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Ngelea v Sikua [2011] SBHC 46; HC-SI CC 348 of 2010 (8 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona, J)

Civil Case No: 348 of 2010.

BETWEEN:

ALFRED MANE NGELEA
Petitioner

AND:

DR DERICK SIKUA
1st Respondent

AND:

ATTORNEY GENERAL
2nd Respondent

Date of Hearing the Application: 6th July, 2011.

Date of Ruling: 8th July, 2011.

For the Petitioner Mr M. Pitakaka.
For the 1st Respondent Mr G Suri.
For the 2nd Respondent Mr J Muria (Junior).

RULING

Faukona J: This application is by the First Respondent supported by the Second Respondent. The application is based on Section 85 of the National Parliament (Election Provision) Act which states;

".....subject to such rules, (rules made by Chief Justice for the practice and procedure to be observed in election petition) the procedure at the hearing of an election petition, shall, as near as circumstance will admit, be the same and the Court shall have the powers, jurisdiction and authority as if it were hearing a civil action..".

2. Such rules refer to above is identified as High Court Manual of Instructions and procedures on election petitions. However those instructions and procedures acquired their source from the Regulations attached to the National Parliament (Election Provision) Act.

3. Section 85 as the enabling provision, equated the procedure at the hearing of an election petition be the same, and the Court shall have the same power, jurisdiction and authority as if it were hearing a civil case. The applicable procedures upon hearing a civil case is guided by the Solomon Islands Court (Civil Procedure) Rules 2007.

4. It is this corresponding application of the law and the substantive law, that Mr Suri based this application on and reference is specifically to Rule 24.50 and 24.51 of the Civil Procedure Rules.

5. The motive for the application is perceived as two; it may be one with inherent connection. Mr Suri states by submitting, that should the Petitioner failed to cooperate to withdraw an allegation which supported by an uncorroborated contradictory evidence, he would apply to review the security for costs. The security for cost here refers to the Respondents cost of the proceeding. Mr Suri contended that by not withdrawing the allegation it would unnecessarily prolong the trial which mean he would call witnesses to rebut the evidence which is a waste of time.

6. Mr Pitakaka rely on Chapter 15.6 of the Rules that the Electoral Rules 1976 provide the procedure in relation to proceedings concerning national elections. Among other things, Mr Pitakaka's argument is based on $10,000.00 security for cost which the Registrar of High Court normally demands by virtue of Regulation 12 and in conjunction with Chapter 3.6 of the Manual of Instructions and Procedures of the High Court in dealing with election petitions.

7. The application which Mr Suri is pursuing can be distinguished from the $10,000.00 security for cost. This one is an additional one which the Court may grant as it considers appropriate for the Defendant/Respondent's costs of the proceedings. In view of the fact that three months have gone, and still the hearing will continue and upon considering a number of witnesses who still to be called the likely cost of the proceedings will accelerate. It is upon this assessment that Mr Suri based his application upon.

8. However the criteria upon which a Claimant/Petitioner may be ordered to give security for costs is expressly confine in Rule 24.52. Mr Suri based on the application criteria (g) that is the justice of the case requires the making of the order.

9. In considering this application the Court may have regard to any of the matters stated in Rule 24.53. Mr Suri specifically refers to (h) the likely cost of the proceedings.

10. In reference to paragraph 5 above, which I view as quite a hash approach employed by Mr Suri to give ultimatum to the Petitioner to respond cooperatively. The Petitioner did not succumb to that but persisted the cost will follow the events. On the outset, giving an ultimatum to a party to comply or consequences will follow, is quite a hash approach. If the Petitioner cooperates, will that tantamount to allowance for withdrawing the application for review of security for cost? I do not seem to think so. The application will still be made because the Rules has provided for it. I am quite mindful of Counsels approaches and languages used in Court. Where the law and rules provided for what ought to be done, may it be done plainly according to law and the provisions.

11. I noted the trust of this application, the longer this trial continues, the more likely a high cost will involve. I agree with Mr Suri's submission that $10,000.00 security for cost is insufficient. There is need to increase the amount. In particular where a large number of witnesses is contemplated to be called. The number of witness to be called and the time estimate to engage in the hearing should determine the amount of security for cost to be paid. I assure parties that I will take this matter forward to the administrative arm of the Court. Mean time may I assure the parties that the ongoing trial is well secured and I see no reason why it should be stalled.

12. In considering the relevancy of additional payment of security for cost, will it make any difference to pay now rather than later when the bills finally issued? Security for cost is a Court deposit and serves two purposes. One, if the Petitioner wins the case the whole entire cost reverts back to him. If he loses the case the money be paid to the Respondent to assist in the Respondent's costs of the proceedings. At this stage no one benefits from the Court deposit until an order of the Court is made at the final determination. In my view to pay additional security of cost now will be the same as paying the final bill at the end of trial. There is no difference at all. The only difference is that it assist the Petitioner should he loses the case; some additional money which he may not have expected is readily available to meet part of the costs.

13. Meantime, I do not wish to venture into the prospect of the success of the case as I do not wish to pre-empt the result of the case. It is still early and would be erroneous in law to do so.

14. With the above reasons I would refuse to grant the application.

The Court.