PARAMOUNT CHIEF TAMBA S. M'BRIWA and PARAMOUNT CHIEF DUDU B. BONA (056)  SLSC 9 (13 August 1962);
Petitioner filed an election petitton on June 12, 1962. On June 22, he served on respondent's solicitor's clerk a copy of the petition, a notice of motion for order for security for costs, a notice of appointment of petitioner's agent and the appointment of petitioner's agent. On June 29, respondent's solicitor told petitioner's solicitor that he had accepted service of the petition and he filed an entry of appearance for the respondent. Respondent also applied for and obtained further particulars from petitioner. On July 3, petitioner filed an affidavit stating that " the above entitled petition and other papers connected therewith " had been ·served. On July 31, respondent filed an application that the petition be struck ou< for failure to comply with rules 15 and 19 of the House of Representatives Election Petition Rules. Rule 15 provides: "Notice of the presentation of a petition ... accompamea by a copy of the petition shall be served by the petitioner on the respondent within 10 days after such presentation .... " Rule 19 provides: "The petitioner or his agent shall, immediately after notice of the presentation of a petition shall have been served, file with the master an affidavit of the time and manner of service thereof." Petitioner argued, first, that respondent's objections were merely formal and, therefore, should not be allowed to defeat the petition and, second, that respondent had waived the requirements of rules 15 and 19 by applying for and obtaining further particulars. Held, striking out the petition, (1) that the requirements of rules 15 and 19 of the House of Representatives Election Petition Rules are mandatory and cannot be waived; and (2) That, even if petitioner had complied with rule 15, the affidavit filed was out of time and was not the kind of affidavit contemplated by rule 19. Nate : This decision was reversed by the Sierra Leone Court of Appeal on November 14, 1962 (Civil Appeal 21/62). Cases referred to: The Shrewsbury Petition Case (1868) 19 L.T. 499; Kanagbo and others v. Bongay, Sierra Leone Court of Appeal, July 27, 1962, Civil Appeal 14/62; Williams v. The Mayor of Tenby (1879) 49 L.J.Q.B. 325; 42 L.T. 187; Paramount Chief R. B.S. Koker v. Paramount Chief Abu Baimba Ill, Sierra Leone Supreme Court, August 9, 1962, E.P. 7/62; Macfoy v. United Africa Co. Ltd.  3 W.L.R. 1405. John E. R. Candappa for the petitioner. Zinenool L. Khan for the respondent. BANKOLE JoNEs J. The application here is to strike out the petitioner's petition on the ground that rules 15 and 19 of the House of Representatives Election Petition Rules (P.N. 97 of 1951), made applicable to these proceedings by the Electoral Provisions Act (No. 14 of 1962), have not been complied with. Rule 15 reads as follows: "Notice of the presentation of a petition ... accompanied by a copy of the petition shall be served by the petitioner on the respondent within 10 days after such presentation, exclusive of the day of presentation." The petition in this case was presented to the master on June 12, 1962. No document containing the notice of the presentation of the petition and accompanied by a copy of the petition was ever served on the respondent within 10 days or at all. Mr. Candappa contends that as all the petition rules are procedural, any objection as to their rigorous compliance is merely technical and formal and he cites The Shrewsbury Petition Case (1868) 19 L.T. 499, a case which he said might have turned the scales in Kanagbo and Ors. v. Kamanda Bongay, Court of Appeal, July 27, 1962, Civil Appeal 14/62. In this case, that is, the Shrewsbury Petition Case, I find that, even if Mr. Candappa has rightly extracted a principle which appears to support his contention, I am hesitant to apply it to the present case, because, in the first place, with respect, no reasons were given by Martin B. in his very short judgment and, in the second place, there are later decisions which run contrary to his views, if those in fact were his views; e.g., Williams v. The Mayor of Tenby and ors. (1879) 42 L.T. 187 is one such case which was decided 10 years after the Shrewsbury Petition Case and by two judges at that. By this, I do not at all mean it to be inferred that all later decisions on any matter in issue are necessarily the right ones and have greater force than earlier decisions. All I want to say is that I prefer to accept this later decision as against the earlier one, if indeed the earlier one conflicts with the later decision. Mr. Candappa, therefore, argues that if a solicitor accepts service of the petition, enters an appearance (an unnecessary step, he concedes) but also applies for and obtains further particulars (a fresh step) from the other side, as is the case here, then that solicitor is the last person to be heard to say that the lack of service on him of a formal document like the notice of the presentation of the petition ought to throw the petitioner's petition out of court. This cannot be so in all fairness, he says, because the subsequent behaviour of the respondent acts as a waiver and rule 59 can, therefore, be invoked, a rule which reads as follows: " No proceedings under the House of Representatives (Elections) Regulations, 1957, shall be defeated by any formal objection." Now, in a ruling I gave on the 9th of this month in the case of Paramount Chief R. B. S. Koker v. Paramount Chief Abu Baimba Ill, Supreme Court, August 9, 1962, E.P. 7 j 62, I adverted to the question of the construction of the rule now under consideration, and this was what I said: "Rule 15, in my view, ought to be construed in its ordinary grammatical sense and in the context of all the other rules dealing with ' notices.' So construed, I think that the notice of presentation must be subsequent to the presentation of the petition to the master, that is, the filing or the presentation must precede the notice of presentation. The expression ' accompanied by ' a copy of the petition . . . means that the document containmg the notice of presentation must be served together with the copy document of the petition filed. The law, therefore, envisages two documents .... " Later in the same ruling, I said: "Rule 15 is not only mandatory in language but peremptory and obligatory as to its compliance.'' No compelling authorities have been produced to persuade me to change the views I expressed in the above case. It seems to me, therefore, that no inference from the service of other documents nor any fresh step taken by the respondent can cure the obligatory demands of rule 15. If the required documents contemplated by this rule are not served on the respondent, and that within the prescribed time, then not even rule 59 can breathe new life into that which is dead. By the non-compliance with the provisions of rule 15, the petition becomes dead and merely awaits burial at my hands. As to rule 19, Mr. Candappa advanced the same arguments as he did in the case of rule 15 and cited several cases and textual authorities, none of which convinces me that in all the circumstances of this case this rule should not be construed in the mandatory manner in which the Court of Appeal construed it in Bongay's case. It is important to remind ourselves of this never-to-beforgotten rule. It reads: " The petitioner or his agent shall, immediately after notice of the presentation of a petition shall have been served, file with the master an affidavit of the time and manner of service thereof." In this case, as I have pointed out, the petitioner did not serve the notice of the presentation of the petition as required by rule 15. It is true that on July 3 he filed an affidavit, stating, among other things, that he had caused to be served on the respondent on June 22, 1962, the petition and "other papers connected therewith." But even if it is said that service of the petition and other papers connected therewith amounts by inference to the service of the notice of the presentation of the petition, the affidavit filed was hopelessly out of time, and, besides, it is not the kind of affidavit contemplated by rule 19: see Paramount Chief R. B.S. Koker v. Paramount Chief Abu Baimba Ill, E.P. 7/62, August 9, 1962. This disposes of the submission relating to rule 19, and I hold that there has not been compliance with this rule. But Mr. Candappa most strenuously argued, almost to the point of conviction, that any fresh step taken by a respondent constitutes in law a waiver of the non-compliance with the rules in question. Unfortunately, he did not support this general proposition with any authority and, regretfully, I received little assistance from the other side. The question of waiver was considered by the appeal court judges in Bongay's case and although they may have treated it as obiter, yet the learned Chief Justice had this to say of rule 19 and I make bold to say that he would have said it also of rule 15: "This, however, is a statutory mandatory obligatory provision as to procedure and cannot be waived by the respondent." It seems to me, therefore, that, when once there has been a breach of the mandatory provisions of rules 15 and 19, any fresh step taken by a respondent, as, for example, in this case, the application for and supply of further particulars, is automatically null and void and without more ado. And if I may only borrow the language of Lord Denning in the Privy Council case of Benjamin Macfoy v. U.A.C. Ltd.  3 W.L.R. 1405, 1409, I would say: "If an act is void, then it is in law a nullity. It is not only bad, but incurably bad . . . and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse." Whatever the purpose of our legislature relating to the Electoral Provisions Act (No. 14 of 1962) may be, that purpose is brought to nought, when there is a complete disregard of provisions which are mandatory so far as their compliance goes. It, therefore, follows, for the reasons given, that I must order that the petition in this matter be struck out with costs, and I so order.
Election Petition-Service of notice of presentation of petition-Whether objection to lack of service merely formal or lechnical-Whether there can be waiver of requirements of rules 15 and 19 of House of Representatives Election Petition Rules (Vol. VI, Laws of Sierra Leone, 1960, p. 407)-Filing of affidaviJ. of time and manner of service