095-NLR-NLR-V-58-DR.-M.-C.-M.-KALEEL-Petitioner-and-M.-S.-THEMIS-et-al.-Respondents.pdf
Present : Pulle, J.DR. M. C. M. KALEED, Petitioner, and 31. S. THEMIS'ct al., RespondentsElection Petition No. 2 of 19-5G
lx THE MATTER OF THE CEYLON (PaRLIAMRXTARY ElECTIOXS)Order ix Council, 1916, Election' for Electoral DistrictNo. 2—Colombo Central—holdex ox the5th day of Atril, 1956
Election petition-2—JI is count of ballot papers alleged by wishcccssfttl candidate—Validity of such ground—Discretion of Court—Multiple member electoraldistrict—Accessary parlies—Amendment of petition by supplementaryaffidavits—Ceylon (Parliamentary Elections) Order in Council, 19-16, ss. 4S (7)(S), 49 (1) (6), SO (b) (c), S3, S6 (2)—Parliamentary Election Petition Hales,19-16, rules 4 (1) (b), 6.
Miscount of ballot papers is a valid ground on which an election judgo maygrant relief under section SO (b) and (c) of tho Ceylon (Parliamentary Elections)Order in Council, 19-10. Tho provisions of sub-sections 1 and 5 of section 49and of sub-sections 7 and S of section 4S do not necessarily point to the non-existence of a jurisdiction to order a recount of ballot papers.
'Where an unsuccessful candidate presents on election petition against asuccessful candidate on tho ground that ns between them there was a miscountof votes, tho other candidates who were returned at the same time to the sameelectoral district and who received a greater, number of votes than the respon-dent need not ho mado parties to tho petition. In such a case, tho avermentin the petition that “ there has been a miscount of tho votes cast at tho saidelection ” cannot ho said to be vague and entirely devoid of content when thopetitioner seeks relief under section SO (6) and (c) of the Parliamentary ElectionsOrder in Council.
It is not requisite to a valid’election petition based on a miscount of voles thatit should set out how and why such miscount occurred. Tho word “ miscount ”in the context of an election petition presented by p, candidate on tho groimdthat ho had a majority of votes and should be declared to be duly electedbears a restricted meaning.
Whcro .a candidate or his election agent failed to mako an application tothe returning officer for areeount of tho ballot papers under tho proviso to sub-section 7 of section 4S of the Order in Council, it would, generally speaking, bo 'undesirable for on election court in its discretion t« order a recount.
Obiter: If an election petition is had-on tho date it is presented, it cannotho retrospectively mado good by any affidavit filed after the timo limitprescribed by section S3 of the Order in Council.
-t^EEC'TION petition Xo. 2 of 1956, Colombo Central.Izadeen JUoJutmed, with Carl Jayaslnghe, for the petitioner.
G. E. Chilly, Q.C., with G. T. Samerauickreme, Prins Guna-sckcra andK. D. P. Wickremasinghe, for the 1st respondent-..
.1/. Itafeek, with L. G. Weeramantry, for t-hc 2nd respondent,
A. C. Xadarajah, with S. Ponniah, for the 3rd respondent.
M. Tiruchelvam, Acting Solicitor-General, with V. Tennckoon, SeniorCrown Counsel, and JI. Kanaya-sunduram, Crown Counsel, for the 4threspondent.
Cur. adv. vuti.
October 24, 1956. Polls, J.—
The petitioner was one of the seven candidates at the last generalelection who sought to be elected for the Electoral District 2so.->—Colombo Central—which has to return three members to serve in theHouse of Representatives. There are four respondents to the petition.of whom the 4th is the returning officer who made a return under section50 of the Ceylon (Parliamentary Elections) Order in Council, 1946, thatthe 2nd, 3rd and the 1st respondents, in that order, received the majorityof votes lawfully given.
The petition states that the returning officer declared that the 2ndrespondent received 45,296 votes, the 3rd respondent 26,522, the 1strespondent 20,375 and the petitioner 20,33S. It further states in para-graph 5 “ that there has been a miscount of the votes cast at the saidelection ” and in paragraph 6 that the petitioner had a majority of validand lawful votes as against the 1st respondent. While no relief is claimedagainst the 2nd, 3rd and 4th respondents the petitioner prays, infer alia,
(tr) that a recount be allowed of the votes given and counted at theelection ;
(6) that a declaration be made that the 1st respondent was not dulyelected or returned ;
and
(c) that it be declared that the petitioner was duly elected and oughtto have been returned as the third member to represent theColombo Central electorate.’
On the 27th September, 1956, three affidavits were hied on behalf of. the petitioner, one made by him, a .second from his counting agent antithe tliird from one of the defeated candidates. It is not necessary toexamine at any length at this stage the contents of these affidavits. Itis sufficient to state that the deponents alleged that the counting tookplace under such circumstances that errors were almost inevitable.
When tho hearing of the petition was taken up on tho 1st October,learned counsel for the petitioner, in pursuance of a motion filed on the2Sth September, moved to have the 2nd, 3rd and 4th respondents dis-charged from the proceedings. Tho 2nd and 3rd respondents had noobjection provided their costs were paid. The 1st respondent also hadno objection, subject to the right being reserved to him to submit thatupon the discharge of tho 2nd and 3rd respondents the petition had toTail for want of necessary parties. The learned acting Solicitor-General '
opposed, the discharge of the 4t-h respondent, the returning officer, on theground that the affidavits in effect alleged a failure of duty on his partto make a proper coimt of the votes. Although ISIr. Izadeen Moliamedfor the petitioner repeatedly assured that he did not impute either mis-conduct or negligence to the returning officer and his assistants andclerks I declined to discharge the 4th respondent. The 2nd and 3rdrespondents were discharged with costs agreed on at Us. 1,050 to each-
It would be convenient at this stage to set out the grounds on which thepetition is resisted. An examination of the submissions made thereonwill also cover the grounds on which the petition was supported.
Learned counsel for the 1st respondent submitted that the petitionought to fail for one or more of the following reasons :
(а)There is no provision in the Order in Council enabling an election
judge to make declarations under section SO (6) and (c) solelyon the ground of miscount of ballot papers.
(б)The petition is bad because it has failed to state in conformity
with the requirements of the Parliamentary Election PetitionRules, 1946, “ the facts and grounds relied on to sustain theprayer ”—rule 4 (1) (6).
If the facts and grounds required by rule 4 (1) (b) are not stated
in the petition, it is net permissible to sustain it by stating such' facts and grounds in affidavits filed after the time prescribed forfiling the petition had expired.
The discharge of the 2nd and 3rd respondents on the invitation of
the petitioner has resulted in the petition being improperly con-stituted for want of necessary parties whose rights might beadversely affected, if a recount is allowed and the petitionergranted declarations under section SO sub-sections (b) and (c).
The affidavits do not disclose facts on which an election judge would
be justified,’in the exercise of his discretion, in ordering a recountof the ballot papers.
Save in regard to jurisdiction and t-lic contention that b3r reason of thedischarge of the 2nd and 3rd respondents the petitiou fails for want ofnecessary parties the acting Solicitor-General supported the submissionsmade on behalf of the 1st respondent.
In regard to jurisdiction it is urged that while in England a petitionmay be presented claiming a seat on the ground of miscount of ballotpapers the framers of the Ceylon {Parliamentary Elections) Order inCouncil, 1916, did not intend to confer a similar right and have by impli-cation provided that a count made by tho returning officer is final andcannot bo challenged on an election petition. The basis on which reliefis granted in England is section 5 of the Parliamentary Elections Act,1S6S, which entitles a person claiming to have had a right to be returnedat an election to present a petition complaining of an “ undue return ”.Section SO (6) of the Order in Council is clear that a petitioner is entitledto ask for a declaration that the return of the person elected was undue.
It is, however, argued that the petitioner cannot call in aid section SO
because having regard to other provisions in the Order in Councilhe has no right to claim a recount..
Reliance is first placed on section 49 (1) which I shall quote in full;
.“ The returning officer shall reject as invalid the following ballot papers
only, namely, any ballot paper—
wliich is not stamped or perforated with the official mark ;
on which votes are given foF more than one candidate ;
-on which anything is written or marked by which the voter can
be identified except the printed number on the back ;
which is unmarked ;
which is void for uncertainty.”
Section 2 of the Ballot Act, 1S72, read with rule 36 in the First Schedule(Part I) to the Act, enabled a returning officer in England to reject balletpapers for l’easons identical with those set out in section 49 quoted above.Sub-section 5 of section 49 provides that the decision of the returningofficer whether or not any ballot paper shall be rejected shall be final andshall not be questioned on an election petition. It is pointed out that bothunder the Ballot Act, 1S72, and the recent Representation of the PeopleAct, 1949, while an election court in England has, on a petition questioningan election or return, the power to reverse the decision of a returningofficer rejecting a ballot paper, a specific provision to the contrary isembodied in the Order in Council. The question then is asked whether anypuipose can be served in a mechanical count under the supervision of thecourt of what has already been counted, when what has been wrongfullyrejected cannot be restored to either candidate. Undoubtedly, if thecourt has the power to order a recount the field of inquiry is confined tomuch narrower limits than in England. Does section 49 (1) and (5),therefore, point to the non-existence of a jurisdiction to order a recount ?
I do not think so. It is possible to visualize a situation when, leaving therejected ballot papers out of reckoning, a recount would reveal in theplainest manner and beyond contest that a petitioner had a majority ofvotes. I cannot believe that the Legislature contemplated that in thosecircumstances it would not bo within the power of the court to make adeclaration under section SO (c) that the petitioner was duly elected andought to have been returned. The acting Solicitor-General gave as an• instance a case in which a petitioner satisfies the court that a number ofcoimting assistants by reason of their association with tho candidatewho was returned were so biassed against the petitioner that they pur-posely counted the votes cast for a petitioner in favour of his opponent.
He conceded, and in my opinion rightly, that upon proof ot thoseallegations and having regard, perhaps, to a narrow majority, the courtwould have tho power to order a recount. At the argument Iput to counsel a yet simpler case of a returning officer in perfect goodfaith but owing, admittedly, to an oversight making a return undersection 50 that candidate A received the majority of votes whereas in
fact liis opponent B received the majority. Surely in such a case thecourt ought to have the power to order a recount for the purpose of makinga declaration in favour of B under section 80 (c).
A great deal oi stress was laid on the proviso to sub-section 7 of section4S which requires the returning officer to make a recount upon the appli-cation of any candidate or his counting agent. It is pointed out that nosuch compulsion is enjoined on a returning officer in England who has adiscretion whether to make a recount or not. This is relied on as an addi-tional reason for the submission that it was the intention of the framersof the Order in Council that the result of the counting by the returningofficer must be regarded as final and conclusive and not open to challengeon an election petition. In my opinion the additional right given to acandidate in Ceylon by section 4S (7) to compel a recount cannot beregarded as part- of a scheme to deny him the right, in appropriate cir-cumstances, to petition for a recount by the election court. In Englandthe right to a recount has been recognized since the case of Renfrew 1in 1S74. The basic principles of our election law are borrowed from theEnglish counterpart and where it is the intention to depart therefrom cnofinds express provision in the Order in Council. If it was the intentionnot to give the right of asking for a [recount on an election petition, ashort section could easily havo been written into the Order in Council.
Towards the close of Mr. Chitty’s reply1' on behalf of the 1st respondentlie drew my attention to section 48 (S) which provides for a procediu-e todetermine which of two candidates found by the returning officer to havereceived an equality of votes is to be declared elected. The Order inCouncil is silent as to what an election court should do if, upon a recountordered by it, there results an equality of votes. On the other hand theRepresentation of tho People Act, 1949, section 122 (6) (b) lays downthat upon an equality of votes being found to exist the court shall decideby lot which of the candidates should receive an additional vote. Theabsence of a provision in our law analogous to section 122 (6) is urged asan additional reason pointing to the absence of any jurisdiction to ordera recount. In spite of the fact that I have not had the advantage ofhearing a reply to this argument, I am satisfied that it has no merit.It is not my intention to pronounce on what the procedure ought to beif an equality of votes results on a recount. It may be that the answer tothe difficulty is found in section S6 (2) which reads :
“ If any matter of procedure or practice on an election petition shallarise which is not provided for by this Order or by such rules or byany' Act of Parliament, the procedure or practice followed in Englandon the same matter shall, so far as it is not inconsistent with this Orderor any such rules or Act of Parliament and is suitable for applicationto the Island, be followed and shall have effect. ”
Section 122 of the Representation of the People Act, 1949, it maybe noted,occurs under the heading “ Procedure on all Election 1'rials . I havenot been able to find the counterpart of section 122 in any English legis-lation prior to 1949.. If, as I believe, there was none, the argument put
> (IS7J) 3 O’31. it- H. 213.
forward on behalf of the 1st respondent is weakened in the face of thequestion how prior to 1949 the election courts in Britain consistentlyexercised the jurisdiction which the petitioner seeks to invoke inthe present case. It is interesting to note that in 1893 in the ease ofCitencesler Division1 the court held the election void on the ground thatthe votes given for the respondent and petitioner and allowed by thocourt were equal.
In the Niviligala 2 case where a recount was ordered the jurisdictionof the court does not appear to have been canvassed but the learned Judgewho tried the case did give his mind to the question and he acted on thestatement at p. 171 of Rogers on Elections (20th edition) as setting out thelaw applicable to Ceylon. I respectfully agree and hold that in thepresent case the petition does not fail for want of jurisdiction.
Before I deal with the objection taken on behalf of the 1st and 4threspondents that the petition is on the face of it bad I think I ought tosay at once that the proposition is unexceptionable that, if the petitionwas bad at the time it was presented, it cannot retrospectively be madegood by any affidavit filed after the time limit prescribed by section S3.
A consideration of public policy that a contest on an election petition isnot to be regarded purely as a proceeding inter -partes and that the courtowes a duty to the voters and to the public to see that those duly electedshould be declared to have been returned cannot arrest the consequencesof a failure to comply with a mandatory provision of tho statute.
The principal argument adduced against the petition is that it does notcontain allegations on which claims for relief under section SO (6) and (c)can be based. In other words, borrowing the language of pleadings incivil cases, it is said that the petition does not disclose a cause of action.Criticism has been specially directed to paragraph 5 of the petition whichreads,
“ And your petitioner further "states that there has been a miscountof the votes cast at the said election.”
The objection to this paragraph is that it is vague and entirely devoidof content relevant to the reliefs claimed. The resulting position isthat if the petition is to be read without paragraph 5, it iuust necessarilyfail, an'd so it would. When jjaragraph o is closely analysed there is impliedin it much that is irrelevant or even harmful tq the case that the petitioneris seeking to make out. Among the diversity of meanings that could beextracted from paragraph 5 one certainly is that votes cast for the 3rdrespondent were counted in favour of the 2nd and vice versa. That wouldhave no relevance in a easevhere the return of either of those respondentsis not challenged. Another possible meaning is that votes cast for the1st respondent were counted in favour of the petitioner which would bea singularly damaging admission. Mr. Izadcen Mohamed frankly statedthat ho could not by any means claim for paragraph 5 the merit of pre-cision but submitted that if the petition is read as a whole, in tho back-ground of the law on which a recount is claimed and granted, there arc
1 11393) 4 O'M. e0 H. 194.1 (194S) 49 N. L. Jt. 201.
sufficient averments to sustain the petition and that the preliminaryobjection must fail.
The answer to the preliminary objection was somewhat on the followinglines. According to the petition the returning officer, after the countingof the votes, declared that the 1st respondent had received 20,375 votesand the petitioner 20,338. The ground on which the petitioner claimsto have been elected is that as against the 1st respondent he had themajority of votes and the fact on which he relies is that thero was a“ miscount ” of the votes. The reasonable construction of paragraph 5,when read with the allegation in paragraph 6 that the petitioner had amajority of votes as against the 1st respondent, is that the word“ miscount ” amounts to a statement that votes cast for the petitioner hadbeen counted as votes for the 1st respondent or for one or more of theother opposing candidates. Reliance was again placed on the Nivitigalacase in which a recount was allowed. There were four candidates whocontested one seat. All that the petitioner said in that case in supportof a recount which was granted (there was also a claim for scrutiny) was :
“ Your petitioner states that there has been a miscount of the votes
by the returning officer, the 2nd respondent, and that the return of the
1st respondent was undue.”
I must confess that in the process of weighing the contentions of eitherside my opinion has fluctuated considerably. I do not think it wouldbe fair to throw out a petition because an examination of its language^ asstrictly as one would examine the penal provisions of a statute, revealsmatters which have no bearing on the reliefs claimed. There is implicitin paragraph 5 much that is irrelevant but there is also a small residuumof what is germane to the reliefs claimed, namely, that votes that shouldhave been counted for the petitioner were counted for his rivals.
In regard to another part of the objection I should state that it is notrequisite to a valid petition based on a miscount that it should set outbow and why it occurred. One is familiar with election petitions in Ceylonwhere following the form in Rogers on Elect ions (20 th edition, Vol. II,p. 523) the substance of the allegation is set out succinctly as,for example, that the respondent was by himself and his agents guiltyof the corrupt practices of bribery, treating, etc. The Order in Councillias expressly put a curb on prolixity by requiring in rule 4 (1) (b) of theParliamentary Election Petition Rules, 191G, that a petition shall statebriefly the facts and grounds relied. The allegation that there was amiscount is an allegation of fact, the proof of which is a matter of evi-dence which under rule 5 need not be stated in the petition. It is truethat the word “ miscount ” is not defined like “ personation ,
“ treating ” and “ bribery ” but 1 think it has passed into the dictionaryof election law and bears a restricted meaning and not a multitude ofmeanings in the context of a claim by a candidate, who was not returned,that- ho had a majority of votes and should be declared to bo duly elected.
I have come to the conclusion, though with some hesitation, that thepetition should not be' thrown out on the- ground that- it docs not disclose
any cause for relief or that it has failed to conform to the requirementsof the Order in Council.
The next objection is based on the order discharging the 2nd and 3rdrespondents. It is contended only by Mr. Chitty that without theserespondents the petition is improperly constituted because personswho might bo adversely affected if the petition succeeds arc not beforecourt. It is said that if upon a recount it is found that- cither the 2ndor 3rd respondent or both were not- entitled to be returned they maybe in peril of losing their seats. I must say that these respondents didnot take the same pessimistic view. . Almost before a word of argumentwas spoken hi the case they departed willingly with an order for costsin their favour.
It would be helpful if in the first instance I deal with some authoritiescited at the argument. In Line v. Warren an election petition waspresented under the Muiiicipal Corporations Act, 1SS2, against onlytluee out of four persons who were elected to fill vacancies in the towncouncil of a borough. It was common ground that three candidateswere wrongully refused nomination and wore thereby prevented fromgoing to the poll with the result that the whole election might have beendeclared void had the fourth member, one Thomas Harris, been a partyto the petition.
Mathew, J., in giving judgment for the petitioners and holding thatthe respondents had not been duly elected stated,
“ The first- question raised is whether the election of the respondentscan be questioned by petition in the absence of Thomas Harris, whowas elected at- the said election and who has not been made a partyto these proceedings …. The argument is that, inasmuch asthe same objection might Iia c been made to Harris's election, the courtcannot do anything in the absence oi Harris, because it eaimot in sucha case declare the election void as to three of the persons elected withoutdoing so to the fourth also. 1 cannot see any foundation whateverfor that contention. It seems to me that the scope of the legislationon the subject- is to enable the election of particular persons to bechallenged by petition. It is the duty of the court to nonounce onthe prayer of such petition, but it- can only deal with the case of thepersons whoso election is objected to. Harris’s election was notobjected to by* the petition and it is clear that he must now be treatedas duly elected, because there lias been no petition presented againsthim within the time limited for that purpose. ”
Day, J.. concurred in this judgment which was upheld in the Court ofAppeal before a bench consisting of Brett, M.R., Cotton, L.-J., amiDindleyq L. J.
The case of Lord Honks well and others v. Thompson 2 was also one underdho Municipal Corporation Act, 1SS2. Eight candidates contested five=seats. A petition was presented against Tbompson.who had polled
* {ISOS) I Q. B. D. I T9.
13, 221 votes and liis seat was claimed for one Johnson who had polled13,218 votes oit the ground that he was duly elected and ought to havebeen returned. On a recount tho court in declaring that Johnson waselected in place of Thompson held it was enough for the former to estab-lish that ho had more votes than Thompson and that it was unnecessaryfor him to recount tho votes given for the first four candidates. Channell-
J., says in his judgment,
“ Then if you start with the returning officer’s figures, who is it who-says they are wrong ? The petitioners do not. They say that the figuresof the first four are right and that it is only those of the fifth and sixth-that arc wrong. But he has given no evidence in support of thatsuggest-ion. If, indeed, he had shown that those figures were wrong—subject, to tho question as to the way in which he must have shown it,whether in this petition or in another petition-—and that any one otthose four had a less number of votes than he has now' been ascertained' to have, then I think that ho could not bs unseated. ”
A clear principle emerges from these authorities that once the period'of twenty-one days prescribed by section S3 (1) had elapsed the 2nd or3rd respondent w'as not in peril of being unseated on an election petitionclaiming a recount- of the votes. That being so I hold that the objectionthat tho petition is not properly constituted b}' reason of the dischargeof the 2nd and 3rd respondent fails.
Is the present case one in which it would be proper for me to order thata recount of the ballot papers be taken ? The only material before meconsists of the three affidavits which are almost to tire same effect. Ihave to bear in mind the following points :
(«.) I am entitled to presume that as between the petitioner and the1st respondent and the other candidates the votes were correctlycounted. The burden was on the petitioner to prove that anerror of a magnitude sufficient to turn the scales in his favourmight reasonably have occurred.
The. honesty, care and competence of those responsible for the
counting are not challenged.
There is no evidence that a 113’ of the see en candidates or the fourteen
counting agents detected a single case of miscounting or evenalleged that there was a miscount-.
It- is not suggested that having regard to the number of ballot papers
the returning officer did not have an adequate staff of assistantsand clerks or that the counting was required to be done at arate which multiplied the ordinary chances of error.
Although the petitioner was aware of the comparatively narrow
majority in favour of the 1st respondent, he did not avail himselfof tho right of asking for a recount under section -IS (7), fromwhich I am entitled to presume that he was not then dissatisfied,with the counting.
The affidavits say that the conditions under which the counting tookplace were such that “ it was impossible for the candidates or theiragents to keep an eye on the count or by any means have an effectivecheck It is surprising that no protest was registered at the time andthat this allegation should be made as late as six months afterthe counting. In two paragraphs the petitioner states “ to the best ofmy knowledge and belief” there was a miscount of votes and error inthe rapid sorting out of the votes. Thero is no matcn'al before thecourt for testing the grounds of the petitioner’s belief nor is there evidenceof the facts which constitute his knowledge nor any evidence ofthe sources from which he gathered those facts.
In paragraph 10, read with paragraph 9 of the petitioner’s affidavit,there is a reference to a discrepancy of 97 votes according to certainfigures said to have been announced by the returning officer but no sub-mission on this matter was made by any of the learned counsel whoaddressed me. At one stage of the argument I had the impression thatneither tiie 1st nor the 4th respondent accepted the correctness of thestatements in paragraphs 9 and 10. Even if I accept them as correct,they do not, in the light of the other considerations, afford any groundfor believing that the votes cast for the petitioner were not counted forhim.
Both in his opening address and reply Mr. Izadecn Mohamed referredme to a passage in Fraser on Pmliamcntary Elections (3rd edition, p. 222)to the effect that an application should be supported by affidavit showingthe grounds for supposing that there lias been a miscount and that wherethe majority is a very small one the application is, as a rule, allowed almostas of course. Before following this practice I have to caution myselfon the difference between the English law and ours on two fundamentalpoints, namely, that under the Order in Council rejected ballot paperscannot be called in question on an election petition and that no discretionis given to a returning officer to refuse a recount if asked for by anycandidate.
It is stated in Tfalsbury’s Learn of England (3rd edition), Volume 14,page 310,’
“ A recount is not granted as of light, but on evidence of good groundsfor believing that there has been a mistake on the part of the returningofficer. ”
The authority relied on is the case of the Sleplmey Division . As I havesaid before the provision in section 49 (5) is peculiar to our law and has theeffect of reducing a recount ordered by court to a mechanical process. Iought to have good ground for believing that what has already been doneunder proper supervision did not yield an accurate result-. In paragraph12 of the affidavit the petitioner states,
“ The count of so large a number of votes was a long and wearyingprocess and any attempt at a renewal of the process at that juncturewould have been abortive. ”
I cannot accept this as an excuse for the petitioner not applying for arecount. Had there been an application for a recount it is more likelythat the returning officer, knowing that the majority of the 1st respondentover the petitioner was only 37 votes, Would have, in collaboration withthe counting agents, taken stringent precautions against errors in therecount. While I do not say that, if a petitioner fails to make an appli-cation to the returning officer under the proviso to sub-section 7 of section-IS, he would be precluded from petitioning the court for a recount, itwould, generally speaking, be undesirable for an election court in itsdiscretion to provide a petitioner with a remedy where he could haveinsisted on an analogous remcdjr elsewhere as a matter of right.
Had there been a recount by the returning officer the figures ascertainedthereby would have been of invaluable assistance to this court in judgingwhether a prima facie case has been made out for the exercise of whatMr. Izadeen Mohamed always referred to as the discretionary power ofthe court to order a recount. If that material is not available,the petitioner is alone t o blame.