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 more hardship than may occur in any case where a definite time is to be observed, and I see good reason why it should be so. There are two alternatives given, and it is reasonable that the parties should know which has been adopted, viz deposit or recognisance, and, if the latter, that he should be set 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 five days] So not only is the person depositing security limited by the rules as to time, but the person objecting to the security is limited likewise. If we were to carve out of 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 the 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 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 that the terms not complied with are conditions precedent which ought to be complied with before the petition could be presented. The appeal must be dismissed.’
Judges:
Lopes J, Grove J
Citations:
[1879] 5 CPD 135
Statutes:
Municipal Elections Act 1872 13(4)
Jurisdiction:
England and Wales
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 . .
Cited – 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 . .
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. . .
Lists of cited by and citing cases may be incomplete.
Elections
Updated: 28 April 2022; Ref: scu.181800
