Ponnambdlam v. Kunasingham
1953Present: Weerasooriya J.
G. G. PONNAMBALAM, Objector, and S. V. KUNASINGHAMet ad., RespondentsPreliminary Objections by Respondent to Election PetitionNo. 19 of 1952 (Jaffna)
Election Petition—Several petitioners—Appointment of agent—Amount of stampduty payable—Security for costs, etc.—Persons who should’deposit and receiveit—Amendment of petition—Determination of date of amendment—Validityof amendment—Power of trial Judge to question it—Quantum of security tobe deposited in case of amendment—Parliamentary Election Petition Rules, .1946, Rules 9, 12, 13 (1)—Ceylon (Parliamentary Elections1 Order in Council,1946, s. 83 (2).'
Two petitioners on a single election petition “ jointly and severally ”appointed an agent under Rule 9 of the Parliamentary Election Rules.Both of them had a common interest in obtaining a declaration in terms ofthe prayer that the election of the respondent be declared void.
Held, that the instrument of appointment of agent should be stamped withthe duty payable on a single power of attorney and not three powers ofattorney.
“ Where a power of attorney is granted in one document by several grantorsin favour of- one person, the question whether the document constitutes onepower of attorney or several distinct powers has te be determined by referenceto the interest which each grantor has in the matter in iCspect of which thegrant is given, and where such interest is common to all the grantors the positionin law would seem to be that the document constitutes a single power ofattorney. ”
Held further: (i) In regard to deposit of security for costs, etc. of an electionpetition, payment of it by the petitioner’s appointed agent which is expresslystated to be made on behalf of the petitioner is a payment by the petitionerwithin the meaning of Rule 12 (3) of the Election Petition Rules.
W iSERASOORIYA J.—Ponnatnbalam v. Kunasingham
(ii) Where an election petition is sought to be amended by the addition ofa new paragraph the terms of which are set out in the application for leave toamend, the date of amendment of the original petition—for the purpose ofdetermining whether it was amended within the time specified in section 83 (2)of the Parliamentary Elections Order in Council—is the date on which theapplication for leave to amend it is allowed by the Judge. No further acton the part of the petitioner by way of amendment is necessary.
(hi) The validity of an order allowing an application for leave to amend anelection petition cannot be questioned by the Judge who subsequently triesthe election petition.
When an election petition is amended, the petitioner need not give
security afresh in respect of the charges included in the original petition.The only fresh security which he must give within three days after theamendment is in respect of the additional charges.'
Where the Commissioner of Elections has given authority to his OfficeAssistant to receive on his behalf deposits of security in connection with electionpetitions, payment of security made to the Office Assistant is payment to theCommissioner within the meaning of Rule 13 (1) of the Election Petition Rules.
OflDER made in respect of certain preliminary objections takenby the respondent to Election Petition No. 19 of 1952 (Jaffna).
N. E. Weerasooria, Q.C., -with E. B. Wikramanayake,Q.C.,
H. Wanigatunga, H. W. Jayeivardene, F. B. Dias and JR. R. NaUiah,for the respondent-objector.
S. Barr Kumarakulasinghe, with C. Vanniasingham, G. T.Samarawickreme, A. I. Rajasingham and J. C. Nathaniel, for thepetitioners respondents.
N. G. Fernando, Acting Solicitor General, with R. S. Wanasundera,Crown Counsel, as amicus curiae.
Cur. adv. vuli.
October 26, 1953. Weeeasoobiya J.—
This is an enquiry into certain objections taken by the respondentin his application dated the 2nd October, 1953, to the hearing of theoriginal petition dated the 23rd June, 1952, and the amended petitiondated the 18th August, 1952, and filed on the 19th August, 1952.
Although in the respondent’s application twelve grounds of objectionsare set out, Mr. Weerasooria, who appeared for him at this inquiry,restricted his submissions to only four grounds which may be formulatedas follows :—
The appointment of an agent by the petitioners by their writingdated the 23rd June, 1952, is bad in law in that the said writinghas not been duly stamped in terms of Rule 9 of TheParliamentary Election Petition Rules, 1946 ;
WEERASOORIYA J.—Ponnambalam v. Kwnasingham
Security in a sum of Rs. 5,000 in respect of the original petition
has not been deposited by the petitioners in terrqs of Rule 12of the said rules ;
The petition dated the 23rd June, 1952, has not been amended
within the time specified in s. 83 (2) of the Ceylon (ParliamentaryElections) Order in Council, 1946, in that the amendmentthereof by the petitioners filed on the 19th August, 1952, waseffected out of time ; and
Security in respect of the petition as amended has not been
deposited by the petitioners in terms of Rule 12 and Rule 13of the said rules.
Rule 9 of the rules provides for the appointment of an agent by thepetitioners on an election petition by a writing to be left at the officeof the Registrar of the Supreme Court, and the rule also requires thatthe writing “ shall be stamped with the duty payable thereon under thelaw for the time being in force The writing which has been filed bythe petitioners at the office of the Registrar appointing ProctorV. Navaratnam as their agent bears stamps of the value of Rs. 6. Itis common ground that the law for the time being in force relating tothe stamp duty payable on a writing appointing an agjent under Rule 9is Item 37 (1) under Part 1 of Schedule A of The Stamp Ordinance(Cap. 189), according to which the stamp duty is Rs. 5. Mr. BarrRumarakulasingham explains that the reason for the writing in thepresent case bearing stamps of the value of Rs. 6 was in order to meeta possible contention that the duty payable is under para (1) of Head Fof Part 2 of Schedule A of the Stamp Ordinance which provides for astamp duty of Rs. 6. He, however, now agrees that the writing inquestion is stampable under Item 37 (1) already referred to. For therespondent it is contended that while under Item 37 (1) the stamp dutyof Rs. 5 is payable on a single or joint power of attorney, where twograntors join in giving separate powers of attorney, even though thegrantee be one and the same person and the grants are embodied inone document, there are in reality two powers of attorney and the stampduty payable would be Rs. 10. Mr. Weerasooria concelles that it wasopen to the two petitioners under Rule 9 to have made a joint appoint-ment of an agent and that in such an event the stamp duty payableon the instrument would be only Rs. 5. But he submits that in thepresent case the petitioners not only made a joint appointnfent buteach of them went further and granted a separate power of attorneyas well, and in support of his argument he points to the language usedin the instrument whereby the petitioners “ jointly and severallynominate, appoint and authorise Mr. Vaithianathapillai Navaratnam…. to act as our and each of our agent …. and to
appear for us or either of us …. ” His submifeion is that in
this single instrument are incorporated three powers of attorney, oneof which is a joint power while the other two are separate powers grantedby each petitioner, and that a stamp duty of Rs. 15 is payable thereon.Tn this connection he referred me to the case of The British CeylonCorporal ion, Ltd. v. The United Shipping Board et al. L, and the case1 (1934) 36 N. L. R. 225*('
WEERASOORIYA J.—Ponnambalam v. Kunaaingham
of James v. Karunaratne Both, these cases dealt with the filing ofappeals by mqre than one appellant through the medium of a singlepetition of appeal which was stamped as for one petition of appeal.It was held in each case that the petition of appeal was insufficientlystamped and the appeal was rejected. In the case of Silindi et al. v.Wellatoa Attadasi Thero2, however, it was held by the Privy Councilthat several defendants in an action who put forward a common defencemay grant a joint proxy in favour of the same Proctor. Where a powerof attorney is granted in one document by several grantors in favourof one person, the question whether the document constitutes one powerof attorney or several distinct powers has to be determined by referenceto the interest which each grantor has in the matter in respect of whichthe grant is given, and where such interest is common to all the grantorsthe position in law would seem to be that the document constitutes asingle power of attorney. It was held in the case of Allen v. Morrison 3that a power of attorney by all the members of a mutual insurance clubnominating an attorney to execute policies on behalf of the club requiredonly a single stamp. It is clear that Rule 9 contemplates a jointappointment of an agent by several petitioners on a single electionpetition. The pot'tion which has been filed in the present case showsthat both the petitioners have a common interest in obtaining adeclaration in terms of the prayer that the election of the respondentbe declared void. In my opinion the use of the words “ jointly andseverally ” in the appointment, having regard to the context in whichthese words occur, does not have the effect contended for byMr. Weerasooria, and I, therefore, hold that the appointment has beenduly stamped. The first ground of objection accordingly fails.
The second ground of objection deals with the security in a sum ofRs. 5,000 deposited in respect of the three charges contained in theoriginal petition. Mr. Weerasooria draws attention to the terms ofthe receipt filed by the petitioners under Rule 13 (1) in respect of thisdeposit, according to which the deposit was made by Proctor Navaratnam(who is the agent appointed under Rule 9) “ on behalf of ” the petitioners,and he contends that such a deposit was not duly made under Rule 12 (3)which requires that the security should be given by the petitioner.In support of his contention Mr. Weerasooria cited the case of Costa v.Jayewardene 4. But according to the first head note in the report of thatcase, what was held there was that under the corresponding Rule 12 ofthe Election (State Council) Petition Rules, 1931, a deposit of moneyby way of security must be made in the name of the petitioner evenwhen it is made by some other person, which is precisely what has beendone in the present case. I have read the judgment in the case citedand am satisfied that the head note correctly sets out the effect of Justicede Kretser’s judgment. What happened in that case was that althoughthe security was deposited by the Proctor who filed the election petitionin the case, the only information given as regards the deposit, as faras could be gathered from the receipt filed, was that it was securityin respect of the election petition. As pointed out by Justice*de Kretser, 1
1 [1935) 37 N. L. R. 154.
* [1945) 47 N. L. R. Ij.
8 B. & C. 565.
(1943) 44 N. L. R. 341.
WEERASOOJEtlYA J.—Ponnambalam v. HiuwxsinghoAtv
the receipt did not even state that the deposit was on behalf of thepetitioner. In the present case the receipt shows that the deposit wasmade by Proctor Navaratnam on behalf of the petitioners and “ byway of security for payment of all costs, charges and expenses thatmay become payable by …. the petitioners in connectionwith election petition No. 19 of 1952 filed by them …. ” There
is nothing in the evidence of Mr. de Silva, the Office Assistant to theCommissioner of Elections who was called as a witness by the respondent,to contradict the terms of this receipt, and I hold that the sum of Rs. 5,000referred to in the receipt was security given by the petitioners as requiredby Rule 12 (3). This ground of objection, therefore, fails.
The third and fourth grounds of objection remain to be considered.The third ground of objection raises the question whether the originalpetition was amended within the time specified in s. 83 (2) of the Ceylon(Parliamentary Elections) Order in Council 1946, and in this connectionit is necessary to refer briefly to the steps taken by the petitionerstowards the amendment of the original petition by the addition of anew paragraph 3 (d) containing a charge of corrupt practice based onthe allegation that the respondent knowingly madp the declarationas to election expenses required by s. 70 of the Order in Council falsely..
On the 24th July, 1952, the petitioners filed, inter alia, an applicationfoT leave to amend the original petition by the addition of theparagraph 3 (d) referred to above. The application contained a prayerthat “ leave …. to amend their said petition dated 23rd June1952 ” be granted, and that “ their said petition dated 23rd June 1952be amended ” by the addition of a new paragraph 3 (cZ), the terms of"which were set out. It is common ground that under s. 83 (2) of theOrder in Council the last day for amending the original petition in themanner proposed was the 30th July, 1952. This application came upfor inquiry before Justice Gratiaen on the 28th July, 1952, but it didnot proceed to inquiry on that date in view of an agreement arrived atbetween counsel for the parties. The terms of the agreement as placedon record by Justice Gratiaen were that “ whatever oSder that is madeupon the application in terms of the petitioners’ prayer shall be regardedas though it had been made today ”. It is fairly clear that one of theconsiderations which induced counsel to arrive at this agreement was thateven if the application were to be taken up for hearing on the'-28th Julythe order of the Judge could not conveniently be given earlier than after-the last day (the 30th July, 1952) for amendment of the original petition.In view of this agreement the hearing of the application was deferred fora later date and in due course it came up before Justice Gtmasekara onthe 6th, 7th and 8th August, 1952, and on the 18th August, 1952, he madehis order that the “ application for leave to amend die petition in the-manner proposed is allowed ”. Mr. Weerasooria stated that in raisingthe objection now under consideration the respondent was not tryingto resile fj-om this agreement on the ground that it was not a validagreement. His submission, however, was that s. 83 (2) of the Orderin Council contemplated the effecting of an amendment by the petitionersafter leave to amend had been obtained, and that even if leave to amend
WBERASOOBIYA J.—Ponnambalam v. Kunasingham
be deemed to have been obtained on the 28th July, 1952, a further acton the part «f the petitioners was necessary by way of amendment ofthe original petition, that such act had not been performed by thepetitioners within the time allowed by law and that therefore there wasno amended petition which the Election Judge has jurisdiction to try.In this connection he drew my attention to a document, dated the18th August, 1952, but filed by the petitioners on the 19th August,1952, which purported to be a “ fair copy of the amended petitionHe submitted that in so far as the filing of this document may beregarded as the act of the petitioners amending the original petition,it was done too late. The submission of Mr. Barr Kumarakulasingham,on the other hand, is that on Justice Gunasekara making his order thatthe “ application for leave to amend the petition in the manner proposedis allowed ”, the original petition stood amended as from the date ofthat order in the manner indicated in the application to amend filedby the petitioners on the 24th July, 1952, and that no further act ontheir part by way of amendment was necessary. The Acting SolicitorGeneral, who represented the Attorney General as amicus curiae in theseproceedings, also adopted this submission, and on a consideration ofthe matter I agree with the submission of the counsel for the petitioners,and I hold that the order of Justice Gunasekara is tantamount to anamendment of the original petition by the addition of the chargecontained in the proposed paragraph 3 (d) set out in the petitioners’application dated the 24th July, 1952, and such amendment must bedeemed to have been made on the 28th July, 1952. If my view thatthe order of Justice Gunasekara is tantamount to an amendment ofthe original petition in the manner indicated is correct, a questionmay, perhaps, arise whether it was open to him to make an order ofthis nature after the lapse of the time provided by law for the amendment,but this is not a question which I feel it is within my competence, eitheras an Election Judge or as a Judge of the Supreme Court, to go into.It is a well established rule of law that a Judge cannot in the same causedisregard a previous order made by another Judge having superior orco-ordinate jurisdiction—vide the observations of Scrutton J. (as hethen was) in Papworth v. Battersea Borough- Councilx. When JusticeGunasekara made his order allowing leave to amend the petition it mustbe regarded as one made on the basis that the application before himwas for leave for an amendment which could be effected within the timespecified in s. .83 (2) of the Order in Council as I can hardly conceive,if I may say so with respect, that he would have made the order onthe basis that what had to be decided by him was the purely acadamicquestion whether the amendment may be allowed irrespective of whetherit could or could not be made within the specified time. If his orderamounted to am order of amendment of the original petition, as in myview it did amount to, the validity of that order cannot be questionedin these proceedings. I accordingly hold that leave to amend havingbeen obtained on the 28th July, 1952, the amendment for which leavewas granted was also effected on that date, and it was therefore withintime. The third ground of objection, accordingly, fails.
1 1915 L. .J. 84 K. B. D. (Part 2) 1881 at p. 1885.
WEEASOORIYA J.—Ponnambalam v. Kunasingham
The fourth ground of objection deals with the security in respect ofthe amended petition. The submissions of Mr. Weer^sooria underthis ground were to some extent linked with his submissions under thethird ground of objection. In the first place he stated that if, ascontended for by him, the petitioners had, on obtaining leave to amend,to do a further act effecting the amendment, the only things done bythem towards the performance of that obligation was the filing, onthe 19th August, 1952, of the document already referred to, and thatunder Rule 12 (in so far as that rule is applicable to an amendment ofa petition by the addition of a new charge where the original‘petitionalready contained three charges) additional security in respect of thenew charge had to be given within three days after the filing of Chatdocument, which the petitioners failed to do. His next submissionwas that on a petition being amended by the addition of a new charge,there comes into existence a new petition and security in respect ofall the charges in that petition would have to be given afreshnotwithstanding that security in respect of such of those charges aswere contained in the original petition had already been given by thepetitioners.
There is, of course, authority for the view that on an Election petitionbeing amended by the addition of a new charge, there comes intoexistence a new petition. In the case of Clark et al. v. Lowry1 Grove J.stated that his judgment was based on the fact that a new charge wasadded by the amendment and therefore the petition was made a newpetition. That was a case where the question considered was thejurisdiction of a Judge to allow an amendment of an election petitionby the addition of a new charge after the time had expired within whichthe petition could have been presented. The matter was governedby the provisions of the Municipal Corporations Act, 1882 2, which gavea certain power to amend an election petition by reference to the powersof the High Court in an ordinary action within its jurisdiction subject,however, to the provisions of that Act. It was held that inasmuch asthe amendment in question had the effect of converting the petitioninto a new one, it should not have been allowed after the time had expiredwithin which the original petition could have been presented.
But even if it be that in the present case a “ new ” petition came intoexistence by reason of the amendment, the security given ifi respectof the original petition would also be security in respect of the “ new ”or amended petition, and it cannot, I think, be contended that on adismissal of that petition the security given in respect of the originalpetition would not be liable to meet such costs, charges and expensesas may become payable by the petitioners. In my opinion, therefore,if Rule 12 has any application to a case like the present one where anadditional charge is brought in by an amendment of the original petition(and in the consideration of the fourth ground of objection I do notthink it necessary for me to express a definite opinion on that questionin view of £he ruling that I give rejecting Mr. Weerasooria’s submissionthat fresh security in respect of all the charges in the “ new ” or amended
1 48 Law Times (N. S.) 762.
1 45 <& 46 Viet. G- 50.
WEERASOORIYA J.—Ponnambalam v. Kunaaingham
petition should have been furnished by the petitioners), the only freshsecurity whicji the petitioners need have given was in respect of theadditional charge, and such fresh security had to be given within threedays after the amendment was allowed by the order of JusticeGunasekara.
It is common ground that on the 31st July, 1952, (which is withintime if the amendment is deemed to have been effected on the 28thJuly, 1952) a sum of Rs. 2,000 was deposited by Proctor Navaratnamon behalf of the petitioners as “ security for the payment of all costs,charges and expenses that become payable by the petitioners by virtueof the amendment by the addition of a further charge …. ” as
stated in the receipt filed bearing that date. Mr. Weerasooria submitsthat this sum of Rs. 2,000 was neither paid by the petitioners nor wasit paid to the Commissioner of Elections, and that in neither respect,therefore, was there compliance with the relevant provisions ofRules 12 (3) and 13 (1). The first of these two submissions is howeverdisposed of by my earlier ruling that a payment by the petitioners’appointed agent, Proctor Navaratnam, which is expressly stated tobe made on behalf of the petitioners, is a payment by the petitioners.As regards the second of these submissions, Mr. Weerasooria relies onthe evidence of Mr. de Silva, the Office Assistant to the Commissionerof Elections, that the payment was made to him on the 31st July, 1952,at a time when the Commissioner was away from Colombo on circuit.Under cross-examination Mr. de Silva, however, stated that he hadthe authority of the Commissioner to receive on his behalf deposits ofsecurity in connection with election petitions whenever the Commissionerwas away on other duties, and that this particular sum was receivedby him under that authority.
I am unable to interpret Rule 13 (1) as bearing the meaning that the-manual act of receiving the payment should be by the Commissionerhimself, even on the basis that receiving payment is a statutory dutyfalling on the Commissioner. I should think that it would be opento the Commissioner, even if he should be in his office in Colombo, toinstruct his office assistant to receive payment on his behalf in an ante-room ; and likewise it would be open to the Commissioner to instructhis office assistant to receive payments on his behalf on any particularday on which the Commissioner may be absent from his office.Mr. Weerasooria brought to my notice the case of Lieversz v. Kannangara1where it was held that a deposit of a sum of money with an AssistantShroff of the Colombo Municipal Council was not a compliance with,s. 30 of the Colombo Municipal Council (Constitution) Ordinance whichrequired that the deposit should be with the returning officer. But itis to be observe^ that in the same case it was also held that there wouldbe a sufficient compliance with the requirements of s. 30 if the depositwas so made that the returning officer would have control over the money.In the present case there can be no doubt that the money which washanded over to the Office Assistant of the Commissioner of Electionswas money over which the Commissioner himself had control.
)1 (1943) 45 N. L. R. 55.
Selvain, v. Kuddipillai
The fourth ground of objection also, therefore, fails.. In the resultall the objections raised by the respondent are oVer-rttled.._ trialof the original petition, as amended, will be proceededif^mlb bn, the fourcharges contained therein. The respondent will pay to the petitionerstheir costs of this inquiry, which are fixed at Rupees one thousand eighthundred and thirty seven and cents fifty by agreement of parties.