WUEIEWABDENE J.—Karunaratne Banda v. Aladin
1944Present: Wijeyewardene J.KARUNARATNE BANDA v. ABADIN.
In the Matter of an Application for a Writ of quo warranto, No. 592_
Village Committee election—Allottingof colourstocandidates—Mistake on
the part of presiding officer—Confusion caused in the minds of voters—
Alleged acquiescence on part of respondent—Election declared void.
At an electionfora VillageCommittee,on nominationday,the
petitioner was allottedgreen asthe colourof his ballotbox andthe
respondent was given yiellow as his colour.
On election day the presiding officer, acting on official records, decidedchat yellow should beconsideredthe colourgiven to thepetitionerand
green the colour allotted to the respondent.
Petitioner protested but did not withdraw from the election.
Held, that the change in the colours had misled a large number ofvoters and had prevented them from registering their votes and that theelection should be declared void.
Held, further, that petitioner’s conduct on election day did not amountto acquiescence intheproceedingsand that,even if therehadbeen
acquiescence on his part, the Court should not uphold the election.
rpHIS was an application for a writ of quo warranto.
H. Wanigatunge (with him Makes a Ratnam), for the petitioner.
U.P. Weerasinghe, for the respondent.
June 26, 1944. Wijeyewardene J.—
This is an application by the petitioner for a declaration that the electionof the respondent as Member for Ward No. 2, Kudabage, Bambarakotuwa(East) in the Village Committee of Uda pattu in Navadum korale,Sabaragamuwa, is null and void.
The following facts are admitted:—On October 19, 1943, nominationpapers were received by Mr. D. Wanasundera, Office Assistant to the
WiJiiiYEWAItDENE J.—Karunaratne Banda v. Aladin
Government Agent, Ratnapura, for the election of a Village CommitteeMember for the Ward in question. Mr. Wanasundera recorded thenames of the petitioner and the respondent as Candidate No. 2 and-Candidate No. 1 nominated for election and directed a poll to be held.The polling took place at the Government School at Bambarakotuwafrom 9 a.m. to 11 a.m. on November 16, 1943, the presiding officer beingMr. G. Xj. S. Illangakoon. There were two ballot boxes, one coloured.'green and the other yellow; and the presiding officer counted 210 and147 ballot papers in the green and yellow boxes respectively. The-respondent who was, thereupon, declared duly elected took his seat inthe Village Committee and signed the Register of Members on December 7,1943.'
The dispute in this case arises as to the colodr which was allotted toeach of the candidates. I think it best to consider this question undertwo headings: —
What were the colours which the petitioner and the respondentbelieved were allotted to them?
What were the colours which were, in fact, aHotted to the petitionerand the respondent by Mr. Wanasundera.
The petitioner says that he was allotted green and the respondent,yellow, on the nomination day. The respondent says, that he was-allotted green and the petitioner, yellow.
Soon after the colours were allotted, the petitioner informed the villageheadman of Bambarakotuwa village that he Was allotted green and the-respondent, yellow. The petitioner got the handbill annexed to P 4printed on November 12, 1943, and handbill P 1 printed about the sametime and a few days before the election. In both these handbills the-petitioner informed his supporters that his colour was green. He dis-played green flags near his house and the lorry which was used to transport-his voters carried a green flag when it went on its first trip on the electionday to bring the voters of Balakotunne village; while the respondentdisplayed some yellow flags near his house and exhibited a boardinforming his supporters that his colour was yellow. The petitioner-met Mr. S. C. Faulkner, the Manager of Alupola Group, Ratnapura,and got his permission to drive a lorry along the tarred road passingthrough the estate "for the purpose of taking people1 for Village Com-mittee electionsThe permit P 2 issued by Mr. Faulkner is dated
November 15, 1943, and states that the petitioner’s " flag will be greenThe petitioner wore a green rosette, when he went to the polling stationon the election day, and protested when Mr. Illangakoon told him thathis colour was yellow according to the record R 2 made by Mr. 'Wana-sundera on the nomination day. The petitioner is supported by the-village headman of Bambarakotuwa, Ratranhamy, the tax collector of theVillage Committee, Singho Appuhamy and William. I would not takeinto consideration the evidence of D. B. Appuhamy in assessing theevidence led on behalf of the petitioner. Appuhamy appeared to me to be-a witness on whose evidence it would not be safe to act.
As the petitioner was giving evidence before me, it transpired thatMr. Illangakoon had endorsed on R 1 on the election day that he" observed on arrival at the polling station that candidates Nos-. I and. 2^
WIJEYEWABDENB J.—Karunaratne Banda v. Aladin
wore rosettes of yellow and green respectively It is not improbablethat the knowledge of this endorsement had some effect on the evidenceof the respondent. The respondent says that he had no doubt whateverin his mind up to the morning of November 15, that his colour was greenand that he had informed all his supporters that his colour was green.
A doubt arose in his mind when he saw P 1 on November 15 about 10 a.m.,.but he took no action although he could have gone to the RatnapuraKachcheri and ascertained the true state of affairs. Yet, this doubtaffected his mind to sueh an extent that he made a yellow rosette thatnight and took it with him and wore it when he went to meet Mr. Illanga-koon. The record made by Mr. Illangakoon made it impossible for himto deny that he was wearing a yellow rosette when he met Mr. Illangakoon,but he made a pitiful effort to give as late an hour as possible for thewearing of the yellow rosette. He said he did not wear that rosette,when he left the house that morning, as he was certain in his mind thathis colour was green. But, when he was asked what made him puton the yellow rosette before meeting Mr. Illangakoon, he was unable togive an explanation. Nor was he able to give any reason for asking hissupporters to carry yellow flags on the vehicles long before he left homethat day for the polling station. Though he says he knew and believedthat green was his colour, he did not make a green rosette at any timeand he said in explanation “I could have ' improvised ’ the colour greenbecause green is everywhere, I mean the leaves of trees are green. Ithought I could use the leaf of a tree in case it turned out that my colourwas green ”. While according to him he had told his supporters earlierhis colour was green, he did not take any action to inform his supportersabout the uncertainty created in his mind by the appearance of P 1,though he allowed it to affect him so much as to wear a yellow rosetteand direct the use of yellow flags on his vehicle. He could not possiblydeny that his vehicles carried yellow flags in view of the definite evidencegiven by Eramanis, a disinterested witness, who drove his lorry that day.
I have not the slightest hesitation in rejecting the evidence of the res-pondent whom I consider as an untruthful witness. I hold that both thepetitioner and the respondent believed in good faith that their respectivecolours were green and yellow and acted in that belief from the nominationday right up .to the hour when they met Mr. Illangakoon on the electionday.
It is more difficult to decide the question as to the colours that werein fact allotted to the respective candidates on the nomination day.After a careful consideration of the evidence, I have reached the decisionthat the probabilities are in favour of the finding that the colour greenwas given to the petitioner and colour yellow to the respondent. It ishardly necessary. to observe that in' coming to this decision I do notquestion in the least degree the veracity of Mr. Wanasundera. I thinkthat owing to a certain confusion created perhaps by the descriptionof. the petitioner, then sitting member, as Candidate No. 2 and the res-pondent as Candidate No. 1, Mr. Wanasundera borui fide made a mistakein recording the colours allotted to the candidates.
There is the fact as found by me that the petitioner and respondentbelieved from the very commencement that their colours were green and
WUi£iH,WABDENE J.—-Karundratne Banda v. Aladin.
yellow respectively. The petitioner says that he was in fact, givengreen and the respondent, yellow. Batranhamy, who seconded his nomi-nation and was present at the time the colours were given, supports thepetitioner. I do not take into consideration the evidence of AbilinuSinno who too supports the petitioner. On the other hand there isof course the evidence of the respondent. The respondent has notcalled in support either his proposer or seconder who were present onthat occasion. Mr. Wanasundera’s evidence is based entirely on hisrecord as he has no independent recollection of the fact. It is hardlyto be expected that this witness would have such an independent re-collection considering that he had presided over 112 nominations in 1943.In fact his own endorsement made on P 4 on November 27, 1943, showsthat even at that time his recollection was faulty and he thought thatred was the colour given to the petitioner. It is easy to understand froman examination of B 2 how a bona fide mistake could have been made-with regard to the colours by Mr. Wanasundera on the nomination day.On one page of B 2 are written the names of the respondent and thepetitioner and their respective proposers and seconders. The respondentis there described as Candidate No. 1 and the petitioner as CandidateNo. 2. On the other page of B 2 occurs the following entry: —
To Candidate: No. 1 Green.Both Nos. 1 and 2 ask for green.
No. 2 Yellow.Colour is decided by casting lots.
It is not improbable that when he proceeded to make the above recordMr. Wanasundera made the mistake of thinking that the petitioner-the sitting member, was Candidate No. 1 and the respondent wasCandidate No. 2.
I think it more probable that the petitioner and respondent were infact given green and yellow respectively and I hold accordingly.
Mr. Hlangakoon who had no choice but to act according to the officiaLrecords decided on the election day that yellow should be considered asthe colour of the petitioner and green as the colour of the respondent.The petitioner protested against it but did not withdraw from the election..While Mr. Illangakoon did his best to remove the confusion that wascreated by the mistake as to the colours, I am satisfied that there remaineda great deal of confusion in the minds of the illiterate voters in spiteof Mr. Blangakon’s efforts. It is clear that Mr. Illangakoon’s announce-ment made from time to time with regard to the colours could not have-reached all the voters who came to vote. There is the definite evidenceof Singho Appuhamy and William that they cast their ballot papersin the belief that green was the colour of the petitioner. There is alsothe fact that owing to this “ change ” in colours only a few voters fromBalakotunne were able to register their votes, as the petitioner’s lorrywhich was to bring the voters was not allowed to- go on the estate roadas the vehicle did not carry a green flag as required by the Permit P 2,after Mr. Illangakoon informed the petitioner at the commencementof the poll that his colour was yellow.
On the evidence before me I am satisfied that the change in the colours-misled a large number of voters and it operated in the nature of a trap-
WIJBYEWABDENE J.—Karunaratne Banda v. Aladin.
•in the case of tlie illiterate voters who formed the majority. It has also.been proved that a large number of voters from Balakotunne wereprevented from registering their votes as a result of this change.
The Counsel for the respondent contended that the petitioner acquiescedin the proceedings on November 16, 1943, and thereby agreed that theelection should be held on the footing that the petitioner’s colour wasyellow and the respondent’s green. He drew my attention to -a passagefrom a judgment of Abbott C.J. cited in Shortt on Mandamus (at page151):—
“ A person is not to be permitted to impeach a title conferred by anelection in which he has concurred, or the titles of those mediately qrimmediately derived from that election.”
;and argued that the present application should, in any event, be dis-missed, leaving it open to an aggrieved voter to institute fresh proceedings^against the respondent.
Now it is laid down in the Encyclopaedia of the Laws of England■4Volume I., page 130) that—
“ Acquiescence during the progress of the infringing act, or of stepsnecessarily leading to it, will bar a legal right only where it amounts toan encouragement to do the act or take the steps, in the belief or•expectation that the right does not exist or has been abandoned(“ standing by ”), or is such as to raise an inference that the partieshave acted upon an agreement inconsistent with the right asserted.”
I do not think that the petitioner's conduct on the election day amounts*to such an “ acquiescence ”. He protested against the change of coloursbut was told by Mr. Illangakoon that the election would have to proceedon the basis that the colours were as shown in It 2. When Mr. Illanga-koon asked the petitioner and the respondent at the close of the poll"to sign It 1 expressing “ their satisfaction at the manner in which theelection was conducted ”—meaning thereby the arrangements made byMr. Illangakoon—the petitioner agreed to do so but insisted that a recordshould be made of his protest at the commencement of the poll withregard to the change in the colours, and Mr. Illangakoon recorded itaccordingly. The petitioner did nothing to encourage the respondentto take part in the election in the belief or expectation that the petitionerhad abandoned his right to challenge the election. The evidence shows•not only that he protested but made it clear that he would continue tomake his protest.
Even if there was an “ acquiescence ” on the part of the petitioner,could a Court uphold the election in the circumstances of this case assome of the voters had been misled by the mistake of the returningofficer and some others had been prevented from recording their votes?In circumstances somewhat similar to those in the present case an electionwas declared void in Wilson v. Ingham and others1.
• In that case, through the mistake of a clerk of the returning officer,the ballot papers contained the name of a candidate, J. M. Meek, who hadwithdrawn shortly after the nomination and within the time prescribedfor that purpose. When the returning officer, who acted as presiding
i (1895) 64 L. J. Q. B. D. 775.
WUEYEWAKDENE J.—Karunaratne Banda v. Aladin
officer at the election, became aware of the mistake just before the com-mencement of the poll, he informed most of the voters while handingthem their ballot papers that Meek was not a candidate for election andthat bis name appeared on the ballot papers by mistake. "When thevotes were counted, it was found that 34 votes had been given to Meek.These votes “ if otherwise given might have affected the result of theelection ”. The respondent’s Counsel in that case does not appear to-have even suggested that the petitioner was debarred from questioningthe validity of the election, as he “ acquiesced ” in the proceedingsafter the mistake was discovered.
In Rambukwelle v. Silva1 it was found after the voting had gone on for-sometime that the presiding officer had failed to stamp the ballot paperson the back with the official stamp. The presiding officer, thereupon,consulted the polling agents of the two candidates and inaccordance with their agreement, opened the box, took out the ballotpapers, stamped them with the official stamp, put them back in the ballotbox and sealed it. The petitioner made this irregularity one of thegrounds for impugning the validity of the election and the respondentcontended that the petitioner was estopped from relying on this ground.Bertram C.J. held against the plea of estoppel and said: —
“ If this were a case in which the parties were alone concerned, if itwere simply a question whether Mr. Rambukwelle (petitioner) or Mr.de Silva (respondent) should be a member for the division, I think-this principle might well be applied. Undoubtedly, but for the acqui-escence of Mr. Timothy de Silva (respondent’s agent), Mr. Rambuk-welle’s agent would not have consented to the stamping of the ballotpapers. But, as Mr. Pereira (petitioner’s Counsel) justly argued, the-public interests have also to be regarded. The voter has rights as wellas the candidate. The voters are entitled to have the result of theelection declared according to the law, and not according to anagreement between the candidates. No authority has been citedin which the principle of estoppel has been applied as between candidatesat 9n election, and I do not feel justified in giving effect to it here.”
Both Wilson v. Ingham and others (supra) and Rambukwelle v. Silva(supra) were, no doubt, proceedings on election petitions, while theapplication in this case is for “ a mandate in the nature of a writ ofquo warranto ” (Legislative Enactments, Chapter 6). The VillageCommunities Ordinance (Legislative Enactments Chapter 198) doesnot make any provision for testing the validity of an election under thatOrdinance by means of an election petition, and a person has, therefore,to adopt the procedure followed in this case if he desires to have theelection declared null and void (vide Piyadasa v. Goonesinha)*. More-over, this is not an application to substitute the petitioner in the officeof the respondent, and this application could have been made successfullyby any qualified voter like the witness William who had been misledby the change in colours. The adoption of the suggestion of the res-pondent’s Counsel that the present application should be dismissed on–the ground that the petitioner is disqualified and that it should be left
(1924) 26 N. L. R. 231.
(1941) 42 N. L. R. 339.
HOWARD O.J.—Hapumali and Ukkua.
open to a voter to make a fresh application would only result in un-necessary expense and inconvenience to all the parties concerned. In■all the circumstances of the case I would adopt the ruling of Bertram
J. in Rambukmelle u. Silva (supra) and hold against the respondent,even if there had been an “ acquiescence ” by the petitioner.
For the reasons given by me I declare the election of the respondentto be void.
The rule nisi is made absolute and the petitioner is granted the costsof these proceedings.
Election declared void.
KARUNARATNE BANDA v. ALADIN