088-NLR-NLR-V-44-COSTA-Petitioner-and-JAYAWARDENE-Respondent.pdf
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Costa and Jayawardene.
1943Present: de Kretser J.
COSTA, Petitioner, and JAYAWARDENE, Respondent.
In the Matter of the By-election for the KelaniyaElectoral District.
Election petition-;—Security by deposit of cash—Security to be made in name ofpetitioner—Deposit of money with the Deputy Financial Secretary—Election (State Council) Petition Rules, 1931, Rule 12 (1).
Under Rule 12 (1) deposit of money by way of security for payment ofcosts must be made in the name of the petitioner even when it is madeby some other person.
v It must be stated that the security was intended to cover the paymentof all costs, charges and expenses as may become payable by the petitionerin the election petition.
Deposit of money with the Deputy Financial Secretary and a receiptfrom him would be sufficient.
T
HIS was an election petition in which the respondent filed objectionsto the security alleged to have been deposited on behalf of the
petitioner.
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DE KRETSER J.—Costa and Jayawardene.
H. V. Perera, K.C. (with him M. T. de S. Amerasekere, K.C.,N. K. Choksy, C. S. Barr Kumarakulasingham, V. F. Guneratne, andH. W. Jayewardene), for respondent.
A. R. H. Canekeratne, K.C. (with him P. Navaratnarajah), forpetitioner.
Cur. adv. vult.
June 18, 1943. de Kretser J.—
The respondent filed objections to the security alleged to have beendeposited on behalf of the petitioners. Of the five objections taken,
I intimated during the hearing that I was disposed to entertain only oneof them, but Counsel pressed me on the other points too and earnestlydesired that I should express an opinion on those as well.
Rule 12 (1) requires that at the time of the presentation of the petitionor within three days thereof “ Security for the payment of all costs,charges and expenses that iriay become payable by the petitioner shall begiven on behalf of the petitioner ”.
Rule 12 (3) provides that if the security is not given by the petitionerthe Judge might direct the dismissal of the petition.
The respondent contended that security should be given by thepetitioner himself or at least in his name, while the petitioner’s positionwas that because security was to be given “ on behalf of the petitioner ”therefore the security should be given not fiy the petitioner but by someother person on his behalf.
Counsel referred me to the case of Pease v. Norwood1 where theopinion was expressed that security must be given by persons other thanthe petitioners themselves. That was a case dealing with a recognisanceand the remarks made in the case applied only to that form of security.Rule 12 (3) of our rules found no place in the English law, and somemeaning must be given to the provision, which implies that securitymust be given by the petitioner. Besides, the English decision went notmerely on the words “ on behalf of ” but on other provisions in the ActIn Ceylon in the case of Silva v. Karaliadde2, Drieberg J. held that wheresecurity was given by recognisance the bond must be signed by thepetitioner as well as by the sureties. This view was endorsed by aDivisional Bench in the case of Mendis v. Jayasuriyas. “ On behalf of thepetitioner ” does not necessarily mean that security should be given bysome other person, for “ on behalf of ” the petitioner means nothingmore than on his part or on his side. A petitioner making a deposithimself 'would be quite correct in saying—" I make this deposit as securityon my behalf ”. Where the sentence is differently turned the languagewould alter but the meaning would be the same. I cannot see any reasonfor the security not being deposited by the petitioner himself. It is thepetitioner who, if unsuccessful, will be condemned to pay costs, and unlessthe security , is identified as having been made available for such coststhe deposit cannot be drawn upon. In my opinion, therefore, the depositmust be made in the name of the petitioner even where it is made bysome other person. In this case it was not even stated to be made onhis behalf.
' L. R., i C. P. 235, at p. 249.*33N. L. R. 85.s 33 N. L. B. 121.
DE KRETSER J.—Costa and Jayawardene.
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Rule 14 (3) seems to me to confirm this view, for when any excess is-available the Chief Justice may direct payment either to the “party inwhose name the same is deposited or to 'any person entitled to receivethe same ”. It is not without significance that we have the party in.whose name the same is deposited distinguished from the “ person ”entitled to receive the same.
Objection was also taken that the security was not expressed to befor the payment of all such costs, charges and expenses as may become pay-able by the petitioner. The receipt which has been filed merely says"Security in respect of Election Petition for Kelaniya By-Election”.It is true the security has been lodged in connection with this petitionby the proctor who filed the petition now being dealt with, but in myopinion the receipt itself should be quite explicit on the point. Theoral evidence only made the position of the petitioners worse, for boththe depositor and Mr. Stanislaus of the Treasury said that the wordsappearing on the receipt were exactly what the depositor said whenmaking the deposit. One of the petitioners was, it is alleged, presentat the time but the depositor made no reference to him and, from themanner of his evidence, it is very doubtful whether the depositor under-stood that he was making his money available as security for any costspayable by the petitioners. He seemed to be under the impression thatthe deposit was just one of the formalities needed on such an occasion.As Mr. Perera contended with great force, it should not be open to partiesto supplement defects in the document required by the rules by means oforal evidence. Suppose the depositor had made the deposit in respectof a petition which he intended to file himself, would it be open to him tofile the receipt and say later that the security was with respect to someother petition ? Had no question arisen and had there been occasionto draw upon the deposit, the depositor might well have come forwardand claimed that the deposit he made was not in respect of this particularpetition and have given evidence to suit the position he was taking up,such as alleging that the receipt had been stolen from him or misappliedby his proctor. In my opinion, therefore, the objection on this groundis sound and the result is that no security has been given either by thepetitioners or on their behalf. The consequence is that this petitionmust be dismissed.
The" depositor stated very emphatically that at the time he made thedeposit the petition had not been filed, and on this statement a furtherobjection was raised that the deposit had not been made as required bythe Rule. The petition had been received by the Registrar at 1.30 ,p.m.as his endorsement indicates. The depositor stated that he left theproctor’s office at about 00 and considering that he had to make thejourney to the Fort and had met with delay at the Treasury it is mostlikely that the deposit was made later than 1.30 p.m. It is ‘surprisingthat the proctor sent no letter coverihg the deposit nor even instructedthe depositor carefully. He had merely told the depositor to go to theTreasury and deposit the money and this tbe depositor did, having noidea of the requirements of the rule nor even of the reason for the depositperhaps.
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DE KRETSER J.—Costa and Jayawardene.
It was also urged that the deposit had not been made with the FinancialSecretary but with the Deputy Financial Secretary, who had issued the.receipt instead of the Financial Secretary doing so. In my opinion thisobjection is unsound for many reasons. By section 3 of the Order inCouncil the Interpretation Ordinance was made to apply to the Order inCouncil, and section 11 of the Interpretation Ordinance states thatreference to a Chief or Superior Officer was sufficient to include a deputyor subordinate authorised to act for the chief or superior officer. Therule therefore can be interpreted to mean a deposit with the DeputyFinancial Secretary, and a receipt by him would be quite sufficient.Mr. Perera sought to limit the meaning of section 11 to a “true deputy”,as he called it, and argued that the Deputy Financial Secretary being theHead of a Department, i.e., of the Treasury, was not a deputy. There isno evidence to justify this contention,' and .besides the word “ deputy ”in section 11 is not restricted in any way.
If one looks at the reason for the deposit one sees at once that all thatis required is a deposit at the Treasury and a receipt from the dulyqualified officer there.
» In England the deposit is made in the Bank of England and placed.in a separate account which is operated on by the Chief Justice. TheEnglish rule was adapted to meet conditions in Ceylon and the moneyplaced where Government money is placed, and the^ Chief Justice thenoperates on it. Money placed in a bank would go to its credit and wouldnot be placed in a separate chest. So in Ceylon the money is credited toGovernment and an account opened on which the Chief Justice operates.The mOney is earmarked through the account and the account must bein precise terms and must refer to the particular petition and not vaguelyto the “ Kelaniya By-Election Petition”.
The. history of the Constitution of Ceylon makes the position equallyclear'. “ Financial Secretary ” was merely a new name for the ColonialTreasurer, and the Amendment to the Interpretation Ordinance alsomade in 1931 by Ordinance No. 8 of 1931, expressly states that whereearlier enactments referred to the “Colonial Treasurer” or “the Treasurer”the words “Financial Secretary ” should be substituted. The FinancialSecretary was thus the Treasurer for the Island. Schedule II.' of theOrder in Council allocated duties to him and chief among the mattershe was to be in charge of were Finance and Supply. This was exactlythe position of the Treasurer. When, therefore, the rule required themoney to be deposited with the Financial Secretary all it meant was thatit was to be deposited in the Treasury. The Order in Council providedfor the Governor making a distribution of duties among, the variousMinisters and Officers of State. That would be merely a supplementingin detail of what the’ Order in Council had allocated generally in theSchedules. Accordingly a Manual of Procedure was drawn up consistingof the orders made and published in the Gazette. This allocation waspurely administrative in its nature and did not relieve the FinancialSecretary of the responsibility dast upon him by the Constitution. Inthis Manual the first of his functions was .the receipt of public money.The Financial Secretary in his capacity of an Officer of State had certaindepartments placed in his charge. This did not mean that" his own
DE KRETSER J.—Costa and Jayawardene.
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department passed out of his charge. Departments were needed for theconvenient and proper performance of his functions and he naturallyentrusted each department to a separate Head. His own departmenthe entrusted to a deputy and to assist him in his political capacity hecreated a new department called his Secretariat. Mr. Perera based hisargument on this Manual of Procedure, but one must not forget that theManual was intended for departmental use and not for the guidance ofthe Courts. Neither the Financial Secretary nor the Governor could haveabrogated (nor did they intend to) the Order in Council. Mr. Pereraargued that the name “ Deputy Financial Secretary ” was just a labeland had no particular significance. One can scarcely believe that thebrains of Government could not have invented some other name if it wasintended to suggest that the Financial Secretary’s deputy was not reallyhis deputy but an independent officer. Mr. Stanislaus said that if theneed arose the Deputy Financial Secretary would take directions from theFinancial Secretary.
The income from all Government Departments finds its way to theTreasury and the control of the Treasury is one of the most importantduties of Government and its state of primary importance : it was theFinancial Secretary’s special province, though he might administer itthrough a deputy.
The last objection was as to the form of the petition and the sufficiencyof the security. I referred briefly to a similar matter in my. order reportedat page 567 of Volume XLJI of the New Law Reports. In that case noobjection had been taken to the form of the petition and my remarkswere purely obiter and made without my attention having been drawnto the decision of Drieberg J. in TiUekewardene v. Obeyesekere 1 endorsedby Maartensz J. in Vinayagamoorthy v. Ponnambalam8. The decision ofDrieberg J. is directly in point. Mr. Perera strongly urged upon me toreconsider the question in view of its importance. Had it been necessaryto decide the point I should have referred it to a Divisional Bench. Indeference to Mr. Perera’s appeal all I would say is that I consider thequestion well worth the attention of a fuller Bench or of the Legislature.Drieberg J. had not before him 'an important piece of evidence, viz.,the Report of the Donoughmore Commissioners, whose recommendationhas been adopted almost verbatim in rule 12. That report clearly indicatesthat they contemplated specific charges (except of course when generalcharges were permitted by certain sections), and that in fixing the amountof security they had in mind specific charges and not merely types ofoffences. Drieberg J. was largely influenced by an English decisiongiven after the Act of 1868, when bribery and other matters were notas yet criminal offences and when a petition was an indictment againstan electorate rather than a charge against individuals. The decision Waslargely affected by the earlier history of the procedure on petitions.We had no such earlier history, and the history of the present legislationappears only from the Report of the Donoughmore Commissioners.
In England the nature of election inquiries rapidly improved andpetitions became rare, and yet later judges had occasion to remark onthe desirability of charges being more specifically made. In England the-> 33 N. L. R. 65.* 40 N. L. R. 17S.
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MOSELEY A.C.J.—The King v. Dassenayake.
.amount of security was fixed, as in Ceylon before the present Rules, and■did not depend on the number of charges, and the change in Ceylon seemsto have been made for special reasons. We have no idea whether inEngland charges were as recklessly made as they appear to be in Ceylon.In the case last dealt with, out of 105 charges only 5 were established, andthere appears to be good reason why we should not follow Englishprecedents if local conditions call for different lines of action, and if theimprovement can be made within the language of our rules. The presentpetition is particularly bad in its vagueness and the scope it affords forvexatious charges to be fabricated. General charges stand on quite adifferent footing and receive quite different treatment. All these mattersmay well receive further consideration on a suitable occasion.
As already ordered, the petition is mismissed but without costs.
Objection upheld.