Devan Nair v Yong Kuan Teik
| Jurisdiction | UK Non-devolved |
| Court | Privy Council |
| Judgment Date | 1967 |
| Year | 1967 |
| Date | 1967 |
Malaysia - Election - Petition - Service - No address left by person returned - Petition left at office of registrar within statutory period - Publication in Gazette outside period - Whether valid service - Rule requiring publication mandatory -
The Election Offences Ordinance of Malaysia provides by section 33 (4): “… all interlocutory matters in connection with an election petition may be dealt with and decided by any judge of the High Court.” By section 36:
“… the election judge shall determine whether the candidate … was duly returned or elected … and shall certify such determination …. Upon such certificate being given such determination shall be final ….”
Section 38 provides that every election petition shall be presented within 21 days of the publication of the result in the Gazette.
Schedule 2 to the Ordinance provides by rule 10 that any person returned might leave at the office of the registrar an appointment of an advocate and solicitor to act for him in case of a petition against him, giving an address at which notices addressed to him may be left and “if no such … address [be] given, all notices and proceedings may be given or served by leaving the same at the office of the registrar.” By rule 15
“Notice of the presentation of a petition … shall, within ten days of the presentation of the petition, be served by the petitioner on the respondent. Such service may be effected … by posting the same in a registered letter to the address given under rule 10 of these rules at such time that, in the ordinary course of post, the letter would be delivered within the time above mentioned, or if … no such address given, by a notice published in the Gazette ….”
Section 67 of the Courts of Judicature Act, 1964, of Malaysia provides:
“The Federal Court shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil matter … subject nevertheless to the provisions of this or any other written law regulating the terms and conditions upon which such appeals shall be brought.”
The appellant was the successful candidate in an election to the Dewan Ra'ayat held on April 25, 1964. The result of the election was duly published in the Gazette on June 11, 1964. On June 29, 1964, within the required 21 days, the respondent presented to the Registrar of the Supreme Court an election petition claiming that the appellant's election was invalid on the ground that he was disqualified in that he was not at the time a citizen of Malaysia. The respondent not having appointed a solicitor or advocate or left an address for service, the appellant, acting under rule 10, lodged a copy of his petition on the registrar on the last day of service prescribed by rule 15. He further advertised a notice of presentation of the petition in the Gazette on July 23, 1964, after the 10-day period required by rule 15. The election judge, struck out the petition on the ground that it had not been served in accordance with the rules and on the basis that that order was interlocutory, gave leave to appeal under section 68 (2) of the Courts of Judicature Act, 1964. The Federal Court of Appeal set aside his decision, giving leave to appeal to the Privy Council:—
Held (1) that, on the basis (sed quaere (post, p. 852C–D)) that the order of the election judge was interlocutory and on the true construction of section 33 of the Election Offences Ordinance, that section which contained no such limiting words as those in section 36, was insufficient to overcome the express words of section 67 of the Courts of Judicature Act, 1964, so as to preclude the bringing of an appeal in an interlocutory matter, so that it was open to the election judge to give leave to appeal and the Federal Court to entertain the appeal (post, pp. 852G–H–853A); and that, while the Privy Council would not entertain an appeal after a final determination of an election petition, the Federal Court, in giving leave to appeal, under section 74 of the Act of 1964, conferred upon the Privy Council jurisdiction to entertain the interlocutory appeal (post, p. 853B, F–G).
Per curiam. Their Lordships are reluctant to entertain interlocutory appeals, especially in election petitions, and unless the case raised is of exceptional public and general importance the Federal Court may well think it wiser to leave the party aggrieved to apply to the board for special leave to appeal under section 74 of the Courts of Judicature Act, 1964. The present case, however, does raise a question of exceptional public importance on the proper interpretation of the rules relating to election petitions (post, pp. 853G–H–854A).
(2) That although lodgment of the petition on the registrar was a literal compliance with rule 10 of the Election Rules in Schedule 2 to the Ordinance there was, in respect of service of petitions, an inconsistency between rules 10 and 15 and in view of the explicit provisions of rule 15, service in accordance with rule 10 was insufficient and a petition must be served in accordance with the terms of rule 15 (post, pp. 854H–855A); that the terms of rule 15 were mandatory, and not merely directory (post, p. 856A–B); and that, therefore, there being no personal service and the advertisement in the Gazette being out of time, the proceedings were a nullity: no weight could be attributed to the circumstances that the rules contained no express power to strike out a petition for non-compliance with rule 15 and an election judge had an inherent power to cleanse his list by striking out, or better, by dismissing those petitions which had become nullities by virtue of a failure to serve the petition within the time prescribed by the rules (post, p. 856A–B, C–E).
APPEAL (No. 33 of 1965) by C. Devan Nair from an order of the Federal Court of Malaysia (May 13, 1965) (Thomson L.P., Barakbah C.J. and Tan J.), which allowed an appeal by the respondent, Yong Kuan Teik (with leave of the court), from an order of the High Court...
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