1965Present: Tambiab, J.
P. P. WICKREMASURIYA, Petitioner, and P. H. WILLIAM
DE SILVA, Respondent
Election Petition No. 3 of 1965—Devinuwara
Election petition—Contents and form of petition—Scope of requirement that petitionshould briefly state the facts—Parliamentary Election Petition Rules, 1940,Rules 4 (1) (b), 5—Ceylon (Parliamentary Elections) Order in Council,se. 58 (1) (d), 77, Schedule 3.
A paragraph in an election petition set out the following facts :—“ .. . the
respondent by himself or his agents and/or other persons acting within hisknowledge or consent, made or published before or during the said election,false statements of fact in relation to the personal character or conduct of thepetitioner, for the purpose of affecting his return at the said elec« on.”
Held, that the facts set out in the paragraph were sufficient to comply withthe requirement of Rule 4 (1) (b) of the Parliamentary Election Petition Rules,1946, that in an election petition the petitioner must set out the facts on whichhe relies. Although tho petitioner neither set out the exact statements thatwere alleged to have been made nor gave any detailsr egarding the time andplace and the maimer in which those statements were pul 1 shed, such matterscould be ascertained by the respondent by making an application, under Rule 5,requiring the petitioner to provide further particulars.
ElECTION Petition No. 3 of 1965—Devinuwara.
G. T. Samerawickreme, Q.G., with S. H. Mohamed and S. G. Grossette-Thambiah, for the Petitioner.
A. H. G. de Silva, Q.C., with Colvin R. de Silva, G. G. Mendis, HanattIsmail, Nihal Jayaivickrema and K. Sivanathan, for the Respondent.
Cur. adv. vult.
October 4, 1965. Tambiah, J.—
Mr. A. H. C. de Silva Q.C. who appears for the respondent takes thepreliminary objection that since this petition does not set out the factsas required by Rule 4(1) (b) of the third schedule to the Ceylon (Parlia-mentary Elections) Order in Council (which will hereinafter be referredto as the Order in Council), this action must be dismissed. This ruleenacts as follows :
Rule 4. (1) An election petition shall contain the following
(а)It shall state the right of the petitioner to petition within section
79 of the Order.
(б)It shall state the holding and result of the election and shall
briefly state the facts and grounds relied on to sustain theprayer. ”
Mr. de Silva contended that since the petitioner has failed to set out thefacts on which he relies the action should be dismissed. He contendedthat all that has been set out in paragraph 3 of the petition are thegrounds on which the application is based and that the petition ddesnot set out tne facts.
Paragraph 3 of the petition is as follows :
“3. That the return of the Respondent as member at the saidelection was null and void on the ground of the commission of a corruptpractice within the meaning of section 58 of the Ceylon (ParliamentaryElections) Order in Council, 1946 ; in that the respondent by himselfor his agents and/or other persons acting within his knowledge orconsent, made or published before or during the said election, falsestatements of fact in relation to the personal character or conductof Your Petitioner, for the purpose of affecting his return at the saidelection. ”
Mr. de Silva contended that this paragraph is a mere reproduction ofsection 58 (1) (d) of the Order in Council and that this subsection merelysets out the specific kind of the corrupt practice referred to in section 77of the Order in Council which enables a court to set aside an election.Section 77 of the Order in Council empowers an Election Judge to declarean election void, inter alia, if a corrupt practice is committed by thecandidate or with his knowledge or consent by an Agent of the candidate.A corrupt practice is not however defined, but the various types of corruptpractices are set out in section 58 (1) (d).
On a careful examination of paragraph 3 of the petition I am of theview that not only has the petitioner set out the grounds on which heprays that the election should be set aside but also has set out the facts.The grounds on which he is seeking the election to be set aside is thespecies of corrupt practice set out in section 58(1)(d). Paragraphs inaddition to the ground also sets out clearly the following facts : (a) “ therespondent by himself or his agents and/or other persons acting with hisknowledge and consent, made or published before or during the saidelection certain statements ; (6) these were false statements of fact inrelation to the personal character or conduct of Your Petitioner, for thepurpose of affecting his return at the said election. ” These are clearlyfacts which he has set out in his petition. It is true that he has notfully set out the facts on which he relies. He does not set out the exactstatement that is alleged to have been made nor has he given any detailsregarding the time and place and the manner in which these statementshave been published. These are all matters that can be ascertained byrequiring the petitioner to provide particulars. The question that I haveto consider is whether the election petition should be dismissed on thegrounds relied on by counsel for the petitioner.
Rule 4(1) (b) of the Order in Council is very similar to Rule 2 of theEnglish Parliamentary Election Petition Rules of 1868, which were madeunder the Parliamentary Elections Act of 1868 (31 & 32 Viet. Cap. 125).
In Furness v. Beresford1, a similar objection was taken (vide also 1869Law Reports Court of Common Pleas, Vol. IV, page 150). Paragraph 6of the petition filed in that case was as follows :
“ And your petitioner further says that certain persons voted atthe said election who were guilty of corrupt and illegal practices,illegal payment, illegal employment, and illegal hiring at the saidelection, and that the votes of the said persons are void, and oughtto be struck off the poll.”
The words stated in that petition were far more vague than what has beenstated in this case. On an objection taken by counsel that the petitionbe dismissed, Smith L. J. said : “ According to the practice with regardto election petitions which has existed for many years that paragraphdoes not seem to me to be at all too general. It is common form to setout in a petition, after necessary averments, the reasons on which it isbased, such as bribery, treating or undue influence.”
In the St. George's Division of the Borough of Tower Hamlets Case asimilar objection was over-ruled (vide Election Petitions by O’Malleyand Hardcastle, Case VII, Vol. 5, page 89 at 103).
If the contention of the counsel for the respondent in this case thatall facts must be set out in the election petition is correct, then there isno necessity to ask for particulars as set out in Rule 5, which enacts asfollows :
“ Evidence need not be stated in the petition, but the Judge may,upon application in writing by a respondent, order such particularsas may be necessary to prevent surprise and unnecessary expense, andto ensure a fair and effectual trial upon such terms as to costs andotherwise as may be ordered.”
An election petition is not a suit between parties but is one in whichthe public have an interest. Therefore it cannot be dismissed on meretechnicalities.
In Shillong Case, Kanger v. Ray 2 it was held that “ when particularsare given and thoro is a technical compliance with the requirements ofthe Rule the petition cannot be dismissed because the particulars are notsufficiently specific. The correct procedure is to order further and betterparticulars to be filed.” (vide Elections and Election Petitions by PanditNanak Chand, S. C. Manclianda and Kali Sharan, p. 500).
It is clear from Rule 5 of the third schedule to the Ceylon (ParliamentaryElections) Order in Council that a petitioner need not set out all the factsbut should only give a summary of the facts relied upon. If the respond-ent asks for particulars, this court would consider such an applicationfavourably. But the contention of the respondent that the petitionshould be dismissed is not tenable.
2 1 J. 108.
1 68 Law Times 137.
The counsel for the respondent also submitted that on the avermentsof the petitioner it is not clear as to who has committed the acts allegedin paragraph 3 of the petition, and therefore the petition should bedismissed. Similar words have been used in the petition filed in Tilleke-uxirdena v. Obeyesekere1. In that case the petitioner sought to have theelection of the successful candidate, the respondent, declared void on theground of bribery, treating and payment for conveyance of voters. Theseoffences were said to have been done by himself or with his knowledge orwith his consent or by an agent of his. Drieberg J. Said “ I take it thatthis means that the offences were in some cases committed by himself,in some by his agents and, in some cases by others with his knowledge orconsent ”. The petition in this case is similarly worded. It alleges thateither the respondent committed these acts or his agents or other personsacting with the respondent’s knowledge or consent made or publishedthe false statements referred to in paragraph 3 of the petition.
I therefore hold that the requirements of Rule 4 (1) (b) of the thirdschedule to the Ceylon (Parliamentary Elections) Order in Council, 1946,have been complied with. If the respondent requires further particularshe is entitled to make his application which will be considered on itsmerits. I over-rule the objection and set the case for trial.
The costs will abide the event.
Preliminary objection overruled.
P. P. WICKREMASURIYA, Petitioner, and P. H. WILLIAM DE SILVA, Respondent