Application for a Mandamus on the Chairman of the Municipal Council

033-NLR-NLR-V-18-Application-for-a-Mandamus-on-the-Chairman-of-the-Municipal-Council.pdf


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Present : Wood Benton A.C.J.
1*18.
Application for a Mandamus on the Chairman of theMunicipal Council.
Nomination of candidate* for election as councillors—Rejection of all butone nomination paper—One candidate declared duly elected—»Application for a mandamus—Office full—Mandamus does not lie—Quo warranto.
On the day appointed for nomination of candidates for electionas councillors three nomination paperswere submittedtothe
Chairman of the Municipal Council ofColombo, nominating A, B,
and C. The Chairman rejectedA*snomination paper on the
ground that itwas not valid, as the seconders name did not
appear inthe list of qnalified votersfor1911,and as the listsfor
1912 and 1913 were notproperlycertified.The Chairman also
rejectedB'snominationpaper,as B’sname didnot appear in the
list for1911, and declaredC dulyelected. Cacted as councillor
since his election.
On applicationby thesignatoriesof ' therejected nomination
papers for a mandamus on the Chairman to fix a place and datefor election of a councillor,—
Held,(1)That theelection of Cwas notmerely " colourable,’1
and that a mandamus would not He, even if the office were notfilled.
(2) That the Chairmanhad jurisdiction to entertain and dispose
of suchobjections to the reception ofthenomination papersas
those urged against the nomination of A and B.
Whereaperson hasbeenelected de facto 'toa corporate office,
.and has acceptedandactedin the office, thevalidity of the election
and the title totheofficecan be tried onlyquo warranto, and a
mandamus will not lie unless the election can be shown to bemerely colourable. The election will not be 11 colourable ” wherethe party whoseconduct ischallengedhas theright to elect and
acts in good faith, even if he has proceeded upon an erroneousconstruction of the law.
rpHE facts are set out in the judgment.
Drieberg, for the first respondent (Chairman of the MunicipalCouncil), took a preliminary objection.—The applicants ask that therespondent be ordered to appoint a date and hour for the electionof a councillor; and secondly, that the election of Mr. Pererabe declared nullandvoid.The first part isan application for a
mandamus, andthesecond an applicationfor a quo warranto.
Mr. Perera has been elected, and he has exercised tire functions of a ^councillor. A mandamus will not lie, because there has been a 4
41. K.A 99908 (8/50)
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1918# de facto election. The only remedy open under the circumstancesApplication ta the remedy of quo warranto. But the Supreme Court has noMandamusto grant a writ in the nature of a quo warranto. See
Gomes v. Chairman of the Municipal Council of Colombo and Rock-woody1 In re Jaffna Local Board Electiony2 R. v. Beer.3 * Counselalso referred to 8 N. L. R. 300, 9 N. L. R. 159, Reg. v. Chester(Mayor of).4. Rules 8 and 9 in the Schedule B (section 21) givethe Chairman a right to exercise his discretion in deciding thequestion as to the validity of a nomination paper. The powers ofthe Supreme Court were strictly defined by &he Courts Ordinance.The Supreme Court: cannot by mandamus compel the Chairman toexercise his discretion in a particular way./
J. C. Pereira (with nim Elliott) took the same objection onbehalf of the second respondent (Mr. J. A. Perera).—The use of thewo-s2 " v&iiS ” nomination in rule 9 clearly implies that the Chairmanis to judge upon the validity of the nomination paper. Counselreferred to Reg. v. Wehhpool (Mayor of).8
Hayley (with him Zoysa, Arulanandam, and V. Grenier), for thepetitioner.—The Chairman had no power to decide on irregularitieswhich did not appear on the face of the nomination paper. If tenvoters only had subscribed to the nomination paper, whereas thelaw required twenty, the paper may be rejected as invalid. TheChairman had no power to decide upon any matter which theOrdinance did not specially submit to his decision.- In Englandthe receiving officer decides only on questions appearing ex facie onthe nomination paper. 2 Rogers on Election 96; Howes v. Turner;*Prichard v. Bangor (Mayor of);7 Encyclopaedia of Local GovernmentBoard, vol. III., p. 26; Halsbury9s Laws of England, vgI. XIL,p. 343.
Under the Ordinance a certified list is “ final and conclusive,” andthe law makes special provision if the elected councillor has noqualification. Sections 81 and 82 provide a penalty.
The Chairman is only a ministerial officer, and has no discretionto exercise on matters which the Ordinance does not expresslygive him the power to decide.
In any case, if the discretion has been exercised wrongly on amistaken view of the law, this Court has the power to interfere.The question whether a candidate’s name was legally on a list is aquestion of law.
Counsel cited Short on Mandamus, pp. 257, 258, 261, 302, 303, and309; R. v. Deputies of-the Freemen of Leicester;8 Reg. v. Mayor of
1(1911) 12 N. L. R. S.
2(1907) 1 A. C. B. 128.
2 (1903) 72 L. J. K. B. 008.
* (1855) 25 L. J. Q. B. 61.
'• (1876) 35 L. T. N. S. 594.
(1876) 1 C. P. D. 670.
(1886) 18 Q. B.D. 349, 57 L.J.
Q. B. 313.
* (1856) 15 Q. B. 671.
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Monmouth;1 * Queen v. West Riding;* King v. Wiltshire;3 Jayawar- IMS.
dene v. Government Agent, Southern Province;4 and». Harwich
(Mayor of).6'
The election was only a colourable one, and therefore a manda-mus lies. In foot there was no election at all. The Chairmanhas decided, that there was no need for an election under thecircumstances. Counsel cited Short on Mandamus 390, 293; 10Halsbury 81; King v. Mayor of Bedfordshire;e Re Balow;r Kingv. Rector of Birmingham.*
The Chairman must not be allowed to go behind his own actsand declare .the lists invalid. Even if .there wa$ a mistake in thecertifying of the lists, the lists do not become invalid. The provisionsof the Ordinance regarding the certification of lists is only directory,and not imperative. Maxwell on Interpretation of Statutes 554,
564. See also 10 C. P. 733, 30 L. J. C. P. 33, 25 L. J. C. P. 242.
The provision of the Ordinance as to the date of revising thelist is merely directory. See 16 Q. B. D. 244, 19 Halsbury 200,
7 B. & G. 10.
The Chairman was wrong in holding that the lists for 1912 and1913 were invalid. The irregularity in the lists does not annul themaltogether.
/. 0. Pereira, in reply.
Cur. adv. vult.
November 21, 1918. Wood Benton A.C.J.—
t
The applicants move for a writ of mandamus directing the firstrespondent to fix a place, date, and hour for the election of acouncillor for the New Bazaar Division of the Colombo MunicipalCouncil, and declaring the election of the second respondent ascouncillor for that division null and void. The office becamevacant in consequence of .the death of Mr. Hector Jayewardene,
Advocate. On the day fixed for the nomination of candidatesthree nomination papers were tendered to the Chairman of theMunicipal Council. The candidates nominated were Mr. T. G.Jayewardene, Mr. E. W. Jayewardene, and the second respondent,
Mr. J. A. Perera. The applicant, Mr. Brito, was one of the signa-tories of the nomination paper of Mr. T. G. Jayewardene. TheChairman of the Municipal Council held that Mr. Jayewardene’snomination paper was not valid, since the name of the seconder didnot appear in the certified list for 1911 of. qualified voters. Thename of the seconder did appear in the list for 1913. But theChairman held that that list was invalid, on the ground that it hadnot been prepared in accordance with the requirements of theMunicipal Councils Ordinance, 1910 (No. 6 of 1910). The list was
i (1870) L. R. 5 Q. B. 2ol.
5 B. if it. 067.
10 East 404.
4 OS. C. C. 19.
(1858) IB. 4 B. 017.« 6 East see.
7 30 L.J. (Q. B.) 271.
7 A. 4 B. 254.
12
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***** published in the Gazette of October 17, 1018. The publication wasWood notified in two local newspapers on October 23, and the list wascertified on the 81st. There was, therefore, n curtailment by someJ-J-* days of the period of two weeks allowed by section 18 (8) of the^^J^o*** l^n^rmnce *or presentation of claims and objections. SectionMandamus 42 provides * that the new revised list “ so prepared shall be certifiedunder the hand of the Chairman during the last week of the monthof October of each year, and when so certified shall be final andconclusive, and the only evidence, of the qualification of the persons…… whose names appear therein to vote.0 The Chairman
held that, in the circumstances above stated, the list for 1918 hadnot been prepared in accordance with the provisions of the Ordi-nance, and, therefore, could not be certified under section 42,inasmuch as, under that section, it is only a list that has been44 so prepared ° that is capable of certification. In point of law(hat ruling is clearly right. It was contended, however, that theChairman was wrong in holding that the irregularity in the certi-. fieation of the list was of such a character as to annul it altogether.TheChairmanfurther held thatthe listfor1912' wasinvalid,
inasmuch as, while section 42 of the Ordinauce required it to becertified under the hand of the.Chairman during the last week ofOctober, it had not been signed and certified till the 4th of thefollowing November. The result of these rulings was that Mr. T. G.Jayewardone's application stood or fell by the list for 1911. Thatlisthad beenduly certified onOctober81.1911.. Itdid not
contain the name of Mr. Jayewardenes seconder. On this groundMr. T. G. Jayewardene *s nomination paper was held to be invalid.
I come now to the facts material to the consideration of Mr.Brouwers application. He wasone ofthesignatories of the
nomination paper of Mr. E. W. Jayewardene. The name of Mr.
W. Jayewardene was not in the list for 1911 or 1912 of personsqualified to be elected as councillors, nor was it originally in thelistfor 1913.It was, however,added ,to the list for1918 on
Ocf-ober 22,1913, and appears in that list as certified on October 31.The Chairman held that as, for the reasons above stated, the listfor 1918 was invalid, and as Mr. Jayewardene's name did not appearin the valid list for 1911, his nomination, like that of Mr. T. G.Jayewardene must be rejected.
The name of Mr. J. A. Perera appears in* the list for 1911. TheChairman, therefore, held that there had been only one nomination,and, in accordance with the provisions of rule 8 of schedule B ofthe Municipal Councils Ordinance, 1910, declared Mr. Perera dulyelected. Mr. Perera has since his election acted as councillor.The certified copy of the minutes of the proceedings, which has beenput in evidence, shows that all parties appeared by counsel, andthat the rulings of the Chairman on the several questions above notedwere given after Counsel had addressed him.
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Up to a certain point there is no dispute as to the law. Exceptin so far as the rules laid down by them have been modified bylocal enactment, the Court must be guided, in determining whetheror not mandamus lies, by English decisions. It is an inflexiblerule of English law that where a person has been elected de factoto a corporate office, and has accepted and acted in the office, the• validity of the election and the title to the office can be tried onlyquo warranto, and that mandamus will not lie unless the electioncan be shown to be merely colourable. (Reg. i>. Cheater (Mayor of),1R. v. Beer,2 Reg. v. Welchpool (Mayor of).5) The election will notbe “ colourable ” where the party whose conduct is challenged hasthe light to elect and acts in good faith, even if he has proceededupon an erroneous construction of the law. (R. v. Oxford (Mayor of), *It. v. Leeds (Mayor of)5). The Supreme Court will not grant amandamus where the office is full, and has no power to grant aquo warranto. (/» re Jaffna Local Board Election,6 GomesChairman
of the Municipal Council of Colombo and liockwood.7) An inferiorCourt may by mandamus be compelled to exercise the jurisdictionwhich it' possesses, but will not be compelled to exercise thatjurisdiction in a particular way. (Encyclo. Latest of England. 2nded., art. " Mandamusp. 532.).
Counsel for the applicants, while admitting the propositions oflaw which I have just stated, contended in the first place, that theelection of Mi*. Perera as councillor for the New Bazaar Divisionwas only colourable; in the next place, that under the MunicipalCouncils Ordinance, 1910, the Chairman had no right to .entertainsuch objections as those on the strength of which he rejected thelist for 1912 and 1913; and in the last place, that, even if he didpossess such a jurisdiction, he had exercised it illegally.
In my opinion all those contentions fail. I will deal with eachof them in turn. Was Mr. Perera’s election “ colourable It'would not be “ colourable M if the Chairman had a legal right todeclare him elected, and exercised that right in good faith; evenalthough he was wrong in law in supposing that the oircumstancsjustified its exercise. The Chairman's good faith is not impeached.Buie 8 of Schedule B of the Ordinance provides that: “ If onlyone candidate is nominated for a division, and the nomination paperis in order, the Chairman shall declare such candidate duly elected."This rule undoubtedly gives to the Chairman the right to elect iuthe state of matters which it contemplates. Rightly or wrongly,but in either case honestly, the Chairman held that tikis state ofmatters existed, and that only, one candidate had been nominatedfor the division, and declared Mr. Perera duly elected. In my
1 (I&>5) 25 L. J. Q. B, 61.5 (1641) 11 Ad. if E. 512, and vases
(1903) 72 L. J. K. B. 608.cited in Note 1.
(2076) 65 L. T. N. S. 594. 598.6 (1907) 1 A. C. It. 128.
(1867) 6 Ad. <1 E. 849.7 (1911) 12 N. L. it. 8.
1913.
Wood
Bboton
A.C.J.
Applicationfor a
Mandamus.
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IMS.opinion Mr. Perera’s election in these circumstances was not
Wood*' colourable/’ and theoffioe is full. He has admittedly acted as
councillor since his election.
Application ^on point is sufficient to dispose of the case. But
. for a even if the office were not full, I should be of opinion that mandamusMandamus wouij not lie. I think that, under the Municipal Councils. Ordinance,1910, the Chairman had jurisdiction to entertain and dispose ofsuch objections to the reception of nomination papers as thosethat were urged against the nominations of Mr. T. G. and Mr. E. W.Jayewardene. Counsel for the applicants relied strongly on thecases of Homes v- Turner1 * and Pritchard v- Bangor (Mayor off asestablishing the propositions that the only question in regard to anomination paper which a mayor has a right to consider is whetherit is in order in point of form, and that he is not entitled to rejectit ^on the extrinsic ground of an alleged disqualification of theperson nominated. These and similar authorities depend, however,on .the language of special enactments defining the functions of amayor in regard to the reception of nomination papers, and excludingfrom those functions by necessary implication any jurisdiction overquestions as to the personal disqualification of candidates byproviding another tribunal before which such questions may beraised and determined. Admittedly the Chairman, of the MunicipalCouncil must possess the power, which has been held to be inherenteven in the English mayor (cf. Harford v. Linskey3 and Hobbs v.Morey4 to reject a nomination paper on grounds of palpableinvalidity, such as the fact that the persons nominated had notoriouslybeen dead for a long time, or was a woman. But the question isnot, in Ceylon, merely one of inherent powers. The Legislaturehas expressly empowered the Chairman to dispose, subject to anappeal to the Supreme Court, of claims and objections in connectionwith the preparation of the revised lists (sections 15 to 18). He isthe only authority constituted by the Ordinance for receiving anddealing with nomination papers. Such language as we find inrule 9—" if there is no valid nomination paper at all for a division,the Governor may nominate a councillor for such division—clearly implies a power to consider whether a nomination paper isvalid or not, on any ground other than that of personal disquali-fication, for an adjudication on which, here (section 81) as inEngland, the Legislature has made other provision. If the Legis-lature has invested the Chairman of the Municipal Council withjurisdiction of this character, that jurisdiction cannot be reviewedby the Supreme Court by mandamus, unless there has been anactual or a practical refusal to exercise it. The long series ofauthorities ranging from Beg. v. Harwich (Mayor off t.o R. v.
i (1876) 1 C. P. D. 670.3(1899) 1 G. B. at p. 869.
(1886) 18 Q. B. D. 349;(1888) 13.«(1904) 1 K. B. 74.
App. Cas. 241.3(1858) 1 E. it B. 617.
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Board of Education1 place that proposition beyond the reach ofcontroversy. In no case that I am aware of has it been held thatan erroneous view of the law adopted by a judicial tribunal havingjurisdiction to deal with the matter to which that law relates is agood ground for a mandamus, unless Hie view so taken has led to apractical refusal to exercise jurisdiction at all. (Reg v. Monmouth(Mayor of),2 R. v. Deputies of the Freemen of Leicester/ and seeHoward v. Bodington4.
1018.
Wood
Kenton
A.C.J.
Application
fora
Mctndemms
The Chairman has exercised both his implied jurisdiction todecide on the validity of the nomination papers and his expressjurisdiction to declare the candidate whose nomination paper hehas held valid, to be duly elected. In my opinion mandamuswould not lie in the present case, even if the difficulty as to theoffice being full could be got rid of.
I may add that the decision of the Chairman seems to me to besound in law on the merits. The lists for 1918 were not preparedin conformity with the requirements of Ordinance No. 6 of 1910.Counsel for the applicants strenuously argued, however, that theirregularity was only a technical one, and that the provisions ofthe Ordinance as to the preparation and certification of the listsshould be treated as directory and not imperative. I wouldrespectfully adopt the language of Lord Campbell in dealing witha similar argument in Liverpool Borough Bank v. Turners: 14 Nouniversal rule can be laid down for the construction of statutes, asto whether mandatory enactments shall be considered directoryonly or obligatory, with an implied nullification for disobedience.It is the duty of Courts of Justice to try to get at the real* intentionof the Legislature by carefully attending to the whole scope of thestatute to be construed/'
The effect of the irregularity committed in the present case wasto abridge the time allowed by the law for the presentation ofclaims and objections. The applicants* counsel was unable to citeany authority showing that a statutory provision of this charactercould be treated as being only directory. In view of the languageof the Ordinance of 1910 in regard to the preparation aud certificationof the lists as a whole, and, in particular, of the effect given to thelists when certified by section 42, I hold that it is imperative.
Counsel for the applicants strongly pressed upon me the hardshipthat might be caused to voters and candidates if the Chairmanwere recognized as possessing the right to decide without appeal,when an election has reached the stage of the presentation ofnomination papers, whether the lists of voters and persons qualifiedto be elected as councillors were valid. He ^contended also that,
(1919) 2 K. B. 105.* L. R. 2 P. D., at pp. 210t
(1870) L. B, 5 Q1 B. 251.211
a (1850) 15 Q. B. 671; (1859-00) 29. s (1800) Johnson <£ Hemming'sL. J. Ch. 827.Rep. 159.
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if the irregularity in the preparation and the certification of. theWood lists for 1918 were treated aa a fatal one, it would have the effectof disfranchising! through no fault of their own, a large number of- * * otherwise qualified electors.
Thee© are quite legitimate arguments, and I have given themMandamu* due consideration. But they cannot, in my opinion, avail theapplicants in the present case. In delivering his judgment in Inre Jaffna Local Board Election,1 Wendt J. made use of the followinglanguage.:“ In, view of the multiplication of Municipalities, Local
Boards, and simitar institutions, it is most desirable that the lawshould provide some such simple means for determining the validityof a disputed election as the procedure by quo warranto would afford,and perhaps this consideration may induce an amendment of thelaw."
The Legislature has since then had two opportunities of intro*ducing such an amendment of the law as Wendt J. suggested.The Municipal Councils Ordinance, 1887 (No. 7 of 1887), has beenrepealed and re-enacted in substance by the Municipal CouncilsOrdinance, 1910 (No. 6 of 1910), and the Courts Ordinance of 1889(No. 2 of 1889) has also been amended. But no remedy in thenature of a quo warranto has been granted. Nor has any authorityother than the Chairman of the Municipal Council been constitutedfor the purpose of receiving and dealing with nomination papers.It may well be that the Legislature considered that, having madecareful provision for the settlement of claims and objections andfor the erasure of the name of a disqualified councillor by a judicialinquiry, subject in either case to an appeal to the Supreme Court, allother objections to the validity of a nomination paper might safelybe left to the arbitrament of the Chairman, subject to the right ofthe Supreme Court to grant a mandamus where that remedy isappropriate. But, be that as it may, in 6pite of the pointedinvitation addressed to the Legislature by Wendt J. in In re JaffnaLocal Board Electionthe law stands where it did in 1907. TheSupreme Court has no power to step in where the Legislature hasdeclined to tread. Nor can 1, merely because of the inconvenienceor hardship which a ruling to that effect may cause to individualelectors or candidates, hold that a curtailment of the statutoryperiod for the presentation of claims and objections in connectionwith the preparation and certification of the revised lists is. anythingelse or less than a denial of a substantive right, rendering any lists,in the preparation of' which such an irregularity has occurred,incapable of being certified as having been prepared in accordancewith the provisions of the Ordinance.
The applications are dismissed with costs.
Applications refused.
i (1907) 1 A. C.R. m% p. m