Mondis «. Jayosuriya.
1931Present: Macdonell C.J., Garvin S.P.J., Drleberg and Akbar JJ.In thk Matter of the Election for the Gam pa ha DivisionElectorate.
MENDIS v. JAYASXJRIYA.
Election, petition—Originalsecurity for costs—Cashor recognisance—English
loir—Election (Staff Council ) Order in Council. 1931, rules 12, 13, 14,1'J, 21, and 41
Id on election petition the original security for payment of costs for thefirst three charges shallbegivenbyrecognizance withsureties not
exceeding four in numberorby depositof money in manner prescribed
in rules 13 and 14 or partly in one way and partly in the other.
Whore objection is taken to original security it may be determinedunder rule 19, the termsofwhichareidentical with thecorresponding
section of the English Actof1868,evenif the language ofthe rule be
considered to apply *.o the cast* of additional security only.
HIS was -a mutter referred by Akbar J. to a Bench of four Judgesregarding the interpretation of certain rules under the Ceylon
(State Council Elections) Order in Council, 1931, as to whether underrule 12 (2) the original security for respondent’s costs in an election petitionin the sum of Rs. 5,000 means a deposit of cash or whether it couldbe given in any other form.
Soertsz, for respondent, objector.—In rule 12 (2) the words “shall be givenrefer only to cases where there are additional charges. In respect of thefirst three charges, security must- be by cash. “ Not less than Rs. 5,000 ”means “ in a sum of Rs. 5,000.” No other manner is indicated, therefore■security must be by cash. Though words suggest that security may bein any form, yet in view of second part of rule 12 (2) it is clear that, inrespect of the Rs. 5,000, cash must be deposited because an option is givenonly where there are more than three charges. Only two forms of securityare contemplated, cash and recognizance. There has been a deliberatechange in the law by the Order in Council of 1931, in relation to- rule12 of the Order in Council of 1924. There is no provision made fortesting the security in respect of the first three charges, because therewould be no practical difficulty where security is by a cash deposit.Absence of such provision supports my argument.
H. V. Perera (with Gratiaen), for petitioner.—If the Legislature’s intentionwas that security for the first three charges should be by cash, it could havesaid so. That no provision is made for testing any security other thana recognizance may be due to an omission. Court has an inherent powerto test any security in the ordinary way, and if it finds security isinsufficient, petition may be dismissed under rule 12 (3). If the rule ofconstruction that the punctuation does not form part of a statute is appliedhere all difficulties disappear. Regard the words “ if the number ” to
Maxwell, Interpretation of Statutes, 6 ed„ 75, 7$, (Devonshire v. Cannon) (1890) 24
Q.B. D. 468 at 478. 19 N. L. R. 483 at 488.
Delivered by MACDONELL C.J.—Mendis v. Jayasuriya.
“ in excess of the first three ” in rule 12 as a parenthesis. In the oldrule, security might have been given either by recognizance or by a cashdeposit. Eule 12 (2) only provides a sliding scale, and does not alter theform of security to be given. Buie 19 contemplates possibility of allsecurity being given by recognizance. Words “ not less than ” in rule 12
are appropriate to a security t-6 cover an obligation not to a depositof cash. No provision for testing original security, but that does not meanit should be by cash. If two constructions are possible, Court shouldincline towards* interpretation less onerous to petitioner. Form ofsecurity is immaterial, what is material is that it should be good andreal security for Es. 5,000. Security includes every document ortransaction by which recovery of money is secured. (Wood Benton'sEncyclopaedia of Laws of England, Vol. 13,208.) Also vide Order 15,Eule 58, 44 deposit or other security
M. D. de Silva, D. S.-G., for Attomej'-General.—This Order in Councilfollows the old one on all points except rule 12. Eule 12 (8) does not occurin English Acts or English rules. Objections under English Act may beclassified into (1) objections under section 8 of the Parliamentary ElectionsAct, 1868 (corresponding to rule 19 of our Order in Council), (2) other-objections. Provision is made in section 9 for dealing with objectionsunder section 8. No provision for. dealing with other objections. InGobbet v. Hibbert Willes J. recognized that this was an omission in Englishlaw, and held that the objection should be made within a reasonable time..Peas v. Norwood 2 makes it clear that section 9 of the English Act appliesonly to objections of sufficiency under section 8. Our rules 21-24 areparts-of section 9 of English Act, i.e., rule 24 will not apply to other-objections. Buies 18-24 form branch of rules standing by themselves,to that extent they supersede rule 12 (3) which applies only to residualobjections, i.e., other than sufficiency ….
44 To an amount of ” in rule 12 (2) defines only extent, not nature of secu-rity. T.o interpret rule 12 (2) by ignoring punctuation'would be to do violenceto language. Taking rule by itself, does not call for insertion of brackets.Where no special provision is made in law, security should be given by areasonable method. Ordinary – method is hypothecation of property.But then petitioner cannot avail himself of rules 18-24. It must beregarded as casus omissus. That it is an omission follows clearly fromthe fact that provision is made for testing the security in respect of theadditional charges …. Article 88 of Order in Council applies.
Soertsz, in reply.—Article 83 (4) really refers to casus omissus iri respectof procedure. . This is not a question of procedure. '
October 20,1931. The judgment of the Court was delivered by
Macdonbl C.J. as follows: —
This matter has been referred by Mr. Justice Akbar to a Full Bench offour Judges in the following terms: —
“ Whereas a doubt has arisen with regard to the interpretation ofrules 12, 13, 14, 19, 21, and 41 of the Election (Slate Council Elections)1 <2$49) 19 L. T. 501.* [1869) L. R. 4, C. P. 235.
Delivered by MACDONELL C.J.—Mendis vs. Jayasuriya.
Order .in Council, 1931, and whether the words in rule 12 (2) 1 Thesecurity shall be to an amount of not less than five thousand rupees mean a deposit of cash or whether it could be given in any other form.
” I hereby in pursuance of the powers conferred on me by section 52of the Courts Ordinance, No. 1 of 1889, reserve these questions forargument before a Bench of Four Judges of this Court/’
The most important of the rules mentioned in the above reference is- rule 12, which reads as follows:—
“ 12.(1) At the time of the presentation of the petition, or within
three days afterwards, security for the payment of all costs, charges,and expenses that may become payable by the petitioner shall be givenon behalf of the petitioner.
“ (2) The security shall be to an amount of not less than five thousandrupees. If the number of chargee in any petition shall exceed three,additional security to an amount of two thousand rupees shall be given inrespect of each charge in excess of the first three and shall be given eitherby recognizance in the form in rule 16 set forth, with two sureties, orby a deposit of money, or partly in one way and partly in the other.
" (3) If security as in this rule provided is not given by the petitioner,no further proceedings shall be had on the petition, and the respondentmay apply to the Judge for an order directing the dismissal of thepetition and for the payment of the lespondent's costs.”
Save for the portions in italics, this rule is textually the same as rule 12in “ The Election (Legislative Council) Petition Buies, 1924,” made under” The Ceylon (Legislative Council) Order in Council, 1923- ”, Buies 13 to24 again are textually identical with rules 13 to 24 of ” The Election(Legislative Council) Petition Buies, 1924 ”, save for necessary altera-tions e.g.t ” State Council ” for ” Legislative Council and arethemselves derived from the Parliamentary Elections Act, 1868 and therules made thereunder.
Hitherto, then, the sole security required of a petitioner on an electionpetition was one to an amount of five thousand rupees and could be giveneither by recognizance, or by deposit of money, or partly in one way andpartly in the other. The present rule 12 has introduced a new require- *ment, viz., additional security where the petition contains charges inexcess of three, a requirement not occurring in the rules of 1924, nor in theEnglish Statutes and rules of 1868 from which'they were derived. Thesecond sentence of rule 12 (2) makes it clear that- the additional securityof two thousand rupees, that is required on each charge in excess of the■first three, may be by recognizance or by deposit of money or partly inone way and partly in the other, but the first sentence of that rule 12 (2)does not say how the security for the five thousand rupees required onthe first three charges is to be given, and this is the point which we haveto decide.
It was argued to us for the respondent that .the security to an amountnot less than five thousand rupees—the security on the first three charges,that is—must be in cash. It was argued for the petitioner that whether
* 37 £ 32 Viet, c. 125.
IMDelivered by MACDOMKDL C.J .—Meudis v. Jayasiiriya.
we took account of the punctuation of rule 12 (2) or not, it could be readas allowing security on the first three charges to be given either byrecognizance, or in cash, or partly in one way and partly in theother.
Mr. de Silva, appearing for the Attornev-General, argued for aninterpretation of this rule on the following lines. He first pointed outthat special provisions in regard to a special class of objection wouldsupersede any general provisions thereon, and that while rule 22 appliedonly to objection as to the sufficiency of a security given, a special objec-tion, rule 12 (3) was wide enough to apply to objections other than theSufficiency of the security given. He pointed out further that rule 12 (3)was a provision not to be found in the English enactments, either Act orrules, on the matter but contended that the law would be the samewithout it, in view of the imperative requirement in rule 12 (1) as to givingsecurity within three days of the presentation of the petition. Now wehad had an amendment of the law, the italicized portions of rule 12 (2);did that rule 12 (2), as now worded, make express provision as to howwhat one might call the original security—that on the first three charges—must be given ? It would, appear not. " To an amount of not less thanfive thousand rupees", these words showed the extent of the securityrequired but not its nature. There was express provision .how additionalsecurity was to be given, and in this connection he drew attention to the-words “ additional security .to an amount of two thousand rupees ” ascontrasted with the provision in the first sentence of rule 12 .(2) that theoriginal security must be to an amount of not less than five thousandrupees. He concluded then that rule 12 (2) did not contain any expressprovision as. to how security on the first three charges was to be given.Did rule 12 (2) say by implication how such original security was to begiven ? No authority had been cited to show that the security mentionedip the first sentence of the rule must be by deposit of money. Then, itcould be argued that, in the absence of any express provision, it could beimplied that security was to given in any reasonable, i.e., usual, method.What was the usual method of giving security ? Hypothecation ofimmovables would be the usual method rather than the deposit of money.But if it were held that rule 12 (2) impliedly stated that the method ofgiving the original security, that referred to in the first sentence, must bereasonable, i.e., usual, and so by hypothecation of immovables, then theperson so giving security would gain no advantage from the only rules,that is rules 18 to 24, which provided a procedure for determining theadequacy or otherwise of security given, since they referred to the adequacyor otherwise of security by recognizance only but made no mention ofsecurity by hypothecation and consequently provided no procedure fordeciding upon the adequacy or otherwise of security by hypothecation.Therefore a person giving security by hypothecation of immovables, towhich security objection had been taken, would not find in the rules anyprocedure available for determining that question. He argued • furtherthat the test of reasonableness was apt to make for indefiniteness, and saidthat he Was driven to regard this as casus omissus, something which thedraftsman of these rules had not provided for. But, if so, section 83 (4)
Delivered by MACDONELL C.J.—Mendis v. Jayaauriya.
of the Ceylon (State Council Elections) Order in Council, 1931, providedm terms for the difficulty. This section 83 (4) reads as follows: —
“ 83. (4) If any matter of procedure or practice on an electionpetition shall arise which is not provided for by this order or by suchrules, the procedure or practice followed in England on the same mattershall, so far as it is not inconsistent with this order or any such rules andis suitable for application to the Island, be followed and shall haveeffect.”
It would be necessary then to apply the English rule on the point audthis is to be found in section 6 (5) of the Parliamentaiy ElectionsAct, 1868.
” 6.(5) The security …. shall be given either by recog-
nizance .to be entered into by any number of sureties not exceedingfour, or by a deposit of money in manner prescribed, or partly in oneway and partly in the other.”
We are inclined to adopt the argument of Mr. de Silva and we hold,accordingly, that this is casus omissus as to which, in accordance withsection 83 (4) just quoted, the English law must be applied, consequentlythat it will be sufficient if the original security on an election petition begiven either by recognizance with sureties not exceeding four in number,or by deposit of money in the manner prescribed in rules 13 and 14, orpartly in one way and partly in the other.
The application of this provision of English law to the Original securitywill not interfere with those provisions for the additional security con-tained in rules 12 (2), .13, 16, 17, and 18, for they provide definitely thaton an additional security being given the sureties must be two in numberIt has been ruled in this Court that a recognizance must be signed by thepetitioner as well as by the sureties. We think that this requirementshould be enforced with regard to a recognizance on an original security.That the principal must sign is the general rule, and its application tosecurity given on an original election petition under rule 12 (2) will not,we apprehend, contravene the direction given in the Order in Council,section 83 (4), since the requirement of signing, being the general rule heie,is one "suitable for application to the Island”, while a contrary rule,namely, that signing should not be required, would be unsuitable or at leastless suitable.
If objection be taken by the opposing party to the sufficiency of anyoriginal security offered, then this objection can be determined underrule 19, if it be held that that rule is in its wording wide enough to applynot merely to security offered on additional charges bujb also to securityoffered on an original charge. If however it be considered that theWording of rule 19 is only wide enough to cover the case ■ of additionalsecurity, then the sufficiency of an original security can be determined byapplying English law, namely, the Act of 1868, section 8, which is to thesame effect as and in almost identical terms with rule 19.
MENDIS v. JAYASURIYA