048-NLR-NLR-V-39-CUMARASINGHE-v.-ABEYRATNE.pdf
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HE ARNE J*.—Cumarasinghe v. Abeyratne.
1937
Present: Hearne J.
CUMARASINGHE v. ABEYRATNE.
In the Matter of an Application for a Writ of Quo warranto.
Writ of quo warranto—Election of Village Committee—Objection to qualificationof member on ground of age—Objection overruled by presiding officer—Judicial functions—No writ to canvass decision—Ordinance No. 9 of-1924, s. 18 (o).'
Where at an election for a Village Committee objection was takenthat the respondent was disqualified to be elected on the ground thathe was under 25 years of age and the presiding officer overruled theobjection under section 25 of the Village Communities Ordinance—
Held, that a writ of quo warranto would not lie to canvass the decisionof the presiding officer as he was exercising functions of a judicialcharacter.
In re Writ of quo warranto against S. A. de Silva (15 C. L. Rec. 206)followed.
Quaere, whether, if the application had been for a declaration that the,respondent, notwithstanding his election, is disqualified from holdingoffice, the writ would lie.
1 HIS was an application for a writ, of quo warranto to have the
T election of the respondent as a member of a village committeeset aside on the ground that he was disqualified under section 18 (o)of Ordinance No. 9 of 1924 from being elected. At the election,,thepresiding officer overruled the objection. The applicant filed thebirth certificate of the respondent showing that he was 21 years of age.
R. C. Fonseka, for petitioner.—Section 18 (a) of the Village CommunitiesOrdinance, No. 9 of 1924, disqualifies any person who is under 25 yearsof age from being elected to a village committee. Respondent’s certi-ficate of birth shows he is 21. The presiding officer did not hold a fulland sufficient inquiry.
B. H. Aluwihare (with him Curtis), for respondent.—The decision ofthe presiding officer is “ final and conclusive ”—section 25 of OrdinanceNo. 9 of 1924. The same section empowers the presiding officer to hold aninquiry then and there as he may “ deem requisite ”. The inquiry heldby him must be presumed to be a proper and sufficient one in theabsence of evidence to the contrary.
In deciding on the qualification of candidates the presiding officer wasacting in a judicial character and not in a ministerial character. Hisdecision in that character, though erroneous, cannot be questioned byquo warranto. (Shortt on Mandamus, p. 132 ; In re quo warranto on Chair-man, Local Board, Matara'; In re Writ of quo warranto on S. A. de Silva'.)
September 18, 1937. Hearne J.—
On June 5, 1937, a meeting was held in the Asgiriya Udasiya pattudivision of Matale District in order to elect a village committee in termsof Ordinance No. 9 of 1924. The applicant and the respondent werecandidates and the latter was elected.
1 4C. L. Bee. 81.* 15 C. L. Rec. 206.
Cur. adv. vult.
HEARNE J.—Cumarasinghe v. Abeyratne.
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The applicant objected to the election of the respondent on the groundthat he was disqualified under section 18 (a) of the Ordinance but thepresiding officer, the Government Agent, overruled the objection. Therespondent’s birth certificate has been filed. He is 21 years of age..Under section 18 (a) a person shall be disqualified to be elected unless heis over 25 years of age. There is, therefore, now no question that therespondent’s age disqualified him from being elected.
The applicant prayed for the issue of a writ of quo warranto on therespondent who entered an appearance through Counsel to show causewhy the application should not be allowed.
Section 25 (1) and (2) of the relevant Ordinance is as follows : —
“If at any meeting any question shall be raised as to the rightof any person to vote or to be elected as member of a committee theGovernment Agent shall then and there make such inquiry as he maydeem requisite and decide whether or not such person has the rightto vote or to be elected.
“ Such decision shall be final and conclusive ”.
In a case dealing with quo warranto proceedings and reported in4 Cey. Law Rec. 81, Ennis J. said, “ The only question of fact is whethersection 14 of the Board of Health Improvement. Ordinance, No: 13 of3898, provides that the Chairman shall act judicially on any objectionraised to an election. In my opinion section 14 does so provide. Itauthorizes the Chairman upon being satisfied that the election was notduly and regularly held or any member not duly elected to declare theelection void altogether or void as to any particular member.- In myopinion the Chairman acting under that section is clearly exercising .ajudicial function, and applying the rule of Regina v. Collins1 no writ ofquo warranto will lie ”.
In an application for a writ of quo warranto against S. A. de Silva reporterin 15 Cey. Law Rec., p. 206, Poyser J. followed 4 Cey. Law Rec., p. gl-and quoted Shortt onlnformations (criminal and quo warranto), Mandamus:and Prohibitions (1st ed.), p. 132, which is as follows : —
“ If there is any person who is appointed by law to discharge, at theelection to an office, any functions of a judicial character with respectto it, an erroneous decision of such person in that character cannot bequestioned by quo warranto ”.
Counsel for the applicant was unable to argue that the GovernmentAgent was exercising a ministerial as distinct from a judicial function.Apart from this the words “ final and conclusive ” appearing in section25 (2) have been considered by this Court for the purpose of interpreting'section 29 of Ordinance No. 11 of 1920 and it was held by Koch J. 'thatthey must be given “ their due weight ”. I, therefore, discharge therule against the respondent. I do not consider this is a suitable casefor costs.
Now the rule which I have discharged and which the applicant askedthe Court to make absolute was “ that the election of the respondentwas null and void ” by reason of an erroneous decision made by theGovernment Agent. Such a rule, if made absolute, would have been,as I have indicated, repugnant to the authorities I have cited. But as39/151 2 Q. B. D. 30.
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HE ARNE J.—Cumarasinghe v. Abeyratne.
section 18 not only enacts that a person shall be disqualified to be electedbut also to be a member of a village committee unless he is over 25 yearsof age-—and the respondent is certainly not-^-it is possible that theapplication would have had a different result if what was sought was not& declaration that the election of the respondent was void but a decla-ration that the respondent, notwithstanding his election, is disqualifiedfrom holding office. 1 would, however, point out that this representsmy view on a question of law which was not taken, which was outsidethe scope of the application and on which I had not the advantage ofhearing arguments by Counsel.
In the case of The Queen v. Diplock1, it was sought to question thevalidity of votes given at the election of a coroner. After holding thatas the Sheriff exercised judicial functions in his scrutiny of the votes“ the validity of votes cannot be inquired into on a quo warranto ”. Cock-burn C.J. said, “I am very far from saying that there may not be casesin which a quo warranto would lie as to. the office of coroner ; as wherethe candidate elected was personally disqualified .. .. ”
It is, .however, the case of The King y. Beer-, which illustrates myview that even if there has been an election de facto and even if thevalidity of the election cannot be questioned by quo warranto, the remedyis. nevertheless available for the purpose of calling upon a person, who isprima facie disqualified from holding a particular office to show uponwhat authority he claims to hold such office.
In that case the defendant was called upon to show by what authorityhe claimed to hold the office of councillor of a borough, the objectionbeing that he was a bankrupt and therefore disqualified. It was heldthat the election could not be questioned on a quo warranto, as an electionpetition would have been the appropriate remedy for objecting to theelection but that nevertheless the remedy by quo warranto was availablewhere the disqualification was iri respect of holding or exercising theoffice, as well as. being elected thereto. 9 Halsbury (Hailsham ed.),footnote to paragraph. 1377, p. 809.
In his judgment Lord Alverstone C.J. said, “ It is true that section87 (of the Municipal Corporations Act, 1882) says that an election shallonly be questioned by election petition where the ground of the objectionis disqualification at the time of the election ; but I do not think that• this extends to the continuous holding of the office by the person sodisqualified ”. And again “ Although section 39 of the MunicipalCorporations Act, 1882, applies to a disqualification by bankruptcyarising after an election, I, think that where there is a continuingdisqualification the right to hold the office may still be questioned byquo warranto
Section 18 (a) of Ordinance No. 9 of 1924 amounts .to a statutorydeclaration that a person who is not over 25 years of age may not be amember of a village committee, and I venture to think that if an appli-cation had been made for a rule that the respondent, though elected,is disqualified from taking his place as a member of the villagecommittee it might very well have been successful.
Application refused.
> (1903) S K. B. 693.
– * L. R. (4 Q. B.) 549.