Jurisdiction: Sierra Leone (Common Law Jurisdiction)
Court: High Court of Justice, General and Civil Division, Holden at Freetown
Presiding Judge: Hon. Mr Justice Fisher J
Date of Judgment: 3 March 2025
Case Number: C.C. 64/2023
Legal Area(s): Civil Procedure (Security for Costs, Stay of Proceedings), Access to Justice, Affidavit Evidence (Interlocutory Applications)
Tags: security for costs; ordinarily resident; Order 26; discretion; counterclaim; access to justice; stay of proceedings; video link evidence.
For the Plaintiff (Memunatu Kamara): Ms E.S. Banya, of counsel, A. Alie Esq (judgment only)
For the Defendant/Respondent (David Akeredolu): Mr E.N.B. Ngakui, of counsel, and B. Ndomahina, of counsel.
Legal Areas
Civil Procedure, Security for costs, Plaintiff said to be ordinarily resident out of the jurisdiction, Meaning of “ordinary residence”, Evidence required, Discretion under Order 26 High Court Rules 2007, Access to justice, Counterclaim dynamics, Distinction between security for costs on appeal (Court of Appeal Rules 1985) and security for costs at first instance, Stay of proceedings refused, Costs.
Procedural Posture
In ongoing High Court proceedings (trial already commenced), the defendant filed a notice of motion dated 12 February 2025 seeking (1) security for costs against the plaintiff in the sum of nLe 500,000, and (2) consequential stays of proceedings pending provision of security, including a further prayer that the plaintiff’s claim be dismissed in default and the defendant’s counterclaim proceed. The application was heard on 17 and 24 February 2025, and determined by Fisher J on 3 March 2025.
Facts of the Case
The underlying action was commenced by writ dated 18 April 2023. The defendant asserted that the plaintiff was ordinarily resident in the United Kingdom, relied on the fact that she was giving evidence by video link from the UK, and contended that she had no assets in Sierra Leone against which the defendant could recover costs if successful.
The plaintiff opposed the application. She maintained that her address remained 16 Annie Walsh Street, Freetown, and that she was only temporarily out of Sierra Leone, not ordinarily resident in the UK. She further disputed that she had no assets locally, pointing to material indicating an interest in property in Sierra Leone, including alleged contributions to the construction of shops and apartments, and an interest in leased property.
There was also a live defence and counterclaim. The defendant submitted that the plaintiff had been collecting rent since 2011 and that the defendant’s position in the property had not been determined.
Issues for Determination
Whether the defendant satisfied any of the gateway conditions under Order 26 rule 1(1) of the High Court Rules 2007, particularly whether the plaintiff was ordinarily resident out of the jurisdiction, so as to engage the security for costs regime.
If the regime was engaged, whether, having regard to all the circumstances, it was just to order security for costs.
Whether the court should grant any stay of proceedings pending the hearing and determination of the security for costs application, or pending provision of security.
Costs.
Arguments of the Parties
Applicant (Defendant)
The plaintiff was said to be ordinarily resident in the UK, evidenced by her absence from court in Freetown and her giving evidence by video link from the UK.
The defendant claimed he would be prejudiced because the plaintiff allegedly had no assets within the jurisdiction from which costs could be recovered.
The defendant relied on a Court of Appeal decision said to be John Michael Motors v Castrol Limited and Abu Kabba, and invited the court to lodge costs/security with the court.
Respondent (Plaintiff)
The defendant had not provided solid grounds or evidence to prove that the plaintiff was ordinarily resident outside Sierra Leone.
The plaintiff was not a nominal plaintiff and had business and property interests in Sierra Leone.
The defendant’s assertions about lack of assets were not supported by evidence.
The application was said to be misconceived and should be withdrawn, with costs.
Authorities Cited and Legal Framework Applied
Primary procedural rule
Order 26 rule 1(1) High Court Rules 2007, setting out the four gateways under which security for costs may be considered:
(a) ordinary residence out of jurisdiction,
(b) nominal plaintiff suing for another, plus inability to pay costs,
(c) address not stated or incorrectly stated,
(d) address changed to evade consequences.
Meaning of “ordinarily resident”
The court reviewed leading English authorities:
R v Barnet London Borough Council, ex parte Shah (House of Lords), for the settled principles defining ordinary residence.
Cozens v Brutus [1973] AC 854, for the distinction between ordinary meaning and statutory interpretation.
Fox v Stirk (1970), for propositions on residence and temporary presence or absence.
Discretion and sound principles
R v Wilkes (1770) 4 Burr 2527, for the classic statement that judicial discretion must be sound, guided by law, and not arbitrary.
Security for costs and counterclaims, access to justice
BJ Crabtree v GPT Communication Systems [1990] 59 BLR 43 (CA), on the practical unfairness of staying a claimant’s claim for want of security while leaving a defendant free to pursue a counterclaim.
Thistle Hotels Ltd v Gamma Four Ltd [2004] EWHC 322 (Ch), [2004] 2 BCLC 174, policy basis for security for costs and the principle that an impecunious defendant should not be prejudiced in defending the main claim by security on the counterclaim.
CT Bowring v Corsi [1995] 1 BCLC 148, strong rule of practice that a defendant is ordinarily at liberty to defend himself, and not called upon to give security.
Neck and Taylor (1893) 1 QB 560, for principles where counterclaim arises from the same matter or transaction, and the court considers what is just and fair overall.
Distinction drawn by the court
The court distinguished the relied upon Court of Appeal authority on the basis that it related to Court of Appeal Rules 1985 (rules 14 and 15) dealing with security on appeal, not the first instance discretion under Order 26.
Decision / Judgment
Held: The application for security for costs was refused. Consequential prayers for stays were also refused. The defendant was ordered to pay the plaintiff summary costs assessed at nLe 2,500. The matter was adjourned to Wednesday 12 March 2025 for further proceedings.
Court’s Legal Reasoning
(1) Gateway condition, ordinary residence out of jurisdiction
The court treated ordinary residence as a threshold issue. It observed that the defendant bore the burden of engaging Order 26 by proving, on evidence, that the plaintiff was ordinarily resident out of the jurisdiction.
Applying the principles in ex parte Shah, the court emphasised that ordinary residence is not proved solely by physical presence. The analysis includes a physical element and a mental element, connected to a voluntary, regular habitual mode of life and a degree of settled purpose.
On the facts, the court found that the affidavit in support did not establish, to the required degree, the subjective mental element necessary to conclude that the plaintiff was ordinarily resident in the UK. Evidence that the plaintiff was giving evidence by video link and had not attended court locally was not, by itself, sufficient. There was no evidence as to when she left Sierra Leone or her purpose in the UK.
(2) Even if ordinary residence is established, security is not automatic
The court stressed that ordinary residence outside the jurisdiction does not inevitably lead to an order for security. Order 26 requires the court to consider whether it is just, having regard to all the circumstances, and it highlighted the access to justice dimension.
(3) Discretion must be exercised on sound principles
The court anchored its approach in the orthodox concept of judicial discretion (as stated in R v Wilkes), and indicated that security for costs can operate as a barrier to pursuing a claim.
(4) Counterclaim dynamics and risk of injustice
The court placed significant weight on the practical effect of ordering security in a case where the defendant had a defence and counterclaim. Relying on BJ Crabtree, the court accepted that ordering security could effectively prevent the plaintiff from prosecuting her claim while leaving the defendant free to pursue the counterclaim, meaning the same issues would still be litigated but with the plaintiff’s “hand tied behind her back”.
This was reinforced by the policy reasoning in Thistle Hotels, and the general rule in CT Bowring v Corsi that the law is not designed to prejudice a party merely because of impecuniosity or residence issues, particularly where fairness requires both sides to have an equal opportunity to prosecute and defend their cases.
(5) Local assets and the res within the jurisdiction
The court noted that the substance of the plaintiff’s case included allegations that the defendant developed leased property into apartments and shops in Sierra Leone, rented them out, and collected rents without accounting. Those properties, being within Sierra Leone, reduced the claimed prejudice that the defendant would have no reach to satisfy costs or obligations. The court considered it inimical to justice to order security in circumstances that would tilt the litigation playing field.
(6) Stays refused
Given the refusal of security, the consequential stays sought (pending determination of the application, and pending provision of security) were refused.
Key Quotations from the Judgment
On the threshold evidence for ordinary residence: the court indicated that physical presence abroad was not, without more, enough to conclude ordinary residence.
On discretion: the court cited the classic statement that discretion must be sound, guided by law, not arbitrary.
On fairness where security would stifle a claim but leave counterclaim alive: the court adopted the logic that it is unattractive to oblige a party to litigate with one hand tied behind their back.
Ratio Decidendi
Where an application for security for costs is brought under Order 26 rule 1:
The defendant must first satisfy at least one gateway condition (including, where relied upon, proof that the plaintiff is ordinarily resident out of the jurisdiction), and such proof requires more than a mere showing of physical presence abroad.
Even if a gateway condition is met, the court must consider all the circumstances and only order security if it is just, with close attention to access to justice and the risk of stifling a party’s ability to prosecute their claim.
Where there is a defence and counterclaim arising from the same transaction, ordering security that would impede the claimant’s action while leaving the defendant free to pursue the counterclaim may be unjust.
Obiter Dictum
The judgment includes broader observations on:
The need for caution when security for costs may impede access to justice.
The distinction between first instance security for costs (Order 26) and appellate security regimes (Court of Appeal Rules 1985).
Final Orders / Reliefs Granted
Application for security for costs (nLe 500,000): Refused.
Application to stay proceedings pending determination of the security application: Refused.
Application to stay the action until security is fulfilled: Refused.
Matter adjourned to Wednesday 12 March 2025.
Costs of the application, summarily assessed at nLe 2,500, to be paid by the defendant to the plaintiff.
Commentary / Practice Note
Practical lessons on security for costs under Order 26
Evidence matters: Alleging foreign residence is not enough. The applicant should adduce evidence of where the plaintiff lives, for how long, on what basis, and with what settled purpose.
Ordinary residence is nuanced: Courts will distinguish between temporary presence abroad and ordinary residence, and will look for both objective and contextual indicators.
Security is exceptional in effect: Because it can stifle claims, courts will scrutinise the justice of ordering it, especially where a counterclaim would continue.
Counterclaim fairness: Where the counterclaim overlaps with the claim, ordering security may create an uneven playing field. Courts are reluctant to force a claimant to litigate defensively while being barred from advancing the main claim.
Correct authority: Do not conflate Court of Appeal security rules with the High Court’s first instance discretion under Order 26.
Table of Authorities and Other Laws Referred To (as cited in the judgment)
Sierra Leone legislation, rules, and procedure
High Court Rules 2007, Order 26 rule 1(1) (security for costs gateways and discretion).
Court of Appeal Rules 1985, rules 14 and 15 (security on appeal, discussed and distinguished).
Case law
R v Barnet London Borough Council, ex parte Shah (1983) 1 All ER.
Cozens v Brutus [1973] AC 854.
Fox v Stirk (1970) (as cited).
R v Wilkes (1770) 4 Burr 2527.
BJ Crabtree v GPT Communication Systems [1990] 59 BLR 43.
Thistle Hotels Ltd v Gamma Four Ltd & Ors [2004] EWHC 322 (Ch), [2004] 2 BCLC 174.
CT Bowring v Corsi [1995] 1 BCLC 148.
Neck and Taylor (1893) 1 QB 560.
John Michael Motors v Castrol Limited and Abu Kabba (Court of Appeal decision, cited by counsel, not provided to the court and distinguished).