002-SLLR-SLLR-1992-V-1-COSTA-v.-ROWELL.pdf
COSTA
v.ROWELL
COURT OF APPEALWIJETUNGA, J. &
ISMAIL, J.
A. NO. 27/83(F)
C. NEGOMBO NO. 2653/L5 AND 12 JUNE 1991
Servitude of cartway – Prescription – Necessity – Division of larger land intosmaller Lots.
Held:
Where a larger land, one of the boundaries of which, is a public roadway servingalso as access, is divided into smaller lots, and a subdivided lot becomeslandlocked in the process, the landlocked lot retains its access to the public roadand is entitled to a right of way of necessity over the other intervening subdividedlots along the shortest and most convenient route to reach the public road. Sucha landlocked lot cannot have a right of way of necessity over a neighbour’s landeven though it may be a shorter and more convenient access.
Case referred to:
(1) Nagalingam v. Kathirasapillai 58 NLR 371.
APPEAL from judgment of the. District Judge of Nlegombo.
N. R. M. Daluwatte, P.C. with P. Keerthisinghe and Miss S. Abeyjeewa fordefendant-appellant.
Sunil Cooray with Chitrananda Liyanage for plaintiff-respondent.
Curadvvult.
4th October, 1991.
WIJETUNGA, J.
The plaintiff instituted this action claiming inter alia a right of cartroad marked ABC in Plan No. 3528/1980 dated 5.7.80 made by H. L.Croos Dabarera, Licensed Surveyor (P1), by right of prescriptionand/or by way of necessity.
The defendant filed answer denying that the plaintiff had a right ofway over his land and further stating that the plaintiff’s land was aportion of a larger land which had been blocked out into four lots andgifted by her parents to their four children, including the plaintiff. Healso claimed that there was a roadway 6 feet wide from the plaintiff’sland to the Wewala-Kalaeliya main road, referred to in Deed No. 6169dated 24.10.1945 (V3). He sought inter alia a dismissal of theplaintiff’s action.
However, on the facts, the learned District Judge has found thatthe grandparents of the plaintiff, viz. Anthony Perera and Maria SalePeiris had gifted the said block of land to Mary Perera, the mother ofthe plaintiff, by deed No. 6168 dated 24.10.45 (V2), who in turn hadgifted the same to the plaintiff by deed N5. 2087 dated 1.10.76 (P5).He has further found that the grandparents of the plaintiff had, on thesame day viz.. 24.10.45, gifted the other divided blocks to a grand-daughter Leticia Nonis on (V3), a daughter Juliyana Perera on (V4)and a granddaughter Lily Harriet Nonis on (V5).
The case went to trial on a number of issues and the learned trialjudge, while holding that the plaintiff was not entitled to the roadwayclaimed by her by right of prescription, nevertheless held that shewas entitled to a roadway over the defendant’s land by way ofnecessity. He, therefore, made order granting the plaintiff theroadway AB which is along the eastern boundary of the defendant’sland, with a diversion at B, (as the roadway cuts across thedefendant’s land from B to C) so that the roadway from B would bealong the northern and eastern boundaries of the defendant’s land.The plaintiff was liable to pay compensation to the defendant for theroadway and the surveyor was to submit a valuation regarding thecompensation payable for the same, so that the court coulddetermine the quantum of compensation. The plaintiff was alsoawarded costs of action. It is from this judgment and decree that thedefendant has appealed to this Court.
Among the issues raised by the defendant at the trial were the
following:—
Is the land of the plaintiff a portion of the larger land?
Is the larger land situated to the south and east of the plaintiff’sland?
Is the larger land abutting Wewala-Kalaeliya high road?
These issues have been answered by the District Judge in theaffirmative. .
The learned trial judge has further found on the facts that, out ofthe larger land, only the block gifted to the plaintiff’s mother by (V2)which in turn was gifted to the plaintiff by (P5) did not border the roadand was thus landlocked, while the other blocks of land abutted theU.C. road, viz. the Wewala-Kalaeliya road on the east. The fact thatthe land of the plaintiff is landlocked has been conceded by thedefendant himself.
While the trial judge held that the roadway ABC constituted theshortest and convenient access from the plaintiff’s land to SuhadaMawatha, he did not consider the alternate road XYZ (depicted inplan 3557/1980 dated 22.8.80 (P3), at all convenient.
The sole matter urged before us by learned counsel for theappellant was that the plaintiff’s land being a portion of the largerland which was abutting the main road, which portion had in theprocess of subdivision got landlocked, the plaintiff was not entitled toa right of way of necessity of the land of the defendant, being theland of a stranger, as such blocking out does not impose a servitudeover the neighbour’s land. It was his submission that the plaintiff wasentitled instead to a roadway over the intervening subdivisions toreach the main road and that the question of convenience did notarise. He relied on the case of Nagalingam v. Kathirasapillai(1), whereGratien, J. held that where a land, one of the boundaries of which is apublic lane, is split up into two or more portions, the back portion,which would otherwise be landlocked, must retain its outlet to thepublic lane over the front portion, even in the absence of an expressreservation of a servitude. The splitting of the land cannot impose aservitude upon the neighbours.
Learned counsel for the respondent, on the other hand, submittedthat the house of the plaintiff faced the defendant’s land and wascloser to the defendant's boundary, as found by the learned DistrictJudge and he was right in granting a right of way of necessity overthe defendant's land. He further submitted that the case presented tothe District Judge was not on the basis of the legal principlesenunciated in Nagalingam v. Kathirasapillai (supra) and, therefore,sought the dismissal of the appeal.
As mentioned above, the learned trial judge has come to aspecific finding that the land of the plaintiff is a portion of the largerland which is situated to the south and east of the plaintiff's land andthat the larger land abuts the Wewala-Kalaeliya high road (i.e. theU.C. road). The plaintiff’s land is the back portion of the said largerland, which due to the subdivision has become landlocked. Both inthe answer of the defendant as well as in the issues raised at the trial,this question had been in the forefront of the case. The consequentialissue No. 11 which referred inter alia to issues 6, 7 and 8, waswhether if these issues were answered in the defendant’s favour, theplaintiff could have and maintain this action. The learned trial judgehaving answered that issue as “does not arise”, was in my opinion inerror.
As stated by Maasdorp, in his Institutes of South African Law,(1960 Ed.) Vol. II at page 138, “In the case of a subdivided property,the owners of each of the subdivisions will be entitled to the use of away of necessity to which the undivided property was entitled, and ifany of the subdivisions are cut off from access to the right of way, theowner is entitled to a road over intervening subdivisions to enablehim to reach it.”
In the instant case, therefore, on the findings of the learned trialjudge, the larger land having abutted a public highway, and theplaintiff’s land, which due to subdivision had become the backportion and was landlocked, thus became entitled to a roadway overthe intervening subdivisions by the shortest and most convenientroute to enable the plaintiff to reach the said public highway. Byreason of the said subdivision, a servitude could not be imposedupon the defendant who was qnly a neighbour.
Even if the access to the U.C. road would be less convenient fromthe point of view of the plaintiff, she would not be entitled to claim aright of way on the ground of necessity over the neighbour’s land,when she has a legal right of access to the public highway over theintervening subdivisions of the larger land.
For the reasons aforesaid, I am of the view that on the basis of thelegal principles enunciated in Nagaiingam v. Kathirasapillai (supra),the defendant’s appeal is entitled to succeed. I would, therefore,allow this appeal and dismiss the plaintiff’s action with costs in bothCourts.
ISMAIL, J. – / agree.
Appeal allowed.
IVAN APPUHAMY AND ANOTHER
v.CHANDANANDA DE SILVA,COMMISSIONER OF ELECTIONS AND TWO OTHERS
COURT OF APPEALS.N. SILVA, J„
C.A. APPLICATION NO. 530/9112,13 AND 19 DECEMBER 1991
Writ of Mandamus – Election Law – Count of preference votes – Right ofcandidates to be present – Local Authorities Election Ordinance of 1947 asamended by Law, No. 24 of 1977, Act, No. 24 of 1987 and Act, No. 25 of 1990(ss. 60, 62(1), 63(7), 67(8) ).
Held :
The Local Authorities Election Ordinance promulgated on 10.2.1947 has beenpreserved in its framework although it has been subject to extensive amendmentsfrom time to time. When the fifteen amendments effected to the Ordinance,commencing from 1947 and extending to 1990 are examined, it is clear that someamendments that have been put through could be aptly described as radicalalterations in the scheme of elections.
Upon the amendment by Act, No. 24 of 1977 to the Local Authorities ElectionOrdinance of 1947, the election was to take place for the entire area of the LocalAuthorities and not as previously to wards within a local authority. A recognized-political party or an independent group had a right to nominate lists of candidatesfor the Local Authorities (Section 28). These lists had a predetermined orderwherein the names appearing as first and second were the candidates for theposts of Mayor and Deputy Mayor of each political party or independent group.The votes in respect of the entire Local Authority were counted at one countingand the result declared based on the total votes cast in favour of each recognizedpolitical party or independent group. (Section 65). Candidates on the respectivenomination papers filed were declared elected according to the order in whichtheir names appear in the nomination paper, on the basis of the proportion ofvotes received by each political pairty or independent group (Section 63 (1), 9a)).
In the scheme of elections introduced by Law, No. 24 of 1977 the materialfactors were the number of votes polled by the respective parties or independentgroups and the predetermined order in which the candidates’ names appear inthe nomination papers that were filed. The sole concern of the candidates was tosecure more votes for the party or the group and not to seek preference votesfrom the voters.
Section 60 of the Local Authorities Election Ordinance was amended by Law,No. 24 of 1977 and took away the right of a candidate and his agent to bepresent at counting and call for a recount. It is clear that the right of a candidateto appoint a counting agent and his right to seek a recount as contained in theOrdinance, were removed in .view of a altered scheme of elections wherein thecandidate had no indivirfuaf interest in the count and had only a collectiveinterest. Under the amended law, the Secretary or the agent of a recognizedpolitical party or a leader of an independent group that had nominatedcandidates at the election couldrappoint by written notice not more than twocounting agents to attend each place where the counting takes place and also toattend the proceedings where the result is declared by the Returning Officer interms of section 65.- – ;
The next change was by Act, Mo. 24 of 1987 which provided for the voters toindicate their preferences for candidates whose names on each list filed by therespective parties or independent groups. The voter had the right to indicatethree preferences of candidates of the party or group for which he casts his votebut there was a restriction by which only o.ne preference may be indicatedagainst a candidate. This restriction was removed by the amending Act, No. 25 of1990. Thus a candidate could be given all three preference votes by a particularvoter. Hence a candidate whose name appears on the list has a live interest inensuring that his preference votes are accurately counted.
A counting agent appointed to represent the collective interests of the party orgroup cannot be expected to watch the individual interests of candidates withinsuch party or group who are rivalling with each other for preference votes.
The amendment effected by Act, No. 24 of 1987 necessarily resulted in thecounting being done in two stages. This-reflects two aspects bf. the choice givento voters. The choice of a party or group and the choice of candidates within the „chosen party or group. Different interests emerge at these two stages of the countas in the electoral process which preceded it. It has to be borne in mind thatlegislative history reveals that in the original scheme, of elections where individualcandidates were contesting with each other, the applicable provisions permittedeach candidate to appoint a counting agent and the candidate or the countiingagent to seek a recount. The provisions were amended to what they are nowwhen the scheme of elections introduced in 1977 removed a contest inter seamongst individual candidates and the voters had a choice only of lists ofcandidates. Therefore, the provisions of section 60 with regard to the appointmentof counting agents and section 63(7) with regard to recounts should have beenamended to bring these provisions in line with the scheme of elections introducedby Act, No. 24 of 1987. The failure to effect such amendments is a lacuna in thelaw.
The adverse impact of the lacuna in the law could have been avoided to aconsiderable extent by administrative action. Sections 60. and.62(1) are based onthe premise that the counting officer has a discretion as to the persons who maybe permitted by him to be present at the counting. This discretion could belawfully exercised to permit individual candidates and their agents to be. presentat the second stage of the count when preference votes are counted.Section 63(7) also vests a power in the counting officer to carry out such numberof recounts as may be- deemed necessary. This power could have beenexercised on an application- of a candidate or his agent if they were permitted tobe present at the count •
An exercise of power as above would be consistent with the general legislativepurpose of the Ordinance of ensuring a fair and accurate result of the votes castat an election.
The Elections Officer by circular 2RI restricted the exercise of the discretionvested in the counting officer by barring candidates from being present at thecount when they have the greatest interest in ensuring that the count is accuratelydone. The circular is ultra vires and aggravates'.the adverse impact of the lacunain law.•,
Where the same officers had done the main count as well as the count ofpreference votes non-stop for long hours, the likelihood of error is there. Furtherthe process of recording the preferences Indicated in a ballot paper on separatesheets of paper manually leaves room for human error. If the candidates and theiragents had been present such error would be minimised.
The petitioners have made outa fofpiidable case bn the basis of a lacuna inthe legislation, illegal administrative action in the matter of issuing circular 2RIwhich worsened the adverse impact of the lacuna in the legislation, the manner ofcounting and a serious irregularity in the. declaration of the result of thepreference votes-.
Section 67(8) makes the decision of the counting officer as to any questionarising in respect of any ballot paper final and conclusive. But this provision doesnot deal with the general manner in which the counting took place and the fact ofthe candidates not being permitted to be present at the count. The remedy byway of judicial review to verify the count is available to an aggrieved party. Thewrit of mandamus is the remedy available at public law for enforcing theperformance of public duties by public, authorities. The writ of quo warranto willissue where a person acts in an office to which he is not entitled. Here howeverthe petitioners seek verification by a recount and mandamus is the appropriateremedy.
Cases referred to:
Piyasena v. De Silva-53 NLR 460,464.
R. v. Hanley Revising Barrister (1912) 3 KB 518, 529.
APPLICATION for writs of certiorari and mandamus.
Asoka Gunasekera with H. A. Seneviratne for petitioners.
K. C. Kamalasabayson, D.S.G,-with K. Sripavan, S.S.C. for 1st and 2nd
respondent.
K. S. Thillakaratne for 3rd .respondent.
Cur adv vult.
24th January, 1992.
S.N. SILVA, J.
The Petitioners were candidates of an independent group, thatcontested the election for the Negombo Municipal Council, held on11.05.1991. They have filed this application for Writs of Certiorari andMandamus. The Writs Of Certiorari are to .quash the determinationmade by the 2nd Respondent (the. Returning Officer) as to thenumber of preference votes received by each candidate of theindependent group and the declaration that six candidates of thatgroup have been elected. The Writ of Mandamus is for- a recount ofthe preference votes cast for the candidates of the independentgroup. Learned Counsel for the Petitioners submitted that the mainrelief sought is the Writ of Mandamus since the Petitioners and all theother candidates of the independent group are not satisfied with themanner in which the preference votes were counted and with theresult that has been declared.:This application to Court was in factpreceded by a written request by all 28 candidates of theindependent group, including the candidates who were declaredelected, for a recount of the preference votes, on the basis that theywere all not satisfied'with the count that has been done. The writtenrequest marked X3A was sent with letter dated 25.05.1991 of the 1stPetitioner (X3), to the 1 st Respondent (Commissioner of Elections)with copy to the Returning Officer. The Commissioner and the
Returning Officer, did not reply the. letter and the Petitioner filed thisapplication on 21.6.1991.
All the candidates of the independent group other than the twoPetitioners have been made Respondents to the application. Theyare the 3rd to 28th Respondents. On notice being issued only one ofthese Respondents namely, the 3rd Respondent, being the leader ofthe independent group filed objections. He is one of the signatoriesto the request X3A for a recount and he had not disputed any of theaverments of fact in the petition and affidavit of the Petitioners. Theonly matter stated in his affidavit is that six candidates of theindependent group have been declared elected and that they will be"held in abeyance on account of this application”. Therefore, thisapplication presents a unique situation where all the candidates,including those who have been declared elected, state that they arenot satisfied with the count that h.as been done but the ReturningOfficer takes a persistent stand that the count has been properlydone and that there should be no recount at this stage although theballot papers have been duly preserved on an interim order made bythis Court. The Returning Officer has gone to the extent of stating"specifically” in his affidavit “that the counting of preference voteswas done accurately and properly” (paragraph 9 of the affidavit)whereas he was not one of the counting officers.
The Petitioners make no complaint as to the main count of ballotpapers and the statement of the number of votes polled by therespective parties and the independent group, at the election. Theircomplaint with regard to the count of preference votes stems from analleged denial of an opportunity to the individual candidates or theiragents, to be present at the counting of these votes. The 2ndPetitioner was in fact a counting agent of the independent group but,it was submitted that he was there to represent the group and toensure that the votes cast in favour of the group are properly countedand not to represent each individual candidate in the counting ofpreference votes. The Petitioners have stated that at thecommencement of the count of preference votes the candidates ofthe independent group requested their leader, the 3rd Respondentthat they or their counting agents be permitted to be present at thecounting of votes. The 3rd Respondent had pointed out thataccording to the .instructions given by the Commissioner and theReturning Officer an individual candidate or his agent are notpermitted to be present at the count of preference votes. The 3rdRespondent has not disputed, these averments and it appears that hegave .the .information on the strength of circular marked 2RI issued toall authorised agents of political parties and leaders of independentgroups. Paragraph (3):of this circular states that a party or anindependent group can be-represented by only two persons at eachcounting centre and that no candidate has a right to enter a countingcentre by virtue of onlyvhis candidature. The first part of thisparagraph with regard to the number of counting agents is based onsection 60 of the Local Authorities Elections Ordinance as amendedby Law No. 24 of 1977. Learned Counsel for the Petitioners submittedthat the second part is ultra vires and illegally restricts the basic rightof a candidate to ensure that the votes cast in his favour are properlycounted. It was also submitted that the law does not deny to acandidate this basic right and that the circular fetters the discretionvested in a counting-officer to regulate the persons who may bepermitted to be present at the counting. Learned Deputy Solicitor-General appearing for the 1 st and 2nd Respondents submitted thatin terms of sections 60 to 62 of the Ordinance only the countingofficer, his assistants and the counting agents could be present at thecount and that “a candidate has no place at the count of votes”. Itwas further submitted by him that the impugned paragraph of 2RIcorrectly sets out the legal position and is valid.
It is convenient at this stage to examine the legal provisionsrelevant to the matter of counting votes, .'especially because the 1stand 2nd Respondents are resisting the application for. a recount onthe principal ground that no application was made for a recount atthe appropriate stage, prior to the declaration of the result.
Section 60 of the Ordinance as amended by Law No. 24 of 1977permits the Secretary or the agent of a recognized political party or aleader of an independent group, that has nominated candidates at anelection, to appoint by written notice, not more than two countingagents to attend each place where the counting takes place and toattend the proceedings where the result is declared by the ReturningOfficer, in terms of section 65. The provisions that follow regarding
the arrangements for the count (section 61), the opening of ballotboxes and the counting, of .-the entire number of ballots[section 62(2)], the rejection of votes [section 63(3)], applications forrecounts [section 63(7)] arid the preparation of the written statementsof votes [section 63(6)] refer to the presence of counting agents. Assubmitted by learned Deputy Solicitor-General these provisions donot refer to individual candidates hor do they provide for any acts tobe done by such candidates at the relevant stages. But, beforedetermining the matter upon such a narrow and literal construction, Iam inclined to the view, submitted by learned Counsel for thePetitioners, that the scheme of elections as provided for in theamended Ordinance, the provisions in operation previously and thediscretion vested in a counting officer to permit any person to bepresent at the counting by sections 60 and 62(1), should beconsidered.
The Local Authorities. Elections Ordinance promulgated on10.02.1947 has been preserved in its framework although it has beensubject to extensive amendments from time to time. When the fifteenamendments effected to the Ordinance, commencing from 1947 andextending to 1990 are examiriecb 'it is clear that some amendmentsthat have been put through;could be aptly described as radicalalterations in the scheme of elections.
The Ordinance originally provided for elections to Local Authoritieswhere the area pf each Authority was subdivided into wards.Nominations were received from candidates {whether of recognizedpolitical parties or independent), in respect of each ward[section 28(,1)]. The declaration of results was also in respect of eachward [section 66(1).] Section 60(1) provided for each candidate tonominate one counting agent to attend the place where the count isdone. The proviso to section 65 gives a right to a candidate or hiscounting agent to apply for a recount before the declaration of theresult. It is seen that the Law provided a candidate an ampleopportunity to ensure that the count is properly done in view of hisinterest in the result.
Law No. 24 of 1977 effected amendments to the Ordinance thatwere primarily designed to alter the aforesaid scheme of elections.
The election was to take place for the entire area of the LocalAuthority. A recognized political party or an independent group had aright to nominate lists of candidates for the Local Authority(section 28). These lists had a predetermined order wherein thenames appearing as first and second were the candidates for theposts of Mayor and Deputy Mayor, of each political party orindependent group. The votes in respect of the entire Local Authoritywere counted at one counting and the result declared based on thetotal votes cast in favounof each recognized political party orindependent group (section. 65). Candidates on the respectivenomination papers filed were declared elected according to the orderin which their names appear in the nomination paper, on the basis ofthe proportion of votes-.received by each political party orindependent group [section 65(1)(d)].
Therefore, it is seen that in the. scheme of elections introduced byLaw No. 24 of 1977, the material factors were, the number of votespolled by the respective parties or independent groups and the pre-determined order in which the candidates’ names appear in thenomination papers that were filed. The sole concern of thecandidates was to secure more votes-for the party or the group andnot to seek preference votes from the votersJThe specimen ballotpaper in the Third Schedule did not carry the names of or anyreference to, the individual candidates^;
Section 60 was amended by Law No. 24 of 4977 providing forcounting agents to be appointed only .by the'Secretary or theauthorised agent of the party or by-the group,leader of anindependent group. The right to seek a recount wad given to thecounting agent thus appointed [section 63(7)]. (It is clear that theright of a candidate to appoint a counting agent and his right to seeka recount.as contained in the Ordinance, were removed in view ofaltered scheme of elections wherein the candidate had, no individualinterest in the count and had only a collective interest).
The next change was introduced by Act No) 24 of 1987. Thisamendment provided for the voters to indicate their preferences forcandidates whose names appear on each list filed by the respectiveparties or independent groups. In the ballot paper the candidates areto be denoted by a serial number assigned to them, to bedetermined from the alphabetical order of the names of thecandidates [section 38(1)(b)J. The voter had the right to indicatethree preferences of candidate^ of the party or group for which hecasts his vote. It was provided that only one preference may beindicated in respect of each of the three candidates [section63(6)(b)]. This restriction of indicating only one preference for acandidate was in itself removed by the amendment effected by ActNo. 25 of 1990 even before any election was held under the 1987amendment. Therefore, a candidate may be given all threepreference votes by a particular voter. It is seen that in the scheme ofpreference votes provided for by Act No. 24 of 1987 as amended byAct No. 25 of 1990 a candidate whose name appears on the list hasa live interest in ensuring that his preference votes are accuratelycounted. However, section 60 which provides for counting agents tobe appointed only by the party or the group and section 63(7) whichgives a right only to such a counting agent to seek a recount was notamended.
The omission to amend section 63(7) with regard to recounts isobvious. Section .63(6), prior to the amendment of 1987, provided fora counting officer to prepare a written statement of the votes given foreach party or group. In his context it was provided by section 63(7)that a recount may be done on the application of a counting agentbefore a written statement as provided for in section 63(6) is made.With provision'for preference votes to be cast for respectivecandidates being made section 63(6) was amended in 1987 byproviding for the preparation of two written statements by thecounting officer. The first statement indicating the number of votespolled by the respective parties or groups and the second statementindicating the preference votes polled by each candidate of suchparty or group. However, section 63(7) was not amended and it yetrefers to the making of “a written statement referred to insubsection 6”. It was submitted by learned Deputy Solicitor-Generalthat this provision should be interpreted on the basis that the singularincludes the plural and that recounts may be done before any of thewritten statements are prepared by the counting officer. I have toobserve that such an exercise in interpretation becomes necessarymly because of a failure to amend section 63(7) in keeping with the
amendments effected in 1987. Even if this construction is given thequestion arises as to who may seek such a recount. As submitted bylearned Counsel for the Petitioners the.counting agents appointed bythe respective parties and groups represent the collective interests ofthe candidates of such parties or groups and not the individualinterests of each candidate. The scheme providing for preferencevotes to be cast for individual candidates results in a situation whereeach candidate within a list is contesting with the other for suchvotes. The amendment of 1990 which permits a candidate to secureall the preference votes of a voter, enhances the intensity of thiscontest inter se betweenTbe candidates on a single list. Therefore,can a counting agent appointed to represent the collective interestsof the party or group watch the individual interests of candidateswithin such party or group who are rivalling with each other forpreference votes? The answer is obviously in the negative.
The amendment effected by Act No. 24 of 1987 necessarilyresulted in the counting being done in two stages. This reflects twoaspects of the choice given to voters. The choice of a party or groupand the choice of candidates within the chosen party or group.Different interests emerge at these two stages of the count as in theelectoral process which preceded it. ft has to be borne in mind thatlegislative history reveals that in the original scheme of electionswhere individual candidates were contesting with each other, theapplicable provisions permitted each candidate to appoint acounting agent and the candidate or the counting agent to seek arecount. The provisions were amended to what they are now whenthe scheme of elections introduced in 1977 removed a contest interse amongst individual candidates and the voters had a choice only oflists of candidates. Therefore, the provisions of section 60 with regardto the appointment of counting agents and 63(7) with regard torecounts should have been amended to bring these provisions in linewith the scheme of elections introduced by Act No. 24 of 1987.1 haveto conclude that the failure to effect such amendments is a lacuna inthe law.
I am inclined to agree with the submission of learned Counsel forthe Petitioners that the adverse impact of the lacuna in the lawreferred to above could have been avoided to a considerable extent
by appropriate administrative action. Sections 60 and section 62(1)are based on the premise that the counting officer has a discretion asto the persons who may be permitted by him to be present at thecounting. Therefore, this discretion could have been lawfullyexercised to permit individual candidates and their agents to bepresent at the second stage of the counting, of preference votes.Section 63(7) also vests a power in the counting officer to carry outsuch number of recounts as may be deemed necessary. This powercould have been exercised on an application of a candidate or hisagent if they were permitted to be present at the count. In this waythe adverse impact of an absence of a statutory right given to acandidate or his agent to be present may have been avoided.Indeed, such an exercise of power would be consistent with thegeneral legislative purpose of the Ordinance of ensuring a fair andaccurate result of the votes cast at an election. However, in this case,the administrative action taken was of a completely different nature.As stated above circular 2RI .was issued by the Elections Officer ofthe Gampaha District who was in overall charge of the arrangementfor the elections in the.District. Paragraph 3 of this circularspecifically stated that no candidate could enter the place ofcounting by virtue only of his candidature. It further provides thatparties and independent groups could only be represented by twopersons at such place. The'two persons referred to are the countingagents appointed in terms of section 60. This circular is issued to allauthorised agents of parties and group leaders. As noted above itwas on the strength of this circular that the 3rd Respondent informedthe candidates of the. group that they cannot be present at thecounting centre. Learned Deputy Solicitor-General submitted that thiscircular is a correct statement of the legal position that only countingagents and the relevant officials could be present at the place ofcounting.. He further submitted that the reference to candidatesshould be considered as a statement that candidates have no right tobe present and should not be considered as a total bar on theirpresence. However, the impact of this circular is quite clear. Thecircular makes specific reference to candidates and states that theycannot be present by virtue of their candidacy. There is no legalbasis to single out candidates and to announce that they have noright to be present at the counting. Ironically, they have the greatestinterest in ensuring that the count is accurately done. As noted abovesections 60 and 62(1) vest a discretion in the counting officer topermit any person to be present at the counting. The Elections Officerby this circular restricted the exercise of the discretion vested in thecounting officer, in advance. The circular states that a candidatecannot even enter the place of counting. If so, how could he obtainthe permission of the counting officer to be present at the place ofcounting? Therefore, I am inclined to agree with the submission oflearned Counsel for the Petitioners that paragraph 3 of circular 2R1which is relied upon by the 2nd Respondent, is ultra vires and hasbeen issued in excess of the jurisdiction of the Elections Officer. Thiscircular has the consequence Of aggravating the adverse impact ofthe lacuna in the law, noted above.
The next matter on which the parties are at variance is the mannerof counting preference votes. The Petitioners state that the countingwas done by the same set of officials who did the main count of ballotpapers and that they worked continuously from about 8.30 p.m. on11.05.1991 till the counting of preference votes was concluded thenext evening. The method adopted .was for one set of officials to readout the preferences as indicated in the ballot papers and for anotherset of officials to record such preferences on sheets of paper. It issubmitted that this manner of counting taken in relation to the factthat the officials had worked without a break for a long period of time,resulted in errors. The 2nd Respondent has stated in his affidavit thatthe same officials who examined the ballot papers-recorded thepreferences on separate sheets of paper.
The scheme of elections which provided for preference votes to becast resulted in the need to record preferences in separate sheets ofpaper. Therefore, a result could not be declared entirely on a count ofballot papers as in the previous scheme. The process of recordingthe preferences indicated in a ballot paper on separate sheets ofpaper manually, according to any of the methods referred above,would leave room for human error. I am inclined to accept thesubmission of learned Counsel for the Petitioners that the likelihood ofsuch error is made greater by the fact that the officials were involvedin the process of counting non-stop for long hours. In thesecircumstances the need for vigilance by the candidates who aredirectly affected by the result is enhanced. If the candidates or theiragents were permitted to be present any error on the part of therelevant officials may have been detected and appropriatecorrections made. In the absence of such a safeguard, thePetitioners have just cause to complain as to the result of preferencevotes declared on the basis of the entries made by the relevantofficials.
The last matter in respect of which the parties are at variance onthe facts is the declaration of the result of preference votes. ThePetitioners state that there was a delay in officially declaring the resultof preference votes of the independent group and of other partiesthat contested the election. In view of this delay they met the 2ndRespondent in the afternoon of 14.05.1991. The 2nd Respondentread out the names of the candidates of the independent group andthe number of preference votes each had received. They noted thatthe name of P. Miltoh Appuhamy (candidate No. 10, 12thRespondent) was read out twice and that the name of one candidatewas missing. When this was pointed out the 2nd Respondentsummoned some officials (not the counting officer) and called for "theNegombo file”. Havihg .gone through the papers he made certainamendments and read put the list again. On this reading, thePetitioners found that three names of candidates who were electedon the previous reading, .were substituted with three other names.The Petitioners made a request to the 2nd Respondent for a recountwhich was refused: Subsequently they sent the written request X3signed by all candidates (as noted above) seeking a recount. ThePetitioners specifically plead that the result published in the‘Lankadeepa?. of the 15th (X1) is the first result declared by the 2ndRespondent and the result published in the ‘Dinamina’ of the 16th(X2a) is the second result declared by the 2nd Respondent. On acomparison of these two publications it appears that whilst thefigures of votes tally three names coming within the six elected aredifferent.
The 2nd Respondent and the two Assistant Returning Officers,whose affidavits have been annexed, state that the result wasdeclared at 8 p.m. on the 12th. It is further stated that at the time ofthe declaration there were no representatives of the independentgroup present. According to the 2nd Respondent on the 14th thePetitioners met him in office and he gave them the document marked2R2, being a copy of the result that was declared. The two Asst.Returning Officers support the 2nd Respondent regarding this matter.They specifically deny that any corrections were made or that theresult was read out twice.
It is thus seen that there is a clear conflict in the affidavits as towhat took place on the 14th afternoon when the two Petitioners metthe 2nd Respondent. According to the 2nd Respondent and the twoAsst. Returning Officers the result had been declared on the 12th at8 p.m. In these circumstances the visit of the two petitioners on the14th would not have been of any significance to them, at that stage.The 2nd Respondent has merely handed over a copy of the result tosome candidates who were not present when the result wasdeclared. The fact that the 2nd Respondent recalled the visit of thePetitioners, shows that something more than a mere handing over ofa copy of the result took place at that meeting. It is indeed strangehow the two Asst. Returning Officers being public officers (a SeniorAsst, Commissioner of Agrarian Services and the Chief Accountant ofthe Kachcheri) happened to be present when the two Petitionersmade (an unarranged) visit to the 2nd Respbndent. Even assumingthat they were present it is more strange how they recall this visit oftwo candidates, who were merely given a copy of the result. Aperusal of the two affidavits of these officers (2R3 and 2R4) revealsthat the contents of paragraphs 6, 7, 8, 9, 10, 11, and 12 in affidavit2R3 (which relate to the matter of declaring the result, the events ofthe 14th and so on) are word to word the same as paragraphs 5, 6, 7,8, 9, 10 and 11 in the other affidavit 2R4. It is unbelievable that twoofficers who performed different functions could recall these events inthe same manner so as to enable them to make two affidavits that areidentically worded. As regards the events of the 14th paragraph 9 of2R3 and paragraph 8 of 2R4 read as follows:
. “I state that Mr. M. A. D. G. Ivan Appuhamy and R. A. S.Ranawaka, who were members of the Independent Groupwhich contested for the Negombo Municipal Council, enteredthe room of the Assistant Commissioner of Elections on the 14thMay, 1991 and the Assistant Commissioner, Mr. T. Asoka Peiris
showed them the list of the number of preferences received byeach candidate according to the request made by them.”
These two public officers have not disclosed as to how they knewthe names of the two Petitioners (who were merely two candidates),to the last initial, on the 14th. The only inference that could be drawnfrom these curious averments in the affidavits, that are similar even inthe matter of punctuation marks and grammatical errors, is that theseofficers have merely signed affidavits that had been preparedsomewhere else. I am reluctantly compelled to hold that no reliancecould be placed on these affidavits.
On the other hand, the version of the Petitioners commends itselfas reflecting the truth. The publication in the Lankadeepa of the 15this not explained by the 2nd Respondent. According to the 2ndRespondent the release of the result to the press was done only onthe 15th. If so, the paper, published on the 15th could not havecarried it. Furthermore, the result as reflected in the Lankadeepa iscorrect in every respect, other-than the differences in the threenames. The result with regard.to the votes polled by the candidateswho were elected from the other two parties is the same. Therefore,the only inference that .could be drawn is that there was anotherversion of the result, which was in circulation. Furthermore, theconduct of the Petitioners in seeking a recount immediately andfollowing up with''a: request to the Commissioner supports theirversion as to the events of the 14th. Something disturbing shouldhave taken plade on the 14th with regard to this result whichprompted all 2& candidates including the candidates who weredeclared elected to state that they were not satisfied with the countthat has. taken, place, In these circumstances I am inclined to acceptthe averments of the affidavits of the Petitioners with regard to whattook place when they met the 2nd Respondent on the afternoon ofthe 14th.
The resulting position is that the Petitioners have made out aformidable case on the basis of a lacuna in the legislation, illegaladministrative action in the matter of issuing circular 2R1 whichworsened the adverse impact of the lacuna in the legislation, themanner of counting and serious irregularity in the declaration of theresult of the preference votes. I have to now consider whether theyare entitled to the relief by way of a Writ of Mandamus.
Learned Deputy Solicitor-General submitted that a recount cannottake place under any circumstances after the closure of the count asprovided for in section 64(1). It is submitted that a recount shouldhave been applied before the written statement is made in terms ofsection 63(7) and that there is.finality to the decision of the countingofficer, in terms of section 63(8). It was also submitted that the properrelief if any, is by way of a Writ of a quo warranto.
I have considered the provisions of section 63(7) in the precedingsections of this judgment. It was noted that this section was notamended to provide for the second statement that had to beprepared in respect of the counting of preference votes. In thesecircumstances reliance could not be placedon this provision to denyrelief to the Petitioners.
Section 67(8) relied upon by Deputy Solicitor-General reads as
follows:
“The decision of the counting officer as'to any questionarising in respect of any ballot paper'shall be final andconclusive”.
It is seen that the matters pleaded by the Petitioners do not relateto any particular decision with regard to a ballot paper but to thegeneral manner in which the counting took place and not significantlyto the fact that the candidates were not permitted to be present at thecounting. This provision is intended to give finality to a decision of acounting officer with regard to a particular ballot paper. In thesecircumstances this section cannot be relied upon to attribute finalityto the statement of the counting officer as to the result of preferencevotes. Furthermore, it is to be noted that the counting officer whoprepared the statement giving the result of preference votes has notfiled an affidavit in this case.
Learned Deputy Solicitor-General has also referred to theprovisions of section 67(3) and (4). These provisions require theElections Officer to retain the packets of ballot papers anddocuments for a period of six months. Section 67(4) provides that noperson is entitled to inspect any packet of ballot papers. The provisoto this section reads as follows:
“Provided, however, that nothing in the preceding provisionsof this subsection shall be construed or deemed to debar anycompetent Court from orderingThe production of, or frominspecting, or from authorizing the inspection of, any suchpacket or document at any time within the period of six monthsspecified in that subsection”.
As observed by Nagalingam SPJ in the case of Piyasena v. deSilva(,), this “section itself is framed on the footing that the Court hasan inherent power to order an inspection whenever it becomesnecessary in the interests of justice to do so". The legislature has notmade any specific provision by way of an election petition orotherwise enabling an aggrieved party to raise any matter with regardto an election before Court. In my view the legislature had incontemplation the availability of a remedy by way of judicial review toan aggrieved party.
For the reasons stated above my finding is that the Petitionershave established their complaint with regard to the manner in whichthe count was done and the result declared. They seek a Writ ofMandamus for the purpose of verifying whether the count that hasbeen done accurately reflects the choice of the voters in the matter ofindividual candidates. The legislative purpose underlying theOrdinance is to ensure that the result declared is a fair and accuratereflection of the votes cast by the electorate. This is the basicpremise of the duties vested in the respective officials by theOrdinance. The Writ of Mandamus is the remedy available at publiclaw for enforcing the performances of public duties by publicauthorities. As noted by Prof. H. W. R. Wade “within the field of publicfaw the scope of mandamus is still wide and the Court may use itfreely to prevent a breach of duty and injustice”. (Administrative Law1988 6th Edition p. 652). Following this passage Prof. Wade has citedthe famous dictum of Darling, J. in the case of R. v. Hanley RevisingBarrister™.
“Instead of being astute to discover reasons for not applyingthis great constitutional remedy for error and misgovernment,we think it our duty to be vigilant to apply it in every case towhich, by any reasonable construction, it can be madeapplicable.”
A Writ of quo warranto lies in a situation where a person acts in anoffice to which he is not entitled. In this case the Petitioners are notchallenging the election of any of the candidates who have beendeclared elected from the independent group. They are merelyseeking a verification by way of a recount a$to whether the result thathas been declared is correct. The recount.may well affirm the resultthat has been declared. Therefore, I am of the view that theappropriate remedy is not by way of a Writ of quo warranto as urgedby learned Deputy Solicitor-General. As noted above the respectiveofficials, the counting officers and the returning officer, have a publicduty to make and declare, a fair and accurate result of the votes thathave been cast by the electorate. The Petitioners and the othercandidates were not satisfied with the count and the declaration thathave been done and made a request for a recount to the 1st and 2ndRespondents. The Petitioners have in this application substantiatedthe legal and factual basis on which they made that request. I am ofthe view that the failure on the part of the 1st and 2nd Respondentsto reply that request amounts to a refusal to perform'a public duty.This conduct on the part of the respondents is sought to be justifiedon the basis of an alleged finality of the result that has been declared.For the reasons stated above I am unable to accept this plea basedon finality. In my view the case of the Petitioners for a recount is wellfounded. Therefore I grant to the Petitioners the relief by way of'a Writof Mandamus as prayed for in paragraph C to the petition. The 1stand 2nd Respondents are directed to hold a recount of thepreference votes of the candidates of the independent group thatcontested the Negombo Municipal Council elections held on11.05.1991 and to take steps as prayed for. These Respondents arefurther directed to hold such recount on 07.02.1992 in the presenceof the candidates and/or their agents. If the result declared at suchrecount is the same in so far as it relates to the candidates who havebeen declared elected from the independent group, the Petitionerswould not be entitled to any further relief. If however the result isdifferent, these Respondents are further directed to make adeclaration on the basis of that result which, will supersede thedeclaration that has already been made and these Respondents aredirected to take steps according to law to give effect to thatdeclaration. In view of this order it would not be necessary toconsider the relief prayed for by way of a Writ of Certiorari. Theapplication is allowed and the 2nd Respondent is directed to pay thePetitioners a sum of Rs. 2500/- as costs.
Writ of Mandamus issued. ,
Recount ordered.