover his costs.

5. The Court’s power to order security for costs is contained on O.65 r4 of the High Court (Civil Procedure) Rules. It is part of the rules of procedure applied in any civil action and which section 47 of the Elections Act 2019 sanctions its application as near as circumstances will admit.

6. I set out Section 47 of the Elections Act 2019 and O.65 r4 to show the connection between the two provisions. Section 47 states:

“47. Subject to this Act, 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”

and O.65 r4 states:

“r4. 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”.

7. Ms Karakaua of Counsel for the first respondent contended that security for costs is payable in election petition cases as in civil cases. Counsel further argued that by the combined operation of section 47 of the Elections Act 2019 and r4 of O.65 of the High Court (Civil Procedure) Rules, this Court retains the jurisdiction to order the petitioners to pay security for costs in the present election petition brought against the respondents.

8. Counsel further submitted that despite section 45(2) of the Elections Act 2019, the Court retains the power to order security for costs to be paid. That power is exercised at the discretion of the Court.

9. Ms Taoaba of Counsel for the petitioners, on the other hand, submitted that section 45(2) is mandatory and precludes any payment of security for costs by the petitioners. Section 45(2) states as follows:

“(2) Where an election petition has been presented to court under this section, the petitioner is not required to pay security costs to the Court”.

10. Ms Taoaba further submitted that the intention of the Act, in particular, section 45(2), is not to permit security for costs to be paid by the petitioners. Counsel suggested that section 47 does not apply and as such the Court must follow what section 45(2) states, namely that the petitioners cannot be required to pay security for costs in this case.

11. I find section 47 of the Elections Act to be unambiguous. It recognizes the power of the Court to preserve and regulate its own practice and procedure. It clearly applies to election petitions at the hearing of which the procedure to follow “shall as near as circumstances will admit, be the same” as that applies in a civil case. Not only that, but the Court shall have the same powers, jurisdiction and authority as in civil cases when dealing with election petition cases.

12. The next question to be determined, and one which is central in this application, is whether Section 45(2) of the Act prevents the Court from ordering payment of security for costs by the petitioner. The argument for the first respondent is that section 45(2) does not prevent the Court from making an order for the petitioners to pay security for costs. It is necessary, therefore, to consider subsection (2) and in particular the words “not required” used in that provision.

13. I feel the starting point here is the fundamental principle that “every person” in Kiribati is equal before the law and has the right to equal protection of the law under section 3 of the Constitution. For that reason, the question of security for costs cannot be regarded as an affront to the right of equal protection of the law. So that any interpretation of subsection (2) of section 45 which has the effect of creating a disparity between the parties when giving effect to their rights to be equally protected by the law would clearly be inconsistent with sections 3 and 10 of the Constitution which guarantee equal protection of the law and fair hearing held in public.

14. It is also important to note that subsection (2) of section 45 of the Elections Act 2019 is a new addition to the provisions on Election petitions. In the old Elections Ordinance 1977 (Cap 29B) which is now repealed, there was no such provision in section 37of that Ordinance, as that now appears in section 45(2) of the Elections Act 2019.

15. The position must clearly be that Parliament intends to ensure that the right of a person who is entitled under section 60 of the Constitution to present an election petition is not unduly over-burdened by requiring security for costs to be paid when presenting an election petition. Equally, it must also be noted that under the new Elections Act 2019, section 47 preserves the powers, jurisdiction and authority of the Court to regulate the practice and procedure to be observed in relation to election petitions.

16. In my view, any marriage between the application of sections 45(2) and 47 must have the effect of creating a parity between parties to a dispute, including an election petition, so as to ensure equal protection of the law and fair adjudication of the dispute between them. Thus the purpose of section 45(2) is to enable a petitioner to bring his or her petition without the undue burden on him or her of being required to pay security for costs. At the same time, the Court retains the powers, jurisdiction and authority under section 47 to order security for cost where there is a risk that the respondent will suffer the injustice of not being able to recover his costs should the petition fail. This is particularly so where the petitioner is said to be impecunious. See Temwaka –v- Moreti [2013] KIHC 11.

17. In this regard the argument by the petitioners that section 45(2) is mandatory and prevents the Court from making an order for security for costs against the petitioners cannot be sustained. This is because it can hardly be intended by Parliament to prevent the Court from exercising its power to order security for costs where such is legitimately required. The words “not required” in that provision are in reality an expression of an option in the negative and not a mandatory prohibition on the Court from exercising its powers, jurisdiction and authority under section 47 to order security for costs. This option is given to the Court, so that when exercising its discretion whether to order security for costs or not, it has to perform a balancing exercise. On the one hand it must ensure that no injustice is done to the petitioners through the imposition of security for costs which may prevent them from pursuing their claim and on the other hand to ensure that no injustice is done to the first respondent if the petition fails and having to face the risk of being unable to recover his costs.

18. The first respondent’s affidavit clearly shows that he is likely to incur costs in defending the petition against him and the petitioners are unlikely to compensate him for those costs should the petition fails. He states in paragraphs 4-7:

“4. Having read particulars of the Petition against me, I will also be summoning witnesses from Abaiang for my Defence.

5. I will expect to call 5 witnesses from Abaiang and in doing so I will pay their fares from Abaiang to Tarawa and bear the costs of their stay on South Tarawa.
   
6. I will also bear legal fees, court fees and other related costs when defending my case during the trial of the action.
   
7. I also know that both Applicants are unemployed and should I successfully defend the petition against me, I am worried that they will not be able to compensate me for the costs that I will bear”.
   

19. The onus is on the first respondent to show that the petitioners would not be able to meet any adverse costs that the Court may order should the petition fails. The petitioners are registered voters in Abaiang. They are unemployed and by themselves, they would not be able to meet the first respondent’s costs in this case. I am satisfied that in this case the first respondent’s concern that the petitioners who are parties to this case are unlikely to foot the bill for his costs has merit.

20. It is worth noting, though, that the losing candidate, Mr Tekena Tiroa who is not a party to this case, filed an affidavit stating that he would pay the costs of the petition on behalf of the petitioners. That in my view is a clear case of someone else (the losing candidate) providing the finance to fund the petition to be brought by the petitioners who are impecunious. That is no different to the position frowned upon by the South African Supreme Court of Appeal in
Boost –v- SAB [2015] ZASCA 93 where the plaintiff company was impecunious brought a claim against the defendant. The plaintiff brought the case at the instigation and funding of the shareholders who were really hiding behind the impecunious plaintiff company. The Supreme Court of Appeal had this to say in relation to the shareholders in that case:

“The picture that emerges is that although these shareholders are funding the litigation, they are doing so in a manner that allows them to hide behind the corporate veil of the plaintiff. No evidence has been adduced by them that there has been an attempt to raise funds to put up security for the respondent’s costs, but that they have been unable to do so. That reticence to take the court into their confidence should inexorably lead to the inference that the shareholders, who authorised the litigation on behalf of the plaintiff, impecunious as it was, are shielding behind an empty shell in order to avoid liability for costs”. (Underlining added).

21. As the Court stated in that case, there is no basis to differentiate between an impecunious company and impecunious natural person. It is obvious, therefore, that the petitioners in this case are impecunious but they have the financial backing to bring the election petition against the respondents. In such a case, the interested financial backers cannot be allowed to “shield behind an empty shell in order to avoid liability for costs”. He awaits to take the benefits of the litigation should it succeed and so he must also shoulder the impecunious petitioners’ liability for costs.

22. In my judgment, the first respondent’s application must succeed and it is ordered that the petitioners pay security for costs in this case.

23. No quantum has been assessed as security for costs yet. That is a matter for the first respondent who may wish to propose the amount of security for costs for formal endorsement by the Court. Any such proposal shall also be served on the petitioners.

24. ORDER: 1. The first respondent’s application for security for costs is granted.

2. The petitioners to pay security for costs in respect of the first respondent’s costs.
   
3. The first respondent to assess and propose the amount of the security for costs to be endorsed by the Court.
   
4. The proposal on the amount of security for costs to be filed in Court and served on the petitioners.
   

Dated the 9^th day of June 2020

SIR JOHN MURIA
Chief Justice