Supreme Court
Appeal No. 4 of 1978
21st December, 1978
Malone, CJ.

Mr. D. R. Lindo for the Appellants
The Solicitor General for the Revising officer

Appeal - Representation of the People Ordinance, 1978 - Representation of the People Registration Rules, 1978 - Hearsay Evidence - Supreme Court of Judicature Ordinance - Case to be remitted with directions to revising officer.

J U D G M E N T

Save the appeal of Yvonne Lindo includes as a ground of Appeal that "extraneous evidence was admitted". The ground of appeal of the Appellants are otherwise the same, namely that:

1. the revising officer lacked jurisdiction to hear the matter in as much as the purported objection was served out of time;

2. the notice was not delivered to the Appellant as required by Regulation 22 (Schedule II);

3. the revising officer based his decision on hearsay evidence;

4. inadmissible evidence was wrongly admitted; and

5. the Appellant was not given an opportunity to answer the objection.

The three cases giving rise to these appeals came up for hearing on the 3rd October, 1978, before the revising officer with 27 others. By virtue of Rule 50 (2) of the Representation of the People Registration Rules 1978, (hereinafter referred to as "the Rules"), an appeal under the Rules becomes an appeal under Part VIII of the Supreme Court of Judicature Ordinance, Chapter 5. The effect of that Rule, as I understand it, is that the provisions of that part of that Ordinance govern appeals made under the Rules. Of those provisions, one is section 130(a) which declares that this Court shall not be competent to entertain a ground of appeal alleging that the Inferior Court had no jurisdiction in the matter, unless objection to the jurisdiction of the Inferior Court was taken formally at some time during the progress of the case and before the decision was pronounced. In the course of the hearing before the revising officer, objection was taken to his jurisdiction on the ground that the copies of the notices of objection required by Rule 22(2) of the Rules to be delivered to the Appellants had not been delivered within the time specified in that Rule. That ground is one of the grounds of appeal. But in the course of the submissions made in respect of that ground, it was also submitted that the revising officer had no jurisdiction on the ground that Mr. Musa was the objector and that he was not qualified to object to the inclusion in the first register of the names of the Appellants. To my mind, that latter objection to the jurisdiction of the revising officer is not one that this Court is now competent to entertain, as formal objection on that ground was not made at the hearing before the revising officer. In any event, I am satisfied from the record and from the evidence given before me by the revising officer, who was called by me to clarify the record in this and in other respects, that Mr. Musa was not in fact the objector. He appeared as Counsel on behalf of Mr. Gibbs who was the objector, but also gave some evidence. A dual role which perhaps gave rise to some confusion.

The record shows that the three cases in question were heard together. This procedure doubtless was followed not only for the convenience of the witnesses, but also for the convenience of Mr. Lindo who was Counsel for each of the three Appellants. Because that was the procedure adopted, and because also these three cases were in a batch of 30 of which some were disposed of before these three cases were heard and some after, it is possible that Counsel for the Appellants is a little confused as to the sequence of events. I am, however, satisfied by the evidence given before me by the revising officer that in arriving at his decision he paid no regard to an Affidavit of a Miss Reynard which Mr. Musa, in his capacity as Counsel for Mr. Gibbs, had sought to introduce as evidence in the case of the Appellant Yvonne Lindo. The revising officer's ruling on the Affidavit does not appear on the record, but the lack of a note to that effect is, I think, to be attributed to the fact that the Affidavit in question was tendered with others which related to another case that was subsequently withdrawn by Mr. Musa in his capacity as Counsel for Mr. Gibbs. Being so satisfied disposes of the ground of appeal that relates solely to the case of Yvonne Lindo, as that ground rests on the supposition that the Affidavit of Miss Reynard had been admitted as a part of the evidence.

It is clear from the revising officer's notes of the proceedings that Mr. Lindo was asked if he was calling witnesses and replied "No," for in the notebook of the revising officer appears the following sentence, "Mr. Lindo states he will not bring any witness."

That sentence is not to be found in the record. But as that record was prepared from the revising officer's notes, I regard the omission of that sentence from the record as an oversight. Accordingly, I find that there is no substance in the fifth of the grounds of appeal applicable to all the Appellants. Namely that:

"5. The Appellant was not given an opportunity to answer the objection."

By Rule 22(2) of the Rules, a person wishing to object to a name appearing on the first register must deliver notice of his objection, "within 14 days of the date of the publication of the first register" to the registering officer and must deliver a copy of the notice within that time to the person to whose name on the first register he objects. By section 2(2) of the Representation of the People Ordinance, No. 2 of 1978, (hereinafter referred to as "the Ordinance"), it is provided that:

"(2) Any reference to "this Ordinance" shall, where the context permits, include a reference to any rules or regulations made thereunder."

In the Rules, there is not to be found a provision governing the method of publishing the first register, but as section 2(3) of the Ordinance does contain a provision which enables to be published by any one of several methods any register which, "is by or under this Ordinance required to be published", it is, I think, clear that that section governs the method of publication of the first register for the purpose of the Rules. The following are the several methods which, by section 2(3) of the Ordinance, a register may be published:

" (a) publishing it in the Gazette; or

(b) making copies thereof available for inspection at the office of the Chief Elections Officer and that of the Registrar; or

(c) by affixing such register…. to the Courthouse or Courthouses in the district to which the register ……. relates or such other conspicuous place in that electoral division as the person publishing considers necessary; or

(d) by advertising it in a newspaper circulating in the area to which such register ……..relates, or by specifying in such an advertisement the places at which such register….. is available for inspection; or

(e) by placards or handbills; or

(f) by such other manner approved by the Commission as the person publishing thinks is best calculated to afford information to the persons who should receive such information."

In the instant case, the first register, it is agreed by both Counsel, was dealt with by the registering officer as follows. It was stenciled and dated the 11th August, 1978, and was on the 12th August sent to the Chief Elections Officer. Then on the 13th August, which was a Sunday, the registering officer affixed it to the outside of the door of his office. I do not consider that the stenciling and dating of the first register constituted a publishing. Nor do I consider that the sending of it on the 12th August, to the Chief Elections Officer, in the absence of any evidence (of which there is none) that copies of it were made available for inspection at that office and at the office of the Registrar constituted a publication. But I am satisfied that by affixing the first register to the outside of the door of his office, the registering officer effected a publication which met the requirements of section 2(3)(c) of the Ordinance. It is however submitted by the Solicitor General who relied upon section 41 of the Interpretation Ordinance, Chapter 2, that because the 13th August was a Sunday, the 14th of August should be regarded as the day of publication. Section 41 of the Interpretation Ordinance, Chapter 2, unlike many other sections of that Ordinance, does not contain words to the effect that it is to apply only in the absence of a provision to the contrary. So that it would seem to be of general application. I am of the opinion, however, that as the Ordinance makes specific provision for the computation of time in sections 2(4) and 71, which is the subject matter of section 41 of the Interpretation Ordinance, Chapter 2, a Court must be guided by the provisions of the Ordinance itself and not by the provisions of section 41 of the Interpretation Ordinance, Chapter 2. In fact, although the language of section 41 of the Interpretation Ordinance, Chapter 2, is more explicit than the language of section 2(4) and 71 of the Ordinance when read together in relation to the computation of time in respect to the publication of a register, their effect is, with one small difference, which is of no relevance to this case, precisely the same. The relevant provisions are as follows,

Section 41 of the Interpretation Ordinance, Chapter 2:

"When a time is prescribed for doing any particular thing, in computing the same, the first day from and after which the time is to be reckoned shall be excluded and the last day included, but when such last day falls on a Sunday, Christmas Day, Good Friday or other day set apart or declared to be observed as a public or bank holiday, it shall also be excluded."

Section 2 (4) of the Ordinance:

"Where any act or thing is directed to be done within a specified time after "the date of publication" of any register ……….that time shall be computed from the date on which the register ……. is first published in any one of the methods set out in subsection (3)."

Section 71 of the Ordinance:

"(1) In reckoning time for the purposes of this Ordinance, Sunday, Christmas Day, Good Friday and any bank holiday shall be excluded.

(2) Where anything required by this Ordinance to be done on any day falls to be done on Sunday or any such excluded day, that thing may be done on the next day not being any such excluded day."

Read together, sections 2(4) and 71 of the Ordinance, like section 41 of the Interpretation Ordinance, Chapter 2, exclude from the computation of time, Sundays, Christmas Day, Good Friday and bank holidays. The only difference, which is the small difference of no relevance to this case, is that section 41 of the Interpretation Ordinance, Chapter 2, also excludes public holidays whereas sections 2(4) and 71 of the Ordinance do not. They are similar also in that if in computing time the last day falls on a Sunday, Christmas Day, Good Friday or bank holiday, that day is to be excluded. The exclusion of such a day, if it is the last day, is explicitly expressed in section 41 of the Interpretation Ordinance, Chapter 2, whereas it is not so explicitly expressed in section 71 of the Ordinance. Nevertheless, as such a day is not to be counted, it must follow that if it is the last day, it has to be excluded, without need of express provision to that effect. Here again, there may be the small difference if the last day is a public holiday and not a bank holiday. Section 41 of the Interpretation Ordinance, Chapter 2, also explicitly excludes the first day from and after which the time is to be reckoned and specifically includes the last day, not being a Sunday, Christmas Day, Good Friday, a public or bank holiday, whereas sections 2(4) and 71 of the Ordinance do not. The general rules of law bring about, however, the same result. The Rules are to be found in Halsbury's "Laws of England" Vol. 37, 3rd Edition at respectively paragraphs 168 and 169 and pages 95 and 96, where the learned author writes:

"(168) The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him."

and

"(169) Subject to certain exceptions, the general rule is that when an act may be done or a benefit enjoyed during a certain period, the act may be done or the benefit enjoyed up to the last moment of the last day of that period. Hence, a notice required to be given within so many days from or before a given date must be at the latest given on the last day of such days."

Those general rules, in my opinion, apply here. Indeed, the first of the rules is supported by the language of section 2(4) of the Ordinance as the words, "from the date on which the register ….. is first published" in that section suggests that the date of publication is to be excluded whilst the words of Rule 22(2) of the Rules suggest to me that as the objector is to have fourteen days within which to deliver notice of his objection, the last day, unless it is a Sunday, Christmas Day, Good Friday or bank holiday, would end by midnight of the fourteenth day. I therefore agree with the Solicitor General that the day of publication is not to be counted and so reject the method of counting adopted by Counsel for the Appellants which included the day of publication. But now the question must be asked, is the 14th August the day of publication as the Solicitor General has submitted, because the 13th August was a Sunday? To my mind, the sections I have been discussing relating to the computation of time have no bearing on the date of publication. The date of publication is not, to use the language of section 2(4) of the Ordinance, "any act or thing ……... directed to be done within a specified time…..…." That is made abundantly clear by the immediately following words of the section viz: " 'after' the date of publication of any register."

Nor to use the words of section 41 of the Interpretation Ordinance, Chapter 2 and section 71(2) of the Ordinance, is the publication an act for which, "a time is prescribed for doing any particular thing"; or an act, "required by this Ordinance to be done on any day (that) falls on Sunday…." as the day of publication is a day selected by the Registrar. Unless, therefore, Sunday is for some reason, apart from the sections dealing with the computation of time, a day on which a register cannot be published, then the 13th August must be regarded as the day of publication. As regards Sundays, the learned author of Halsbury's Laws of England 3rd Edition, Volume 37 writes at paragraph 155 page 8:

"In general the common law does not prohibit the doing on Sunday of any act which otherwise is lawful nor render void the act so done. Sunday is, however, dies non juridicus, a day on which no judicial act ought to be done."

By the Imperial Laws (Extension) Ordinance, Chapter 16, the Sunday Observance Act, 1677 would, I think, have extended to this country, but so far as I am aware it does not forbid on a Sunday the performance of an act like the publication of a register which is not, of course, a judicial act. I am therefore of the opinion that in this instance the publication of the first register was effected on Sunday the 13th August. So calculating fourteen days form that day by beginning the count on the 14th August and excluding the 20th and 27th August by reason of their being Sundays, the last day for delivery of the copies of the notices of objection was Monday the 29th August. The evidence is that those copies were delivered to the post office on the 28th August as registered letters addressed to the three persons objected to. Subsequently, slips which are not on record but which it is accepted by both parties, we put in as evidence and which were dated the 30th August with the words "E.B. unknown at this address" on them, were attached to each letter. The initials "E.B." are those of the postman Ewart Bradley who wrote what appears on the slips. The slips signify that the letters were undelivered because, according to Mr. Bradley, the addressees were not known at the addresses to which the letters were directed. Dealing with that part of the evidence, the Revising officer in his reasons for decision having reached the conclusion that the 13th August was the date of publication said:

"Section 71 of the Ordinance states inter alia that Sundays are excluded for the purpose of the Ordinance. Section 22(2) of Schedule II states that objections must be filed within 14 days of the date of publication of the first register. Fourteen days from 13th August 1978 excluding Sundays would be 29th August, 1978. The date stamped by the Post Office on the letter is 28th August, 1978. The Revising officer therefore had the jurisdiction to hear the applications."

The revising officer's findings as to the date of publication and the date by which copies of the notices of objection must be delivered, thus coincide with mine. But as there is no evidence as to the date that the attempt was made by the postman to deliver the copies of the notices of objection, it would seem to me that the revising officer must either have taken the view that that was the 28th August, because on that day the copies of the notices were delivered to the post office, or that in the ordinary course of the post those copies would have been delivered by the 29th August. Each of those views is, to my mind open to objection. As regards the first of those views, delivery to the post office cannot constitute delivery to the addressees and as regards the second, there being no evidence with respect to the length of time the mail may take to reach its destination in the ordinary course of the post, the revising officer was in no position to reach a decision, as it is not a matter of which judicial notice may be taken. In addition, the slips with the date of the 30th August on them could be evidence that the attempt to deliver the copies of the notices was not made until that date although, of course, it could also be that the attempt was made before that date and there was delay in recording the non-delivery. In the result, I find that as the evidence stands, it cannot be determined whether or not the revising officer did have jurisdiction to hear the objections. In passing, I should perhaps also mention that there is no evidence that the notices were delivered as required by Rule 22(2) of the Rules to the registering officer, but as that point was not taken before the revising officer I have not, because of section 130(a) of the Supreme Court of Judicature Ordinance, Chapter 5, to concern myself with it.

The finding that the revising officer was not in a position to decide the issue of jurisdiction and that this Court also is in no position to decide that issue, must result either in my allowing the appeal or adopting one or other of the courses of action provided by section 138 of the Supreme Court of Judicature Ordinance, Chapter 5. But before I state the course of action I shall follow, I shall dispose of the remaining grounds of appeal still to be considered.

The facts establish that the copies of the notices were not delivered to the Appellants but that Mr. Bradley, the postman, attempted to deliver them and was satisfied that the Appellants were not known at the addresses to which they were directed. No suggestion has been made that those addresses were other than the addresses put forward by the Appellants in order to be registered as voters. In those circumstances, I agree with the submission of the Solicitor General that if the copy of the notice is sent to that address and is not delivered because the addressee is not known at that address, the addressee cannot say that the provisions of Rule 22(2) have not been observed; for it is his responsibility to ensure that he submits for registration purposes his correct address. If he fails for whatever reason to do so, then he must abide by the consequences. To hold otherwise would open the door wide to fraud and make a mockery of the provisions governing objections to registration.

The two remaining grounds of appeal raise questions of evidence. Counsel for the Appellants submitted that hearsay evidence was given by Mr. Musa and was accepted by the revising officer, and that the revising officer should not of his own motion have called Mr. Bradley to give evidence. I find no substance in those submissions as I do not consider Mr. Musa's evidence to be hearsay, and I am of the opinion that in proceedings as informal as those following a tribunal of this nature, the revising officer is entitled to call witnesses.

Having then dealt with all the grounds of appeal, it remains only to decide what course of action I should adopt with respect to the difficulty posed by the evidence relating to the first of the grounds of appeal. In my view, this is a proper case for invoking the provisions of section 138 of the Supreme Court of Judicature Ordinance, Chapter 5, and I think that the most appropriate course is to remit the case to the revising officer with these directions. He is to take such further evidence as may be presented or as he may call, and shall adjudicate afresh thereon in order that he may determine on what day the attempt was made to deliver the copies of the notices or, if that cannot be proved, that he may determine whether or not in the ordinary course of the post the attempt that was made could have been made before the expiration of the 29th August. In considering the latter issue, the revising officer shall not conclude that the attempt to deliver the copies of the notices was made in the ordinary course of the post before the expiration of the 29th August if the greater probability is that that attempt was not made before the expiration of the 29th August. In the event that no further evidence is adduced, he is to disallow the objections for as the evidence stands, it is not known on what day the attempt to deliver the copies of the notices was made nor is it known if in the ordinary course of the post, that attempt could have been made before the expiration of the 29th August and the slips attached to the letters give rise to the suggestion that the attempt may have been made on 30th August, 1978.

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