Abdul Wdhdb v. Ismail.
Present: Fernando AJ
ABDUL WAHAB v. ISMAIL.790—M. C. Colombo, No. 2,113.
Colombo Municipal Council (Constitution) Ordinance—Objection to person invoters’ list—Status of objector not raised—Right to raise it in appeal—Question of law—Ordinance No. 60 of 1935, s. 23.
Where an objection was raised to a person whose name appeared inthe voters list of a ward in the Municipality by a party who had nostatus to raise it but whose status was not questioned before theMunicipal Magistrate,—
Held, that the question of status was a question of law that may beraised in appeal under section 24 of the Colombo Municipal Council(Constitution) Ordinance, No. 60 of 1935.
HE respondent, whose name appeared in the list for New Bazaar East
T Ward, objected to the appellant’s name, which appeared in the listof voters for the Maradana South Ward on the ground that he was nota tenant of the qualifying property within the terms of section 14 of theColombo Municipal Council (Constitution) Ordinance, No. 60 of 1935. TheMunicipal Magistrate upheld the objection and the present appellantappealed from that order.
H. V. Perera (with him Mahrooj), for the appellant.—The objector is aperson registered as a voter for New Bazaar East Ward. The appellantwas registered for Maradana North. The .first objection is that the onlyperson who can object must be voters for the same Ward. That pointhad been taken in a number of cases but over-ruled.
[R ajapakse, for respondent.—This point cannot be taken undersections 23 and 24.]
Section 24 gives the procedure in the event of an appeal. The Judgein the lower Court had to adjudicate on the matter before him. It is apoint involved in the adjudication, and if no facts are necessarily involved,then a point can be raised for the first time. See The Owners of the Ship“Tasmania” v. Smith Now in this case the objector says that he wasregistered for one ward, while the appellant was for another ward.Paragrapph (d) of the petition of appeal raises it.
The only qualification that an objector need have is that his name mustbe on the register. That is the one and only qualification. Hence thereis no ambiguity. We take that point in the petition of appeal.
A broader meaning must be given to the word “ involved in the adjudi-cation ”, especially as the Supreme Court has held that an objectormust be in the same ward. (Mohamed Junaid. v. Meeram Pillai:.)
There are no set forms to be followed in the procedure. The only pointto be considered is whether the necessary facts are here. There is noprovision for the Chairman to strike off the name in a list.
Now with regard to the rent, the owner sets it off in respect of therepairs to be done by the appellant. The learned Judge has accepted1 (1890) 15 A. C. 224.* (1936) 38 N. L. R. 364.
FERNANDO A.J.—Abdul Wahab v. Ismail.
these facts. He may be a tenant for service. Rent need not be payablein money. Actual payment is not necessary. Section 14 (3) (c) definestenant.
L. A. Rajapakse (with him N. M. de Silva), for the objector, respond-ent.—One should draw a distinction between an “ order ” and an“adjudication”. The former is a wider term than a judgment oradjudication. It is a decision given on matter brought to his notice.Issues are raised to focus the attention of the Judge.
Such a matter was not involved in the adjudication. Under summaryprocedure, however good the objections may be, they must not be con-sidered. The other side must have notice of the objections either ex meromotu or brought to his notice. See Special Procedure for Courts ofRequests, C. LXVI. Civil Procedure Code ; Criminal Procedure Code,section 338.
[Fernando A.J.—In the present Ordinance, it does not state thatthe grounds need be stated. Suppose he merely says that he appealsagainst the order.]
He cannot do so. Under section 13 of 12 of 1895, though it does notsay that the point of law should be stated, it had been held that it mustbe stated.
As long as the objector’s name was in the list it is sufficient. SeePease v. Town Clerk of Middlesbrough
According to the definition of “ tenant ” in Wille’s Landlord and Tenant,p. 1, a price or rental must be paid. If he does not, he said not a tenantunder section 14 (2) of the Ordinance 60 of 1935. It was held that ahouse surgeon living in rent free quarters is not a tenant—Dobson v.Jones
H. V. Perera, in reply.—The right of the applicant is involved in theadjudication.
Cur. adv. vult.
December 21, 1936. Fernando A.J.—
The appellant’s name appeared in the new list of voters of the MaradanaSouth Ward. The respondent filed an objection to that name appearingin the list on the ground that the appellant was not a tenant of thequalifying property within the terms of section 14 of Ordinance 60 of 1935.The name of the respondent, the objector, appeared in the list of votersfor New Bazaar East Ward, and not for the Maradana South Ward.
The Municipal Magistrate, before whom the objection came for inquiry,held that the appellant was not a tenant within the meaning of section 14,and ordered that his name be expunged from the register. The appellantappeals against that order, and one of the grounds stated in his petitionof appeal is that the respondent, the objector, is not qualified to raiseany objection to the voters in the list for Maradana South Ward in termsof section 23 (2) of the Ordinance, and Counsel in support of this conten-tion argued on the authority of Mohamed Junaid v. Meeram PiUai *, that
1 (1893) 1 Q. B. 127.* (1844) 5 M. <b O. 112.
» 38 N. L. R. 364.
FERNANDO A.J.—Abdul Wahab v. Ismail.
a person whose name appeared in the list of voters for one ward ha&ilo.1status to raise an objection to a person whose name appears in the list foranother ward.
Counsel for the respondent did not question this decision, but arguedthat this was not a question of law involved in the adjudication of theMunicipal Magistrate. He contended that the adjudication referred to insection 24 means, the decision by the Court on matters brought to hisnotice by the parties, and that the question whether the respondent washimself entitled to raise an objection to the names of persons appearingin the list of voters for another ward had not been raised before theMunicipal Magistrate, or considered by him in his order. The words ofthe section, however, in my opinion, while they prevent a person appealingfrom the order of the Municipal Magistrate on a question of fact does notin any way restrict his right to appeal on a question of law. The expres-sion used, “ on any question involved in the adjudication ”, does not, inmy view, restrict the appeal, provided that appeal is on a question of law.It is conceded by Counsel for respondent that the Magistrate himselfmight have raised the question with regard to the status of the objector,although that status was not questioned by the appellant, and theappellant cannot be prejudied by reason of the fact that the Magistrateperhaps through inadvertence did not direct his attention to this point.It was clearly open to the appellant to take objection to the status of theobjector, and his failure to raise it before the Magistrate does not preventthat question being a question involved in the adjudication. TheOrdinance provides that an objector'must be qualified in a certain way,and it was the duty of the Municipal Magistrate to consider the questionof his status, whether it was specifically challenged by the appellant ornot. He no doubt assumed that the objector was duly qualified toobject, and in view of the fact that that qualification was not challenged,he was no doubt justified in treating the objector as a person with thenecessary status, but if the words of section 23, and the proper inter-pretation of those words, had been in his mind, then he would himselfundoubtedly have considered the question whether the responded hada status to object. The omission on the part of the,appellant, and of theMunicipal Magistrate to consider that question does not prove that thatquestion is not a question involved in the adjudication. In my opinion,the words of section 24 are wide enough to allow an appellant in a case ofthis kind to raise by way of appeal any question of law, that must neces-sarily be implied in the adjudication or the order that is made againsthim under section 23.
It would follow, therefore, that the appellant is entitled to question thestatus of the objector, and on this question the necessary material wasbefore the Municipal Magistrate. The objector himself in his objetiondated August 20, 1936, declares that he has been registered as a voter forthe New Bazaar East Ward, and it is as such registered voter that heobjected to the name of the appellant appearing in the list for the Mara-dana South Ward, and in the evidence which he gave before the MunicipalMagistrate he stated that he was on the list of voters for the New BazaarEast Ward. Following the decision in Mohamed Junaid v. Meeram
ABRAHAMS C.J.—The King v. W. Mudianselagey Ranhamy.347
PiJai (supra), I would hold that the objector had no status to raise thisobjection. I would, therefore, allow the appeal and direct that theappellant’s name be inserted as a duly qualified voter on the list of votersfor Maradana South Ward. The respondent will pay to the appellant hiscosts of this appeal, and of the inquiry before the Municipal Magistrate.
ABDUL WAHAB v. ISMAIL