In re DE ZOYSA

046-NLR-NLR-V-38-In-re-DE-ZOYSA.pdf


244
In re de Zoysa.
1936
Present: K®c5s J,
In re Application for an Authorized Excuse under Article 72of the Ceylon (State Council Elections) Order in Council, 1931.
State Council elections—Failure to send return of election expenses—Applicationfor relief—Meaning of “ inadvertence ”—Ceylon (State Council Elections)Order in Council, 1931, ss. 67 and 72.
Where a candidate for election to the State Council in making a returnof his election expenses within time forgot to include vouchers for itemsover Rs. 20 and particulars and dates of payments regarding items less'than Rs. 20 and applied to the Supreme Court for an authorized excuseunder section 72 of the Ceylon (State Council Elections) Order in Council,1931,—
Held, that he was entitled to relief under the section on conditionthat he furnished within one month the details and particulars omittedby him to the best of his recollection, knowledge, and belief.
T
HIS was an application by a candidate at a by-election for a seatin the State Council under section 72 of the Ceylon (State Council
Elections) Order in Council, 1931, to obtain an authorized excuse for hisfailure to transmit a return and declaration of his election expensesto the Returning Officer within the due period. The applicant, who washis own election agent forwarded to the Returning Officer a return ofhis expenses within time but he failed to annex to it vouchers in supportof itemis of Rs. 20 and over. When his attention was drawn to thisomission, the applicant forwarded the vouchers which were receivedby the Returning Officer after the time limit had expired.
H. V. Per era (with him M. T. de S. Amerasekera and T. S. Fernando), forapplicant.—What the Order in Council intended to penalize was theintentional evasion of the provisions therein. The objects of theprovisions are denoted in 12 Halsbury (Hailsham. ed.), p. 325, and alsoat p. 380 (note u). Authorized excuses and exceptions are peculiarto the law of elections, see 12 Halsbury, p. 373. The Order in Councilmakes provision for excuses “ with the very object of relieving candidatesfrom the entirely unjust and disproportioned consequences of triflingdefaults ”
1 Clare, Eastern Division case, (1892) 4 O'M. <Ss H. 162, and note (o) in 12 Hals. p. 376
In re DE ZOYSA.
KOCH J.—In re de Zoysa.
245
“ Inadvertence ” means negligence or carelessness, where the circum-stances show an absence of bad faith. In Fernando v. Fernando *,“ inadvertence ” was taken to mean the opposite of deliberate election ;see also In re Phears *.
The consulting of an inaccurate text book, when county elections werea new thing, furnished matter for an excuse, see Birley’s Case *. Excuseswere also allowed on the ground that the Act was new and by no means,easy to master
The provisions we have not complied with are contained only in afootnote; and the words themselves are purely directory and notimperative. The Supreme Court is permitted by section 72 of the'Order in Council to exercise a discretion, and when doing so every"circumstance should be taken into consideration. The applicant hereis a defeated candidate. The Court should not ask him to do somethingwhich he cannot conscientiously do. The Court should make an orderwithin the spirit of the Order in Council.
Schokman, C.C., for the Attorney-General.—The provisions in theOrder in Council requiring candidates to furnish returns of electionexpenses have been inserted with a view to maintain the purity ofelections. Here the applicant is asking for relief in respect of two defaults,,and not merely one. He has not only not sent a return within the-specified time, but he has failed to send details of payments as requiredby schedule 5 to the Order in Council. Misconception of the law is not“ inadvertence. ” Relief may be granted to the applicant in a modifiedfrom; the excuse may be granted conditional upon the applicantfurnishing a proper return within an extended time as provided for bysub-section (3) of Article 72 of the Order in Council. Otherwise, bymaking this default the applicant would get an advantage over othercandidates who have sent in complete returns in time.
Cur. adv. vult..
March 11, 1936. Koch J.—
This is an application by Mr. Francis de Zoysa, a candidate at theby-election for the Balapitiya seat in the State Council, and has beenmade under section 72 of the Ceylon (State Council Elections) Order inCouncil of 1931, for the purpose of obtaining an order of this Courtallowing an authorized excuse for his failure to transmit a return anddeclaration of his election expenses to the Returning Officer withinthirty-one days of the publication in the Government Gazette of the resultof the by-election.
The facts are, that the by-election in question was held on September21, 1935, that the result was published in the Government Gazette No. 8,147of September 26, 1935, and that the period of 31 days terminated onOctober 28, 1935. There were three candidates in all, and the applicantwas one of the two defeated.
The requirement under section 67 of the Order in Council to transmita return of the election expenses of a candidate applies to the agentsof all candidates, successful and unsuccessful. In pursuance of thisrequirement the applicant who was his own election agent forwarded
1 36 N. L. B. 77.4 5 Ex parte Matthews, (1886) 2 T. L. B. 548 :
“ 1 Q. B. D. 61.and 12 Hals. p. 382 note (r) ; Stepney's Case
» (1889) 5 T. L. B. 220.(1886) 4 O’M. <fe H. p. 52.
246
KOCH J.—In re de Zoysa.
to the Returning Officer a return of his expenses. This return wasreceived by the Returning Officer on October 23, 1935, but the applicanthad failed to annex to it vouchers in support of items of Rs. 20 and over.Thereupon the Returning Officer, although he was not bound to do so,wrote to the appellant a letter dated October 24, 1935, inviting hisattention to the requirements of the fifth schedule of the Ceylon (StateCouncil Elections) Order in Council of 1931, and requested him to begood enough to send to the writer all the documents required by thatschedule. It must be noted that this letter of the Returning Officercontains no request for the specific details with dates of payment of thevarious component sums that contributed to make up the lump sumsentered under the different headings appearing in the applicant’s return.On receipt of this letter, the applicant forwarded on November 12, 1935,the vouchers asked for, and stated that the other expenses were incurredin small items of under Rs. 20 for which no vouchers were obtained.It would be seen that when the vouchers were sent in by the applicanthe was already late by a fortnight, the period of 31 days having expiredon October 28, 1935. Finding that the documents he required had notbeen sent in within the due period, the Returning Officer by his letter ofNovember 1, 1935, informed the applicant that in terms of Article 72of the Order in Council he should make the necessary application to theSupreme Court. He also informed him, by the same letter, that if fiefailed to obtain such an order he would render himself liable to aprosecution for illegal practice under Article 69 (1) of the same Order inCouncil. Mention must also be made of the fact that, on account of thebelated receipt of the applicant’s vouchers, the Returning Officer by hisletter of November 14, 1935, informed the applicant that he was returningthem and that he could not accept them without the necessary orderof the Supreme Court. Hence the present application. It is supportedby an affidavit of the applicant himself dated December 14, 1935. Theallegations contained therein were not challenged either by a counter-affidavit or at the argument. In this affidavit the applicant averredinter alia that his omission to send the vouchers along with the returnof expenses was due entirely to inadvertence and not to any want ofgood faith on his part. .
This application first came up before my brother Soertsz A.J. whoexpressed himself thus: —“ The applicant does not say what theinadvertence was, and I think it is necessary that he should do so. ”
The applicant’s Counsel thereupon moved to withdraw the applicationand file a fresh application on an ampler affidavit. The motion wasallowed.
Thus a second application was made on February 19, 1936, accompaniedby a second affidavit dated the same day. In this second affidavithe amplifies his excuse by stating that at the time he sent the returnhe “ overlooked and forgot the fact that vouchers for items of Rs. 20 andover had to be attached to the said return ”. In the same affidavitthe applicant explains how the Returning Officer’s request of October 24came to reach him on October 31, i.e., three days after the expiry of thedue period. He states that he was out of Colombo at the time anddid not return till October 31 and that, his printers being in Ambalangoda,it took him some time to obtain receipts from them.
KOCH J.—In re de Zoysa. „
247
This second application supported by the second affidavit just referred,to was listed before me and came up for consideration on February 26,1936. After applicant’s Counsel was heard I pointed out to him thatthe prayer in this second application was. restricted to relief only inrespect of the failure to transmit the necessary vouchers in time, whereasit would be necessary to seek relief in respect of a further omission inview of the fact that Mr. Schokman who appeared as amicus curiaemaintains that under the notes to the fifth schedule to the Order inCouncil another requirement had not been complied with by the applicant,namely, that he had failed to set out in detail with dates of paymentthe items that contributed to make up the lump sums under certainheads required by that schedule. The applicant’s Counsel Mr. Amere-sekere appreciating the deficiency in the prayer asked leave to amendhis application. This I granted, and the application now comes beforeme in an amended form and with a third affidavit by the applicantdated February 27, 1936. In paragraphs 2 and 3 of this third affidavitthe applicant avers that he did not set out in his return the requisitedetails of the sums under Rs. 20 for which no receipts were attached,not by reason of a want of good faith on his part but by reason ofinadvertence in that he overlooked and quite forgot that it was necessaryto do so. He further avers that when the Returning Officer by letterrequested him to transmit the necessary documents, he (the applicant)considered it sufficient only to send vouchers for items of Rs. 20 andover and that it did not occur to his mind at the time, that it was neces-sary to set out in detail with dates of payment all sums for which noreceipts were available.
On a reference to the fifth schedule it will be found that the substantialrequirement there, is that expenses shall be shown under six heads(a) to (f) which appear in section 2 of the schedule. There is no mentionthere, expressly or by implication, that receipts or vouchers should beforwarded or that details of payment should be given. It is only thenotes (3) and (4) appearing at the foot of the schedule that would appearto require the production of receipts or vouchers in respect of sums ofRs. 20 and over, and of details in respect of sums for which no receiptis attached.
It will also be seen that the substantial requirement, namely, thatexpenses shall be shown under six particular heads, are called for inlanguage that is imperative. The words are “ there shall be shown ”,followed by an enumeration of the six different heads. In the notesto the schedule, however, the words used requiring the production ofvouchers are, “ have to be attached ” ; and the words requiring theproduction of details are, “ are to be set out ”. It is suggested thatthese words are purely directory and not of an imperative nature. Thereis some reason in this suggestion but it is not necessary for me to decidewhether these words are purely directory as suggested or whether theydo really contain within them the element of a command. However,in exercising my discretion as to whether this application should begranted or not, I have to take every circumstance into consideration.When, therefore, it is found that the requirement with regard tovouchers and to details appear in a note—almost a footnote—and not
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KOCH J.—In re de Zoysa.
in the main body of the schedule, the alleged circumstances that therequirement contained in such note had been overlooked and forgottenappear to be a normal and natural possibility even though at some timeprevious these notes may well have been read by the candidate himself.It has also to be remembered that the applicant was a defeated candidatein the by-election and that he would in all probability not have directedhis mind to such a close and scrutinizing investigation of the details ofexpenditure as might be expected from a successful candidate beset asthe latter would naturally be with apprehensions of an election-petition.
Section 72 permits me to grant relief and allow the application if I amsatisfied that the requirements of the fifth schedule had not been com-plied with by reason of inadvertence and not by reason of any want ofgood faith on the part of the applicant. Inadvertence will not excuseignorance of the law and it is not claimed for the applicant that he wasignorant of the law. The applicant’s case is that he forgot to complywith the provisions of the law. Such forgetting, there can hardly beany doubt, amounts to inadvertence if it does not exactly connote it.The word ‘ inadvertence ” primarily means—not giving one’s mindto any matter, and therefore can, rightly be applied to a case of forgetful-ness. It is not necessary for me to deal exhaustively with all theauthorities on the subject as there is a very recent judgment of Garvin J.in the case of Fernando v. Fernando1. That was a case under the Money.Lending Ordinance, No. 2 of 1918. In the Ordinance there is provisionfor relief to be granted to'the payee of a promissory note with certainrequirements. That relief, it is stated in the Ordinance, can be grantedwhen the Court is satisfied that the default was due to inadvertence andnot to any intention to evade the provisions of the Ordinance.
It will be appreciated that the grounds for relief arising under theMoney Lending Ordinance are for all practical purposes the same asthose set out in the Article 72 of the Order in Council, namely, that theCourt should be satisfied that the default was due to inadvertence and notto any mala fides on the part of thd party seeking relief. Garvin J.,after considering the authorities on the point and referring in particularto the case of In re Phears2 accepted the finding of Smith L.J., that“ inadvertence ” meant the opposite of deliberate election. He hasalso emphasized that the word “ inadvertence ” was sharply contrastedwith the words “ and not to any intention to evade the provisions ofthis Ordinance In section 72 of the Order in Council the word“ inadvertence ” is with equal sharpness contrasted with the words“ and not by reason of the want of _good faith on the part of theapplicant”. This being-so, T fail to see any reason why the word“ inadvertence ” when it appears in the Order in Council should begiven a different meaning from what it has been given when it appearsin the Money Lending Ordinance. Garvin J. in the case referred to heldthat the word “ inadvertence ” read in conjunction with the contrastingwords (as in this case) would appear to indicate strongly that the actwhich the Money Lending Ordinance intended to penalize was theintentional evasion of its provisions. The same view should, be heldin the case before me.
1 36 N. L. B. 17.
* 1 Q.B. D. 1, 61
AK.BAR S.P.J.—Lebbe Marikar v. Mohamed Kalid.
249
It will be further seen that section 72 provides for relief being grantedin the case of an error or false statement made in the return. It is truefrom the context that the false statement referred to in the Article implies-an incorrect statement untinged by any element of bad faith, but never-theless the point to be noted is that the incorrect statement may misleadthe Returning Officer or the public whereas the mere absence of detailsas in this case can mislead none ; it only makes the omission in such returnall the more apparent on the face of it.
There is no reason why the explanation of the applicant set out in thedifferent affidavits should not be accepted by me, and as I find that theomission to forward the vouchers in time and supply the necessary detailswas due to inadvertence and not to any want of good faith on the part ofthe applicant, I make order under section 72 allowing the authorizedexcuse prayed for.
There, is a further point I have to consider and that is whether Ishould make this allowance conditional upon the making of a returnor declaration in a modified form and within an extended time uridersub-section (3) of Article 72- In doing so I must be careful to see that theeffect of the relief now granted will not be nullified by prescribing termswhich may be found to be difficult of fulfilment and which may tend tocreate unnecessary hardship on the applicant. It is manifest fromthe wording of the sub-section just referred to that the intention of theLegislature was to give due weight to such a consideration.
I therefore make the allowance of the relief prayed for conditionalupon the applicant’s furnishing within one month from the date of thedelivery of this order, the omitted details and particulars to the best ofhis recollection, belief, and knowledge.
Application allowed.