Court voids election due to failure to deliver proper ballot, creating likelihood result was affected.

[*126] 1984 Sept. 19

(NIKITAS, P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

Panayiotis Katiris,

Petitioner,

v.

Charalambos Aristodemou,

Respondent.

(Election Petition No.l/84).

Election Petition - Practice - The Election of Members of the House of Representatives (Election Petition) Rules of Court, 1981 - Whether in the light of Rule 25 providing for the application mutatis mutandis of the Civil Procedure Rules reference should be made in the Petition to the specific section of the law or the Rule of Court on which the petition is founded - In the light of Rule 4 of the aforesaid Rules of 1981 and the precedent for a petition given by such Rules, the question should be answered in the negative.

Election Petition - Practice - Parties - Any person whose election is questioned should be joined as respondent.

Elections - The Election of Members of the House of Representatives Law 72/79 - Section 58(b) - Non-compliance with the provisions of said law relating to conduct of elections vitiates an election, if the result of the election was affected thereby - Election for the displaced member of a Village Commission - Failure of the Returning Officer or his appointed officer to deliver to a displaced voter the proper ballot paper - The two candidates, i.e. the Petitioner and the Respondent, got the same number of valid votes and, as a result, the winner was chosen by lot (Rule 13 of the Election of Members of the House of Representatives (Election Petitions) Rules, 1981) - Said failure constitutes a breach of Rule 11(l)(a) of the aforesaid Rules - In the circumstances theresult was affected by such error or irregularity - No proof is required as to how the said voter would have voted, if he had been given the proper ballot - Likelihood that [*127] the result could possibly have been affected by the breach of the election law is sufficient to lead to an annulment of an election.

Elections - Village Commission - The Village Authorities Law, Cap. 244, as amended - Section 9(3)(a) - The provisions of the Election of Members of the House of Representatives Law (Law 72/79) and the Rules made thereunder are applicable to elections of Village Commissions.

M. Christofides, for the Petitioner.

St. Kittis, for the Respondent.

A. Evangelou, Senior Counsel of the Republic, for the Returning Officer.

JUDGMENT

The following judgment was delivered by:-

NIKITAS, P.D.C. This is a petition which arises out of an election for the displaced member of the village commission of Nikitari, in the election area of Nicosia, held on the 6th May 1984.

The history of the matter over which there is virtually no dispute is this. Mr. Panayiotis Katiris the petitioner in this case was a candidate of the Democratic Rally Party at that election and Mr. Charalambos Aristodemou of the Democratic Party, the respondent on the petition, was also a candidate. There was no other candidate. Displaced and non-displaced voters alike had cast their votes in the same ballot box. [*128]

A total of 48 displaced electors had voted, but when the poll was concluded and the votes counted it was found that there were only 47 ballot papers by displaced voters, that is, one less than the number of votes cast; while in respect of non-displaced voters there was an excess to the extent of one vote over those that could have been cast. Actually

271 ballot papers were found instead of 270. Of the 47 votes in question 42 were valid the remaining five having been properly rejected. The two candidates got an equal number of votes: 21 each.

In the face of this equality of votes the returning officer proceeded to choose the winner by lot as provided by r.13 of the Election of Members of the House of Representatives (Election Petitions) Rules 1981 (See Public Instrument no.1677, published on 10.4.8l). It must be-noted that by s. 9(3)(a) of the Village Authorities Law Cap. 244 (hereinafter called for convenience Cap. 244) the provisions of the Election Law and the Rules made thereunder are made applicable to elections for village commissions under Cap. 244 subject to the modifications, adaptations or exceptions mentioned in that section. According to the interpretation section of Cap. 244 the term ‘Election Law’ includes the Election of Members of the House of Representatives Law (Law No. 72/79 for short) and any amendments thereto. In parenthesis it may be observed that the number of seats in a Village Commission to which displaced persons are entitled and other relevant matters are regulated by s. 24 of Cap. 244 as amended. [*129]

The lot held by the returning officer favoured the respondent who was thereupon declared elected to the office of member of the Village Commission in question the petitioner duly objecting at the time to the validity of the voting result and the procedure followed.

On 15th May 1984 the petitioner brought this petition claiming that:

“A(a) The-election of a displaced candidate as “member of the Village Commission of Nikitari “is void;

(b)” The election of Mr. Charalambos Aristodemou “as a member of that commission is void; and

“B. The Court should order a new election”.

I shall first deal with a preliminary point raised by counsel for respondent. By r.25 of the Election of Members of the House of Representatives (Election Petitions) Rules of Court 1981 (P.I.1699 dated the 29th May 1981 ) the provisions of the Civil Procedure Rules shall apply , mutatis mutandis, to any matter for which provision is not made in the rules. Counsel submitted that since no reference is made to the specific section of law or rule of Court on which the application is founded as provided by 0.48 r.1 of the C.P.R. it is bad in law and ought to be dismissed. In reply

counsel for the petitioner said that he merely used the form set out in the schedule of the 1981 Rules of Court. Indeed, neither r.4

which is [*130] the appropriate rule defining exhaustively the contents of an election petition nor the precedent given requires a petitioner to state the legislative provision on which the petition is based which is the case with applications under the Civil Procedure Rules (See forms 45 and 46). Consequently I find that the petition was in the prescribed form and was presented in accordance with the Election Petition Rules. The submission therefore must fail. Apart from that as the course of the proceedings demonstrates no prejudice at all was caused to the respondent by the alleged omission.

A second point taken on behalf of respondent in his reply is that he could not be made respondent to this petition the proper party being the returning officer who had taken a final

decision in rejecting the petitioner’s objection concerning the validity of the election. The matter was not dealt with by counsel for respondent in his written address but since the preliminary objection was not abandoned I am duty bound to consider it.

Having gone through the 1981 Rules of Court it is I think plain that any person whose election is questioned is inevitably made a respondent though perhaps the returning officer may in a proper case be joined as respondent. I mention but a few of those rules. By rule 7(1) on presentation of a petition it must be served immediately (αμελλητί) on the returning officer who must make it public by posting it up in a conspicuous place in his office. Rule 7(2) requires that the petition must also be served on respondent [*131] by the petitioner within five days after its presentation and also publish it in any local newspaper as directed by the Election Court. Rule 8 makes provision for substituted service in case of evasion of regular service by any party. Finally by r.1 7 copy of notice of the intention of the petitioner to apply for leave to withdraw the petition must be given by the petitioner to the respondent and the returning officer. I would here emphasize the use of the word “and” in the regulation.

In any event on directions by the Court the returning officer was notified of the date of the trial and in actual fact Senior Counsel for the Republic appeared on his behalf and addressed the Court. For the reasons that I have stated the second preliminary objection cannot be sustained.

What counsel for the petitioner says in a nutshell in support of the petition is (a) that on the facts one vote out of 48 was missing (b) that this amounted to a breach of the Election Law in that a voter was denied the right to vote (c) that in consequence the equality of votes found to exist between the two candidates was neither real nor lawful [*132] and the action of the presiding official to decide between them by lot cannot be allowed to stand and (d) that since the missing vote might be given for the petitioner the irregularity clearly affected the result of the election and it should accordingly be declared void. Counsel added that the missing vote represented 2.32% of the totality of the votes which goes to show that the deficiency of even one vote could have been decisive.

IN support of his contentions counsel referred me to several passages from two authoritative Greek Textbooks on the subject. The first is N. Saripolos “Greek Constitutional Law” 7th ed. vol. A at

pages 307 and 312 and the other “Election Procedure Law” (Δικονομικόν Εκλογικόν Δίκαιον) by Raikos, 7th ed. pp. 283, 448-449,

487 and 513.

Mr. Kittis submitted on behalf of the respondent that on the evidence the

conclusion must inevitably be drawn that one of the displaced electors had erroneously used a ballot paper that was prescribed for the non-displaced voters. Admittedly this voting paper was counted and taken into account in the election of the non-displaced candidates but counsel invited me to hold that it should not be regarded as missing, but as an invalid vote vis a vis the election of the displaced candidate.

In support of his argument counsel proceeded to make a number of assumptions concerning the use of the disputed vote. In effect he said that the particular voter realised or ought to have realised from the colour and [*133] contents of the ballot paper given to him that it was not in the form prescribed for displaced voters and should have asked the official to change it. The unknown voter did not do so or he failed to check the ballot paper and proceeded to cast the irregular ballot paper which goes to show with certainty, so the argument runs, that he wanted to express his utter disapproval of both displaced candidates by casting an invalid vote.

It was also contended that before the Court can declare the election void the petitioner has to prove that there was a material breach of the Election Law and that such a breach affected the result of the election. In the present situation counsel said, these two requirements have not been fulfilled and the returning officer rightly resorted to the procedure laid down in rule 13, supra, for the selection of the successful candidate by lot , a procedure in which both sides had a fair and equal chance.

In regard to the second requirement above counsel said in substance, but without citing authority, that before deciding to annul the election the Court has to be certain beyond any doubt that the bad vote would have been cast for the petitioner and there is no shred of evidence in that direction.

I have not set out in full the submissions made by the parties. Written addresses were filed and I will have them all in mind when reaching my decision. In his address, which is also in writing, Mr. Evangelou, who appears for [*134] the returning officer, does not dispute the facts as set out in the petition and expresses his concurrence with the views put forward by Mr. Christophides on behalf of the petitioner.

The grounds for questioning a local election under Cap, 244 are laid down by s.58 of Law 72/79 as amended which, so far as material, provides:

"58. Τηρουμένων

των διατάξεων του άρθρου 59 επί Εκλογική Αιτήσει η εκλογή εν συνόλω, ή η εκλογή

ωρισμένων υποψηφίων δύναται να κηρυχθεί άκυρος επί τη αποδείξει ενός των

ακολούθων λόγων:

α. ………………………………………………...........................................

β. Ότι δεν υπήρξε

συμμόφωσις προς τας διατάξεις του παρόντος Νόμου τας αφορώσας εις εκλογάς,

εάν ήθελε φανεί ότι η εκλογή δεν διεξήχθη συμφώνως προς τας καθιερουμένας αρχάς

υπό των διατάξεων τούτων και ότι η μη συμμόρφωσις επηρέασε το αποτέλεσμα της

εκλογής".

The other relevant enactment is s.9(3) (a) of Cap. 244:

"Τηρουμένων των

εφεξής διατάξεων, πάσα εκλογή είναι μυστική, διεξαγομένη συμφώνως προς τας

διατάξεις του Εκλογικού Νόμου και των δυνάμει τούτου εκδοθέντων Κανονισμών ……/"

This particular provision (s.58(b) of

Law 72/79) is to a certain extent similar to s.13 of the Ballot Act 1 872 which provided for the secrecy of elections in England and its

successors ss. 16(3) and 37(1) of the .Representation of the [*135] People Act 1949 that govern the conduct of parliamentary and municipal elections respectively. The legislation in force in England since March 15 1983 is the Representation of the People Act, 1983, but I was unable to find a copy of that Act.

In my judgment s. 58(2) of Law 72/79 embodies substantially the principles enshrined in the English provisions in regard to the validity of an election, but there are differences in the wording employed. For one the English sections are expressed in the negative while s. 58(2) is in positive form. For purposes of comparison I reproduce here verbatim s.13 of the Ballot Act 1872:

“No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Schedule to this Act, or any mistake in the use of the forms, in the Second Schedule to this Act, ‘if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election.”

Section 37 (1) is in much the same terms:

“No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the local elections rules if it appears to the tribunal having cognizance of the [*136] question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect its result.”

In Levers v. Morris (1971 ) 3 All E.R. 1300 Waller J, pointed out at p.1304 that s.37(1) is wider in scope than its forerunner s.13 of the Ballot Act 1872 “but is similar in effect in that 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.”

In Morgan v. Simpson

(1974) 3 All E.R. 722 Lord Denning felt that the section should be transformed into positive form “so as to show when an election is to be declared invalid”. After considering the historical and legislative background of the law as to elections he summed up the effect of the authorities as follows at page 728:

“Collating all these cases together, I suggest that the law can be stated in these proportions: (1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not ……………………………………………………(2) If the election was so conducted that it was substantially in accordance with the law as to [*137] elections, 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 .……………………… (3) But, even though the election was conducted substantially in accordance with the law as to elections, 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.”

Though the above exposition of the Law as exemplified by the authorities mentioned in the judgment of Lord Denning affords a useful guide of the approach of the Courts to election cases one should not fail to note the variations in the language used in s.58(b) of Law 72/79 and that it is positive in character. The affirmative proposition in the section is that non-compliance with the provisions of Law 72/79 relating to the conduct of elections will vitiate an election if it should appear that the election was not conducted in accordance with the principles laid down by those provisions and the result of the election was affected thereby.

In our present case a small voting electorate of 48 persons had voted but the count showed a deficiency of one ballot paper; while that of the non-displaced a surplus of one vote. The inescapable conclusion, as counsel for respondent seems to admit, is that a ballot paper in the form prescribed for the non-displaced was delivered to and used by a displaced voter. Rule 11 (1)(a) of the 1981 rules designed to safeguard the proper conduct of election says:- [*138]

"Εις εκάστην

εκλογήν ο προεδρεύων της εκλογής ή έτερον πρόσωπον ενεργούν κατ' εντολήν αυτού

δίδει εν ψηφοδέλτιον επί του οποίου είναι αναγεγραμμένοι άπαντες οι συνδυασμοί

των υποψηφίων και άπαντες οι μεμονωμένοι υποψήφιοι της εκλογικής περιφερείας εις ην ο

εκλογεύς δικαιούται να ψηφίση."

Thus the law requires that electors should be able to record their votes in a way that ensures that they are effectively cast for the candidate of their choice at an election in which they are entitled to vote. Here the failure of the returning officer or his duly appointed officer to deliver a proper ballot paper, which for some reason the elector concerned failed to check, constitutes a breach of the law. The error irregularity affected the result inasmuch as if the correct procedure were followed no one may possibly know who the successful candidate would be or whether the result would be a tie. And it is not permissible in my opinion to launch ourselves into a sea of speculations for finding out. It is enough in my judgment if there is a likelihood that the result could possibly have been affected by the breach of the election law. No proof beyond doubt how a person would have voted is required as suggested by counsel for respondents. There is ample authority in support of the view I have taken on this matter, In 14 Halsbury‘s Laws of England 3rd ed. para 261 at page 150 the law is stated as follows: [*139]

“If, on the other hand, the transgressions of the law by the officials being admitted, the tribunal sees that the effect of the transgressions was such that the election was notreally conducted under the existing election laws, or it is open to reasonable doubt whether those transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the tribunal is then bound to declare the election void.

This proposition is founded on Islington, West Division, Case (19O1) 50’ Malley & Hardcastle 120, at p.125 and Re Pembroke Election Petition (1908) 2 I.R. 433. In a more recent case Gunn

and others v. Sharpe and Others (1974) 2 All E.R. 1058 the same principle is adopted. The material part of the headnote of that case is in these terms;

“They (the errors) were substantial and such as to be likely to affect the result of the election.”

Raikos on which counsel for the respondent also placed reliance observes at pages 448-449 of his work cited supra:

"·……Το Ειδικόν Δικαστήριον αποδεχόμενον

παράβασιν νόμου περί την ενέργειαν της εκλογής, συνεπεία της οποίας γεννάται

αμφιβολία περί[*140] του εάν το τελικόν αποτέλεσμα της ψηφοφορίας ήθελεν είναι το αυτό

άνευ του διαπιστωθέντος ελαττώματος, αποφαίνεται άκυρον την ανακήρυξιν των καθ'

ων η αίτησις βουλευτών ή αναπληρωματικών, η οποία καθίσταται αμφίβολος συνεπεία

της εκλογικής παραβάσεως ......"

Whichever way one looks at the facts of the case it is clear as clear can be that a voter was precluded from effectively exercising his right to vote (s.7 of Law 72/79) and this being a small voting

electorate the deficiency occurring affected the result. In Ruffle v. Rogers (1982) 3 All E.R. 159 the omission of the officials to

stamp four ballot papers was held to be a sound reason for invalidating the election because it prevented the result of the count from being a tie.

I have reached my conclusions in this case fully conscious of the principle that the result of an election is not to be easily upset, but where a breach of the election code has been established the Courts should strive in a proper case - as this one is - to preserve intact the right of the people to make a choice of policies. In my judgment the respondent was not duly elected and the election is therefore declared void. In all the circumstances- I will make no order as to costs.

No Election declared void.

order as to costs.