028-SLLR-SLLR-2003-1-EDIRIWEERA-RETURNING-OFFICER-FOR-AKURESSA-PRADESHIYA-SABHA-v.-KAPUKOTUW.pdf
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EDIRIWEERA, RETURNING OFFICERFOR AKURESSA PRADESHIYA SABHAv.
KAPUKOTUWA, GENERAL SECRETARY, UNITED NATIONALPARTY AND OTHERS
SUPREME COURTS.N.SILVA, CJ.
ISMAIL, J. ANDWEERASURIYA, J.
SC APPEAL No. 31/2002CA APPLICATION No. 342/200219TH JUNE, 2002
Writ of Certiorari – Failure of the Secretary of a Political Party to sign the nom-ination paper – Local Authorities Elections Ordinance, Sections 28(5), 31(1)(a)and (b) of the Ordinance – Rejection of the nomination paper.
The appellant was the Returning Officer for the Akuressa Pradeshiya SabhaElection and the respondent was the General Secretary of the United NationalParty (“the UNP”). Section 28(5) of Local Authorities Elections Ordinance (“the
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Ordinance”) requires inter alia that a nomination paper be signed by theSecretary of a Political Party or the Group Leader of an Independent Group.Such signature shall be attested by a Justice of the Peace. The form of thenomination paper appearing in the First Schedule to the Ordinance also pro-vides for the signature of such persons. Section 31(1 )(e) requires theReturning Officer to reject any nomination paper which is not so signed orattested.
The nomination paper of the UNP has the office stamp of the Secretary belowthe space provided for the Secretary’s signature. A Justice of the Peace hadpurported to attest the signature. But the Secretary had in fact not signed thenomination paper as required.
Held:
The requirement of section 28(5) of the Ordinance as to the signature and therejecting of the nomination paper where the signature of the Secretary of theParty does not appear, required by section 30(1 )(e) of the Ordinance aremandatory and calls for proper compliance.
APPEAL from the judgment of the Court of Appeal
Case referred to:
1. Mayappan vs Manchanyake 62 NLR 529
Saleem Marsoof. P.C., Additional Solicitor-General with Janakde Silva, StateCounsel for respondent-appellant
Razik Za rook with Lasantha Hettiarachchi and S.A. Jayawickrema for petition-er – respondent
Cur.adv.vult
January 24,2003
SARATH N. SILVA, C.J.
This appeal relates to the submission of nomination papersfor the election of members to the Akuressa Pradeshiya Sabhawa.Several nomination papers were submitted including a nominationpaper purporting to be of the United National Party which was ten-
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dered on 8.2.2002, being the last day for the delivery of nominationpapers. After the expiry of the period for handing over nominationsand during the period for objections, three persons objected to thenomination paper purporting to be of the United National Party onthe ground that it had not been signed by the Secretary of thatparty. The Returning Officer, being the appellant in this case,upheld the objection and rejected that nomination paper. On thatbasis the election was to be held amongst the candidates who wereduly nominated.
The Secretary of the United National Party and the candi-dates whose names appeared on the nomination paper that wasrejected, filed an application in the Court of Appeal for a writ of cer-tiorari to quash the said decision of the Returning Officer and for awrit of mandamus directing the Returning Officer to accept thatnomination paper. The Court of Appeal made an interim order stay-ing the election. By judgment dated 4.3.2002, the application wasallowed with costs and the writs of certiorari and mandamus thatwere sought were granted. This Court allowed special leave toappeal on the application of the Returning Officer, and stayed theoperation of the judgment of the Court of Appeal.
A photocopy of the relevant nomination paper has been pro-duced marked X3(c). It is seen that the form of the nominationpaper used is the one set out in the First Schedule to the Local ’Authorities Elections Ordinance as amended by Act, No. 25 of1990. The first paragraph of the nomination paper gives the nameof the recognized political party and states that the party, “herebynominates the following persons as candidates for election of mem-bers of the Akuressa Pradeshiya Sabhawa.” Beneath this is. thespace in which the names and other particulars of candidates areset out in two groups. Group II contains the names of the youthcandidates. The following words appear beneath the two groups ofnames; “I do hereby certify that all the youth candidates whosenames appear in this nomination are within the age stipulated inSection 89 of the Ordinance” with, the space for the signature of theSecretary of the recognized political party, his name and address.The form ends with the provision for the attestation of the signatureof the Secretary of the recognized political party by a Justice of thePeace or a Notary Public.
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In the relevant nomination paper “X3c”; the space for the sig-nature of the Secretary of the recognized political party has beenleft blank. The name of the Secretary and his address have beenwritten in the space set apart for that purpose below the space forthe signature. The name and address are repeated in what appearsto be the same handwriting in the attestation and the Justice of thePeace has purported to attest a signature which is plainly not there.
I will now refer to the relevant provisions of the LocalAuthorities Elections Ordinance.
Section 28(5) of the Ordinance as amended by Act, No. 24 of1987 states as follows :
“Each nomination paper shall be signed by the Secretary ofa recognized political party and in the case of an independentgroup, by the candidate whose name appears in the nomi-nation paper of that group and is designated therein as thegroup leader of that group (such candidate is hereinafterreferred to as “the group leader”) and shall be attested by aJustice of the Peace or by a Notary Public.”
As regards the proceedings after the period for submission of nom-inations, Section 31(1) provides as follows:
“The Returning Officer shall, immediately after the expiry ofthe nomination period, examine the nomination papersreceived by him and reject any nomination paper –
that has not been delivered in accordance with the provi-sions of subsection (5) of Section 28; or
that does not contain the total number of candidatesrequired to be nominated under subsection (2) of Section28; or
in respect of which the deposit required under Section 29has not been made; or
where the consent of one or more candidates nominatedhas or have hot been endorsed on the nomination paperor where the oath or affirmation in the form set out in theseventh schedule to the Constitution of one or more can-didates has or have not been annexed to the nominationpaper; or
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where the signature of the Secretary in the case of a rec-ognized political party or of the group leader in the caseof an independent group does not appear on the nomina-tion paper or where such signature has not been attestedas required by subsection (5) of Section 28.”
When objections were raised to the acceptance of the nomi-nation paper in question, the Returning Officer was confronted withtwo matters. The first is a question of fact and the second is one oflaw. The question of fact is whether the nomination paper had beensigned by the Secretary of the recognized political party asrequired by Section 28(5). If the answer is in the negative, then thequestion of law arises, should the nomination paper be rejected.
It is clear from the provisions that are reproduced above, thatboth Sections 28(5) and 31(1) are couched in mandatory terms.Section 28(5) states that each nomination paper “shall” be signedby the Secretary of the recognized political party or the groupleader of an independent group and Section 31(1) provides that ifthe signature does not appear as required, the nomination paper“shall” be rejected. The Returning Officer, in this instance was con-fronted with a nomination paper which had a blank in the placewhere the signature of the Secretary of the recognized politicalparty should appear and he rejected the nomination paper asrequired by Section 31 (1 )(e). This is a straight-forward course ofaction based on giving the words of the statute their ordinary andnatural meaning being the first and most elementary rule of inter-pretation.
On the other hand, the Court of Appeal held that theReturning Officer should not insist on a “strict compliance” of theSections referred to, but should take into consideration a “broaderconcept” of whether there had been “substantial compliance” withthe statutory requirements. Further it had been observed by theCourt of Appeal that it is necessary to ascertain whether theSecretary of the political party “had in some way conveyed his rat-ification of the authenticity of the names and the ages of the youthcandidates. Whether the authenticity and the genuineness of thecontents of the nomination paper were signified affirmatively by the1st Petitioner” (the Secretary). At a later point in the judgment, theCourt of Appeal had posed the same question in slightly different
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terms, as follows; “Therefore the important matter that had to beascertained was whether the Secretary of the political party/groupleader had knowledge and authenticated the contents of P3”(marked X3c in this appeal). On this line of reasoning the Court ofAppeal has concluded that “it is manifest in all the circumstances ofthe case” that the Secretary “had full knowledge of the contents andauthenticated P3” (the nomination paper).
The requirement in Section 28(5) is for the Secretary of a re-cognized political party or a group leader (in the case of an indepen-dent group) to sign each nomination paper.The question which aris-es as noted above is whether the required signature appears at theplace where it should be. The Court of Appeal has relied on threematters to infer that the Secretary had knowledge and authenticatedthe contents of the nomination paper. These matters are
that the Secretary has deposed in an affidavit filed inCourt that his initials appear in several places where thereare corrections in the nomination paper.
that the rubber seal bearing his name and designationhas been placed beneath the place set apart for the sig-nature.
that the nomination paper has been “duly attested andcertified by the Justice of the Peace”
In this process of reasoning the Court of Appeal has veeredto the view that there has been substantial compliance with therequirement in Section 28(5). Therefore, it is necessary to examinethe question of substantial compliance, although I am inclined tothe view that such a question should never have engaged theattention of any Court, given the very clear and unambiguous pro-visions contained in the relevant sections reproduced above.
The question whether substantial compliance with arequirement in a statute is permitted as distinct from proper orwhat may be termed as strict compliance, should be examined ontwo basic premises. They are, firstly the significance of therequirement in the scheme of the relevant provisions in thestatute and, secondly the sanction which attaches to a non-com-pliance of the requirement.
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In examining the significance of the mandatory provision inSection 28(5) that the Secretary of the recognized political party orthe group leader, shall sign each nomination paper delivered to theReturning Officer, it is necessary to consider albeit briefly, the elec-toral process in the light of what existed before. The LocalAuthorities Elections Ordinance was enacted in 1946 and providedthe system of elections in respect of all local authorities, rangingfrom Village Committees to Municipal Councils, that had beenestablished decades before the grant of independence. This fol-lowed the well established tradition of effective governance at thegrass root level which existed under the indigenous monarchicalsystem of government. The Ordinance provided a simple electoralprocess for all local authorities based on what was commonlyknown as the “ward system”. The area of each local authority wasdivided into smaller units known as wards and the election was inrespect of each such ward. Candidates were nominated by a pro-poser and seconder, being voters of the electoral area. In manyinstances votes were counted in the ward itself and the result wasdeclared then and there, establishing a clearly defined and versa-tile link between the voter being a resident of the ward and his wardmember. By Law, No. 24 of 1977, this system was done away with.The ward system which existed for decades was replaced by a sys-tem in which the entire local authority became one electoral area.Instead of nomination by a proposer and seconder within a ward,groups of candidates are nominated by recognized political partiesor leaders of independent groups. Thus the link between a recog-nized political party and the candidate which was at a minimum inthe system which existed in the past, was entrenched and madefirm. Candidates who were previously proposed and seconded byvoters at the grass root level became groups nominated by recog-nized political parties or leaders of independent groups. This per-vasive link between a recognized political party and its groups ofcandidates is manifested by the signature of the Secretary of theparty. It is for this reason that a specific place is provided in thenomination form for the signature of the Secretary, beneath thename of the candidates and with a preceding certification that theyouth candidates are below the stipulated age. The significance ofthe requirement is brought to a zenith by the provision in Section28(5) that the signature should be attested by a Justice of the
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Peace or by a Notary Public. Therefore in relation to the firstpremise to be examined as to the significance of the requirement,it has to be concluded that it is necessary for the Secretary of therecognised political party or group leader to sign each nominationpaper in order to establish the vital and pervasive link between therecognized political party and the candidates or the group leaderand the candidates, as the case may be. This requirement isunquestionably of the highest significance in the scheme of the rel-evant provisions in the statute.
Moving to the second premise which relates to the sanctionattaching to the non compliance of the requirement for theSecretary of the recognized political party or the group leader tosign the nomination paper, it is seen that Section 31 (1 )(e), placesa firm sanction by mandating a rejection of the nomination in theevent of non compliance. Thus the significance of the requirementis matched by the severity of the sanction which attaches to noncompliance. When examined in the scheme of the relevant provi-sions of the statute, I have to conclude that the requirement inSection 28(5) is mandatory and calls for proper compliance.
Be that as it may, the three matters, relied on by the Court ofAppeal as constituting substantial compliance do not bear scrutiny.
Firstly, the Court of Appeal has acted on an affidavit filed bythe Secretary of the recognized political party in Court, in which hehas stated that initials appearing as against corrections in the nom-ination paper have been placed by him. The Court of Appeal makesa point that this affidavit has not been contradicted and has fault-ed the Returning Officer for not acting on the basis of these initials.
I have to note that this is an erroneous premise. The affidavit is asubsequent emanation and was not there when the nominationprocess took place before the Returning Officer. He had the nomi-nation paper and the objections that were taken and he made hisorder on these documents. That is the record on the basis of whichthe Court may consider exercising the power of judicial review if theReturning Officer had acted in excess of his authority. By importingthe contents of documents which did not and could not have formedpart of the record of the officer vested with jurisdiction, the Court ofAppeal has distorted the process of judicial review. I have to dealwith this matter further since learned Counsel for the respondent
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has also relied heavily, on these “initials". It has even been con-tended that since the law does not specify where the signature ofthe Secretary should be placed and, the initials appear on the nom-ination paper, the Returning Officer cannot reject the nominationpaper in terms of Section 31(1)(e). This contention cannot beaccepted, for two reasons.
Firstly, the Court of Appeal and learned Counsel have failedto take into account the purpose in initialing documents reduced towriting. A person signing a document places his initials as againstcorrections in the document to denote that they were there at thetime he signed the document. If the signature denoting the makingof the document is not there what earthly use is there of these ini-tials? The second contention, that the law does not specify theplace where the signature of the Secretary should appear, is equal-ly erroneous. Section 28(5) provides that each nomination papershall be signed by the Secretary of the recognized political partyand “shall be attested by a Justice of the Peace or by a NotaryPublic.” The attestation is the confirmation by the Justice of thePeace or the Notary Public that the document (nomination paper)was made by the Secretary who signed it in his presence.Therefore the place where the signature should appear has to bein relation to the attestation. This is made abundantly clear in theForm of Nomination in the First Schedule to the Ordinance (beingthe same as X3c) in which the place for the signature of theSecretary is clearly denoted immediately above the attestation.That is the place which the Returning Officer should look at toascertain whether the nomination paper has been signed by theSecretary as required by Section 28(5). The Returning Officer can-not and should not venture to glean a signature from initials scat-tered in several places in the nomination paper.
The next matter relied on by the Court of Appeal to infer thatthe Secretary had “knowledge and authenticated the contents ofthe nomination paper “is that the Justice of the Peace “duly attest-ed and certified the nomination paper.” I have noted above the pur-pose of the requirement for attestation. It is a certification that thenomination paper was completed and signed by the Secretary inthe presence of the Justice of the Peace. In the absence of the sig-nature of the Secretary the attestation is meaningless.
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Finally I have to deal with the rubber seal bearing the nameand designation of the Secretary which has been placed beneaththe space for the signature. The Court of Appeal has made a pointof the Secretary’s “personal seal” being placed by him on the basisof the affidavit filed in Court. This amounts to, as noted above, animproper admission of evidence in a proceeding for judicial review.Counsel contended that this seal should be taken as a mark placedby the Secretary and should therefore be taken as compliance withthe requirement. Several judgments have been cited which dealwith a signature of a person engraved in facsimile and of marksused by persons, in place of signatures. These judgments are irrel-evant to the question at issue. A perusal of X3c shows that the rub-ber seal has been placed below the space for the signature of theSecretary. It does not contain a signature engraved in facsimile. Itcontains only the name and designation of the Secretary in print. Itis plain to see that it was not intended to pass off for the signatureof the Secretary. It was intended to be descriptive of the signatureby giving in print his name and designation. But unfortunately thesignature was not placed and the description in the rubber seal, likethe other matters referred to above, become meaningless.
In the case of Mayappart vs Manchanayake,W, Sansoni, J.(as he then was) considered the validity of a cheque endorsed bya partnership in an action for recovery of money from the partners.The endorsement bore the rubber stamp of the partnership, but notthe signatures of the partners. It was held that the endorsement inquestion in invalid. Sansoni, J. made a general observation, rele-vant to the facts of this appeal, as follows (at p.533) –
“As a matter of language, giving the words their ordinarymeaning, when a document is required to be signed, or whena person’s signature is required on a document, the person’sname should be written by hand with a pen or pencil.”
I would add that the signature placed in this manner repre-sents the person who writes it and denotes his act. Counsel con-tended that the findings of Sansoni, J., should be restricted in itsapplication to bills of exchange and cannot be extended to the pro-vision we are called upon to examine. This contention cannot beaccepted. It has to be borne in mind that the significance of the sig-nature in relation to the provisions in question is higher than in rela-
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tion to a bill of exchange. The signature in a bill of exchange doesnot require attestation whereas section 28(5) requires the signatureto be attested by a Justice of the Peace or a Notary Public. With noamount of ingenuity could it be contended that it is the placing ofthe rubber seal which the Justice of the Peace attested.
For the reasons stated above the appeal is allowed withcosts in both courts payable by the 1st Petitioner Respondent. Theappropriate authority should now take action according to law tocontinue with the process of the election to the AkuressaPradeseeya Sabhawa.
ISMAIL, J.-I agree.
WEERASURIYA, J.-I agree.
Appeal allowed.