Amaraslnghe v. Azath Sally and others
AZATH SALLY AND OTHERSCOURT OF APPEALWIJAYARATNE, J.,
C.A. 1074/2002SEPTEMBER 15,
NOVEMBER 24 ANDDECEMBER 19,2003
Local Authorities Elections Ordinance, sections 8, and 66(2), as amendedby Act, No. 1 of2002 – Sections 82p(2) and 82q – Remedy by way of electionpetition – Does the amendment take away writ jurisdiction of the Court ofAppeal? – Misjoinder of parties – Delay and acquiescence – Qualified for elec-tion? – Constitution, Article 140 – Necessary parties – Does a statutory reme-dy exclude ordinary remedy.
The petitioner sought a quo warranto declaring that the election of the 1strespondent as a member of the Council null and void and further that the 1strespondent was not qualified for election in terms of section 8(6) by reason ofhis not having ordinary residence in his electoral area.
The respondent contended that as the Amending Act, No. 1 of 2002, pro-vided for the avoidance of election by way of an election petition and with theReturning Officer and the Party Secretary who are interested parties not beenmade parties, the application should be dismissed.
Act No. 1 of 2002, provides for a new remedy of an election petition, butit does not exclude or take away the right of a citizen to invoke the writjurisdiction of the Court of Appeal.
The Returning Officer and the Party Secretary need not be parties.Preliminary objection – as to the maintainability of the application.
Cases referred to:
R v Martin – (1892) 1 QB 39
Biman Chandra v Mukherjee – AIR (1952) – Cal. 79
Pyxgranite Estate Ltd. v Ministry of Housing and Local Government -(1960) AC 260
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S.L. Gunasekera with Chandimal de Mel for petitioner.
D.S. Wijesinghe, P.C., with Sanjeewa Jayawardena and Priyantha Fernandofor 1st respondent.
Janak de Silva, State Counsel, for 2nd and 3rd respondents.
May 07, 2004WIJEYARATNE, J.
This is an application presented by the petitioner seeking the 01grant of a mandate in the nature of a writ of quo warranto declaringthat the election of the first respondent as a member of theColombo Municipal Council which was declared by the secondrespondent by gazette notification marked P3, is null and void andof no force or effect in law and/or that the first respondent is not amember of the Colombo Municipal Council and for interim relief asprayed in the petition. The application was made on the basis thatthe petitioner is a voter registered in the electoral registers of theColombo District and ordinarily resident in the Colombo Municipal ioarea at the time of the election of members of Colombo MunicipalCouncil and a candidate for election as a member of the ColomboMunicipal Council; and the first respondent who was elected as amember of Colombo Municipal Council at the election held on 20thMay 2002 and currently functioning as the Deputy Mayor ofColombo. The petitioner seek the grant of a mandate of writ of quowarranto on the premise that the first respondent was not qualifiedfor election to the Colombo Municipal Council in terms of section 8(6) of the Local Authorities Elections Ordinance as amended, byreason of his not having been ordinarily resident in the electoral 20area of Colombo Municipal Council on the relevant date.
The first respondent filing statement of objection refuted theclaim of the petitioner that he is not a voter registered in the elec-toral registers of Colombo Municipal Area and that he is not ordi-narily resident in such area. He further raised objections to the peti-tion on the ground that since the Local Authorities ElectionsOrdinance as amended by Act No. 1 of 2002 by section 82p(2) pro-vided for the avoidance of election of a candidate by way of elec-
Amarasinghe v. Azath Sally and others
tion petition and that the petitioner has invoked the jurisdiction ofthe Provincial High Court Holden in Colombo in terms of section82q of the said Ordinance, the petitioner is not entitled to maintainthis application for discretionary remedy granted by this court. Alsoraised objection on the ground that the returning officer and theparty secretary who are interested parties were not made party. respondents to this application. And the delay on the part of thepetitioner in presenting this application.
At the hearing of the application the parties urged that the sev-eral objections raised by the first respondent tie taken up anddecided as preliminary objections and made submissions both oral-ly and in writing. Such argument and submissions were madebefore Ms Shiranee Tilakawardane, J. (P/CA) as she then was, andmyself sitting together and consisting a divisional bench. Howeverthe elevation of Justice Tilakawardane to the Supreme Court,before the parties could tender their written submissions, avoided adecision being given by the panel of judges who heard the argu-ments. The parties then agreed that the decision should be madeby me alone as a single judge who heard the arguments, as this isa writ application only. Accordingly I proceeded to decide the mat-ter of preliminary objections as set out below.
ELECTION PETITION PRESENTED TO THE HIGH COURT OFCOLOMBO.
The first respondent contends that the Local AuthoritiesElections Ordinance as amended by Act, No. 1 of 2002 has by sec-tion 82p(2) provided for the avoidance of an election of a candidate,which provisions the petitioner has invoked in proceedings beforethe High Court Holden in Colombo in case No. HCD/1/2002 chal-lenging the election of the first respondent and seeking the samerelief as sought in these proceedings. The first respondent urgethat when there is statutory remedy provided, discretionary remedyby way of writs will not be granted and that the two cases may pro-duce conflicting decisions, which should be avoided. In other wordsthe first respondent argues that availability of an alternative reme-dy should exclude discretionary remedy of a writ granted by thiscourt. The parties concede that the provisions of Act, No. 1 of 2002does not exclude other remedies and specially the remedy by way
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of writ granted by this court in terms of article 140 of theConstitution existing at the time of enactment of amending Act, No.
1 of 2002 which was certified on 13.03.2002.
The first respondent also argued that “by the time the petitionerpresented his application i.e.; 18.06.2002, the legislature had 70already vested the powers of reviewing the validity of any suchelection, in the High Court, in order to achieve the objective of cir-cumscribing and regulating the situation in which local elections arechallenged. As such, the petitioner could not have circumventedthe limitations imposed by the amendment Act; by invoking Article140 of the Constitution and as such the present application is mis-conceived.
The learned counsel for the first respondent, however, does notrefer this court to any such limitations imposed by any provisions ofAct, No. 1 of 2002. Provisions for some specific statutory remedy socannot be considered as a limitation of other remedies, provided bylaw, especially in the absence of any specific provisions excludingsuch remedies. In any event, the learned counsel for the firstrespondent has not referred this court to any authority affirmingsuch a proposition to the effect that one provision for a statutoryremedy amounts to an exclusion of other remedies available in law.However, he refers this court to the theses of J.A.L. COORAY on‘CONSTITUTIONAL AND ADMINISTRATIVE LAW OF SRI LANKA’at pages 426 and 427 which states.
“court will not grant these writs where an alternative equally 90
convenient remedy is available.”
Quoting the two cases of R v Martirt^ and Biman Chandra vMukherjed2) referred to by J.A.L.Cooray in his theses, the counselsubmits that “no writ of quo warranto can be sought when there isprovisions for an election petition. “This statement however, is notsupported by any reference to any decision to such effect in thelocal jurisprudence of writ jurisdiction.
Reference to English jurisprudence on the subject thusbecomes relevant, for even J.A.L.Cooray has relied on the Englishcase law for his statement on the subject. More recent decisions of 100English courts hold otherwise. As referred to by Professor WADE in“ADMINISTRATIVE LAW” (Eighth Edition page 697) Lord
Amarastnghe v. Azath Sally and others
SIMONDS in Pyx Granite Estate Ltd v Ministry of Housing andLocal Government^) dealing with the question ‘does a statutoryremedy exclude ordinary remedies? Said;
“It is a principle not by any means to be whittled down that thesubjects recourse to Her Majesty’s Courts for determination ofhis rights is not to be excluded except by clear words. That
isa fundamental rule from which I would not for my
part, sanction any departure. It must be asked, then, what is nothere in the act of 1947, which bars such recourse. Theanswer is that there is nothing except the fact that the Act pro-vides him with another remedy. Is it, then, an alternative or anexclusive remedy? There is nothing in the Act to suggest thatwhile a new remedy, perhaps cheap and expeditious is given,the old and as we like to call it, the inalienable remedy of HerMajesty’s subject to seek redress in her courts is taken away.”
The situation with regard to the provisions of Act, No. 1 of 2002is no different. It provides for a new remedy of an election petition,but does not exclude or take away the right of a citizen to invoke 120the writ jurisdiction of this court.
Accordingly, in my opinion the existence of provisions for anelection petition to be presented to the provincial High Court nor thefact that such a petition is already presented, does not exclude thewrit jurisdiction of this court invoked in an application for a writ ofquo warranto, nor does it affect the maintainability of such an appli-cation.
The efficacy of the alternative statutory remedy provided by theAct, No. 1 of 2002 is in serious doubt by reason of the fact that theelection petition presented to the Provinicial High Court, has not 130reached any finality even after a period of nearly two years.
NON-JOINDER OF PARTIESThe Retunring Officer not being made a party is referred to as aground that affect maintainability of the application of the petitioner.
In terms of P3 the authority that made the declaration in terms ofsection 66(2) of the Local Authorities Elections Ordinance, is madeparty respondent. The first defendant functions as the DeputyMayor of Colombo by reason of his election and nomination
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declared in terms of section 66(2) and it is sufficient to make theauthority who made such declaration, a party respondent. The first 140respondent however does not refer to any provisions requring thatthe Returning Officer who acted under the authority of the ElectionCommissioner, being made a party respondent.
With regard to the party secretary, the first contends that he isan interested party that should have been made a party respon-dent. However, he does not take up the postition that he is anaffected party. There is no requirement of law, the first respondentrefers this court to, that every party likely to be interested in theresult of a case be made party to the same. According to thescheme of the Local Authorities Elections Ordinance as amended, 150the party secretary comes in to the scene only in the event of theElection Commissioner calling upon him to act in terms of the pro-visions of law and not in the manner of determination of the validi-ty of an election. The first respondent has not established anyrequirement of the two parties referred to in his objections beingessential partied in the determination of the present application.
THE DELAY AND ACQUIESENCEThe petitioner only challenges the election and nomination asDeputy Mayor of the first respondent in the year 2002. Accordinglyany election or nomination prior is irrelevant and immaterial to the 160present application. The fact of the first respondent having been amember of Colombo Municipal Council prior to 2002 election isimmaterial because the disqualification based on residence canoccur even subsequent to such election but at the time material tothe election challenged. However the petitioner has specificallypleaded that he became aware of such disqualifications of the firstrespondent only after the declaration of the results of the relevantgeneral election and the application is presented within one monthof the election.There is no delay that can affect the maintainabilityof the application.170
For the reasons given above, the three preliminary objectionsraised by the first respondent are over ruled. And order is made thatthe application be proceeded with on the substantial matter pre-sented for determination.
Wljeratne v Wijeratna
The first respondent to pay the petitioner costs of this inquiry atRs. 5,000/-
Preliminary objection overruled; matter set down for argument.
AMARASINGHE v. AZATH SALLY AND OTHERS