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Supreme Court of Nauru |
IN THE SUPREME COURT OF NAURU
COURT OF DISPUTED RETURN
YAREN
Miscellaneous Cause No. 70 of 2016
In the matter of an Election Petition in
the Constituency of Meneng
IN THE MATTER OF PETITION BY
SPRENT DABWIDO
APPLICANT
LIONEL AINGIMEA AND TAWAKI KAM
FIRST RESPONDENTS
ELECTORAL COMMISSIONER
SECOND RESPONDENT
Before: Khan J
Date of Hearing: 7 September 2016
Date of Ruling: 12 September 2016
Case may be cited as: Dabwido –v- Aingimea and Kam& Another
CATCHWORDS:
Elections- General elections in Nauru-Election petition- Whether election petition a nullity if petitioner not complying with requirement to serve the petition and notice of security for costs within prescribed period- Electoral Act 2016 and Election Petition Rules 2016.
APPEARANCES:
For the Applicant: Mr P Nimes
For the First Respondent: No Appearance
For the Second Respondent: Miss A Lekenaua
Amicus Curiae : Mr J Udit (Solicitor General)
___________________________________________________________________________
RULING
__________________________________________________________________________
BACKGROUND
SUMMONS/ APPICATION
Section 95 provides that the Supreme Court is the Court of Disputed Returns and is empowered to hear and determine a petition and s102 provides that the decisions of the Court of Disputed Returns are final and conclusive and may not be questioned or appealed to any other Court.
Section 93(1) provides that no results of an election published under s88 may be challenged except by election petition (a) by a candidate, or(b) by a person who is qualified to vote in the election the subject of the petition.Section 93 (2) provides that a petition must be presented in accordance with the provisions of this part.
Section 96 provides a petition disputing an election or the declaration of an election must:
S97 provides at the time of filing the petition, the petitioner must deposit with the Registrar of the Supreme Court $500 as security for costs.
S98 provides that the Court of Disputed Returns may, on the application of a respondent to a petition, order a stay of proceedings if the petitioner has failed to comply with s96 or 97.
The Court of Disputed Returns sits as an open Court and its powers include the following:
Section 100(2) provides that the Court of Disputed Returns may exercise all or any of its powers under this section or on such grounds as the Court in its discretion thinks just and sufficient.
S101 provides the Court of Disputed Returns must be guided by good conscience and the substantial merits of each case without regard to legal form and technicalities and is not bound by any rules of evidence.
S107 provides for the Chief Justice may make Rules of the Court to give effect to this Part of the Act and in particular for regulating the practice and procedure of the Court and the forms to be used.
Election Petition Rules
Rule 8 provides that the petition and notice of payment of security for costs must be served by the petitioner within 7 days exclusive of the day of presentation.
Rule 7 provides that at the time of filing, the petitioner must deposit $500 in the Registry as security for costs and no petition may be processed until payment has been made.
Rule 9 provides:
(1) Service of the petition and notice of security for costs on the respondent, and on the parties in general must be personal.
(2) Despite sub-rule (1), if the Judge is satisfied on receipt of an application no later than 3 days after filing petition that all reasonable efforts have been made at service, the Judge may:
- order what has been done constituted substituted service subject to the conditions as he or she thinks reasonable; or
- make an order for substituted service as provided by the Supreme Court Rules.
(3) Upon filing, the petitioner must:
- leave at the Registry a written address within the jurisdiction at which documents addressed to him or her may be left; and
- when none is given, then subject to sub-rules (1) and (2) all other notices of objections to the recognisances and all other notices and proceedings may be given by posting them up on the notice board of the Court.
(4) In case of evasion of service, the posting of a notice of petition having been filed, stating the petitioner, the prayer and the notice of security for costs is equivalent to personal service if so ordered by the Court
Rule 30 provides that the Court may for good reason enlarge any period of time prescribed by these Rules.
The Court of Disputed Return has enjoyed a different status in terms of jurisdiction as opposed to an ordinary civil court. In Patterson –v- V Solomon 1962 All E.R 20 it was stated by the Privy Council by (Viscount Simonds, Lord Denning, and Lord Jenkins) as follows at page 24:
“At once, on the opening of the appeal, learned counsel for the respondent took the objection that no appeal lay to Her Majesty in Council from the decision of the Supreme Court of the Colony in a matter affecting membership of the Legislative Council and consequently affecting also membership of the Executive Council in the office of Minister. It was open to him to do so notwithstanding that special leave to appeal had been granted. The objection can conveniently be examined on the footing that the appellant’s claim had been maintained in its entirety. On this footing, it appears to their Lordships that it must be sustained. Adapting the words of Lord Cairns, L.C., in Theberge v Laudry (No 2) they are of the opinion that, on a fair construction of the Order in Council it does provide for the decision of the Supreme Court of mere ordinary civil rights, but creates an entirely new jurisdiction in a particular Court of the Colony for the purpose of taking out of Legislative Council with its own consent and vesting in that court the very peculiar jurisdiction which had existed in the council itself in determining the status of those who claim to be members of the council. If so, it follows that the determination of that Court is final, and that from it no appeal lies. Nor does this rest on the validity of the assumption that, apart from s40 of the Order in Council, the question could be determined by the council itself. In this de Silva v A.G. for Ceylon (3) it was made clear that the same principle applies whether or not the jurisdiction vested in the particular court had previously been exercised by the legislative body. As was said in that case (4), the dispute is one which
“concerns the rights and privileges of Legislative Assembly, and, whether that Assembly assumes to decide such a dispute itself or it is submitted to the determination of a Tribunal established for that purpose, the subject-matter andis such that the determination must be final, demanding immediate action by the proper executive authority and admitting no appeal to His Majesty in Council.”
“[18] In adopting this strict approach, our Courts have stated that the jurisdiction of the election court is a very peculiar jurisdiction one, which is not the ordinary civil jurisdiction of the court. It is seen essentially as a parliamentary jurisdiction assigned to the judiciary by the various constitutions and by legislation. It has been stated that it is not a jurisdiction to determine mere ordinary civil rights. Thus, in Browne v Francis-Gibson and Another 1995 50WIR143, in which this Court extensively reviewed the jurisprudence of the Privy Council and the House of Lords in the foregoing and other cases, Sir Vincent Floissacc JJ stated as follows:
“The Judicial Committee of the Privy Council has repeatedly affirmed that the jurisdiction conferred on local courts of a British Colony or former British Colony to determine questions as to the validity of elections and appointments to the local legislature is a peculiar and a special jurisdiction in at least 5 respects. Firstly, constitutionally the jurisdiction is essentially a parliamentary jurisdiction conveniently assigned to judiciary by the Constitution or by legislature. It is not a jurisdiction to determine the mere ordinary civil rights. Secondly, the parliamentary questions which the local courts are constitutionally or statutorily authorised to determine are expected to determine expeditiously so that the composition of the legislature may be established as speedily as possible. Thirdly, the legislature must have envisaged that the parliamentary questions would be determined either on their merits or purely on procedural grounds and without hearing evidence. Fourthly, because of the urgency of the parliamentary questions, the legislature is presumed to have intended that the decisions of the local original and appellant courts would be unappealable to Her Majesty in Council. Finally, the presumption against appeals to Her Majesty in Council is usually confirmed by imperial or local legislation declaring the decisions of the local courts to be final and unappealable. In any event, the presumption is rebuttable only by specific imperial or local legislation unequal locally authorising such appeals.”
Summons
Service of Petition and Notice of Payment of Security for Costs
Whether both petition and security to be served?
15. The issue is whether the service of the petition alone would suffice or would the notice of security for costs also have to be served. Rule 8 and 9 states that notice of security for costs must be served. There is no format for the notice of security of costs in the Rules or the Act. A similar issue was raised in Ahmed v Kennedy and another and Ullah andothers v Pagel and another 4 All E.R. 764 (Ahmed v Kennedy and others). The security for costs was paid in the sum of £2,500 which was the maximum amount payable under s136(2) of Representation of the People Act 1983. Notwithstanding the payment the 2 election petitions arising out of local government elections were struck out on the grounds that the petitions in each case were a nullity as the petitioners failed to serve on the respondents a notice as required by s136(3) of the Representation of the People Act 1983. For the sake of completeness I refer to the judgment of Hopper, J where he stated as follows at [paragraphs 3 to 14]:
“[3] We shall, for convenience call the two cases, the ‘Birmingham Case’ and the ‘Manchester Case’. At the outset of the proceedings we struck out the part of the petition in the Birmingham case containing allegations against the second respondent, the returning officer at his request, and with the consent of the petitioner. Although allegations were made in the petition against the second respondent, the petitioner made it clear, at the time of service of the petition, that he did not intend to proceed against him.
[4] Before examining the law we set out the agreed facts relating to what was served within the time limits by the solicitors for the petitioner in the two cases. In the Birmingham case the solicitor for the petitioner sent a letter, a photocopy of the election petition and a notice of an application to fix a security. In the Manchester case the petitioner served on the first respondent, the successful candidate in the elections, a photocopy of the election petition and the application to fix a security. All that the second respondent, the returning officer, received was a photocopy of the election petition. The photocopies of the election petitions were copies of the petitions as filed and thus all bore a copy of the standard Supreme Court stamp showing the date on which the petitions had been filed. These documents were received by the respondents within the time limits laid down by the Act and the rules. There is no dispute that in both cases there was non-compliance with the provisions of the Act and the Rules. The petitioners did not seek an order extending the time limits.
[5] The thrust of the argument on behalf of the petitioners is that this court should waive the defects in the exercise of its discretion under CPR3.10. The thrust of the case presented by the respondent is that no such waiver is possible, the requirements of the Act and the rules being mandatory. Compliance is a condition precedent to the petition proceeding and therefore the petitions in both cases are a nullity.
[6] We now turn to the relevant sections of the Act and the Rule made pursuant to s182 of the Act.
[7] Section 129(1) of the Act provides that a petition questioning the election under the Local Government Act ‘shall be presented within 21 days after the date on which the election was held’. The petitioners complied with that provision.
[8] Section 136(1) provides:
‘ At the time of presenting an election petition or within 3 days thereafter the petitioner shall give security for all costs which may become payable to him to any witness summoned on his behalf or to any respondent.’
[9] By virtue of s136(2) the maximum amount of security is £2,500 and shall be given either by way of a recognisance or by the deposit of money, or partly in one way and partly in the other. In this case the petitioners, within the necessary three days, obtained an order from the master that they should deposit £2,500 as security. They complied with this order in time.
[10] Section 136(3) as substituted by s24 and para 48(d) of Sch 4 to the representation of the People Act 1985 provides:
“Within the prescribed time after giving the security the petitioner shall serve on the respondent in the prescribed manner – (a) A notice of the presentation of the petition and of the amount and nature of the security; and (b)A copy of the petition.”
Neither the Act or the Rules laid down a prescribed form for giving notice.
[11] The reference to the prescribed time is a reference to the time as prescribed by the rules. Mr Griffin accepted that reference to the amount and nature of the security must be a reference to the security which has been given. This made is clear in R6 which provides:
(1) “Within five days after giving the security the petitioner shall serve on the respondent within the meaning of section 121(2) or section 128(2) of the Act and on the Director of Public Prosecutions a notice of presentation of petition and of the nature and amount of security which he has given, together with a copy of the petition and of affidavit accompanying any recognisance.
(2) Service shall be effected in the manner in which a claim form is served and a certificate of service shall be filed as soon as practicable after service has been effected.”
[12] Neither the Act or the rule gives any guidance as to what a ‘notice of the presentation of the petition’ should contain. Atkin’s Encyclopaedia of Court Forms in Civil Proceedings (18)(1) Court Forms (2nd edn) (200 issue) 263, Form 13 includes a suggested notice. The notice reads as follows:
‘Notice of presentation of petition
....TAKE NOTICE that an election petition, a true copy whereof is annexed hereto, relating to the abovementioned election was duly presented to the Court by A.B., the petitioner therein mentioned on ........ 20..
AND FURTHER TAKE NOTICE that [security has been given or is intended to give security] as required by Section 136 of the Representation of the People Act 1983 (recognisance to be entered into by N.O of [address] and PQ of [address] as security in the sum of [£....] or deposit by payment into court of the sum of [£...].
Dated ..... 20......
[signature] of [address]
Solicitors for the petitioner AB
To ... of [address]
[13] It will be seen that in the first paragraph of the form the solicitor is attesting to the fact that the election petition has been presented and when it was presented. The second paragraph is dealing with the requirements on a petitioner to inform the respondent “of the nature and the amount of security which he has given”.
[14] No such form was used in this case. In the Birmingham Case the letter accompanying the petition said ‘I enclose an election petition by way of service.’ As we have already said, the copy petition which was served had the Supreme Court stamp showing when they had been issued. Although both respondents in the Birmingham Case and the first respondent in the Manchester Case received a copy of the application for an order fixing the amount of security, the respondents did not receive any document which would have shown them “the nature and the amount of the security which had in fact been given. In the Birmingham Case the required certificate of service was inaccurate as to what had been served.”
Appeal to Court of Appeal
“Part III of the 1983 Act, within which s136 fell, and the Rules made thereunder together comprised a discrete and purpose built statutory scheme which covered the High Court’s role in the procedure. Where the legislation intended to provide for the softening of any mandatory requirement, it expressly said so. The Act expressly provided for rules of procedure for the purposes of Pt III, and it was plain that those bespoke rules had inevitably to prevail over general rules in the CPR. Accordingly r.19 trumped CPR 3.10 and 3.1(2)(a). It was true that not every typographical and other error would necessarily constitute non-compliance with the legislative requirements but where a notice was served which failed to address each of these two specified statutory requirements, as had occurred in the instant case, it was could not be said that there was timeous compliance with the legislation. That failure required the striking out of the petition as there was no discretion in the Court to do otherwise. Timeous service was imperative, r19 being mandatory.”
The Court of Appeal considered amongst other cases the cases of Williams v Mayor of Tenby (1879 5CPD135, DC) and the case of Nair v Teik [1967] 2 All E.R. 34 and at paragraphs 14 and 15 it stated as follows:
Williams v Mayor of Tenby
[14] Section 13(4) of the Municipal Elections Act 1872 was again in substantially the same terms as 136(3) of the 1983 Act. No notice was ever having been given under the subsection the respondent successfully applied to Lopes J to strike out the petition, that order being upheld by the Court of Common Pleas (Grove J, together with Lopes J). Grove J said this 1879 5CPD 135 at [137-138]:
“It is said that there would be hardship supposing deposited, if mere omission of notice should prevent a petition. I see no more hardship than may occur in any case where a definitive time is to be observed, and I see good reason why it should be so. There are two alternatives given, that it is reasonable that the parties should know which has been adopted, viz, deposit or recognisance, and if the letter that it should be sent instantly on inquiry whether the securities are good and valid or not. [The Judge then referred to the relevant rules which provided for any objection to the proposed security to be made within 5 days.] So not only is the person depositing security limited by the rules as to time, but the person objecting to security is limited likewise. If we were to carve out this procedure what is permissive and what is peremptory, we should launch persons into greater litigation than even they embark on, for we should be asked to vary the particular time in each case. I think the petitioners in these cases are advised by competent persons, and ought to pursue the provisions of Act. One other argument was founded on rule 44, that “all interlocutory questions and matters, except as to the sufficiency of the security, shall be heard and disposed of before a Judge, who shall have the same control over the proceedings under the [1872 Act] as a Judge at Chambers in the ordinary proceedings of the superior courts...” That rule seems to leave the question where it is. If it is a matter of procedure, then the judge will have some powers. But if the Act does not give these powers, then he has them not. The question still is whether the provisions of the Act are or are not peremptory. I think they are peremptory, and the terms are not complied with are conditions precedent, which ought to be complied with before the petition could be presented. The appeal must be dismissed.”
Nair v Teik
“[15] Rule 15 of Sch 2 of the Election Offences Ordinance of Malaysia [number 906 1954] provides:
‘Notice of presentation of petition, accompanied by a copy thereof shall within ten days of the presentation of the petition, be served by the petitioner on the respondent.’
[16] The rule provides in certain circumstances for service of a notice published in the Gazette but such notice was in the event out of time. In giving the opinion that the respondents appeal should be allowed and the petition struck out Lord Upjohn [1967] 2 All ER 34 at 40, [1967] 2AC31 at 44-45] on behalf of the Privy Council said this:
So the whole question is whether the provision of r.15 are “mandatory” in the sense in which that word is used in the law, i.e., that a failure to comply strictly with the times laid down renders the proceedings a nullity; or a “directory”, i.e., that literal compliance with time schedule may be waived or excused or the time be enlarged by a Judge... circumstances which weigh heavily with their lordships in favour of a mandatory construction are: (i) The need in an election petition for a speedy determination of the controversy and ..... (ii) In contrast, for example to the rules of the Supreme Court in this country, the rules vest no power in the election judge to extend time on grounds of irregularity. Their lordships think that this omission was a matter of deliberate design .....The case of Williams v Tenby Corpn (1879) 5CPD 135) which has stood the test of ninety years and seems to their Lordships plainly rightly decided, strongly supports the view that the provisions of r.15 are mandatory.... their Lordships cannot attribute weight to the circumstances that the rules contain no express power to strike out a petition for non- compliance within r.15”.
What is the position with respect to service?
CONCLUSION
ACKNOWLEDGEMENT
DATED this 12 day of September 2016
Mohammed Shafiullah Khan
Judge
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