LORD GODDARD—Goonesinha and The Honourable 0. L. de Kretser. 107
[In the Privy Council]
1955 Present: Lord Russell of Klllowen, Lord Wright, Lord Goddard,
Sir Madhaven Nair, Sir John Beaumont.
GOONESINHA, Appellant, and THE HONOURABLE O. L. DEKRETSER, Respondent
In the Matter of an Application for a Writ of Certiorari.
Election Court—Extension of Jurisdiction of Supreme Court—Power of SupremeCourt to issue writ of Certiorari to Election Court—Courts Ordinance,s. 42.
Cognisance of election petitions is an extension of or addition to theordinary jurisdiction of the Supreme Court and a writ of certiorari cannotbe granted to bring up any order made in the exercise of that jurisdiction.
PPEAL from a judgment of the Supreme Court by Special leave toappeal to His Majesty in Council.
Cur. adv. vvlt.
December 20, 1944. Lord Goddard.—
On April 26, 1941, a by-election was held for the return of a memberof the Ceylon State Council for the Electorate of Colombo North. Thesuccessful candidate was a Mr. de Silva, and the present appellant, whotakes an active part in political and municipal affairs in Colombo, was oneof his prominent supporters. Subsequently, a petition was presented to
308 LORD GODDARD—Goonesinha and The Honourable O. h. de KreUer.
the Supreme Court of Ceylon, under the Ceylon (State Council Elections)Order in Council, 1931, asking that the election might be declared voidand alleging general intimidation, treating, and undue influence. In twoinstances undue influence on electors to cause them to vote for Mr. de Silvawas alleged to have been exercised by the appellant, and in his judgmentwhich was delivered on December 22, 1941, the Election Judge, whois the present respondent, found both these charges proved. The learnedJudge thereupon ordered that notice should at once be given to theappellant in terms of Article 79 (2) of the Order in Council to show causewhy he should not be reported to His Excellency the Governor as havingbeen guilty of a corrupt practice. The offence of undue influence, asdefined by Article 53 of the Order in Council is by Article 55 declared tobe a corrupt practice. The combined effect of Article 55 (1) and Article 79
is that a person reported for a corrupt practice is rendered incapableof voting or being elected to the State Council for a period of seven years.The notice given to the appellant to show cause referred to only one of thecases found proved against him. On appearing to show cause the appel-lant, who had given evidence on the trial of the petition, desired to callnine witnesses, whose names he had previously given, with the object ofproving that he was not guilty of the offence specified in the noticewhich the Election Judge had found proved.,. The learned Judge refusedto hear these witnesses, on the ground that he could not be asked to reversethe findings which he had already made on the trial of the petition.He held that as by Article 78 of the Order in Council his determinationas to the validity of the election was final it followed that his findingthat a person had committed a corrupt or illegal practice must necessarilybe final also, and he reported the appellant. The appellant then moved theSupreme Court for a mandate in the nature of a writ of certiori to bringup what was called the Order by which he was reported, though it wouldperhaps be more accurate to call it simply the report, and have it quashed.On June 1, 1942, the Chief Justice of Ceylon delivered judgment refusingto issue the mandate, holding that the Election Court in Ceylon was aSuperior Court to which no writ in the nature of certiorari would lie.Against his refusal the Supreme Court gave the appellant leave to appealto His Majesty in Council.
Their Lordships are of opinion that the judgment of the learned ChiefJustice in plainly right. By Article 75 of the Order in Council every electionpetition is to be tried by the Chief Justice or a Judge of the Supreme Courtnominated by him, and the Chief Justice or the nominated Judge arereferred to in the Order as the Election Judge. By clause 5 of this Articleit is provided that unless otherwise ordered by the Chief Justice all inter-locutory matters in connection with a petition may be dealt with anddecided by any Judge of the Supreme Court. Article 76 provides that anelection petition may be presented to the Supreme Court by one or moreof certain classes of persons. These two sections alone would appear toshow quite clearly that an election petition is a proceeding in the SupremeCourt, and a reference to the rules of procedure which are enacted in theSixth Schedule to the Order confirms, if confirmation were necessary, thisview. Buie 4 gives the form a petition is to take and its heading is"In the Supreme Court of Ceylon’’. Buie 29 deals with the withdrawal
Aailin Kona and Peter Prrera.
of a petition which cannot be done without the leave of the Judge, that isthe Election Judge. Sab-Rule 2 of this Rule prescribes the.affidavits whichare to be filed on such an application, but provides that a Judge of theSupreme Court, and not only the Election Judge, may on special groundsdispense with the affidavit of any particular person. Again Rule 37 pro-vides that the petition is not to abate because a respondent dies, resigns,or gives notice to the Court that he does not intend to oppose the petition,and provision is made as to how and when notice is to be given to theCourt. While the Ordinance constituting the Supreme Court does notconfer upon it original, but only appellate jurisdiction in civil cases, theirLordships are of opinion that cognisance of election petitions is a specialjurisdiction conferred upon the Supreme Court by the Order in Counoil,and that is abundantly clear from the provisions to which they havereferred. It is well settled, and Counsel did not seek to argue to thecontrary, that a Court having jurisdiction to issue a writ of certiorariwill not and cannot issue it to bring up an order .made by a Judge ofthat Court. Nor will a Superior Court issue the writ directed to anotherSuperior Court—Reg v. Justices of the Central Criminal Court1, andif the Election Judge is to be regarded as a special or independenttribunal his court would, in their Lordships’ opinion, be a Superior Court.Considering that the Court is held before a Judge of the Supreme Courtfrom whose decision there is no -appeal, it could not be otherwise. Buttheir Lordships are of opinion that the true view is that cognisance ofthese petitions is an extension of, or addition to, the ordinary jurisdiction ofthe Supreme Court and consequently certiorari cannot be granted to bringup any order made in the exercise of that jurisdiction. As the appellant'smotion was rightly rejected it is unnecessary to consider the other mattersraised in the appeal and their Lordships will humbly advise His Majestythat it should be dismissed with costs.
GOONESINHA, Appellant, and THE HONOURABLE O. L. DE KRETSER, Respondent