JUDGMENT

Raja Azlan Shah J (delivering oral judgment):

This is an application to take the election petitions off the file, on the ground that it was not presented within 21 days of the date of publication of the result of the election in the Gazette as required by s. 38(1) of the Election Offences Act, 1954.

The facts are as follows: The three petitioners were candidates for the Constituencies of Kuala Pahang, Pahang Tua and Rompin for election to the Pahang State Legislative Assembly. On 5 April 1969 they filed their nomination papers. These were rejected by the returning officer on certain grounds which need not be set out at this stage. The returning officer forthwith declared the first respondents to be elected and returned their names in the prescribed forms (i.e. Form five in the First Schedule to the Elections (Conduct of Elections) Reg, 1959) to the Supervisor of Elections who caused them to be published in the Gazette on 8 May 1969. The election petitions were presented on 23 April 1969 that is to say before the date of publication of uncontested election results in the Gazette.

The question which I have to determine is whether the petitions must be presented after the date of publication of the result in the Gazette before. In order to determine this question I have to put a construction upon the provisions of s. 38(1) of the Election Offences Act, 1954 and reg. 10 of the Elections (Conduct of Elections) Reg, 1959. Section 38(1) enacts that:-

Every election petition shall be presented within 21 days of the date of publication of the result of the election in the Gazette".

Then reg. 10 provides:-

If on the day of nomination in any constituency, after determination by the returning officer of any objections which may have been lodged, only one candidate stands nominated for that constituency, the returning officer shall forthwith declare the nominated candidate to be elected, and shall forthwith make a return as set out in Form five in the First Schedule to these Regulations to the Supervisor of Elections who shall cause the name of the member so elected to be published in the Gazette."

It is well recognised that I must not go outside the province of the election law. The Election Offences Act, 1954 confers certain rights and provides a remedy for enforcing those rights. Where that is the case, the remedy provided by that statute only must be availed of. Wills J stated this rule with great clarity in Wolverhampton New Waterworks Co. v. Hawkesford 6 CB (NS) 336; 141 ER 486, 495 in the following passage:-

There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it .... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

The present cases falls within the latter class.

The rule cited in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd [1919] AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad & Tobago v. Gordon Grant & Co [1935] AC 532.

What "right" does the Election Offences Act, 1954 con