011-NLR-NLR-V-51-FRANCIS-DE-SILVA-Appellant-and-WIJENATHAN-Respondent.pdf
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DlA9 J,—Francis de Silva e. Wtjenathan
Present: Dias J.
FRANCIS DE SILVA, Appellant, and WTJENATHAN, RespondentS. C. 1,146—Appeal from a decision of an Elections Officer, Trincomalec
Local Authorit ies Elections Ordinance, No. 53 of 1946—Appeal—Computationof ajipcalable period—Meaning of " residence''—Sections 7 (1) and 21 (7).
When, a person objects to the insertion of a claimant's name in theelectoral list for a ward, the objector lias a legal right to be notified ofthe decision of the Elections Officer, and, if he appeals, the appealableperiod referred to in section 21 (1) of the Local Authorities ElectionsOrdinance commences to run from tho date when the decision iscommunicated to him.
The “ residence” contemplated in section 7 (1) can be either actual orconstructive. In order to constitute constructive residence two elementsroust co-exist, viz., (a) intention to reside at a particular house or place,and (6) unfettered power or ability at one’s own will and pleasure, withoutcommitting a breach of any legal obligation, to go to that house orplace and take up residence there at any time.
j^PPEAL from a decision of an Elections Officer appointed underthe Local Authorities Elections Ordinance.
U.V. Percra, K.O., with H. W. Tambiah, for the objector-appellant.
S. B. Kumarakulasingke, with A. I. Rajasingkam and T. W. Raja-ratnam, for the claimant-respondent.
Cur. adv. oult.
December 15, 1948. Dias J.—
The claimant respondent desired to have his name inserted iu theElectoral List for Ward No. 4 of the Urban Council of Trincomalee.It is alleged that the claimant’s father set np the objector-respondent tooppose his application. When the claimant succeeded in persuadingthe Elections Officer that he had the necessary residential qualificationbo be regarded as a qualified voter, his father manifested his paternalaffeotion towards his son by inducing the objector-appellant to preferthis appeal.
The respondent’s preliminary objection to the hearing of this appealmust be disposed of first. If it succeeds there is no point in consideringthe “ point of law ” raised in the appeal. Section 21 (1) of OrdinanceNo. 53 of 1946 provides as follows:—
“ If any claimant or objector …. is dissatisfied with thodecision of any Elections Officer on any claim or objection relatingto the electoral lists of the wards of any electoral area, he may, notlater than ten days from the date of such decision, appeal therefrom tothe Supreme Court on any question of law involved in such deoision,but not on any other ground3—u.
t*1. N. A 9ZM5—1,044 (10/4P)
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DIAS J.—Francis d* Silva v. Wijtnaihan
It is not in dispute that all the steps preliminary to the summary investi-gation of the respondent’s claim and the appellant’s objection hare beenduly observed. The inquiry was held on August 26 and 27, 1948.Seotion 19 (2) (a) of the Ordinance requires the Elections Officer to holda “ summary inquiry ” into the matter. What he did—possibly becausecounsel who appeared did not permit him to do so—was to hold a kindof state trial, the recorded evidenoe of which runs into no less than forty-seven pages. After the legal advisers on both sides made speeches onthe facts and the law, the Elections Officer, who apparently is not ajudicial officer, appears not to have given his decision forthwith, butadjourned the proceedings to think about it. 9e then put his decisioninto writing on September 6, 1948. His decision, however, was onlycommunicated to the objector appellant by the Elections Officer’s letterX4, dated September 29,1948. The appellant filed his petition of appealfour days later, namely, on September 24, 1948. It is contended onbehalf of the respondent that the appealable time began to run againstthe appellant as from September 6, and that, therefore, he is ont of time.The appellant argues that, not being a prophet, he was unable to knowwhat the Elections Officer had recorded in the secrecy of his residenceor office, And that “ the date of the decision ” referred to in section 21 (1)of the Ordinance is September 20, and that he preferred his appeal “ notlater than ten days from the date of such decision ”, and that he istherefore in time.
Counsel for the respondent has seen me in chambers and has urged.some further reasons. He submits that there are four classes of personswho can appear before the Elections Officer in terms of section 18 (1),namely (a) the person who claims to have his name entered, (6) theperson who olaims to have his name transferred to another list, (c) theperson who objects to the name of a person being entered and appliesto have that name erased, and (d) Mr. Barr Kumarakulasingham arguesthat there is a fourth class of person, namely, the person whose name isobjected to by an objector, and he refers to section 19, sub-section 1 (c).Assuming for purposes of argument that Mr. Barr Kumarakulasingham’scontention is oorrect, in this case the claimant comes within both cate-gories (a) and (<£). He is the claimant who claims that his name shouldbe entered in the list, and he is also the person against whom the objectionhas been made. Mr. Barr Kumarakulasingham argues that there isno necessity for the Elections Officer to promulgate his decision to anobjector beoause, he argues, under seotion 19 (2) sub-section (6), theElections Officer has no duty cast upon hi™ to give notice to the objector.He argues that the only persons who are entitled to be given noticeunder section 19 (2) (6) are the claimant and the person objected to butnot the objector. I am unable to read any such meaning into thatsection. In this oase notice was given to the claimant in a dual capacity—both as the claimant and as the person against whom an objection hadbeen lodged. Notice was also given to the person “ who desires to opposethe claimant” and “to the objector and the person in regard to whom theobjection is made Therefore, Mr. Ban Kumarakulasingham’scontention that the objector had no legal right to be notified of thedecision is, in ray opinion, unsound
DIAS J.—Sranoit d$ Silva v. Wijtnaiha
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The Elections Officer is not a judge who sits in his court from day today. He is an offioer who is appointed for the purpose of hearing andadjudicating upon olaims and objections, for which purpose he fixes thevenue and appoints the time at which he will be present for that purpose.After attending to this duty he departs, one does not know where, Theparties concerned have no place to go to where they can obtaininformation as to what the Elections Officer decided.
The word “ deoision ” as used in the Ordinance has not been defined.Stroud points out that “ decision ” is a popular and not a technicalterm, and means little more than a concluded opinion. I would holdthat the word “ decision ” as used in section 21 means the determinationof or the verdict on the questions at issue raised at the summary inquirybefore the Elections Officer, and which he has reached after consideringthe evidence and the arguments before him. An unpromulgated deoisionreached by the Elections Officer cannot in the context be regarded as a“ decision Section 19 (4) provides that the decision of the ElectionsOffioer becomes final and conclusive subject to the right of appeal onquestions of law conferred by section 21 (1). How is an appellant toknow on what points of law he should appeal unless the “decision*’is communicated to him ? The matter beoomes quite clear if we regardit from the point of view of a claimant appellant. He applies to have hisname inserted in the register or to transfer it from one list to another.He goes to the Municipal Office or the Urban Council Office where theinquiry was held, and finds a revised list exhibited in which his namedoes not appear. That fact is not proof that the Elections Officer hasdecided his claim adversely to him. The omission may be due to amistake or to the negligence of the clerk who compiled the revised list.Is he expected to go interviewing underlings in order to ascertain whatthe “ decision ” is ? Does the law expect that members of the publicshould have to write to the Elections Officer to ascertain what his“ decision ” is 1 From what point of time does the appealable periodcommence to run against the claimant appellant ? Obviously, it isthe duty of the Elections Officer, as he did in this oase, to promulgatehis decision publicly, or to intimate to the parties concerned what hisdecision was. The appealable time begins to ron from that date and notbefore. Therefore, in my opinion the appeal has been preferred in timeand must be heard.
The appellant is entitled to appeal only on “ a question of law involvedin the decision ”, and not on any other grounds. The only ground ofappeal urged is that the Elections Officer has misdirected himself on thequestion whether in terms of section 7 (1) of the Ordinance, the applicanthad been resident within the electoral ward “ and has been residentwithin the limits of that or any other ward of the area for a continuousperiod of at least sis months in the period of eighteen months immediatelypreceding that date ”, i.e., the date of the commencement of the prepara-tion or revision of the electoral list—vide section 13. What this meansis that the applicant, besides having the qualifications enumerated insection 6, must also have a residential qualification by being residentwithin the relevant area for a period of eighteen months immediatelypreceding the date when the list was prepared or revised (in this case
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DIAS J.—Francis de Silva v. Wijcnathon
May 1,1948), and also continuously resided within the area for six monthsat some stage of the period of eighteen months. In other words, it isfor the claimant to show that between December, 1946, and May 1,1948(eighteen months), ho not only resided within the ward, but also that fora period of six months within that period he was continuously residentwithin the ward.
“Residence” can be (a) either actual, or (b) constructive. It iscommon ground that either kind of “ residence ” will satisfy the provisionsof this Ordinance. It is also conceded that the respondent did not haveactual residence within the ward for the requisite periods. It is howevercontended that he did have “ constructive ” residence which satisfiesthe requirements of the law.
The law on the question of “ constructive ” residence has been settledby local and English authorities. In order to constitute “ constructive ”residence two elements must co-exist, (a) There must be the intentionto roside at a particular house or place, and also (b) that person must havethe unfettered power or ability by his own will and at his pleasure, withoutcommitting a breach of any legal obligation, to go to that house or placeand take up his residence there at any time. If these two elements co-exist, that person has “ constructive ” residence at that house or place.If both elements do not co-exist, there is no “ constructive ” residence—see Ford v. Drew1 and Soysa v. Perera *. Thus, a Ceylonese residingat Cotta went to England—not under a contract of service to do workabroad, but for a holiday. Such a person is residing at Cotta, becausenot only has he the intention to return to his home, but he also has thepower at his mere whim and caprice, without committing a breach ofany legal obligation, to retnrn home. A man imprisoned for a civildebt does not lose his residence, because by paying the debt he can forth-with go home. The case of a man incarcerated for a criminal offenceis different, because, although he may have the intention of residing athis home, he cannot give effect to that intention until he is set free.A public servant whose home is in Colombo is stationed at Jaffna to dosome work. If he has not obtained authority to leave Jaffna and to goto Colombo whenever the spirit moves him, he oannot leave Jaffnawithout committing a breach of a legal obligation. Therefore, such aperson oannot be said to be residing in Colombo.
The appellant contends that the Elections Officer has misdirectedhimself on these legal principles in deciding whether the claimant had therequisite “ constructive ” residence at Trincomalee. Is this a “ questionof law ” within the meaning of section 2 (1) ? I think it is. In R. v.Seeder de SUva * the Court of Criminal Appeal held that where the mis-direction consists of a wrong direction as to the law in general whichobtains in the class of cases to which the particular case belongs, or asto the law which is applicable to the special facts of the case—that wouldclearly involve “ a question of law ”, I have, therefore, decided to hearthe appeal.
1 (X879) 49 L. J. C. P. (X.S.) 172.8 (1921) 22 A L. R. 464.
» 11910) 41 A', T„ R. at p. 340,
DIAS J.—Francis dc Silva t>. Wijcnathan
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According to the claimant be is unmarried. His father deserted hismother for a concubine and left his wife and his daughters to fend forthemselves. The applicant, therefore, as a dutiful son, had to supportthem. In 1940, owing to war conditions, he was able tosecureemploymentin the Ceylon Ordnance Department, which, owing to the danger ofinvasion and air attack from Japan, had its headquarters at Trincomaleetill 1946. Between 1940 and 1943 the appellant rented a house for hismother and sisters with whom he lived at “ Rosefield ”, Crow Lane,Trincomalee. In 1944 that house was vacated and his mother and sisterswont to live at Sri Kanta, Mosque Lane, Trincomalee. That the applicantis t he tenant of these premises is beyond question, but that per $e doesnot establish that he resided there. The critioal period for the applicantis from December, 1946, to May 1, 1948, and he must also show that fora period of six months within that period he continuouslyresided withinthe electoral district. When war conditions ceased to exist in 1946,the headquarters of the Ordnance Departmont were shifted—probablyto Colombo. There was a “ branch office” there until 1947. We canpresume that the authorities allowed the applicant to work at that branchoffice until January, 1947. But what happened thereafter ? Theolaimant was transferred to Diyatalawa. He says that this was a“ temporary ” transfer. The facts indubitably point to a differentconclusion. In October, 1947, according to the claimant, he was again“ temporarily ” transferred to Colombo—probably to the headquarters.Ho says that from 1947 up to date “ I have been having duties at Trinco-maleo The letter dated July 12, 1948, addressed by I.t-Col. J. L. Tredennick, C.R. A. O. C.» Ceylon, to the Elections Officer(a highly improper communication for an outsider to write to a judge,but which was admitted as evidence during the inquiry) does not assistthe claimant. That officer says “ Mr. B. Wijcyanthun was employedin the War Department at Trincomalee and was working there untilhe was posted to I>iyatalawa on temporary duty, and from there toColombo whore he is now employed ”. It is to be noted that the writerdoes not say that he was temporarily transferred to Colombo. Theletter procoeds “ In view of the fact that the employment of the above-named employee cannot be considered permanent in Colombo, and hisnature of duties is such that he will have to travel to Trincomaleeperiodically, he has been encouraged to retain his residence in Trinco-malee That this letter has affected the mind of the Elections Officeris obvious, because he refers to it in his decision. The situation envisagedin this letter is that the applicant is now stationed in Colombo, fromwhere he has to proceed on duty to other places including Trincomaleefor his work. Such journeys are periodic and are not undertaken atthe will and pleasure of the applicant, but in accordance with superiororders. It is fortunate for tho applicant that ho has got a commandingofficer at the head of the Ordnance Department who “encourages”him to go to Trincomalee. But this is not what the law requires. Itrequires the applicant to be able to go to Trincomalee at any time of theday or night whether ho is “encouraged” or “discouraged” orevenactually prohibited by his superior officer without committing a breachof any legal obligation. This is not the case here. No doubt the
1*J.N A 92665 (10/4W
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DIAS .1.—Fronds de Siiva r. Wijenathan
applicant has the intention of residing at Trincomalee, but the evidenceclearly proves that he cannot at his will and pleasure leave his dutiesat Colombo whenever he feels like setting his mother and sisters. Indealing with the law applicable to the facts the Elections Officer hasmisdirected himself. This is what- he says :—
" It appears to me that there are only two main categories wherethere is * legal restraint ’ upon the power to return. (1) In criminalconvictions (even those where option of a fine is not exercised). (2)Militiamen on duty—Mr. Wijenathan does not belong to either ofthese categories. Mr. Wijenathan li&9 not experienced a conflictbetween his intention to return home and his official duties. Evenif there wore such conflicting theory, Mr. Wijenathan is free evenmore than in the case of the man convicted for debt, to terminatehis contract of employment. Mr. W’s is a conditional ‘restraint’.Mr. W. has a sleeping apartment in B’caloa at Sri Kantha Vasa, hisfamily and servants livo there uninterruptedly and ho returns thereoccasionally both on duty and on some weekends. His permanentinterests are in Batticaloa and the authorities etato (though thisis by no means decisive in isolation) that they have encouraged himto rotain his residence in Trincomalee. Even if tho cvidenco wasweighted equally on the facts, which is by no means the case, I haveno alternative but to disallow the objection and to order insertion ofhis name in the Electoral list of the respective Ward of U. C. Trincomah eto which he belongs
Had the Elections Officer correctly applied the law to the facts of thiscase, he would have reached the conclusion that although the applicant-may have the intention of residing at Trincomalee, tho evidence does notallow that he at his whim and caprice or at his mere will and pleasurecan leave Colombo without committing a breach of a legal obligationin order to go to Trincomalee and spend a few days there. He is residentin Colombo and not at Trincomalee.
There is a further point of law which arises in these proceedings, namely,that in allowing an outsider like Lt.-Col. Tredennick to write the letterwhich he did write and in allowing that letter to be read as ovidencewithout giving tho opposing side the right to cross-examine tho writerof that letter, there has been an irregularity which has affected the mindof the Elections Officer. As the objector appears to have condonedthis irregularity I shall say nothing more about it, but it is rather distur-bing to realise that in these statutory tribunals which are being set upby Parliament, the officer who performs judicial or semi-judicial dutiesis capablo of being influenced by communications of this kind. Noinjustice has been done in this case.
The order appealed against is set aside, and I direct that the applicantrespondent’s name shall be erased from the electoral list. The objectorappellant will have his costa both here and below.
Order set aside.