EDITOR: There are four basic grounds on which an objection to recognizance/surety in an election petition can be made and a finding of insufficiency can be made.
(1) One or more of the sureties is insufficient. (The person(s) is insolvent or bankrupt).
(2) A surety is dead.
(3) A surety cannot be found or ascertained for want of sufficient description in the recognizance. (The person cannot be found or has moved overseas).
(4) A person named in the recognizance has not duly acknowledged same. (The person refuses to or has not accepted the obligation).
It is important to note, that these grounds are based on discovery made after surety would have been properly given (on the face of it), and the petition would have been served on the respondents.
In the case of both the Exeter and Baptiste petitions, it is clear that surety was not provided as stipulated by the law/rule.
Judge Simon Brown, in the case of Barrett v Tuckman, clearly indicated that the recognizance of the petitioner is not a surety. According to him, the issue was not one of sufficiency of surety, but a case of no surety.
Judge Stanton, in the New Zealand case of Lyttleton, also clearly indicated that the bond signed by the petitioner was not a surety as per the election petition rule.
The petitionersâ lawyers made heavy weather of the fact that in the election laws of New Zealand there is no provision for objection on the basis of sufficiency of surety. This is so because the New Zealand Election Rules (Section 250), in conjunction with the Crown Proceedings Act 1950 (Section 21), obligate anyone who signs a recognizance in an election petition case to meet their obligation by hook or by crook. So, they see no reason for such a provision.
I find the objection of the petitionersâ lawyers (which the judge seem to have agreed with) to the citing of the Lyttleton case by lawyers for the other side as bizarre, to say the least. Now, if the law does not cater for a case of objection on the basis of sufficiency of surety, where a situation meets the criteria for such an objection, nothing will happen (the culprit goes scot-free).The transgression cannot be transposed to another category so that a sanction can be applied. In any case the pronouncement of Judge Stanton is clear. It is a case of no surety, not insufficiency of surety.
Judge Grove, in the case of Williams v Mayor of Tenby (Supra), said the following: âfor I cannot distinguish between a matter of time and a matter of security; one is as important as the other, and if the statute is imperative as to days it is equally so as to security. It therefore means that if the rule is mandatory with respect to time, it is also mandatory with respect to surety/security for cost.â
With respect to the enlargement of time for doing anything related to the filing of an election petition, Judge Muniiti, in the Fatuma Zainabu Mohamed case (Supra), said the following: âthe rules cannot legislate a power for the extension of time which is not expressly authorized under the relevant section of the statute by the authority of which the rule is madeâ. If there is no express provision for the enlargement of time to deposit the security for cost, then the court has no authority to do so.