GAMINI ATUKORALE v. CHANDRIKA BANDARANAIKE KUMARATUNGA AND OTHERS

007-SLLR-SLLR-2001-V-1-GAMINI-ATUKORALE-v.-CHANDRIKA-BANDARANAIKE-KUMARATUNGA-AND-OTHERS.pdf


GAMIN1 ATUKORALE
v.CHANDRIKA BAND ARANAIKE KUMARATUNGA AND OTHERS
SUPREME COURT
S.N. SILVA, CJ.
WADUGODAPITIYA, J..
P.R.P. PERERA. J.
BANDARANAYAKE, J. ANDGUNASEKERA, J.
PRESIDENTIAL ELECTION PETITIONSC NO. 1 /2000
20™. 22nd AND 23rd JUNE AND 03rd AND 04™ JULY. 2000
Election Petition – Presidential Election – Preliminary objections – Dismissalin limine – Section 91(a) and (b) of the Presidential Elections Act, No. 15 oj1981 – General intimidation: other circumstartces in consequence oj whichthe majority oj electors were or may have been preventedJromelecting thecandidate whom they preferred – Non-compliance with the provisions ofthe Elections Act – Section 96 of the Act – The requirement that the petitionshall contain a concise statement of the material facts on which thepetitioner relies.
At tine Presidential Election held on 21. 12. 1999 out of 11.779.200registered voters the total number of votes polled was 8.635.290reflecting a poll of 73.31%. Out of that number 199.536 or 2.31% voteswere rejected leaving a balance of 8.435.754 valid votes. ChandrikaBandaranaike Kumaratunge P.A. (the Is1 respondent) polled 4.312.157viz, 51.12% votes. Ranil Wickremasinghe UNP polled 3.602.748 viz.42.71% votes. The other candidates numbering 11 polled 520,849 votestheir percentage ranging from 4.08% downwards. Accordingly, the1st respondent was declared elected to the office of President.
The petitioner, the General Secretary of the United National Party (UNP)presented an election petition in terms of section 93(b) of the PresidentialElections Act. No. 15 of 1981 (the Act) seeking the following reliefs undersection 94 of the Act:
a declaration that the election is void:
a declaration that the return of the person elected was undue.
The petition was based on three grounds provided by section 91 of theAct. namely.
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General intimidation by reason of which the majority of electors wereor may have been prevented from electing the candidate whom theypreferred namely, Ranil Wickremasinghe (paragraphs 8(a) and 9 of thepetition)
Non-compliance with the provisions of the Presidential Elections Act,No. 15 of 1981 by reason of which the election was not conducted inaccordance with the principles laid down in such provisions which non-compliance affected the result of the election (paragraphs 8(b) and 10 ofthe petition)
Other circumstances, by reason of which the majority of electorswere or may have been prevented from electing the candidate whom theypreferred, namely, the said Ranil Wickremasinghe (Paragraphs 8(c) and11 of the petition)
The respondents raised certain preliminary objections to the petition andsought a dismissal of the petition in limine. They averred that the petitiondoes not contain a concise statement of the material facts on which thepetitioner relies to establish the grounds of avoidance pleaded therein:and also there were certain defects in pleading grounds (ii) and (iii) above.
In paragraph 9 of the petition, the petitioner pleaded incidents ofintimidation in 67 polling divisions out of the 156 polling divisions inwhich the poll was taken and set out the relevant ground of avoidancein paragraph 8(a). As regard the alleged non-compliance with theprovisions of the Act relied upon in paragraph 8(b) which is said to haveaffected the result of the election, paragraph 10 of the petition refers tosome events relating to the counting of votes in two polling divisions, vizKesbewa and Maharagama. It contains sub paragraphs and details inrespect of which the court observed “Let alone the respondents, even thepetitioner would not be in a position to comprehend the contents of theseaverments.” In paragraph 11, the petitioner purported to state the impactof what is described as “other circumstances" relied upon for avoiding theelection by referring to the “cumulative effect" of general intimidation andof non-compliance with the provisions of the Act pleaded in paragraphs9 and 10 as well.
Held :
It would be incumbent on the petitioner in terms of section 96(c) tostate concisely the material facts on which he relies to obtain thereliefs he has sought in terms of section 91(a). The pleadings wouldbe considered as being adequate only if ex facie the petitioner could
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be granted the relief sought, on the assumption that the petition isunopposed.
Per S.N. Silva. CJ.
"To secure a majority of votes Mr. Ranil Wickremasinghe had to poll1.230.258 additional votes (being the total ofthe votes polled by thePA and the other parties plus one more vote) Therefore theavermentin the petition that by reason of general intimidation the majority' ofvoters were prevented from electing Mr. Ranil Wickremasinghe.tantamounts to a statement that the general intimidation "afTected"a minimum of 1.230.258 persons who would have otherwise voted forhim"
The degree of probable success on the part of the peti tioner is not onethat can be evaluated at this stage. At this stage the court couldconsider only whether the petition passes muster by satisfying dierequirements of section 96 read with section 91 of the Act.
The petition contains a clear statement of avoidance relied on withreference to its description in section 91(a), the ingredients of thegrounds of avoidance and the material facts in relation to eachingredient. If the petition is unopposed the petitioner could begranted the relief sought on the basis of these averments. Thepetitioner would be permitted only to lead evidence in relation to thematerial facts that have been disclosed, viz. the incidents referred toin paragraph 9 in relation to the respective polling divisions.
There is a total failure to set out any of the matters necessary to bepleaded in relation to the grounds of avoidance relied upon inparagraph 8(b) of the petition, viz, alleged non-compliance with theprovisions of the Act. The contents of paragraphs 8(b) and 10 are,therefore, rejected; and the petitioner is not permitted to present anyevidence on that account. To avoid an election non-complianceshould be of such a kind or character that it could be said that theelection had not been conducted in accordance with the principlesunderlying those provisions.
The petitioner has attempted to plead the manner in which thealleged “other circumstances" (referred to in paragraph 8(c)) affectedthe result of the election as a cumulative effect of the generalintimidation and of non-compliance with the provisions of the Actpleaded in paragraphs 9 and 10. In view of the finding on the alleged“non-compliance with the provisions of the Act" as a ground of relief,
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and Others (S.N. Silva, CJ.)
the averment in paragraph 8(c) is materially defective. The avermentsof paragraphs 8(c) and 11 are, therefore, rejected.
Cases referred to :
Bandaranaike v. Premadasa (1989) 1 Sri L.R 240
Bandaranaike v. Premadasa (1992) 2 Sri L.R. 1
Wyewardena v. Senanayake (1972) 74 NLR 97
H.V. Kamath v. Election Tribunal (1958) AIR Madhya Pradesh 168
Bruce v. Odhams Press Ltd (1936) 1 KB 697 at 712-13(c)
Udhav Singh v.MadhavRaoScindial1977) 1 Supreme Court Cases-511
Hardwari Lai v. Kanwal Singh (1972) AIR SC 515
Azar Hussain v. Rcyiv Gandhi (1986) (Supp) Supreme Court Cases315
North Louth Case (1911) 60 M & H 124
Tamolis Appuhamy v. Wilmot Perera 49 NLR 361 at 368
Rlangaratne v. G.E. de Silva 49 NLR 169
Abeywardena v. Ariya Bulegoda (1985) 1 Sri L.R 86
Rutnam v. Dingiri Banda 45 NLR 145
Pelpola v. R.S.S. Gunawardena 49 NLR 207
Jayasinghe v. Jayakody (1985) 2 Sri L.R 77 at 89
Munasinghe v. Corea 55 NLR 265
PRESIDENTIAL ELECTION – Preliminary objections
K.N. Choksy, P.C. with L.C. Seneviratne, P.C., BenEliyathamby, P.C., PaulPerera, P.C., Daya Pelpola, S.J. Mohideen, D.H.N. Jayamaha, S.Wimalachanthiraru A.P. Niles, Raja Dep, Lakshman Perera and RonaldPerera for petitioner.
H.L. de Silva P.C. with PA.D. Samarasekera P C., Ranjil AbeysuriyaP.C., Faisz Musthapha P.C., D.S. Wyesinghe, P.C., Nihal Jayamanne.P.C., S.S. Sahabandu, P.C., R.K.W. Goonesekera D.P. Mendis, PeterJayasekera Jayampaihy Wickremaratne, Javid Yoosuf, AravinthaAthurupana, Gaston Jayakody and SarathWeerakoon for 1st respondent.
K.C. Kamalasabayson, P.C., Attorney-General with Salim MarsooJ,P.C., Additional Solicitor General, Shauindra Fernando, Senior StateCounsel., Uditha Egalahewa State Counsel and Nerin Pulle, StateCounsel for 2nd and 3rd respondents.
Cur. adv. vult.
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December 12, 2000.
SARATH N. SILVA, CJ.This Petition has been presented by the General Secretaryof the United National Party and it relates to the PresidentialElection, held on 21. 12. 1999. The Petitioner has joined threepersons as Respondents. The 1st Respondent is the candidatewho was declared elected to the office of President. The 2nd and3rd Respondents are, respectively, the Commissioner and theActing Commissioner of Elections. The Petitioner is seeding adeclaration that the election of the 1st respondent is void andthat the return made in her favour is undue.
Thirteen persons were nominated as candidates at thesaid election. The votes received by the candidates are asfollows :
Chandrika Bandaranaike Kumaratunga
Ranil Wickremasinghe
M.D. Nandana Gunathilake
Harischandra Wijetunga
W.V.M. Ranjith
Rajiva Wijesinghe
Vasudeva Nanayakkara
Tennyson Edirisuriya
Abdul Rasool
Kamal Karunadasa
Hudson Samarasinghe
Ariyawansa Dissanayake
13 Alwis Weerakkody Premawardhana
PA 4,312.157 51.12%
UNP 3.602.748 42.71%JVP 3,44.1734.08%
SMBP 35.8540.43%
Ind 227.0520.32%
LP 25,0850.30%
LDA 23.6680.28%
Ind 121,1190.25%
SLMK 17.3590.21%
PLSF 11.3330.13%
Ind 37.1840.09%
DUNF 4.0390.05%
PFF 3.9830.05%
There were 11,779,200 registered voters and the totalnumber of votes polled was 8,635,290 reflecting a poll of
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73.31%. Out of that number 199,536 or 2.31% votes wererejected with 8,435,754 valid votes being distributed amongstthe candidates as stated above.
Section 93(a) read with Section 94 of the PresidentialElections Act, No. 15 of 1981, permits any person who was acandidate at the election, who claims to have had a right to bereturned or elected at such election, to present a petition andto seek a declaration from this Court that, such person was“duly elected and ought to have been returned,” on any one ormore of the grounds set out in section 91 of the Act. None ofthe unsuccessful candidates at the said election have availedof this right and presented a petition to this Court seeking adeclaration that such candidate should have been returned orelected in place of the 1st Respondent.
The Petitioner, not having been a candidate, haspresented this petition in terms of Section 93(b) as the personwho signed the nomination paper of the candidate of theUnited National Party (U.N.P.). Although he has averred inparagraphs 8(a) and 11 (b) (i) & (ii) of the Petition that “themajority of electors were or may have been prevented fromelecting the candidate whom they preferred, namely, RanilWickremasinghe," he has not claimed the relief permitted bysection 94(c) to secure a declaration from this Court that thesaid candidate was duly elected and ought to have beenreturned. The Petitioner has restricted the relief that he seeksonly to a declaration that the election of the 1st Respondent isvoid, which if upheld by this Court would result in anotherelection being held as provided in Section 101 (l)(a) of the Act.However, it has to be noted that if the Petitioner soughtthe further declaration that a candidate other than the 1stRespondent should be declared elected, Section 95(l)(a)requires him to join all the candidates as Respondents to thePetition, which he has opted not to do.
The Petitioner relies on three grounds for the avoidance ofthe election of the 1st Respondent. These three grounds are :
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General intimidation by reason of which the majority ofelectors were or may have been prevented from electingthe candidate whom they preferred, namely, RanilWickremasinghe;
Non-compliance with the provisions of the PresidentialElections Act, No. 15 of 1981, by reason of whichthe election was not conducted in accordance withthe principles laid down in such provisions, whichnon-compliance affected the result of the election;
Other circumstances, by reason of which the majority ofelectors were or may have been prevented from electingthe candidate whom they preferred, namely, the saidRanil Wickremasinghe;
The grounds (i) and (iii) above come within the ambit ofSection 91 (a) of the Act and ground (ii) comes within Section91(b) of the Act.
Respondents have raised preliminary objections to thePetition and have sought a dismissal of the Petition, broadlyonsimilar grounds.
The principal objection is that the Petition does notcontain a concise statement of material facts on which thePetitioner relies to establish the grounds of avoidance pleadedby him. There are also certain defects in pleading grounds (ii)and (iii) stated above on which a rejection of these grounds issought.
The objections involve an examination of the elementsthat constitute each ground of avoidance pleaded by thePetitioner and of the material facts pleaded by him in relationto each such ground, in order to ascertain whether the Petitioncomplies with the mandatory requirements of law.
We have had the benefit of two judgments of this Courtwhich relate to the Presidential Election held in December
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1988, to wit, the cases of Bandaranaike v. Premadasa,reported in (1989) 1 SLR page 240(1) and (1992) 2 SLR page 1(2).It is ironic that although a period of 12 years have lapsed fromthe commencement of that Election Petition to the present one,the same learned President’s Counsel feature in this case aswell, subject to a reversal of roles.
The objections relate to the provisions of two sections ofthe Presidential Elections Act, No. 15 of 1981. They are Section91 which states the grounds of avoidance of an election of acandidate and Section 96 which lays down the contents of anelection petition.
Section 91 reads thus
“The election of a candidate to the office of President shallbe declared to be void on an election petition on any of thefollowing grounds which may be proved to the satisfaction ofthe Supreme Court, namely –
that by reason of general bribery, general treating,or general intimidation, or other misconduct, or othercircumstances, whether similar to those beforeenumerated or not, the majority of electors were or mayhave been prevented from electing the candidate whomthey preferred;
non-compliance with the provisions of this Act relatingto elections, if it appears that the election was notconducted in accordance with the principles laid down insuch provisions and that such non-compliance affectedthe result of the election;
( c) that a corrupt practice or illegal practice was committedin connection with the election by the candidate or withhis knowledge or consent or by any agent of thecandidate;
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that the candidate personally engaged a person, as acanvasser or agent or to speak on his behalf, knowingthat such person had within seven years previous tosuch engagement been found guilty of a corrupt practiceunder the Ceylon (Parliamentary Elections) Order inCouncil, 1946 or the law relating to the election ofMembers of Parliament, or the law relating to Referenda,or under this Act;
that the candidate personally engaged a person, as acanvasser or agent or to speak on his behalf, knowingthat such person had been a person on whom civicdisability had been imposed by a resolution passed byParliament in terms of Article 81 of the Constitution andthe period of such civic disability specified in suchresolution had not expired;
that the candidate was at the time of his election a persondisqualified for election to the office of President.”
It is to be noted that grounds (a) and (b) of Section 91are of a general nature with a concomitant impact on the resultof the election. If these grounds are established, the electionwould be declared void. Whereas, grounds (c), (d), (e) and (0,are what may be described as “candidate specific grounds,”where a particular action of a candidate or his agent or anydisqualification of the candidate is drawn in issue. Unlike inthe case of grounds (a) and (b) the entire election itself wouldnot be drawn in issue in relation to the latter set of grounds.If any of these grounds are established in relation to theparticular candidate who is elected, the return of the person soelected would be declared undue.
Section 96, which specifies the contents of an electionpetition, reads as follows :
“An Election Petition –
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shall state the right of the Petitioner to petition withinsection 93;
shall state the holding and result of the election;
shall contain a concise statement of the material factson which the Petitioner relies;
shall set forth full particulars of any corrupt or illegalpractice that the Petitioner alleges, including as full astatement as possible of the names of the partiesalleged to have committed such corrupt or illegalpractice and the date and place of the commissionof such practice, and shall be accompanied by anaffidavit in support of the allegation of such corrupt orillegal practice and the date and place Of thecommission of such practice;
shall conclude with a prayer as, for instance, thatsome specified person should be declared dulyreturned or elected, or that the election should bedeclared void, or as the case may be, and shall besigned by all the Petitioners;
provided, however, that nothing in the preceding
provisions of this section shall be deemed or construed to
require evidence to be stated in the petition.”
. Paragraphs (a), (b), (c) and (e) would apply in relation toany Petition, whatever be the ground of avoidance that is reliedon. Whereas paragraph (d) would apply in relation to thespecific grounds of corrupt or illegal practice as stated inSection 91(c).
The grounds of objection stem from Section 96(c), that thepetition does not contain a concise statement of the materialfacts on which the petitioner relies.
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This requirement has come up in issue in several casesboth in this country and in India where the statutory provisionis similar. In dealing with the said requirement, this Court inthe case of Bandaranaike v. Premadasaf11 at page 263, citedwith approval the judgment of H.N.G. Fernando. CJ.. in thecase of Wgewardena v. SenanayakeP1. In that case the Courtconsidered the parallel provision contained in Section 80B(c)of the Ceylon (Parliamentary Elections) Order in Council, (Cap.381), as amended. The wording of that Section is identicalto Section 96(c). Commenting on the requirement that thePetition must set out the material facts on which the petitionerrelies, the Court observed as follows : (at page 100)
“The learned Election Judge has held that this statementin paragraph 3 of the petition does not satisfy therequirement in S. 80B(c) that the petition must set out thematerial facts on which the Petitioner relies. In a case inwhich a Petitioner relies on the commission of a corrupt orillegal practice by the successful candidate or his agent,paragraph (d) of S.80 expressly specifies the facts whichthe Petitioner must state with regard to the commissionof the alleged corrupt or illegal practice. But thisspecification of what are material facts in that class of casedoes not in my opinion relieve the Petitioner of the duty tospecify material facts in a case in which he seeks to avoidan election on a different ground. For instance, a Petitionercannot merely state tliat the successful candidate wasdisqualified for election, for such a statement wouldspecify only the ground for the avoidance of the election,but not any fact on which he relies to establish that ground;in this example, if the material fact is that the Respondentwas at the time of his election a public officer or agovernment contractor, or was not a citizen of Ceylon, orwas the subject of some disqualifying conviction, S. 80B(c)requires that fact at least to be stated. So also, in the caseof a charge of general intimidation, a Petitioner mustspecify at the least the nature of the alleged intimidation;
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whether it consisted of actual violence, or of threats ofviolence, or of some other kind of intimidation, and whenand where such intimidation is alleged to have occurred.A Petitioner cannot be permitted merely to specify aground of general intimidation in an election petitionwith the hope that he can substantiate it with evidencesubsequently secured.
Prior to the amendment of 1970, the scheme of the Orderin Council was such that particulars of a matter alleged inan election petition could under Rule 5 of the Rules befurnished on application of the Respondent. There weredecisions to the effect that in view of this rule, a bareallegation e.g. bribery by an agent, need only be made ina petition. I agree with the trial Judge in this case that theamendments of 1970, which repealed Rule 5 and requireda concise statement of material facts to be made in thePetition, were intended to secure that a Respondent willknow from the petition itself what facts the Petitionerproposes to prove in order to avoid the election and willthus have a proper opportunity to prepare for the trial.”
Thereafter what is required was summed up at page 101in the following terms :
“The term ‘material facts’ has a plain meaning in thecontext of the requirements relating to pleadings, namelyfacts material to establish a party’s case.
In the case of Bandaranaike v. Premadasafsupra), havingreferred to portions of H.N.G. Fernando CJ.’s judgmentcited above, the Court made a further observation whichemphasizes the object of this requirement as follows (at page263)
“The object of the requirement is clearly to enable theopposite party to prepare his case for the trial so that hemay not be taken by surprise.”
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In Senanayake’s case(supra) H.N.G. Fernando, CJ.. atpage 101 observed that he was not inclined to follow decisionsof the Indian courts with regard to the interpretation of thisprovision, since the history of our law is different. However, inthe case of Bandaranaike v. Premadasa{supra) extensivereferences have been made to the decisions of the IndianCourts and in submissions before us, both counsel citedextracts of these judgments. In the circumstances I wouldnow, bearing in mind the observations made in Senanayake’scase, refer to the corresponding provisions in the Indianstatute and the dicta in the leading cases, in which theseprovisions have been interpreted.
The corresponding provision in India is Section 83 of theRepresentation of People Act of 1951. It contains a similarprovision as in Section 96 of our Act.
The distinction between a concise statement of materialfacts required by Section 96(c) and the requirement to state thefull particulars of any corrupt or illegal practice alleged by thePetitioner, as provided in Section 96(d), is found in identicalwords in Section 83(l)(a) and (b) of the Indian Act. The IndianCourts have laid emphasis on the distinction, so that eachrequirement would have its true meaning.
In an early case, H.V. Kamath v. Election Tribunal'41, theCourt interpreted this provision with reference to a similarrequirement in the Rules made under the the Judicature Actin England as to the contents of pleadings in a civil suit; TheCourt held as follows :
“An examination of the scheme of the Act will show that theparty filing an election petition is required to state thereintwo things. This is to be found in S. 83 which says that anelection petition shall contain a concise statement of thematerial facts on which the Petitioner relies and shallset forth full particulars of any corrupt practice, etc.A distinction is made between a statement of the material
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facts and particulars of any corrupt practice. Under theunamended Act a list of corrupt practices had to be filedNot much difference has, however, been made, though thelanguage has been changed, between the requirementsas they existed before the amendment and after theamendment.
Both before and after the amendment an election petitionmust contain a concise statement of the material facts andalso set forth full particulars of any corrupt practice whichthe Petitioner alleges. The distinction which has beenmade between “material facts” and “particulars” bring toour mind the leading case on the subject of pleadingsreported in Bruce v. Odhams Press Ltd.,151, where Scott,L.J., laid down the law in relation to Order XXV and OrderXIX of the Supreme Court Rules in the following words
“The cardinal provision in R.4 is that the statement ofclaim must state the material facts. The word ‘material’means necessary for the purpose of formulating acomplete cause of action; and if any one ‘material’ fact isomitted, the statement of claim is bad; it is ‘demurrable’ inthe old phraseology, and in the new is liable to be ‘struckout’ under Order XV, R.4: see Phillipps v. Phillips (1878) 4
Q.B 127 (D); or ‘a further and better statement of claim’may be ordered under Order XIX, R.7”.
The function of ‘particulars’ under R.6 is quite different.They are not to be used in order to fill material gaps in ademurrable statement of claim – gaps which ought to havebeen filled by appropriate statements of the variousmaterial facts which together constitute the plaintiffscause of action. The use of particulars is intended to meeta further and quite separate requirement of pleadingimposed in fairness and justice to the defendants. Theirfunction is to fill in the picture of the plaintiff s cause ofaction with information sufficiently detailed to put thedefendant on his guard as to the case he has to meet andto enable him to prepare for trial.”
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“The above quotation makes a distinction between‘material facts’ and ‘particulars’. Neither of courseincludes evidence which is required to prove theallegations. The same scheme is to be found in the Code ofCivil Procedure, where the cause of action has to be statedwith completeness and unless there is a complete cause ofaction the plaintiff is not entitled to judgment. Indeed theplaint can be rejected if it does not disclose a completecause of action. Where, however, the cause of actioninvolves narration of particulars, e.g. in a case of fraud,those particulars have to be supplied with sufficient clarityand precision.”
In the case of Udhav Singh v. Madhav Rao Scindia16’, theSupreme Court of India gave a similar interpretation to theseprovisions with a ‘more comprehensive pronouncement of therequirement. At page 523, it is stated as follows :
“All the primaiy facts which must be proved at the trial bya party to establish the existence of a cause of action or hisdefence, are “material facts”. In the context of a charge ofcorrupt practice, “material facts” would mean all the basicfacts constituting the ingredients of the particular corruptpractice alleged, which the Petitioner is bound tosubstantiate before he can succeed on that charge. Whetherin an election petition, a particular fact is material or not,and as such required to be pleaded is a question whichdepends on the nature of the charge levelled, the groundrelied upon and the special circumstances of the case. Inshort all those facts which are essential to clothe thepetitioner with a complete cause of action, are “materialfacts” which must be pleaded, and failure to plead evena single material fact amounts to disobedience of themandate of Section 83 (1) (a).
“Particulars”, on the other hand, are “the details of the caseset up by the party”. “Material particulars” within thecontemplation of clause (b) of section 83 (1) would therefore
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mean all the details which are necessaiy to amplify, refineand embellish the material facts already pleaded in thepetition in compliance with the requirements of clause (a).‘Particulars’ serve the purpose of finishing touches to thebasic contours of a picture already drawn, to make it full,more detailed and more informative.”
In the cases of Hardwari Lai v. Karuval Singh!7>, andAzhar Hussain v. Rajiv Gandhi81, the Supreme Court of India,formulated the test to ascertain whether there has been duecompliance with the requirement to plead a concise statementof material facts, from a slightly different perspective.
In Lai’s case(supra) the Court formulated the test asfollows :
“Material facts are facts which if established would give thePetitioner the relief asked for. If the respondent has notappeared could the court have given a verdict in favour ofthe election petitioner. The answer is in the negativebecause the allegations in the petition did not disclose anycause of action.” (at page 520)
And, in Rajiv Gandhi’s case(supra) at page 327 the sametest is stated thus :
“Material facts are, facts which if established would givethe Petitioner the relief asked for. The test required to beanswered is whether the Court could have given adirect verdict in favour of the election petitioner in casethe returned candidate had not appeared to opposethe election petition, on the basis of the facts.pleaded inthe petition.”
Thte foregoing survey of the relevant statutory provisionsthat have been applicable here and in India revealsa commonalty in the requirement. It appears that therequirement to plead material facts on which a party is relying
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on has been originally drawn from the Rules made under theJudicature Act of England as to pleading in civil suits.
The requirement in Section 96(c) cannot in my view, betaken in isolation. It has to be construed initially in the contextof the remaining provisions of the Section, which states thecontents of an election petition, commencing with the right ofthe Petitioner to present the petition and culminating in theprayer for relief. The words in Section 96(c) “. . . the materialfacts on which the Petitioner relies,” should therefore in myview be construed, as the material facts on which the Petitionerrelies, to secure the relief sought in the petition. Relief can besought only on the basis of any one or more of the grounds ofavoidance stated in Section 91. Hence the material factsrequired to be stated are those necessary to establish theparticular ground of avoidance that is relied upon to securesuch relief. This linkage, between the ground of avoidancerelied on and the disclosure of material facts, has been statedin Wijewardena’s case(supra) in very simple language as“facts material to establish a party’s case”.
The Indian Courts, following English precedents havehad recourse to the phrase “cause of action”, used in civilprocedure to enunciate this requirement. In civil procedure, acause of action is the wrong, for the redress of which an actionmay be brought. The legal component of a wrong would be,the right, duty or obligation recognized by law. The factualcomponent would be the matters on which, the right, duty orobligation at issue is founded and on the basis of which theclaim for relief is pleaded. When related to the Elections Law,the legal component of the “wrong” would be the ingredients ofthe ground of avoidance, that is relied upon and the factualcomponent would be the matters necessary to establish eachsuch ingredient. Viewed from this perspective, the questionwhether there has been sufficient compliance with therequirement to plead material facts, could rightly be answeredonly by posing the further question as stated in the later Indianjudgments. That is, whether the material facts pleaded in the
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petition by themselves warrant a verdict in favour of thePetitioner, if the Respondent does not appear in defence.Hence, the Petitioner would clear this threshold, only if he haspleaded sufficient material facts to establish each ingredient ofthe ground of avoidance that is alleged.
The requirement to disclose material facts of the groundof avoidance in the petition itself, appears to be based oncertain rules of prudence that feature in the judgments thathave been cited. In Wijewardena’s case(supra), it is stated asfollows
“A Petitioner cannot be permitted merely to specify aground of general intimidation in an election petitionwith the hope that he can substantiate it with evidencesubsequently secured.” (at page 100)
The observation implies that although evidence need notbe pleaded in the petition, it should be available, when thepetition is presented and the concise statement of materialfacts should be based on such evidence. The sanction isagainst evidence being “subsequently secured. ” The safeguardis imposed since the likelihood of evidence, thus secured beingprevaricated or otherwise tainted is much stronger.
Another rule of prudence which underpins thisrequirement is stated in Wgewardena's and Bcuidararanaike'scases (supra). It is based on the need to notify the Respondentof the facts the Petitioner proposes to prove in order to avoidthe election, so that he will not be taken by surprise and willhave a proper opportunity to prepare for the trial. Due noticeto the adverse party of the matters relied on against him is aprinciple of natural justice. Hence the relevant provisionshould be construed to give its full effect.
I would now sum up the manner in which therequirements in Section 96(c), read in the context of therelevant provision of Section 96, which states the contents of
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an election petition and of Section 91 which states the groundsof avoidance of an election, will apply :
It requires an election petition to contain ;
a clear statement of the ground of avoidance reliedon with reference to its description in Section 91and the ingredients of such ground of avoidance;
a concise statement of material facts on which thePetitioner relies in relation to each ingredient of theground of avoidance.
The question whether there has been sufficientcompliance with the said requirements will be decidedby examining the contents of the petition andascertaining whether on the basis of the matters pleaded,the Petitioner would be entitled to the relief sought, if theRespondents do not appear and oppose the petition.
If the answer is in the negative, the petition itself or anyparticular ground in respect of which the contents of thepetition are found to be deficient, will be rejected.
In the light of the foregoing, I would now examine theground of general intimidation and the objection raised thereto.
The ground of general intimidation is contained inSection 91(a) along with certain other grounds, having animpact of a general nature, on the election as a whole. Thisprovision, when paraphrased by deleting words that relate toother grounds, would read thus :
“that by reason of… general intimidation’…. the majorityof electors were or may have been prevented from electingthe candidate whom they preferred.”
On a plain reading of the section as paraphrased, thisground of avoidance comprises of two main ingredients
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general Intimidation, which would consist of events orincidents of intimidation of a widespread nature.Halsbury’s Laws of England (Vol. 15 page 442) containsa succinct statement of what constitutes intimidation,which is drawn from several judgments of the EnglishCourts. It reads thus :
“In the case of intimidation, persons of ordinaiy courageand intelligence must have been prevented from votingas they wished;”
the impact these events or incidents had on the electoralprocess, viz, that, by reason of general intimidation, themajority of electors were or may have been preventedfrom electing the candidate whom they preferred.
In the case of Bandaranaike v. Premadasa(supra) it wascontended by counsel for the Petitioner that the sectionpostulates “a composite concept” and that the latter part ofthe section sets out “the necessary effect of the unlawfulpressures” (vide 1992 SLR page 14). In other words, thecontention was that by proof for the events or incidents ofintimidation of a widespread nature, the Petitioner would beentitled to the relief sought: that, the Petitioner does not havea separate burden of proving the extent to which these eventsor incidents constituting general intimidation ‘affected’ theresult of the election, and that this is an inference the Courtshould draw on the basis of the events or incidents ofintimidation.
The Court clearly rejected this contention. Mr. H.L. deSilva who was the counsel for the petitioner in that case andwho persistently advanced the said contention, now seeks thefull benefit of the rejection of his submission.
The consistent trend of authority has been to consider the‘affect’ of the events or incidents of intimidation on the result
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of the election as a distinct ingredient in the ground of generalintimidation. This trend of authority appears to have beeninfluenced by a decision in England in the North Louthcase(supra) which was relied on by Nagalingam, J.. in the caseof Tamolis Appuhamy v. Wilmot Perera(10}. This case relatedto the first Parliamentary Election held under the Ceylon(Parliamentary Elections) Order in Council, 1946. Nagalingam,J., cited the following passage in the judgment of Gibson, J.,in the North Louth case(supra), which reads thus :
‘To upset an election for general intimidation it isnecessary to “show that there was such generalintimidation as might have ‘affected.’ the result of theelection” (emphasis added).
The decisions in the cases of Rlangaratne v. G.E.de Silva"",and Abeywardena v. Ariya Bulegoda1121, are based on thepremise, that the ‘affect’, the acts of intimidation had on theresult, is a distinct ingredient of the ground, which has to beproved by the election petitioner. An examination ofthe decision in Rutnam v. Dingiri Banda"31, and Pelpola v.
R.S.S. Gunawardena"4,, being cases where positive findingshave been made on the ground of general intimidation, showsthat the Court has laid emphasis on this ingredient and hascome to findings on the basis of the number of voters affected’by the acts of intimidation. In the case of Jayasinglre u.Jayakody"51, Sharvananda, J., (as he then was) dealt with thisingredient, in the following terms :
“In order to succeed in his petition, the petitioner has gotto prove a further ingredient, viz, that the majority ofelectors may have been prevented from electing thecandidate who they preferred …” (emphasis added).
In the preliminaiy order in the case of Bandaranaike v.Premadasa!", (at page 261) the Court summed up its findingson this aspect, as follows :
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“We.agree with Mr. Choksy that mere proof of the severalinstances or acts of general intimidation would not sufficeto avoid an election. In addition, the petitioner has to provethat these several acts or instances had the result orconsequence that ‘the majority of electors were or mayhave been prevented from electing the candidate whomthey preferred’.”
In the final order in that case'21 (at page 22) the Courtconsidered the said finding to be a part of the ratio decidendiThe Court observed that :
“The order made by this Court on the preliminaryobjections is clearly binding on us, although Mr. de Silvaargued that some of the crucial findings therein areerroneous. Having regard to the nature of the preliminaryobjections that were raised, the Court was called uponto analyse the ingredients of the charge of generalintimidation postulated in S.91(a). At the hearing on thepreliminary objections the foundation of the submissionsof Mr. de Silva was that S. 91(a) embodied the essentialprinciples of the English Common Law relating to a freeand fair election. The Court did not accept this contention.The Court ruled on what it considered to be the truemeaning of the words ‘. . . the majority of electors were ormay have been prevented from electing the candidatewhom they preferred’. This ruling is undoubtedly a part ofthe ratio decidendi of the order and it is not open to us toplace a gloss on it or to deviate from it. What is more, wecannot overlook the significant fact that the trialproceeded on the basis of the interpretation placed by theCourt on S. 91(a) in the preliminary order."
It was also held that the burden of proof of this ingredientis, “clearly on the petitioner in terms of Section 91(a).” (atpage 54).
Mr. de Silva’s submission before this Court is that thepetitioner should plead in his election petition, as forming
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part of the concise statement of material facts, not only thematerial facts as to the events or incidents of intimidationthat constitute general intimidation, but also materialfacts relevant to the other ingredient of the groundof general intimidation viz, the ‘affect' these events orincidents had on the result of the election. He submits thatsince the result is stated by way of the number of votespolled by each candidate, the manner in which the allegedincidents ‘affect’ the result, should also be stated innumbers. In brief, his submission is that the number ofvoters that the petitioner alleges were ‘affected’ should bestated ‘at least approximately’ in relation to each event,disclosed in the petition. Mr. Choksy concedes that the‘affect’ the alleged general intimidation had on the resultof the election is a distinct ingredient of the ground ofgeneral intimidation and that there is a burden on thepetitioner to prove both ingredients viz, the events orincidents which constitute general intimidation and the‘affect’ these events or incidents had on the result of theelection. But, he submits that the averment in the petition,(vide paragraph 8(a)) where he has pleaded that by reasonof the occurrence of the incidents set out in paragraph 9,which constitute general intimidation, the majority ofelectors were or may have been prevented from electingthe candidate whom they preferred, namely RanilWickremasinghe, there is sufficient compliance with therequirement to plead material facts relevant to the impact,general intimidation had on the result of the election. Thegravamen of the submission is that, by clearly identifyingthe candidate who would have won, but for the generalintimidation, the petitioner has indicated the total numberof voters who were thus ‘affected’. It was submitted that itis well nigh impossible for the petitioner to state even theapproximate number of voters ‘affected’ in relation to eachincident of intimidation stated in the petition.
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In terms of Section 91(a), the ground of generalintimidation would consist of two ingredients. These twoingredients would constitute the cause of action in an electionpetition and the burden of proving both ingredients would beon the petitioner. It would be incumbent on the petitioner interms of Section 96(c) to state concisely the material facts onwhich he relies on to obtain the relief he has sought, in relationto both ingredients. The pleading would be considered as beingadequate only if ex facie the petitioner could be grantedthe relief sought, on the assumption that the petition isunopposed.
The nature of the material facts the petitioner shouldplead in relation to the first ingredient, has been identified inWyewardena's case(supra at page 100),: “A petitioner mustspecify at least the nature of the alleged intimidation; whetherit consisted of actual violence, or threats of violence, or ofsome other kind of intimidation, and when and where suchintimidation is alleged to have occurred”. In this case thepetitioner has set out in paragraph 9 of the petition, the natureof the alleged intimidation, in several sub paragraphs, bystating the incidents in each district in relation to therespective polling divisions that come within such district. Therespondents have not raised any objection as to the adequacyof the material facts thus pleaded in paragraph 9.
The objection of the respondents is in relation to thesecond ingredient. Mr. de Silva's submission that thisingredient is distinct and cannot be taken as a corollary of oran inference to be drawn from the first, is unassailable. Thissubmission is supported by the ingredients that manifest ona paraphrasing of the relevant provisions of Section 91(a) andthe decisions in the cases ranging from Tamolis Appuhamy'scase decided in 1948, to the Bandaranaike v. Premadasa casedecided in 1992, as set out in the preceding portions of thisjudgment. There is also merit in Mr. de Silva’s submissionthat since the result of the election is stated and could be
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comprehended only in relation to the number of votes polledby the respective candidates, the extent to which theintimidation ‘affected’ the result, should also be ascertainedwith reference to the number of voters thus ‘affected’. On thisbasis Mr. de Silva further submits that, to satisfy therequirement of pleading material facts relevant to the secondingredient, the petitioner should state the number of voters‘affected’ by each incident of intimidation specified inparagraph 9 of the petition. This further submission is, in myview, inconsistent with the bifurcation of the content ofSection 96(a) into two ingredients.
As noted above, the two ingredients, one being of generalintimidation and the other based on the requirement of‘affectation’, although linked in certain respects are distinct intheir content. The several incidents of intimidation in respectof the given polling divisions, are pleaded in paragraph 9, incompliance with the requirement to state material factsrelevant to the alleged general intimidation. It has to be bornein mind that each incident thus pleaded does not by itselfconstitute an ingredient of the ground of avoidance in Section96(a). It is the collection of these incidents that constitute theingredient of general intimidation. By submitting that thepetitioner should specify the number of voters affected inrelation to each incident that is pleaded, Mr. de Silva is in effectseeking particulars with regard to the material facts pleadedin relation to the ingredient of general intimidation. Thatwould in my view, amount to a stretching of the requirementto plead material facts relevant to the ingredient of generalintimidation, beyond the limits permitted by Section 96(a).From a practical perspective, it would place an unduly onerousburden on a petitioner to plead with specificity, the number ofvoters affected in relation to each of the numerous incidents ofintimidation. Hence, the further submission of Mr. de Silva asstated above, is one that cannot be accepted.
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On the other hand, the question that arises forconsideration, based on the bifurcation of the ingredients inthe ground of avoidance relied on, is whether the petitionerhas pleaded material facts relevant to the second ingredient.This ingredient relates to the extent to which the generalintimidation ‘affected’ the result of the election. Althoughgeneral intimidation would consist of a collection of singleincidents of intimidation, when considering the sufficiency ofa pleading, I am of the view that what should be pleaded asmaterial facts, is the impact the totality of general intimidationhad on the result of the election.
There is a significant paucity in the averments of thepetition, in stating the material facts as to the impact thealleged general intimidation had on the result of the election.The strong criticism which Mr. de Silva, makes on this scoreis not without merit. Whilst the petition contains pages of whatare alleged as incidents of intimidation in paragraph 9, theaverment with regard to the impact these incidents had on theresult of the election is contained in a single sentence. inparagraph 8(a), which reads thus :
“That by reason of the occurrence of the incidents and thecommission of the acts set out in paragraph 9 hereof, therewas general intimidation by reason of which the majorityof electors were or may have been prevented from electingthe candidate whom they preferred, namely the said RanilWickremasinghe."
The Petitioner’s case is one of‘preventive intimidation' andnot coercive intimidation.’ It is not alleged that as a result ofthe intimidation, persons who would have voted for Mr. RanilWickremasinghe, were coerced to vote for another candidate.The allegation is that persons who would have voted forMr. Ranil Wickremasinghe were prevented from exercisingtheir franchise. The extent to which such intimidation‘affected’ the result should therefore be seen in the number of
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persons who were thus prevented. This number is discerniblein the statement that, if not for the alleged prevention,Mr. Ranil Wickremasinghe would have got a majority of thevotes. The manner in which a majority' could be claimed by anunsuccessful candidate is clearly stated in the case ofBandaranaike v. Premadasa!21, at p. 54. In that case themajority of the successful candidate was 279.339 votes andthe Court made the following observation :
“It was the submission of counsel that even if thepetitioner got one more vote than the majority obtained bythe lsl respondent she could still not have been declaredelected. Mr. Choksy contends that the petitioner in orderto win had to get the total votes received jointly by the UNPand the SLMP plus one more vote. Thus she would havehad to get 515,059 more votes than she polled in order tohave succeeded at the election. It appears to us that thissubmission is well-founded."
In the present case the majority of the 1st respondent was709.409 votes. The other candidates polled 520,849 votes. Tosecure a majority of votes, Mr. Ranil Wickremasinghe had topoll 1,230.258 additional votes. Therefore the averment in thepetition, that by reason of general intimidation the majority ofvoters were prevented from electing Mr. Ranil Wickremasinghe.tantamounts to a statement that the general intimidation‘affected’ a minimum of 1,230,258 persons who wouldhave otherwise voted for him. This figure is given in the1st respondent’s written submissions, which shows that the1st respondent has comprehended the averment in likemanner.
In fairness to learned counsel for the 1st respondent itshould be noted that he has given the figure of 1,230,258votes, not to fill a lacuna in the pleading of the petitioner, butto demonstrate the degree of improbability of supporting sucha claim with evidence. He has described the amount of thevotes thus claimed as an astronomical figure.’
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The poll of 8,635,290 out of 11,779.200 registered votersrepresents a high turnover of 73.31%. If a further 1,230,258persons voted (on the assumption that everyone of them votedfor the candidate as claimed in the petition) the turnout wouldhave to go upto 9,845,548 which in relation to the number ofregistered voters would be 83.75%. Counsel uses the word‘astronomical’ since such a percentage of polling would be wayabove what is recorded in any national poll. It is also seen thatthe petitioner has pleaded incidents of intimidation only in 67polling divisions out of the total number of 156 pollingdivisions in which the poll was taken. Hence the additionalfigure of 1.230,258 votes would have to come from only these67 polling divisions. For instance, in the Kalutara District, inwhich there are 8 polling divisions, the petitioner refers toincidents of intimidation only in one polling division.
Learned Counsel for the 1st respondent has pointed outthat the largest number of incidents of intimidation stated inparagraph 9 of the petition are from the Kandy and Kurunegaladistricts, but according to the declared result the candidate ofthe U.N.P had secured a higher percentage in these districtsthan his national average of 42.71%. The analysis of thenumber of incidents related to the percentage of poll reflectedin table ‘A’ annexed to the written submissions show that inthe districts of Galle, Matara and Hambantota, where only afew incidents of intimidation are cited, the percentage of theU.N.P candidate was 38%, 36% and 37%, respectively, beingfigures well below his national average. On the other hand, thesecond largest number of incidents in the country have beencited in relation to the polling division of Mahiyangana, wherethe candidate of the U.N.P secured 54.82% of the votes beinga figure much higher than his national average of 42.71% andthe 1st respondent secured only 39.17% which is much belowher national average of 51.12%. Based on such an analysiscounsel has submitted “that there is no co-relation betweenthe number of incidents of violence disclosed in the petition inrespect of any particular district affecting the UNP and the
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percentage of votes obtained by the UNP in respect of thatdistrict.”
When the averments in the petition are related to thedeclared result, the foregoing may be a valid criticism. On thedeclared result the candidate of the UNP secured 3.602.748votes. To claim a further 1.230.258 votes he has to increase hisvote by 29.32%. This figure may not be astronomical asdescribed by counsel, but is undeniably on the high side. Bethat as it may, these submissions of learned counsel for the Is'respondent relate to the question whether on the basis of theevidence to be adduced, the petitioner could possibly succeedin securing the relief sought by him. In my view the degree ofprobable success on the part of the petitioner is not one thatcan be evaluated at this stage. It is for the Petitioner to takestock of his case and decide whether he should proceedwith the case or not. At this stage the Court could consideronly whether the petition passes muster by satisfying therequirements of section 96 read with section 91 as analysedabove.
In relation to the second ingredient in the ground ofgeneral intimidation which is now specifically at issue, theextent to which the result of the election is alleged to have been’affected' is discernible from the statement in the petition,that the majority of the voters were thereby prevented fromelecting the candidate of their choice, namely, Mr. RanilWickremasinghe. If the averments in paragraph 8(a) and 9 areexamined in the light of what is required to be pleaded in termsof Section 96(c) as construed in the preceding portions of thisjudgment in relation to the ground of general intimidation, itwould be seen that, the petition contains :
The first ingredient of the ground viz, that there wasgeneral intimidation.
A statement of material facts in relation to the saidingredient viz, the incidents of intimidation set out inthe several sub paragraphs of paragraph 9.
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The second Ingredient of the ground, viz, that byreason of the alleged general intimidation the majorityof electors were or may have been prevented fromelecting the candidate whom they preferred.
A statement of material facts in relation to the saidingredient, viz, .the averment which clearly identifiesthe candidate, who would have won if not for thegeneral intimidation. The number of voters ‘affected’by the general intimidation is discemable from thisaverment.
Thus the petition contains a clear statement of the groundof avoidance relied on with reference to its description insection 91(a), the ingredients of the ground of avoidance andthe material facts in relation to each ingredient. If the petitionis unopposed, the petitioner could be granted the relief soughton the basis of these averments. The petitioner would bepermitted only to present evidence in relation to the materialfacts that have been disclosed, viz, the incidents referred to inparagraph 9 in. relation to the respective polling divisions.Hence no question would arise of the respondent being takenby surprise by evidence being presented of any other facts. Itwould be the petitioner’s burden to prove that the generalintimidation ‘affected’ a minimum of 1,230,258 registeredvoters within the polling divisions specified in paragraph 9 ofthe petition, all of whom would have otherwise voted for thecandidate of the U.N.P, and thereby secured a majority for thatcandidate at the election.
Subject to the foregoing reservations, I overrule theobjection raised in respect of the ground of generalintimidation pleaded in paragraphs 8(a) and 9 of the petition.
The next ground relied on by the petitioner is the allegednon-compliance with the provisions of the PresidentialElections Act.
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This ground as stated in section 91(b) of the Act. consistsof three ingredients that could be described as follows :
non-compliance with the provisions of the Act inrelation to elections;
the degree of such non-compliance in relation to theelection, in that it should appear that the election wasnot conducted in accordance with the principles laiddown in such provisions; and
the impact of such non-compliance, in that it affected'the result of the election.
There is a clear distinction in what would constitute eachingredient. Although the elements of one ingredient flow tothe other, each ingredient should be perceived in its distinctdimension. To begin with, there should be an identifiedprovision or provisions of the Presidential Elections Act, thathave not been complied with. The next ingredient involvesthe picture that emerges from the totality of the allegednon-compliance. That, it appears from such incidents ofnon-compliance, that the election was not conducted inaccordance with the principles laid down in the provisionsthat have not been complied with. The last ingredient relatesto the extent to which the non-compliance ‘affected’ the resultof the election.
In the case of Munasinghe v. Cored161 Nagalingam, ACJ.considered the application of the parallel provision containedin section 77(b) of the Ceylon (Parliamentary Elections) Orderin Council, 1946. Commenting on the distinction betweeningredients (1) and (2) above, viz, the non-compliance with theprovisions of the Act and the failure to conduct the election inaccordance with the principles laid down in such provisions.Nagalingam, ACJ, observed as follows :
“This language, to my mind, draws a sharp distinction
between a failure to comply with the provisions of the
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Order-in-Council in regard to elections and a failure to
conduct an election in accordance with the principles laid
down in such provisions.
Every non-compliance with the provisions of the Order-in-Council does not afford a ground for declaring an election void,but it must further be established (apart from any otherrequirement) that the non-compliance with the provisions wasof such a kind or character that it could be said that theelection had not been conducted in accordance with theprinciples underlying those provisions. Are the “principles laiddown in the provisions’ of the Order-in-Council different fromthe provisions themselves? Unless they were, no adequatereason can be assigned for the draftsman using the languagehe has used. The difference, I think, consists not so muchin the nature of the non-compliance as in the degree of thatnon-compliance; it consists not in a bare non-compliance butin the magnitude or extent of the non-compliance."
Hence in order to plead a concise statement of materialfacts in compliance with the requirements stated inthe preceding portions of this judgment, the petition shouldcontain the following matters ;
The provision or provisions of the Act that are allegedto have been not complied with;
the incidents relevant to such non-compliance: thedegree of the non-compliance in relation to theelection: and
the manner in which the non-compliance affected theresult of the election.
The Petitioner adverts to this ground in paragraphs 8(b)and 10 of the petition.
Paragraph 8(b) consists of a mere repetition of section91(b) of the Act, devoid of any fact whatever. This averment.
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taken by itself, is of no consequence. It refers to paragraph 10as containing the “reasons". Paragraph 10 refers to someevents relating to the counting of votes in two polling divisions,viz. Kesbewa and Maharagama in the Colombo District.It consists of sub-paragraphs numbered (i) to (xi). Sub-paragraphs (i) to (viii) relate to Kesbewa and (Lx) to Maharagama.Thereafter the sub-title “Kesbewa Electorate' appears againand the contents of sub-paragraphs (i). (ii) and (iii) arecombined and repeated as sub-paragraph (x). The contents ofparagraph (ix), that appear under the sub-title "Maharagama'are repeated in sub-paragraph (xi) under the sub-title “KesbewaElectorate.” Let alone the Respondents, even the Petitionerwould not be in a position to comprehend the contents of theseaverments. There is a total failure to set out any of the mattersnecessary to be pleaded in relation to this ground of avoidance.
I would therefore reject the contents of paragraphs 8(b) and 10of the petition. The Petitioner is not permitted to present anyevidence on this account.
I would now consider the averments relevant to the thirdground relied on by the Petitioner described under the title of“other circumstances", being a ground of avoidance containedin section 91(a). This ground is adverted to in paragraphs 8(c)and 11 of the petition.
Paragraph 8(c). merely states.
“that by reason of other circumstances set out inparagraph 11 the majority of electors were or may havebeen prevented from electing the candidate whom theypreferred. . .”
In paragraph 11 which bears the title othercircumstances’ the Petitioner has set out certain matters inseven sub-paragraphs without any averment relating to themanner in which these matters affected' the result of theelection. In part (B) of paragraph 11. the Petitioner haspurported to state the impact of what is described as ‘other
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circumstances’ had on the election, by referring to the‘cumulative effect’ of the facts and circumstances set out inparagraphs 9 and 10 as well. The Petitioner has therebyattempted to plead the manner in which the alleged ‘othercircumstances’ affected the result of the election as acumulative effect of the general intimidation and of non-compliance of the provisions of the Act, pleaded in paragraphs9 and 10. Hence this averment is materially defective. I wouldtherefore reject the averments of paragraphs 8(c) and 11 of thepetition. The Petitioner is not permitted to lead any evidence onthis account.
For the aforementioned reasons, I make order rejectingthe contents of paragraph 8(b), 8(c), 10 and 11 of the petitionand the Petitioner is not permitted to lead any evidence onthis account. I also make order overruling the preliminaryobjections raised in respect of the ground of generalintimidation pleaded in paragraphs 8(a) and 9 of the petitionsubject to the aforementioned reservations and direct thatthis application be set down for trial.
There will be no costs.
WADUGODAPITIYA, J.PERERA, J.BANDARANAYAKE, J.GUNASEKERA, J.
I agree.I agree.I agree.I agree.
Preliminary objection in respect of ground of generalintimidation overruled subject to reservations. Other objectionsupheld.