* {ISOS) I Q. B. D. I T9.
13, 221 votes and liis seat was claimed for one Johnson who had polled13,218 votes oit the ground that he was duly elected and ought to havebeen returned. On a recount tho court in declaring that Johnson waselected in place of Thompson held it was enough for the former to estab-lish that ho had more votes than Thompson and that it was unnecessaryfor him to recount tho votes given for the first four candidates. Channell-
J., says in his judgment,
“ Then if you start with the returning officer’s figures, who is it who-says they are wrong ? The petitioners do not. They say that the figuresof the first four are right and that it is only those of the fifth and sixth-that arc wrong. But he has given no evidence in support of thatsuggest-ion. If, indeed, he had shown that those figures were wrong—subject, to tho question as to the way in which he must have shown it,whether in this petition or in another petition-—and that any one otthose four had a less number of votes than he has now' been ascertained' to have, then I think that ho could not bs unseated. ”
A clear principle emerges from these authorities that once the period'of twenty-one days prescribed by section S3 (1) had elapsed the 2nd or3rd respondent w'as not in peril of being unseated on an election petitionclaiming a recount- of the votes. That being so I hold that the objectionthat tho petition is not properly constituted b}' reason of the dischargeof the 2nd and 3rd respondent fails.
Is the present case one in which it would be proper for me to order thata recount of the ballot papers be taken ? The only material before meconsists of the three affidavits which are almost to tire same effect. Ihave to bear in mind the following points :
(«.) I am entitled to presume that as between the petitioner and the1st respondent and the other candidates the votes were correctlycounted. The burden was on the petitioner to prove that anerror of a magnitude sufficient to turn the scales in his favourmight reasonably have occurred.
The. honesty, care and competence of those responsible for the
counting are not challenged.
There is no evidence that a 113’ of the see en candidates or the fourteen
counting agents detected a single case of miscounting or evenalleged that there was a miscount-.
It- is not suggested that having regard to the number of ballot papers
the returning officer did not have an adequate staff of assistantsand clerks or that the counting was required to be done at arate which multiplied the ordinary chances of error.
Although the petitioner was aware of the comparatively narrow
majority in favour of the 1st respondent, he did not avail himselfof tho right of asking for a recount under section -IS (7), fromwhich I am entitled to presume that he was not then dissatisfied,with the counting.
The affidavits say that the conditions under which the counting tookplace were such that “ it was impossible for the candidates or theiragents to keep an eye on the count or by any means have an effectivecheck It is surprising that no protest was registered at the time andthat this allegation should be made as late as six months afterthe counting. In two paragraphs the petitioner states “ to the best ofmy knowledge and belief” there was a miscount of votes and error inthe rapid sorting out of the votes. Thero is no matcn'al before thecourt for testing the grounds of the petitioner’s belief nor is there evidenceof the facts which constitute his knowledge nor any evidence ofthe sources from which he gathered those facts.
In paragraph 10, read with paragraph 9 of the petitioner’s affidavit,there is a reference to a discrepancy of 97 votes according to certainfigures said to have been announced by the returning officer but no sub-mission on this matter was made by any of the learned counsel whoaddressed me. At one stage of the argument I had the impression thatneither tiie 1st nor the 4th respondent accepted the correctness of thestatements in paragraphs 9 and 10. Even if I accept them as correct,they do not, in the light of the other considerations, afford any groundfor believing that the votes cast for the petitioner were not counted forhim.
Both in his opening address and reply Mr. Izadecn Mohamed referredme to a passage in Fraser on Pmliamcntary Elections (3rd edition, p. 222)to the effect that an application should be supported by affidavit showingthe grounds for supposing that there lias been a miscount and that wherethe majority is a very small one the application is, as a rule, allowed almostas of course. Before following this practice I have to caution myselfon the difference between the English law and ours on two fundamentalpoints, namely, that under the Order in Council rejected ballot paperscannot be called in question on an election petition and that no discretionis given to a returning officer to refuse a recount if asked for by anycandidate.
It is stated in Tfalsbury’s Learn of England (3rd edition), Volume 14,page 310,’
“ A recount is not granted as of light, but on evidence of good groundsfor believing that there has been a mistake on the part of the returningofficer. ”
The authority relied on is the case of the Sleplmey Division . As I havesaid before the provision in section 49 (5) is peculiar to our law and has theeffect of reducing a recount ordered by court to a mechanical process. Iought to have good ground for believing that what has already been doneunder proper supervision did not yield an accurate result-. In paragraph12 of the affidavit the petitioner states,
“ The count of so large a number of votes was a long and wearyingprocess and any attempt at a renewal of the process at that juncturewould have been abortive. ”
I cannot accept this as an excuse for the petitioner not applying for arecount. Had there been an application for a recount it is more likelythat the returning officer, knowing that the majority of the 1st respondentover the petitioner was only 37 votes, Would have, in collaboration withthe counting agents, taken stringent precautions against errors in therecount. While I do not say that, if a petitioner fails to make an appli-cation to the returning officer under the proviso to sub-section 7 of section-IS, he would be precluded from petitioning the court for a recount, itwould, generally speaking, be undesirable for an election court in itsdiscretion to provide a petitioner with a remedy where he could haveinsisted on an analogous remcdjr elsewhere as a matter of right.
Had there been a recount by the returning officer the figures ascertainedthereby would have been of invaluable assistance to this court in judgingwhether a prima facie case has been made out for the exercise of whatMr. Izadeen Mohamed always referred to as the discretionary power ofthe court to order a recount. If that material is not available,the petitioner is alone t o blame.