SWAJST J.—Abeywardene v. Dharmapala
1953Present: Swan J.
M. J. ABEYWARDENE, Petitioner, and C. A. DHARMAPALA,
Election Petition No. 19 of 1952, Nakmana
Election Petition—Status of petitioner to present petition—Burden of proof—EvidenceOrdinance, s. 103—Ceylon (Parliamentary Elections) Order in Council, 1946,s. 79.
In an election petition it ia incumbent on the petitioner to lead evidence toprove his qualification to present the petition voider section 79 of theParliamentary Elections Order in Council.
Objection by the respondent that the petitioner’s status has not been provedmay be raised by him at the close of the petitioner’s case.
'OrDER made in the course of the trial of Election Petition, Hakmana.
N. Nadarasa, with S. P. Amarasingham, Izzadeen Mohamed and A-Ji. Premadasa, for the petitioner.
E. G. Wikramanayake, Q.C., "with G. E. Chitty, It. A. Kannangara andA. S. Vanigasooriyar, for the respondent-
Cur. adv. vult.
September 25, 1953. Swan J.—
At the close of the petitioner’s case Mr. Wikramanayake appearingfor the respondent drew my attention and the attention of petitioner’scounsel to the fact that there was no proof that the petitioner had anystatus to file the election petition. He said that he did not want to take thepetitioner’s counsel by surprise but would be moving to have the petitiondismissed if no evidence was led regarding the status of the petitioner.Mr. Nadarasa then said that he would recall Dr. Wickremasinghe toprove that the petitioner was aperson who hadaright to voteat the electionand did in fact exercise that right. I pointed out to Mr. Nadarasa thatthe evidence of Dr. Wickremasinghe would not be enough because it wasnot possible for him to say that the petitioner had actually voted,nor could he identify the petitioner as the person whose name appearedin the Electoral Register as M. J. Abeywardene. Thereupon Mr. Nada-rasa stated that he would be calling evidence on the following day inorder to satisfy me that the petitioner had the necessary status.
On the following day, however, he took up the position that it was notincumbent on the petitioner to prove either that he voted or was entitledto vote at the election because the burden was on the respondent toestablish that the petitioner was not qualified to file the petition. Hesubmitted further that the objection raised by counsel for the respondentcame too latfe. On this point he contended that the law and practice inEngland was that an objection of this nature should be taken by way of asubstantive motion and before the trial.
SWAN J.— A.beywardene v. Dharmapala
I shall deal with this point first before I consider the question of theburden of proof. I do not think, as Mr. Nadarasa argued, that a sub-stantive motion must necessarily be a motion in writing. In my opiniona substantive motion is one of real importance. I am unable to agreewith Mr. Nadarasa that it must be taken in limine before the trial and ifnot so taken must be deemed to have been waived. In East Cork 6 O’M.& H. 361 the objection that the petitioner’s status had not been provedwas taken at the close of the whole ease so that the petitioner had noopportunity to meet it. It was therefore properly overruled. I considerthe application of Mr. Wikramanayake made at the close ofthe petitioner’s case to have the petition dismissed unless evidence was ledto prove the petitioner’s qualification to file the petition to be a substantivemotion and that it has not' been made so late as to entitle me to reject it.
It should be noted that*at the initial stages of the case the petitionerattended court almost everyday and at no stage was it indicated bySir. Nadarasa that he was not going to call the petitioner. On the otherhand I have a faint recollection that he stated that certain points indispute would be clarified and proved when the petitioner gave evidence.However that may be there was absolutely no indication that thepetitioner woulci not be called until his case was closed. I do not thinkit can be said that Mr. Wikramanayake did anything improper when at theclose of the petitioner’s case he drew everybody’s attention to the factthat an element in the ease had not been established. He could not haveknown till then that the petitioner was not giving evidence.
At this stage Mr. Nadarasa seemed to agree that he would have tolead evidence to establish that the petitioner was entitled to file the petition.In fact I adjourned Court much earlier than usual in order to giveMr. Nadarasa an opportunity to lead such evidence. On the followingday, however, he took up an entirely different position. He submittedthat it was not for him to establish that the petitioner had the requisitestatus but that it was for the respondent to prove that the petitioner hadnot that status. This appeared to be a startling proposition but it wasargued at length and very earnestly by counsel for the petitioner. Hereferred me to certain passages in Rogers on Elections Vol. 2 at pp. 164and 215 and 216 and in Nanakchand on The Law of Elections & ElectionProceedings at pp. 481—483.
A cursory reading of these passages might give the reader the idea thatthe law in England and the law in India is that there is a presumptionthat a man who files an election petition is qualified so to do, and if hisstatus is challenged it is for the respondent to prove that he is disqualified. I
I shall first deal with the reference to Nanakchand. There can be nodoubt that the learned author is merely stating the law as set out byRogers. It will be observed that the ease to which he refers in supportof his dictum that “ the burden of proof rests on the respondent to show thatthe petitioner is not qualified, to present a petition ” is the identical case citedby Rogers, namely Walsall (1892) Hay’s Election Cases 1. There is noreference to any Indian authority where it has been held that there is a
Ohelvanayakam v. Natesan
presumption in favour of the petitioner of his status to file and maintaina petition and that the burden is on the respondent to1 rebut thatpresumption.
Unfortunately the report of the case cited by Rogers and Nanakchandis not available here, but reading the passages to which I have beenreferred I do not think I can be persuaded that there is any presumptionin favour of the petitioner and that the burden is on the respondent to-prove that the petitioner has not the necessary status to file the petition.
There may be occasions where the burden might shift to the respondentto prove that the petitioner is disqualified. If, for instance, the petitionergave evidence and said that he had voted and pointed to the fact thathis name appeared on the Electoral Register as a duly qualified voter,and the respondent challenged his status, or contended that he was dis-qualified, or that he was not the person who was duly registered althoughhis name appeared on the Electoral Register but that the person registeredwas somebody else residing in the same village and bearing the same name,then the burden would be on the respondent to prove the facts he alleges –
In my opinion the question of the burden of proof is governed by theEvidence Ordinance and I do not think that the law, practi ce or procedurein England in Election cases is different. Section 103 provides that “ theburden of proof as to any particular fact lies on the person who wishes thecourt to believe in its existence, unless it is provided by any law that the proofof that fact shall lie on any particular person It is an elementary princi-ple of law that every fact that is not admitted must be proved bythe person who asserts that fact. In this case I can find no admission,direct or indirect, on the part of the respondent that the petitioner eithervoted at the election or had the right to vote. It is thus incumbent on.the petitioner to satisfy me that he had the right to file this election peti-tion under Section 79 of the Order in Council. I therefore call upon.Mr. Nadarasa to lead evidence on this point.
Objection raised by respondent upheld.
M. J. ABEYWARDENE, Petitioner, and C. A DHARMAPALA, Respondent