043-NLR-NLR-V-55-K.-RAMALINGAM-Appellant-and-KUMARASWAMY-Respondent.pdf
ROSE C.J.—Ramalingam v. Kumaraswamy
145
1953 Present : Rose C.J., Nagalingam S.P.J. and Gratiaen J.K.RAMALINGAM, Appellant, and V. KUMARASWAMY,Respondent
Election Petition Appeal No. 2 op 1953—ChavakachcheioElection Petition No. 16 op 1952
Election Petition—Right of appeal—Scope—Ceylon (Parliamentary Elections) Orderin Council, 1946, ss. 81, 82a., 82b, as amended by Parliamentary Elections(Amendment) Act, No. 19 of 1948.
An election petition was dismissed by the Election Judge on the groundthat notice of the presentation of the petition had not been served on therespondent as required by Rule 15 of the Parliamentary Election Rules. Inthe appeal preferred by the petitioner, the respondent raised the preliminaryobjection that appeal did not lie against the order of the Election Judge.
Held, that there was no right of appeal. One pre-requisite for an appealunder section 82 A (1) of the Parliamentary Elections (Amendment) Act, 'No. 19of 1948, is thct.it must be against the “ determination ” of an Election Judgeunder section 81. In the present case, there had been no “ determination ”within the meaning of section 81 of the Act.
^^.PPEAL in Chavakachcheri Election Petition No. 16 of 1952.
iS". J. V. Chelvanayakam, Q.C., with C. S. Barr Kumarakulasinghe,G. T. Samerawickreme and G. Candappa, for the petitioner appellant.
H. Y. Perera, Q.C., with E. B. Wikramanayake, Q.C., H. Wanigatungaand E. A. D. Atakorale, for the respondent.
Cur. adv. vult.
November 13, 1953. Rose C.J.—
In this matter the petitioner appeals from an order of the ElectionJndge dismissing his petition on the ground that notice of the presentationof the petition Was not served on the respondent as required by Rule 15of the Parliamentary Election Rules, 1946.
– The election for the Chavakachcheri electoral district held on the 26thMay, 1952, and its result was published in the Government GazetteExtraordinary No. 10,404 dated 31st May, 1952. The last date on which7LV
2J. N. B 30401-1,500 (10/53)
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ROSE C.J—Ramalinga>m v. Rumaraswamy
a petition could properly have been filed was the 21st June, 1952, andit was on this day that the petitioner filed his petition. Tn accordancewith the provisions of Rule 15 notice of the presentation of this petitionshould have been served by the petitioner on the respondent within 10days of the 21st June, 1952. The relevant rules read as follows :—
“ 10. Any person returned as a Member may at any time, afterhe is returned, send or leave at the office of the Registrar a writing,signed by him on his behalf, appointing a person entitled to practiseas a proctor of the Supreme Court to act as his agent in case thereshould be a petition against him, or stating that he intends to act forhimself, and in either case giving an address within the City of Colomboat which notices addressed to him may be left, and if no such writingbe left or address given, all notices and proceedings may be given orserved by leaving the same at the office of the Registrar. Every suchwriting shall be stamped with the duty payable thereon under the lawfor the time being in force. ”
“ 15. Notice of the presentation of a petition, accompanied by acopy thereof, shall within ten days of the presentation of the petition,be served by the petitioner on the respondent. Such service may beeffected either by delivering the notice and copy aforesaid to theagent appointed by the respondent under rule 10 or by posting thesame in a registered letter to the address given under rule 10 at suchtime that, in the ordinary course of post, the letter would be deliveredwithin the time above mentioned or if no agent has been appointed,nor such address given, by a notice published in the Government Gazettestating that such petition has been presented, and that a copy of thesame may be obtained by the respondent on application at the officeof the Registrar.”
A notice of the presentation of the petition was in fact published inthe Gazette on the 27th June, 1952, but the learned Election Judge cameto the conclusion, after hearing evidence, that an agent had in fact beenappointed by the respondent under Rule 10, and that therefore thepublication in the Government Gazette as provided in Rule 15 was notappropriate in the case of the present petition and could not avail thepetitioner. It is against this order of the learned Election Judge thatthe petitioner now appeals. The respondent raises the preliminaryobjection that no appeal lies against the present order.
Section SI of the Ceylon (Parliamentary Elections) Order in Councilin its unamended form reads as follows :—'
“81. At the conclusion of the trial of an election petition theelection judge shall determine whether the Member whose return, orelection is complained of, or any other and what person, was- dulyreturned or elected, or whether the election was void, and shall certifysuch determination to the Governor. Upon such certificate beinggiven, such determination shall be final ; and the return shall be
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ROSE C..T.—Ratnalingatn a. Ktimaraswamu
confirmed or altered, or the Governor shall within one month of suchdetermination by notice in the Government Gazette order the holdingof an election in the electoral district concerned, as the case mayrequire, in accordance with such certificate. "
It will be seen that the determination of an Election Judge imder thatsection is final and is not subject to any appeal. It is interesting torecall that after the 1947 general election in Ceylon one candidate wholost his seat as a result of a successful election petition against himendeavoured to appeal to the Privy Council from the Order of the ElectionJudge. The matter is reported in 50 N. L. R. at page 481.(G. E. de
Silva v. Attorney General and others). At page 483 Lord Simonds, thepresent Lord Chancellor, says,
“ It is no doubt true, as counsel for the petitioner urged, that theprerogative right to entertain an appeal is ‘ taken away only by expresswords or the necessary intendment of a statute or other equivalentact of state ’ (see R&nouf v. A. G.) (1936) A. C. 445 at 460, but, as waspointed out in Theberge v. Laudry, the preliminary question must beasked whether it was ever the intention of creating a tribunal with theordinary incident of an appeal to the Crown. In this case as in thatit appears to their Lordships that the peculiar nature of the jurisdictiondemands that this question should be answered in the negative …
… Such a dispute as is here involved concerns the rights and
privileges of a legislative assembly, and, whether that assembly assumesto decide such a dispute itself or it is submitted to 'the determinationof a tribunal established for that purpose, the subject matter is suchthat the determination must be final, demanding immediate actionbj' the proper executive authority and admitting no appeal to HisMajesty in Council. This is the substance of the authorities to whichreference has been made, and it is noteworthy that in accordancewith them an appeal in such a dispute has never yet been admitted.It is for these reasons that their Lordships have humbly tenderedtheir advice to His Majesty that the petition ought not to be granted.
That, then, was the position under the Order in Council as unamended.By the Parliamentary Elections (Amendment) Act, No. 19 of 1948,section 81 of the Order in Council was repealed and the following Sectionsubstituted :—
“ At the conclusion of the trial of an election petition the electionjudge shall determine whether the Member whose return or electionis complained of, or any other and what person, was duly returnedor elected, or whether the election was void, and shall certify suchdetermination in writing under his hand. Such certificate shall bekept in the custody of the Registrar of the Supreme Court to be dealtwith as hereinafter provided. ”
Section 82 was also repealed and in its place appear new ’sections 82,82a, 82b, 82c, 82d.
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ROSE C.J.—Ramalingain «. ICnmara&iaamy
The new section 82a provides, in certain circumstances, a right of appealto the Supreme Court from a determination of an Election Judge. Therelevant sub-section reads as follows :
82a (1) : “ An appeal to the Supreme Court shall lie on a questionof law, but not otherwise, against the determination of an electionjudge under Section 81. ”
It will be seen that there are two pre-requisites for an appeal. First,it must be a question of law ; secondly, it must be against the determina-tion of an Election Judge under Section 81. In order to ascertain what ismeant by “ determination ” it is helpful to refer to Section 81 itself,which sets out what it is that the Election Judge has to determine ;namely—in the case of a contested election—whether the member whoseelection is complained of was duly elected, or whether the election wasvoid. It is relevant to note that when an election Judge has made f ucha determination it is his duty to certify such detenuination in writingunder his hand. In any case where no appeal is preferred against thedetermination of the Election Judge or where an appeal is preferredbut the Election Judge’s determination is confirmed, such certificatehas to be transmitted to the Governor-General under section 82c. Uponthe transmission to the Governor-General of this certificate certainlegal results follow, which are set out in Section 82d.
In the present matter the learned election Judge has not issued acertificate for the reason, no doubt, that he considered that his dismissalof this petition was not a determination under Section 81 of the Act.He evidently took the view, with which I am in agreement, that beforeit became necessary for him to determine the matters which are contem-plated in Section 81, certain conditions precedent had to be fulfilled ;such as the proper giving of security as required by Rule 12, and the dueservice of notice as required by Rule 15. Such requirements are notunusual in this type of matter and it was held in an old English case,Williams v. The Mayor of Tenby and others that it is a condition precedentto the trial of a municipal election petition that, within five days afterthe presentation of it, the petitioner should in the prescribedmanner serve on the respondent a notice of the presentation of thepetition.a
Learned Counsel for the appellant contends that an appeal lies undersection 82a (1) to the Supreme Couit on any question of law and thatan election Judge should regard section 81 as requiring him to issue acertificate in all cases, even where the petition is rejected on the groundof a non-compliance with one of the conditions precedent to its determina-tion, on the footing that any rejection of a petition lon such groundsnecessarily implies a determination that the respondent member hasbeen dulj returned or elected.
1 L. R. 5 G. P. D. (1879 and 1880) p. 135.
ROSE C.J.—Ramalingam v. Kumaraswamy
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Apart from the fact that such an interpretation, in my opinion, does-violence to the language of section 81, the matter seems to me to be putbeyond all doubt by section 82b, which prescribes the powers of theSupreme Court in appeals under the Act. Sub-section (1) of the Sectionreads as follows :—
“ The Supreme Court may, upon any appeal preferred under Section82a, affirm or reverse the determination of the Election Judge ; andwhere it reverses the determination, the Court shall decide whetherthe Member whose return or election was complained of in the electionpetition, or any other and what person, was duly returned or elected,or whether the election was void, and a certificate of such decisionshall be issued by the Court. ”'
It is to be noted that where the Supreme Court reverses a determination,as we are invited to do in this case, it has to make a decision as to whetherthe member whose election was complained of was duly elected, orwhether the election was void ; moreover, sub-section (3) provides thatthis decision is final and conclusive.
It would seem to follow from this that this Court has no power toremit a matter to the Election Judge for further consideration or fordisposal of the remaining issues. Such a conclusion would perhapsseem to be self-evident, but if an instance is required in an analogouscase it is provided in Abdul Fareed v. The Tribunal of Appeal, MotorTransport and another 1 where it was held that the Tribunal of Appealunder the Omnibus Service Licensing Ordinance, No. 47 of 1942, hasno power to remit the matter for decision by the Commissioner, or evenfor the re-consideration of any particular points by the Commissioner.Under sub-sections (2) and (3) of section 14 of the Ordinance, the Tri-bunal of Appeal can do one of two things only, namely, either confirmthe Commissioner’s refusal of a licence or order that the licencebe issued.
Quite apart from the fact that the provisions of the Sections of theParliamentary Elections (Amendment) Act, which I have been considering,seem to me to afford no ambiguity, I would in any event be reluctantto accord them an interpretation which would result in the causing ofthat very type of delay which it is so clearly in the public interest toobviate.
Einally, it would hardly seem to be necessary to repeat what hasalready been pointed out bjr Swan J. in Cooray v. Fernando 2 that when anelection petition is presented the petitioner should serve notice of it onthe respondent within the prescribed time. The failure to do so is afatal defect. The fact that the respondent had knowledge of the pre-sentation of the petition does not amount to notice and does not dispensewith the requirement as to service of notice. 1
1 (1950) 51 JST. L. R. 211.* (1953) 54 -A7. L. R. 400.
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GRATIAEN J.-.—Ramalingam v. K.vumaraewamy
■ For these reasons I am of opinion that no appeal lies to the Supreme•Court against this Order of the Election Judge. The appeal is thereforerejected. The appellant will pay the costs of the respondent in the sumof Us. 1,050.
Nagaletoam S.P.J.—I agree.
G-hatxaen J.—
Section 81 of the Order-in-Council, in its original as well as in itsamended form, does not operate until the completion of all the stepspreliminary to the investigation of the grounds on which an electionis challenged. The petitioner must first satisfy the conditions precedentto his right to have the petition tried on the merits—Williams v. TheMayor of Tenby 1. It is then only that the trial can properly commencefor the “ determination ” of the vital question “ whether the Member
. . . . or any other …. person, was duly returned orelected, or whether the election was void ”. The right of appeal conferredby the new section 82a (1) is not unlimited ; it is restricted to appealson questions of law against an Election Judge’s “ determination ” (under.section 81) which, but for such appeal, would have resulted., in a final andconclusive decision as to the validity of the election.
The limitations placed on an aggrieved party’s right of appeal undersection 82a (1) are implicit in the language of the section itself ; they arefurther emphasised in section 82b which prescribes the duties imposed onthis Court whenever it is called upon to exercise its appellate jurisdiction.For, in disposing of an appeal, this Court has power only to affirm orreverse the earlier “ determination ” of the election judge. If that“ determination ” is affirmed, sections 82c (1) and 82d (1) (a) are broughtinto operation. If, on the other hand, it is reversed, the Court “ shall ”immediately proceed to decide “ whether the Member …. orany other and what person, was duly returned or elected, or whether theelection was void ”. The Election Judge’s findings upon any issues offact which may be relevant to the validity of an election must, unless completelyvitiated by misdirection or by a total absence of evidence, supply the materialwhich (interpreted in the light of correct legal principles) forms the basisof the ultimate decision of this Court. A certificate of this decision is thenissued, and the provisions of sections 82c (2) and 82d operate to giveeffect to it.
It is quite apparent from the language of the relevant sections that,upon the termination of an appeal, a final decision was intended by Parlia-ment to follow one way or the other as to the validity of the return or electionof the “ Member ”, so that no middle course is open to the Court. Thisrules out Mr. Chelvanayakam’s contention that a right of Appeal is alsoconferred against an Election Judge’s decision (at an earlier stage) up-holding an objection to the petitioner’s right to have his allegationsagainst the “ Member ” investigated on the merits. In the first place,such a decision is not a “ determination ” of the issues specified in section
{1879) 5 C. P. JD. 135.
GRATTAEX J.—1iamalingam v. Kamara#ucaaitf
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SI ; it amounts only to a ruling that the petitioner has forfeited the rightto have his allegations investigated at all. In the second place, theargument assumes quite ■wrongly that this Court enjoys some unexpressedbut inherent statutory power, if it disagrees with an Election Judge'sdecision upholding a preliminary objection, to ignore the express andimperative directions of section 82 by ordering him instead to commencean election trial under section 81 which has not yet taken place. Mr.Chelvanayakam very properly did not suggest, as an alternative solution,that the section requires us, in such a case to assume an original juris-diction to hear evidence for the first time in order to “ determine ” forourselves the vital issue whether or not the return or election should beset aside..
A recognition of the importance, in the public interest, of reachingfinality as early as possible in the disposal of complaints concerningthe validity of parliamentary elections is implicit in the entire schemeof the Order-in-Council which, in its original form, made no provisionfor appeals against an Election Judge’s decisions (right or wrong). Thereare always two conflicting considerations in a matter of this kind—on the one hand, the desirability of providing reasonable safeguardsagainst the possibility of human error in the judicial decision of importantissues ; on the other, the avoidance of delay in ascertaining who preciselyare the persons duly elected to represent the people in Parliament. Howthat conflict should best be resolved, is for the Legislature alone to decide.
It is in that context that we must interpret the amending Act, and theinvitation that we should discover in the new sections a vesting of suchinherent powers as those suggested by Mr. Chelvanayakam is, to mymind, an invitation to indulge in “ a naked usurpation of the legislativefunction under the thin guise of interpretation ”—Magor & St. MellonsR. D. C. v. Xewport Corpn.1 What is still worse, this suggested“ judicial ” legislation would be calculated to add to the delays which,in the public interest. Parliament was concerned to minimise.
We have been asked to consider the consequences of an election judgemaking a manifestly erroneous preliminary order rejecting an electionpetition, or arriving at a determination under section 81 (upholding anelection) which is largely influenced by his refusal to admit a large volumeof relevant and admissible evidence. In all these hypothetical cases,the argument continues, justice requires that the appellate jurisdictionof this Court should include a power to remit the case for further pro-ceedings according to law. The short answer to this submission is thatno such jurisdiction has been conferred on us, and that the argumentsshould be addressed to the legislature and not to us. This Court, in thepresent context, must strictly confine its judicial functions within thesphere of the limited jurisdiction which it does possess, and cannot traveloutside those limits in order to exercise over election judges some formof unregulated) supervisory control.
I agree that the petitioner has no right of appeal against the order ofwhich he complains, and I agree that costs should be fixed as directedby my Lord the Chief Justice.
Appeal rejected.
(1952) A. C. 1S9 at 191.