Cooray v. de Zoysa.
1936Present: Akbar J.
COORAY v. DE ZOYSA.
In re Election for the Colombo Sooth Electoral District.
Election petition—Disqualification of candidate—Visiting lecturer at UniversityCollege—Contract or agreement with Principal for or on account ofpublic service—Inclusion of name in panel of examiners—Claim to theseat by the petitioner—Knowledge of facts constituting disqualificationon the part of voters—The Ceylon (State Council> Order in Council,1931, Articles 9 (d) and 77 (d).
Where the respondent at the date of his election as a member of theState Council was bound by an agreement -with the Principal of theUniversity College to deliver a course of lectures at the College for whichpayment was made to him from Government funds, at the end of eachmonth on the number of lectures delivered during that month,—
Held, that there was a contract or agreement or commission held or.enjoyed by the respondent which had been made or entered into oraccepted from the Principal, University College, for or on account of thepublic service within the meaning of section 9 (d) of the Ceylon (StateCouncil) Order in Council, 1931.
A person whose name appears in a panel of examiners appointed for aterm of years by the Education Department of Government is not aperson holding a public office within the meaning of Article 9 (c) of theState Council Order in Council, 1931.
Where the petitioner claimed the seat under Article 77 (d) of the StateCouncil Order in Council, 1931, the petitioner was bound to provecommon knowledge on the part of the voters of the fact of the contractwith Government on which ground alone the respondent was disqualifiedand not merely knowledge of the fact that the respondent was a lecturerat the University College.
HIS was an election petition in which the petitioner claimed in hispetition under Article 77 (a) of the Ceylon (State Council Elections),
Order in Council, 1931, for a declaration that the election of the respondentwas void on the ground that the respondent was at the time of his electiona lecturer at the Ceylon University College under a contract with thePrincipal of the College and as such was incapable of being elected or ofsitting or voting as a member of the State Council.
Another ground of disqualification put forward was that at the time ofhis election the respondent was an Examiner appointed by the EducationDepartment of Ceylon for a term of years and that he was either holdinga public office within the meaning of Article 9 (c) of the State Council(Order in Council) or that he was holding a contract within the meaningof Article 9 (d).
The petitioner also claimed the seat on the ground that he had amajority of lawful votes under Article 77 (d).
H. V. Perera (with him E. G. P. Jayatilleke, D. W. Fernando andJ. L. M. Fernando, instructed by John Wilson), for petitioner.—Therespondent directly held at the time in question a contract or agreementmade and entered into with the Principal of University College for andon account of the public service. The contract was made with thePrincipal, acting through Dr. Malalasekera. The University College is a
Cooray v. de Zoysa.
Government institution and the Principal and Dr. Malalasekera are publicofficers. The particular arrangement was for the respondent to delivera course of lectures. The arrangement was made “for or on account ofthe public service ”. The educational services rendered at the UniversityCollege are services rendered at a public institution. The respondentreceived payment out of public funds for the services rendered by him.The only question is whether this arrangement was a contract—theundertaking was to deliver a course of lectures. There was no furtherrequest once the arrangement was made—no request made to deliver aparticular lecture. The delivery of any particular lecture of this courseand the preparations made by the University College authorities toreceive the respondent were all acts done in pursuance of the originalarrangement. The offer and acceptance were at the very beginning.
The respondent’s motive would not matter. There need not havebeen any consideration at all. Our law gives validity to promises eventhough there is no consideration to support them: Attorney-General v.Abram Saibo & Co.1 Ignorance of the fact that respondent was contract-ing with the public service is immaterial. The burden was on therespondent to prove such ignorance by affirmative evidence. He hasfailed to do so.
The Examinership disqualifies the respondent under Article 9 (c) and9 (d). The reply that was sent by respondent—P 16—was clearly anoffer. On the acceptance of that offer by the Director by P 17 there was acontract. Suppose respondent was the only person selected. Then theEducation Department would be under a legal obligation to send all theirexamination papers to respondent. Suppose there are three or fourselected; that does not make the arrangement any the less a contract.It may be that the work is distributed; it may be that a discretion isgiven to the Director, that does not mean that there is no contract.Suppose the Director goes outside the panel. Every member of thepanel would have a cause of action. If one member is given all the work,there is no breach of contract. The fact that the contract is unenforcibledoes not make any difference. The legal obligation is not negatived ifyou tell a person, “ if you are unable to correct the papers, please returnthem ”. The Director has a panel on which to fall back.
21 Geo. V. c. 13 has no bearing on this case at all. It refers to certaincontracts and defines their scope. Therefore it can have no localoperation. The constitution of the House of Commons is different tothat of the State Council. Public officers are entitled to be members ofParliament. In England originally there was a perfectly free choice.Then there came in a series of disqualifications. Here Counsel referredto Rogers (1928 ed.) vol. II, p. 21 ; 41 Geo. II, c. 52, s. 4 ; Statutes atLarge, 8th vol., p. 145. In England only certain kinds of contracts withthe holders of three offices or any other person whatsoever can disqualify.22 Geo. III. c. 45. Our enactment does not contain such an enumeration.It is not possible to entertain any doubt that every kind of contract iscaught up.
When you have certain persons mentioned and then “ any otherperson whatsoever ”, the phrase “ any other person whatsoever ” must
1 IS N. L. R. 417 at p. 422.
Cooray v. de Zoysa.
be construed “eiusdem generis There is no room- for the applicationof the rule here. General words are to be taken prima facie in their usualsense. Beal’s Cardinal Rules of Interpretation, p. 355.
Counsel also cited Berwick's Voet bk. 19, tit. 2, ss. 33-41.
M. W. H. de Silva, S.G. (with him S. J. C. Schokman, C.C.), as amicuscuriae.—-The Order in Council must be construed as a whole. If mylearned friend’s interpretation is adopted, it will be difficult to interpretthe rest of the Ordinance.
All agreements with the Crown can be brought under two heads: —(1) Agreements for personal service. (2) Agreements not for personalservice, i.e., agreements to supply goods, building materials, every otherkind of agreement.
If class (1) is provided for earlier, class (2) would come under Article9 (d). Anything in the nature of service comes under 9 (c). If a personholds a public office, he comes under 9 (c). The only disqualificationunder 9 (c) is holding a permanent office or an agreement for a term ofyears. Therefore 9(c) exempts the respondent. An interpretation
which exempts the respondent under 9 (c) and disqualifies him under 9 (d)would be inconsistent and bad. The disqualifications under 9 (c) and9 (d) are mutually exhaustive.
A contract of personal service would not come under 9 (d). Such acontract will not be “ for or on account of the public service ”. Thesewords refer to a contract in which the parties contract regarding some-thing that is necessary for the carrying out of a public service. The manwho contracts undertakes to get some thing that is necessary for a publicservice. One must make a distinction between contract of employmentand any other contract, such as a contract for supplying material. Acontract to supply coolies would fall under 9 (d). When a man says hesupplies his own services, he means, I take employment. When he sayshe supplies a number of coolies he is supplying something. 22 Geo. III.c. 45 contains no reference to contracts of employment. There is nocase where any person has been disqualified because he held a contractof service.
H. V. Perera, in reply.—If the learned Solicitor-General’s interpretationis adopted, State Councillors will be able to enter into contracts of personalservice. 9 (d) is intended to catch up cases where a person has anycontract at all with the Crown. A person having a secret interest in acontract with the public service would not be disqualified according to thelearned Solicitor-General. If the intention was to mould this Ordinanceaccording to 22 Geo. 111., c. 45, the draftsman would not have omittedthe restrictive words. The whole of section 9 (c) would not be includedin section 9 (d). A coroner—who receives a certain appointment—cannot be brought under 9 (d). A person may be holding a certainappointment which would not come under 9 (d) but under 9 (c) ; or hemay come under both, because he holds a contract and also an appoint-ment. An appointment does not necessarily imply a contract. Counsel
here referred to Ford v. Nevoth1; Royse v. Birley'.-
1 (1901) 1Q.B.D 683 at 692.
(1869) L. R. 4 C. P. 296.
Cooray v. de Zoysa.
The words “ for or on account of the public service ” limit the contractto a contract in which anything is done for the establishment or mainte-nance of any public service. Take the case of a park. For the purposeof bringing the park into existence and maintaining it in good conditionyou enter into a variety of contracts. At that stage those contractswould clearly be caught up under 9 (d). Take the stage where somethingis charged from a member of the public for the use of the park. Thereis then a contract with the man in charge. That contract stands on anentirely different footing. The distinction is this. Could you legiti-mately say that that contract was “ for or on account of ” a publicservice. The money charged goes to the revenue or may ultimatelyprovide funds for that service. It is not used for the running of theservice. A public service is a certain establishment.
The Respondent.—There is a close resemblance between the House ofCommons and the State Council. In England an election begins with theissue of writ. Election day is not the date of the writ or nomination.The word “election” is used in a very general sense. (Ballot Act, 1872;33, 36, Victoria, Sch. 1, p. 1.) The election is not complete till the returnhas reached the clerk of the Crown (Hurdle v. Waring'). Here theelection is not complete till results are published in the Gazette. Thereforethe date of the election is March 10. At that date the respondenthad no contracts.
The letter P 16 is dated December 17, 1934. P 17 by which theDirector informed the respondent that he had been placed on the panelis dated August 1, 1935. Even if P 16 contained an offer, there wassufficient time for the offer to lapse. P 17 does not mention previouscorrespondence. The terms of the contract, if any, were not settled.On each occasion on which the respondent accepted papers there was acontract. Therefore, at the material time there was no contract; thelast contract was in November, 1935.
The contract regarding the lecturership was with Dr. Malalasekera.Dr. Malalasekara made the arrangements. The respondent would havedone what he said. The receipt of payment from the Principal does notmatter. A and B can contract and they can agree that a third party willpay. University College is a sort of trust till a university comes intobeing. There is no legislative enactment recognizing University College.If University College is not a Government institution, the contract wasnot “ for or on account of the public service ”.
The Solicitor-General.—Once the agreement is complete, it is merged inthe appointment. When respondent became a public servant, his con-tract disappeared. (Dunn v. The Queen '.)
H. V. Perera, in reply.—When the office is accepted the contract iscomplete and you take up your duties under it. Dunn v. The Queenrefers to the right of the Crown to dismiss. The right of dismissal is animplied term of the contract and is based on public policy. (6 Halsbury
p. 460, para. 548.)
1 (1874) L. R. 9 C. P. 435.
(1896) I Q. B. 116
Cooray v. de Zoysa.
If. V. Per era (on the second part of the petition).—The petitionerclaims the seat undei; Article 77 (d). We rely on the words of section82 (1) (f) under which a vote is thrown away—
when a voter gives his vote to a candidate knowing certain facts,
when a voter gives his vote not personally knowing certain facts
but when certain facts are notorious.
By this section a lage number of voters may be disenfranchised. Afact is notorious when it is a matter of common knowledge. If thedisqualifying facts are a matter of common knowledge, it does not lie inthe mouth of the voter to say, “ Give me back my vote ”. The civic rightthat is given is not the right to cast a vote but the right to elect a person.The voter must take the trouble to find out whether his candidate is dulyqualified. The right to vote must be exercised not blindly but intelli-gently. If it is not exercised intelligently, the voter cannot be heard tocomplain. It may be that the Legislature thought that they shouldrestrict the present universal franchise in this indirect way. Counselcited Beresford-Hope v. Lady SandhurstHobbs v. Morey1. Any wilfuland perverse throwing away of votes is not necessary in our law.
What is the time at which the candidate’s disqualification should beknown to the voters? Article 82, sub-section 1, (/) refers to knowledge ata particular time—at the time the votes are given—the time of the poll.
The time of nomination is the time at which the candidate should havequalification. The election may be completed on the nomination dayitself. Election begins with nomination and ends with the declarationof the result of election. The words in Article 32 “ forthwith adjournthe election ” clears up the position. It is enough if disqualificationexists at any time during the whole period of election except where thedisqualification necessarily ceases during the course of the election.Counsel cited Roger, p. 59; Ballot Act, 1882, p. 419; Ford v. NewthArticle 74 of Ceylon (State Council Elections) Order in Council, 1931.
The Respondent, in reply.—Notoriety is something more than ordinaryknowledge. If it is a thing that ordinarily happens, it is not somethingthat arrests your attention. Otherwise, it cannot be notorious.
The voters must know that respondent is a lecturer in a Governmentinstitution and that he holds a contract of a disqualifying type. Thefact that the voters knew was that respondent was a lecturer, not that hehad a contract. If the contract disqualified him, then that fact mustbe notorious. There was no publication in the newspapers; Theelectorate consisted of 39,000 voters of whom 60 per cent, are Sinhalese.Of these, no one knows how many voted or how many were women.There is the possibility that respondent got his votes from people whowere not Sinhalese. The petitioner has not proved that posters similar toP 25 reached voters of other communities. Respondent cited Halgreen v.Burge and another'; Roger’s vol. II., p. 24; V. & R., p. 60; Hurdle andanother v. Warings; Drinkwater v. Deakin *.
1 23 Q. B. D. 79.‘ (1932) S. A. C. P. D. p. 226.
(1904) 1 K. B. 74.* (1874) L. R. C. P. 435; (1890)7 T. L. R. P. 50.
(1901) 1 Q. B. D. page. 683(1899)' (1874) L. B. 9 C. P. 642.
1 Q. B. 852.
Cooray v. de Zoysa.
M. W. H. de Silva, S.-G., in reply.—Article 77 says what the prayer ina petition should be. In a petition where a seat is claimed there mustbe a prayer for a scrutiny. Scrutiny is of two forms; where a vote ischallenged and where you challenge all the votes. There is a technicaldefect here; the petition should ask that votes should be struck off.
In construing the important words of Article 82 (1) f not only must theordinary meaning be used but also the context in which the words occurmust be considered. The words are “ causing the disqualification ”.The fact that the respondent was a lecturer is a fact. Do the wordsinclude other facts which could be inferred? What has to be proved isthat the facts that cause the disqualification should be known. Twothings must therefore be known; the facts bringing about a disquali-fication and the idea of a disqualification must be attached to those facts.There is not one case in which the idea of disqualification was not attachedto the facts causing disqualification. You cannot take the electorate bysurprise. The lecturership should have been known to the electorate asa matter causing a disqualification. In Lady Sandhurst’s case she wasobjected to at nomination.
Facts which are notorious are so brought to the notice of a person thathe cannot help noticing them. The fact which is notorious must benotorious to the electorate. There was one case in which a contract washeld to be notorious : Cox v. Ambrose In this case such steps weretaken to bring the matter to the electorate that no one had any excuse fornot knowing it. In Lady Sandhurst’s case the fact that she was a womanmust have been known to every voter who voted for her. The Courtmust be in a position to presume that everybody knew the facts causingdisqualification. Suppose 10,000 persons who got poster—P 25-—votedfor petitioner. Then not a single vote can be struck off. It is not enoughto show as my learned friend does that the fact causing disqualificationwas well known; it must be proved that it was known to everybody. Ifit is a fact which has to be assumed, there is a greater burden on petitionerto show that everybody knew about it. This is a drastic remedy whichis asked. If it was only notorious that respondent was a lecturer, butnot under a contract, that is not enough. The fact that UniversityCollege is a Government Institution must be clearly notorious. Other-wise, the fact that he was a lecturer would not be a disqualification. Andit must be notorious that the contract was “ for or on account of thepublic service ”.
H. V. Perera, in reply.—The learned Solicitor-General has said that theidea of a disqualification must be attached to the facts. That is not anargument but an attempt to legislate. There is no such intermediateway; knowledge of the facts is enough. In other words, learned Solicitor-General tries to say that the word “ notorious ” implies something verymuch more than well or commonly known. “ Notorious ” means amatter of common knowledge. One has to give the ordinary meaningto the word.
The fact of a fact being notorious is proved by inference. The test isnot whether everybody knew it or that everybody can be presumed toknow it. It is not necessary for the petitioner to show that everybody
> (1S72) 60 L. J. Q. B. 114.
AKRAR S.P.J.—Cooray v. de Zoysa.
had constructive knowledge of it. In Cox v. Ambrose (supra) the mostthat one can infer is that the fact was known to a large number ofpersons. What the petitioner has to prove is that the disqualifying factwas known to a large majority of people.
Cur. adv. vult.
July 16, 1936. Akbar S.P.J.—
The petitioner and the respondent were candidates at the State Councilelection held on February 22, 1936, at which election the respondent(who had polled 12,551 votes as compared with 10,764 votes in favour ofthe petitioner) was declared to be duly elected. The petitioner claimsin his petition under Article 77 (a) of the Ceylon (State Council Elections)Order in Council, 1931 (hereinafter referred to as the Election Order inCouncil) for a declaration that the election was void. He also claims theseat on the ground that he had a majority of lawful votes under Article77 (d).
As the petitioner’s second claim can only succeed if he succeeds on thefirst part of his petition it will be convenient if I deal fully with the latterfirst before proceeding to his second claim. I thought at first that mydecision on the first part should be announced before I called upon thepetitioner to enter upon the second part of his claim. I then realized thatI should inquire into both parts of the whole petition and give my decisionon both parts of the petition at the end. for if I were to hold against therespondent on the first part, he might drop out of the proceedings and theCourt would be deprived of the assistance which the respondent might beable to give in the elucidation of the important facts which had to be firstgone into on this part of the case.
Let me now deal with the question whether the election was void onthe ground urged, namely, that the candidate was at the time of hiselection a person disqualified for election as a member under Article 74 (a)of the Election Order in Council. This is how the petition in paragraph 5sets forth the ground of disqualification:—5. The said respondentwas at the time of his election a Lecturer at the Ceylon University Collegeunder a contract between the respondent and the Principal of the Uni-versity College and as such was at the time of his election a person holdingor enjoying a contract or agreement or commission made or entered intowith or accepted from a person for or on account of the public serviceand the said respondent was and is incapable of being elected or ofsitting or voting as a member of the State Council ”.
The ground put forward by the petitioner at the hearing was that therespondent was disqualified at the time of the election under Article 9 (a)of the State Council Order in Council, 1931, the relevant part of whichcontains more or less the same words as in paragraph 5 of the petition setforth by me above.
The first question I have to decide is a question of fact whether at thetime of the election the respondent held or enjoyed in the whole or in partany contract or agreement or commission made or entered into with oraccepted from any person for or on account of the public service.
In paragraphs 3 and 4 of his petition the petitioner also put forwardanother ground of disqualification, viz., that at the time of the election
AKBAR S.F.J.—Cooray v. de Zoysa.
the respondent was an Examiner appointed by the Education Departmentof Ceylon for a terrji of years and that he was disqualified on the groundeither that he was holding a public office under the Crown in the Island(Article 9 (c) of the State Council Order in Council) or that he was holdinga contract (Article 9 (d) of the State Council Order in Council). On thequestion of the lecturership two witnesses gave evidence on behalf ofthe petitioner and the respondent offered no evidence on this part of theinquiry. Dr. G. P. Malalasekera, a Lecturer in Oriental Languages, andMr. Gulasekharam, the Registrar of the University College, testified tothe following facts. The University College was conducted by the CeylonGovernment and provision for the running of the College was made everyyear in the estimates. The Financial Secretary provided the funds fromtime to time—lump sums of Rs. 40,000 being paid at a time to the bankearmarked for the University College and its expenses. Payments weremade from this account on cheques drawn and signed by any two of thefollowing officials, viz., the Registrar, the Principal, and the Chief Clerk,and all the cheques were franked with the words “ on GovernmentAccount ”. All the expenses incurred in the running of the UniversityCollege including the salaries of the Professors and the Lecturers and theVisiting Lecturers were paid from this fund furnished by the Governmenton cheques signed as above stated. At the commencement of eachacademic year (which began in July and closed on March 31 of thefollowing year) a circular letter was sent to each Professor or Lecturer incharge of each faculty of the College inquiring whether they requiredassistance and if so what assistance, as it was not possible for the regularpermanent staff to cope with the whole work. In 1934, Dr. Malalasekerainformed the Principal that he wanted twelve lectures a week in additionto those given by him and his assistant Rev. Siddhartha, but the Principalwould only allow him seven lectures a week for that academic year.The choice of arranging for these extra lectures by competent personswas left to Dr. Malalasekera but the right of final approval was with thePrincipal. Dr. Malalasekera arranged with the respondent for thedelivery by him of two lectures per week for the academic year 1934-1935,one series to the Inter Arts class and the other series to the B.A. class,The lecturers so engaged from outside the regular staff were called VisitingLecturers and were paid a fee of Rs. 10 per lecture. The respondentagreed to lecture on the text book selected for the Intermediate Exami-nation in Sinhalese and in the B.A. class on Sinhalese literature only.There were about six students in the B.A. class and about twenty in theInter Arts and they took the whole course of lectures by the respondentwith a view to sitting for the examination held by the London University,if they were found fit to sit for an examination at the end of the course.These students paid for their whole course, which included the lecturesdelivered by Visiting Lecturers, and their fees were paid to the revenue.As the respondent had to deliver a course of lectures for the wholeacademic year he had to study his subjects and map out his lectureswhich were to be delivered each week at fixed times mentioned in thetime table of lectures for the College students which was prepared at thebeginning of each academic year. Copies of these time tables for the year1934-1935 and the year '1935-1936 were put in and the name of the
AKBAR S.P.J.—Cooray v. de Zoysa.
respondent appears in them as having to deliver lectures every Saturdayto the Intermediate Class from 10-11 a.m. and the Final Class from11-12 noon. A regular attendance register was kept showing theattendance of the students at the lectures given by the respondent asthey had to attend 80 per cent, of the lectures'before they were allowed totake up their examinations. At the end of each mpnth the VisitingLecturers, including the respondent, notified the authorities the numberof lectures delivered by them, and cheques were sent to them signed inthe manner stated by me, on cheques franked with the words “ On Gov-ernment Account The first letter sent by respondent was put in (P 4)dated August 1, 1934, addressed to the Principal, University College, andinforming him that the respondent had delivered three lectures. P 5dated February 29, 1936, was addressed to the Registrar, UniversityCollege, and stated that the respondent had delivered ten lectures inFebruary, 1936. P 9 dated January 25, 1936, is addressed to the Registrar,University College,, and conveys the information that six lectures weredelivered in January, 1936, and is signed “ A. P. de Zoysa, VisitingLecturer ”, A specimen copy of the receipt signed by the respondent(P 8) was put in. It is to this effect. “Received from the Controller ofFinance and Supply the sum of Rupees …. currency being infull my fees as Visiting Lecturer in … . from ….to ••-■Signature ”.
In 1935 provision had been made for an Assistant Lecturer toDr. Malalasekera as it was hoped to fill this post up in July, 1935, on thereturn of a certain student from England but as he did not returnDr. Malalasekera made the same arrangement for the delivery of a freshcourse of lectures to the Intermediate and Final classes by the respondent•for the first term (July to September, 1935). As the permanent appoint-ment was not made at the end of the first term the arrangement madewith the respondent for the first term was continued for the rest of the'academic year till February 28 or 29, 1936, when the respondent resigned.
By document P 38 dated April 16, 1935, the respondent wrote to thePrincipal, University College, offering his services as Visiting Lecturerin philosophy “ if you have not yet made arrangements for lecturers inphilosophy at the University College for the coming session ”. Headded in that letter that he had made a special study of some branchesof philosophy during his stay in England and that he had had experiencein teaching logic. That letter came to nothing as the Principal hadalready made other arrangements. By P 10 (undated, probably Febru-ary 15 or 17, 1936) the respondent wrote to the Registrar inquiringwhether Saturday (February 22, the date of the election for the ColomboSouth Electorate) was a holiday, to which a reply was sent thatSaturday (February 22) was not a holiday. By letter P 12 datedFebruary 28, 1936, addressed to the Principal, the respondent informedhim that “ I shall have to discontinue my lectures at the UniversityCollege as a Visiting Lecturer in Sinhalese ”. To which the Principalreplied thanking the respondent “very warmly for your kindness inassisting the College as a Visiting Lecturer”. By P 5 dated February 29(a Saturday) as already stated by me the respondent informed the
. N. B 17627 (5/52).
AKBAR S.P.J.—Coorray v. de Zoysa.
Registrar that he had delivered ten lectures. As there were five Saturdaysin February, 1936, the respondent had lectured the full number of lecturesaccording to the time table and he was paid by a cheque for Rs. 100.By letter P 13 of March 9, 1936, the respondent wrote as follows : —“ Ifeel I am not legally justified in allowing myself to be paid for the twolectures I delivered at the University College after I was elected as amember of the State Council. I shall thank you if you can send me acheque for Rs. 80 and hand over the balance Rs. 20 for any charitablefund or institution. I hope to be excused for the inconvenience causedto you ”. The Registrar stated in evidence that with this letter therespondent returned the cheque for Rs. 100. By P 14 dated March 18,1936, the Principal sent the respondent Rs. 80 by cheque as “ you do notdesire to receive payment for the two lectures given by you after yourelection to the State Council ”. As regards the balance Rs. 20 respondentWas informed that “ no payment can be made from the public revenueexcept for a purpose authorized by the State Council in the annual orsupplementary estimates. The sum of Rs. 20 will therefore lapse torevenue unless you are prepared to accept the full amount originallytendered to you ”.
The facts which I have set forth, especially the documents, proveconclusively that the University College is a Government institution,providing for the higher education of the youth of the Island and that}it is managed and conducted by the Government by its own officers bymeans of funds provided by the Government each year. The respondentmade a suggestion that the University College was conducted by a councilcomposed of several unofficial members and officials. But this wasnegatived by the evidence of the Registrar who stated as follows : —“ TheCeylon Government manages the University through certain of its servants—the Principal and others who work under him. I do not mean byGovernment, the State Council. It is not correct to say that the College■ Council manages the University College. That body is purely an advisorybody—it has nothing to do with finances ”.
I cannot give effect to the respondent’s suggestion in view of theoverwhelming evidence in this case, which is all one way, for no evidencewas offered by the respondent himself or on his behalf on this part of thecase. The evidence also clearly shows an arrangement by which therespondent agreed to deliver and did deliver a course of lectures not onlyfor the year 1934-1935, but for the year 1935-1936 till the respondent’sresignation on February 28, 1936. These lectures were all to be deliveredat fixed times each Saturday in accordance with time tables drawn up atthe beginning of each academic year and payment was made each monthat the rate of Rs. 10 for each lecture delivered during the month. Thepayment was made on cheques stamped “ On Government Account ”and the respondent acknowledged the receipt of the money from theGovernment. These are all indications of the existence of a contract andI cannot see how I can give effect to the various pleas raised by therespondent that there was no contract. His first suggestion was that heonly agreed to oblige Dr. Malalasekera as a friend and that he had nevermet the Principal personally and that the Rs. 10 paid per lecture wasgrossly inadequate. Whatever the motive of the respondent may be in
AKBAR S.P.J.—Cooray v. de Zoysa.
taking up the lectures, his letters to the Principal and the Registrar of theUniversity College and his receipts of Government cheques show that hewas fully aware with whom he had contracted. Eds very first letter P 4dated August 1, 1934, giving the number of lectures delivered by himduring the first month of the course was addressed to the Principal,University College. P 12 discontinuing his course of lectures wasaddressed to the Principal and that letter shows that there was no point -in discontinuing the arrangement unless the respondent recognized thefact that there was “ a contract or agreement or commission ” existingwhich had to be determined legally by giving notice.
The respondent further argued that the contract came into existenceeach Saturday when he began to deliver the lecture and ended when hehad delivered it. The evidence however shows that the contract cameinto existence when he agreed with Dr. Malalasekera to deliver the wholecourse of lectures during the academic year in accordance with a fixedtime table. Payment was according to this contract to be made at theend. of each month on the number of lectures delivered during that month.There is ample authority in law to support the view that an arrangementof this kind is a contract under our law. In the Attorney-General v.Abram. Saibo & Co.the agreement was between the defendant and theGeneral Manager of the Ceylon Government Railway that the defendantshould supply rice for one year at a specified price “ in such quantities asmay from time to time be required for the general service of the railwaythat the deliveries should be made upon orders signed by the RailwayStorekeeper; that the General Manager should pay for the rice suppliedon the 15th day of the month following the delivery; and this was heldto be a contract. Similarly in Dodwell & Co. v. U. S. Shipping BoardMerchant & Fleet Corporation", where the agents of the defendants madean offer through a broker to carry cargo between certain ports during astated period at certain rates and the plaintiffs agreed to ship two hundredtons of cargo each month during the period at the rates offered, it was heldthat there was a binding contract.
Similarly in the South African case Soeker v. Colonial Government *,the fact that the respondent was to be paid monthly on the number oflectures delivered, was merely a term in the contract made at thebeginning of the academic year.
The Roman-Dutch law did recognize the contractual relationship thatwould be established when the services of professional men and scientificexperts were retained. As Maasdorp says in his 3rd volume at page 275,these contracts would fall more properly under the heading of mandate oragency than contracts of purely personal service. At page 326 he classifiesagencies into three classes; judicial agencies, e.g., advocates and proctors;quasi-judicial, e.g., executors, guardians, &c., and extra-judicial, all otherkinds of agencies whatsoever, whether commercial or otherwise. Inchapter 23, Maasdorp deals with three kinds of contracts of agency whichmay be for the benefit of the principal, the agent and a third partycombined or of a third party alone or of the third party and the agent orof the principal alone or of the principal and the third party or of theprincipal and the agent (see also Walter Pereira’s Laws of Ceylon, p. 571)„
1 18 N. L. R. 417.* 36 N. L. R. 1.'3 Buchanan's Appeal cases 207.
AKBAR S.P.J.—Cooray v. de Zoysa.
In the case now before me the University College was established as adepartment of the public service to provide for the higher education ofthe students, who paid fees for such education. All the three partiesprofited by this provision—the Government who got the fees and had avoice in the direction of the higher studies, the students who got thebenefit of the education, and the visiting lecturers who got their feesand the prestige of calling themselves lecturers as the respondent did inthis case.
In my opinion the evidence satisfactorily establishes the fact that therewas a contract or agreement or commission held or enjoyed by therespondent which had been made or entered into with or accepted fromthe Principal of the University College for or on account of the publicservice, within the meaning of Article 9 (d) of the State Council Order inCouncil. That paragraph of Article 9 refers to any contract, agreementor commission made or entered into with or accepted from any person,and the only limitation on the general nature of the contract or the personwith whom it is made is that it must be for or on account of the publicservice. As I have already stated the University College was establishedby Government to provide for the higher education of the inhabitants,and the provision of lectures was the immediate object of that part of thepublic service which the University College stood for and represented.The contract by which the respondent agreed with the Principal to givehis lectures to the Intermediate and Final students in consideration ofpayment was therefore made by the Principal for and on account of thepublic service. The branch of the public service which the CeylonGovernmernt Railway, for instance, represents provides a cheap andexpeditious method of transport for passengers and goods. Any contractfor or on account of this branch of the public service would include anycontract which will help or further the object for which this public servicewas established. It would include a contract for the supply of coal forthe use of the Railway engines, or a contract for service by an engineer,or any other servant which will contribute to the maintenance of thatpublic service, but it will not include contracts by which in payment of asum of money a passenger gets a ticket to convey him from one place toanother by train. Similarly it will not include a contract for the estab-lishment of a telephone in a private person’s house or office. It willinclude, however, a contract by which in payment of a rent a personallows the telephone authorities to fix an erection on his premises, for theconvenience of the telephone authorities. The following extract from. the Parliamentary Debates of February 18, 1925 (page 1086) is interestingin this connection: —
“ 72. Captain T. O’Connor asked the Attorney-General whether,in view of the fact that by the Statute 22 Geo. 111. c. 45, any personundertaking a contract with a Government Department shall beincapable of being elected to the House of Commons, or of sitting orvoting therein, he proposes to introduce legislation to safeguard theMembers of the House of Commons who have contracts with thePostmaster-General for the installation of telephone service in theirresidence or places of business?
AKBAR S.P.J.—Cooray v. de Zoysa.
The Attorney-General (Sir Douglas Hogg): If my hon. and gallantfriend examines the Statutesr, he will find that the disqualification islimited to contracts made for or on account of the public service.There is, therefore, no need for the legislation which he suggests.
Captain O’Connor:Has the right hon. and learned gentleman
considered the case of people who have contracts with the Post Office,by which they permit the erection of telephone staffs on their houses,and receive payment therefor?
The Attorney-General: No. Sir ”.
22 Geo. III. c. 45 referred to in the above extract is of importance inthis case and as it was referred to by the respondent in his argument,I quote it here more or less in full: “Any person who shall directly orindirectly himself or by any person whatsoever in trust for him or for hisuse or benefit or on his account undertake, execute, hold or enjoy, in thewhole or in part, any contract, agreement or commission made or enteredinto with, under -or from the commissioners of His Majesty's Treasury,or of the Navy or Victualling Office, or with the master-general or boardof Ordnance, or with any one or more of such commissioners, or with anyother person or persons whatsoever, for or on account of the publicservice, or shall knowingly and willingly furnish or provide in pursuanceof any such agreement, contract or commission which he or they shallhave made or entered into as aforesaid, any money to be remitted abroador any wares or merchandise to be used or employed in the service of thepublic, shall be incapable of being elected or of sitting or voting as aMember of the House of Commons during the time that he shall execute,hold or enjoy any such contract, agreement or commission or any part orshare thereof, or any benefit or emolument arising from the same ”.
It will be seen that the words in the first six lines of Article 9 (d) occurin the English Act, but the scope of the Ceylon Article is general in termsand not restricted as in the English Act. As there was a doubt in theinterpretation of the English Act, that is to say, as I understand it, whetherthe principle of interpretation ejusdem generis should apply or not, thisdoubt was removed by 21 Geo. V. c. 13 which mentioned the doubtand declared that the earlier act extends “ only to contracts, agreementsor commissions for the furnishing or providing of money to be remittedabroad or wares and merchandise to be used or employed in the serviceof the public ”.
It is interesting to note here that this act became law on March 27, 1931,and our Orders in Council were passed by His Majesty in the PrivyCouncil just seven days before, i.e., March 20, 1931. Under the Englishlaw therefore only contracts to furnish or provide money to be remittedabroad or wares and merchandise to be used or employed in the serviceof the public could disqualify. Any other contract would not be a groundfor disqualification. When the State Council Order in Council waspassed on March 20, 1931, by His Majesty, Article 9 (d) contained nolimitation at all with regard to any contract except in so far as they werelimited by the words “ for or on account of the public service Asregards the holding of a public office as a ground for disqualification, thescheme of the English law is different to that of the local law. Chapter I.
AKBAR S.P.J.—Cooray v. de Zoysa.
of vol. 2 of Rogers on Election gives a list of English Acts passed fromtime to time disqualifying the holders of certain offices and enabling theholders of certain other offices to sit. Our law is to be found in Article 9which gives nine different heads of disqualifications disjunctively, theword or ” occurring after each paragraph. Under paragraph (c) theholding of any public office is a disqualification and the very next para-graph (d) makes the holding of a contract of the kind held by therespondent a disqualification. By Article '4 the expression “ personsholding public office under the Crown in the Island” is not to includepersons who are not in the permanent employment of the Crown in theIsland but is to include persons serving the Crown in the Island for aterm of years. As the respondent was not in the permanent employmentof the Crown in the Island when he was a visiting lecturer in the year1935-1936 and as that employment was not for a term of years, he wouldnot be disqualified under Article 9 (c). But does that conclude thematter? If he was not disqualified under (c) does it mean that (d) is notto be applied to his case ? As this involved a difficult question of lawI noticed the Solicitor-General who appeared as amicus curiae and hisargument was of very great help to me in the elucidation of not only thispoint but also the other points of law which have to be decided in thisinquiry. The Solicitor-General argued that 9 (c) alone applied to therespondent and riot 9 (d). He urged that 9 (d) only applied to contractsfor the supply of material and not to contracts of service. He howeveradmitted that if the respondent had agreed to supply half a dozenlectures that would be caught up by the words of Article 9 (d), but that9 (d) would not apply when the respondent had contracted to deliver thelectures himself, on the ground that 9 (c) was intended to cover such casesin its entirety. There are no words in the whole of Article 9 limitingparagraphs (c) or (d) in this way. On the other hand paragraph (d) refersto any kind of contract so long as they are for or on account of the publicservice, which are the only words of limitation on the kinds of contractscontemplated. Further, paragraph 9 (d) contains a proviso as follows:“provided that nothing herein contained shall extend to any pension orgratuity granted from the public revenue or other, funds of the Island inrespect of past public service ”.
One of the motives impelling a person to enter the public service is thepension or gratuity which is always paid by the Government on retire-ment, and which therefore forms part of the consideration for the contractof employment, if the foundation for the holding of that office is a contract.The draftsman therefore had in his mind the idea of a contract of servicewhen he drafted Article 9 (d) and inserted the proviso. I am asked bythe Solicitor-General to add a new proviso to paragraph (d) excluding allcontracts of personal service of employment from the purview of Article9 (d). I must interpret the Order in Council from the provisions of theOrder in Council and if the provisions are clear the Order in Councilcannot be controlled by reference to the object (real or presumed) (seeBeal’s Legal Interpretation, p. 318, and the cases cited). In Fordyce v.Bridges ’, Lord Brougham said, “ we must construe the statute by whatappears to have been the intention of the legislature. But we must
• (1847) 1 H. L. C. l.
AKBAR S.P.J.—Cooray v. de Zoysa.
ascertain that intention from the words of the statute, and not from anygeneral inferences to be drawn from the nature of the objects dealt withby the statute ”,
Huddleston B. in Crofts v. Taylor *, said, “ I am satisfied that he havenothing to do with the general object of the enactment if the words usedare clear; they are clear here, and we ought not to enter upon a refinedconsideration of the question whether they carry out the object of thestatute ",
As I have said there are no words in Article 9 (d) limiting it in the sensecontended by the Solicitor-General. As a matter of fact during the laststages of his argument he conceded that a contract with an expert for ayear to give expert advice on payment of his fees, say on the Hydro-Electric Scheme would come within the ambit of Article 9 (d), on theground that the supplying of his advice would be similar to a contract forthe supply of materials.
His next argument was that even if there was a contract of service,the actual entering of the service created a new situation, namely, anemployment by the Crown which entirely destroyed the contract. Hecited the case of Dunn v. The Queen", in support of his argument, as inthat case the right of the Crown to dismiss its servant at pleasure wasrecognized. It will be seen however from the judgments of Lord Esherand Lord Herschell that far from holding that the contract of service wasdestroyed or merged in the employment they held that the right of theCrown to dismiss at pleasure was based on public policy and must betaken to have been imported into the contract of service. Lord Esherquoted with approval the remarks of Lord Watson in Doh.se v. The Queen,“ I am of opinion that such a concluded contract, if it had been made,must have been held to have imported into it the condition that theCrown has the power to dismiss ”.
In the Privy Council case Gould v. Stuart,’', the judicial committee said :
“ It is the law in New South Wales as well in this country that in acontract for service under the Crown, civil as well as military, there is,except in certain cases when it is otherwise provided by law, importedinto the contract a condition that the Crown has the power to dismiss atits pleasure ”. It is not necessary for me to decide whether the law inCeylon relating to the Crown’s right to dismiss its servants is the sameas the English law but even assuming it to be so, the contract of servicewas not destroyed nor did it merge in the employment, owing to thisprerogative right of the Crown to dismiss its servants at pleasure. Underthe law of this Island the Supreme Court has recognized the contractualnature of some kinds of employment by Government and the right of theservant to sue the Government for wages, salary, for work, &c. <see Fraserv. The Queen’s Advocate ').
The Solicitor-General further argued that the intention to excludecontracts of service or employment from Article 9 (d) was clear from thejuxta-position of paragraphs (c) and (d) and from the definition in Article *.Although the two paragraphs appear one after the other, the word “ or ”is inserted between the two. It is true that persons holding public office
1 (1887) 19 Q. B. D. 521.. 3 (1896) A. C.p. 671.
* (1896) 1 Q. B. 116.' 1863-1868 Ram p. 316.
AKBAR S.P.J.—■Cooray v. de Zoysa.
are stated not to include persons who are not in the permanent employ-ment of the Crown and to include those serving for a term of years. Ifsuch employment could only occur on the basis of a contract the Solicitor-General’s argument would be entitled to some consideration. But thetheory of the English law, on the model of which the Order in Councilwas drafted, a's stated in Halsbury’s Laws of England, -uol. 6, paragraph 548,is as follows:—“All public officers are appointed by and derive theirauthority from the King either mediately or immediately, and he cancompel his subjects to serve in such offices as the public good and thenature of the constitution require, refusal to perform a public duty, whenlegally called upon to do so, being a punishable offence So thataccording to the English law the basis of an employment by the Crownmay either be a contract or the command of the King.
The very definition in Article 4 exempts the Speaker, the Ministers ofthe Stale Council, &c., on the footing that although there is no contractat the root in spite of the payment of salaries, there' may be a questionwhether they are not persons serving the Crown for a term of years.Similarly the definition excludes officers and soldiers of the Defence Force.One can also conceive of such employment in times of emergency. Gov-ernment can also appoint Unofficial Police Magistrates under the Courts’Ordinance and Inquirers under the Criminal Procedure Code, 1898, witha right to draw fees for their services. All local headmen draw salarynow but this was not so till about ten years ago.
There are other examples of persons in Ceylon who may be said to holdpublic office under the Crown in the Island^where there is no contract asthe basis of the service but only the command of the Government. Forinstance, in times of disorder under the Police Ordinance, 1865, specialconstables may be appointed who may be paid for their services.
As there was a doubt whether an Unofficial Police Magistrate appointedunder section 84a of the Courts Ordinance, 1889, had the power toact under Chapter VIII. of the Criminal Procedure Code in dispersingunlawful riotous assemblies the Government has sometimes appointedprivate persons as Police Magistrates who may have to be paid from thepublic revenue for their services. The difficulty in Article 4 is created bythe exemption from disqualification to which persons not in the permanentemployment of the Crown in the Island are entitled, for in the case ofpersons serving for a term of years, they are disqualified. In the lattercase it does not matter whether the service is based on a contract or not ;it would be a disqualification either under paragraph (d) or (c).
The case of those who are not in the permanent employment of theCrown really ranks with the other cases of exemptions from disquali-fication mentioned in Article 4, e.g., the Speaker, Ministers and officersand soldiers of the Defence Force, in all of which contractual relationshipsare not established. Even in the case of Crown Proctors and CrownAdvocates, the appointment may be purely honorary.
The commonest example of a person holding a non-permanent?,employment under the Crown is that of a person who is appointed to acttemporarily for another person without any remuneration, e.g., anadvocate or proctor who is appointed to act for the permanent judge fora short period.
AKBAR S.P.J.—Cooray v. de Zoysa.
Thus, the legal position in the case is this. There are no words restrict-ing the general nature of the contract in Article 9 (d) so long as it is foror on account of the public service, and the draftsman may well have hadin mind when he drafted the definitions in Article 4 only the case ofpersons in the temporary employment of the Crown which employmentis not based on contract when he exempted them from the disqualification.It seems to me that if I were to give effect to the Solicitor-General’sargument I would not be interpreting the law but legislating. I mightmention the undesirability as Counsel for the petitioner urged, of membersof the State Council holding remunerative contracts with Governmentfor personal service for a year or a shorter period at a time, in matterswhich would bring their duty into conflict with their interest. This ofcourse is not the reason for the opinion to which I have come on thequestion of law which I have been discussing.
Under the old Order in Council of 1923, Article XV., the kind ofcontracts mentioned in Article 9 (d) was not a disqualification, althoughunder Article XVII. it was a ground for rendering a seat vacant afterelection. In this connection I may mention that by the AmendmentOrder in Council, 1928 (see Gazette, December 14, 1928) His Majestypassed an indemnifying Order in Council saving the editor of the Sinhalesedictionary from all penalties, &c., incurred by him by reason of a contract,or of having accepted an office.
Under the existing Order in Council a contract was not only a disquali-fication for election but also a ground for unseating the member afterelection (Article 15). And this may have been the reason why therespondent resigned his lecturership on February 28, 1936, after theresult of his election was announced on February 24, 1936, under Article45 (7) of the Election Order in Council. The results of all the elections,including the respondent’s were published in the Gazette of March 10,1936, under Article 47. Under that Article the Legal Secretary causes thename of the member elected to be published. Although this date is ofimportance in fixing the time for other purposes, I cannot agree with therespondent that the disqualification must be proved to have existed onMarch 10, 1936. To my mind although Mr. Perera may be right inarguing that it will be sufficient for his purpose if the disqualificationexisted on any date from the date of nomination till the date of theannouncement of the result of the election by the returning officer (seeFord v. Newth'), it will be sufficient to consider the legal position or.February 24, 1936. On that date the contract on which the respondent’slecturership was based still existed for the respondent only wrote hisletter of resignation on February 28, 1936. He even lectured on February29, 1936, and gave the number of lectures as ten for February, for whichhe was paid Rs. 100. In view of his own letter P 13 of March 9, 1936, inwhich he stated that he did not feel legally justified in being paid Rs. 20for the two lectures delivered by him after his election, I cannot see howhe can argue that the date of election according to his own account wasnot February 24, 1936, but March 10, 1936. Nor can I accept hisexplanation offered in his evidence that the. lecture he delivered onFebruary 29, 1936, was in place of the lecture he partly delivered on
* (1901) 1 K. B. D„ p. 6X3.
AKBAR S.P.J.—Cooray v. de Zoysa.
February 22, 1936. The respondent’s action in writing these lettersshows to my mind that he was under a mistaken notion that the law wasthe same as the law under the Order in Council of 1923, under which acontract with Government was not a ground for disqualification but wasonly a ground for unseating a member after election. The conclusion towhich I have come is that the respondent was disqualified under Article9 (d) when he was elected on February 24, 1936, and therefore his electionwas void.
In view of this finding of mine it is really unnecessary to discuss theother ground of disqualification set forth in paragraphs 3 and 4 of thepetition, viz., the fact that respondent was an examiner appointed bythe Board of Education. But as evidence has been led and the matterhas been argued, I think I should briefly indicate why it was not adisqualification. Paragraph 3 of the petition asserts that the examiner-ship was a disqualification under Article 9 (c) and paragraph 4 that it wasa disqualification as it was based on a contract under Article 9 (d). Insupport of the objection that the examinership was based on a contractan advertisement by the Director of Education dated December 6, 1934,(P 15) in the Ceylon Daily News of December 12, 1934, was put in,calling for applications from persons who were prepared to act asexaminers and Moderators in the Junior and Senior School Certificateand the professional examinations in English, Sinhalese and Tamil, of theDepartment. On December 17, 1934, by letter P 16 the respondentoffered his services as examiner and Moderator in Sinhalese for the above-mentioned examinations. In that letter he stated that he had been theexaminer in Sinhalese for the London University and Cambridge Uni-versity exmainations and also that he was at that time a part-timelecturer of the Ceylon University College, lecturing “ on Sinhaleseliterature to students preparing for the B.A. examination
By P 17 the Director informed the respondent that he had been placedfor a period of three years on the panel of examiners in Sinhalese atDepartmental examinations. This examinership the respondent gaveup on March 4, 1936, by his letter P 20. Now this letter P 17 is datedAugust 1, 1935, and does not refer either to the advertisement nor torespondent’s offer in P 16. As a matter of fact even before the advertise-ment of December 6, 1934, examination scripts had been sent to therespondent for correction and he had been paid at the rate of 15 centsfor each script corrected. P 18 shows that this had been done on sevenoccasions before P 17, namely, April, 1934, July, 1934, August, 1934,November, 1934, March, 1935, April, 1935, and July, 1935. It was theDirector who placed the respondent on the panel by P 17 and the Directorwas not called to prove that the appointment was made in consequenceof the respondent’s offer in P 16. P 17 does not refer to respondent’soffer in P 16 and the interval between the two letters is over seven monthsand it may well be the appointment was made not because the respondenthad offered his services but because the Director knew he was a competentexaminer as he had been employed on no less than seven occasions priorto the appointment. Moreover the terms of the appointment containedin P 17 are too vague as explained by Mr. de Saram of the EducationOffice. The panel contained a number of names, and 250 scripts were
AKBAR SJ’.J.—Cooray v. de Zoysa.
sent in rotation, the choice being left to the Director and the Directormay never send any papers to the respondent, for the respondent had noright to insist on any papers being sent to him. Moreover (see R 3) whenpapers were sent to any one of the panel he had the right to return thepapers and to refuse to correct them. The only effect of the appointmentis that the examiner is entitled to payment only if he corrects the papers.This shows that the appointment was not an acceptance of the offer inP 16, as there was nothing to show that the offer was an offer of all thesevague terms which flowed from the appointment in P 17. The evidencealso shows that the offer began with the sending of the 250 scripts to theexaminer and the acceptance when he corrected them.
In my opinion letter P 17 does not prove that there was a contract forthree years. There was a separate contract when-the scripts were sentand were corrected. As the last occasion on which the respondent waspaid for correcting papers was November 12-14, 1935, there was nocontract existing at the time of the election or the nomination (January15, 1936) even if I take the fact that payment on these scripts was madeon January 7, 1936. Paragraph 3 of the petition stated that theexaminership was a disqualification under Article 9 (c) as the respondent’sappointment to the panel on August 1, 1935, for three years was theholding of a public office. The expression persons holding public officeunder the Crown in the Island ” —it will be remembered—includes personsserving the Crown for a term of years. I do not agree with the argumentfor I think the draftsman only contemplated and included persons servingthe Crown for a term of years, when they were whole-time officers. Hecertainly never intended to include persons appointed to a panel ofexaminers with the uncertainty and vagueness associated with suchappointments, as the evidence discloses.
1 now come to the second part of the petition, which raises equallydifficult questions of law. The petitioner claimed the seat under Article77 (d) of the Election Order in Council on the ground that he had amajority of votes. He should really have asked for a scrutiny underArticle 77 (d), which he did not do in his petition. This was howeveronly a technical objection, because paragraphs 6 and 7 are explicit andconvey all the information required for a knowledge of the grounds forsuch a claim. As a matter of fact no objection was taken on this ground.Paragraph 5 asserts the lecturership which was based on a contract asthe ground of disqualification. Paragraph 6 states that this disquali-fication or the fact causing the said disqualification were matters ofnotoriety at the time of the election and were well known to all personswho voted for the respondent at the time of voting and that they hadnotice thereof. Paragraph 7 states that for this reason the votes givenfor the respondent were of no effect and that therefore the petitioner hada majority of lawful votes. The procedure on a scrutiny is laid down inArticle 82 and therefore the law on the subject in Ceylon has been givenstatutory effect, unlike the law in England, which is dealt with by thecommon law. Indeed it appears to me from the English cases that thiscommon law is still in a state of development in Great Britain. Article82 (1) is divided into six paragraphs and the first five deal with the strikingoff of votes of individual voters owing to the disqualification of those
AKBAR S.P.J.—Cooray v. de Zoysa.
voters specified in the five sub-heads. The sixth sub-head is as follows: —It provides for the striking off of “ (/) votes given for a disqualifiedcandidate by a voter knowing that the candidate was disqualified or thefacts causing the disqualification or after sufficient public notice of thedisqualification or when the disqualification or the facts causing it werenotorious It will be seen that this sub-head deals with five differenttypes. The first two types deal with knowledge on the part of the voterswhose vote it is sought to strike off, and before this can be done theelection Court must be satisfied that that particular voter knew of thedisqualification or knew of the facts causing the disqualification. Evenwhen the voter was ignorant of the legal effect of the disqualification, if thepetitioner can prove that the voter had knowledge of the facts which in lawcause the disqualification this would be enough, as the law presumes thatevery person knows the law. In the third type the petitioner must prove tothe satisfaction of the election Court that the voter or the voters specifiedor all the voters of the electorate had sufficient notice of the disquali-fication. And the last two types deal with cases where either thedisqualification or the facts causing it were notorious. It is sought bythe petitioner to bring his claim for the seat under the very last type ofArticle 82 (f), namely, that the facts causing the disqualification werenotorious and that those who voted for the respondent threw away theirvotes.
It will be convenient for me at this stage to indicate briefly the Englishcommon law on the subject by reference to English cases and text books.The remarks of Parker in his Treatise on Election Agents, pp. 278-280show that the English case law has been gradually developed. Theleading cases are Drink-water v. Deakin1 and Beresford-Hope v. LadySandhurstIn the former case Brett J. dissented from the judgment inReg. v. Mayor of Tewkesbury and stated as follows:—“I accept thatwhich seems to me to have been always admitted to be the law before thecase of Reg. v. Mayor of Tewkesbury, viz., the proposition which I haveexpressed, as generally applicable to all cases where notice of the law asaffecting any subject-matter is material, that is to say, where by the law,if certain facts exist incapacity exists, and where by the law, if the lawwere known to the elector, his vote would be thrown away if he persistedin voting for the disqualified candidate, he cannot, if the facts exist tohis knowledge, or if he have notice of the facts equivalent to knowledge,which by law produce incapacity for election in the candidate, render hisvote valid by asserting that he did not know that the facts by law producedsuch incapacity, or that his vote would be thrown away if he voted forsuch candidate
D-rinkwater v. Deakin was approved of in Lady Sandhurst’s case. InLady Sandhurst’s case, she was returned as a member of the CountyCouncil; the electors were of course aware of the fact of her being awoman but they were not aware that this fact constituted disqualification;no express notice of disqualification had been given. The Court held thatLady Sandhurst was disqualified on the ground that she was a womanand that the votes given for her had been thrown away. The ChiefJustice Lord Coleridge stated as follows:—“The fact from which the> L. R. 9 C. P. 642.* 23 Q. B. D. 79.
AKBAR S.P.J.—Cooray v. de Zoysa.
incapacity arose must have been known to every one who voted for LadySandhurst; therefore everyone voted at his peril, because there existedthat fact to which the law annexes the incapacity of being elected. Iapprehened that both in Goslin v. Veley and Drinkwater v. Deakin and inother cases it has been laid down over and over again, that if the factexists which creates an incapacity and it is known, and must be known,to those persons who voted for a candidate who is so incapacitated,votes given under those circumstances are thrown away. As it is put inone of the judgments, such votes are fairly enough thrown away, becausethe persons would not do the only thing they ought to do to give effectto their votes, namely, to vote for a properly qualified candidate. Thedistinction which is drawn in the case of Drinkwater v. Deakin and inother cases is not a subtle one, it is a perfectly plain one. Where theincapacity is an incapacity of status so annexed by law to the candidateit requires no proof; the fact of its being an incapacity to which the lawannexes the legal consequence is known to every person who votes, andthe persons who vote and who are aware of the fact to which incapacityis attached, must in reason be held to be aware of the consequence whichattaches to their voting. The case of Drinkwater v. Deakin and othercases of the same kind are cases where the fact of incapacity had to beascertained. In the case of Drinkwater v. Deakin the fact of the incapacitywas not, in the judgment of the Court, ascertained. In that case it washeld that there must be sufficient and conclusive notice given to asufficient number of people to invalidate the election and to seat the rivalcandidate. On that case I decide without hesitation, that the votes givenfor Lady Sandhurst were thrown away ”.
It will be noticed that the disqualification in that case was one of status.In Cox v. Ambrose the disqualification was a contract, but the fact thatthe respondent was a party to the contract and that petitioner had objectedto his candidature was well known to almost all the electors. Therespondent himself published posters and sent circular letters to nearlyall the electors referring to the objection to his candidature. The detailsof the evidence will be found at page 115, and the evidence was presumablyso overwhelming that no point was made about it for the respondent atthe appeal. In that case too Drinkwater v. Deakin (ubi supra) wasfollowed.
Parker at page 279 says as follows referring to the cases:—“ Sometimesthe disqualification arises on a fact of such notoriety, or of so patent anature, as that each elector may fairly be supposed to have expressindividual knowledge of it ; or, in other words, as that the notoriety of theincapacity is tantamount to notice (see R. v. BlissellR. v. Derby,Councillors of * and see Hobbs v. Morey ‘). Such was the case where thecandidate refused to take the qualification oath, formerly required, whenrequested so to do (Leominster C. & D. 1) ; and such was formerly the casewhere one of the candidates was the returning officer at the election inquestion (Southampton, Heyw. Co. 535; see ante, p. 275), or a woman(Gosling v. Veley Beresford-Hope v. Lady Sandhurst (supra). The novel
1 80 L. J. Q. B. D. 114.-» 7 A. da E. 419.
tIB>eZ79.4 (1904) 1 K. B 74.
7 Q. B. 439.
AKBAR S.PJ.—Cooray v. de Zoysa.
creation of an office of profit under the Crown was held to be “ notorious ”(.Fife, 1 Lud. 455); and a candidate has been petitioned against on theground that it was “ notorious ” that he was an infant (Flintshire, 1 Peck.
5.26). It has also been laid down that knowledge of the disqualificationmay be established by “ notoriety ” as well as by express notice (2ndClitheroe, P. R. & D 285). “ It will, however, be found that in alll theabove cases except Southampton (Heyw Co. 535), and except Beresford-Hope v. Lady Sandhurst, in which case the candidate was a woman,express notice was given to the electors, and that the minority candidatewas not unseated on mere proof of the “ notoriety ” of the facts creatingthe disqualification
Roger in vol. 2, p. 83, after referring to the cases says as follows: —
“ The result of the above decisions is that an elector, who votes for adisqualified candidate, with knowledge either of the disqualification orof the facts creating the disqualification, throws away his vote; and such■knowledge will be presumed where the disqualification or the factscreating the disqualification are notorious.”
It is clear therefore that the draftsman modelled paragraph (f) ofArticle 82 on this statement by Roger. The petitioner is thereforeentitled to ask an election Court to strike off his opponent’s votes if hecan prove that the disqualification or the facts causing it were notorious.But this fact must be proved to my satisfaction. I accept the definitionof " notorious ” given by Mr. Perera, namely, that it means that it was amatter of common knowledge. The electorate had 38,842 voters (menand women) on its roll of whom 12,551 polled for the respondent and10,764 for the petitioner, 10 ballot papers being spoilt. There is nodefinite evidence, but Mr. de Silva, clerk in the Registrar’s office, said thatnearly 75 per cent, of the voters were Sinhalese, although he was notdefinite. Wellawatta, one of the divisions, had the largest number ofvoters and in this area there was a large number of Burghers and Tamils.Many witnesses were called to prove that 10,000 posters similar to P 25were distributed prior to the election. This poster is in Sinhalese andamong the qualifications of the respondent it states that Dr. A. P. deZoysa is Kathika Achariya Dura in the Lanka University College. Theword Kathika means by itself “ talks ” and Achariya means “ teaching ”according to the majority of the witnesses, but the two words do not occurtogether in the dictionaries and the copy of the Dinamina put in (P 35)of August 7, 1926, shows that the word was coined by putting the twowords together to apply to Rev. Sumangala, who was then an AssistantLecturer in the University College. Evidence was led for the petitionerto prove that not only were the posters posted and distributed, but thatfrom two or three platforms at election meetings it was announced thatthe respondent was a lecturer in the University College, the actualEnglish words being used by one or two speakers who spoke in Sinhaleseand even by the respondent. Further, that in several villages and placesthe respondent or his friends went round from house to house canvassingand informing the voters that the respondent was a lecturer in the Uni-versity College. Even assuming that all this evidence was sufficientevidence to prove the publication of the fact, namely, that the respondentwas Kathika Achariya Dura in the Lanka University College or that he
AKBAR S.P.J.—Cooray v. de Zoysa.
■was lecturer, University College (uttered in English), at two or threemeetings was this enough? All the witnesses were men and they did notspeak directly as regards publication to the women voters. Nor wasthere any evidence that the fact was published to the Tamil, Muslim andother non-Sinhalese voters (numbering nearly one quarter of the voters)in their own language or that the words were understood by them. Nonotice of the disqualification was given by the petitioner to the voters.Did the words “ Kathika Achariya Dura, Lanka University College ”convey the idea of a contract to the voters or that the contract was withthe Government? Was it a notorious fact that the University Collegewas a Government institution? One witness Wagista said, “ Iunderstood the phrase “ Kathikachariya ” as a lecturer. I do notknow if the man was a paid lecturer or if he had a contract with Govern-ment, University College being a Government concern any one attachedto it would be disqualified—about the disqualification I knew after theelection petition ”. Another witness Costa said, “ They (the respondent’ssupporters) told me he was teaching in some school and was holding thechief post—(what is the school?). The University College, CinnamonGardens—our people knew it. I do not know if they knew it was aGovernment institution ”. Another witness Boteju betrayed someuncertainty at first as regards the Government control of the UniversityCollege, though he corrected it later. Thegis Appu said, “ I did not knowKathika Achariya to mean a Government post but the poster said, ‘ nowlecturer in the University College ’, and I understood it was a Governmentpost ”. G. D. P. Appuhamy said, “ Kathikachariya is not ordinarilyused
Sapramadu who had been obviously called to testify to the fact thatthe respondent at a meeting stated that he was a lecturer in the UniversityCollege refused to admit that he heard the respondent say so. “ I cannotsay if he did so or not He at one time confused the Technical Collegewith the University College. The witness Costa mistook the Royal Collegefor the University College. As I have already stated the respondent wasdisqualified because he held a contract with Government in respect of hisvisiting lecturership at the University College under Article 9 (d). Hewas not disqualified under Article 9 (c). The facts published were thatthe respondent was Kathikachariya Dura, Lanka University College.Under Article 82 ()) the facts causing the disqualification must be provedto have been notorious. What was proved was that the publication Wasmade to the Sinhalese voters in several divisions. Whether the fact ofthe lecturership was published to the women voters was not proved byevidence, and I have been asked to infer that it was so published. I amalso asked to infer that that fact was commonly known, to the non-Sinhalese voters. I am further asked to infer that the University Collegewas as a matter of common knowledge known to be a Governmentinstitution ; and that the unusual word Kathikachariya Dura wascommonly known to mean not only a lecturer, but that it meant a lecturerwhose services were made use of by Government, owing to the wordsLanka University College being joined with the words KathikachariyaDura. The English words “ University College ” may have meantnothing to many of the voters, or they may not have understood the
AKBAR S.P.J.—Cooray v. de Zoysa.
College to be a Government College, as almost all the colleges in Ceylonare privately owned. Further, the word Kathikachariya Dura may nothave suggested the idea of a contract under which the respondent waspaid fees by Government. It may have only suggested that it was atitle of honour or that the post was honorary or that it had something todo with elocution or oratory. What the petitioner had to prove wascommon knowledge on the part of the voters of the fact of the contractwith Government on which ground alone the respondent was disqualified.Article 82 (/) requires proof of the notoriety of the facts causing thedisqualification, that is to say, the facts which directly and immediatelycause the disqualification.
In my opinion the evidence falls far short of this proof, for there canbe no doubt that in a place like Ceylon the voters cannot be excepted toreach that high standard of education or intelligence which voters inGreat Britain always exhibit. The petitioner therefore fails on this partof his petition. As each party has partly won in this election inquiry Imake no order as to costs and each party will bear his own costs.
My decision is that the election of the respondent is void on the groundthat he was disqualified at the time of the election under Article 9 (d) andthat the claim of the petitioner to the seat fails and that each party shouldbear his own costs.
Respondent’s election declared void.
Petitioner’s claim dismissed.
COORAY v. DE ZOYSA