GUNARATNE, Appellant, and BABIE, Respondent

008-NLR-NLR-V-50-GUNARATNE-Appellant-and-BABIE-Respondent.pdf


BA SNAYAKJE J.—Gunaratne v. Bahia.
23
1948Present: Basnayake J.
GUNARATNE, Appellant, and BABIE, Respondent.
S. C. 370—M. C. Panivila, 3,598.
Maintenance Ordinance—Corroboration of applicant's story—Incidents afteralleged intimacy—Section 6.
The corroboration required by section 6 of the Maintenance Ordinancemay be afforded by evidence as to incidents which took place even afterthe time of the alleged sexual intimacy. –
^/y^PPEAL from a judgment of the Magistrate, Panwila.
C. V. Ranawahe, with A. B. Petera and Wimalachandra, for the appellant.
Cyril E. S. Perera, with B. D. Gandevia, for the respondent.
Cur. adv. vult.
November 12, 1948. Basnayake J.-—
This is an action for maintenance. The applicant, who is the respon-dent to this appeal, claims maintenance in respect of her illegitimatechild from the appellant who she alleges is its father. The learnedMagistrate has accepted the evidence of the applicant and her witnessesand ordered the appellant to pay Rs. 8 per month.
1 (1908) 12 N. L. R. 263.2 Crates Statute Law (4th ed.) 290.
24
BASNAYAKE J.-—Qunaratne v. Babie.
It is urged on behalf of the appellant that the applicant’s evidence isnot .corroborated as required by section 6 of the Maintenance Ordinance.That section provides that no order shall he made on an application formaintenance in respect of an illegitimate child on the evidence of themother of such child unless she is corroborated in some material partic-ular by other evidence to the satisfaction of the Magistrate.
In the instant ease there is not only the evidence of the applicant butalso the evidence of two other witnesses which goes to show that at thematerial time there was sexual intimacy between the applicant and theappellant. It has been held in the case of Ponnammah v. Seenitamby1that it is sufficient if the corroborative evidence relates to the sexualintimacy between the applicant and' the defendant.
As the learned Magistrate regards the other evidence as merely sup-porting the oral evidence which he accepts, it is not necessary to discussthat aspect of the ease in detail. The learned Magistrate accepts theevidence of the witnesses, whose veracity he does not doubt.
I see no sufficient reason to interfere with the learned Magistrate’sfinding. As was observed by Shaw J. in Sinaval v. Nagappaa : “ Main-tenance cases are in the nature of civil proceedings, and the Court ofAppeal, although sitting by way of re-hearing, ought to give Very greatweight to the finding of fact of the Magistrate who has seen the witnesses,and ought not to reverse his decision on a question of fact, unless it isclear from the evidence or from some undisputed fact that he has gonewrong
The respondent impugns the documents produced by the applicantas forgeries but makes no effort to prove his allegation. It is not sufficientto merely allege that a document which appears to be genuine ex facie isa forgery. The person impugning the document must prove that itis a forgery.
In regard to the evidence of certain incidents which occurred after theconception, I think I should refer to the case of Dona Carlina v. Jayakoddy3which learned counsel for the appellant cited. That case cannot in myview be regarded as laying down a rigid rule that corroboration can inno case be afforded by incidents which take place after sexual relationshave ceased. Section 6 of the Maintenance Ordinance imposes nolimitation on the nature of the corroborative evidence that may beadduced. The only requirement of that section is that the mother’sevidence must be corroborated in some material particular by otherevidence to the satisfaction of the Magistrate. The case of Van DerMerwe v. Nel4 contains a full discussion, with reference to English,Scottish and South African decisions, of the question of corroborationin proceedings for maintenance. The view expressed by De Waal J. P.in that case that corroboration may be afforded by evidence as toincidents at the time of the alleged sexual intimacy, prior to it, or afterit, in my opinion lays down the true limits of corroborative evidence thatan applicant under the Maintenance Ordinance may rely on.
The appeal is dismissed with costs.
Appeal dismissed.
1 (1921) 22 N. L. B. 395.3 (1931) 33 N. L. B. 165.
1 (1916) 6 BalasirSgham’s Notes of Cases 26.1 (1928—29) T. P. D. 551.
Thambiayah v. Kulasinghani.
25
1948 Present: Wijeyewardene A.C.J., Canekeratne and Windham JJ.THAMBIAYAH, Appellant, and KUL ASINGUAM, Respondent.
Election Petition Appeal No. 1 op 1948 ; Election Petition No. 1 op1947. Election fob, Kayts Electoral District No. 44 Holdenon August 23, 1947. In the Matter op an Appeal* under•Section 82a op the Ceylon (Parliamentary Elections) Order in(Council, 1946, as Amended by the Parliamentary Elections(Amendment) Act, No. 19 of 1948.
Election petition—Company having contract with Grown—Is shareholder
disqualified ?—Indirect benefit—Ceylon (Constitution) Order in Council,v 1946, section 13 (3)(c)—Right of appeal from decision of Election
*Judge—Amendment of Ceylon (Parliamentary Elections) Order in
» Council, 1946—I sit ultra vires?—Parliamentary Elections (.Amendment)i AAct, No. 19 of 1948—Ceylon (Constitution) Order in Council, 1946,
• section 29 (4).
, ■ Held : (i) A shareholder of a Company having a contract -with theCrown for the providing of goods or services to be used in the serviceof the Crown cannot be said to enjoy indirectly a benefit under thecontract and is therefore not a person who is disqualified under section13 (3) (c) of the Ceylon (Constitution) Order in Council, 1940.
Section 29 (4) of the Ceylon (Constitution) Order in Council, 1946,requires a two-third majority for an amendment of the provisions ofthat Order and no other. A two-third majority is therefore not requiredfor the amendment of the Parliamentary Elections Order in Council,1946.
The provisions of the Parliamentary Elections AmendmentAct, No. 19 of 1948, in so far as they give a right of appeal from thedetermination of the Election Judge, are intra vires.
The provisions of the Ordinance No. 19 of 1948, in so far as theyrelate to a report by the Supreme Court which embodies a finding thata corrupt or illegal practice has been committed, are ultra vires.
Kulasingham v. Thambiayah (1948) 49 N. L R. 60S overruled.
A
PPEAL from the judgment of the Election Judge in Election.
Petition, Kayts. The judgment of the Election Judge is reportedin (1948) 49 N. L. R. 505.
The election of the appellant as Member of Parliament for the ElectoralDistrict of Kayts was declared void by the Election Judge on the groundthat he enjoyed benefits under certain contracts with the Crown at thetime of the election. Shortly thereafter, the Parliamentary ElectionsOrder in Council, 1946, was amended by the Parliamentary Elections(Amendment) Act, No. 19 of 1948, enabling an appeal to a Bench of threeJudges from an Election Judge’s finding on a point of law. The appellant,thereupon, appealed.
The. respondent, appearing in person, raised a preliminary objection tothe jurisdiction of the Court in the matter of this appeal—The questioninvolved is not only important in regard to this appeal but is also amatter of great constitutional importance. The objection to jurisdictionis based on two grounds : Firstly, sections 3 and 4 of the Parliamentary2—L.
1J. N. A 83338-1,044 (10/48)
26
Thambiayah v. Kulasingham.
[Elections (Amendment) Act, No. 19 of 1948, are repugnant to section13 (3) (h) of the Ceylon (Constitution and Independence) Orders inCouncil, 1946 and 1947, and by reason of that fact involve an amendmentor repeal of the said section 13 (3) (h) and, therefore, sections 3 and 4of the amending Act are invalid and ultra vires as the amending Acthas not been passed in accordance -with the proviso to section 29 (4) ofthe Ceylon (Constitution and Independence) Orders in Council, 1946and 1947. Secondly, the Ceylon (Parliamentary Elections) Order inCouncil, 1946, is consequential and additional to the Ceylon (Constitutionand Independence) Orders in Council, 1946 and 1947, and all these Orders-in Council form one enactment and, therefore, Act No. 19 of 1948 isinvalid as it has not been passed in accordance with the proviso to section29 (4) of the Ceylon (Constitution and Independence) Orders in Council,1946 and 1947.
The first submission [referred to as the preliminary objection (b) in thejudgment] proceeds on the assumption that the Ceylon (ParliamentaryElections) Order in Council, 1946, can be amended by an ordinarymajority. The amending Act, No. 19 of 1948, was passed by the majorityof 55 votes to 31 votes.
Section 13 of the Constitution and Independence Orders in Council,1946 and 1947, is exhaustive of the disqualifications of Senators andMembers of the House of Representatives. By section 13 (3) (h) apersonwho, by reason of a report of an election judge in accordance with thelaw for the time being in force is incapable of being registered as a voter,is disqualified from being elected or appointed as a Senator or a Memberof the House of Representatives. Under sections 58 (2) and 72 (1) ofthe Parliamentary Elections Order persons guilty of corrupt and illegalpractices are incapable of being registered as voters or elected as Membersor Senators. Section 82 (3) of the same Order extends the disqualificationto persons reported by the Election Judge as having committed corruptor illegal practices. The amending Act, No. 19 of 1948, leaves intactsections 58 (2) and 72 (1). The definition of Election Judge undersection 78 (2) has also been left unaltered. The Legislature must betaken to have given the expression “ Election Judge ” in the Constitutionand Independence Orders the same meaning as it gave “ Election Judge ”in the Parliamentary Elections Order, 1946, i.e., Chief Justice or any otherJudge of the Supreme Court nominated by the Chief Justice to try anelection petition. Sections 81 and 82 of the Parliamentary ElectionsOrder governed the procedure to be followed in the matter of the certi-ficate and report of the Election Judge and the finality of the order ofthe Election Judge is an integral part of section 13 (3) (h) of the Con-stitution Order, 1946. But the amending Aet 19 of 1948 repeals sections81 and 82 of the Parliamentary Elections Order and enacts new sectionswhich make inoperative the report of an Election Judge in certain casesand which create a new disqualification for election or appointment ofSenators and Members as a result of a report of the Supreme Court.For example, suppose an Election Judge held a candidate innocent ofcorrupt and illegal practice and the Supreme Court in appeal holds thecandidate guilty of a oorrupt or illegal practice and makes a report tothat effect. Such a finding and report would clearly be repugnant to
Thambiayah v. Kzilasingham.
27
Section 13 (3) (h). Thus it is clear that sections 3 and 4 of AetNo. 19of 1948 repeal and amend section 13 (3) (h) of the Constitution andIndependence Orders, 1946 and 1947.
The respondent cited Jennings’ Law and the Constitution pp. 113-116 ;51-55 and Corpus Juris: An Encyclopaedia of American Law, Vol. 12,p. 699. However slight the amendment of 13 (3) (h) is the wholeenactment No. 19 of 1948 is null and void as the whole purpose of theamendment is to enact sections 3 and 4 which destroy the finality of theorder of the Election Judge.
On the second submission [referred to as preliminary objection (a) inthe judgment] that Ceylon (Constitution) Order, 1946, and Ceylon(Parliamentary Elections) Order, 1946, form one enactment, one sees thatby section 30 (4) of the Constitution Order, 1946, power to add to thatOrder is reserved to His Majesty so that it is quite reasonable to holdthat the Parliamentary Elections Order is an addition to that Order.Further, numerous provisions of the two Orders are so closely knittogether that one cannot understand the provisions of the one withoutreference to the provisions of the other. Again, the Constitution Orderwould have been useless unless the Parliamentary Elections Order wasenacted. Constitution means not only the framework of the Constitutionbut also the method of election of representatives. See Jennings’ Lawand the Constitution, p. 27.
E. P. Rose, K.C., Attorney-General, with M. Tiruchelvam, CrownCounsel, and N. D. M. Samarakoon, Crown Counsel, as amicus curiae.—The submissions of the respondent are based on misconceptions bothwith regard to the general character of the provisions in the two enact-ments and also with regard to their particular character. The firstmisconception is that Ceylon has a rigid constitution and that there areeertain fetters upon the Parliament of Ceylon. This is quite a baselessallegation. Subject to specific safeguards against discriminatorylegislation on racial and religious grounds provided for by section 29 ofthe Constitution Order, which have been copied from the CanadianConstitution, the power of the Ceylon Parliament to legislate is supreme.Vide Riel v. The Queen1; The British Coal Corporation v. The King 8 ;The Attorney-General for Ontario v. The Attorney-General for Canada 3.
The term “ Election Judge ” does not have the same meaning in thetwo enactments. The term is defined in the Parliamentary ElectionsOrder but the meaning of Election Judge in the Constitution Order,section 13 (3) (h), is any Judge who deals with election matters.
Though the two enactments are closely connected there is a funda-mental difference between the two Orders. The one deals with theprinciples of the Constitution, the other deals with mere details. Electionlaw was never meant to be static. The amending Act, No. 19 of 1948,changes the election law and not the fundamentals of the Constitution.In cases of doubtful significance the interpretation which would be mostreasonable for practical purposes should be adopted. See Maxwell onInterpretation of Statutes (9th ed.) 198.
1 L. R. {1885) 10 A. a. 075 at 678.* L. R. (1935) A. C. 500 at 618.
• L. R. (1947) A. C. 127.
Thambiayah v. Ktilasingham.
38
V. Per era, K.C., with. C. 3. Barr Kumarakulasinghe and VernonWijetunge, for the- appellant.—Taking the second submission of therespondent first, the proviso to section 29 (4) which requires the two-third majority for amending, for instance, section 13 (3) (h) refers to theprovisions of “ This Order —There is an exhaustive definition of‘‘This Order” in section 1 of the Constitution Order, 1946. This definitionmakes it quite clear that the requirement of the two-third majority foramendment or repeal is only necessary for amending or repealing theprovisions of the Constitution Order and not for amending or repealingany other Order including the Parliamentary Elections Order.
As regards section 13 (3) (A) of the Constitution Order it is quite clearthat that section cannot be amended except by the two-third majority.But amending the general law on which the section operates is not anamendment of the section. Section 13 of the Constitution Order refersexpressly and by necessary implication to various laws. There is nothingin that enactment which prohibited the laws referred to in section 13being repealed, altered or amended by a simple majority. What section 13
(A) requires is not merely the report of an Election Judge but a reportof an Election Judge which disqualifies a person under the law for thetime being. If there is no such report section 13 (3) (A) ceases to operate,but that is not amendment of the section.
The term “Election Judge” is not a term of art. That term is definedin the Parliamentary Elections Order for purposes of that Order. Butin the Constitution Order there is no definition of the term ElectionJudge so that the meaning of the term must be gathered from the sectionitself. The meaning gathered from the section is that the Election Judgereferred to in the section is any Judge who deals with election matters.The Supreme Court acting under the amending Act, No. 19 of 1948,would be the Election Judge in that respect. The question that theappellant was disqualified by the report of an Election Judge does notarise in this case as there is not and could not have been such a report.But supposing that before the amending Act was passed the report of anElection Judge had disqualified a person under the law for the timebeing in force. In such a case, as section 13 (3) (ft) has already begunto operate, such amending Act would have been repugnant to section13 (3) (h). The principles of repugnancy or conflict in operation wouldcome into play and the provisions of 13 (3) (ft) will prevail and theamending Act will be void to the extent of the repugnancy or conflictand to that extent alone. Counsel cited The Bank of Commerce KulnaLimited v. Chowdhury 1; Subramaniam Chettiar v. Muthuswami Gounden 2ShyamokantAli v. Rambhajen Singh el al.3 ; Mac Lead v. Attorney-General,New South Wales.*
The’ respondent, in reply.—The Election Judge referred to in section 13
(ft) can be no other than the Election Judge referred to in theParliamentary Elections Order because Part ill- where section 13 (3) (ft)occurs came into operation after the Parliamentary Elections Order. Thejurisdiction created by the amending Act is quite different to the juris-diction created by Parliamentary Elections Order. Thedistinctionbetween
(1944) 31 A. I. R. (P. C.) 18 at 21.* (1939) A. I. R. (P. C.) 74.
(1941) A. I. R. (P. C.) 47.* L. R. (1891) A. C. 456.
Thambiayah v. Kulasingham.
29
the Supreme Court and the Election Judge is shown in the amendingAct itself. On the question of severability the amending Act has tobe taken as a whole or rejected as a whole. See In re The Initiativeand Referendum Act. On appeal from the Court of Appeal of Manitoba1 ;Attorney-General for British Columbia v. Attorney-General for Canada2.See also Corpus Juris, Vol. 59, p. 642.
V. Perera, K.C., addressed, at this stage, on the main appeal.—-Theonly question to be decided is whether the appellant comes under thedisqualification under section 13 (3) (c) of the Ceylon (Constitution)Order in Council. It is common ground that the appellant is a share-holder in a joint stock company which has contracts, with the Govern-ment, of the kind which come under the section 13 (3) (c).
The words used in the section are simple and the meaning of thosewords are perfectly clear. The words “ directly or indirectly ” areadverbial expressions and belong to “ holds or enjoys ” and not to “ rightor benefit ”. The governing words aTe “ right ot benefit under thecontract ”, The thing that must be held or enjoyed is a right or benefitunder the contract and nothing else. The expression “ under thecontract ” has a restricted meaning. The right or benefit must beconnected to the contract by a legal nexus. See Jackson v. The Commis-sioner of Stamps1 on the interpretation of words “ under the will ”.
A joint stock company under our law has a separate legal existence.It has a legal persona quite distinct from the persons who are its share-holders—Salomon and Company Limited v. A. Salomon4. Shareholdershave no rights in the assets of the Company. Their only right is to getthe dividend if and when the directors declare a dividend—Palmer’sCompany Law edited by Topham, pp. 13 and 211 ; Mercy Docks Case5.The limited liability Company is a comparatively modem conception.The earlier Trading Companies were not limited liability Companies.Shareholders in the earlier Trading Companies or Corporations ownedthe assets of the Company or Corporation jointly, more or less as partners.See 1876 Edition of Blackstone’s Commentaries, p. 20 and Chapter 20.
In interpreting section 13 (3) (c) English cases do not help at all asthey deal with different phraseology. The only direct authority onthe point is the judgment of Dias J. in Saravanamuttu v. de Mel5. Theobservations in that case are not obiter but were an answer to a directissue in the case. That case is directly in point and entirety supportsthe appellant’s contention.
The respondent.—There is no doubt that the language of section 13 (3) (c)is simple, but, as it often happens, the interpretation seems to bedifficult. The English Courts have been for quite a long time consideringthis identical question of conflict between interest and duty in the caseof members of Parliament and Local Bodies and, -therefore, it is quitelegitimate to seek assistance from English cases.
In article 9 (d) of the repealed Ceylon (State Council) Order in Councilof 1931, there was a proviso specially exempting a shareholder of an
1 L. R. (1919) A. C. 935 at944.4 L. R. (1897)A.C. 2Z at 52-55.
L. R. (1937) A. C. 377 at388.s L. R. (1865)11H. L. 443.
3 L. R. (1930) A. C. 350.6 (1948) 49 N.L.R. 529 at 568.
1*J. JX. A 83338 <10/48)
30
Thambiayah v. Kulaaingham.
incorporated Company. There is no such proviso in section 13 (3) ofthe Constitution Order in Council of 1946. The preamble of the Con-stitution Order in Council shows that that Order was enacted on the generallines recommended by the Soulbury Commission. Paragraph 321 ofSoulbury Commission's Report recommends that stricter rules shall beapplied to Government contracts in which members of Parliament areinterested. Under these circumstances, when one considers the intentionof the Legislature, the omission of the proviso exempting shareholdersof Trading Corporations is significant and cannot be overlooked. Itis submitted that the proviso was omitted in the process of tighteningup of rules with regard to interests of members in contracts withGovernment.
There is no difference between right or benefit under a contract andright, title and interest in a contract. The one expression may be andis used as well as the other to denote exactly the same thing. Obviouslyevery indirect benefit from the contract does not come under the section.There is certainly a line of division including those benefits which comeunder the section and excluding those benefits which do not come underthe section 13 (3) (c). That line of division is deducible from the wordingof the section, judicial decisions in similar cases, and the reasons for theenactment. The following cases may be of assistance in this connection.Everett v. Griffiths 1 ; Whiteley v. Barley a ; Moul and Mayeur v. Groennigs 1 2 3 ; Todd v. Robinson 4.
It is not sufficient to deal only with the legal aspect of a Companyhaving a separate existence and not with factual considerations.Actually it is the shareholders who get all the benefits under the contract—18th Edition, Palmers’ Company Law, pp. 6, 7, 9. See also 9th Edition,Maxwell on Interpretation of Statutes, pp. 336, 337.
A. E. P. Rose, K.C., Attorney-General.—The judgment of the trialJudge is not only wrong but also impractical. The policy of the law inall countries and especially in England has been to exempt shareholdersof a joint stock company from disqualification of becoming membersof Parliament and other representative bodies. This has been so inspite of opinions of Judges expressed in favour of such disqualification.See Lapish v. Braithwaite 5 ; Todd v. RobinsonG. The Election Judge’sdecision is directly in opposition to the well-settled law in England withrespect to the same subject-matter. It is submitted that the decisionis not correct, but if the interpretation of the judge is one of two possibleinterpretations the interpretation which favours practical convenienceshould have been given. See 9th Edition of Maxwell on Interpretationof Statutes, p. 198 ; Sinnott v. The Commissioner for Whitechapel District7;Hill v. East and West India Dock Company s.
H. V. Perera, K.C., in reply.—Reports of Commissions are only admis-sible, when they are admissible at all, for the purpose of finding out the
1Z. R. (1924) 1 K. B. 941 at 946 and 947.
2L. R. (1888) 21 Q. B. D. 154.6L.R.(1884) 14 Q. B.D. 739.
3Z. R. (1891) 2 Q. B. 443 at 449.7(1858)27 L. J. R. (N. S.) (C.P.)177.
4Z. R. (1884) 14 Q. B. Z>. 7398(1884)53 Z. J. (N.S.) (Equity),
6 Z. R. (1926) A. C. 275.842 at 845.
WIJEYEWAJRDEXE A.C.J.—Thambiayah v. Kvia.-,inghatn.
31
mischief which a particular provision sought to remedy—Perera v. Jaye-war dene 1 ; Assam Railway and Trading Co. Ltd. v. Commissioner ofInland Revenue 2.
Merely because the proviso takes in joint stock companies as wellas other Trading Corporations it is a fallacy to hold that joint stockcompanies are taken in by the main provision. See Guardians of thePoor West Derby Union v. Metropolitan Life Assurance Society 3. Asregards meaning of “ under ” see Mortgage Insurance Corporation Ltd. v.Pound and others *.
Cur. adv. vull.
October 28, 1948. Wusthwabdene A.C.J.—
This is an appeal under section 82a of the Ceylon (ParliamentaryElections) Order in Council, 1946, as amended by the ParliamentaryElections (Amendment) Act, No. 19 of 1948.
The appellant was certified by the Returning Officer under section 50of the Ceylon (Parliamentary Elections) Order in Council, 1946, asthe member duly elected for the electoral district of Kayts held onAugust 23, 1947.
The respondent who was one of the unsuccessful candidates presentedan election petition to have it declared that the appellant was not dulyelected and that the election was void.
It was conceded at the trial that at the time of his election the appellantwas a shareholder of the Cargo Boat Despatch Company, Ltd., incorporatedin Ceylon in 1936, under the Joint Stock Companies Ordinance, 1861,and that the Company had entered into two contracts of the descriptionreferred to in section 13 (3) (c) of the Ceylon (Constitution and Indepen-dence) Orders in Council, 1946 and 1947. The only ground on whichthe election of the appellant was impugned at the trial was that theappellant as such shareholder “ indirectly enjoyed a benefit under thosecontracts ”. The Election Judge held in favour of the respondenton that ground and gave his certificate under section 81 of the Ceylon(Parliamentary Elections) Order in Council, 1946, on September 13, 1948.
It is desirable at this stage to refer shortly to the various legislativeprovisions dealing with the Constitution and the Parliamentary electionsin Ceylon.
The Ceylon (Constitution) Order in Council, 1946, of May 15, 1946,was published in the Government Gazette on May 17. Part TTT of thatOrder however came into operation on July 5, 1947. Section 13 whichhas to be considered on this appeal occurs in Part III. The CeylonInd'ependence Act, 1947, was passed on December 10, 1947, and wasbrought into operation on February 4, 1948, by the Ceylon Independence(Commencement) Order in Council, 1947. In Order to give effect to theprovisions of the Ceylon Independence Act, 1947, it was found expedientto amend the Ceylon (Constitution) Order in Council, 1946, and the
(1947) 49 N. L. R. 1.3(1897) A. G. 647.
L. R. (1935) A. C. 445 at 449.‘ (1895) 64 L. J. Q. B. 394.
32
WIJEYEWAiUDENE A.C.J.—Thambiayah v. KvZasingham.
Amending Orders, and the Ceylon Independence Order in Council, 1947,was passed on December 19, 1947, revoking and amending certainprovisions of this order. That Order in Council and the Ceylon Indepen-dence Act came into operation on February 4,1948. That Order togetherwith the Ceylon (Constitution) Order in Council and the AmendingOrders form the Ceylon (Constitution and Independence) Orders in Council,1946 and 1947.
’ By the Ceylon (Electoral Registers) (Special Provisions) Order inCouncil which came into force on May 17, 1946, the Ceylon (State CouncilElections) Order in Council, 1931, was kept alive with some small amend-ments until it was replaced by the Ceylon (Parliamentary Elections)Order in Council, 1946, which came into operation on September 25,1946. The Parliamentary Elections (Amendment) Act, No. 19 of 1948,which amended the Ceylon (Parliamentary Elections) Order in Councilcame into operation on September 30, 1948.
The respondent raised two preliminary objections before us andformulated them as follows :—
(а)The Ceylon (Parliamentary Elections) Order in Council, 1946,
was consequential and additional to the Ceylon (Constitutionand Independence) Orders in Council, 1946 and 1947, as allthese Orders form one Act or enactment. The ParliamentaryElections (Amendment) Act, No. 19 of 1948, which amended theCeylon (Parliamentary Elections) Order in Council, 1946,was, therefore, invalid as it was not passed in accordance withthe proviso to section 29 (4) in the Ceylon (Constitution andIndependence) Orders in Council, 1946 and 1947.
(б)Section 3 bringing into existence the new sections 81, 82, 82a,
82b, 82c and 82d of the Ceylon (Parliamentary Elections)Order in Council, 1946, and section 4 of the ParliamentaryElections (Amendment) Act, No. 19 of 1948, are repugnantto section 13 (3) (A) of the Ceylon (Constitution and Inde-pendence) Orders in Council, 1946 and 1947, and thereby in-volve an amendment or repeal of the said section 13 (3) (A),and they are, therefore, invalid as they had not been passedin accordance with the proviso to section 29 (4) of the Ceylon(Constitution and Independence) Orders in Council, 1946 and1947.
Now the relevant parts of section 29 (4) mentioned above reads :—
“ In the exercise of its powers under this section, Parliament mayamend or repeal any of the provisions of this order, or of any Orderof His Majesty in Council in its application to the Island :
Provided that no Bill for the amendment or repeal of any of theprovisions of this Order shall be presented for the Royal Assent unlessit has endorsed on it a certificate under the hand of the Speaker thatthe number of votes cast in favour thereof in the House of Represen-tatives amounted to not less than two-thirds of the whole number ofmembers of the House (including those not present).”
W I<TEY liWARDENE A.C.J.—Thambiayah v. K.ulasinghain.
33
This section requires the majority mentioned in the proviso only inthe case of a Bill “ for the amendment or repeal of any of the provisionsof this Order Without doing violence to the ordinary meaning ofwords it cannot be said to refer to any Order in Council except the Ceylon{Constitution) Order in Council, 1946, as amended by the amendingOrders and the Ceylon Independence Order in Council, 1947. Thosewords cannot possibly refer to the Ceylon (Parliamentary Elections)Order in Council, 1946. In short, “ this Order ” must mean “ thisOrder ” and not “ another Order
The argument of the respondent with regard to the second preliminary■objection may be summarised as follows :—
Section 13 (3) (h) of the Ceylon (Constitution and Independence)Orders in Council, 1946 and 1947, enacts,
“ A person shall be disqualified for being elected or appointed as aSenator or a Member of the House of Representatives or for sittingor voting in the Senate or in the House of Representatives, if by reasonof his conviction for a corrupt or illegal practice or by reason of thereport of an Election Judge in accordance with the law for the timebeing in force relating to the election of Senators or Members ofParliament, he is incapable of being registered as an ejector or of beingelected or appointed as a Senator or Member, as the case may be
Under the combined operation of section 58 (2), 72 (1) and 82 (3) ofthe Ceylon (Parliamentary Elections) Order in Council, 1946, the report•of an Election Judge that any person has committed a corrupt or illegalpractice has the effect inter alia of rendering such person incapable ofbeing elected as a Member of Parliament for certain periods commencingfrom the date of the report. The term used is “ Election Judge ” andnot “ Election Court ” as in the Corrupt and Illegal Practices PreventionAct, 1883. The term “ Election Court ” is defined in section 64 of thatAct to mean “ the Judge presiding at the trial of an election petition or,if the matter comes before the High Court, that Court”. It is thefailure to adopt some such definition for “ Election Judge ” in theParliamentary Elections (Amendment) Act, No. 19 of 1948, that has madeit necessary to raise the second preliminary objection. The term*' Election Judge ” is not defined in the Ceylon (Constitution andIndependence) Orders in Council, 1946 and 1947, but the Legislaturemust have given it the same meaning which had been given in the Ceylon(State Council Elections) Order in Council, 1931, and which the Legis-lature repeated in the later Order, the Ceylon (Parliamentary Elections)Order in Council, 1946 [see section 78 (2)]. According to that definitionthe “ Election Judge ” is the Judge of the Supreme Court trying theelection petition. The “ Election Judge ” mentioned in section 82 (3)of the last mentioned Order is, therefore, the “ Election Judge ” tryingthe petition and not the three Judges of the Supreme Court sitting inappeal under the new section 82a (5) of that Order. This is placedbeyond doubt by the reference in the new section 82d to “ the certificateof determination of an Election Judge ” or “ the decision of the SupremeCourt ” thus making it clear that the “ Election Judge ” is not the sameas " the Supreme Court ” sitting in appeal. Now, the new section 82c (2)
34=
WIJEYEWARDE^STJS A.C.J.—Thambiayah v. Kulasingham,.
vests a discretion, in the Supreme Court regarding the transmission ofthe report of the Election Judge to the Governor-General and empowersthe Supreme Court to send its own report and the new section 82d givesthe report of the Supreme Court the same legal effect as the report ofthe Election Judge. Therefore, section 13 (3) (A) of the Ceylon (Con-stitution and Independence) Orders in Council, 1946 and 1947, has, atleast, been amended by the Parliamentary Elections (Amendment)Act, No. 19 of 1948,
(а)making the report of the Election Judge inoperative in certain
circumstances arid
(б)creating a disqualification as the result of a report by the Supreme
Court.
The respondent illustrated his argument by taking a case where theElection Judge finds that the person complained against was not aperson guilty of a corrupt or illegal practice and holds the election valid.On an appeal on a point of law the Supreme Court holds that such aperson was guilty of corrupt and illegal practices and makes a report tothat effect. In such a case the person in question would become dis-qualified owing to the amendment introduced by the new sections 82c and82d and there would have been no such disqualification, if the Parlia-mentary Election (Amendment) Act, No. 19 of 1948, was not in force.It was argued for the appellant
(а)that there was no amendment of section 13 (3) (h) of the Ceylon
(Constitution and Independence) Orders in Council, 1946 and
1947, as stated by the respondent and
(б)that if there was an amendment, the difficulty created by the
amendment could be met by the application of the doctrine
of repugnancy.
The argument that there was, in fact, no amendment of section 13 (3) {h)is briefly as follows :—There is nothing in the Ceylon (Constitution andIndependence) Orders in Council, 1946 and 1947, necessitating a Courtto have recourse to the Ceylon (State Council Elections) Order in Council,1931, or the Ceylon (Parliamentary Elections) Order in Council, 1946,for the definition of the term Election Judge. Moreover, the definitiongiven in those latter Orders are stated expressly to be definitions forthe purposes of those Orders. In the absence of a definition in theCeylon (Constitution and Independence) Orders in Council, 1946 and1947, a Court is justified in looking at section 13 (3) (h) itself to find themeaning of the term Election Judge. It will be found that the ElectionJudge mentioned in that section is a Judge functioning, in accordancewith the law for the time being in force, in proceedings relating to theelections of Senators or Members of Parliament and having the powerto make a report which has the effect of making a person incapable ofbeing registered as an elector or of being elected or appointed as a Senatoror Member. After the passing of the Parliamentary Elections (Amend-ment) Act, No. 19 of 1948, the law in force for the time being empowersthe three Judges of the Supreme Court mentioned in the new section82a (5) of the Ceylon (Parliamentary Elections) Order in Council, 1948,
WIJEYEWARDENE A.C.J.—Thambiayah v. Kulasingham.
35
to reverse the determination of the Election Judge and to send a reportin respect of the commission of any corrupt or illegal practice, suchreport having the effect of rendering the person reported against in-capable of being registered as an elector or of being elected or appointedas a Senator or Member. Therefore, the three Judges of the SupremeCourt sitting in appeal could be regarded as coming -within the term“ Election Judge ” in section 13 (3) (A).
As I am not satisfied with the soundness of this method of extractinga definition of “ Election Judge ” from section 13 (3) (h) itself, I donot propose to rest my decision regarding the second preliminary objectionon this argument.
The respondent’s contention that section 13 (3) (h) of the Ceylon(Constitution and Independence) Orders in Council, 1946 and 1947,has been amended by the Parliamentary Elections (Amendment) Act,No. 19 of 1948, making the report of the Election Judge inoperative incertain circumstances is clearly untenable. Section 13 (3) (h) of theCeylon (Constitution and Independence) Orders in Council, 1946 and1947, .made “ the report of the Election Judge ” effective as a groundof disqualification only in so far as it was “ in accordance with the lawfor the time being in force ” and as the law which gave the report of anElection Judge the same effect as a conviction for a corrupt or illegalpractice was in the Ceylon (Parliamentary Elections) Order in Council,1946, a Parliamentary Bill modifying or limiting the effect of such areport need not be passed by the majority indicated in the proviso tosection 29 (4) of the Ceylon (Constitution and Independence) Orders inCouncil, 1946 and 1947.
A difficulty arises, however, when we proceed to consider the casethat may arise under the new sections 82c and 82d where the decisionof the Supreme Court in appeal sets aside the report of the ElectionJudge that a person is not guilty of corrupt or illegal practice and theSupreme Court sends its own report finding such person guilty. AsI am of opinion that the term Election Judge means the Judge whotries an election petition, I think that the provisions of the Ceylon(Parliamentary Elections) Amendment Act, No. 19 of 1948, are inconflict with section 13 (3) (h) of the Ceylon (Constitution and Inde-pendence) Orders in Council, 1946 and 1947, in so far as those provisionsmake the report of the Supreme Court operate as a ground of disquali-fication. What is the result of that conflict ? Is the Ceylon (Parliamen-tary Elections) Amendment Act, No. 19 of 1948, invalid as it has notbeen passed in accordance with the proviso to section 29 (4) of the Ceylon(Constitution and Independence) Orders in Council, 1946 and 1947 ?Or is it invalid only in so far as the offending provisions are concerned 1
The consideration of these questions necessitates an examination ofthe provisions of the Ceylon (Parliamentary Elections) Order in Council,1946, and the Ceylon (Parliamentary Elections) (Amendment) Act, No. 19of 1948.
An Election Judge is appointed to try an election petition. The mainobject of an election petition is to have the election of a Member ofParliament declared void. At the conclusion of the trial the Election
36
WIJE YE WARDEN E A.C.J.—Thcmibiayah v. Kulasingham.
Judge determines . “ 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 certifies such determi-nation to the Governor-General. The Election Judge has also to reportto the Governor-General all persons who have been proved at the trialto have been guilty of any corrupt or illegal practice. Where there isno election petition a person may be charged with a corrupt or illegalpractice and on being convicted will be subject to the same disqualifi-cation as on a finding of the Election Judge embodied in his report[vide sections 78, 77, 81, 82, 58 and 73 of the Ceylon (ParliamentaryElections) Order in Council, 1946, before the amendments]. On aconsideration of these provisions it is clear that the main object of anelection petition and the main purpose of a trial on an election petitionis to find whether the particular election is void or not. The objectof the Parliamentary Elections (Amendment) Act, No. 19 of 1948, is“ to amend the Ceylon (Parliamentary Elections) Order in Council,1946, in order to confer a right of appeal on questions of law from thedetermination of an Election Judge in an election petition and to providefor matters connected therewith ”. No doubt, sections 82c and 82drefer inter alia to a report that may be made by the Supreme Court,if it considers necessary, ragarding the commission of corrupt or illegalpractices. Thus it will be seen that in the Parliamentary Elections(Amendment) Act, No. 19 of 1948, the “ offending provisions ” aremerely ancillary and subordinate to the “ innocent provisions ”. Thereis “another way of looking at these “ offending provisions ”. It waspossible, in accordance with my views on the first preliminary objectionof the respondent, fpr the Legislature to have amended section 78 of theCeylon (Parliamentary Elections) Order in Council, 1946, by insertinga new definition of “ Election Judge ” so as to include the body of Judgeshearing an appeal under the new section 82a, and such an amendmentneed not have been passed in accordance with the proviso to section 29 (4)of the Ceylon (Constitution and Independence) Orders in Council, 1946and 1947. If that was done, the second preliminary objection couldnot have succeeded. In fact, it was conceded by the respondent thatsuch a result would have followed necessarily from the Court, holdingagainst him on the first objection. Considered from that point of viewit could be argued that the “ offending provisions ” amount in realityto an amendment of section 78 of the Ceylon (Parliamentary Elections)Order in Council, 1946.
I do not think that the difficulty created by the conflict stated abovecould be solved by having recourse to the doctrine of repugnancy.That doctrine would apply to a conflict between two provisions in astatute duly passed by a Legislature or between two statutes dulypassed by a Legislature. It would also apply in certain circumstanceswhere the conflict is between a statute duly passed, say, by a provincialLegislature in India and a statute duly passed by the Central Government.Such a matter came up for consideration before the Federal Court ofIndia in The Bank of Commerce Ltd., Khulna v. Amulya Krishna BasuRoy Chowdhury 1. In that case the Provincial Legislature of Bengal1 A. I. S. (31) 1944 Federal Court 18.
WXJBYEWABDBNE A.C.J.—Thambiayah v. Kutaaingham.
37
which had jurisdiction to legislate in respect of “ Money Lending andMoney Lenders ” passed the Money Lenders Act giving relief to “ agri-culturists ” in respect of loans advanced to them, including loans onpromissory notes. The Indian Constitution assigned specifically tothe Central Government the right to legislate in respect of promissorynotes, presumably because, owing to the negotiability of promissorynotes throughout the whole of India, it was thought desirable that thereshould be uniformity in the law relating to promissory notes. TheFederal Court said in the course of the judgment,—
“ The Bengal Money Lenders Act must, taken as a whole, be heldto fall within the description, legislation in respect of ‘ money lendingand money lenders a subject within the exclusive competence of theProvincial Legislature (entry No. 27 in List II.). As pointed out in1940 F. C. R. 188, the fact that among the documents on which moneysmay be lent, promissory notes form an important class will not justifythe view that the regulations and control of money lending have tothat extent been taken out of the purview of provincial legislation.”
Holding as it did that the conflict in that ease was “ a conflict betweenthe provisions of the local law and the provisions of a central enactmenteach being intra vires the particular legislature ”, the Federal Courtdecided that the doctrine of repugnancy was applicable in that case.In the case before us I have found that the. provisions in the ParliamentaryElections (Amendment) Act, No. 19 of 1948, relating to a report by theSupreme Court, so far as it embodies a finding that a corrupt or illegalpractice has been committed, was not duly passed by the Ceylon Par-liament. Those provisions were, therefore, ultra vires. Those provisions,however, could be easily severed from the remaining provisions in the Actwhich are intra vires. They are not so interwoven into the main schemefor providing an appeal from the “ determination ” of the ElectionJudge as to make a severance impossible. In dealing with the doctrine ■of severability Sulaiman J. said in Shyamakant Lai v. Rambhajan Singhet al.x.
“ It is a well established principle that if the invalid part of an Actis really separate in its operation from the other parts, and the restare not inseverably connected with it, then only such part is invalid,unless, of course, the whole object of the Act would be frustrated bythe partial exclusion. If the subject which is beyond the legislativepower is perfectly distinct from that which is within such power,the Act can be ultra vires in the former, while intra vires in the latter.”
He cited with approval the following passage from The King v. TheCommonwealth Court of Conciliation and Arbitration, ex parte Whybrow(1910) 11 Commonwealth Law Reports 1 —
“ I venture to think that a safer test is whether the statute with theinvalid portions omitted would be substantially a different law as tothe subject-matter dealt with by what remains from what it wouldbe with the omitted portions forming part of it.”
1 A. I. R. (1939) Federal Court 71.
38
WUEYEWARDENE A.C.J.—Thambiayah v. Ktiiasingham.
I wish to add that we are concerned in this case with the right of appealof a person who is held to he disqualified under section 13 (3) (c) of the(Constitution and Independence) Orders in Council, 1946 and 1947.No question arises in this case with reference to a report by the ElectionJudge in respect of the commission of a corrupt or illegal practice.
I have discussed the provisions of section 13 (3) (h) only in so far as itwas necessary for the purposes of this case.
For the reasons given by me I hold against the respondent on thesecond preliminary objection.
The main question that arises on the appeal is whether a shareholderin a company with limited liability duly incorporated under the JointStock Companies Ordinance, 1861, is disqualified under section 13 (3) (c)of the Ceylon (Constitution and Independence) Orders in Council, 1946and 1947, by reason of a contract entered into between the companyand the Crown. That section (hereinafter referred to as section 13 (3) (c) )enacts,
“ A person shall be disqualified for being elected .as …. a Member of the House of Representatives ….if he, directly or indirectly, by himself or by any person on his behalfor for his use or benefit, holds, or enjoys any right or benefit underany contract ….
In that section “holds” should be read only with “right”, and“ enjoys ” with “ benefit Though a person who holds a right undera contract may enjoy a benefit, it is not possible to speak of a personholding a benefit or enjoying a right. This was conceded by the res-pondent and the appellant’s Counsel. As an incorporated companycannot be regarded as an agent or trustee for the shareholder, thequestion in this case does not involve a consideration of the words,“ by any person on his behalf or for his benefit ”. Further, as such acompany is a distinct being or 'persona entirely different from the share-holders, the company and the Crown are the parties to the contract andshareholder has no right under the contract. Moreover, the shareholdernot being a party to the contract cannot in any event be regarded as“ directly by himself ” enjoying a benefit under the contract. Thequestion we have to decide is, then, whether a shareholder is a personwho “indirectly by himself enjoys any benefit under the contract”entered into by the Company. The word “ indirectly ” is an adverbmodifying the verb “ enjoys ” and is not an adjective qualifying thenoun “benefit”. The “benefit” we have to consider, therefore, isnot an “ indirect ” benefit under the contract. In other words, we haveto ask ourselves :—
(а)Does a shareholder enjoy a benefit under the contract ?
(б)Does a shareholder enjoy such a benefit indirectly %
I would consider now the meanings of the words “ benefit ”, “ under ”and “ indirectly ”. It was stated at the Bar that there was no EnglishStatute in which the word “benefit” occurs in clauses dealing with thedisqualification of members of representative institutions. The casescited to us at the argument decided questions arising under the English
WIJEYEWARDENE A.C.J.—Thambiayah v. Kulasingham.
39
Parliamentary or Local Government Statutes containing words differentfrom the words in section 13 (3) (c) as the relevant words in those statuteswere either “ a person who has directly or indirectly any share or interestin a contract ”, or “ a person interested in a contract ” or “ a personconcerned in a contract **, The decisions of the Courts on the facts inthose cases are not of much assistance to us in construing whether aperson has a “ benefit under a contract I do not think I should permitmyself to be guided also by definitions given in statutes dealing withentirely different subjects. I think the benefit referred to in section13 (3 (c) is a benefit of a pecuniary nature.
The word “ under ” in “ benefit under a contract ” indicates a veryclose connection between the benefit and the contract. It connotes avery much closer connection than the phrase “resulting from” whichindicates a mere casual connection. “ Under ” in my view indicates alegal connection.
The word “indirectly” is a vague and unsatisfactory word. Thisword occurs in a penal clause and there is nothing in the context to shewthat the Legislature intended to give an extensive meaning to it. Iwould hold that a person indirectly enjoying a benefit must be enjoyingit by virtue of a tie of law connecting him with the person directlyholding a right under the contract or directly enjoying a benefit under thecontract.
Could then a shareholder be said to enjoy indirectly a benefit underthe contract ? A shareholder is not an agent of the company. He isentitled to the dividends which have deen declared payable out of theprofits, but he cannot insist on the payment of dividends, even, when theprofits are amply sufficient and however much they may hg.ve beenenhanced by reason of the contract, if the directors decline to declare adividend. He has, of course, the right to restrain directors from actingunfairly by the shareholders. It is the declaration of the dividend thatcreates a debt from the company to each shareholder. No doubt, a share-holder is interested in the well being of the company just as a debentureholder who holds the bonds of the company is interested, because itsprosperity is his security ; but the interest is the interest of a share-holder, not of a joint owner, legal or equitable, of the contract nor ofone having a community of interest in the adventure being carried onin fact. He has no property in the profits of the adventure. But,because he is so “ interested ”, he cannot be said to enjoy indirectlya benefit under the contract.
For the reasons given above, I hold that the appellant is not dis-qualified under section 13 (3) (c).
I may mention that it was stated in the course of the argument forthe respondent that an answer in the negative to the question propoundedon the appeal would tend to increase the opportunities for malpracticeson the part of Members of Parliament. On the other hand, it wasstated for the appellant that an answer in the affirmative would preventthe State from securing the services of eminently suitable persons asMembers of Parliament merely because they have chosen to invest theirsavings in a manner usually favoured by many provident people, whether
40
Fernando v. Feirie-
rieh or poor. I am glad that I have been able to consider the questionpurely as a matter of construction of section 13 (3) (c) and reach a decisionwhich harmonises that section with the statutory provisions in Englandas to the position of shareholders of incorporated companies as membersof representative institutions. As pointed out by the Attorney-Generalwho appeared as amicus curiae, the various English Governments duringthe last twenty years—Conservative, liberal and Socialist—do notappear to have taken steps to alter the law in England, though ViscountGave indicated in very strong terms in Lapish v. JBraithwaite1 the un-desirability of permitting a person with a number of shares in a companyholding contracts with a representative institution to be a member ofsuch institution. On the other hand, we find that when it was heldin Todd v. Robinson 2 that a shareholder had an indirect interest in acontract with his company “ the Parliament immediately showed theirview of the matter by providing in an Act of 1885 (48 and 49 Victoria,Chapter 53), section 2, that the position of an officer as a shareholderin a joint stock company contracting with the council was not to renderhim liable ” under section 193 of the Public Health Act, 1875 [vide Lapishv. Braithwaite 3j.
I reverse the determination of the Election Judge and decide that theappellant, Alfred Leo Thambiayah, was duly elected as a Member of theHouse of Representatives for the Kayts Electoral District.
I set aside the order for costs made by the Election Judge and orderthat each party should bear his costs of and incidental to the presentationof the election petition and of the proceedings consequent thereon andhis costs of appeal.
Catstekeeat?tb J.—I agree.Windham J.-—-I agree.
Appeal allowed.