Devan Nair v Yong Kuan Teik: PC 1967

(Malaysia) The Malaysian election rules provide in certain circumstances for service by a notice published in the Gazette but such notice was in the event out of time.
Held: The respondent’s appeal should be allowed and the petition struck out.
Lord Upjohn said: ‘So the whole question is whether the provisions of rule 15 are ‘mandatory’ in the sense in which that word is used in the law ie, that a failure to comply strictly with the times laid down renders the proceedings a nullity; or ‘directory’, ie, that literal compliance with the time schedule may be waived or excused or the time may be enlarged by a judge . . Circumstances which weigh heavily with their Lordships in favour of a mandatory construction are: (1) The need in an election petition for a speedy determination of the controversy . . (2) In contrast, for example, to the Rules of the Supreme Court in this country, the rules vest no general power in the election judge to extend the time on the ground of irregularity. Their Lordships think this omission was a matter of deliberate design . . The case of Williams -v- Tenby Corporation which has stood the test of nearly 90 years and seems to their Lordships plainly rightly decided, strongly supports the view that the provisions of rule 15 were mandatory . . their Lordships cannot attribute weight to the circumstances that the rules contained no express power to strike out a petition for non-compliance with rule 15.’
Lord Upjohn
[1967] 2 AC 31
Citing:

  • Cited – Williams v Mayor of Tenby CCP 1879
    The defendant had not given appropriate notices under the act and complained that his petition had been struck out: ‘It is said that there would be hardship supposing money deposited, if mere omission of notices should prevent a petition. I see no . .
    [1879] 5 CPD 135

Cited by:

  • Cited – Ullah and Others, Ahmed v Pagel, Scallan, Kennedy CA 12-Dec-2002
    The claimants sought to issue election petitions to challenge the results of local elections. The petitioners had complied with all the rules save that they had failed to serve the notice of presentation within the five day period. The claimants . .
    Times 20-Jan-03, [2002] EWCA Civ 1793, [2003] LGR 161, [2003] 1 WLR 1820, [2003] 2 All ER 440
  • Cited – Absalom v Gillett QBD 1995
    An application was made under rule 13 to strike out a local government election petition for non-compliance with s.136(3) and rule 6: the petitioners there had served the notice on the returning officer but had not served the successful candidates. . .
    [1995] 2 All ER 661, [1995] 1 WLR 128

These lists may be incomplete.
Updated: 04 December 2020; Ref: scu.183167