Inatio v Berina [2020] KIHC 16; Miscellaneous Applicatin 82 of 2020 (1 July 2020)

IN THE HIGH COURT OF KIRIBATI 2020

MISCELLANEOUS APPLICATION NO. 82 OF 2020
ARISING OUT OF HIGH COURT CIVIL CASE NO. 48 OF 2020

IN THE MATTER OF THE ELECTIONS ACT 2019

AND

IN THE MATTER OF THE ELECTION FOR A MEMBER OF PARLIAMENT FOR THE CONSTITUENCY OF KURIA HELD ON THE 14^TH APRIL 2020

[IAON INATIO PETITIONER
[
BETWEEN [AND
[
[BANUERA BERINA RESPONDENT

Before: The Hon Chief Justice Sir John Muria

1 July 2020

Ms Kiata Kabure for Petitioner
Ms Taoing Taoaba for Respondent

JUDGMENT

Muria, CJ: The respondent in this case has applied for security for costs in the sum of $15,000. In support of his application the respondent filed an affidavit deposing to the fact that he would be calling five witnesses from Kuria.

2. In his affidavit the respondent states in paragraphs 8 to 12 as follows:

“8. The preparation and the trial will cost me $5,000.00.

+9. I will also be calling five witnesses from Kuria. Their airfares alone will cost me $1,000.00.

10. I will need them to come to Tarawa to have their affidavits sworn and will also require them to remain in Tarawa for at least 3 weeks pending the hearing of the petition. And as there is only one flight to Kuria per week, the witnesses may end up staying in Tarawa for at least 4 weeks.
    
11. During their stay in Tarawa I will be paying them some money to support them whilst they remain in Tarawa. At $50.00 a day, this is equivalent to $250.00 a day or at least $250.00.
    
12. I am asking for security for costs to be fixed at $15,000.00 having regard to the circumstances of the case”.
    

3. The Petitioner through Counsel made a counter-offer of $5,000 that he is prepared to pay as security for costs. Insofar as his affidavit shows, the main reason for the Petitioner’s counter-offer of $5,000 is that he felt the $15,000 is excessive. There is no suggestion in the Petitioner’s affidavit that he has the means to pay the security for costs sought by the respondent and that the only reason for making the counter-offer is his unwillingness to pay the amount sought by the respondent as he felt it is excessive.

4. The presumption in a case such as this clearly must be that the Petitioner is “unable” rather than “unwilling” to pay the security for costs sought by the respondent. In such a case the Court is likely to order security for costs where it is shown that the claimant/plaintiff will be unable to pay the respondent/defendant’s costs should the defendant successfully defends the case: Dr Teuea Toatu –v- Eteama Tiaeki and Others [2020] KIHC 13; Miscellaneous Application 65 of 2020 (9 June 2020).

5. In the case of Bart Willem Jozef Borst –v- Jerry Teng Mei Sheng and Another HCCW 141/2007, the Court reiterated that a party who is resisting an application for security for costs must do more than simply asserting that he is unable to provide security for costs. In the present case the Court does not know or have any information of the Petitioner’s resources nor his ability or inability to raise funds to meet the security for costs.

6. There is the suggestion that the strength of the Petitioner’s case as well as that of the respondent would not change and as such no new witnesses are needed by the respondent so as to incur additional costs. It is trite law that in an application for security for costs, it is not the function of the Court to make a preliminary run at deciding the ultimate success or failure of the case: Wing Hong Construction Ltd (in compulsory liquidation) –v- Hui Chi Yung and Others [2017] HKCF1 1483; HCA 1423/2015 (18 August 2017).

7. The two Miscellaneous Applications (Miscellaneous Applications 65/20 and 86/20) dealt with by the Court on security for costs, arising out of Civil Case 46/20, must be distinguished. In those two applications the parties, especially the applicants (who were seeking security for costs), agreed to negotiate a settlement and have agreed to reduced figures as security for costs. In these two cases, the Petitioner need not do anything further to establish why they were unable to pay the security for costs. The applicants in those applications had forgone their rights to insist that the petitioners should do more than simply asserting that they were unable to pay security for costs. See also Temwaka v Moreti [2013] KIHC 35; Civil Case 153 of 2011 (1 March 2013)

8. In a contested application such as the present one, the onus is on the party resisting an application for security for costs to show more than simply asserting that he is unable to pay. The facts deposed to in paragraphs 8 to 12 of the respondent’s affidavit have not been countered by the Petitioner at all. As such there is nothing before the Court to justify refusing the amount sought by the respondent as security for costs in this case.

9. The respondent’s application in this case must succeed. The Petitioner is to pay the respondent’s security for costs in the sum sought by the respondent.

10. ORDER: (1) Petitioner to pay into Court security for costs of the respondent in the sum of $15,000.00.

(2) The amount of $15,000 to be paid before the hearing date of the Petition i.e. 15 July 2020.

(3) Failure to pay security for costs may result in the petition being struck out.

Dated the 1^st day of July 2020

SIR JOHN MURIA
Chief Justice