-ABEYWARDENE v. ARIYA BULEGODA AND TWO OTHERS

011-SLLR-SLLR-1985-V1-ABEYWARDENE-v.-ARIYA-BULEGODA-AND-TWO-OTHERS.pdf


ABEYWARDENE
v.
ARIYA BULEGODA AND TWO OTHERS
SUPREME COURT.
WIMALARATNE, J.. ABDUL CADER. J. AND L. H. DE ALWIS. J.
S C. ELECTION PETITION APPEAL No. 3/84ELECTION PETITION No. 2/83.
JANUARY 21 & 22. 1985.
* Election Petition – General intimidation – Undue influence – Security- Rule 12 (2) ofthe Parliamentary Election Petition Rules 1946 as amended by Act No. 9of 1970-Arefull particulars necessary where general intimidation is the ground of avoidance ? -S. 77 (a) – Nonjoinder – Should affidavit accompany petition to support charge of■ general intimidation ? Sections 80 B (c), 80 B id), 80 C (2), 80 A (1) of the Ceylon(Parliamentary Elections) Order-in-Council as amended.
The petitioner sought to have the election of the 1 st respondent-appellant to Parliamentset aside on two grounds :
The corrupt practice of undue influence was committed by the 2nd and 3rdrespondents as agents of the 1st respondent-appellant (s. 77 (c) read with (s. 56 (1)
of the Ceylon (Parliamentary Elections) Order-in-Council, 1946. as amended).
Particulars of the corrupt practice were set out in paragraphs 5 and 6 of the petition. – •
*
The petitioner had deposited Rs. 15,000 as security in terms of Rule 12 of theParliamentary Election Petition Rules 1946 as amended by Act No. 9 of 1970.
Objections regarding the quantum of security, failure to set out full particulars regardingintimidation, non-joinder of parties and inadequacy of the affidavit were overruled by theElection Judge.
In appeal to the Supreme Court -Held –
General intimidation is concerned not with the intention with which the acts arecommitted but with the result. Did the acts taken cumulatively have the effect ofperverting the electoral process 7 In an allegation of general intimidation a number ofacts of intimidation or other acts of undue influence will necessarily have to be reliedupon by the petitioner. Any one of such acts may not constitute a charge. It is the actstaken together and their cumulative effect of preventing a free election that amounts tothe ground of avoidance termed 'general intimidation' and which will be the subject of a'charge' for the purpose of attracting security. Such acts taken.individually or incidentstaken individually will not constitute separate charges for the purpose of attractingsecurity once they have already cumulatively attracted security on the charge of generalintimidation.
General intimidation although not brought home to a candidate or his agent will avoid anelection. It is different from 'statutory intimidation' that is. the corrupt practice of undueinfluence as. contemplated by the statute of which the candidate or agent may be foundguilty.
Paragraph 4 of the petition sets out only a single charge and attracts security in a sumof Rs. 5,000 and no more.
•
Paragraph 5 of the petition contains a first charge on a distinct ground of avoidance,namely, the corrupt practice of undue influence, and attracts Rs. 5,000 as security.Paragraph 6 of the petition as it contains an additional charge on the same distinctground as in paragraph 5, will attract Rs. 2,500 as security.a
The total security being thus Rs. 12,500, the security deposited was adequate.
. J
There is a distinction between the 'concise statement of material facts’ required to begiven in respect of a charge of general intimidation and ‘full particulars* required to begiven in respect of a charge of a 'corrupt practice'-s. 80 B (c) and (d). As thesub-paragraphs of paragraph 4 constitute one ground of avoidance and one charge fultparticulars need not be given. The petitioner has sufficiently complied with therequirements of setting out the material facts in the concise statement in his petition.The petitioner has also given full particulars of the corrupt practices alleged andcomplied with this requirement too.'
If the respondents required further particulars it was open to them to have invoked theprovisions of section 80 C (1) and sought an order from the Judge directing the petitionto be amplified appropriately so to ensure a fair or effective trial. There does not seem
mm*
be any provision for the dismissal of an election petition for failure to furnishparticulars. The filing of interlocutory appeals from orders overruling objections based(Hi the insufficiency of particulars will make it well nigh impossible for any election judgeto comply with s. 80 C (2).
As the inclusion of several acts of intimidation or violence or threats did not have theeffect of converting a single ground of avoidance into several charges and as there is nocorrupt practice alleged in paragraph 4 the need to add as respondents the thugs (if‘known) or the supporters (if known) did not arise. Hence the objection re non-joinderfads.
No affidavit need accompany the petition to support the charge set out in paragraph 4where only one ground of avoidance, namely, general intimidation is set out. Hence theobjection to the affidavit also fails.
Cases referred to:
(1) Durham Election Petition (No. 2) 31 Law Times Reports 383, 384.
, (2) Pelpola v. Gunawardena (1948) 49 NLR 407.
Wijewardeng v. Senanayake (1971) 74 NLR 97. 100.
INTERLOCUTORY APPEAL from order of Election Judge.
G. Candappa. P.C.. with Mark Fernando P.C.. Daya Pelpola. Mrs. N. Walawage, B.Balaraman and Mr. Chandrasiri de Alwis for 1st respondent-appellant.
mK. Shanmugalingam with Morris Rajapakse and Nimal de Silva forpetitioner-respondent.<■
Cur. adv. vult.
February 14, 1985.
WIMALARATNE.J.
At a By-Election for the Hakmana Electorate held on 18.5.83 the 1strespondent-appellant Abeywardena Mahinda Yapa polled 23,336votes whilst the petitioner-respondent Ariya Buleg'oda polled 21,002votes. Two other candidates polled 1291 and 103 votes respectively.
The petitioner-respondent filed an election petition seeking to have theelection of the 1 st respondent-appellant set aside on the following two
grounds :-
0
That by reason of general intimidation the majority of theelectors were or may have been prevented from voting forthe candidate whom they preferred, a ground stipulated insection 77(a) of the Ceylon (Parliamentary Elections)Order-in-Council, 1946, as amended. A concise statementof facts on which the petitioner relied in respect of thecharge was set out in paragraph 4 of the petition under-items (a) to (h).
(t>) That the corrupt practice of undue influence wascommitted by the 2nd and the 3rd respondents, as agentsof the 1st respondent-appellant, particulars of whichcorrupt practice were set out in paragraphs 5 and 6 of thepetition, a ground of avoidance stipulated in section 77(c)read with section 56(1).
The 1 st respondent-appellant took the following preliminary objectionsto the petition :-
That the sum of Rs. 15,000 deposited by the petitioneras security for costs was insufficient.
The petition was bad in law in that –
(a) it did not contain a concise statement of the ^materialfacts on which the petitioner relied, in terms of section80 B(c) of the Order-m-Council ;
(t>) it dtd not set forth full particulars of the several coVrupt*practices alleged in the petition, in terms of section 80B (d) ;
it was not accompanied by an affidavit in support of •the several allegations of the corrupt practicespleaded, also in terms of section 80 B (d) ;
the petitioner has failed to join as respondents thepersons against whom allegations of corrupt practicehave been made in the petition, in terms of section 80A (1) (b) ;
the petitioner has joined as 2nd respondent a fictitiousor non existent person.
The 1st respondent moved for a dismissal of the petition.
. _ The learned Election Judge having heard arguments of Counsel,made order overruling all these preliminary objections except (II) (e) inrespect of which he reserved order till the conclusion of the trial.Hence this interlocutory appeal.
Security
The quantum of security that an election petitioner is required todeposit is governed by Rule 12 (2) of the Parliamentary ElectionPetition Rules, 1946, as amended by Act No. 9 of 1970 ; it reads asfollows
‘(2) The security shall be an amount of not less than fivethousand rupees in respect of the first charge constitutinga distinct ground on which the petitioner relies, and afurther amount of not less than two thousand five hundredrupees in’ respect of each additional charge constitutingany such ground. The security required by this rule shall begiven by a deposit of money'.
The Election Judge has held that the sum total, of security that thepetitioner was required to deposit was Rs. 12,500 computed asfollows
In respect of the distinct ground of Rs. 5.000
. avoidance viz. the prevention of the
exercise of free voting as a result of generalintimidation as set out in the concisestatement of material facts undersub-paragraphs (a) to (b) of paragraph 4 ofthe petition,
In respect of the first charge constituting Rs. 5,000another distinct ground of avoidance viz. the
corrupt practice of undue influence, as setout with particulars in paragraph 5 of thepetition.
In respect of the additional charge on the Rs. 2.500same distinct ground of avoidance viz. the
corrupt practice of undue influence as setout with particulars in paragraph 6 of thepetition.
As the petitioner had deposited a sum of Rs. 15,000 as security thelearned Judge overruled this first objection.
It has been contended before us by learned Counsel for the 1strespondent-appellant that paragraph 4 of the petition contains not-one but three distinct grounds of avoidance, namely (1) the preventidfiof free voting as a result of "general intimidation" (2) the prevention offree voting as a result of "other misconduct'; and (3) commission ofthe corrupt practice of undue influence by the 2nd and 3rdrespondents acting as agents of the 1st respondent or with hisknowledge or consent, as well as by his supporters and other thugs.
The contention of learned Counsel for the petitioner-respondent isthat paragraph 4 contains only one charge on the distinct groundavoidance, that is, of general intimidation, and therefore attractssecurity in a sum of Rs. 5,000 only.
An election petitioner is required by section 80 B(c) to include in thepetition a concise statement of the material facts on which he relies. Incompliance with that section, the petition contains in sub-paragraph(a) to (h) of paragraph 4 eight incidents, the cumulative effect of whichacts constitute the ground of avoidance which is 'generalintimidation". Sub-para (a) refers to an attack by a band of thugs onthe jeep belonging to the petitioner and the robbery of valuablesbelonging to its occupants. Sub-para (£>) refers to the wrongfulconfinement of the petitioner on election day by a gang of thugs near anamed polling station. Sub-para (c) alleges that the 2nd and 3rdrespondents acting as agents of the respondent, with a gang of thugsprevented voters from voting at a polling station by blocking accessroads and by the use of thuggery, Sub-para (d) also alleges forcibleprevention of voting by voters at a certain polling station by thugs*Sub;para (e) refers to the explosion of a bomb at the residence of the1 st respondent on the day before polling day which had the effect ofintimidating voters. Sub-para (f) alleges intimidation on polling day ofcvoters of four named grama sevaka divisions by supporters of the 1 strespondent. Sub-para {g) alleges that voters of a state plantation wereintimidated and threatened by supporters of the 1 st respondent.Sub-para (h) states that voters of a,named polling station were drivenaway by thugs and also that the polling agents of the petitioner and ofanother candidate were prevented from performing their duties at thatpolling station. There are, in the above allegations, according tolearned Counsel for the 1st respondent-appellant, several charges
constituting the corrupt practice of undue influence, and according tohis computation they attract security in a sum of Rs. 5,000 on the firstcharge set forth in sub-para {a) and Rs. 2,500 on each of the 14additional charges of the corrupt practice of undue influence set forth*in paras (b) to (h) making a total of Rs. 40,000.
Special emphasis has been placed by Mr. Candappa on theaverment in sub-paragraph (c) of paragraph 4 which is directedagainst the 2nd and 3rd respondents who, acting as agents or withthe knowledge and/or consent of the 1 st respondent, are alleged tohave committed the corrupt practice of undue influence. Mr.Candappa points out that just as much as paragraphs 5 and 6 aver thesame corrupt practice against the 2nd and 3rd respondents butcommitted throughout polling day, sub-paragraph (c) of paragraph 4alleges the same corrupt practice at different intervals of time by the2nd and 3rd respondents ; so that in any event paragraph 4 (c) hasalleged at least two classes of corrupt practice which must necessarilyattract security.
Besides according to Counsel for the appellant, sub-paras (a) & {b)of paragraph 4 allege that the authorities either failed or were reluctantto investigate the offences specified therein or were unable to dealwith the situation, and such failure or inability had the effect ofintimidating voters who supported the petitioner. Learned Counselcontends that such failure or inability of the authorities to control thesituation constitutes "other misconduct" which is one of the groundson which an election may be avoided under section 77 (a). Therebeing twp charges on that distinct ground, they would attract securityin a sum of Rs. 7,500.
Thus, according to Counsel for the 1 st respondent-appellant –
The prevention of free voting as a result of “generalintimidation' pleaded generally in paragraph 4 attracts assecurity a sum of Rs. 5,000 ;
The prevention of free voting as a result of "othercircumstances' pleaded in paragraphs 4 (a) & (b) attractsas security a sum of Rs 7,500 ;
The several corrupt practices pleaded in all thesub-paragraphs of paragraph 4 attracts a sum of Rs.
; making a grand total of Rs. 52,000 in respect ofparagraph 4.
Mr. Shanmugalingam’s reply to this contention is that the law drawsa clear distinction between ‘general intimidation* and 'undueinfluence’. When general intimidation is pleaded several incidents of.intimidation or use of violence or threats are relied upon, committednot necessarily by known persons. When undue influence is pleaded,the acts of intimidation or use of violence or threats are attributed tospecified or named persons. General intimidation is concerned notwith the intention with which the acts are committed but with theresult; did the acts taken cumulatively have the effect of pervertingthe electoral process ? In his submission paragraph 4 (c) is only asummation of paragraphs 5 and 6 and when individual acts of undueinfluence which form the subject of separate charges are summarisedin the concise statement of material facts relied upon by a petitioner toestablish a charge of general intimidation, those individual acts ofundue influence do not attract security.
An election petitioner is also required by section 80 B (d) to setforth in the petition full particulars of any corrupt practice the petitioneralleges, including as full a statement as possible of the names of theparties alleged to have committed them and the date and place ofsuch commission. In compliance with this section the petitioneralleged in paragraph 5 that between 10 and 11.30 a m. on pollingdate at or near a named polling station the 2nd respondent as agent ofthe 1 st respondent with a gang of unknown thugs prevented votersfrom voting by blocking all access roads to the polling station as wellas by the use of force or violence and threats of use of force orviolence. Mr. Candappa contends that each of these acts, napiely theblocking of access roads, the use of force or violence and the threateach being an additional charge of corrupt practice attracts as securityRs. 2,500 and that the three acts together attract Rs. 7.500. A*similar argument has been put forward as regards the charge of thecorrupt practices committed by the 3rd respondent and set forth inparagraph 6.•
The fallacy in Mr. Candappa's argument as regards paragraph 4 isthat it overlooks the imperative need, when an allegation of generalintimidation is made, to specify the nature of that intimidation in aconcise statement- of material facts. In an allegation of generalintimidation, a number of acts of intimidation or other acts of undueinfluence will necessarily have to be relied upon by the petitioner. Anyone of such acts may not constitute a charge. It is the acts takentogether and their cumulative effect of preventing a free election that
amounts to the ground of avoidance termed 'general intimidation' andwhich will be the subject of a 'charge' for the purpose of attractingsecurity. In sub-paragraph (a) for example, there is an allegation of anattack by a band of thugs and the robbery of valuables from thepetitioner's jeep on 9th May. Proof of that allegation alone may notsuffice to avoid the election on the ground that there was preventionof free election as a result of general intimidation. In order to succeedon a charge of general intimidation the petitioner has to prove thatthere was widespread violence, so much so that people of averagecourage may have been prevented from voting, and that the majorityof the voters may have been prevented from voting for the candidateof their choice. It is in order to achieve that degree of persuasion that,the petitioner is obliged to give a concise statement of the materialfacts on which he relies ; otherwise the respondent will be taken bysurprise at the trial. But those several acts or incidents takenindividually will not constitute separate charges for the purpose ofattracting security, once they have cumulatively already attractedsecurity on the charge of general intimidation.
'Freedom of election is at common law essential to the validity ofan election. If this freedom is by any means prevented generally, theelection is void at common law. Therefore, general intimidationalthough not brought home to a candidate or his agent, will avoid anelection' Rogers on Elections (19th Edition) Vol. 2 p. 521.
The distinction between 'general intimidation' at common law and'statutory intimidation' defined in section 2 of the Corrupt and IllegalPractices Prevention Act, 1883 (which is identical with the definitionof 'undue influence' in section 56 (1) of our Elections Order inCouncil) has best been stated by Bramwell B in the Durham ElectionPetition (No. 2) Case {1) as follows
'First of all there is the statutory intimidation, if one may use such• an expression, that is intimidation contemplated by the statute,which avoids the seat – that is where a candidate or his agent, isguilty of it. But besides that there is another intimidation that hasbeen called a common law intimidation, or intimidation at commonlaw and it applies to a case where the intimidation is of such acharacter, or general and extensive in its operation, that it cannot besaid that the polling was a fair representation of the opinion of theconstituency in which the intimidation took place' The Law TimesReports Vol. XXXI p. 383 at 384.
In Pelpola v. Gunawardena (2)^ the respondent defeated thepetitioner by the comparatively narrow margin of 387 votes. In apetition seeking to set aside the election of the respondent thepetitioner relied upon two grounds of avoidance. The first was generalintimidation, the particulars being that on polling day, at a number ofplaces in the electorate, certain groups of people intimidated othergroups from going to the polling station, by Cise and threats of force,with the result that the majority of the electors were or may .have beenprevented from electing the candidate whom they preferred. Thesecond ground, as in the instant case, was based on the sameincidents that formed the subject matter of the first ground, butconsidered as individual acts of undue influence committed againstindividuals by other individuals alleged to be agents of the respondent.Although the question of the quantum of security does not appear tohave arisen in that case. I have referred to it in order to illustrate that instating the material facts of general intimidation a petitioner hasnecessarily to rely on, and also include in his petition numerous acts ofintimidation, threats and the like. If each such incident were to attractsecurity under Rule 12, then the quantum of security a petitionerwould be called upon to deposit may reach the billion rupee mark I! Itseems to me that it was with a view to avoid such a drasticconsequence that the legislature introduced the amendments to Rule12 in 1970.
The statement in certain sub-paragraphs of the petition that thereluctance or incapacity of the Authorities to take necessary actionmay have resulted in the intimidation of voters was clearly notintended to be an allegation or charge of 'misconduct' on the part ofthe authorities. They have been given as a reason why people fearedto go to the polling station. I cannot for a moment agree to th£proposition that by such inclusion in the concise statement thepetitioner has introduced another ground of avoidance or anothercharge which attracts security.,
Paragraph 4 in my view sets out only a single charge on one groundof avoidance, namely the prevention of free voting as a result ofgeneral intimidation. It therefore attracts security in a sum ofRs. 5,000 and no more.
Paragraphs 5 & 6 of. the petition allege that the corrupt practice ofundue influence was exercised by the 2nd and 3rd respondentsrespectively acting as .agents, of the 1 st respondent or with his
knowledge and consent at a certain polling station on polling day, butat different times. Learned Counsel for the Appellants' contention, as Ihave stated earlier, is that each of those paragraphs contains threecharges. The blocking of all access roads, it has been submitted,constitutes one act of undue influence ; the use of force or violenceanother; and the threats of use of force or violence yet another. Ifcounsel's submission is pushed to its logical conclusion, then therewould be as many offences committed as there are access roads tothe polling station I Besides, the argument derives no supportwhatsoever from the definition of 'undue influence' contained insection 56(1) in terms of which 'every person who directly orindirectly, by himself or by any other person on his behalf, makes, uses
or threatens to make use of any force or violence or restraintin
order to compel such person to refrain from voting …. shall be guiltyof the offence of undue influence'. The use of force or violence, thethreat of the use of force or violence, or the use of restraint, ifcommitted in the course of one and the same transaction willconstitute but one offence for which there could be but one charge. Iam therefore of the view that paragraph 5 contains a first charge onthe distinct ground of avoidance, namely the corrupt practice of undueinfluence, and attracts Rs. 5.OCX) as security. Paragraph 6, as itcontains an additional charge on the same distinct ground as inparagraph 5 will attract Rs. 2.500 as security.
Paragraphs 4, 5. & 6 together attract a sum of Rs. 12.500 assecurity. The Election Judge was therefore right in overruling thepreliminary objection relating to the adequacy of security. Hisadministration is in accord with the decision of the Divisional Bench inElection Petition Appeals Nos. 1 & 2 of 1977 and No. 3 of 1978-(S.C. Minutes of 7.8.78).
The concise Statement of material facts on which the petitionerrelies in support of 4be allegation of general intimidation is given insub-paragraphs (a) to (h) of paragraph 4. Mr. Candappa's complaint isthat his concise statement is not what is contemplated in section80 (B) (d). He has referred, us to the changes brought about in 1970in the law relating .to election petitions. The purpose of theseamendments was to enable a respondent to know, immediately on apetition being filed, the particulars of the allegations he has to meet. Inthe words of H. N. G. Fernando, C.J. the changes in the law were'intended to secure that a respondent will know from the petition itselfwhat facts the petitioner proposes to prove in order to avoid the
election, and will thus have a proper opportunity to prepare for thetrial' – Wijewardena v. Senanayake at p. 100 (3). The Chief Justicewent on to state that “the petitioner must specify at the least thenature of the alleged intimidation ; whether it consisted of actu|lviolence, or of threats of violence, or of some other kind ofintimidation, and when and where such intimidation is alleged to haveoccurred. A petitioner cannot be permitted merely to specify a groundof general intimidation in an election petition with the hope that he cansubstantiate it with evidence subsequently secured', also atp. 100.
Mr. Candappa argued that particulars of the offences given inparagraph 4 should be given in foil detail, so that the respondentwould not be obliged to make an investigation himself. By way ofillustration he argued that in sub-paragraph (a) the names of theoccupants of the jeep and the names of the persons who were robbedof cash and a gold chain should be given, so that he could leadevidence, if possible, to establish that such persons were elsewhere atthe time of the alleged incident. And so in respect of eachsub-paragraph more details ought to have been given. He argued,however, that there.is a distinction between the 'concise statement ofmaterial facts' required to be given in respect of a charge of 'generalintimidation" and “full particulars' required to be given in respect of acharge of a 'corrupt practice". He agreed that if we rejected hisargument that paragraph 4 in all its sub-paragraphs constituted notseveral but one ground of avoidance, and not several but one charge,full particulars will not be required to.be given,
It seems to me that there has been sufficient compliance by thepetitioner in setting out material facts in the concise statement. Thenature of the alleged intimidation, the’dates and places at which they*occurred and the effect of such intimidation, have been specified inmuch detail. Obviously the respondent cannot be taken by surprise atthe trial as a result of such details as the names of thugs not being*disclosed. The proviso to section 80 B makes it clear that nothing inthat section requiring a concise statement should be deemed orconstructed to require evidence to be stated in the petition. The.election judge has therefore correctly overruled this objection.
Full particulars of any corrupt practice that the petitioner alleges hasto be set forth in the petition, including as full a statement as possibleof the names'of the parties alleged to have committed such corrupt
practice and the date and place of the commission of such practiceAn affidavit in the prescribed form in support of the allegation of suchcorrupt practice has to accompany the petition – Section 80 B jd).
• The petitioner has set forth the particulars of the corrupt practice ofundue influence committed by the 2nd and 3rd respondents, acting asagents or with the knowledge and consent of the 1 st respondent, inparagraphs 5 & 6 of the petition. The election judge has held that thepetitioner has complied with this requirement. It seems to me that thejudge is correct, because the petitioner has set forth a statementcontaining the names of the parties lie. the 2nd and 3rd respondents),the places of the commission of the offences, the dates and even thetimes at which the offences were alleged to have been committed.
if the respondents required further particulars it was open to themto have invoked the provisions of section 80 C (1) and sought an orderfrom the Judge directing the petition to be amplified in such manner,as may be necessary to ensure a fair or effective trial of the petition.Section 80 C (2) requires the Judge to try and conclude an electionpetition as expeditiously as possible and to make every endeavour toconclude the trial within a period of six months after the date ofpresentation of the petition. There does not appear to me to be anyprovision for the dismissal of an election petition for failure to furnishas full a statement as possible of the particulars a petitioner is requiredto furnish in compliance with section 80 B{d). The filing ofinterlocutory appeals from the orders of election Judges overrulingobjections based on the insufficiency of particulars, would make it wellnigh impossible for any election judge to comply with the salutaryprovisions of section 80 C {2).
•
Non-joinder
Section 80 A (1) provides that a petitioner shall join as respondents to
• his election petition any other candidate or person against whomallegations of any corrupt or illegal practice are made in his petition.The allegations of corrupt practice have been made in paragraphs 5 &6 against the 1 st, 2nd & 3rd respondents, and they have been madeparties. Mr. Candappa's contention is that paragraph 4, although theground of avoidance contained therein is general intimidation, alsocontains allegations of the commission of the corrupt practice ofundue influence, by gangs of thugs as well as by supporters of the 1 strespondent. In dealing with the question of the quantum of security I
have taken the view that the inclusion of several acts of intimidation orviolence or threats do not have the effect of converting that singleground of avoidance into several charges. Therefore there is nocharge of corrupt practice alleged in paragraph 4 and the need iomake the thugs (if known) or the supporters (if known) respondentsdid not arise. As regards paragraphs 5 & 6 and 2nd and 3rdrespondents are alleged to have committed undue influence with "agang of thugs, unknown to the petitioner'. It is thus difficult to seehow these unknown thugs could have been made parties. The electionJudge was therefore correct in overruling the objectioh re non joinder.
An objection was also taken before the election Judge that the 2ndrespondent is a non existent or fictitious person. The learned electionJudge ruled that he could not make an order on that objection at thispreliminary stage and reserved it for decision at the conclusion of thetrial after recording evidence. Learned Counsel did not press thatobjection before us.
The affidavit accompanying the petition in paragraph 8 reads thus-
"I affirm to the contents of paragraph 5 above (which correspondsto paragraph 4 of the petition) partly of my personal knowledge andpartly on information given to me. But with regard to the rest of theaverments in this affidavit I declare and affirm that they are of mypersonal knowledge"
An affidavit is required to accompany and support the petition only ifthe petition alleges the commission of a corrupt or illegal practice. Noaffidavit is required in support where the petitioner alleges generalintimidation. As I have already held, paragraph 4 of the petitioncontains only one ground of avoidance, which is general intimidation.Therefore no affidavit need accompany the petition supporting theallegation in paragraph 4 of the petition. The complaint that as theaverment in support of the allegation in paragraph 4 of the petition isnot spoken to entirely of the petitioner's personal knowledge there isno proper affidavit is therefore not one that merits consideration. Theallegations in paragraphs 5 & 6 of the petition are supported byparagraphs 5 & 6 of the accompanying affidavit and have been madeof the petitioner's personaMcnowledge. The objection to the affidavithas also been correctly overruled.
I would accordingly dismiss this appeal, with costs fixed at Rs.
payable by the 1st respondent-appellant to thepetitioner-respondent.
ABDUL CADER, J. – I agree.
L. H. DE ALWIS, J. – I agroe.
Appeal dismissed.