A. R. M. THASSIM, Petitioner, and W. T. WIJEKULASURIYA et al., Respondents

018-NLR-NLR-V-55-A.-R.-M.-THASSIM-Petitioner-and-W.-T.-WIJEKULASURIYA-et-al.-Respondents.pdf

Thassim v. Wijekulasuriya
59
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Present: Gunasekara J.It. M. THASSIM, Petitioner, and W. T. WIJEKULASURIYAet al., RespondentsS. 'C. 21—In the Matter oe an Application eor a Writ op QuoWarranto on (1) W. T. Wijekulasuriya, and (2) A. V.Chinniah, Commissioner, Municipal Council, Galle.
S. C. 24—In the Matter op an Application por a Writ op Mandamuson (1) A. V. Chinniah, Commissioner, Municipal Council,Galle, and (2) W. T. Wijekulasuriya.
Quo warranto—Local Authority—Municipal Council—Procedure for election of Mayor—Irregularity—Acquiescence—Estoppel—MunicipalCouncils Ordinance,
No. 29 of 1947, as amended by Local Authorities (Election of Officials) Act,No. 39 of 1951—Section 14 (4).—“ Candidate
A member of a local authority is estopped; from coming forward as a relatorto impeach a title conferred by an election in which he has concurred oracquiesced. Where, therefore, in the election of the Mayor of a Municipal Council,the provisions of section 14 (4) of the Municipal Councils Ordinance, 3STo. 29 of1947, as amended by the Local Authorities (Election of Officials) Act, No. 39of 1951, which prescribe the procedure, have been infringed, a Councillor whoparticipated in the irregularity is not entitled, by way of an application for awrit of quo warranto, to impeach the title of the person who was elected Mayor.In such a case, the Councillor cannot plead ignorance of the law as an excuse.
The word “ candidate ” in section 14 (4) of the Municipal Councils Ordinancemeans no more than a Councillor who has consented to his name being proposed,and seconded for election.
(1953) 54 N. L. R. 431.
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GTJNASEKARA J.—Thassim v. Wijekulasuriya f
Applications for mandates in the nature of a writ of quo warrantoand a writ of mandamus against the Mayor of the Galle Municipal Counciland the Municipal Commissioner.
H. V. Perera, Q.C., with E. B. Wilcramanayake, Q.G., Sir UkwatteJayasundera, Q.G., S. Nadesan, M. H. A. Azeez, H. W. Jayewardene andG. T. Samarawickreme, for the petitioner.
N. E. Weerasooria, Q.C., with S. J. V. Chelvanayakam, Q.G., G. S. B.Kumarakulasinghe, Vernon Wijetunge, Izadeen Mohamed and A. S.Vanigasooriyar, for the 1st respondent in S. C. No. 21 and 2nd respondentin S. C. No. 24.
G. E. Ghitty, with P. Somatilakam, S. Sharvananda and Joseph St.George, for the 2nd respondent in S. C. No. 21 and 1st respondent inS. C. No. 24.
Cur. adv. vult.
March 18, 1952. Gunaskkaba J.—
These two applications for mandates in the nature of a writ of quowarranto and a writ of mandamus respectively were heard together. Ishall deal first with Application No. 21, which is the application fora writ of quo warranto.
The petitioner and the first respondent were candidates for election asMayor of the Galle Municipal Council at a meeting that was held on theloth January, and the other respondent, who is the Municipal Com-missioner, was the Chairman of that meeting. All the Councillors,fifteen in number, were present, and after certain proceedings had beentaken for the election of a Mayor, the Commissioner declared the firstrespondent elected, upon the footing that he had received eight votesand the petitioner the other seven. In due course the first respondenttook the chair and the petitioner made a magnanimous speech congratu-lating him on his election and assuring him of his fullest co-operationin the execution of his duties as Mayor. He then consulted his lawyersand filed the present application for the purpose of having the firstrespondent’s election declared null and void and having himself declaredelected as the Mayor.
The procedure for an election is prescribed by section 14 of the MunicipalCouncils Ordinance, No. 29 of 1947, as amended by the Local Authorities(Election of Officials) Act, No. 39 of 1951. Sub-section (3) provides thatthe name of any Councillor may with his consent be( proposed andseconded for election as Mayor by any other Councillor present at themeeting and the Councillors present shall thereupon elect, in accordancewith the provisions of sub-section (4), a Mayor from among the Council-lors proposed and seconded for election. At the meeting in (Question thenames of three Councillors—the petitioner, the first respondent, andE. D. Nagahawatte—were proposed and seconded for election. The
| GUNASEEARA J.—Thassim v. Wijehulasuriya SI
Councillors then determined, under paragraph (6) of sub-section (4),
that the mode of election should be by open voting. Thereupon theCommissioner purported to take the votes in the manner provided byparagraph (c), ■which reads as follows :
“ Where it is determined under paragraph {b) that the election of hMayor or a Deputy Mayor shall be by open voting, the Commissioner 'shall take the votes by calling the name of each Councillor present andasking bim how he desires to vote and recording the votes accordingly.A Councillor may state that he declines to vote, and in such case theCommissioner shall record that such Councillor declined to vote.
The Commissioner shall declare the result of the voting. ”
The Councillor whose name was the first to be called voted for the firstrespondent. The next two declined to vote. At that stage, accordingto the “ voting sheet ” comprising the record made by the Commissionerafc the time, E. D. Nagahawatta ‘ “ withdrew ”. The Commissionerrecorded this “ withdrawal ” and continued with the taking of the votes.In the result seven of the Councillors voted for the petitioner and six forthe first respondent, and two declined to vote.
It is contended for the petitioner that that was a valid voting and thathaving received more votes than the aggregate of the votes received bythe first respondent and Nagahawatta he was duly elected Mayor inaccordance with the provisions of paragraph (e) of sub-section (4). Theterms of this paragraph are as follow:
“ "Where more than two candidates are proposed and seconded forelection as Mayor or Deputy Mayor and no candidate receives at thefirst voting more votes than the aggregate of the votes received bythe remaining candidates, one candidate shall be excluded from theelection as hereinafter provided and the voting shall proceed, onecandidate being excluded from the election after each subsequentvoting, until a candidate receives at a voting more votes than theaggregate of the votes received by the remaining candidates at thatvoting, or, as the case may be, until voting in respect of two candidatesonly is held and completed. ”
Paragraph (/) provides for the exclusion of the candidate receiving thelowest number of votes or one such candidate selected by lot.
After the voting to which I have just referred, the Commissionerpurported to hold a second voting. On this occasion all the Councillorsgave their votes, including the two who declined at the first voting andalso the petitioner himself. Eight voted for the first respondent andseven for the petitioner, and the Commissioner declared the formerelected Mayor. It is contended for the petitioner that this second votingand the purported election of the first respondent were a nullity and thatat the end of the first voting it was the Commissioner’s duty to declarethe petitioner elected.
In an affidavit dated the 16th February the second respondent hasgiven his account of the circumstances in which he decided to hold thesecond voting. When two of the Councillors declined to vote, he says,
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GTJUASEKARA J.—Thas&vm v. WijekulasuriyaI
Nagahawatta “ stated that he did not wish to stand for election andwithdrew from the election and requested the Councillors supporting himto vote for W. T. Wijekulasuriya, the first respondent ”, and he thereupon“ recorded in the voting sheet that E. D. Nagahawatta stated that hewithdrew from the election ”, and he “ proceeded to register the votingof the rest of the Councillors”. The result of this voting, he continues,was that the petitioner received seven votes, the first respondent six andNagahawatta none, and he “ announced the result of this voting to theCouncillors”. As, however, Nagahawatta “ had declared his unwillingnessto stand for election after three Councillors had exercised their rights atthe voting ” he thought that his proceeding to take the votes of the restof the Councillors was “ unfair and irregular ”, and he, therefore, “ withoutdeclaring the petitioner Mayor requested the Councillors to vote betweenthe first respondent and the petitioner who were now the only candidates”.He proceeds to say that he would not have taken this step if either ofthese two candidates had received at least eight votes on the firstoccasion, because then “ whichever way the two votes of those whooriginally declined to vote were cast it could not have affected the result”.
Much the same account appears in the minutes of the meeting signed bythe second respondent as Municipal Commissioner. Having stated thatthe result of the voting was that the petitioner received seven votes, thefirst respondent six, and Nagahawatta none, and that two Councillorsdeclined to vote, the minutes continue :
“ As neither of the two candidates obtained a minimum of eightvotes and as Mr. E. D. Nagahawatta had declined to stand for electionafter a section of the House had already voted, the Municipal Com-missioner proceeded to obtain a fresh voting between Messrs. Thassimand Wijekulasuriya. ”
The first respondent’s affidavit adds nothing to what has been statedby the second on this point. The petitioner’s account is contained in thefollowing paragraphs of his affidavit of the 20th January :
“ 4. At the first voting I obtained seven votes, the 1st respondentsix votes and E. D. Nagahawatta no votes. I having thus receivedmore votes than the aggregate of the votes received by the remainingcandidates was in terms of section 14 of the Municipal Council Ordi-nance, No. 29 of 1947, as amended by the Local Authorities (Electionof Officials) Act, No. 39 of 1951 duly elected Mayor.
5. The second respondent without declaring the result of thevoting to be as set out in the last preceding paragraph held furtherproceedings without any warrant or justification in law by purportingto have a second voting after excluding the said E. 3). Nagahawattafrom the election and thereafter purported to declare the 1st respondentduly elected Mayor for 1952. I was not then aware that the saidfurther proceedings were void. ”
This account suggests that the procedure followed was that prescribed,not for such a case as this, but for a case where more than two candidatesare proposed and seconded for election and no candidate receives at the
GTJNASEKARA J.—Thassim v. Wijekulasuriya65
first voting more votes than the aggregate of the votes received by theremaining candidates. That this was the procedure which the Com-missioner regarded himself as adopting is made clear by a document thathe handed to the petitioner on the very next day, the 16th January, inresponse to a request for a copy of the minutes. This document, whichpurports to be a draft of the minutes, states :
" When three votes were recorded, Mr. E. D. Nagahawatta declined
to stand for election. The Commissioner stated that his name may be
excluded after the first voting was fully recorded.
The voting resulted as follows :■=—-
First Voting
For Mr. A. R. M. Thassim : Messrs. B. M. Charles, D. Y. Weerasirie,A. It. M. Thassim, H. EL. Edmund, A. I. H. A. Wahab, L. E. Mendisand T. D. Abeywardena.
For Mr. W. T. Wijekulasuriya: Messrs. W. Dahanayake, W. T.Wijekulasuriya, E. D. Nagahawatta, D. A. S. P. Dahanayake,A. D. H. Weeratunge and M. Thaha Cassim.
For Mr. E. D. Nagahawatta : Nil.
Declined to vote : Messrs. A. H. E. Fernando and D. S. Goonesekera.
Mr. Nagahawatta’s name was excluded.
Second Voting
For Mr. A. M. M. Thassim : Messrs. B. M>. Charles, D. Y. Weerasirie,A. It. M. Thassim, H. EL. Edmund, A. I. H. A. Wahab, L. E. Mendisand T. D. Abeywardena.
For Mr. W. T. Wijekulasuriya : Messrs. W. Dahanayake, A. H. E.Fernando, D. S. Goonesekere, W. T. Wijekulasuriya, E. D. Nagaha-watta, D. A. S. P. Dahanayake, A. D. H. Weeratunga and M. ThahaCassim.
Mr. W. T. Wijekulasuriya was declared duly elected Mayor for 1952. ”
The words “ Mr Nagahawatta’s name was excluded ” were inserted in thedraft by the second respondent in the presence of the petitioner before hehanded the document to him.
I do not think that there is any material inconsistency between thisversion and the second respondent’s affidavit, but if there is the formershould be preferred for the reason that his recollection of the events wouldhave been better at the time when he prepared or adopted the draftminutes. It seems to me that the second respondent treated the electionas one in which there were three candidates until the end of the first voting,and that at that stage he excluded from the election, in supposed com-pliance with the provisions of paragraphs (e) and (/) of section 14 (4), thecandidate who received no votes. It is apparent that Nagahawatta’s
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GTJJSTASEKAE.A J.—'Dhassim. v. Wyekulasuriya
interruption of the proceedings raised a problem for the second respondentas to how he should proceed, in view of the other’s statement that he didnot wish to stand for election and that he withdrew and the element ofconfusion that it may well have introduced. Apparently he was in doubtas to whether Nagahawatta’s name should be excluded immediately, buthe thought that the problem would solve itself at the end of that poll if hetook the rest of the votes ; and so he seems to have “ stated that his(Nagahawatta’s) name may be excluded after the first voting was fullyrecorded When at the end of the voting he found that no candidatehad received a majority of the possible votes, by polling at least eightvotes, it appears to have occurred to him that the procedure he hadadopted could result in unfairness and must therefore be “ irregular ”,but he seems to have thought that any irregularity would be cured andany unfairness redressed by the next step that he thought he should takeof excluding Nagahawatta from the election at that stage.
It is contended for both respondents that the first voting was a nullity.One ground upon which Mr. Chitty bases that contention is that Nagaha-watta’s conduct showed that he did not consent to stand for election.
I do not think that this is a tenable ground: Nagahawatta made no protestwhen his name was proposed and seconded for election and it does notappear that even at the late stage at which he did speak he denied havingconsented to his name being proposed. Mr. Chitty next argues that if hedid so consent he withdrew his consent later and thereby ceased to bea candidate. Mr. Chelvanayakam’s argument, too, is that Nagahawattaceased to be a candidate and therefore the first voting was a nullity : hehad ceased to be a candidate in fact and the law does not say that he mustbe deemed to 'be a candidate nonetheless. The view submitted byMr. H. V. Perera in his reply is that sub-section (4) merely gives theCommissioner directions as to the steps that he must take in the electionand does not, by the introduction of the word “ candidate ”, add a newcondition upon which those steps must be taken. The only conditions, hepoints out, are those laid down in sub-section (3), and a “ continuingconsent ” to stand for election is not one of them. I agree with this view.The word “ candidate ” in the context in which it appears means nomore, I think, than a Councillor who has consented to his name beingproposed and seconded for election.
It seems to me, however, that it is implicit in this view of the effect ofsub-section (4) that the ground on which the first respondent’s title to theoffice is impeached is merely a defect in the procedure by which he waselected. The Councillors who were present at the meeting were em-powered by sub-section (3) to elect a Mayor from among those whowere duly proposed and seconded for election, and they chose the firstrespondent from among such candidates by a majority of the wholenumber of Councillors (and not merely of those who were present), butthe provisions of sub-section (4) which prescribes the mode of electionwere infringed. The petitioner himself participated in the irregularity,however, and is disqualified by his concurrence in the mode of electionfor impeaching the first respondent’s title to the office. His plea that hewas “ not then aware that the said further proceedings were void ” is only
Johardeen v. Ahmath
65
a plea of ignorance of tlie law, which, is not an excuse. The gist of thedecisions regarding the effect of acquiescence is stated by Jayawardene
J. in Inasitamby v. Government Agent, Northern Province 1, as follows :
“ It is a general rule of corporation law that a corporator is estoppedfrom coming forward as a relator to impeach a title conferred by anelection in which he has concurred {Rex v. Lane 2 and Rex v. Cobh 3).It is a valid objection to a relator that he was present and concurredat the time of the objectionable election even though he was thenignorant of the objection, for a corporator must be taken to be cognizantof the contents of his own charter and of the law arising therefrom{Rex v. Trevanon i). Where a corporator has attended and voted ata meeting, he will not be allowed to become a relator, unless he showsthat at the time of the election he was ignorant of the objection subse-quently taken {Rex v. Slythe B). A relator who has acquiesced in andbimaelf adopted the mode of voting he now objects to is disqualifiedfrom applying for a rule {Rex v. Lofthouse ®), and a rule will not begranted to a relator who has participated in the alleged irregularities-on which he based his application {Rex v. Colclough 7). ”
(The ignorance referred to in Rex v. Slythe is ignorance of some fact makingthe election invalid and not ignorance of the law.)
Application No. 21 is refused. Application No. 24, for a mandate in thenature of a writ of mandamus is also refused. In each case the petitionerwill pay the costs of the first respondent, that is to say, the respondentW. T. Wijekulasuriya in Application No. 21 and the respondentA. V. Chinniah in Application No. 24.
Applications refused,.