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2021 MarsdenLR 2954
HIGH COURT SABAH & SARAWAK KOTA KINABALU
SANI MIASIN – Appellant
Versus
YUSOF @ JOSREE YACOB & ORS – Respondent
[Election Petition No: BKI-26PP-1-10-2020]
Election petitions must comply strictly with procedural laws, failing which they are deemed invalid and struck off.
Headnote:(A) Election Offences Act 1954 – Section 32(c) – Election Act 1958 – Section 5(1)(a) – Election Petition filed alleging corrupt practices and procedural non-compliance – Court found the Petition defective due to violations of mandatory service rules and time limits on presenting the petition – Petitioner failed to establish necessary facts regarding bribery and procedural breaches affecting election results – Petition struck off. (Paras 28, 57)
(B) Process of service and compliance with election laws – Strictures on the way of presenting election petitions including service protocols must be strictly adhered to, with any deviation rendering the petition invalid. (Paras 9, 18, 49)
Facts of the case: The petitioner challenged the results of the Sabah State Elections citing bribery and procedural failings regarding the election conduct, specifically failures to comply with the Election Offences Act and Election Regulations, leading to the petition being deemed invalid.
Findings of Court: The Court determined the Election Petition was defective due to non-compliance with essential legal requirements, resulting in its striking off.
Issues: The critical issues were the validity of service of the petition, adherence to timelines for filing, and sufficient pleading of facts to substantiate allegations of corrupt practices.
Ratio Decidendi: The Court emphasized that election laws must be strictly followed, and failure to do so, such as defects in affidavits and late filings, are sufficient grounds to invalidate an Election Petition.
Result: Election Petition struck off.
JUDGMENT
Via Zoom Hearing Introduction
[1] The petitioner was one of the six candidates who contested in the Sabah State Elections for the State Constituency of Sindumin (N. 35) held on 26 September 2020 ("the Election"). The 1st respondent was declared to be duly elected with a majority of 424 votes.
[2] The result of the Election was published in the gazette on 29 September 2020.
[3] On 19 October 2020, the Petitioner presented an Election Petition ("EP") at High Court of Kota Kinabalu seeking for the following prayers:
(a) A declaration that the Election for the State Constituency of Sindumin (N.35) holden on 26 September 2020 was void;
(b) that Yusof @ Josree Bin Yacob the said 1st respondent was not duly elected and/or returned in the Election for the State Constituency of Sindumin (N.35); and,
(c) costs.
[4] The petitioner's EP to avoid the Election is based on the following grounds and they are as follows:
(a) Section 32 (c) of the Election Offences Act 1954 ("the EOA ") by reason of corrupt practices on the offence of bribery under s 10(a) punishable by s 11(1)(b) of the [paragraphs 4 - 10 of the EP];
(b) Section 32 (c) of the EOA by reason of corrupt practice on the offence under s 11(1)(c) of the [paragraphs 11-12 of the EP]; and
(c) Section 32 (b) of the EOA by reason of non-compliances of s 5(1) (a) of the Election Act 1958 read together with regs 24(1)(b) and (c), 25(3)(b), 25(6) and 25(12)(b)(ii) of the Elections (Conduct of Elections) Regulations 1981 ("the ECER") [paragraphs 13-16 of the EP].
The Preliminary Objections
[5] The 1st respondent is represented by his advocates from the firm of Serena Liew and Associates and the 2nd and 3rd respondents were represented by the Senior Federal Counsel ("SFC") and his team from the Attorney General's Chambers, Malaysia.
[6] Both the 1st respondent together with the 2nd and 3rd respondents have filed their preliminary objection ("PO") each to the petitioner's EP. In respect of the 1st respondent's PO, a formal notice was served on the petitioner's appointed advocate vide a letter dated 11 November 2020 (encl 30) while the 2nd and 3rd respondents' notice of PO was sent to the petitioner vide their letter dated the same 11 November 2020 (encl 31).
[7] The 1st respondent's PO is mainly against grounds (a) and (b) of para 4 of this judgment while the 2nd and 3rd respondents' PO is against ground (c) only of the same paragraph.
1st respondent's PO
[8] I shall deal with the 1st respondent's PO first. The PO's has listed 13 grounds of objection. Having read the parties' submission, there are merits in the objections to the EP.
[9] For the purpose of this decision, the discussion on the issues would be very brief except for those issues which are, in my view, form the basis of my decision in allowing the PO where more extensive analysis of the submissions and authorities are required.
Ground 1
Whether The Service By A Process Server By The Name Of Eka Alifah Ismawi On The 1st respondent Was Defective, Invalid, Null And Void For Non-Compliance Of Rule 15(1)(a) Of The Election Petition Rules 1954 ("The EPR")?
[10] The 1st respondent submitted that the service of the EP was defective, null and void because according to the 1st respondent under r 15(1)(a) of the EPR, it must be served personally by the Petitioner himself or by the Petitioner's appointed advocates. The 1st respondent referred to the service of the EP by the process server by the name of Eka Alifah Ismawi who was not under the employment of the petitioner's advocates but served it under the authority of the petitioner.
[11] Contrary to the position taken by the 1st respondent, the Petitioner was of the view that r 15(1)(a) of the EPR does not require for the EP to be served personally by the Petitioner himself. I agree with the submission of the Petitioner based on the authorities of Ustaz Akmal Hj Kamaruddin v. Dato' Mohamad Daud Mohd Yusoff & Anor, [2014] 9 MLJ 841 and Muhammad Sanusi Md Nor lwn. Mohd Tajudin Abdullah
