LEBBE v. COMMISSIONER OF ELECTIONS AND OTHERS

034-SLLR-SLLR-1998-1-LEBBE-v.-COMMISSIONER-OF-ELECTIONS-AND-OTHERS.pdf


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Lebbe v. Commissioner of Elections and Others
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LEBBE
v.COMMISSIONER OF ELECTIONS AND OTHERS
COURT OF APPEALRANARAJA, J„
C.A. APPLICATION NO. 250/97JUNE 17, 1997.
Local Authorities Elections – Local Authorities Election Ordinance ss. 60, 61, 63,63A, 64, 65 (b), 66, 67 (2) and 69 – Writs of Certiorari and Mandamus – Applicationfor recount – Grounds for declaring election invalid – Local Authorities ElectionsAmendment Act, No. 24 of 1977 – Candidates – Public Officials – Counting Agents- Counting Officer – Returning Officer – Commissioner of Elections – ElectionsOffice – Inspection of Returning Officer's Journal and ballot papers by Court -Onus of proof – Recount – Journal.
For an election to be declared invalid three conditions have to be satisfied:
There must be a failure to comply with any provision of theOrdinance.
It is essential for the Court to have sufficient evidence before it thatthe election was not conducted in accordance with some principlelaid down in the provisions of the Ordinance. The vote of every electorwho has effectively exercised his right has to be duly taken intoaccount for the purpose of ascertaining which candidate has receivedthe majority of the votes. It is the will of the majority which mustbe declared at the end of the election. The 'conducting* of the counthas to be done by public officials. The political parties or groups thatfielded candidates at the election have only a right to attend at thecount to ensure that the underlying principles are followed by thepublic officials but they play no part in 'conducting' the election andare not public officials.
The Court must be satisfied that the failure to comply with theprovisions of the Ordinance and the failure to conduct the electionin accordance with the principles laid down in such provisions affectedthe result of the election. The 'result* contemplated is the return ofthe candidate and not the majority.
After the amendment of the Local Authorities Elections Ordinance by Act,No. 24 of 1977 each political party or independent group has the right toappoint two agents to attend at the counting of votes at any counting centre.
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Notice in writing of the appointment of counting agents with their names andaddresses has to be given by the Secretary of the recognized party or itsauthorized agent or the group leader to the Counting officer before thecounting. Any person whose name does not appear in the notice may berefused entry to the Counting center by the Counting officer (section 60).The votes have to be counted after making arrangements for the presenceof Counting Agents with notice in writing of the time and place(section 61). The provisions of section 63 (6) require two statements tobe prepared by the Counting officer, one giving the number of votes castfor each party or group and the other stating the number of preference votesreceived by each candidate. These statements have to be certified by theCounting officer and witnessed by one of his assistants and clerks. Thecounting agents of a party or group may sign them if they so desire. Anypower, duty or function of a Counting officer under section 63, may beexercised, performed or discharged on his behalf by any of assistants orclerks under his supervision and direction. Though this is not provided forin the statute, the Counting officer must maintain a journal wherein is kepta record of the proceedings before him.
From the statements delivered to him by the Counting officers, the Returningofficer will determine the number of votes given for each political partyor independent group and number of preferences for each candidate of suchparty or group (section 65 (to) ). Two agents, each of the political partiesor groups have the right, if appointed in terms of section 60, to be presentat the proceedings before the Returning officer.
Before the Returning officer declares the result of the election, notice in writinghas to be given by him to the secretary or the authorized agent of a politicalparty or group leader of an independent group contesting the election, ofthe time and place at which the result will be declared.
The Returning Officer is also required to publish a notice specifying the namesof the candidates elected as Mayor and Deputy Mayor of the relevant localauthority and the names of the candidates elected as members. The ReturningOfficer is also obliged to report the result to the Commissioner of Electionsthrough the Elections officer of the district in which the area is situated.
The Commissioner in turn has to cause the result so reported to be publishedin the Gazette.
The Returning Officer to whom the Counting officer delivers the ballot papersand documents referred to in section 64 (2) has to deliver to the Electionsofficer of the district in which the electoral area is situated, the ballot papersand documents referred to in section 67 (2) which have to be retained bythe latter for six months from date of receipt after which they are destroyed.
No person is entitled to inspect the ballot papers or documents whilethey are in the custody of the Elections Officer. A competent Court may order
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the production, inspect or authorise the inspection of such packets of ballotpapers or documents within the specified period of six months (section 67(2) )■
The maxim, omnia presumuntur rite et solemniter esse acta. That all officialacts have been regularly performed may be presumed. The onus of provingthat the Election officers acted contrary to the provisions of the Ordinanceis on the petitioner.
Every non-compliance with the provisions of the Ordinance is not sufficientbut it must be established that the election had not been conducted inaccordance with the principles underlying the provisions of the Ordinance.
Failure to provide adequate staff to conduct the count, failing to give adequatenotice to the counting agents of the time and place of the count, refusalwithout reason to permit counting agents duly appointed by the party secretaryof a political party, recognized agent or group leader to be present at thecount, not providing adequate facilities to the counting agents to observethe count and make their own notes, refusal to record the objections of thecounting agents to the manner in which the counting was done, failure toallow a recount when demanded by the counting agents are the principlesunderlying the provisions of the Ordinance regarding the counting of votes.The non-compliance must be of such a degree and magniture that it couldreasonably said that the electorate was not given a fair opportunity of electingthe candidate of its choice. If there is sufficient proof that the Election officersdid not act in accordance with the principles underlying the pro-visions relating to the count. Court should call for the packets forwarded tothe Election Officer under Section 67 (2) and ascertain the truth of theallegations made by the petitioner by perusing the journal maintained bythe Counting officer. If the allegations of tampering with the votes/preferencesare established, Court must then proceed to ascertain whether the degreeof the non-compliance was such as to affect the wish of the electorate. Oncethe Court reaches that stage, then it has to proceed to inquire whether thefailure to observe the underlying principles affected the result of the election.
Where requests are made, the Court makes available to the petitioners, copiesof the statements of the Counting officers prepared in terms of section 63(a), on which the Returning officers declared the result under section 65 andpublished the notice of the result under section 66 in the Gazette. Thepetitioners were thus in a position before the date of the argument to ascertainwhether the statements were prepared in conformity with section 63 (6) andwhether the declaration under section 65 and notice under section 66 talliedwith the statements. Where the Court after inquiry is satisfied that the resultin all probability has been affected and where this is sought by way of relief,allow a recount of the votes/preferences. However mandamus directing arecount will not lie in all cases where such relief is sought.
The right to seek a recount being conferred on Counting agents and noton the candidates the petitioner qua candidate is not entitled to a recount
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Cases referred to:
Martin Perera v. Medadombe 73 NLR 25, 29.
Eastern Division of the Country of Clare (1886) 4 OM & H 162.
Woodward v. Sarsons (1875) LR 10 CP 733.
De Silva v. Ivan Appuhamy (1993) 2 Sri LR 401, 412, 413, 415, 416.
Munasinghe v. Corea 55 NLR 265, 272, 273.
APPLICATION for writs of certiorari and mandamus.
S. J. Mohideen for petitioner.
S. Sri Skandarajah, S.S.C for respondent.
Cur. adv. vult.
June 17, 1997.
DR. RANARAJA, J.
Introduction:
This is one of many applications filed by unsuccessful candidates,who contested the Local Authorities Elections held on 21.3.97. Themain reliefs prayed for in almost all the applications were:
writs of Certiorari quashing the determination of the number ofpreferences for each candidate and,
writs of Mandamus directing the relevant officials to scrutinisethe tally sheets and/or recount the ballot papers pertaining tothe preference votes received by each candidate of a particularpolitical party or independent group.
In view of the large number of such applications, this order willdeal in some detail the relevant law and the decisions of the SuperiorCourts on the subject. This judgment will be the basis on which allother applications will be decided.
Section 69 of the Local Authorities Elections Ordinance :
Section 69 of the Local Authorities Elections Ordinance (as amended)provides: "No elections shall be invalid by reason of any failureto comply with the provisions of this Ordinance relating to electionsif it appears that the election was conducted in accordance with the
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principles laid down in such provisions, and that such failure did notaffect the result of the election".
Thus for an election to be declared invalid, three conditions haveto be satisfied, firstly, there must be a failure to comply with anyprovision of the Ordinance. As observed by H. N. G. Fernando, CJin Martin Perera v. Medadombdat 29. This expression is appropriateto a case where a public officer does not perform an act or dutywhich some provision of the Ordinance requires him to perform,because if so, the officer clearly fails to comply with that provision".Secondly, it is essential for Court to have sufficient evidence beforeit that the election was not conducted in accordance with someprinciple laid down in the provisions of the Ordinance. His Lordshipthe Chief Justice, in Martin Perera (Supra) at p. 29, was of the viewthat the provisions in sections 59 to 65 of the Ordinance as they stoodat the time recognized the principle that the vote of every elector whohas effectively exercised his right has to be duly taken into accountfor the purpose of ascertaining which candidate has received themajority of the votes and also the principle that it is the will of themajority which must be declared at the end of the election. The"conducting" of the count has to be done by public officials. Thepolitical parties or groups that fielded candidates at the election haveonly a right to attend at the count to ensure that those underlyingprinciples are followed by the public officials. They play no part in"conducting" the election and are not "public officials" who arerequired to comply with the provisions of the Ordinance in conductingthe election.
Finally, the Court must also be satisfied that the failure to complywith the provisions of the Ordinance and the failure to conduct theelection in accordance with the principles laid down in such provisionsaffected the result of the election. The "result" contemplated is thereturn of the candidate and not the amount of the majority (EasternDivision of the County of Clare)™ or the success of the onecandidate over the other. – (Woodward v. Sarsonsp.
Counting Agents:
After the amendment of the Local Authorities Elections Ordinance, byAct No. 24 of 1977, each political party or independent group hasthe right to appoint two agents to attend at the counting of votes at
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any counting center. Notice in writing of the appointment of countingagents, stating their names and addresses, has to be given by theSecretary of the recognized party or its authorised agent or the groupleader to the counting officer before the counting. Any person whosename does not appear in the notice may be refused entry to thecounting center by the counting officer (section 60). The votes haveto be counted after making arrangements for the presence of countingagents upon notice in writing of the place and time (section 61).
Counting Officer
Section 63 (6) provides:
"The counting officer shall prepare a written statement, in wordsas well as in figures, of the number of votes given for eachrecognized political party and independent group, and a separatestatement, in words as well as figures, of the number of preferencesindicated for every candidate nominated by each such party orgroup, and each such statement shall be certified by the countingofficer and witnessed by one of his assistants and clerks and theagents of any party or group as are present and desire to sign".
The provisions of the section require two statements to be preparedby the counting officer, one giving the number of votes cast for eachparty or group and another stating the number of preference votesreceived by each candidate. These statements have to be certifiedby the counting officer and witnessed by one of his assistants andclerks. The counting agents of a party or group may sign them ifthey so desire.
It is to be noted that any power, duty or function of a countingofficer under section 63, may be exercised, performed or dischargedfor and on behalf by any of his assistants or clerks acting under thesupervision and direction of the counting officer (section 63A).
Returning Officer:
It is from the statements delivered to him by the counting officersthat the returning officer will determine the number of votes givenfor each political party or independent group and the number ofpreferences indicated for each candidate nominated by such party
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or group (section 65 (b) ). Two agents each of the political partiesor groups have the right, if appointed in terms of the provisions ofsection 60, to be present at the proceedings before the returningofficer.
Before the returning officer declares the result of the election, noticein writing has to be given by him, to the secretary or the authorisedagent of a political party or group leader of an independent groupcontesting that election, of the time and place at which the result willbe declared (section 61 (2) ). The returning officer is also requiredto publish a notice specifying the names of the candidates electedas Mayor and Deputy Mayor of the relevant local authority and thenames of the candidates elected as members (section 66 (1) (a) ).The returning officer is also obliged to report the result to theCommissioner of Elections through the elections officer of the districtin which the area is situated (section 66 (b) ). The Commissionerin turn has to cause the result so reported to be published in theGazette (section 66 (2) ).
Elections Officer:
The returning officer, to whom the counting officer delivers the ballotpapers and documents referred to in section 64 (2) has to deliverto the elections officer of the district in which the electoral area issituated, the ballot papers and documents referred to in section 67(2), which have to be retained by the latter for a period of six monthsfrom the date of receipt, after which they are destroyed. No personis entitled to inspect the ballot papers or documents while they arein the custody of the Elections officer. A competent Court may orderthe production, inspect or authorise the inspection of such packetsof ballot papers or documents within the specified period of six months(section 67 (2) ).
Reliefs claimed by the Petitioner:
One of the reliefs claimed by the petitioner in this application, likein the other applications, is to call for and examine the journalmaintained by the returning officer and all other documents maintainedincluding the ballots cast in favour of the party or group from whichthe petitioner contested the election as a candidate. The petitioner,who contested the election as a candidate of the United National Party,
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for the purpose of electing the Chairman, Vice Chairman and Membersof the Lankapura Pradeshiya Sabha, secured 1,297 preference votes.He was unable to secure a seat in the Sabha. He believes he receiveda large number of preference votes. The 1st respondent, Commis-sioner of Elections has filed with his affidavit, document 1R2, whichis a certified copy of the statement of the total of preferences castfor candidates of the U.N.P seeking election to the Lankapura PradeshiyaSabha, counted at all the counting centers. The petitioner has received1,258 preference votes at the counting center No. 12, 26 at center13 and 13 postal votes counted at center No. 28. The two countingagents of the People's Alliance and the U.N.P whose affidavits havebeen filed in support of the petitioner's contention, state that hereceived a large number of preference votes. However they wereboth present at the counting of the votes at center No. 12 only. Thepetitioner for reasons best known to him has failed to file affidavitsof the counting agents at centers Nos. 13 and 28. The petitioneralleges that the returning officer and his staff failed to exercise duediligence and care in the counting of preferences and the preferenceshe polled were dishonestly counted in favour of the winning candidates,namely, the 4th to 8th respondents, who were present at the countinghalls, presumably as counting agents.
There is no doubt that the petitioner received a large number ofpreference votes from those counted at center No. 12. This is borneout both by the affidavits of the two counting agents as well as thedocuments 1R1 (a) to (c) and 1R3 filed by the 1st respondent.However, there is no document filed by the petitioner to support hisaverment that he received as high a number of preference votescounted at center No. 12 at the other two centers. There is also noevidence at all produced by the petitioner, which in any way evensuggests that the officials conducting the count acted dishonestly. Thepetitioner also complains that a maximum of six counting agents werepermitted to be present in the three counting centers and he wasnot one of them. It is averred that he was therefore unable to askfor a recount.
Are Counting Agents Amenable to Writ Jurisdiction:
The unfair conduct of the counting agents and inefficiency/incompe-tence/dishonesty of elections officers are two themes that run throughall the applications for recounts. Thus it is necessary to consider the
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role played by counting agents and whether they are amenable towrit jurisdiction of this Court.
As seen, section 60 provides every political party or independentgroup the right to appoint not more than two agents to attend atthe counting of votes at each place where votes are counted. Thereis no prohibition against a candidate at the election being appointeda counting agent. The counting agents are appointed by the secretaryof the political party or his recognized agent or the group leader. Theneed to restrict the number of counting agents to two is due to obviouslogistical reasons. For example, where there are five parties or groupscontesting an election with each having twenty-five candidates on thenomination list and if each candidate was permitted to have twocounting agents, the center will be filled with two hundred and fiftycounting agents leaving no space in a center of average size for theelections officers to conduct the counting satisfactorily. It is to avertsuch disorganisation and chaos that is bound to take place that thenumber of counting agents has been restricted to two for each partyor group by statute.
Besides, as observed by Fernando, J. in De Silva v. Ivan Appuham/A)at 416 “the basic assumption that candidates of the same party orgroup cannot agree on agents who would act impartially as betweenone candidate and another is questionable, it assumes a degree ofdistrust and suspicion among candidates which cannot reasonably beassumed to exist among members of what is essentially a team withcommon political objectives. Parliament must rather be presumed tohave contemplated that candidates would agree on agents who wouldnot be dishonest or partial as between one candidate and another".Political parties or groups are voluntary organisations which shouldhave overall control of the candidates and exercise discipline overthem. A candidate who is dissatisfied with the conduct of countingagents must seek his remedy within the party or group itself.
The counting agents are appointed to attend at the counting ofthe votes. Even though the counting officer is required to makearrangements for the counting of the votes in the presence of thecounting agents, the non-attendance of such agents will not, if thecounting is otherwise duly done, invalidate the count (section 74). Thestatutory requirement is for the counting officer to give adequate noticeto the counting agents to be present, if they so wish, at the counting.
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The responsibility of attending the count is solely at the discretionof the counting agents. Their absence at the count will in no wayaffect the "conduct" of the election so long as the counting officerhas duly carried out the count.
The duty cast on the counting officer is to open the count to thescrutiny of the counting agents, who can make their own objectionsand observations as the count proceeds. The task of the countingagents is to ensure that the counting officer and his staff performtheir duties according to law. The counting officer in turn is requiredto provide reasonable facilities to the counting agents to watch withdiligence the proceedings. Though there is no specific provision inthe Ordinance to do so, in practice, the counting officer must maintaina journal to record any objections raised by the counting agents andhis rulings thereon. The counting agents themselves have to be vigilantin ensuring that votes cast for each contesting party or group andthe preference votes are accurately counted according to the pro-visions of sections 61A to 64. They also should exercise their right,when necessary, to seek a recount of votes counted at both stages,if they are not satisfied with the manner in which the count wasconducted. If they fail to exercise that right, proceed further and acceptthe statements prepared by the counting officer as being accurateby signing the same, there is no way that Court will interfere withthe count by directing a recount to be held.
On the other hand, if the counting agents have taken any objectionsat the count and insisted that they be properly journalised by thecounting officer, Court can at the appropriate stage have recourseto the journals to arrive at a decision on whether the election wasconducted in compliance with the provisions of the Ordinance andthe principles underlying in those provisions.
The provisions of the Ordinance therefore permit counting agentsto attend at the counting. The law does not cast on them any statutoryfunctions or duties in conducting the election. They are not publicofficers responsible for the conduct of the election. They are agentsof the respective political parties or groups which are voluntaryorganisations. Any lapses on their part at the counting of votes willnot be considered acts or omissions of public officers, whose conductalone is amenable to the writ jurisdiction of this Court. Any applicationseeking writs of certiorari to quash the election of candidates of a
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particular political party or group on the ground that the countingagents of such party or group did not carry out their functions andduties for the party or group properly, is misconceived.
Failure to comply with the provisions of the Ordinance byElections Officers:
in many applications the honesty and integrity of public officialswho conducted the elections are challenged. It is alleged that thecounting officers and their staff have worked in collusion with theauthorised agents, group leaders or counting agents, who in certaininstances were candidates themselves, to count preference votes castin favour of the petitioners with preferences cast in favour of thewinning candidates or have done so due to carelessness or humanerror, thus depriving the petitioners and the electors the benefit ofthe choice of the voters. Such allegations are of a serious nature.Section 114 of the Evidence Ordinance provides “the Court maypresume the existence of any fact which it thinks likely to havehappened, regard being had to the common course of natural events,human conduct, and public and private business in their relationto the facts of the particular case. The Court may presume (dj thatjudicial and official acts have been regularly performed".
This presumption is based on the maxim, omnia presumuntur riteet solemniter esse acta. The words "regularly performed" mean donewith due regard to form and procedure. Where there is generalevidence of acts having been legally and regularly done, courts tendto dispense with proof of circumstances, strictly speaking essentialto the validity of those acts, and by which they were probablyaccompanied in most cases, although in others the assumption restssolely on grounds of public policy. — Coomaraswamy – The Law ofEvidence – Vol. 2, bk 1, p 407.
The onus of proving that the elections officers acted in any mannercontrary to the provisions of the Ordinance therefore lies on thosewho challenge their conduct. A fancied possibility of dishonesty orerror is not sufficient to vitiate a count; there must be material pointingto probability of error based upon grounds from which such aninference could reasonably be drawn. – See: Fernando, J. in De Silva(supra) at p. 412. Unless objections are raised by counting agentsto actual or suspected errors in the counting or recording of prefer-
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ences and insisting on those objections being contemporaneouslyrecorded by the counting officer in the journal, Court will be slow tohold that the presumption has been rebutted. It is only where thepetitioner proves to the satisfaction of Court that the counting officerhas failed to comply with any provisions of the Ordinance in respectof the count that it has failed to comply with any provisions of theOrdinance in respect of the count that it will proceed to inquire whethersuch non-compliance was contrary to the principles laid down by theprovisions. As Nagalingam, A.C.J observed in a similar context inMunasinghe v. Corest5) at 272-73:
“Every non compliance with the provisions of the Order inCouncil does not afford a ground for declaring an election void,but it must further be established (apart from any other require-ment) that the non-compliance with the provisions was of such akind or character that it could be said that the election had notbeen conducted in accordance with the principles underlying thoseprovisions. Are the principles laid down in the provisions of theOrder in Council different from the provisions themselves? Unlessthey were, no adequate reason can be assigned for the draftsmanusing the language he has used. The difference I think, consistsnot so much in the nature of the non-compliance as in thedegree of that non-compliance; it consists not in a barenon-compliance but in the magnitude or extent of the non-compliance". . . I would not put down the omission to perforatethese ballot papers to carelessness, and much less to negligence,but rather to human fallibility, to the imperfection of the humanmachine, to what is sometimes termed the human element .' . .To hold otherwise would not merely set at naught elections ingeneral, but render entirely unworkable the democratic machinery".
Principles underlying the Provisions of the Ordinance Relatingto the Count:
What then are the principles underlying the provisions of theOrdinance regarding the counting of votes, the breach of which wouldjustify the invalidation of an election? In other words, what should bethe effect of a failure to provide adequate staff to conduct the count,failing to give adequate notice to the counting agents of the time andplace of the count, refusal without reason to permit counting agentsduly appointed by the party secretary of a political party, recognized
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agent or group leader, to be present at a count, not providing adequatefacilities to the counting agents to observe the count and make theirown notes, refusal to record the objections of the counting agentsto the manner in which the counting is done, failure to allow a recountwhen demanded by the counting agents?
Apart from what H. N. G. Fernando, C.J held in Martin Perera(supra), to be the underlying principle namely, that the vote of everyelector who has effectively exercised his right has to be duly takeninto account for the purpose of ascertaining which candidate hasreceived the majority which must prevail and be declared at the endof the election, Nagalingam A.C.J in Munasinghe (supra) came toa similar conclusion, when he observed, the non-compliance shouldbe of such a degree and magnitude that it could reasonably be saidthat as a result of such non-compliance the electorate had not beengiven a fair opportunity of electing the candidate of its choice. A failureto comply with those provisions would be acting contrary to thatprinciple. If such a breach of the provisions does take place, thecounting agents may produce evidence by way of affidavit and otherdocuments maintained by them. Bare statements unsupported by thepetitioners, who were not present at the count, will not suffice. If thereis sufficient proof that the elections officers did not act in accordancewith the principles underlying the provisions relating to the count, Courtshould call for the packets forwarded to the Election Officer undersection 67 (2) and ascertain the truth of the allegations made by thepetitioner by perusing the journal maintained by the counting officer.If the allegations of tampering with the votes/preferences are estab-lished, Court must then proceed to ascertain whether, the degree ofthe non-compliance was such as to affect the wish of the electorateto return the candidates of its choice as members of the relevant localauthority. Once Court reaches that stage, then it has to proceed toinquire whether the failure to observe the underlying principles affectedthe result of the election.
Effect of Non-compliance of Provisions Regarding the Count onthe Result of the Election:
In the context of breaches of the provisions of the Ordinancerelating to the counting of votes, this Court made available, whererequests were made by petitioners, copies of the statements of thecounting officers prepared in terms of section 63 (6), on which the
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returning officers declared the result under section 65 and publishedthe notice of the result under section 66 in the Gazette. The petitionerswere thus in a position before the date of argument to ascertainwhether the said statements were prepared in conformity with theprovisions of section 63 (6) and whether the declaration under section65 and notice under section 66 tallied with the statements. Wherethey tallied, there could not have been any error or irregularity, see:De Silva (Supra) p. 413, and the question of any error or irregularityaffecting the result did not arise. However, where there are discrep-ancies in the figures entered in the said statements and declaration/notice, Court is obliged to proceed further and investigate whetherthe error or irregularity was of such a degree and magnitude to affectthe result. If Court, after such inquiry is satisfied the result in allprobability has been affected, where sought by way of relief, allowa recount of the votes/preferences in order to give the electorate afair opportunity of electing the candidates of its choice. Howevermandamus directing a recount will not lie in all cases where suchrelief is sought. Fernando, J. in De Silva (supra) at p. 415 posedthe question whether a writ of mandamus lies where a recount wasnot demanded in respect of the count of votes/preferences undersection 63 (7). His Lordship proceeded to answer the question thus:"while the failure to demand a recount at the proper stage may notalways be fatal, in the circumstances of this case, Mandamus didnot lie". In that case, the counting agents of the Independent Group,of which the petitioner was a candidate, had not made a demandfor a recount, after the count and prior to the relevant statementsin respect of the votes/preferences were prepared and certified undersection 63 (6). The right to seek a recount being conferred on countingagents and not on the candidates the petitioner qua candidate wasnot entitled to a recount.
Conclusion:
In the instant application the petitioner has failed to make out acase that, (a) the election officials did not comply with the provisionsof the Ordinance and (b) they conducted the election in breach ofthe principles underlying those provisions and (c) that the conductof the said officials affected the result of the election. Thus neithercertiorari nor mandamus is available to the petitioner. His applicationis dismissed. No costs.
Application dismissed.