GAMINI DISSANAYAKE and another, Appellants, and HERATH M. ABEYSINGHE and 3 other

005-NLR-NLR-V-75-GAMINI-DISSANAYAKE-and-another-Appellants-and-HERATH-M.-ABEYSINGHE-and-3-other.pdf


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Distanayake v. Abeysinghe
Present: G. P. A. SUva, S.P.J., Sirimane, J., and Samerawtckrame, J.
GAMINI DISSANAYAKE and anothor, Apjiellants, and HERATHM.ABEYSINGHE and 3 others, RespondentsElection Petition Appeals Nos. 1 and 2 of 1971
Election Petition No. 11 of 1970— Electoral District No. 53 (Nmoara Eliya)
Parliamentary election—Election petition—Sum deposited by petitioner as securityfor costs—Objection raised by respondent (successful candidate) as to its sufficiency—Order of Election Judge rejecting the objection—Incapacity of respondent, if he isunsealed, to question the correctness of it in appeal—“ Question of law ”—Affidavit accompanying election petition—Form of the affidavit—Computation ofquantum of security for costs—Meaning of expression “ charge constituting adistinct ground ” in Rule J2 of Parliamentary Election Petition Rules—Whether“ground ” can be made up of several “charges ”—Ceylon (ParliamentaryElections) Order in Council (Cap. 3S1), as amended by Act No. 9 of 1970, ss. 77,89A, SOB, 80B (c) (d), 81, 82A (1) (a) (b), 8$ (1), 86 (2), Rule 12 of ThirdSchedule.
Held by Siriwa-ne, J., and Samerawiceranie, J. (Silva, S.P.J. diasonting) :Where, at the hearing of on election petition, the Election Judge rejects (evenincorreotly) a preliminary objection raised by the successful candidate that thesecurity fer costs deposited by the petitioner in order to comply with therequirements of Rule 12 (2) of the Parliamentary Election Petition Rules(as amended by section 32 of Act No. 0 of 1970) is not sufficient, the candidate,if he is unseated at the conclusion of the trial, has no right of appeal from theElection Judge's decision that the security deposited is sufficient. In such acase, even if the security deposited may be insufficient in law, an incorrectdecision by the Election Judge at the preliminary stage that tho security issufficient is not a question of law within the meaning of section 82A (1) of theCeylon (Parliamentary Elections) Order in Council when an appeal is preferredby the unseated candidate after the conclusion of the trial.
Per Sibimank, J.—“ It must be remembered that section 82A (1) (a) grantsa right of appeal on a point of law from a determination whether a Memberwas duly returned, or whether the election was void, and nothing else. Adecision at a preliminary stage that tho security furnished is sufficient and thepetitioner is entitled to be heard, has, in my opinion, nothing to do with thedetermination after the-conclusion of the trial contemplated in section 81. ”
Per Samerawickrame, J.—“The decision that security is sufficient hasnothing to do with the determination at the conclusion of the trial whetherthe member was duly returned or elected, or whether the election was void.Such a decision therefore cannot be canvassed in an appeal against thedetermination. ”
Per Silva, S.P.J. (in dissenting judgment)—“ When this Court is given thepower to entertain on appeal on a question of law the Legislature could nothave intended that any illegality which the Election Court committed in thecourse of tho proceedings should be condoned but that only an illegality whichaffected the actual ‘ determination should be dealt with. "
Reid further by Silva, S.P.J., and Samerawicksahe, J., that a preliminaryobjection raised before an Election Judge against his hearing an electionpetition, on tho ground that the petition is accompanied by an affidavit whichdoes not comply with the requirements of taction 80B (d) of the Ceylon
G. P. A. SILVA, S.P.J.— Dissanayake v. Abf.yainghe
13
(Parliamentary Elections) Order in Council, cannot succeed inasmuch as noparticular form for on affidavit has been prescribed either in the Order inCouncil or any rules attached thereto; it cannot be contended that section86 (2) of the Order in Council is wide.enough to compel recourse to the practicefollowed in England regarding the Form of on affidavit, if indeed such anaffidavit is a requirement in England too. Per SrBisi&Mi, J.—There isno right of appeal from an order of an Election Judge refusing to uphold apreliminary objection relating to the impropriety of the affidavit.
Quaere, whether, for the purpose of computing the quantum of securitythat has to be deposited under Buie 12 (2) of the Parliamentary ElectionPetition Rules, as amended by section 33 of Act No. 9 of 1970, the expression“ charge constituting a distinct ground ” in Buie 12 (2) can be interpretedto mean that a “ ground ” can be made up of several " charges ".
Election Petition Appeals Nos. 1 and 2 of 1971—Electoral DistrictNo. 53 (Nuwara Eliya).
Thiagalingam, Q.C., with P. Navaratnarajah, Q.C., Neville Samara-Jcoon, Q.C., Eric Amerasinghe, K. N. Choksy, Mark Fernando and RamiTennekoon, for the 1st respondent-appellant.
H. W. Jayewardene, Q.G., with H, Rodrigo, M. A. Mansoor, KumarChilly and R: de Silva, for the 2nd respondent-appellant.
K. Shinya, with Nimal Senanayake and Nihal Singuravelu, for thepetitioner-respondent.
Cur. adv. wit.
December 21, 1971. G. P. A. Silva, S.P.J.—
The 1st respondent-appellant was duly elected as Member of Parliamentfor the Nuwara Eliya Electoral District at the Parliamentary GeneralElection held on 27th May, 1970. On the 21st June, 1970, the petitioner-1st respondent, whom I shall hereinafter refer to as the petitioner, filedan eleotion petition praying that the election of the appellant be declarednull and void and for a determination that the appellant was not dulyelected or returned.
The said petition contained the following charges :—
that the 1st respondent-appellant and/or the 2nd respondent-2nd respondent acting as the agent of the 1st respondent-appellant and/or with his knowledge and/or consent was orwere guilty of undue influence within the meaning of Section66 (2)' (C) of the Ceylon (Parliamentary Elections) Order-in-Council 1946 as amended and reprinted on 12th April 1970 inthat he or they held or caused to be held a public meeting ata place of worship for the purpose of promoting the election
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G. P. A. SILVA, S.P.J.— Diaaanayctke v. Abeysinghe
of the 1st respondent-appellant at the election. The said publicmeeting was held in the Hindu Temple at Scrubbs Estate,Nuwara Eliya, on or about the 24th day of May 1970 from orabout 10 00 p.m. onwards ;
(6) that the 1st respondent-appellant and / or the 3rd respondent-3rd respondent acting as the agent of the 1st respondent-appel-lant and/or with his knowledge and/or consent was or wereguilty of undue influence within the meaning of Section 66(2) (c) of the Ceylon (Parliamentary Elections) Order-in-Councilin that he or they held or caused to be held a public meetingat the Mariamma Kovil of Ward No. 3, Hawa-Eliya, NuwaraEliya, for the purpose of promoting the election of the 1strespondent-appellant at the election. The said meeting washeld on or about the 16th of May 1970, from about 12.30 p.m.onwards; and
(c) that the 4th respondent-respondent acting as agent (if the 1strespondent-appellant or with his knowledge and/or consentcommitted the corrupt practice of making false statementsduring the election for the purpose of aifecting the return of theS.L.F.P. candidate Tantalage William Fernando in relation tothe personal character and conduct of such candidate withinthe meaning of Section 58 (1) (d) of the Ceylon (ParliamentaryElections) Order-in-Council in that he did at a public meetingheld at Golf Links Grounds opposite Cargills Ltd., Old Bazaar,Nuwara Eliya, on or about the 24th May 1970 in the evening,with words to the effect that the said Tantalage WilliamFernando had earlier been working on tea estates during whichtime he had indulged in nefarious activities (eao^Czsv®) andthose who follow this cad (^oaSci) W’illiam Fernandoare cads (z^aaQ) like himself, and are like blood suckingleeches (®<^ c&3 oSazn).
The petitioner gave security in a gum of Rs. 12,500 in respect of thecharges contained in the petition. Annexed to the petition was anaffidavit which was intended to secure compliance with the provisionsof section 80B (d) of the Ceylon (Parliamentary Elections) Order-in-Council, 1946. The 1st respondent-appellant made an application to theElection Judge before commencement of the hearing of the petitionthat no further proceedings be had on the said petition and that theBaid petition be dismissed on account of the inadequacy of the amountof security given and the failure to file a proper affidavit which hecontended was not in compliance w ith the requirements of section 80B(d).This application was dismissed by the Election Judge. At the subsequentbearing of the petition, the charge in respect of the meeting held atMariamma Kovil was abandoned at a certain stage of the evidence andthe charge in respect of the meeting at Scrubbs Estate was dismissed,. the Election Judge having rejected the evidence as false, as, in hisopinion, the witnesses were speaking to an incident which never took
G. P. A. SILVA, 8.P.J,— Diuanayale v. Abeysinghe
IS
place. In respect of the charge against the 4th respondent as agent ofthe 1st respondent-appellant, of making false statements relating tothe personal character of the Sri Lanka Freedom Party candidate,
T.William Fernando, for the purpose of affecting his return, the learnedJudge accepted the evidence called- by the petitioner and declared theelection of the 1st respondent-appellant void.
*
Apart from the grounds of law raised against the findings containedin the determination, it is sought to be attacked in limine on two grounds.The first is that the petition was not properly constituted inasmuchas it was not accompanied by a proper and lawful affidavit as requiredby the imperative provisions of section 80B (d) and that the court exceededits jurisdiction in finding the 4th respondent guilty of a corrupt practiceand in declaring the election void. The second is that the failure on thepart of the petitioner to furnish security as required by Rule 12 (2)of the Third Schedule rendered the petition liable for dismissal andrequired the Judge to stop further proceedings and that the furtherproceedings had by him in contravention of this requirement weretherefore illegal and without jurisdiction.
We invited counsel to argue as a preliminary issue these matters aswell as the question whether the appellants have a right of appeal againstany wrong findings of the Election Judge on those matters as we feltthat, if our decision on those matters was favourable to the appellants,it would compel us to reverse the determination of the Election Judgewithout proceeding any further. However, as we were unable at theconclusion of the argument which took several days to arrive at a definitedecision, counsel were asked to make their further submissions on themain appeal. I shall myBelf follow that order and deal first of all withthe matters which are included in this preliminary issue.
I shall first consider the submission regarding the affidavit the absenceof which in terms of section 80B (d) of the Order-in-Council is reliedupon by the appellants as an irregularity which is fatal to the proceedingsin the trial of this petition. This section provides as follows:—
80B. An election petition—
shall set forth full particulars of any corrupt or illegal practicethat the petitioner hlleges, including as full a statement aapossible of the names of the parties alleged to have committedBuch corrupt or illegal practice and the date and place of thecommission of such practice, and Bhall also be accompaniedby an affidavit in the prescribed form in support of theallegation of such corrupt or illegal practice and the dateand place of the commission of such practice.
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G. P. A. SILVA, S.P.J.— Diseanayakc v. Abeysinghe
The word “ prescribed ” as defined in our Interpretation Ordinance,means “ prescribed by the enactment in which the word occurs or by anyrules duly made thereunder. ” Admittedly there is no form of affidavitto be found either in this Order-in-Council or any rules attached theretoand the absence of such a form seems to be clearly an omission on thepart of the Legislature. The last general election being the very firstone conducted in accordance with the provisions of the Order-in-Councilas amended by Act No. 9 of 1970, any petitioner in an election petitionwas therefore left to rely on his own resources as to the particularform this affidavit should assume. Counsel for the appellants soughtto argue that this omission in the enactment or the rules was one in respectof which the provisions of section 86 (2) of the Order could be invokedand the procedure or practice followed in England on the same mattershould be followed by us. I find some difficulty in accepting this argumentIn my view section 86 (2) is intended to provide for a casus omissus inregard to a matter of procedure or practice in an election petition. Thatis to say, if in the course of a trial of an election petition, there shouldarise a matter of procedure or practice in regard to which our enactmenthas been silent, inadvertently or otherwise, then recourse could be hadto the procedure and practice obtaining in England on the same matter.It will however not be permissible for us to follow such procedure andpractice obtaining in England in respect of a matter which our legislaturehas been very conscious of and has specifically provided for, even thoughit has failed to carry out its intention of prescribing the form of theaffidavit. Such a course would also be in conflict with the provision ofthe Interpretation Ordinance referred to which enjoins one to lookto the enactment itself or the rules made thereunder for the form of theaffidavit. I do not mean by this that any serious objection could havebeen taken if a petitioner followed the form of an affidavit used in Englandin the same matter, if indeed such an affidavit was a requirement inEngland too. But it would be unfair to penalise a petitioner if, withoutfollowing the form in England, he prepared an affidavit in a form generallyaccepted in other legal proceedings, which is the best he could have donein the circumstances. To insist on a particular form of affidavit fromhim would be to impose on him a duty that the Legislature itself hasrendered impracticable of performance. For these reasons I thinkthat the contention of the appellant regarding the propriety of theaffidavit fails.
I shall now examine the submissions regarding the insufficiency ofsecurity tendered by the petitioner. Seldom has there been in ourcourts a more controversial subject for judicial interpretation than themeaning attributable to the words “ground ” and “ charge ” in electionlaw. Eminent Judges of the past and present commencing from theyear 1931 have pronounced divergent views from time to time withoutever being able to reach complete agreement i There would have beenfew election petitions since the conferment of adult suffrage introducedby the Donoughmore Constitution in 1931 in which the question of thesufficiency of the security deposited by the petitioner did not directly or
G. P. A. SILVA, S.P.J.— Dissanayakt v. AbeysingheIT
indirectly arise. The rule in regard to the furnishing of security by thepetitioner in an election petition has remained substantially unaltereduntil the amending Act No. 9 of 1970 introduced a notable and importantchange. A court that is called upon to place an interpretation on thisaltered provision to be found in Buie 12 as recently amended has thereforea special responsibility to pause and reflect carefully on the backgroundof the change, the reasons that would have actuated the legislature toproduce the change and the intention of the legislature in effecting thechange before such court embarks on an interpretation which is boundto be relied upon as a guide on future occasions. This court has boththe advantage and the duty of construing the altered rule unimpededby the views expressed in a string of judicial decisions deriving of courseany legitimate assistance from the erudition and industry which havebeen lavished on the subject by the eminent Judges who have had tointerpret the provision contained in the rule as it existed prior to theamendment.
One of the earliest cases in which the words “ charge ” and “ grounds ”in respect of election petitions came to be considered was that ofTiUekewardcne v. Obeyesekere1, 33 N. L. B. 65. In the petition filed inthat case the petitioner alleged that the respondent was guilty of threeoffences: bribery, treating and paying or contracting for the paymentfor conveyance of voters. He gave security in . a sum of Bs. 5,000 ohthe basis that there were three charges only and that the relevant Buierequired a deposit of Bs. 5,000 for' the first three charges. In answerto anapplication for particulars the petitioner stated 17 cases of bribery,26 of treating and at least 14 cases of payments or contracts forconveyance. After the particulars were filed an application was madethat the petition should be dismissed as the security was inadequate,the contention being that for each charge in excess of three thepetitioner should deposit a sum of Bs. 2,000 each of the cases of bribery,treating and payment or contract for conveyance of voters being aseparate charge. Drieberg, J. took the view that security which hadto be deposited within 3 days of the filing of the petition and long beforethe particulars were furnished, should be given on the basis of thepetition; that by the word “ charges ” was meant the various forms ofmisconduct coming under the description of corrupt and illegal practices■and that, whatever may be the number of acts of bribery sought to beproved aganst the respondents, for instance, the charge to be laid againsthim was one of bribery. He accordingly held that the security was-adequate and disallowed the application for a dismissal of the petition.Although Drieberg, J. did not precisely so hold, his decision amountedto a conclusion that there was hardly a distinction in this case between aground and a charge, meaning all the instances of a particular class ofmisconduct taken collectively.
(1931) 33 N. L. S. 05.
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G. P. A. SILVA, S-P.J.— Diaaunayake v. Abeyeinghe
In the case of Perera v. Jayawardene1, 49 N. L. R. 1, the respondentsought, before a Divisional Bench, to assail the decision in the 33 N.L.R.case (supra) but Soertsz, S.P.J., with the concurrence of the other twoJudges, followed the view expressed by Drieberg, J. As an addedreason for agreeing with this view Soertsz, S.P.J. observed:—“ But,today there is much stronger reason for following his ruling becausewhen Rule 12 was re-enacted in 1946, the word ‘ charges ’ reappearsin precisely the same way, and it is a well established principle that whena word has received a judicial interpretation and the same word isre-enacted, it must be deemed to have been re-enacted in the meaninggiven to it. As Sir W. M. James L.J. remarked in Ex parte Campbellin re Cathcart: ‘ Where once certain words in an Act of Parliamentreceived a judicial construction in one of the superior Courts, and theLegislature has repeated them without any alteration in a subsequentstatute, I conceive that the Legislature must be taken to have used themaccording to the meaning which a Court of competent jurisdiction hasgiven to them’. ”
In Perera v. Bandar anaike2, 67 N. L. R. 544, Sirimane, J. took asomewhat different view. In that case the petition alleged in the thirdparagraph that the respondent had been guilty of undue influence;in the fourth paragraph that the respondent had been guilty of a corruptpractice and, in the fifth paragraph, that by reason of misconduct onthe part of the respondent, her agents and supporters and othersinterested in promoting her candidature, and by reason of othercircumstances (particulars of same to be furnished with the particularsof the aforementioned charges) the majority of electors were or mayhave been prevented from electing the candidate whom they preferredwithin the meaning of section 77 (a) of the said Order-in-Council. Itwas held that every one of the grounds set out in section 77 (a) constituteda separate and distinct charge and that while “ misconduct ” meantsome act on the part of the respondent (other than those specified earlierin the petition) which affected the result of the petition, those matterswhich did not come under “misconduct” but which still affected theresult of the election would be other circumstances such as a flood, cycloneor the collapse of a bridge which prevented the voters from proceedingwith reasonable safety to a polling booth. A further important matterto which he directed his mind in this case was the meaning to be givento the word charge, which he defined as a complaint, that, is, somethingthe petitioner has reason to complain of, which prevented the majorityof electors from electing the candidate whom they preferred.
In the case of Perera v. Samarasinghes, 67 N. L. R. 530, T. S. Fernando*
J.adpoted the view of Sirimane, J. and endeavoured, successfully,I think, to distinguish the case before him from the earlier cases in whichDrieberg, J. and Soertsz, J. expressed certain views. The reason given
* (1947) 49 N. L. n. 1.* (1965) 67 N. L. R. 544.
• (1965) 67 N. L. R. 530.
G. P. A. SILVA, S.P.J.—Diaaanayake v. Abeyainghe
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by, T. S. Fernando, J. for the distinction he drew was that theallegations in those two cases were confined to what may strictly be calledcorrupt or illegal practices and that the court was not concerned ineither of those cases with allegations of general bribery, general treating,general intimidation or other misconduct which are strictly not corruptor illegal practices as defined in sections 64 to 71 of the Order-in-Council.I am myself in respectful agreement with the views expressed bySirimane, J. and T. S. Fernando, J. in those two cases and would like toassociate myself with the observation that when a charge is framed toread that “ a corrupt practice or practices or an illegal practice orpractices was or were committed ”, several charges within the meaningof Rule 12 could be laid in a petition and, further, that a ground doesnot mean the same thing as a charge and that a single ground maysometimes involve several charges.
The last decision on the subject to which our attention was drawnby counsel was that of the Divisional Bench case which dealt with threeappeals Wijesekere v. Perera, Perera v. Samarasinghe and Perera v.Bandaranaifee1, 68 N. L. R. 241, all of which involved inter alia theconstruction of the provisions of the law relating to charges and groundswith reference to Parliamentary Election Petitions. It was held that—
In an election petition alleging the commission of corrupt practicesor illegal practices contemplated in section 77 (c) of the ParliamentaryElections Order-in-Council, all allegations of the commission of thesame corrupt practice or the same illegal practice by a candidate, orhis agent, or with his knowledge and consent, constitute only onecharge for the purpose of giving security for costs in compliance withRule 12 of the Parliamentary Election Petition Rules, irrespective ofthe number of alleged commissions of the same practice specified inthe petition or intended to be proved at the trial. For example,two or more acts of the same corrupt practice of bribery constitute-only one “ charge ”.
An allegation in terms of section 77 (a) of the ParliamentaryElections Order-in-Council that “ the majority of the electors wereor may have been prevented from electing the candidate whom theypreferred ” constitutes a “ charge ” for the purposes of Rule 12 ofthe Parliamentary Election Petition Rules. Further, it constitutesonly one “ charge ”, irrespective of the nature or the number of factsor matters by reason of which it is alleged that the majority of thevoters were or may have been prevented from electing the candidatewhom they preferred. Accordingly, general bribery, generalintimidation, general treating, misconduct, act of God, etc., are merelycauses or reasons upon which a Judge can be satisfied that there wasprevention of free voting, and do not constitute separate " charges ”for the purpose of Rule 12.
1 (196B) 68N.L.B. 241.
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G. P. A. SILVA, S.P.J.—Diasanayaka v. Abeyainghe
Counsel for the appellant submitted that this case was wrongly decidedand also contended for the correctness of the judgment of Sirimane, J.I have already expressed my agreement with the views of Sirimane, J.and T. S. Fernando, J. and I regret my inability to fall in line with theviews of the learned Chief Justice in the later case. Counsel for therespondents drew our attention to the following observation made bythe learned Chief Justice in the course of his judgment at page 247 :—“ Itis only reasonable that petitioners and their advisers should in depositingsecurity be guided by an authoritative decision on such matters. And ifin a particular case, security furnished in conformity with such a decisionwere to be held insufficient, the right of a citizen to challenge an electionwould be denied to him not through his error but because of his relianceon that decision. The circumstances are eminently such as call for the-application of the principle of stare decisis, ” and suggested as a possibleimplication of this observation that, but for the desirability of upholdingthe principle of stare decisis, he may well have fallen in line with the viewsexpressed by Sirimane, J. and T. S. Fernando, J, referred to above.There is much to be said for this suggestion. . Furthermore, an observation-made by My Lord the Chief Justice in a subsequent case, Herath v.Senaviratne1, 70 N. L. R. 145 at 148, also cited by counsel which referredto a new particular allowed by the Election Judge at a very late stage ofthe trial as a new charge confirms me in the view that, had the learnedChief Justice construed the meaning of the word “ charge ” independentlyof the decisions in the cases of Tillekewardene v. Obeyesekcre and Per era r.Jayawardene (supra) he may well have adopted the same line of reasoningas Sirimane, J. and T. S. Fernando, J. For, when he referred to the newparticulars allowed by the Election Judge as constituting a new charge,he meant a charge of making a false statement regarding the unsuccessfulcandidate. As the charges alleged against the respondent upto the stagewhen the new particulars were allowed by the Election Judge were alsocharges of making false statements it was a misdescription to say thatthe new particulars introduced a new charge if he was following the-reasoning of the decision of Drieberg, J. and Soertsz, S. P. J. in the earliercases. Mr. Thiagalingam, supported by Mr. Jayewardene, also con-tended that it was the unsatisfactory and uncertain state of the lawresulting from conflicting judicial decisions that prompted the Legislature-to introduce the far reaching amendments contained in Act No. 9 of 1970.Their further submission was that the Legislature gave expression in thisAct to the views expressed by Sirimane, J. and T. S. Fernando, J. inregard to the meaning of “ grounds ” and “ charges ” and to the givingof security'when (a) a significant amendment was brought about inRule 12 of the Third Schedule, (6) Rule 5 was repealed, and (c) certainfundamental changes were introduced to section 80B. Whatever be thecause of the amendment, the changes brought about appear to me so-substantial and deliberate as to merit a construction of the relevantprovisions through a new approach, unfettered by the various dissenting:opinions of different Judges over the last 40 years.
1 (1907) 70 N. L. R. US at U8.
G. P. A. SILVA, S.P.J.—Diasanayake o. AbeyHnghe
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• The word “ grounds ” or “ ground ” in regard to election petitions isto be found in section 77 of the Order-in-Council and in Buie 12 as wellas Rule 4 of the Third Schedule and the word “ charge ” occurs in Buie 12of the Third Schedule.. The meaning of “ ground ” presents no difficultyand ah exhaustive list of the grounds on which an election can be avoidedis set out in section 77. It is the interpretation of the word “ charge ”that confronts a court with questions of a varied nature.
Before embarking on an interpretation of the present law it is alsouseful to remember an observation made by the Judge in an old casereferred to as to the materiality of the stage at which the security has tobe calculated by a petitioner who has the duty of furnishing it. In thecase of Tillekeuxirdene v. Obeyesebere (supra) Drieberg, J. observed atpages 66 and 67:—“ In this petition the petitioner alleged that therespondent was guilty of three offences : bribery, treating and paying orcontracting for the payment for conveyance of voters. The petitionergave security in a sum of Bs. 6,000 on the basis that there were threecharges only.
Security to the required amount has to be given on the presentation ofthe petition or within 3 days and, if not so given, the petition must bedismissed. It follows from this that the amount of the security must bedetermined on the averments in the petition. ”
At the time this matter came up for consideration a petitioner wasexpected to state in the petition broadly the facts and grounds on whichhe relied, He would therefore have satisfied the law if he stated forinstance that the successful candidate or an agent, as the case may be,was guilty of certain corrupt or illegal practices, that the candidate wasdisqualified from seeking election or that for some reason set out in theorder the majority of electors were or may have been prevented fromelecting the candidate whom they preferred. The security he had todeposit would have depended on the number of charges thus alleged on theface of the petition which would almost have been the equivalent of.grounds for setting aside the election. Questions of particulars wouldnot arise at the time of filing the petition or within three days thereafter,before which security had to be given and there is therefore much to besaid in favour of the adequacy of the security if the amount depositedwas calculated on the broad number of charges which would invariablyhave meant the grounds as well. Had the law been in the present formrequiring the petitioner to state in the petition itself full particulars ofthe corrupt or illegal practices that he alleges, including a full statementof the names of the parties alleged to have committed these corrupt orillegal practices and the date and place of the commission of the practices,Rule 5 regarding subsequent furnishing of particulars being repealed,Drieberg, J. would not have had occasion to make the observation whichI have quoted above and the entire process of reasoning which he adoptedon the basis of the petition containing broad charges may have assumed
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G. P. A. SILVA, S.P.J.—Dissanayake v. Abeyringhe
a different form. For, he would then have had to consider a petitionwith charges, for example, of a corrupt practice committed by one personin certain circumstances, by another in a different place and under adifferent set of circumstances and by a third person on a different date, adifferent! place and in yet other circumstances. All the three partiesconcerned would have been joined as respondents in terms of section 80B(d) which is a new provision introduced by Act No. 9 of 1970. Therewould be no question of further particulars being furnished setting outdetails of the parties and the acts complained of, Rule 5 being repealed.The petition would in other words have contained the various chargeson the face of it. The considerations for the computation of security inrespect of such a petition would have differed so sharply from the petitionwhich he in fact considered and he may well have reached the conclusionthat the quantum of security depended on the charges set out in thepetition in respect of each of the persons joined as respondents. Thisessential and basic difference in the present law as contrasted with theearlier law has therefore to be always kept in mind in considering thequestion of security under the present law'.
I shall now examine the present law in greater detail in its applicationto the requirement of a petitioner to give security. The question to beconsidered is the meaning to be attached to the words “ chargeconstituting a distinct ground ” in Rule 12. These words introducedby section 33 of Act No. 9 of 1970 effect a definite departure from theoriginal words found in Rule 12. The relevant portion of the Rule,namely 12 (2) in the Ceylon (Parliamentary Elections) Order-in-Council1946 reads as follows :—
The security shall be to an amount of not less than five thousandrupees. If the number of charges in any petition shall exceedthree, additional security to an amount of two thousand rupeesshall be given in respect of each charge in excess of the firstthree. The security required by the rule shall be given by adeposit of money.
Rule 12(2) as amended by section 33 of Act No. 9 of 1970 reads as follows:—
(2) The security shall be an amount of not less than five thousandrupees in respect of the first charge constituting a distinctground on which the petitioner relies, and a further amount ofnot less than two thousand five hundred rupees in respect ofeach additional charge constituting any such ground. Thesecurity required by this rule shall be given by a depositof money.
It would seem that the words used in the amended Rule, which entirelydeals with the subject of giving security, are intended to define the word“ charge ” in its application to the amount of security which a petitionerhas to deposit either with the petition or within three days thereof.Whereas this word was unqualified in the earlier enactment and noindication was given regarding any distinction between a charge and a
O.F. A. SILVA, S.P.J.—Diaaanayake o. Abeynnghe
ground in the rale itself, the 1970 enactment draws a distinction betweenthe two, with the compelling implication that a ground can be made up ofseveral charges. In terms of this rule, for the first charge constituting adistinct ground on which the petitioner relies, security should be furnishedin a sum of Rs. 5,000/- and in respect of each additional charge constitutinga distinct ground additional security in a sum not less than Rs. 2,600/-should be furnished. This requirement alone makes it clear that “charge”and “ground” in this context refer to two different concepts and not thesame concept. What then is a charge constituting a distinct ground onwhich the petitioner relies ? It seems to me that, if a charge ib such thatthe proof of that alone will be a sufficient ground—as it generally would be—for the petitioner to rely in order to have the election declared void,such a charge will attract security. A petitioner however is not precludedfrom alleging several charges constituting the same ground, as he sooften does, without pinning his faith on one charge, in which event hewill have to deposit security at tire rate of Rs. 2,500/- in respect of eachof those additional charges which he may allege. For, the same electionoffence, e.g., a corrupt practice, can be committed by a candidate or anagent on more than one occasion and a corrupt practice can embrace awide variety of acts such as procuring personation, treating, undueinfluence, bribery and publication of false statements. A charge.relatingto any such acts will constitute a ground for avoiding an election and willrequire separate security the purpose of which of course is to enable therespondent or respondents, as the case may be, to recover costs if thecharge concerned is not established.
In other words if one paraphrases the present Rule 12( 2),what it saysis that in the first place the petitioner must give security in respect ofeach separate charge which constitutes a ground of avoidance of theelection, the difference in the quantum between the first and subsequentcharges being that the first attracts Rs. 5,000/- while the others attractRs. 2,500/- each. A possible question that can arise is whether the word“ constitutes ” in this rule has the effect of equating a charge to a ground.If that were so there is no warrant for the use of the word “ charge ” at alland the Legislature may well have said that each ground should be backedby security in a certain specified amount. In fact the wording of therule suggests that such an equation is. precisely what the Legislaturewished to avoid. Under the old rule there was some justification forequating charges to grounds in interpreting the two words for the reason,inter alia, that the word ground was not mentioned there at all. Thejuxta-position of the two words which the Legislature has now adoptedcompels one to give to the two words two different meanings. As theOrder-in-Counoil sets out in section 77 the grounds for avoiding anelection, any petitioner who wished to attack an election would naturallyhave to do 6o on one or more of the grounds enumerated therein.However, with reference to a petition, each paragraph giving the reasonfor the prayer would more appropriately have been described as a chargeand in some instances, such a description would even be very apt. Byreason of the appropriateness of the word in certain instances, it has of
24
G. P. A. SILVA, S.P.J.—Disaanayakc v. Abtysinghe
course been used in a general sense to describe what is stated in eachparagraph of a petition for avoiding an election as a charge though thatis a very inappropriate description in some other cases. For, even anallegation such as civil commotion or an act of God such as a flood orany other disaster which prevented voters from reaching the polls hasalso been considered as a charge even though it does not involve anyblameworthiness on the part of the successful candidate and theallegation could more appropriately be described as a ground. Forthis reason even though Judges hearing election petitions have sooften attempted a definition of the term “charge” in this context theyhave not succeeded in giving one which will fit in with every case. It canmean an accusation or allegation against a candidate or an agent, ora mere reason, which constitutes one of the grounds refferred to insections 77 (a), 77 (b) or 77 (e) for avoidance of an election.
When one considers the scheme of the new amendment from anotheraspect too it would seem that such an interpretation would be consonantwith what the Legislature sought to achieve. For, the new section 80Arequires a petitioner inter alia to join as respondents to liis electionpetition any other candidate or person against whom allegations of anyoorrupt or illegal practice are made in the petition. If thereforeallegations of a particular corrupt or illegal practice are made in respect ofmore persons than one it will be incumbent on the petitioner to joinas respondents all such persons. It is undeniable that each suchallegation will constitute a distinct ground for avoiding the electionbecause the proof of any-one of those charges would be sufficient for thepurpose. This requirement brings into focus another reason whichsupports the view that security is, under the new law, required in respectof each charge constituting a distinct ground of avoidance of an election.For, unlike previously when a person against whom a charge was madewas not joined as a respondent, as the Legislature by enacting section80A (1) (6) of the 1970 Act compels such person to be joined, it is butfair that the same Legislature should have considered it necessary torequire a petitioner to deposit a certain sum as security for costs of thenamed respondent, in the event of the petitioner failing to establishthe charge. The person to be joined as respondent has to defend himselfon pain of suffering two severe penalties, the forfeiture of civic rightsas well as a criminal prosecution, and any person so joined will naturallydefend himself securing for himself the best available legalassistance and he can look forward only to the security in order to meetthe cost of defending himself, if the allegation is unsuccessful or false.The importance of security for costs was incidentally referred to byT. S. Fernando, J. in the case of Perera v. Samarasinghe1, 67 N. L. R. 530.As I consider some of the observations made by him to be very importantin thoir application to certain aspects in the instant case such as thedistinction between charges and grounds, the purpose of security in
> {1005) 67 N. L. ft. 530.
O. P. A. SILVA, S.P.J.—Vissanayake v. Abcyringhe
26
respect of each charge and the cautions that one has to exercisein applying the ratio decidendi of past decisions and as this is one of the•decisions that can be said to have influenced the Legislature to introducethe Act of 1970, I think it will be useful to quote the following passage•at page 532 :—
“ It was first contended on behalf of the petitioner that paragraph 5contains no charge at all within the meaning of rule 12 (2). Reliancewas placed on the definition of a charge as set out by Drieberg J. inTMekercardene v. Obeyeselcere (supra) which was approved by theDivisional Bench in Perera v. Jayewardene (supra). In the first-mentioned ofthese cases, Drieberg J. stated “ In my opinion by the word' charges ’ in rule 12 (2) is meant the various forms of misconductcoining underthe description of corrupt and illegal practices; for example,whatever may be the number of acts of bribery sought to be provedagainst a respondent the charge to be laid against him in a petitionis one of bribery I do not think it can be said that this definition—if it was intended to be such—is exhaustive. As Viscount Simonstated in Harris v. Director of Public Prosecutions, “ it must beremembered that every case is decided on its own facts, and expressionsused, or even principles stated, when the Court is considering particularfacts, cannot always be applied as if they were absolute rules applicablein all circumstances ”. The Court was not concerned in either of thetwo cases, Tillekewardene v. Obtyesekere and Perera v. Jayewardene,with allegations of general bribery, general treating, general intimidation,or other misconduct which are strictly not corrupt or illegal practicesas defined in sections 54 to 71 of the Order-in-Council. The allegationsin the petitions in both these cases were confined to what may strictlybe called corrupt or illegal practices. Our Courts have held that-allegations of general intimidation and general treating go to form a“ charge ” as contemplated in the rule in question—vide Jeelin Silva v.Kularatne. It is implicit also in the, decision in Mohamed Mihvlar v.NaUiah that grounds (a) and (6) in the petition on which that casecommenced which did not by any means allege the commission ofany corrupt or illegal practice constituted charges within the meaningof Rule 12 (2). At one stage of the argument, learned counsel for thepetitioner contended that every ground for avoiding an electionis not a charge within the meaning of Rule 12, and that it is only aground that involves the respondent (the elected candidate) in someform of misoonduct for which he is answerable that constitutes a-charge. This proposition means that, allegations against personslike returning officers and others, allegations of general bribery, etc.,and an allegation that the person elected was disqualified for election•do not constitute chaiges at all. I am unable to agree that theArgument is sound; it is indeed contrary to the practice that hashitherto obtained, and, if it is correct, it follows that where a petitionerAlleges against an elected candidate three charges of corrupt or illegal'practices and one or more charges against a returning officer or other8 – Volume LXXV
26
G. P. A. SILVA, S.P.J.—Diasanayake v. Abeysinghe
officer, the amount that is required to be given as security is Rb. 6,000.
Such a situation leaves the respondent or respondents other than the
elected candidate without security for his costs at all
If this is a correct statement of the law as it existed before theamendments contained in Act No. 9 of 1970, as I think it is, a fortiorisections 80A and 80B read with Rule 12 (2) allows no escape from theconclusion that each charge set out in the petition, which constitutesa distinct ground enumerated in section 77, and which alone can thereforebe a basis for avoiding an election, attracts security in a sum of Rs. 5,000/-if it is the first charge and Rs. 2,500/- if it is an additional charge afterthe first charge. In his judgment, the learned Judge considered itnecessary that in the class of charges where certain public officers aremade respondents, even they should be safeguarded against costs by theinsistence on the deposit of security even though the State would ordinarilyundertake their defence through the Attorney-General. Such a safeguardshould therefore with greater justification be provided for ordinarycitizens who may be made respondents to an Election petition. Avexatious petition can harass an innocent respondent as much as it canharass a successful candidate. The Legislature therefore owed a dutyto protect not only an elected representative but also a citizen, who mayhave been one of his strong supporters and for that reason is made a,victim of a false accusation, from harassment by frivolous or vexatiouscharges through the medium of a spurious election petition.
I
It is a notorious fact that while the unsuccessful candidate is invariablythe de facto petitioner in an election petition, the nominal petitioner is,or at least can be, an impecunious individual who will have no assetsfrom which the costs incurred by a successful respondent can ever berecovered. The expense involved would depend on the duration of thetrial which in turn would be in proportion to the number of chargeswhich a petition contains. When one examines the whole scheme of thenew Act of 1970 therefore, it is reasonable to think that the Legislaturehad these considerations in mind when it affected a deliberate change inRule 12 by Act No. 9 of 1970.
There was some argument on the interpretation of the words “ anyBuch ground ” in Rule 12 (2). It appears tome that the words “a distinctground ’’found earlier in Rule 12 (2) would mean one of the several groundsenumerated in section 77 for avoidance of an election on an electionpetition and, on the first charge constituting any one of those grounds,security in a sum of not less than Rs. 5,000/- will have to be given onbehalf of the petitioner. When Rule 12 (2) refers later on to the securityin respect of an additional charge constituting “ any such ground ”,to my mind it can only mean any distinct ground, whether it happens tobe the same ground to which the first charge relates or any other groundof avoidance enumerated in section 77. I am unable to accept thecontention of counsel for the 4th respondent, Mr. Jayewardene, in thisconnection, namely, that “ any such ground ” relates to the same ground
O. P. A. SILVA, S.P.J.—Dismnayake v. Abeyringhe
27
on which the first charge was based. In my view therefore it is only thefirst charge contained in a pstition that attracts Bs. 5,000/- as securityand each additional charge attracts Rs. 2,500/-. I do not agree withMr. Thiagalingam and Mr. Jayewardene, counsel for the respondents,whose submission was that the first charge in respect of any one distinctground attracted Bs. 5,000/- as security and that any additional chargein respect of any of those grounds attracted Bs. 2,500/*, in which eventthe Legislature could with advantage have used some other words.I rather think that the words “ first charge ” and “ additional charge ”are all used in relation to the petition and not in .relation to the groundin the context and, even though the view put forward by counsel isnot wholly untenable, there are two reasons why I prefer to take theother view. When a petition is filed against a Member of Parliament,he is bound to incur certain minimum costs even if there is one charge.These costs would be somewhat in the nature of his overhead expenseswhen he has to defend himself against a petition, whatever be the numberof charges. If there are more charges than one he is not likely to spendthe same amount in respect of each additional charge, whether it beexpenses incurred on matters such as filing papers, summoning witnessesor payment to lawyers. What he will have to spend on the additionalcharges will be only a smaller proportion of the initial expense of defending* himself in any event irrespective of the number of charges. It is thereforenatural that the Legislature should have provided for security in a sumof Bs. 5,000/- for the first charge and a smaller sum in respect of additionalcharges, whether the latter charges relate to the same or to a differentground. Secondly, even .under the old Buie security appears to havebeen based on this principle, namely, that a minimum of Bs. 6,000/-was to be deposited in any event, whether the number.of charges be one,two or three and any charge in excess of these three attracted onlyBs. 2,000/-, irrespective of the ground which the charge related to.So that the importance in this connection appears to me to attach to thenumber of charges and bears no relation to the grounds to which thosecharges relate. I
I am not unmindful of the consideration on the side of a bona fidepetitioner that it would not be in the interests of purity of electionsto deter a prospective petitioner by the imposition of excessive security.One must remember however that in present day elections a contestat an election does not depend on the resources of an individual. It is arecognised political party that decides on the candidate and it is theparty that meets the costs of the contest, particularly if the candidate’sfinancial capacity is inadequate to meet the necessary expenses permittedby law. If the candidate thus sponsored by the party loses the electionowing to corrupt or illegal practices by the successful candidate or hisagents or due to other causes which will vitiate an election, it is the partyin whose interests it will be to win the Beat that would ordinarily espousethe cause of the unsuccessful candidate by financing an election petition.Whether that happens in actual practice or the unsuccessful candidate
28
O. P. A. SILVA, S.P.J.—Diasanayake v. Abeysinghc
himself or any independent voter interested in the election presents apetition, the only strain that he suffers would be the furnishing of the-security and if his allegations in the petition are bona fide and wellfounded his security deposit will remain intact for withdrawal after thesuccessful conclusion of the hearing. As against this, if, as is generallythe case, the petitioner is a man of no means and adequate securityis not furnished and the petition is not a bona fide one and is dismissedbecause the allegations are baseless, the respondent or respondents,as the case may be, would have been subjected to unnecessary expense,anxiety and harassment and are left to their own devices without alegal remedy even to the extent of reimbursing themselves of their actualout-of-pocket expenses incurred in defending themselves. While theseconsiderations can have some weight in the interpretation of the lawthey can do so only up to a point when the legislative provision does notleave room for doubt.
I shall now deal with the submission regarding the inadequacy of thesecurity. It is based on the argument that when paragraphs 3 and 4of the petition allege that the candidate and/or the 2nd and 3rdrespondents respectively committed a corrupt practice, each paragraphinvolves at least two charges. In considering this submission one has to-bear in the forefront of one’s mind the new provision contained insection 80B (d). This provision makes it obligatory on a petitionerinter alia to set forth in the petition full particulars of any corrupt orillegal practice that the petitioner alleges, including as full a statementas possible of the names of the parties alleged to have committed suchcorrupt or illegal practice and the date and place of the commission ofsuch practice. I consider this requirement to be imperative- havingregard to the language used and the introduction of special legislationfor the purpose of imposing the requirement. If we consider, as anexample, a particular corrupt practice of bribery alleged to have been .committed by the successful candidate, in order to secure compliancewith this provision it will be necessary to set forth—
that this respondent committed the act of giving a bribe ;
, that it was given to a named person ;
that it was given on a particular day ; and
that it was given at a particular place.
In considering the particular point that has been raised on behalf ofthe appellants, it is significant to note that the very first requirementin this provision is that the petitioner should set forth as full a statementas possible of the name of the party alleged to have committed theoffence. I venture to think that this provision is intended to give noticeto the respondent concerned of the charge that he has to meet. Thisobject would hardly be satisfied by informing him that he or his agentcommitted the act. In the first place he is not definitely informed
G. P. A. SILVA, S.P.J.—Diesanayake v. Abeysinghe
28>
whether the allegation is that he committed the act complained of.If it is not he who is accused, he does not have to defend himself whereas,if another person is accused on the footing that he was his agent, it issufficient for his defence to show either that the alleged act was notcommitted or that, even if it was committed, the person committingwas not his agent. Depending therefore on whether it is the candidate^who is accused of the charge—I use the word accused in the broad sense—or another person said to be his agent, the charge itself will be different,the particulars to be set out under section 80B (d) will be different, theevidence will be different and the defences will be different. By norational basis of reasoning therefore can it be said that it is one chargeto allege in the petition that the respondent or his agent committed acorrupt act. Much less can it be asserted that it is one charge to allegethat the respondent and his agent committed a corrupt act such asthe one I have referred to, the concept of a common intention whichoccurs in criminal law (Ceylon Penal Code, section 32) being entirelyforeign to election law. Furthermore, when the charge alleges a corruptor illegal practice against the successful candidate and/or his agentthe provisions of section 80B (d) would require the petitioner to nameas respondents the successful candidate as well as the person alleged tohave been his agent. The fact that the petitioner has in fact done soand named the agent in paragraph 3 as the 2nd respondent is itself anadmission that one charge has been made against the candidate andanother against the 2nd respondent as an alleged agent of the1st respondent. Even if one leaves out the question whether the words1: with his knowledge and/or consent ” involved yet another chargethe submission of counsel for the appellants must succeed, namely,that there are two charges at least in paragraph 3, two at leastin paragraph 4 and one at least in paragraph 5, necessitating securityin a minimum sum of Rs. 15,000, the amount being made up as follows :—
Rs. 5,000 for the first charge constituting the distinct ground ofthe corrupt practice of undue influance against the 1st respondent.
Rs. 2,500 for each of the next three charges, one being againstthe 1st respondent and two against the 2nd and 3rd respondentsmaking up a total of Rs. 7,500.
Rs. 2,500 for the next charge against the 4th respondent of makinga false statement relating to the personal character of the defeatedcandidate, which is a charge constituting the distinct ground of
committing the corrupt practice of making a false statement.
/ ,
The security of Rs. 12,500 tendered by the petitioner is therefore notin compliance with the requirements of Rule 12 (2) of the Third Soheduleto the Ceylon (Parliamentary Elections) Order in Council 1946 as amendedby Act No. 9 of 1970. The Election Judge too agreed with the contention
30
G. P. A. SILVA, S.PJT.—Diaaanayake v. Abeyainghe
of Counsel for the respondent that each of the paragraphs containedmore than one charge when he observed at page 136 of his order asfollows :—
“ In the result while I agree that the charge that a candidate helda meeting at a particular place is distinct from the charge that itwas the agent who held the meeting in question, and that a chargethat alleges the holding of a meeting on a particular day at a particularplace is distinct from a charge that alleges the holding of a meetingon another day at another place, still I find that the groundof avoidance in each of these charges is identical, namely, undueinfluence, which is a corrupt practice, in terms of Section 77. Thefirst of these charges appropriates to itself the distinctness of a groundwhich is asserted for the first time in the petition and therefore attractssecurity. The others do not, for they are based on grounds identicalwith the first and thereby have lost the claim that they are on distinctgrounds. ”
He has, however, misdirected himself in my view in holding that thecharges other than the first- do not attract security as they are basedon grounds identical with the first. It seems to me that he has falleninto this error by a process of reasoning which has more or less equateda charge to a ground. This does not appear to me to be a correct viewfor the many reasons which I have endeavoured to set out earlier inthis judgment.
The question immediately arises as to the consequences of thiserroneous finding in regard to the adequacy of security. I shall firstanswer this question by saying that if the Election Judge had correctlydecided this matter, he had no alternative but to stop further proceedingsand to dismiss the petition in terms of the mandatory provisions ofRule 12 (3). The words of Rule 12 (3) are identical with the wordingof this Rule prior to the amendment of 1910 and in every single instancein the past where an Election Judge trying an election petition foundthe security deposited to be insufficient, such petition was dismissed.Counsel on both sides, however, have not been able to cite to us a singlecase in which an Election Judge had erroneously held that security wasadequate and proceeded to hear the petition and the validity of suchfurther proceedings was raised in appeal. We have therefore noassistance in this matter from any previous decision and the questionhas to be considered as res integra. The provision contained in Ride12 (3) is not merely mandatory but, unlike other mandatory provisionssuch as those contained in section 80B already referred to in anotherconnection, imposes a distinct prohibition on the power of an ElectionCourt to proceed with the hearing. The important question whichCounsel for the appellants have raised therefore is whether by reason ofan erroneous decision of the trial court in regard to adequacy of thesecurity the proceeding had by that court in the teeth of such an expressprohibition are valid proceedings on which a legal finding can be based
G. P. A. SILVA, S.PJ.—DistanayaJce e. Abeysinghe31
Counsel for the respondent, quite properly, did not contend that theElection Judge can lawfully proceed with a trial if the security depositedis insufficient presumably because Buie 12(3) leaves no room for such anargument. His contention in the first instance was that security wsssufficient because paragraphs 3, 4 and 5 of the petition contained onlyone charge each and whatever may be the interpretation given to Buie12 (2) the security required cannot exceed Bs. 12,500 which sum thepetitioner has deposited. If this contention is correct, of course, noquestion of the legality of the further proceedings had on the petitionarises. But as this contention cannot succeed in the view I have taken Ishall now consider the second contention, namely, that this court hasno power to review that decision of the Election Judge as it is no part ofthe determination against which alone there is an appeal to this court interms of section 82A.
Strong reliance was placed by Counsel for the respondent on thejudgment in the case of Ramalingam v. Kumaraswamy1, 55 N. L. B. 145.In that case an election petition was dismissed by the Election Judgeon the ground that notice of the presentation of the petition had notbeen served on the respondent as required by Buie 15 of the ParliamentaryElection Buies. It was held that there was no right of appeal as oneprerequisite for an appeal under section 82A (1) of the ParliamentaryElections Act was that it must be against the determination of an ElectionJudge under section 81 and as in that case, there had been nodetermination. Sir Alan Bose, C.J., observed in the course of hisjudgment that there were two prerequisites for an appeal, namely,that it must be a question of law and secondly that it must be againsta determination and went on to analyse what was -meant by a“ determination ”, which however was absent in that case. Gratiaen J.who agreed with Bose C.J. added that the Supreme Court did not enjoyan unexpressed but inherent statutory power in dealing with an appealfrom the decision of an Election Judge and that as the law stood ithad no power to remit a case for' further proceedings. I have greatdifficulty in accepting the submission of Counsel for the respondentthat this case should be considered as having strong persuasive authorityfor our decision in the instant case in view of the numerous distinctionsbetween that case and the one before us.
In that case there was no determination as such under section 81;there is one in the instant case. That was a case where a preliminaryobjection was upheld and no further proceedings were taken and theappeal was against the decision on a preliminary point alone for whichthere was no provision; in the instant caBe, the preliminary objectionwhich we now consider to have been a sound one and which shouldhave been upheld, was overruled and proceedings were taken and adetermination was reached. The appeal here is not merely in respectof an illegality contained in the determination but against the illegality
U9S3) 65 N. L. B. 145
32
G. P. A. SILVA, S. P. J.—Diasanayake v. Abeysinghe
of the entire determination based on evidence admitted, in the submissionof Counsel, in disregard of a specific legislative prohibition which hasmuch greater force than even a mandatory provision and which thereforerendered the whole proceeding illegal. In other words there was nodetermination in that case which was. sought to be attacked while inthe instant case the attack is not merely on some ground oflaw in respect of a proper determination but on the illegalityof the entire determination being founded on evidence altogetherprohibited. In view of these clearly different considerations in thetwo cases, I wish to remind myself of the observations ofT. S. Fernando J. which I have quoted earlier and the dictum ofViscount Simon which he referred to therein. Having regardto the vastly different considerations in the present case, the observationsof Rose C.J. and Gratiaen J. can at most be taken as obiter dicta exceptperhaps for the meaning to be attached to a “ determination ” whichtoo, with great respect, is in my view too narrow a definitionto be immutably applied to every different set of facts and circumstances.I should therefore like to consider the present problem independentlyof this decision, the submission of Counsel for the appellants repeatedlymade to us being that their appeal was against the determination itselfand its validity in terms of Section 82A (1) (a) and not againstthe erroneous decision in regard to the adequacy of security even thoughthat erroneous decision is the primary basis on which the attack onthe determination i3 founded. The argument of Counsel for therespondent, as I have indicated earlier, is based on the assumptionthat the appeal, so far as this point is concerned, is against a decision■on a preliminary matter which is not provided for in section 82A unlessthat decision had the effect of finally disposing of the petition (section82A (1) (b)) and that the appellant therefore cannot canvass that decisionbecause it is no part of the “determination” under section 81. Headded that this court has no roving jurisdiction as it were to review'all illegalities committed by an Election Judge in the course of the trialbut only a limited jurisdiction to review a determination on a groundof law. The answer of Counsel for the appellants to this submissionis that when a right of appeal to the Supreme Court is conferred bystatute on a party, all the rights that accrue to him, when he has a rightof access to the Appeal Court, are available to him and that he canask for relief on any errors of law pertaining to the judicial process whichculminated in the determination. The appellants would thus be entitledto challenge or criticise the jurisdiction of the election court either tocommence the hearing or to continue the hearing after a certain stagewhen the jurisdiction ceased to exist by virtue of a legislative prohibitionagainst further proceedings being taken.
Before I express my own views on these respective submissions Iconsider it useful to examine the attitude adopted by this court sittingin appeal to questions which were raised before it and which did not•have any bearing on the determination. The very first case after an
G. P. A. SILVA, S.P.J.—Distanayake v. Abeyringhe
33
appeal was provided for the parties from a determination by an ElectionJudge was that of Thambiayah v. Eulaeingham 50 N. L. R. 25. Infact it may be said that the Amending Act No. 19 of 1948 was introducedfor the special purpose of giving an opportunity to the appellant, whodid not previous to the Act enjoy it, a right of appeal againstthe determination under section 81. It is both interesting and significantto note that the first argument, which was ably advanced by therespondent himself by way of a preliminary objection and which appearsto have been treated with such great respect by the court thatit necessitated the court calling upon both the appellant’s Counseland the Attorney-General for assistance, was not one which had theremotest bearing on the determination under section 81 against whichan appeal was provided for by the amending legislation. It was achallenge to the constitutional validity of the legislation itself whichconferred the right of appeal and therefore to the jurisdiction of theSupreme Court to hear the appeal. The Appeal Court does not appearto have made any endeavour to shut out the respondent from puttingforward his argument on the ground that he had an appeal only againstthe determination under section 81 and not in regard to the validity ofthe amending legislation nor was his preliminary objection sought tobe met by Mr. H. V. Perera for the appellant or Mr. Alan Rose (as hethen was) Attorney-General, as amicus curiae, with any contention tothat effect. The preliminary objection was thus seriously accepted byall parties and endorsed by the Court as a legitimate matter to be raisedbefore it on an appeal under section 82A (1) (b) which specifiedthe determination under section 81 as being the only matter againstwhich an appeal lay on a question of law but not otherwise. This caseappears to me to support the contention of the appellant that when aright of appeal is allowed to a party to come before the Supreme Court,he is not confined in his argument only to the questions of law whichvitiate the ultimate finding referred to as the “ determination ” in section81 but that he can raise any questions as to jurisdiction and/or anyother matters of law. If that court took the view that the appeal canonly be against the determination, it seems to me that the preliminaryargument raised by the appellant could not have been entertained..Further, the Court invited submissions from both sides as well as fromthe Attorney-General, as amicus curiae, and gave its considered decision.which showed that the appellant was not confined to a criticism of thedetermination.
In the recent election petition appeal No. 4 of 1970 relating to theJaffna Electoral District, which was argued before My Lord the ChiefJustice, my Brother Samerawickrame and myself, the main argumentcentred round the rejection of a medical certificate on behalf of thepetitioner and the reiusal of the Election Judge to grant a postponementof the trial and the consequent violation of a rule of natural justicewhich deprived the petitioner of being heard. The argument was 1
1 (1948) 60 N. L. R. 25.
34
Q. P. A. SILVA, S.P.J.—Dissanayake v. Abeyeinghe
not advanced at any stage on the basis that this ruling affected thedetermination. Here too the Court entertained the argument andpronounced its decision that the application for the postponementwas properly refused. We did not at any stage refuse to hear submissionson this aspect on the ground that no appeal was available to the appellantfrom incidental orders made by the Election Judge in the exercise ofhis discretion or that such order was no part of the determination againstwhich alone he had an appeal. Far from taking such a course the Courtconsidered all the facts relating to the postponement, the grounds onwhich a postponement should be allowed and such other matters anddevoted a good portion of the judgment to this aspect without a singlereference to its bearing on the determination. Another point whichwas listened to and adjudicated upon was whether, when counsel forthe petitioner stated to the Election Court that he had no instructionsin regard to the second charge, it was tantamount to a withdrawal ofthe petition and whether the Election Judge should have thereafterfollowed the procedure prescribed in Election Petition Rules for a case ofproposed withdrawal and substitution of another petitioner in placeof the petitioner who filed this petition. This point of law too was notraised on the ground of its possible impact on the determination—noteven a suggestion to that effect was made either in the argument or inthe judgment—but on the ground that the procedure violated theimperative provisions of the Order. Both parties were heard at lengthand the matter was adjudicated upon even though it was not part ofthe determination reached by the Election Judge. This decision toofortifies me in the view that in an appeal to this Court an appellant isnot restricted^ criticisms of the determination under section 81 in thestrict sense but is entitled to assail any errors of law committed in thecourse of the proceedings at the trial of the election petition. In thecase of Ratwaite v. Piyasena1, 69 N. L. R. 49, where each of the threeJudges wrote a separate judgment, the main point argued did not concernthe determination at all but the constitutional validity ofthe appointment of the Election Judge by the Governor-General andtherefore his jurisdiction to hear the petition, and only one shortparagraph at the conclusion of the main judgment dealt with thedetermination. Similarly in the case of David Perera v. Peirisa, 72
N.L. R. 217, several legal questions that did not form part of thedetermination were entertained and pronounced upon by the court.
And this, I think, is as it should be. For, when this Court is given thepower to entertain an appeal on a question of law the Legislature couldnot have intended that any illegality which the Election Courtcommitted in the course of the proceedings should be condoned butthat only an illegality which affected the actual “ determination ”should be dealt with. To take a few examples, supposing for instancethe Election Judge was nominated by theChief Justice under section 78
(19es) 69 jV. L. R. 49.
(1969) 72 N. L. R. 217.
O. F. A. SILVA, S.P.J.—Dissanayake v. Abeyringhe3t
for a specified period or, after he was so nominated, he ceased to bea Judge of the Supreme Court and an election petition was heard anddetermined by him despite objection by the respondent after theexpiration of the nominated period or after he had ceased to be a Judgeof the Supreme Court. In an appeal to this Court against thedetermination, if the only point taken is one of absence of jurisdictionby reason of the violation of,the provisions of section 78,1 cannot thinkthat this court can resist this objection and dismiss the appeal on theground that it did not relate to the determination.. Supposing againan election petition is filed out of time contrary to the mandatoryprovisions of section 83 (1) of the Order-in-Council and even thoughthere is an application to the Election Judge for a dismissal of the petitionon that ground he chooses to try the petition and make a determination,I doubt very much that the Appeal Court will condone the error andaffirm the decision on the ground that that error was no part of thedetermination. If one considers the appeal in the recent case ofWijeyewardene v. Senanayake1, 74 N. L. R. 97, which was preferredunder section 82A (1) (b), the decision of this Court confirms the principlethat the non-observance of the provisions of the Order-in-Council cannotbe condoned. This Court consisting of My Lord the Chief Justice,My Brother Sirimane and myself affirmed the finding of the ElectionJudge that the provision of section 80A (1) (6) which requires thepetitioner to join as respondents to the election petition every personagainst whom allegations of any corrupt practice are made in the petition,was mandatory and that the failure to comply with it rendered thepetition liable for dismissal and secondly, that the requirement in section80B (c) to state in the petition the material facts on which the petitionerrelies which was not compbed with by the petitioner in that case wasalso a mandatory provision. All these provisions which would operatein the hypothetical cases which I have referred to and in the case ofWijeyeivardene v. Senanayake (supra) were considered as mandatoryowing to the use of the word “ shall ” in connection with, the requirementimposed by the Statute. The logical result of the failure to complywith such provisions would of course be to render invalid any subsequentproceedings, the non-compliance being fatal to their validity. Thisresult would indeed have followed as a necessary corollary to the decisionof this Court in the case of Wijeyewardene v. Senanayake had the ElectionJudge proceeded to hear the petition having overruled the objectionraised against the non-compliance with the provisions referred to. Thesereasons lead me to the irresistible conclusion that when an appeal comesup before this Court from a determination of an Election Judge theonly restriction which is imposed on this Court is that it cannot interfere.with the' decisions of the Election Judge on a pure question offact simpliciter.' It can however look into any errors of law committedby the Judge in the course of the proceeding culminating in thedetermination. It will in my view be monstrous for this Court to renderitself so impotent aB to ignore and condone every error in law, however
* (1971) 1i N. L. R. 97.
38Q. P. A. SILVA, S.P.J.—Dissanayake v. Abeyainghe
blatant it may be, and to look at only any errors of law containedin the determination strictly so called. It is I think the duty of thisCourt to examine the entire proceeding leading up to the determinationand to affirm, vary or reverse the determination whenever the•determination itself is invalid or it is tainted by reason of errors of lawcontained therein.
I have referred to the irregularities dealt with in the previous casesas they form a useful background to consider the illegality of the entireproceeding complained of in this case. In comparison with theprovisions referred to in the cases cited above as mandatory theprovision contained in Rule 12 would appear to be one sui generis.While Rule 12 (2) contains the mandatory requirement similar to thosefound in sections 80A and 80B, the requirement in Rule 12 (3) is suchas is not found anywhere else in this Order. I might even say that thewording used imposes a clear prohibition against further proceedingsthe like of which I have not come across in any other enactment, norhas counsel for either party been able to bring to our notice any suchenactment. If in the earlier cases referred to the non-compliance withthe mandatory provisions of sections 80A and 80B have been consideredas mandatory rendering the petition liable for dismissal and if in everycase decided since the State Council Elections of 1931 the insufficiencyof security has resulted in the dismissal of petitions and the SupremeCourt has reversed such a finding only where it considered that theElection Judge was wrong in his decision that security was insufficient,this Court has no justification whatsoever to hold that even thoughthe security is insufficient as in this case, the subsequent proceedingswere valid proceedings on which a legal determination can be based.I should have thought that even if Rule 12 (1) and (2) stood alone theperemptory nature of the provision would have been sufficient for acourt to dismiss an election petition if the petitioner had not compliedwith the provisions contained therein and this has been the courseadopted by this Court in the cases which I have referred to fornon-compliance with what has been called a mandatory provision. Whilethese provisions are themselves adequate for the purpose theenactment by the Legislature of Rule 12 (3) which is almost superfluousin the circumstances can only be interpreted as an unmistakableinjunction which iB intended to prohibit a court from having any furtherproceeding on an election petition if the security as provided in thiBRule is not given by the petitioner.
Maxwell on “Interpretation of Statutes”, 11th Edition at page•367, enumerates a number of instances to illustrate the principle that•enactments regulating the procedure in courts are imperative and notmerely directory. The respect, shown in the English courts to suchprovisions was exemplified in a case referred to among these instancesiVaux v. VoUans1 (1833) 2 L.J. K.B. 87) and appears to support the
1 (1833) ZL.J.K. B.S7.
G. P. A. SILVA, S.PJ.—Dussaiiayuke v. Abeysinghe
37
view which I am inclined to take. This case illustrates the extremerigour with which the courts enforced compliance with statutoryrequirements which were imposed as conditions precedent to an actionbeing brought. Even this requirement however does not appear tome to reach the level of the very strict requirement insisted upon byBuie 12 (2) read with Rule 12 (3) of the Order-in-Council with whichwe are concerned. I am confirmed in my view by the further comment■contained at page 375 of this thesis:—
“ Where, however, the act or thing required by the statute is acondition precedent to the jurisdiction of the Tribunal, compliancecannot be dispensed with, and if it be impossible the jurisdiction fails.It would not be competent to a court to dispense with whatthe Legislature had made the indispensable foundation of itsjurisdiction. •”
A further aspect that remains for consideration is whether the wrongdecision by the Election Judge in regard to the sufficiency of securitycan validate the subsequent proceedings. I am emphatically of theview that such a contention cannot be supported. When this Courtis called upon to decide the matter the question whether security issufficient must surely depend on the decision that this Court takesthereon. To decide otherwise and to give a construction that thedecision of the Election Judge on this matter must prevail would beto read into Rule 12 a complete proviso that where however the securityis considered adequate by the Election Judge and further proceedingsare had such proceedings will be deemed to be valid despite the prohibitioncontained in Rule 12 (3). Such a course would in my opinion be analtogether unwarranted circumvention of the imperative legislativeprohibition of Rule 12 (3) and cannot in any way be justified. In thisconnection it is important to bear in mind that it is not as it were thatthe objection.was not taken by the 1st respondent-appellant beforethe Election Judge at the appropriate stage and that he is raising thematter for the first' time in this court. He raised his objection to furtherproceedings being taken before the trial court and applied for a dismissalof the petition and having failed there as a result of the view which theElection Judge took which we find to be erroneous, he is now raisingthe same point in appeal to support his submission that all the proceedingssubsequently taken were without jurisdiction and irregular. Forthis Court to hold that the Election Judge had a right to decide thatmatter which cannot be done except by reading into the Rule anon-existent proviso will be to misconceive the functions of a courtwhose clear duty is to interpret the law as laid down by the Legislature•and not to indulge in a naked disregard of the legislative provision.If it was intended that the decision of the Election Judge on this mattershould be final and that it cannot be canvassed in appeal, it seems tome that the Legislature could well have done so. The Legislature could-also have had recourse to the simpler expedient of using a phrase likeif in the opinion of the court the security is sufficient ” or “ if the
38
Gt. P. A. SILVA, S.P.J.—Dissanayake v. Abeysinghe
court is satisfied that security is sufficient ” further proceedings canbe had on the petition. For, such language is not unknown to ourlaw—vide Rules attached to the Appeals (Privy Council) Ordinance,Chapter 100 dealing with the security to be given by an appellant. Butthe Legislature did not adopt any of these courses. If one examinesthe various provisions of this Order itself one would find that finalityagainst a review by a superior court has been given even to certainadministrative decisions of the Commissioner of Elections, the presidingofficer at an Election or the returning officer at the counting of votesand such decisions cannot naturally be questioned whether they beright or wrong. As no finality has thus been given to the decision ofan Election Judge in regard to the sufficiency of security it isnot permissible for this Court to hold that a wrong decision by an ElectionJudge is immune from review. So to decide would be tantamountto this Court vesting the Election Court with a jurisdiction which theLegislature clearly prohibited it from assuming. One can never overlookthe fact that the Election Court is a creature of a statute, theOrder-in-Council, and that all the powers of an Election Judge arederived from that statute alone. He cannot travel outside the powersgiven by the statute nor can he ignore any prohibition imposed on theexercise of his powers. An Election Court cannot therefore by a wrongdecision in respect of a matter which is a condition precedent to theexercise of jurisdiction, vest itself with a jurisdiction which it wouldpossess only if the condition precedent is satisfied.
A provision which I can think of as having a resemblance in somerespects to the prohibition contained in Rule 12 (3) and from whichan analogy may be drawn is to be found in the Conciliation BoardsAct No. 10 of 1958. Section 14 of this Act imposes a prohibition onthe institution of certain types of civil proceedings arising in an areain which a panel of conciliators has been appointed unless a certificateis produced by the plaintiff from the Chairman of such panel as providedby this section. This is equivalent to a provision that if a certificatefrom the Chairman of a panel of conciliators is not produced in such acase the Court shall not entertain any proceedings. If a court, forinstance, entertains a plaint in such a case and completes the trial afterrejecting an objection on the ground of the absence of the certificatereferred to in section 14 and this Court on appeal finds that that Courtwas wrong in rejecting such objection, I think that this Court will haveno alternative but to set aside all the proceedings at the trial on theground that they were illegal as being contrary to the expressprohibition contained in the said section. The merits of the case on thefacts will be an altogether irrelevant consideration for this Court inarriving at its decision whether the proceedings were regular.
A further argument advanced by counsel for the appellants was thatthe refusal by this Court to interfere with this order would offend afundamental principle of equity. For, section 82A (1) (b) specificallyallows an appeal from a wrong decision of an Election Judge dismissing
G. P. A. SILVA, S.P.J.—Dissanayake v. Abeysinghe
39
a petition on the ground of inadequacy of security. If, as I stated earlier,this Court on appeal finds that the Election Judge was wrong in hisdecision, such decision would be set aside and the trial of the petitionwould be proceeded with. A petitioner would thus have a remedyagainst a wrong decision by the Election Judge in regard to the adequacyof security. If we adopt the argument of counsel for the respondentthat section 82A (1) (a) does not permit this Court to correct an erroneousdecision regarding security in an appeal by the original respondentthe resulting position would be that the respondent only will have norelief from this Court against the Election Judge’s wrong decision onthe self-same matter in which the petitioner is granted relief. Thisseems to me to violate an elementary and fundamental principle andI should be most reluctant to subscribe to such an iniquitous principleunless the Legislature so laid down in language which is clear andunambiguous. For the many reasons I have given earlier, I do not thinkthat the Legislature has either clearly laid down that such a result Bhouldfollow a wrong decision by the Election Judge or even given anyindication of such an intention. On the contrary section 82A (1) (a)taken by itself as well as the attitude taken by this Court in previouscases appealed from persuade me to the conclusion that a just andequitable construction is available, namely that while an aggrievedpetitioner whose petition is dismissed can appeal to this Court undersection 82A (1) (b), an aggrieved respondent caq complain to this Courtof such erroneous decision in his substantive appeal. This principle ofnot construing an enactment so as to result in an obvious injustice isreferred to in the case of Rex v. Tunbridge 1, (1884) 13 Q.B.D. 339 at342 where Brett M.R. observed
“ If an enactment is such that by reading it in its ordinary sense youproduce a palpable injustice, whereas by reading it in a sense which itcan bear, although not exactly its ordinary sense, it will produce noinjustice, then I admit one must always assume that the Legislatureintended that it should be so read as to produoe no injustice.”
These considerations constitute added reasons for a court to construesection 82A (1) (a) not in the narrow sense in which counsel for therespondent has invited us to do but to read it in a sense that it can bearso that it will not produce the palpable injustice of one party to a suitbeing given a right of appeal against an erroneous decision while theother party iB denied such a right.
*
■When I consider the eminent justice of this principle, far from agreeingwith the submission of counsel for the respondent on this matter, itoccurs to me that it may well be the recognition of this very principlethat prompted the Legislature to introduce the provision in section 82A
(b) with the object of rectifying an injustice resulting to thepetitioner by the enactment of section 82A (1) (a). For the Legislaturemay have thought that the enactment of section 82A (1) (a) gave the
‘ (1884) 13 Q. It. D. 339 at 342.
40
G. P. A. SILVA, S.P.J.—Dissunayaka v. Abeysinghe
right to a respondent whose petition was heard and decided a right ofappeal against the determination and incidentally a right to complain-of wrong decisions by the Election Judge on any matters of law thatoccurred during the trial, while a petitioner against whom a wrongdecision was made was left without a remedy in respect of such wrongdecision which resulted in a dismissal of the petition, before the trial wasproceeded with on its merits. As this situation was unfair to a petitionerand such unfairness was exemplified in the case of Ramalingam v.Kumaraswamy (supra) the Legislature would have provided by section.82A (1) (b) a remedy for the petitioner as well against such wrongdecisions which was earlier available only to the respondent. If thatview of the matter is correct, one is compelled to the conclusion that,since the enactment of section 82A (1) (a) a right to complain againstincidental errors of law such as a wrong decision on the adequacy of'security, proper issue of notice, joining of necessary parties and similarmatters was always available to the respondent or an appellant oncethere was a determination, and that section 82A (1) (b) was enactedwith the sole object of setting right the injustice suffered by a petitionerwhose petition was prematurely dismissed by reason of an erroneousdecision of the Election Judge on such preliminary matters. In otherwords section 82A (1) (b) was intended to give a petitioner the right ofappeal in certain matters which section 82A (1) (a) conferred only on a-respondent. For it would, I think, be quite -wrong to attribute to the-Legislature such an unreasonable intention as to provide for an appealonly to the petitioner who is aggrieved by a wrong order and to denyit to the respondent, which is what counsel for the petitioner wishes us-to do. Counsel’s answer to this is that there was a stage before ActNo. 19 of 1948 was passed when neither party had an appeal and that.,if the will of the Legislature is that the petitioner only should enjoy aright of appeal, there is nothing that the courts can do to relieve therespondent. This would, in my opinion, be a superficial way for a courtto approach this problem. The position prior to Act No. 19 of 1948can be easily understood. The Election Judge was made the finalarbiter in the trial of an election petition and both parties were equallybound by his decision. Here there is no unfairness because, whether anerror was committed to the prejudice of the petitioner or to the prejudiceof the respondent, neither of them had a remedy. But to say that the-Legislature deliberately introduced a provision in order to give a rightof appeal to one party and in effect to deny it to the other in respectof an error committed by the Election Judge in regard to the same matterwould be a preposterous proposition which offends one’s elementary.sense of justice. I do not therefore see any reason to attribute such-•an intention to the Legislature and to give the provision which we areconsidering the interpretation that counsel commends for our acceptancewhen another interpretation which is quite consistent with reasonableness-on the part of the Legislature can well be given. When one analyses-the problem in this way the view is inescapable that a right of appeal-to the respondent in such a situation was already available in section.
G. P. A. SILVA, S.P.J.—Dissanayak« «, Abeyringhe
41
82A (1) (a) and that section 82A(1) (b) supplied an omission by grantinga remedy to the petitioner who was aggrieved by an allegedly wrongdecision resulting in a dismissal of his petition. It is also possible thatthe Legislature in enacting section 82A (I) (a) originally intended to giveboth parties a right of appeal to the Supreme Court from a determinationwhich right did not exist before but overlooked the possibility of apremature end to a petition, which can only be to the prejudice of thepetitioner, and a consequent desire on the part of the petitioner to appealfrom that order. When it thereafter realised that possibility it enactedsection 82A (1) (b) and supplied the omission.
For the reasons stated above I do not find it possible to resist theconclusion that the respondent-appellant has a right in this appeal tocanvass the decision of the Election Judge on his application for thedismissal of the petition on the ground of insufficiency of the securitydeposited by the petitioner. The security being in my view insufficienthaving regard to the number of charges in the petition, the decision ofthe Election Judge should have been in favour of the appellant and Buie12 of the Third Schedule left the Election Judge with no option but todismiss the petition and to have no further proceedings thereon. Asto why the Legislature has attached such importance and sanctityto the quantum of seourity is. not for this court to question. ■ The clearand imperative requirement of the Buie is that the Court can make onlyone decision if security “ as in this Buie provided is not given”. For acourt to make any other order, if the security is not in accordance withthis Buie would be to treat the Legislature with contempt and to holdthat an illegal procedure can produce a legally valid result and it is notopen to any court to adopt such a course. The fact that in the longline of election petition cases dating back to 1931 no court has evertaken such a course, confirms the peremptory nature of this Buie.
As I had occasion to observe in my dissenting judgment in the recentappeal in the Batnapura Election Petition case where the rights ofthe elected candidate and the rights of several thousand voters of theelectorate are concerned, even if an enactment admits of two possibleconstructions, one of which results in harshness and the other does not,,a court must lean towards the view that avoids the harshness. On thisprinciple even if two interpretations are available in regard to section82A (1) (a), both of which are reasonable, a court should prefer theinterpretation that is favourable to the elected candidate. In regardto the question of the adequacy of the security however such a difficultydoes not confront me as, in my view, the language of the enactment isclear and unambiguous and there is only one construction possible andthat is for the dismissal of the petition if the security is insufficient.
This being my view of the legal issues involved in this appeal, I considerit unnecessary to deal with the submissions on the matters of law regardingthe determination itself. 1
1 SBawela t>. Wijesundera (1971) 7t N. L. B. 285.
~ 9- VolumeLXXV •
42
S1RIMANJE, J.—Dvssanayakc v. Abeyainghe
I appreciate that in this case the Election Judge has heard all theevidence and arrived at a finding of fact that the election is void inconsequence of a false statement made by the 4th respondent as agentof the first respondent. As I have pointed out earlier, however, whena court has to consider a pure question of law, it has to take an objectiveview of the point involved uninfluenced by the merits of the case on thefacts. An approach to the problem with a mind which is influencedby the facts must necessarily warp one’s judgment and render thedecision erroneous. It is necessary therefore that one should notconfuse one’s imagination by a consideration of the facts which would beirrelevant for the purpose of arriving at a decision on the legal issueinvolved, even though such decision will result in a reversal of thedecision on facts taken by the trial court. This is indeed a situationthat courts of law are faced with very often in the sphere of criminallaw and convictions have so often to be set aside however strong thefacts may appear, if the trial court has been guilty of a proceduralerror laid down by law. The decision I have reached will thus resultin a reversal of the declaration by the Election Judge avoiding theelection of the 1st respondent. So far as the 4th respondent Vajira-buddhi Thero is concerned, however, this decision does not in any mannerstand in the way of an independent prosecution against him for a corruptpractice of making a false statement in terms of section 58 (I) of theOrder-in-Council followed by the loss of his civic rights as contemplatedby section 58 (2), in the event of a conviction.
For the reasons stated above, I allow the appeal, reverse the decisionof the Election Judge and hold that the 1st respondent was duly electedas Member of Parliament for the Nuwara Eliya Electoral District,No. 53.
SlBIMANE, J.—
The 1st Respondent, who was returned as the Member for the NuwaraEliya Electorate at the last General Election, was unseated on the groundthat the 4th Respondent, his Agent, had made a false statement affectingthe personal character and conduct of the opposing candidate, WilliamFernando.
These appeals are by the 1st and the 4th Respondents and wereargued together.
The main matter urged at the hearing of these appeals was that thesecurity furnished by the petitioner was not in accordance with theprovision of Rule 12 (2) in the Third Schedule to the Ceylon (ParliamentaryElections) Order-in-Council, Chapter 381, and the petition should havebeen dismissed under Rule 12 (3). The point was raised before the trialJudge, and after hearing arguments lasting for many days, he heldthat the sum of Rs. 12,500 furnished as security was correct on hisinterpretation of that Rule.
SIRIMANE, J.—Diaaanayake v. Abeyainyhc
43
Is there a right of appeal ?
An “ Election Judge ” is created by this particular statute (Chapter381). I think it is well established, that an appeal against the orderof a special tribunal (such as an Election Court) must be expresslygranted (see, for example, TiUekawardene v. Obeyesekere133 N. L. R. 193).
The right of appeal under this Chapter, as it exists today, is to be foundunder section 82A (1) which provides as follows:—
“ An appeal to the Supreme Court shall lie on any question of law,
but not otherwise, against—
the determination of an Election Judge under section 81, or
any other decision of an Election Judge which has the effect of
finally disposing of an election petition.”
Before 1948, there was no appeal at all against any decision by anElection Judge. The right of appeal set out in 82A (1) (a) was grantedby an amending Ordinance, 19 of 1948. That was the only right ofappeal until 1959.
In the course of hearing an election petition, the Election Judge mayhave to make many “other decisions” before the determinationcontemplated in section 82A (1) (a). That section requires an ElectionJudge at the conclusion of the trial to determine whether a member,whose election is challenged, “ was drily returned or elected or whether the
election was void” An Election Judge may be called upon to decide
at a very early stage of the proceedings whether, for example, a particularBuie has been complied with. In 1959 by Ordinance 11 of 1959, thelegislature granted a further limited right of appeal against “ any otherdecision of an Election Judge ” as set out in 82A (1) (b). The decisionmust be one which has the effect of finally disposing of an electionpetition.
An order holding that the security furnished is insufficient, resultingin a dismissal of the petition is, therefore, an appealable order onlybecause it finally disposes of the petition, and the right of appeal againstsuch an order is expressly granted, but a decision that the securityfurnished is sufficient is not an appealable order under the second limbof section 82A (1), and Counsel for the appellants rightly stated that theydo not seek to come under that limb.
It must be remembered that section 82A (1) (a) grants a right of appealon a point of law from a determination whether a Member was dulyreturned, or whether the election was void, and nothing else.- A decisionat a preliminary stage that the security furnished is sufficient and thepetitioner is entitled to be heard, has, in my opinion, nothing to do withthe determination after the conclusion of the trial contemplated in section81.
(1931) 33 S. L. B. 193.
44
SIRIMANE, J.—Diasanayake v. Abeyainghe
It was argued that when the security furnished is insufficient, theJudge was obliged to dismiss the petition ; and if he wrongly decides thatthe security is sufficient and proceeds with the hearing and determinesthat a candidate is not duly elected, such determination, it was submitted,was not a valid determination as the trial Judge had no jurisdiction to dowhat he did.
I have carefully considered this argument, but I am unable to agree.
The question whether sufficient security has been furnished is apreliminary matter which must be taken before the trial Judge. Thepoint was, in fact, raised in this case, and argued at length.
It was a question which the trial Judge had jurisdiction to decide, andhis decision on that question was one made within jurisdiction. The realquestion is whether the legislature has given a right of appeal from sucha decision. In my opinion, it has not.
In my view, it is fallacious to argue that the jurisdiction of the electionJudge to hear and determine a petition is dependent on the decision ofthe Supreme Court on the quantum of security. It is for the trial Judgeto decide such a preliminary point. I think, the election Judge consideringhis status could be said to have total (as opposed to limited) jurisdictionto decide the question of security. There is a passage in the judgmentof The Queen v. The Commissioner of Income Tax1 (21 Q. B. D. 313) referredto by Cannon, J. in Muheyadin v. Thambiappah 2 (46 N. L. R. 370 atpage 372) which sets out the position thus:
“ The Legislature may entrust the tribunal or body with a jurisdictionwhich includes the jurisdiction to determine whether the preliminarystate of facts exist aB well as the jurisdiction on finding that it doesexist to proceed further or do something more. When the Legislatureare establishing such a tribunal or body with limited jurisdiction, theyalso have to consider whatever jurisdiction they give them, whetherthere shall be any appeal from their decision, for otherwise there willbe none. In the second of the two cases I have mentioned, it is anerroneous application of the formula to say that the tribunal cannotgive themselves jurisdiction by wrongly deciding certain facts to' exist,because the Legislature gave them jurisdiction to determine all thefacts, including the existence of the preliminary facts on which thefurther exercise of their jurisdiction depends. ”
The local case of Ramalingam v. Kumarasamy 3 (55 N.-L.R. 145) decidedin 1953 also, in my view, throws much light on this point.
The petitioner in that case failed to comply with a preliminary rule,
e., he failed to serve notice of the petition on the respondent as requiredby Rule 15. The petition was dismissed. In those days, the only rightof appeal granted was against a determination whether a candidate wasduly elected or not. There was, of course, no decision on that point in'
1 21 O. B. D. 313.* 11945) 40 N. L. B. 310 at 372.• {1953) 55 N. L. B. 145.
SERMANE, J.—Ditsanayakt v. Abeysinghe
45
that particular case, but the reasoning in the judgments clearly showsthat the Legislature did not grant such a right on “ other decisions ” ofthe Election Judge. A right was granted in a limited way only in 1959when the decision had the effect of finally disposing of the petition.
As I am of the view that there is no right of appeal from the trial Judge’sdecision on the quantum of security it is unnecessary to express anopinion on whether the security tendered in this case was, in fact, adequateas strongly contended for by the respondents. But I would like to saythat after the amendment of Rule 12 (2) in 1970, the decision in Perera v.Bandaranaike1 (68 N. L. R. 241) may need re-consideration.
Counsel for the appellants posed the question whether it would notbeananomaly to grant a petitioner a right to appeal if he is dissatisfiedwith the trial Judge’s decision on the adequacy of security, and denythat right to a dis-satisfied respondent. But, I think the Legislaturedid not want interlocutory appeals in election cases which, itwas hoped, would be speedily disposed of. Hence the amendingseotion 82 A(l) (b) gave a right of appeal on a decision on preliminarymatters only when they had the effect of finally disposing of the petition.Besides, if at the conclusion of a trial it has been conclusively provedthat a candidate has been guilty of bribery, intimidation, and othercorrupt and illegal practices, would it not be an anomaly if he is entitledto sit in Parliament, if it could be successfully argued in appeal thatthe trial Judge had erred on the quantum of security 1
Another point raised was that the affidavit filed with the petition asrequired by section 80B (d) was defective. This point, too, was arguedat length before the trial Judge who gave his order against the respondentand decided to proceed with the hearing. On the same reasoning, thereis, in my view, no right of appeal against that decision. I might alsoadd that the section requires that the affidavit should be in the prescribedform. The Legislature has omitted to prescribe a form, and in thecircumstances the petitioner has done his best causing (in my view) noprejudice at all to the respondents.
In my opinion, a.trial Judge’s decision on preliminary matters suchas those set out above have no connection whatsoever with thedetermination at the conclusion of the trial whether a candidate has beenduly returned or not.
I do not find the decision in Wijewardene v. Senanayake 8 (74 N. L. R. 97)of mnch assistance in the present case. There, the petitioner failed toadd persons against whom allegations of corrupt practices were made,as parties in the case, and the trial Judge dismissed the petition. ' Anappeal against such an order is expressly granted unlike in the twopreliminary matters in this case.
The last point urged by Counsel for the appellants as affecting the finaldetermination is the document P21 and the use of it made by the Judge.
(1986) 68 N. L. R. 241.
* (1971) 74 N. L. B. 97.
46
SIKJMAJJE, J.—Dissanayake v. Abeysinghe
In the course of the cross-examination of the 4th respondent, it wassuggested to him that he had made some defamatory or insulting remarksabout the then Leader of the Opposition, which drew the attention of thecrowd and made a section of it restive. While admitting that he madesome reference to the Leader of the Opposition, he denied that the wordsused were defamatory. He also said that he never made personal attackson persons. He was then asked whether at an election meeting heldin 1965 he had made similar statements about the Leader of theOpposition. The remarks he is alleged to have made on that occasion,which constituted a fairly long passage, were read out to him from aSinhalese newspaper. The passage put to the witness had not beentaken down by the stenographers and Counsel for the petitioner markedthe passage as it appeared in the newspaper as P2I. An objection wasraised by Counsel for the 1st Respondent, but the trial Judge allowed thepassage to be marked, and a translation of it put in. The record showBthat the 4th respondent said that he was not sure whether he spokethose words or not, but that because (so the witness said) he alwaysthinks before he speaks it was likely that he had been mis-reported.
Counsel who marked the passage explained that the passage in thenewspaper was so marked only for the purpose of identification as thestenographers were not taking down what was being put to the witnessin Sinhalese.
It is obvious, however, that the newspaper report cannot be used tocontradict a witness, and in this instance was not so used but only to askhim whether he used those identical words.
Did the trial Judge misuse P21, and was his assessment of the 4thRespondent’s evidence affected thereby ?
I have given this matter my anxious consideration and reached theconclusion that even if the trial Judge attached undue importance toP21, yet it is impossible to say that his findings of fact were vitiatedthereby.
The trial Judge when dealing with the denial of the 4th Respondentthat he used defamatory words or that he referred to the opposingcandidate at all said that he was of the view that the 4th Respondentwas a person who was “ capable of being carried away by his own oratory ”and that at election meetings gibes at personalities were delectable^ to acertain section of the audience. He then went on to say that the 4thRespondent himBelf had uttered such a statement earlier if the newspaperreport was accurate.
But in assessing the evidence, the trial Judge, who is one withconsiderable experience, and held, in fact, rejected a good deal ofthe evidence placed before him by the petitioner in connection – withanother charge, reminded himself that the petitioner must prove hisallegation “ with the certainty required for the proof of a criminal charge ” .
SAMERAWICKBAME, J.—Diatanayake v. Abtyringha
47
At other places, in his judgment, he said that he must have theutmost confidence that the evidence put forward by the petitioner wasentirely reliable, and that he should give the benefit of a reasonabledoubt as to a person in the position of an accused, when a persondenies what he has been accused of saying.
He approached the evidence in this way, and said that the evidenceled by the Petitioner brings conviction to his mind.
On an appeal, which is on a question of law only, I am unable to saythat the marking of the news para, as P21 and the use made of it havevitiated a trial Judge’s findings of fact.
In my opinion, the appeals should be dismissed with costs, which I fixat Bs. 1,500.
SaMEBAWICKBAME, J.—
It wab urged on behalf of the appellants that the petition was notproperly constituted inasmuch as it was not accompanied by a properaffidavit as required by the provisions of 8. 80 B (d). I think this pointcannot be' upheld and I am in agreement with the finding in respect of itmade by G. P. A. Silva, S.P.J., and the reasons stated in his judgmentfor the finding.
It was next contended that security had not been furnished inaccordance with the provisions of Rule 12 (2) in that the amount depositedwas inadequate and that the petition should have been dismissed interms of Rule 12 (3). This matter was raised before the learned trialJudge prior to the hearing of the trial and he made order holding that theamount of security furnished was sufficient. Counsel for the petitioner-respondent submitted that this matter could not be raised as theappellants had no right of appeal against that order.
Seotion 82 A (1) provides :—
“ An appeal to the Supreme Court shall lie on any question of lawbut not otherwise, against—
(а)the determination of the Election Judge under Section 81, or
(б)any other decision of an Election Judge which has the effect offinally disposing of an election petition. ”
Seotion 81 reads :—
“ At the conclusion of the trial of an election petition the ElectionJudge shall determine whether the Member whose return or election iscomplained of, or any other and what person, was duly returned orelected, or whether the election was void, and shall certify suchdetermination in writing under his hand. "
48
SAMERAWICKJRAME, J.—Dissanayake v. Abeysinghe
An appeal is not a matter of course but must be expressly given (videIn re Wijesinghe1—16 N. L. R. 312 and 39 Indian Appeals 197)®. Theright of appeal granted by s. 82 A (1) (a) is a limited one. It is an appealagainst the determination whether – the Member was duly elected.Learned counsel for the appellants used “ final determination ” in thecourse of their arguments but the word “ final ” does not appear in thesection. The decision that security is sufficient has nothing to do withthe determination at the conclusion of the trial whether the member wa6duly returned or elected, or whether the election was void. Such adecision therefore cannot be canvassed in an appeal against thedetermination.
It was within the jurisdiction of the Election Court to determine theadequacy or otherwise of the security furnished. Being a SuperiorCourt a judgment by it on any relevant matter against which there isno appeal is conclusive.
I am therefore of the view that the submission that the petition shouldhave been dismissed on the ground that the security furnished wasinsufficient must be rejected.
In view of the finding at which I have arrived, it is unnecessary toconsider and adjudicate on the arguments in regard to the adequacy ofthe security. I am however of the view that the learned trial Judge’sorder that the security furnished was sufficient is correct and had it beennecessary to go into the matter I would have upheld his order.
I am satisfied that no ground has been shown for setting aside thefinding of the learned trial Judge that the 4th respondent had made afalse statement affecting the personal character and conduct of theopposing candidate, William Fernando.
In the result I am in agreement with the order made by Sirimane, J.,that the appeals should be dismissed with costs.
Appeals dismissed.
i (1913) 18 N. h. R. 312.
* 39 Indian Appeals 197.