Evo v Supa [1985] SBHC 28; [1986] LRC (Const) 18 (24 January 1985)

[1985] SBHC 28; [1986] LRC (Const) 18

HIGH COURT OF SOLOMON ISLANDS

EVO

v

SUPA AND ANOTHER

High Court:
White, A.C.J.
17th and 24th January 1985

(1) Constitutional law - Constitution as fundamental law - Primacy of Constitution where conflict with Act of Parliament - Presumption of constitutionality of Act of Parliament.

(2) Constitutional law - Election - Disqualification - Holder of public office - Constitution of the Solomon Islands, section 49(1) (b) - Date for determining qualification - Whether date of nomination of candidate or date of election - National Parliament Electoral Provisions Act 1980, sections 25(2) and 27(2) and Third Schedule.

(3) Constitutional law - Election - Boundary error - Non - compliance with d statutory provisions with no effect on result - Whether election conducted in accordance with the principles of the Act - National Parliament Electoral Provisions Act 1980, section 9.

(4) Statute - Interpretation - Schedule inconsistent with body of Act - Schedule must yield to enacting part of Act.

(5) Judicial practice - Doctrine of precedent - Practice Note - Operation of a doctrine in the Solomon Islands - Constitution of the Solomon Islands, Schedule 3, paragraph 4(2).

The petitioner brought an election petition under section 81 of the National Parliament Electoral Provisions Act 1980 claiming there had been breaches of the statutory provisions governing the election of the first respondent on 24th October 1984 in a constituency in which the petitioner had been the runner-up candidate. The grounds of the petition were, inter alia, that the first respondent was disqualified for election as a member of Parliament by virtue of holding a "public office" contrary to section 49(1)(b) of the Constitution of the Solomon Islands and that, due to a boundary error, some 216 voters had been illegally registered in the constituency in question.

The first respondent, who was a teacher, had followed the procedure prescribed by the Teaching Service Handbook issued by the Ministry of Education and Training, in that he had been given unpaid leave of absence to stand for election on the basis that, if elected, he would be deemed to have resigned from the first day of unpaid leave and, if not elected, he would resume his teaching duties immediately. In fact, the leave had not come into operation on the date of his nomination as a candidate, so that the declaration as to not holding any public office contained in the nomination form issued strictly in conformity with the Third Schedule to the 1980 Act was untrue.

HELD: Petition dismissed.

(1) Though it was necessary to consider all the relevant provisions of the Constitution and the 1980 Act, the full import of the provisions of the Constitution had to be accepted as fundamental. (See p.27 post.) Furthermore, in the case of a conflict between the Constitution and an Act of Parliament, the provisions of the Constitution must prevail. (See p.30 post.)

(2) The relevant provisions of the Constitution (section 49(1)(b), which is set out at p.27 post) and in the body of the 1980 Act (section 2, also set out at p.27 post) made it clear that the word "election" was used in its ordinary sense of choosing or selecting candidates by vote and did not suggest that it included both the nomination and poll. (See p.27 post.) In this respect the Third Schedule to the 1980 Act, containing the nomination form was not in accordance with the Constitution and the body of the Act, which established that the date for determining whether a candidate was qualified was the time he is elected and not the time at which he is nominated as a candidate. (See p.30 post.) The Ministry's Handbook was in accordance with this view (See p.29 post.) Saemala v Gatu 1980/81 SILR 196 and Attorney-General v Ziru and Others, unreported (Case No.73 of 1982) considered.

Per curium. The procedure laid down in the Teaching Service Handbook illustrated how effect could be given to the requirements of not holding public office if and when elected with a minimum of disruption before the event. No doubt this was an important consideration which was of considerable value in assisting persons in public service to offer themselves as candidates for the National Parliament. (See p.29 post.)

(3) Bearing in mind that the boundary error affected voters whose votes did not affect the result in either of the constituencies in question, and that in other respects the rules as to elections were complied with in "a real election by ballot", what had happened had not amounted to a substantial breach or violation of the principles of the Act. The departure from the requirements of the electoral law were not so substantial as "to make the ordinary man condemn the election as a sham or a travesty of an election by ballot." Therefore, in accordance with section 9 of the 1980 Act (set out at p.31 post), the election should not be declared invalid. (See p.34 post). Dictum of Stephenson, L.J., in Morgan v Simpson [1974] 3 All ER 722 at 731 applied.

(4) It was an established rule of the interpretation of statutes, that where a passage in a schedule to a statute is inconsistent with one in the body or enacting part of the same statute, the latter must prevail. (See p.28 post.) Dean v Green [1882] UKLawRpPro 46; (1883) 8 PD 79 applied.

(5) The Court took note of the Practice Note issued by Daly, C.J., on 4th June 1981 under Schedule 3, para.4(2) of the Constitution governing the operation of the doctrine of precedent in the Solomon Islands, according to which decisions of the Court of Appeal are binding on all courts other e than that Court and earlier decisions of the High Court are of persuasive authority in the High Court itself. [Editors’ Note: The text of the Practice Note is set out at p.21 post.]

Cases referred to in judgment:
Attorney-General v Ziru and Others, unreported (Case No.73 of 1982)
Baines, Re (1840) 1 Cr & P 31
Dean v Green [1882] UKLawRpPro 46; (1883) 8 PD 79
Gill v Reed & Holmes (1874) 2 O’M & H 77, 31 LT 69
Gunn v Sharpe [1974] QB 808, [1974] 3 WLR 7, [1974] 2 All ER 1058
Levers v Morris [1972] 1 QB 221, [1971] 3 WLR 909, [1971] 3 All ER 1300
Medhurst v Lough and Gasquet (1901) 17 TLR 210
Morgan and Others v Simpson [1975] QB 151, [1974] 3 WLR 517, [1974] 3 All ER 722, CA
Saemala v Gatu 1980/81 SILR 196
Woodward v Sarsons (1875) LR 1 CP 733

Legislation referred to in judgment:
Solomon Islands:
Constitution of the Solomon Islands, sections 2, 47(1), 48, 49, 52(1)(a), 55(2)(b), 83(3), 144(1), 145(2)(a) and Third Schedule, paras. 2 and 4(2)
Education Act 1970, section 37(1)
Electoral Petition Rules 1.976
National Parliament Electoral Provisions Act 1980, sections 9, 14(2), 23, 24(1), 25(1) and (2), 27, 81 and 82(3)

United Kingdom:
Ballot Act 1872, section 13
Local Government Act 1894, section 75(2)
Representation of the People Act 1949, sections 31(1), 37(1) and Schedules 1 and 2

Other sources referred to in judgment:
Leigh and Le Marchant, Law of Elections and Election Petitions, 2nd ed., 1874, p.75
Maxwell on Interpretation of Statutes, 11th ed., p.156
Ministry of Education and Training, Teaching Service Handbook
Stroud's Judiciary Dictionary, 4th ed., Vol.2, p.884
Words and Phrases Judicially Defined, 2nd ed., Vol.2, p.148

Petition
The petitioner brought an election petition under section 81 of the National Parliament Electoral Provisions Act 1980 to contest the election of the first respondent in a constituency in which the petitioner had been runner-up in the election held on 24th October 1984. The facts are set out fully in the judgment.

K. Brown for the petitioner.
A. Nori for the first respondent.
R. H. Teutao for the Attorney-General.

24th January 1985

WHITE, A.C.J.:

This is an election petition brought in this Court pursuant to section 81 of the National Parliament Electoral Provisions Act 1980 (hereinafter referred to as "the Act") and the Electoral Petition Rules 1976. The petitioner is Mr. Michael Evens Evo who was a candidate for the East Ysabel electoral constituency at the election, held on 24th October 1984. The first respondent is Mr. Nathanial Supa who was elected by a majority of 195 votes. The petitioner was the runner-up in this election. As the petitioner claimed there were breaches of the statutory provisions governing the conduct of the election the Returning Officer was made second respondent in the proceedings.

The grounds of the petition were as follows:-

1. That 216 voters were illegally registered in the East Ysabel Electoral Constituency, the claim being that they were not residents of the Constituency and accordingly were not entitled to be registered as electors as provided by section 55(2)(b) of the Constitution.

More specific allegations are set out with full particulars in the petition and it is claimed that the list of electors was accordingly not in order at the time of the election.

(2) That the first respondent was and is disqualified for election as a member of Parliament because at the time of his nomination he was holding or acting in a public office contrary to the provisions of section 49(1)(b) of the Constitution.

(3) That the first respondent registered himself twice (a) in Sigana Ward No. 10 Kamaosi village area, regd. No. 10/5/25 and (b) in Tataba Ward No. 9 Hageulu village, regd. No. 9/8/78 contrary to the provisions of section 14(2) of the Act.

Mr. Brown sought leave to withdraw the third ground because investigation had revealed that the registrations were in respect of two persons. Leave was granted.

Opening his case Mr. Brown dealt first with the second ground, the allegation that the first respondent was disqualified, submitting that if the ground were established a new election would be required.

Mr. Brown pointed out that the same question has arisen in Solomon Islands in two other cases, viz., Saemala v Gatu 1980/81 SILR 196 and Attorney-General v Ziru and Others Case No. 73 of 1982, delivered 15th November 1982 (unreported), both being decisions of Daly, C.J. In the first of these cases the learned Chief Justice was invited to express a view on the point and did so pointing out, however, it was "unnecessary to the decision" and "of persuasive authority only", because he had decided the case on another ground. In the second case the facts were that the candidate in question was disqualified at the date of nomination. The learned Chief Justice came to the conclusion that, in accord with the view he had earlier expressed in the Gatu case, if a candidate is "not qualified or is disqualified" at the date of nomination "he cannot take part in the election process in such a way as to enable his election to stand should he be declared elected."

This question was much debated in the cases cited and again before me. As to the question of precedent my attention was drawn to the following Practice Note issued by Daly, C.J., on 4th June 1981 and made pursuant to para.4(2) of Schedule 3 to the Constitution. I quote the relevant part of the direction.

"Judicial Precedent in Solomon Islands shall operate in the following manner:

1. All courts other than the Court of Appeal shall regard decisions of the Court of Appeal as of binding authority.

2. The High Court shall regard earlier decisions of itself as persuasive authority."

Mr. Brown submitted that the evidence in the present case established that the first respondent was "disqualified throughout the election process" to the date he was elected and that this was demonstrated by the documentary evidence. The first of the documents in chronological order was a letter from the first respondent to the Provincial Secretary for the attention of the Senior Education Officer dated 10th August 1984. It reads:-

"I wish to apply for unpaid leave to contest in this coming National Parliament Election for the East Isabel Constituency commencing on the day my name as Candidate is published.

I shall resume duty immediately if not elected. However if I'm elected I'm deemed to have resigned from my post with the effect from the first day of the unpaid leave."

Next there is a letter written by the Senior Education Officer for the Provincial Secretary to the first respondent, dated 12th September 1984, which reads:

"This is to officially inform you that the Education Board at its recent meeting has approved your application of unpaid leave to contest for National Election to take effect from 1st October 1984.

Your unpaid leave is to go in line with Cap.86 of the Teaching Service Handbook.

By copy of this letter the Teaching Service is hereby informed."

On the next day, the 13th September 1984, the first respondent signed a d nomination paper. The relevant part of the Nomination paper reads:-

"THIRD SCHEDULE
NOMINATION PAPER

Electoral Constituency for which the candidate seeks election: East Isabel Constituency. Date of election 24th October 1984.

1. I, the undersigned, am the candidate to whom this nomination paper refers, and I hereby state that I am willing to stand for election to the National Parliament as a Member for the aforesaid Electoral Constituency.

2. I also hereby state that I am qualified, and not disqualified for election to the National Parliament in accordance with the law now in force in the Solomon Islands, that is to say:

(d) I am not holding, or acting in, any public office."

The evidence was that the first respondent was in fact paid to September 1984 as headmaster in terms of the decision that he would be on unpaid leave from 1st October 1984 (see the letter of 12th September 1984.)

Mr. Nori in opening reviewed the steps the first respondent had taken and these were confirmed by the latter when he gave evidence and by the correspondence quoted above, and a Teaching Service Handbook issued by the Ministry of Education and Training for the Solomon Islands Teaching Service. A copy of the Handbook was produced. Its opening paragraph states that it is published under section 37(1) of the Education Act "empowering the Minister to publish it as a guide to teachers . . . setting out the conditions of service under which members of the S. I. Teaching Service are employed." Chapter 8 deals with leave of various kinds and para.8.6, under the heading "Leave to contest elections for the National Parliament or a Provincial Assembly", reads:

"A teacher wishing to stand for election to the National Parliament or to a Provincial Assembly must apply to his employing Education Authority for unpaid leave commencing on the day after the names of the candidates are published. The application shall be made in sufficient time to enable a Relief Teacher to be appointed to his post and a minimum of three weeks' notice shall be given.

The leave shall terminate on the day of the announcement of the election results and, if not elected, the teacher shall resume duty immediately with due allowance being made for travelling back to his school.

A teacher who is elected shall be deemed to have resigned from his post with effect from the first day of the unpaid leave."

Mr. Nori submitted that the conditions of service referred to made it clear that teachers employed by the State are subject to terms and conditions different from other public officers, which distinguishes the present case from the cases relied on by Mr. Brown.

The evidence given by the first respondent made it clear that he had been at pains to carry out the requirements set out in the Handbook. He agreed in cross-examination that he had no doubt he was following the correct procedure. Mr. Brown later commented that everyone would sympathise with the first respondent but that it was the position at law which had to be considered.

The Chief Education Officer who gave evidence said that the Handbook produced was applicable at the relevant period in 1984.

Mr. Brown, addressing on the question of disqualification, pointed out that acting in terms of the Handbook the first respondent assumed his unpaid leave commenced from the date the list of candidates was published, which must be a date after nominations have closed. In short, it was submitted, the Handbook led him into error and into a position where he was automatically disqualified, his leave not starting until after he had accepted nomination; in fact not until 1st October 1984. It was submitted that however unfortunate this was in the circumstances, the provisions of the Handbook could not supersede or affect the provisions of the Act or the Constitution.

Mr. Brown then referred to the nomination paper, para.2 and sub-para.(d) quoted above, submitting this was "a declaration" in the present tense as to the position at the time the first respondent accepted nomination. It was submitted that clearly the declaration was wrong in fact and that in law he was disqualified in accordance with the conclusions reached by Daly, C.J., in the cases cited above.

I have mentioned above the two cases decided by Daly, C.J., in which this question was raised. As noted the learned Chief Justice dealt with the disqualification question in Gatu at the request of Counsel in order to provide guidance for the future but not to decide the case. It must also be noted that in Ziru Daly, C.J., as an alternative reason for the conclusion he had already reached, drew attention to the opinion he had expressed in Gatu, pointing out that Counsel had not referred to it. Needless to say I have carefully considered the reasons given by the learned Chief Justice which clearly express the reasons which Mr. Brown has naturally adopted as his argument in this case.

Mr. Brown drew attention to section 47(1) of the Constitution which reads:

"(1) Parliament shall consist of persons elected in accordance with the provisions of this Constitution and, subject thereto, in such manner as may be prescribed."

(Section 144(1) of the Constitution provides that unless the context otherwise requires "prescribed" means prescribed in a law).

He agreed that "subject thereto" meant subject to the Constitution, which, pursuant to section 2 of the Constitution, is "the supreme law of Solomon Islands and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void."

Section 49(1)(b) of the Constitution provides, "No person shall be qualified for election as a member of Parliament who . . . (b) holds, or is acting in, any public office." The critical words are, "shall be qualified for election . . . who holds, or is acting in. . . ." The section does not provide that at the time of nomination a person may not "hold or be acting in any public office." The section refers to being "qualified for election as a member of Parliament." The much debated question, as was pointed out by Daly, C.J., in Ziru, having regard to his observations in Gatu, is whether "the vital date" for considering whether or not a candidate for election is qualified or disqualified is the date of nomination rather than the date of election. In the present case there is no dispute that at the date of nomination the first respondent was holding public office but that at the date of election he was not.

I do not propose to restate in detail the reasons given comprehensively by Daly, C.J. He reviewed relevant provisions and arrived at conclusions which I propose to summarise, they being the basis of the petitioner's case.

Fundamental in the petitioner's case is the requirement of section 25(2) of the Act that "the writing for the purpose of sub-section (1) shall be subscribed . . . in the form in the Third Schedule to this Act and . . . shall contain the following particulars." Those particulars do not refer to "public office". The words "public office" have their genesis in the requirements of the Constitution. But section 25(2)(c) of the Act does provide that the nomination form shall contain "a certification by the candidate that he is willing and qualified to stand for election."

The next relevant section for consideration mentioned by Daly, C.J., is section 27 which empowers the returning officer to declare a nomination paper invalid on grounds including "that the candidate is disqualified for election under section 49 of the Constitution which in turn contains sub-para.(b) that no person `shall be qualified as a member of Parliament who . . . (b) holds, or is acting in, any public office'." The decision of the returning officer as to whether the nomination is valid is final and shall not be questioned except on an election petition. For completeness, and it is important, section 27(2) sets out the grounds on which a nomination paper may be declared invalid including:

“(a) That the candidate is not qualified for election under section 48 of the Constitution, or

(b) that the candidate is disqualified for election under section 49 of the Constitution, or

(c) that it is not in the form in the Third Schedule to this Act; or that such form has not been properly completed, or

...."

Pointing to the present tense used in the requirements including the wording in the Third Schedule "I am not holding any office" etc., the learned Chief Justice points out that the returning officer must be deemed to be dealing with "the circumstances that obtain at the moment of the presentation of the paper." And I repeat that, pursuant to section 27(2)(b) of the Act, there is the ground of invalidity that the candidate is disqualified under section 49 of the Constitution which includes sub-para. (b) "holds, or is acting in, any public office" and (c) that the nomination paper "is not in the form in the Third Schedule" to the Act. Accordingly, Daly, C.J., said, the returning officer must deal with circumstances obtaining at the time or presentation of the nomination and, if that were not so, he would be dealing with matters "which amount to speculation." The question remains whether the language of para.2(d) of the Third Schedule represents the intention of the legislature having regard to the relevant provisions of the Constitution and the Act when considered together, which the learned Chief Justice accepted was the test. He reached his conclusion that the intent of the provisions as a whole showed that the election embraced the election process from the time of nomination, basically because of the words used in para.2(d) of the Third Schedule. That line of argument leads directly to the conclusion he reached in Gatu (page 205),

"As I have indicated the question of qualification and disqualification is a matter which the Act expressly ties in with the nomination paper and therefore this connection between nomination and qualification becomes a 'principle of the Act'."

He considered that in the circumstances the words "for election" should be read as dealing with the election process as prescribed in accordance with section 47(1) of the Constitution. And he saw "no good reason for present purposes to fix upon one moment in the election process and say that it is at that moment election takes place."

In his address Mr. Nori pointed out that the respondent had acted entirely in accordance with the procedure laid down by the Handbook and was under the impression that he had complied with all the relevant provisions of the legislation.

He submitted that the present petition is distinguishable from the position in Gatu. That is undoubtedly correct, the relevance of that case being the views expressed by the learned Chief Justice as obiter. There is no doubt that as far as the respondent's actions were concerned he complied with the requirements laid down within the teaching service and that was accepted by Mr. Brown. Mr. Nori based his submission on the wording of clause 8.6 of the Handbook. Because of the last paragraph he submitted that the letter of 12th September was irrelevant. He submitted that the procedure followed in accordance with the Handbook complied with the requirements of the law applicable to the election. He pointed out that according to the Handbook the date on which leave without pay must commence is the day after the names of the candidates are published. That leave was to terminate on the date the election results were announced whereupon the teacher concerned resumed his teaching position if not elected, and, if elected, was deemed to have resigned from his post with effect from the first day of unpaid leave.

Mr. Nori submitted that section 27(1) must be read subject to section 28 in that until such time as the Returning Officer makes a decision whether b or not there has been a valid nomination the person nominated is not a candidate in the election. Under section 27(l) such a person is "deemed to stand nominated" but it was submitted that it is not until the Returning Officer publishes the list of candidates, under section 28, that the candidates for a specific electoral constituency are declared. Mr. Nori submitted that, bearing in mind what constitutes an election, the clear c impression from reading the provisions of the Constitution and the statute is that it was intended to mean the actual election of the candidates. He referred in particular to section 49(1) and section 52(1)(a) of the Constitution and to sections 23, 24(l) and section 25 of the Act, submitting that nomination and the election itself are treated as separate and distinct.

Mr. Nori submitted that the Third Schedule is not the dominant d provision so that section 49(l) of the Constitution must be construed to validate the nomination form. It was submitted that that approach was wrong in principle; that the Act should be read subject to the Constitution. On that basis, and giving the word "election" its plain meaning, it was submitted that para.2(d) of the Third Schedule should be construed in the future rather than the present tense in conformity with section 49 of the Constitution. Mr. Nori submitted that further examination of the language of the Third Schedule supported the view that in endeavouring to bring matters of disqualification from section 49(1) of the Constitution into the form used for the nomination paper the drafting had become confused. He referred to sub-para. (g) as another instance where the present tense makes the disqualifying provision unintelligible.

Finally it was submitted that the crucial time at which the question of disqualification arises is at the date of election which was in accord with the principles of the interpretation of statutes to construe the content of the form so that it would comply with section 49(l), the intention of section 49(1)(d) being that a candidate was not required by the Constitution to do more than he in fact did in complying with the requirements of the official
Handbook.

Mr. Brown's response to Mr. Nori's submission that the Constitution prevailed over the Third Schedule was the submission that "qualified for election" in accordance with section 49(1) of the Constitution means qualified to embark on the process of election because one must assume prima facie that an Act of Parliament is not unconstitutional. Putting it another way he submitted that unless the 1980 Act is clearly in conflict with the Constitution it must be construed, if possible without straining the words, to lead to their being consistent with one another. It was submitted that the date of nomination was in accord with the scheme of the Act concerned with the whole election process which he contended was a continuing process. And Mr. Brown adopted the reasoning of Daly, C.J., that if a date later than the date of nomination is taken a candidate must be making a false declaration when he fills in his nomination paper.

In my opinion it is necessary to consider all the relevant provisions of the Constitution and the Act but the full import of the provisions of the Constitution must be accepted as fundamental. In considering the meaning of election in relation to provisions as to disqualification as claimed in this case section 49(1) is the basic provision of the Constitution. "No person shall be qualified for election as a member of Parliament who . . . (b) holds, or is acting in, any public office".

The word "election" is not defined in the Constitution but it is defined in section 2 of the Act as follows:

"In this Act, unless the context otherwise requires, ‘election’ means an election under and in accordance with the Constitution and this Act."

There is no doubt that the ordinary meaning of the word election in relation to electing persons to office "is the choosing or selection (of candidates etc) by vote" - see Words and Phrases Judicially Defined, 2nd ed., Vol.2, p.148. While the ordinary meaning is not restrictive it is interesting to note that in Stroud's Judicial Dictionary, 4th ed., Vol.2, p.884, where a similar meaning of "election" is given as the usual definition, more specific instances are given including the Local Government Act 1894 (c.73) (UK), section 75(2), which reads:

"In this Act, unless the context otherwise requires, . . . ‘election’ includes both the nomination and the poll."

It is clear that as far as the Constitution and the Act are concerned the basic provisions to which I have so far referred do not suggest that election "includes both the nomination and the poll" but rather the ordinary meaning of the word.

It is section 25 of the Act which contains the provisions regarding nomination of candidates and sub-section (2) states that the "writing for f the purposes of sub - section (1) shall be subscribed by the candidate, and by the persons nominating him, in the form set forth in the Third Schedule to this Act." The sub-section proceeds, "and the nominations (sic) form shall contain the following particulars-

(a) the full name and the address and description of the candidate;

(b) the full name and the addresses and description of the nominators, and

(c) a certification by the candidate that he is willing and qualified to stand for election."

Section 27 (which deals with the returning officer's duties as to the validity of the nomination paper) makes it clear that the "certification" relates to h section 48 of the Constitution. It is section 27(2) which states that the returning officer shall not be entitled to hold the nomination paper invalid except on the grounds set out. It is sub-para.(c) which states as a ground, that the nomination paper "is not in the form of the Third Schedule to this Act; or that such form has been properly completed." As a result of this provision a candidate is required to use the form as set out in the Third Schedule.

It will be noted section 25(2) refers to the Third Schedule and the nomination form containing the particulars set out above. They do not refer to any of the matters referred to in paras.(c) to (i) of para.2 of the Third Schedule. Section 25(2)(c) simply requires "a certification by the candidate that he is willing and qualified to stand for election."

Under section 48 of the Constitution a person "shall be qualified for election as a member of Parliament if, and shall not be so qualified unless–

(a) he is a citizen of Solomon Islands; and

(b) he has attained the age of twenty-one years."

Accordingly a certification by a candidate to that effect is what the Constitution and the Act postulate, as the particulars required in the nomination form. Section 25(2) also provides, "the writing for the purposes of sub - section (1) shall be subscribed by the candidate, and by the c persons nominating him in the form set forth in the Third Schedule to this Act." In the Third Schedule headed "Nomination Paper" the certification. required by section 25(2)(c) is complied with in paras. 1 and 2. Then, in the form in the Third Schedule, come the words "that is to say" and then the paras.(a) to (i), para. (d) being "I am not holding, or acting in, any public office."

It is clear of course that paras. (a) and (b) of para.2 of the Third Schedule relate to section 48(a) and (b) and paras.(c) to (i) relate to section 49(1)(a) to (g) of the Constitution, but they are statements in the present tense relating to each matter in a form which refers to the time at which they are made. It is on that basis the submission was made that the Act requires candidates to certify at the date of nomination (inter alia) that they do not hold, or act in, any public office.

As I have said as to paras.(a) and (b) of the nomination form section 25(2)(c) requires "a certification" but there is no such requirement in the body of the Act as far as the matters referred to in section 49(1) of the Constitution are concerned. The question then is whether the nomination form as set out in the Third Schedule is in accord with the Act and the Constitution. The conclusion I have reached is that it is not. In my view analysis of the Constitution and the Act shows that the provisions in the body of the statute are consistent with the Constitution but that relevant parts of the Third Schedule are not consistent with the Constitution and the enacting provisions of the Act.

The relevant rule of construction is stated in Maxwell on Interpretation of Statutes, 11th ed., p.156, "where a passage in a schedule to a statute was repugnant to one in the body of the statute the latter was held to prevail." Most of the early cases referred to in the notes to that passage are not available here but the case of Dean v Green [1882] UKLawRpPro 46; (1883) 8 PD 79 is and in the relevant passage in that case an earlier case of Re Baines 1 Cr & P 31 is quoted. The facts in these cases are different but the rules of construction h are stated by Lord Penzance in Dean at p.89, as follows:-

"Such being the effect of the enacting portions of the statute, it would be quite contrary to the recognised principles upon which courts of law construe Acts of Parliament to enlarge the conditions of the enactment and thereby restrain its operation, by any reference to the words of a mere form, given for convenience sake in a Schedule, and still more so, when that restricted operation is not favourable to the liberty of the subject, but the reverse."

Lord Penzance then referred to Re Baines in which Lord Cottenham had referred to the same Schedule. His words were, "if the enacting part and the Schedule cannot be made to correspond, the latter must yield to the former." It is of some importance to note that in that case Lord Penzance was able to "perceive" how the words had found their way into the form. Dealing with the case before him he said,

"If under the effective words of the statute Mr. Green is entitled to his release, as I think he is, I shall not be deterred from order the release, because I am obliged, in deference to the statute, to make use of a c form the recitals of which (as I interpret them) do not correspond with the facts."

As in Dean's case so in this, in my opinion, when the provisions of the Constitution and the Act are read together it can be seen that in drafting the Third Schedule the wording as to disqualification in section 49 of the Constitution, referred to in section 25(2) of the Act, was misinterpreted and misstated in the present tense in the paragraphs which purport to relate to section 49 of the Constitution.

I would add, with the benefit of an example in the facts of the present case, that in my view the natural meaning of election is consistent with section 49 of the Constitution while the tense and wording of the paras. (c) to (i) of the Third Schedule are not. The procedure adopted by the teaching profession in accordance with rules laid down in the Handbook published by the Minister under section 37(l) of the Education Act 1970, and adopted by the first respondent in this case, is in accord with the ordinary meaning. The procedure illustrates how effect can be given to the requirements of not holding public office if and when elected with a minimum of disruption before the event. No doubt that is an important consideration which is of considerable value in assisting persons in public service to offer themselves as candidates for the National Parliament. Under section 23 of the Act when the Governor-General by proclamation gives notice of an election the date must not be "earlier than 42 days" after the publication of the proclamation but it may be a longer period. Within seven days of the proclamation the Returning Officer must publish notices giving the date of the election and the date and time at which nomination papers are to be delivered to him which must not be later than 28 days before the date of the election, but may be earlier. The periods involved underline the advantage of being able to provide a system of reasonable leave without pay, and resignation from office if elected. It is significant that the procedure of leave without pay is based on section 145(2)(a) of the Constitution which reads as follows:-

"For the purposes of this Constitution a person shall not be treated as holding or acting in, a public office by reason only that he –

(a) . . . is on leave of absence without salary from a public office."

In my view the separate sections of the Constitution (sections 48 and 49) and the language used are consistent with "the vital date" being the time of a candidate's election. And it is important to note that construction is a entirely consistent with the proviso to section 83(3) which reads as follows:-

"Provided that where the Court finds that any candidate who has been declared to be elected was not qualified or was disqualified at the time of his election, the court shall determine the election to be void."

In my view the submissions made by Mr. Nori regarding the drafting of the Third Schedule are justified. There is another indication that the final drafting of the Third Schedule was incomplete, namely, that section 49(2) of the Constitution, which affects sub-para.(g) of the Schedule, appears to have been overlooked.

For these reasons I have reached the conclusion that the language of the Third Schedule in question is not in accordance with the Constitution and the body of the Act. In those circumstances, applying the rule of construction referred to above, the Constitution and the enacting part of the Act must prevail. Accordingly, in my judgment, the question whether a person "holds, or is acting in, any public office," pursuant to section 49 of the Constitution, must be determined as at the time a candidate is elected and not at the time of nomination.

I turn now to the second ground of the petition.

Mr. Brown in his address dealt with the undisputed facts briefly; that out of the 216 voters wrongly registered 154 had voted. He accepted that the petitioner would not have won the election even if all those votes had been for him. Mr. Brown contended however that, while in the earlier petitions e heard in this Court there had been technical non-compliance which affected the result leading to the elections being declared void, in the present case the non-compliance went to the basis of the election. He pointed out that the inclusion of the voters from the villages contrary to the rules for the registration of voters was due to mistakes in the prescribed electorate boundaries as already described. Mr. Brown submitted that in f the circumstances a principle stated in Morgan’s case, infra, applied, namely, that where an election is conducted or arranged in such a way that it is not substantially in accordance with the law as to elections such an election is vitiated whether or not the result is affected. And Mr. Brown properly pointed out that relatively small electorates mean relatively few voters and that this was a relevant factor in considering whether 200 votes g was a substantial matter in the present case when the total votes cast numbered approximately 2,000. Mr. Brown submitted that the position in the present case should be compared with the Hackney case (1874) 20 M & H 77, referred to in Morgan’s case. In that case two polling stations never opened and two others were open for only a part of the day with the result that 5,000 people out of 41,000 registered were unable to vote. It was held that "the election was not conducted in accordance with the principles laid down in the body of the Act and was therefore void." Grove, J., in that case compared the circumstances "with trivial informalities," for example, because a clerk was five minutes late, or because some of the voting papers were not delivered in a proper manner or were not marked in a proper way. Mr. Brown submitted that the provisions of the Act and Constitution regarding the areas of constituencies showed that the error, even though the breach did not affect the result, should be held to vitiate the election because it was not conducted in accordance with the principles as to elections laid down in the Act and the Constitution.

Mr. Nori did not dispute the facts regarding the boundary errors but pointed out that what occurred could not have affected the result in either b of the electorates affected by the error in boundaries. It was also claimed that what occurred was a breach of registration procedure not a breach of election procedure as the case in the Hackney case. Mr. Nori submitted that the circumstances were not such that it could be argued successfully that the election was not conducted "substantially in accord with the law as to elections."

I propose to refer to Morgan’s case [1974] 3 All ER 722 in some detail because the decision of the Court of Appeal in England deals fully with the history of the legislation regarding election irregularities and the principles which have emerged. It was a case where ballot papers in a local government election were issued without being marked as required. The relevant statute applicable was the Representation of the People Act 1949.

Lord Denning referred to the law which, he pointed out, depended on section 37(1), a section similar to section 9 of the National Parliament Electoral Provisions Act, which reads:-

"No election shall be invalid by reason of non-compliance with this Act if it appears that the election was conducted in accordance with the principles of this Act and that the non-compliance did not affect the result of the election."

It is interesting that in Lord Denning’s review of the development of the law he notes with approval that the rule was stated positively instead of negatively in the Law of Elections and Election Petitions, 2nd ed., 1874, p.75 as follows:-

"A non-compliance with the provisions of the Ballot Act 1872 and Schedules 1 and 2, or a mistake at the poll, will vitiate the election if it should appear that the result of the election was affected thereby, but not otherwise, provided the election was conducted in accordance with the principles laid down in the body of the Act."

Adopting the reasoning of Lord Denning in Morgan’s case and applying it to the circumstances of the present case, and in accord with section 9 of the Act: (1) If the election is conducted so badly that it was not in accordance with the principles of the Act and the Constitution the election is vitiated, irrespective of whether the result was affected or not. (As an illustration Lord Denning referred to the Hackney case referred to by Mr. Brown.) (2) If the facts did not lead to the election being vitiated under (1) it is not vitiated by a breach of the rules or a mistake at the polls - provided that it did not affect the result of the election. (As an illustration Lord Denning referred to the Islington case (1901) 17 TLR 210, where 14 ballot papers were issued after 8 p.m.) (3) Even though the election was conducted in accordance with the principles of the Act and the Constitution, nevertheless if there was a breach of the rules or a mistake at the polls - and it did affect the result - then the election is vitiated. (As an illustration Lord Denning referred to Gunn v Sharpe [1974] 2 All ER 1058, where a mistake in not marking 102 ballot papers did affect the result).

Stephenson, L.J., (at p.729) referring to the English Ballot Act of 1872, mentioned above, pointed out that although the Schedules to that Act were to be construed and have effect as part of the Act they were not "in the body of the Act" and "do not lay down principles." And he concluded that failure to comply with rules in the Schedules did not avoid an election b unless they affected the result, but that "any departure from the principles of election by ballot embodied in the Statute itself will avoid an election." And he went on to say, "The negative form of the section emphasises that an election is a serious - and expensive - matter and is not lightly to be set aside. . . ." "It is negatively stated to limit occasions when an election must be declared invalid. In other words it is an enabling section setting out circumstances in which, despite irregularity, a new election need not be held" (See Levers v Morris [1971] 3 All ER 1300, 1304). And the learned Lord Justice added, "But I do not read it as conferring a discretion to declare a candidate duly elected or an election void once the principles of the Act are violated or the result of an election is affected."

Turning to the Representation of the People Act 1949, section 31(1), Stephenson, L.J., points out that "the principles laid down in the body of the Act" are replaced by "substantial accordance with the law as to elections." In his view (see p.731), "broadly speaking this new statutory requirement does, I think, re-enact the old" and “in accordance with the common law and common sense and with the decisions that an election which is not conducted in violation of the principles of an election by ballot is no real election and should be declared void."

I have referred to this reasoning in some detail having regard to the language of section 9 of the Act which refers to "the principles of this Act" as in the 1872 English statute, not "substantially in accordance with the law as to elections" which are the words used in section 37(1) of the Representation of the People Act 1949. On this topic Stephenson, L.J., concluded, at p.731, "For an election to be conducted substantially in accordance with the law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot." By way of example he referred to "allowing voters to vote for a person who was not in fact a candidate or refusing to accept a 9 qualified candidate on some illegal ground or disfranchising a substantial proportion of qualified voters, but not such an irregularity as was committed in this (Morgan's) case. . . ."

Lawton, L.J., who was the third member of the Court of Appeal in Morgan’s case, referred in his judgment to the Act of 1949 as a code which could be traced back to earlier legislation: "By far the most abundant source is the Ballot Act 1872" which "opened the way to the secret ballot" and "one of the objects of the change was to get rid of the intimidation and bribery which had been common and evil features of the old system of voting." Precise provisions as to both parliamentary and municipal elections were set out but there were also provisions as to the effect of proved election breaches. Dealing with the facts of the case before the Court of Appeal Lawton, L.J., said that "save for the carelessness which resulted in some papers not being marked, nothing else went wrong." The Returning Officer had not been at fault in any way. The errors "were nothing more than what is likely to happen in the conduct of any human activity." But the omissions did affect the result. Lawton, L.J., then referred (at p.733) to Woodward v Sarsons [1875] UKLawRpCP 68; (1875) LR 10 CP 733, pointing out that the broad issue was whether under the Ballot Act 1872 the common law principles and those to be applied under section 13 of the Ballot Act were the same. It was held they were, and I note again that the relevant provisions of the Ballot Act are in terms similar to section 9 of the Act applying to the present case. The test stated by Lord Coleridge, C.J., in Woodward v Sarsons was that an election was to be declared void "if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election rules."

In applying that test and disagreeing with the election Court, Lawton, L.J., said:

"I accept that at common law the irregularities had to be substantial to render an election invalid if, as in Woodward v Sarson, the irregularities did not affect the result. As I would have expected from a principle evolved from the practice of the House of Commons, this accords with common sense. But when the irregularities affect the result, as in this case, I cannot see why a principle applicable to wholly different circumstances should operate to produce a result which many reasonable people would regard as unjust."

In considering the effect of the reasons for judgment in Morgan’s case it is important to note that Lord Denning, when dealing with the Representation of the People Act 1949, observed that section 37 was "in substantially the same terms as section 13 of the 1872 Act", which as I have noted is substantially the same terms as section 9 of the Act of 1980. He referred to Gunn v Sharpe [1974] 2 All ER 1058 as a good illustration. There 10 polling stations ballot papers were issued for the election of 3 councillors. There were 102 papers issued without the official mark. The Court came to the conclusion that the election was not conducted substantially in accordance with the law as to elections, but Lord Denning said, "I think it should have been put on the ground that the mistakes did affect the result of the election." The emphasis was his. Stephenson, L.J., expressed his doubts whether the decision in Gunn v Sharpe was correct.

The cases suggest there is sometimes difficulty in applying the test but Morgan’s case is now clear authority for the proposition that section 9 of the Act of 1980 as to non-compliance means that, unless the matter relied on affects the results of the election, the election will not be vitiated "provided it was conducted in accordance with the principles laid down in the body of the Act" which, put another way, means "substantially in accordance with the law as to elections." As Stephenson, L.J., said, the non - compliance sections are "enabling" in that they envisage "circumstances in which, despite irregularity, a new election need not be held." 'The question, again using the words of Stephenson, L.J., is whether "the principles of the Act are violated" in the sense that an election will stand if proved breaches are "not substantial", have not departed "from the principles of election by ballot embodied in the statute" and have not affected the result.

Giving effect to the law as explained in Morgan’s case in the present case, and bearing in mind that the error in boundaries affected voters whose votes did not affect the result in either of the electoral constituencies, and that in other respects the rules as to elections were complied with in "a real election by ballot", I am unable to agree that what happened amounted to a substantial breach or violation of the principles of the Act. Adopting the language of Stephenson, L.J., the departure from the requirements of the electoral law in this case, in my view, was not so substantial as "to make the ordinary man condemn the election as a sham or a travesty of an election by ballot."

As a result of the conclusions I have reached neither of the grounds relied on in the petition has succeeded. The Court accordingly determines, pursuant to section 82(3) of the Act, that the first respondent was duly elected. The Court will certify that determination to the Governor-General with the result that the election shall be confirmed.

If necessary I shall hear Counsel as to costs.