H- X. G. PE 1<XAXUO, C'.J.— M'ijcteanlcntt v. Scnanayukt
1971.Present: H. N. G. Fernando, C.J., Silva, S.P.J.,
and Siriraane, J.
H. P. UTJEWAEDENA, Appellant, and DUDLEY S.SENANAYAKE ami G others. Respondents
Election Petition Appeed No. 2 of 1970—Electoral DistrictNo. 130, Dedigamu
Vtirliiimeitlari/ ela tion—Election petition—Allegation oj corrupt practice—accessaryparties—-Allegation of general intimidation—Jtapiircmcnt that the petition musestate the material facts relating to -it—Ceylon (Parliamentary Elections) Orderin Council (Cap. 3S1), as amended by Act No. 0 of 1970, ss. SO A, SO B (c),SO B (d), S3 (1), Bale 15.
The requirement uf section SO A of the Parliamentary Elections Order inCouncil that, in an election petition, the petitioner shall join ns reS|)Ondentevery person against -whom allegations of any corrupt practice arc made in thopetition is mandatory. Failure to comply with it mould render a “ charge”of undue influence liable to be dismissed. In such a caso tho Election Judgehas no power, before tho trial commences, to mid as parties persons who shouldhave been joined in tho petition.
Where general intimidation is alleged in an election petition as a ground for(he avoidance of a Parliamentary election, section SO B (c) of tho ParliamentaryElections Order in Council requires that the petition must state tho materia!facts on which the petitioner relies. The petition must specify at the leasttho nature of the alleged intimidation : whether it consisted of actual violenco,or of threats of violence, or of some oilier kind of intimidation, and when ondwhere such intimidation is alleged to hove occurred. The petitioner cannotbe permitted merely to specify n ground of genera) intimidation with the hopethat ho can substantiate it with evidence subsequently secured.
Election Petition Appeal No. 2 of 1970—Dedigama.
Nimal Senanayake, with Suriya IVickremasivghe, Adda P. Abeyralue,.isola Guna-sekcra and Peter Jayasekent. for the petitioner-appellant.
O.Ranganatltan, Q.C., with Jzzadeen Mohamed, Q.O., P. Naguleswaran,H. D. Tambiah, S. G. Crossettc-Thambiah, K. Kanagarulnam and SartdhDissanayake, for the respondents-respondents.
Cur. adv. lull.
February 26, 1971. H. N. G. Fehxaxdo, C.J.—
This election petition challenged the election of the Respondent at aParliamentary Election on two grounds, one of which was that the corruptpractice of undue influence was committed by an agent of the Respondentor with the knowledge and consent of the Respondent.
1 *—K 3713—2.255(5/71)
H. N. G. FERNANDO, C.J.— Wijcwardena v. Scnanayake
Schedule A to the petition contained a statement that six named personswith others unknown committed the corrupt practice of undue influenceon 2nd May 1970, and also a statement of acts of violence and of threatsalleged to have been done or made by the said persons, which acts andthreats were alleged to have impeded the free exercise of the franchiseof certain named electors.
Section SOA of the Parliamentary Elections Order in Council, asamended in 1970 (Act No. 9 of 1970, s. 30) provides inter alia that a
petitioner shall join as respondent to his election petitionany
person against whom allegations of any corrupt practice are made in thepetition.
The learned Election Judge lias pointed out that allegations of thecorrupt practice of undue influence were made in this petition againstsix named persons, but that none of them were (as required by s. SOA)joined as respondents. He held that the requirement of s. SOA ismandatory, that there is no power to add as parties persons who shouldhave been joined, and that according!)' he had no power to grant relieffor the failure to join the proper persons as Respondents to this petition.
Learned Counsel appearing for the petitioner in this appeal concededthat the petitioner was, by reason of s. SOA, bound to join as respondentsthe six persons named in schedule A to the Election Petition.Nevertheless he argued that the purpose of s. SOA was to. a fford to persons,against whom allegations of corrupt practice are made, the opportunityto defend themselves at the trial of an election petition, and that thispurpose can be achieved by their being joined before the trial commences.
Counsel submitted in this connection that our s. SOA appears to haveadopted from s. S2 of the Indian Representation of the People Act therequirement for the joinder of any person against whom a corrupt practiceis alleged, and that we should apply the decision in Jagan Nath v. JastcaulSingh J, in which the Supreme Court- of India held that a person notjoined in terms of s. S2 of the Indian Act could be so joined beforetrial.
In rejecting this same submission, the learned Election Judge haspointed out that in the Indian case there had been an omission to joinan unsuccessful candidate, whereas in the present case there was anomission to join a person against whom an allegation of a corruptpractice was made in the petition. The point thus made by the learnedJudge merits fuller explanation.
The purpose of joining a person alleged to have committed a corruptpractice is to afford to him a full opportunity to defend himself and toavoid a finding which will involve deprivation of his civic rights. Ifs. SOA is duly observed by'his being joined in the original petition, itfollows that the “charge” against him is laid within 21 days of thepublication of the result of the Election (s. S3 (1) ), and that within 10
'1054 A. I. It., S. C. 211.
H. >T. G. FERNANDO, G.J.— Wijewardena v. Sena nayakc
days tlicrcafter he is served with notice of the ” charge ” (Rule 15).In rliis way-, due compliance wilh s. SOA ensures that such a person knowswithin 31 days of the election that he lias to face the “ charge ”, and isable at an early stage to prepare for his defence. Counsel for the petitionerurged in another connection that the requirements of s. S3 (1) and Rule15 are peremptory and that the Courts have no power to allow any reliefagainst delay in complying with requirements of this nature. But if ajoinder were to be permitted after the lapse of the 31-day period, theCourt would indirectly be affording relief against the failure to complywith these peremptory requirements as to time. Even a Court mustnot do indirectly that which it has no power to do directly.
In the case of Iiajapakse v. Kalhirgnmanathan1 decided in .10G5,Tambiah J. held that the successful candidate must be joined in anelection petition, and dismissed a petition in which he was not so joined.The Legislature, in expressly requiring such joinder by- the new s. SOAenacted in 1970, has endorsed that decision. And when the new s. SOAfurther required the joinder of any person alleged to have committed acorrupt practice, it placed such a person in the sa me position as a successful,candidate. Thus non-compliance with the further requirement mustentail the same consequence of dismissal as does non-compliance withthe requirement to join the successful candidate.
The decision of the Supreme Court of India dealt with a differentsituation, in which the considerations I have discussed may not be ofthe same importance.
Counsel for the petitioner submit ted for our consideration a hypotheticalease in which a petitioner is aware that some person had been an agentof a candidate and had committed a corrupt practice, but is not awareof the name and address of that person. He submitted that in such anevent, the petitioner can satisfy the requirements of s. SO B (d) by settingout particulars of the corrupt practice alleged to have been committedby “ an unknown person”, but fhat if the name becomes known latertlie Election Judge coukl properly join the known person at the laterstage. In Counsel’s submission, there was thus shown to exist aninherent power for the Judge to join a person who had not. been joinedin the petition.
Assuming for present purposes the validity of these submissions,there are many- reasons why they do not assist the petitioner in thisease :—
In the hypothetical case, there is in fact no non-compliance withs. SOA, which requires a petitioner only to join knownpersons—lex non cogit ad impossibilia. Hence even if theJudge can subsequently- join some person when his name andidentity becomes known, the Judge will not be granting reliefagainst a non-compliance with s. SOA.
1 (19G5) 6S N. L. R. 14.
H. N. G. FERNANDO, C.J.—Wtjcwardena v. Senanayakt
In the present case, the names of the persons alleged to have
committed a corrupt practice were known and were stated inthe petition ; even if an Election Judge has inherent power tojoin a new respondent, tiro considerations already discussedwill prevent a Judge from exercising such inherent power wherethere has been a clear default on the petitioner’s part.
A decision that joinder may be allowed in the instant ease in
exercise of inherent power will mean that petitioners arc freeto ignore the clear and simple requirements of s. SOA whichParliament imposed so soon prior to the last General Election.
For these reasons, I agree with the learned trial Judge that the “ charge”of undue influence has to be dismissed.
The other ground on which the election of the respondent was challengedwas stated in the petition as follows :—
“ And your petitioner states that by reason of general intimidationor other circumstances the majority of electors were or may havebeen prevented from electing the candidate whom they preferred. ”
The learned Election Judge has held that tin's statement in paragraph 3of the petition does not satisfy the requirement in s. SOB (c) that thepetition must set out the material facts on which the petitioner relies..In a case in which a petitioner relies on the commission of a corrupt orillegal practice by the successful candidate or his agent, paragraph (d) ofs. SO expressly' specifies the facts which the petitioner must state withregard to the commission of the alleged corrupt or illegal practice. Butthis specification of what are material facts in that class of case docs notin my opinion relieve the petitioner of the duty to Specify material factsin a case in which he seeks to avoid an election on a different ground.For instance, a petitioner cannot merely state that tho successful candidatewas disqualified for election, for such a statement would specify onlythe ground for the avoidance of the election, but not any fact on which herelies to establish that ground ; in this example, if tho material fact is thattlie respondent was at the time of his election a public, officer or agovernment contractor, or was not a citizen of Ceylon, or was the subjectof some disqualifying conviction, s. SOB (c) requires that fact at least tobe stated. So also, in the case of a charge of general intimidation, apetitioner must specify at tho least the nature of the alleged intimidation ;whether it consisted of actual violence, or of threats of violence, or ofsome other kind of intimidation, and when and where such intimidationis alleged to have occurred. A petitioner cannot bo permitted merely to ;specify a ground of general intimidation in an election petition with thehope that he can substantiate it with evidence subsequently secured.
Prior to tho amendment of 1970, the scheme of the Order in Councilwas such that-particulars of a matter alleged in an election petition couldunder Buie 5 of the Rules be furnished on application of tho respondent.There were decisions to tho effect that in view of thi3 rulo, a bare allegation
Samcraicickramti v. Sebastian
e.g., bribery bj' an agent, need Only be made in a petition. I agree withtho trial Judge in this ease that the amendments of 1970, which repealed'Rule 5 and required a concise statement of material facts to be madein tho jxdition, were intended to secure that a respondent will know fromtho petition itself what facts the petitioner proposes to prove in order toavoid the election and will thus have a proper opportunity to prepare forthe trial.
On tins point also, Counsel for the petitioner stressed the fact thattho phraseology of .s. SOB is very similar to that of the correspondingIndian Section, and argued that we should follow Indian decisions. Thoanswer to this argument is that the history of the Indian law on thismatter is different from the history of our Jaw, and. that toajiply Indiandecisions would be to ignore the intention of tho Legislature in .amendingour law in 1970. The term t; material facts ” has a plain meaning in thocontext of requirements relating to pleadings, namely facts material toestablish a party’s case.
No doubt tho petitioner in the instant case has stated a material fact,namely that there was general intimidation ; but there will be manyother material facts which need to be proved before an Election Judgecan hold that there actually had been general intimidation. I agreewith the learned Election Judge that s. SOB (c) requires the petitioner tostate the other material facts in his pet it ion.
For these reasons the appeal is dismissed with costs.
Silva, S-P.J.—I agree.
Sirimaue, J.—I agree.
H. P. WIJEWARDENA, Appellant, and DUDULEY S. SENANAYAKE and 6 others, Respondent