023-SLLR-SLLR-2005-V-2-DR.-VINGNESWARN-vs-SAMBANTHAN-OTHER.pdf
CA
DR. VIGNESWARNvs.
SAMBANTHAN AND OTHERSI 13
COURT OF APPEALIMAMJ
CA (ELECTION PETITION)
2/2004 (TRINCOMALEE)
SEPTEMBER 21,2004
s
Election Petition – Parliamentary Elections Act 1 of 1981 – Sections 14(1)(a),92(1), 92(1)(b), 98, 98(e) – Rules under the Act – Directory or Imperative ? – whoshould sign the Petition? – Notice of Presentation of petition to be served on theRespondents within 10 days – Is it mandatory? – Court of Appeal (AppellateProcedure) Rules 1990 – Affidavit to support Petition ? – circumstances – LocalAuthorities Elections Law – amended by Act, Nos 48 of 1983 and 25 of 1990 -Section 31(1).
The Petitioner an unsuccessful candidate of the Eelam People’s DemocraticParty (EPDP) sought a declaration that the election of the 1st and 2ndRespondents as Members of Parliament for the electoral district of Trincomaleebe declared null and void.
The Respondents raised preliminary objections to the Petition –
that the Petition was not signed by the Petitioner himself;
that the Petitioner failed to give Notice of presentation of the Petitiontogether with a copy thereof within 10 days of the presentation of sameto be served on the Respondents.
Petitioner contended that, the Preliminary Objections should be rejected inlimine as it is not supported by a valid affidavit as required by the Court ofAppeal (Appellate Procedure) Rules.
Held:
According to Rule 3(7) of the Court of Appeal Rules – a statement ofobjections containing any averment of fact shall be supported by anaffidavit in support of such averment. The Statement of Objections donot contain any averment of fact – and as such an Affidavit is not required.
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Held further:
Rule 4 specifically provides the format for the Election Petition, it shouldbe signed by the Petitioner himself. Rule 4 does not refer to any Agentor Agents.-
Rule 14(1) – prescribes a 10 days limit – The mere delivery of the Noticeto the Registrar within 10 days limit is not sufficient compliance withRule 14. The actual service on the Respondents must be effectedwithin the time limit specified in Rule 14.
An application for Leave to withdraw a Petition could be signed by thePetitioner or his Agent – Rule 21(1).
In the matter of an Election Petition in terms of Section 92 – Parliamentary
Elections Act .
Cases referred to :
D. M. Jayaratne vs. Vass Gunawardena and 114 others – CA 325/2002
Malik Mohammd Ikhtiiyar vs. Khanna and another – (28) 1941 AIRLahore 310.
W. M. Mendis & Co. vs. Excise Commissioner -1999 1 Sri LR 351
Saravanamuttu vs. R. A. de Mel – 48 NLR 529
Chandra Kumar vs. Kirubaran and others – 1989 – Sri LR 35
Nathan vs. Chandrananda de Silva , Commissioner of Elections &others 1994-2 Sri LR 209
Dr. Jayatissa de Costa with Ms. Maheswari Vetayudan, Asoka Fernando andDushantha Epitaweta for Respondents.
K. Kanag Iswaran., P. C., with M. A. Sumanthiran, Laxman Jayakumar, R. M.Balendra for Respondents.
Janak de Silva State Counsel for 10-11th Respondents.
cur adv vult
November 29, 2004IMAM , J.,
The Petitioner was an unsuccessful candidate of the Ealam People’sDemocratic Party (hereinafter referred to as the EPDP) and was allottedNo. 3 in the list of candidates of EPDP at the Parliamentary Elections
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held on 02.04.2004 for the Trincomalee District. The 1 st, 2nd, 8th and 9thRespondents were the elected candidates at the said Election. The 1st*7th Respondents were candidates of lllankai Tamil Arasu Kachchi(hereinafter referred to as ITAK), The 8 th Respondent was a Candidate ofthe Sri Lanka Muslim Congress (herein after referred to as SLMC) and the9th Respondent was a candidate of the United People’s Freedom Alliance(hereinafter referred to as UPFA.), Although the Petition disclosed 114Respondents, the addresses of 13-114 Respondents were nor furnished,and Court made order on 22.06.2004 discharging them on applicationmade by counsel for the Petitioner.
By this petition, the petitioner is seeking a declaration that the electionof the 1 st and 2nd Respondents as Members of Parliament for the ElectoralDistrict of Trincomalee be declared null and void.
On 22.06.2004 Counsel for the petitioner submitted to court that he isnot seeking to serve Notices on respondents 13-114, and hence the serviceof Notices on respondents 13-114 was dispensed with by Court. The 8thand 9th Respondents were absent and unrepresented. The parties presentagreed to tender written submissions with regard to the PreliminaryObjections taken up by the President’s Counsel who appeared for the 1 stto 7 th respondents, and decided to abide by the decision of this Court onthe written submissions.
Section 92(1) of the Parliamentary Elections Act No. 1 of 1981 statesthat “The election in respect of any electoral district shall be declared tobe void on an Election Petition on any of the following grounds which maybe proved to the satisfaction of the Election Judge namely ;
that by reason of general bribery, general treating or generalintimidation or other misconduct or other circumstances whethersimilar to those enumerated before or not, a section of electors wasprevented from voting for the recognized political party or independentgroup which it preferred and thereby materially affected the result ofthe election. Thereby
Non-compliance with the provisions of this Act relating to elections,if it appears that the election was not conducted in accordance withthe principles laid down in such provisions and that such non-compliance materially affected the result of the election.”
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In this petition, the Petitioner relies upon the ground of corrupt or illegalpractices that were committed by the 1st and 2nd Respondents or withtheir knowledge or consent or by any agent or the said candidates. It wascontended by the Petitioner that the supporters of ITAK with the assistanceof LTTE warned the Tamil people in the Electoral District of Trincomaleethat they should vote only for the house symbol of ITAK or not vote at all.It is further alleged in the petition that on the polling day, namely 02.04.2004the supporters and/or candidates of ITAK used more than 50 vehicleswhich they had previously arranged and transported genuine electors aswell as impersonators to polling stations, which matter was reported tothe Returning Officer, but that no action was taken to prevent the same.Furthermore on 01.04.2004 and several times later it is alleged that between4.30 pm. and 10.00 p.m., members of the LTTE announced overloudspeakers that every Tamil should vote for ITAK, and if not such personswould be punished. To support these allegations the Petitioner produceddocuments marked ‘X1’, (fax message), ‘X2? (result sheet), affidavits marked‘X3(A) to X3(l), an extract of the Government Gazette dated 06.04.2004marked ‘X4 Gazette dated 24.02.2004 marked X5', and a letter dated
addressed to the Commissioner of Elections by the SecretaryGeneral EPDP marked ‘X6’. The aforementioned affidavits do not makeany reference either to the 1 st or to the 2nd Respondent.
The Petitioner contended that the Preliminary Objections tendered onbehalf of the 1st to 7th Respondents should be rejected in limine as it isnot supported by a valid affidavit as required by Rule 3(7) of the Court ofAppeal (Appellate Procedure) Rules of 1990. However the aforesaid rule
states that “A statement of objections containing any averments
of fact shall be supported by an affidavit in support of such averments.”The statement of objections do not contain any averment of fact and assuch in my view do not require an affidavit. Thus I hold that there is nolapse on the part of the 1st to 7th Respondents in this regard andaccordingly accept these objections. One of the preliminary objectionstaken on behalf of the 1st to 7th respondents is that the petitioner hasfailed to sign the Petition as required by Section 98(e) of the ParliamentaryElections Act No. 1 of 1981, and the form prescribed in Rule 4 of thefourth schedule to the Act. Section 98 sets out the contents of an electionpetition which are
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“(a) shall state the right of the Petitioner to petition under section 95
of this Act;
shall state the holding and result of the election;
shall contain a concise statement of the material facts on whichthe Petitioner relies ;
shall set forth full particulars of any corrupt or illegal practice thatthe Petitioner alleges, including full statement as possible of thenames of the parties alleged to have committed such corrupt orillegal practice and the date and place of the'commission of suchpractice, and shall also be accompanied by an affidavit in supportof the allegation of such corrupt or illegal practice and the dateand place of the commission of such practice.
shall conclude with a prayer as, for instance, that the election inrespect of any electoral district should be declared void, and shallbe signed by all the petitioners;
Provided however, that nothing, in the preceding provisions of this sectionshall be deemed or construed to require evidence to be stated in thepetition.”
It was contended on behalf of the petitioner that Rule 4 of the FourthSchedule to the Act is only regulatory and not mandatory, and hence thesame submission is applicable to section 98(e) of the ParliamentaryElections Act. Furthermore it was pointed out that Rule 21(1) of theParliamentary Election Petition rules, 1981 states that “ An applicationfor Leave to withdraw a Petition shall be in writing signed by thePetitioner or Petitioners or his or their Agent of Agents
It was thus pointed out by the Petitioner that if in the case of a withdrawalof an Election Petition an Agent for the Petitioner is authorised by Law tosign the requisite application, the intention of the Legislature is clear, andthus an Agent of the Petitioner could sign the election Petition. Furthermoreit was averred that in D. M. Jayaratne vs. Vass Gunawardene and 114others (1) this Court held that in section 31(1) of the Local AuthoritiesElections Law (as amended by Act No. 48 of 1983 and Act No. 25 of 1990)the word ‘shall’ as used in the Act does not always mean that compliancewith the conditions is obligatory. In the case of Malik Mohammad ikhtiyarvs. Khanna and another(2) it has been stated that “the word “shall” in
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an Act does not always mean that compliance with the condition isobligatory. Intention of Legislature should be gathered by reference to thewhole scope of the Act. The word “shall” as used in the Act of the Legislaturedoes not always mean that compliance with the condition is obligatory.Whether the matter is imperative or directory only should be determinedby the real intention of the Legislature, which should be ascertained bycarefully attending to the whole scope of the Act.” However it is my viewthat unlike in any other applications in the Court of Appeal where generallyPetitions are filed and signed by Attorneys-at-law, Rule 4 specificallyprovides the format for the Petition, and thus should be signed by thePetitioner himself. Furthermore in the withdrawal of an election Petition,rule 21 (1) of the Parliamentary Election petition Rules refer to the Petitionor Petitioner or his or their Agent or Agents. However rule 4 does not referto any Agent or Agents. Moreover in this case the Election petition hasnot been signed by the Petitioner himself, but by the Agent of the Petitioner.This does not satisfy the requirements of Rule 4 of the ParliamentaryElection Petition Rules, and thus I accept this preliminary objection of 1-7th Respondents.
The 1 st to 7th respondents have taken up another Preliminary Objectionthat the Petitioner has failed to give Notice of the presentation of the Petitiontogether with a copy thereof within 10 days of the presentation of thesame to be served on the respondents. It is submitted that the petitionerhas thus violated the Mandatory provision of rule 14(1 )(a) of the ParliamentaryElections Act, which makes the Petition Void.
Section 14(1)* states “Notice of the presentation of a Petition,accompanied by a copy thereof shall, within ten days of the presentationof the Petition
be served by the Petitioner on the respondent; or
be delivered at the office of the Registrar for service on theRespondent, and the Registrar or the Officer of his Department towhom such notice and copy is delivered shall, if required, give areceipt in such form as may be approved by the President of theCourt of Appeal.”
On 22.06.2004 President’s Counsel appearing for the 1 -7th Respondentsindicated to court that in accordance with Rule 14 of the ParliamentaryElections Act No. 1 of 1981 notice of the Election Petition and a copy
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thereof had not been served on the aforesaid respondents within ten daysof the presentation of the petition as required by law, and thus he tenderedPreliminary Objections to the Petition, setting out other grounds as well.At this stage, Learned counsel for the Petitioner invoked section 97 of theParliamentary Elections Act No. 1 of 1981, stating that he could join asRespondents to the election Petition certain parties, but did not state thatcopies of the Petition had been served on 1-7th respondents within 10days as stipulated by the law. It was submitted on behalf of the Petitionerthat an Election Petition should not be dismissed merely on the groundsof highly technical objections without giving it a hea'ring, and an ElectionPetition should not be dismissed without trying it’s issues at the trial.Rule 15 of the Parliamentary Election Petition Rules, 1981 were referredto which states “On the expiration of the time limited for making petitions,the Petition shall be deemed to be at issue”.
The Petitioner further referred to the Judgment in W. M. Mendis andCo. vs. Excise Commissioner(23) where it was held that “The object ofrules of procedure is to decide the rights of parties and not to punish themfor their mistakes or shortcomings. A party cannot be refused just reliefmerely because of some mistake, negligence or inadvertence.”
The Judgment by Dias J in Saravanamuttu Vs. R. A. de Me/(4) whichstated “Since certain fundamental rights of citizens are involved in an ElectionPetition Inquiry, it is not merely a contest between litigants but a matter inwhich the whole electorate, not to say the whole country has a vital interest.”was also referred to.
The 1-7 respondents in their written submissions referred to the Judgmentin Chandra Kumar Vs. Kirubaranand others(5) where two preliminaryobjections almost identical to this were taken up. One of the Objectionswas that the Petitioner failed to give Notice to the Respondents of thepresentation of the Petition together with a copy within ten days of thepresentation of the Petition. It was submitted that the Petitioner violatedthe Mandatory Provisions of Rule 14(1 )(a) of the Parliamentary Elections
Act which is fatal to the Petition. It was held that “the ten days limit”
prescribed by Rule 14(1) of the Parliamentaiy Election Petition Rules forservice of notice of presentation of Election Petition on the Respondent ismandatory and applies to every mode of service of notice set out underparagraphs (1 )(a) and (b) and paragraph 2. The mere delivery of the Notice
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to the registrar within the 10 day limitis not sufficient compliance
with rule 14. The actual service on the respondents must be effected withinthe time limit specified in paragraph 1 of Rule 14”. Furthermore in Nathanvs. Chandrananda de Silva, Commissioner of Elections and others<G)it was held that under Rule 14, Notice of presentation of an election petition ’must be served on the respondents within 10 days of the presentation ofthe Petition.
Having examined this Preliminary objection, I am of the view that thePetitioner has violated the Mandatory Provisions of Rule I4(l)(a) of theParliamentary Elections Act No. 1 of 1981, and thus I uphold the preliminaryobjections taken up by the 1-7 Respondents in this regard too.
The statement of Preliminary Objections tendered by the 1st to 7thRespondents set out four grounds on which the Petition should bedismissed in limine. This Court has already accepted grounds (b) and (c)as set out in the aforementioned objections, considered the writtensubmissions tendered on behalf of the parties, and other material placedbefore it. This Court has also examined grounds (a) and (d) of thePreliminary Objections, and in view of the fact that no valid Petition hasbeen tendered to Court, there is no necessity to scrutinize this applicationfurther.
Having considered the details of this Election Petition and connectedmatters, I proceed to make an order under section 92(1) (b) of theParliamentary Elections Act, No. 1 of 1981 which would meet the ends ofjustice. As the Election petition tendered to Court cannot be accepted forthe reasons I have set out, I uphold grounds (b) and (c) of the PreliminaryObjections raised on behalf of the 1 st to 7th Respondents and proceed todismiss the Petition in limine subject to Rs. 35,000 as total punitive costsdue to the 1 -7 Respondents.
Preliminary objections upheld.
Election Petition dismissed.