clr/1984/1984_1_523.pdf

(1984)about conveyance of voters; and, therefore, unless conveyance of a voter to and from the poles may be dealt under other mis­ conduct in the course of the election, it is neither an offence nor illegal nor is it a ground for complaint nor is this a ground for avoiding an election; that treating is corrupt on the part 5 of the person treating when at the time he treats he does so for the purpose of influencing any other person in the exercise of his power of voting and that it is not corrupt when it is a mere form of ordinary hospitality; that there is no room for interfering with thejudgment of the trial Courtand the appeal 10 must be dismissed. Appeal dismissed. Casesreferredto: BoltonCase [1874]2 O'M. & H. 138 at p. 144; Wallingford Case [1869] 1Ο' M. & H. 57; BcwdleyCase[1869] 1 0 ' M. & H. 16 at p. 19; Bradford Case (No. 2) [1869] 1 O'M. & H. 35; Constantinides and Others v. Bishopof Kition and Others,7 C.L.R. 57 at p. 59; Louth, Northern Division Case [1911]6 Ο' M. & H. 103. 15 20 Appeal. Appeal by applicant against the judgment of the Distiict Court of Nicosia (Stylianides, P.D.C. and Fr. Nicolaides, D.J.) dated the 13th December, 1979 (Election Petition No. 22/79) whereby his petition against the election of the respondents as 25 non-displaced members of the Improvement Board of Ayios Dhometios was dismissed. A. Eftychiou, foi the appellant. A. Ladas, for the respondents. HADJIANASTASSIOU J. gave the following judgment of the 30 Court. On 22nd July, 1979, a Sunday, was the polling day for the election of three non-<iisplaced members of the Improve­ ment Board of Ayios Dhometios. It was a hotly contested election. There were seven candidates: The coalition of DECO-AKEL having as candidates Katomoniatis Christakis, 35 Hadjiloizou Neophytos and Soteriou Kyriacos who on the ballot paper appear under theheading " N o . 1—SYNDYASMOS KATOMONIATI Christakis", the candidates of EDEK party, 524 1 C.L.R. Pitsillos v. Katomoniatis Hadjianastassiou J. namely SarrisNicos,IoannouMichael'andMannouris Erodotos under the heading "No. 2—SYNDYASMOS SARRI Nicou" and the 7th candidate was PITSILLOS Modestos, under the heading "ANEXARTITOS—No. 3". (See exhibit No. 2)) 5 According to the returning officer 1,347 electors voted; thirty-three ballot papers' were invalid and the candidates' received the following votes: Katomoniatis Christakis Hadjiloizoui Neophytos Soteriou' Kyriacos Sarris Nicos Ioannou: Michael. Mannouris Erodotos Pitsillos Modostos 1,019 1,009' 984 236 218 230 80" 15 The first three candidates were declared as the successful candidates The petitioner; Modestos Pitsillos,isthe leader of the Justice Party. The respondents are the three candidates who were declared as elected. The petition was served under the Law 20' on·the District Officer. By this petition, the petitioner seeks a declaration that,thereturn of the respondents as elected,members of the Improvement Board of Ayios Dhometios,isnull and void; and that the poll for the election in which the respondents were elected is 25 void, and any other remedy the Court may deemfit. Indeedthegroundsonwhichthepetitionisbasedare: general undue influence, treating, corrupt practices, illegal activities and violation of the lawand thatdue totheaforesaid the majority of the electors wereprevented and/or it waslikely to bepre30 vented from voting the candidate or candidates of their choice. The particulars which are set out in the petition are: That the respondents and/or their agents and/or other persons acting, on their behalf personally or jointly prevented and/or excluded electors who were in favour of the petitioner from voting; 35 and-that they took out of the ballot box ballot papers casting in favour of the petitioner. Therespondentsand theDistrict Officer opposed the petition. 525 Hadjianastassiou J. Pitsillos v. Katomoniatis

(1984)Seven witnesses, including the petitioner, testified for him and three witnesses, i.e. respondent No. 2, Papademetriou the presiding officer of the 10th polling station, and A. Economides, a District Inspector, were common witnesses for the respondents and the District Officer. 5 The complaint of the petitioner about the exclusion of the electors from voting refers only to his son-in-law. Thecorrect name of the son-in-law of the petition as on his identity card is Andreas Matheopoulos whereas in the list of electors it appeard as Andreas Marthacopoulos. He was allotted to 10 the 10th polling station. Furthermore, it is the contention of the petitioner that his son-in-law was not allowed to vote. Theevidence on this point comesfrom the petitioner and Papademetriou,thepresidingofficer ofthe 10thpollingstation. The elector—the son-in-law of the petitioner—himself was not 15 called to testify. The version of the presiding officer is that this elector produced his identity card and as there was a discrepancy in the name, he advised the elector to remain outside the polling station as the mukhtar of the quarter was about to come to that polling station and if the mukhtar ascertained 20 his identity, then the elector would be allowed to vote. That person went out of the polling station but he did not return. Sometime later the petitioner went in and complained that his son-in-law was not allowed to vote. The presiding officer explained tohim what had happened and advised the petitioner 25 to go and bring his son-in-law as the mukhtar was there and if he verified his identity, he would be allowed to vote. The petitioner in cross-examination did not contest this version but he stated that after he had the conversation with the presiding officer, he went out but his son-in-law had already left. 30 The trial Court dealing withthis point had this to say at p.47: "It was the duty of the presiding officer to ascertain the identity of this person before allowing him to vote. We are of the view that he acted very properly in the curcumstances and his action is not and cannot be considered as 35 exclusion of the elector or prevention of the electorate from exercising his right to vote. Had this elector, who was outside the polling station and complained to his father-in-law, the petitioner, waited for a short time until the return of the petitioner from the polling station» 40 526 1 C.L.R. Pitsillos v. Katomoniatis Hadjianastassiou J. he would have exercised his right as the mukhtar had arrived and would have certified his identity. Therefore, this ground fails'". There was a further complaint by the petitioner that ballot 5 papersweretaken outof theballot boxes. The trialCourt made it clear that there was no shred of evidence before the Court substantiating or even creating suspicion that such an act was done. The petitioner only stated that he would agree with the counting if his votes were 98 and not 80. But the petitioner 10 went on the say that only 678 persons voted in the 10 polling stations of Ayios Dhometios and he based his such allegation on an alleged publication of one daily paper, whereas there is the positive evidence of Economides who had available the relevant sheets and he stated clearly how the counting took 15 place and that 1.347 electors voted. This ground, also fails. Asregards Charalambos Ioannou Kouspis (P.W. 6), supporter of the EDEK party, headmitted that hecanied some supporters of his party, some without rewaid, but the petitioner had no objection and no complaint for this transportation, probabl; 20 because they voted the losing candidates. The Law governing elections and election petitions are Lav» 7/79, the Elections (House of Representatives and Communa Chambers) Law, 1959, No. 47/59, Law 4/63 and 71/63. Th< grounds for avoidance of an election on an election petitioi 25 are set out in s. 62 of Law 47/59. Part V of Law 47/59 undei the heading "Corrupt and illegal practices and other provision: relating to an election'* is substantially a replica of certair provisions of the English Representation of the People's Act 1949. Our Cyprus statute is, in our view, an exhaustive lcgisla 30 tion. There is no provision about the conveyance of voteis Inthe English Act, section 88, there isextensive provision abou restrictions and prohibitions for conveyance of voters to am from the poll. The Cypriot legislator made no provision a all and, therefore, unless conveyance of a voter to and fron 35 the polls may be dealt under other misconduct in the coursi of the election, it is neither an offence nor illegal nor is it ; ground for complaint nor is this a ground for avoiding ai election. The payment of the travelling expenses of a voter is no 527 Hadjianstassiou J. Pitsillos v. Katomoniatis

(1984)bribery; see Bolton Case,Ormerodv. Cross

(1874)2 O'M & H. I38, r at p. 144. Indeed even in England where conveyance of voters to and from the poll is prohibited, a candidate is, however, not to be liable, nor is his election to be avoided, for such an illegal pra- 5 dice committed without his consent or connivance by an agent other than by his election agent—(Representation of thePeople's Act, 1949, s. 88

(1)proviso (b)). There is no doubt that, even if the English Law was applicable in this country, which it is not, and even if there was evidence that voters were carried to 10 the poll by an agent of the respondents other than thenominated election agent, the respondents are not liable and the election is not avoided. Regarding the question of treating, the petitioner contended that refreshments were offered even to electors. He further 15 stated -that they were offering refreshments whilst they were looking to check the list of electors outside the polling station. He also stated that they were offering refreshments until they checked the voters* lists to find the name of the person who approached them. A refreshment was offered to Pitsillos, the 20 petitioner, and he accepted it. The petitioner agreed that he had that refreshment but he alleged that he did so in order to create evidence for his probably anticipated petition. Some refreshments were offered also to those at EDEK table, but neither Hadjiloizou nor any of the successful candidates- 25 respondents nor anyone on their behalf or on behalf of anyone of his coalition paid for those refreshments and that the refresh­ ments were not offered with the intention to influence any voter. There is no doubt that the offering of refreshments to or for any person for the purpose of corruptly influencing that person 30 is deabt with under the Law. "Corruptly" imports intention. {Wallingford Case

(1869)1 O'M & Η 57). "Corruptly" does not mean wickedly, or immorally, or dishonestly or anything of that sort. SeeBewdley Case,

(1869)1O'M & Η 16 at p. 19,but doing something know- 35 ing that it is wrong. See, also, Bradford Case (No. 2)

(1869)1 O'M & Η 35) and doing it with the object and intention of doing that thing which the statute intended to forbid. Treating is corrupt on the part of the person treating when 528 1 C.L.R. Pitsillos v. Katomoniatis Hadjianastassiou J. at the time he treats he does so for the prpose of influencing any other person in the exercise of his power of voting. Treating isnot corrupt when it is a mere form of ordinary hospitality. See Pascal Constantinides, George Chacalli, and Achilleas Lias5 sides v. KyriUos Papadopouhs Metropolitan Bishop of Kition, Theophani Theodotou and Antoni Theodotout 7 C.L.R. 57 at p. 59. Finally the trial Court had this to say at p. 52: 10 15 20 25 30 "On the totality of the evidence before us we accept that refreshments were taken by the supporters of the respondents at the place where the table outside the polling station was; that those refreshments were consumed by them; they were offered to the supporters of EDEK who were at the other table; a refreshment was offered to the petitioner and probably some refreshments were offered by those at the table to a few friends of them. It was July. Thetemperaturewashigh. In the circumstancesunderwhich these refreshments were brought there, they were consumed and offered, we do not accept that they were offered for the purpose of influencing or corruptly influencing the electors. Certainly neither the persons whomanned EDEK desk for the petitioner nor those who were engaged at the table of the respondents might be influenced by the drink of a refreshment. We do not accept that a Cypriot voter might be influenced by the receiving of five mils, as the petitioner suggested. But even the petitioner stated that the offer of a refreshment to a person with intent to influence him might be adverse to the offeror and the candidates he would support. By this we are not taken to subscribe to the view that a general offer of refreshment under different circumstances might not be considered by a Court as treating". Then the Court turning to the question of undue influence had this to say at p. 53: 35 40 "Undue influence—The evidence which was adduced to substantiate the allegation that undue influence was exercised is to the effect that person outside the polling station, in the street or in the yard of the school, who were supporters of the respondents indicated to or induced voters to vote for the respondents. Furthermore some of tho 529 Hadjianastassiou J. Pitsillos v. Katomoniatis

(1984)voters were either accompanied to the table of the supporters of the respondents outside the polling station where assistance was given to them about their names in the lists, etc., as these persons had at their disposal copies of extracts of the register of electors who at the same time 5 advised some of those voters to vote for the respondents. Undue influence is defined by section 42 of Law 47/

1. Where by reason of a general undue influence the majority of electors were or might have been prevented from electing the candidate or candidates whom they preferred is a 10 ground for declaring void an election. (Section 62). 'Undue influence' in s. 62 has the meaning given to this term in s.
2. It is the ordinary right of a citizen to canvass and to propagate for the candidate of his choice. This is not 15 illegal provided the person propagating or canvassing does not interfere with the free exercise of the right of the elector". In the case of Louth, Northern Division Case

(1911)6 O'M. H. 103, "where a number of voters who could read and write 20 id been induced to vote as illiterate and so to disclose unnecesrily for whom they voted, it was held that although the facts ire suspicious and might be relevant on the question of intiidation, illegal intent had not been established and there is no proof of contrivance". 25 Finally the trial Court concluded as follows: "Papademetriou, the presiding officer, testified about the holding of the election. Having regard to his evidence, which we accept in toto, no illegality or violation of the Law took place and everything was done as provided 30 by Law. Economides's evidence relates to the counting of the votes. We accept hisevidence intoto;it was not seriously contested. In view of what we have endeavoured to explain, this 35 election petition fails. The election was properly held in accordance with the Law and the respondents, namely, Katomoniatis Christakis, Hadjiloizou Neophytos and 530 1 C.L.R, Pitsillos v. Katomoniatis Hadjianastassiou .1. Soteriou Kyriacos, whose return and election were complained of, were duly returned and elected. In the result the election petition is dismissed'*. On appeal counsel for the appellant argued (I) that the trial 5 Court wrongly dismissed the application of the appellant and wrongly decided that there was no sufficient evidence to support his allegation.

(2)(a) The trial Court wrongly dismissed the application ofthe appellant and wronglydecided that the transfer of the voters by the Chairman of the Community in order to 10 vote does not provide a reason for the cancellation of the election.

(2)(b) That the trial Court wrongly approached the law, and particularly the provisions of Law 47/59. We have considered very carefully the argument of counsel on appeal, but in our view there is no room for interfering with 15 the judgment of our learned colleague and we would dismiss the appeal with costs. Appeal dismissed with co\t\. 531