Don Alexander v. Deo Fernando.
1948Present: Nagalingam J.
DON ALEXANDER, Petitioner, and LEO FERNANDO,Respondent.Election Petition No. 12 of 1947, Buttala.
Election petition—Application to withdraw—Lack of funds—Matter affecting electo-rate—Investigation necessary before permission to withdraw—Witnesses anddocuments—Affidavits.
An election petition is a matter in which not only the petitioner but thewhole electorate has an interest. Where, therefore, serious charges have beenmade against the respondent, it is necessary that some investigation should bemade as regards the charges before the petition can be permitted to be withdrawn.
NAGALINGAM J.—Don Alexander v. Leo Fernando.
PPLICATION to withdraw the petition questioning the returnof the Member of Parliament for the Buttala Electoral District.
D. S. Jayawickreme, for the petitioner.
D. W. Fernando, for the respondent.
Cur. adv. milt.
March 15, 1948. Nagalihqam J.—
This is an application to withdraw the petition presented by thepetitioner questioning the return of the respondent as Member of Parlia-ment for the Buttala Electoral District. The petitioner himself was oneof the candidates who contested the election, and the petitioner duly-deposited by way of security, as required by the rules framed under theOrder in Council, a sum of Rs. 5,000 as security for respondent’s costs.
The ground upon which the petitioner bases his application to withdrawthe petition is that “he is unable to bear the excessive expenditureinvolved in proceeding with the petition ”. One would have expectedthe petitioner to have considered the financial aspect of the piece oflitigation upon which he was embarking before he ventured out, andhaving regard to the facts that the petitioner himself was a candidate andtherefore a man of at least some education and of ordinary prudence andthat he has deposited the necessary security, it would be difficult to feelconvinced that the ground put forward by him as the reason for with-drawing the petition is a sound one. Counsel for the petitioner, probablyin anticipation, amplified at the inquiry the reason given by the petitionerby his statement that certain persons had promised pecuniary assistanceto the petitioner for prosecuting the petition but that they had nowfailed to give him the promised assistance and that the petitioner there-fore finds himself in the position of having to bear the expenses of theinquiry, which he can ill afford to do.
There is no evidence before m3 as regards the petitioner’s worth orwho were the persons who promised him financial assistance, and in theabsence of this information I do not think it can be said that thepetitioner has made out an adequate ground for permitting him to with-draw the petition. In the Devonport Election Petition Case1 I find thatthe Court direct full affidavits to be filed in regard to the grounds setout for the withdrawal of the petition. The report itself does not bringthis point out clearly but the reference to that case in Rogers 2 dealsmore fully with this aspect of the question. I therefore direct that thepetitioner should file an affidavit setting out his worth, the names andaddresses of the persons who promised him financial assistane and theextent of such assistance offered by every such person.
iSIor do I think that the filing of such an affidavit can by itself beregarded as entirely satisfactory for the disposal of this application ;for once an election petiton is presented, the matter ceases to be oneexclusively between the petitioner and the respondent. In fact it becomesa matter in which the whole electorate, not to say the whole country
*'1886) 54 Law Times Reports 733.* Elections : Vol. II, (20th ed.) p. 185.
Orr. v. The District Judge, KaltUara
has an interest, and any order disposing of the application should there-fore be made from the larger standpoint of the State. There were threegrounds relied upon by the petitioner as furnishing grounds for avoidingthe election of the respondent :•—-
Undue influence, and
Contracts with the Crown.
At the Bar, Counsel for the petitioner expressly submitted that thepetitioner was forced to withdraw the petition out of sheer necessityowing to lack of funds and not because he was not in a position to provethe charges. Though the Electorate was given an opportunity by publicadvertisement in the newspapers of the date of the hearing of this applica-tion with a view to enable any member thereof, if so minded, to proceedwith the application, no one in fact has availed himself of the opportunity,and the position is that certain serious charges have been made againsta candidate returned as duly elected, which have not in the slightest-degree received any investigation. In these circumstances it becomesnecessary that some investigation should be made as regards the chargesframed against the respondent before the petition can be permitted to bewithdrawn.
I would therefore direct further that the petitioner should, in theaffidavit I have already directed him to file, also set out under eachof the three grounds of general intimidation, undue influence and contractswith the Crown the information he has in regard to specific acts reliedupon by him in support of these charges, the witnesses in support anddocuments. This affidavit should be filed on or before April 12, 1948,and copies of the affidavit should be served both on the respondent and onthe Attorney-General, the latter of whom would investigate the charges,and particularly the last charge, in so far as it lies in his power, and appearas amicus curiae at the further hearing. I adjourn the further hearingof this inquiry for May 10, 1948.