L. EDRICK DE SILVA, Petitioner, and L. CHANDRADASA DE SILVA, Respondent

041-NLR-NLR-V-70-L.-EDRICK-DE-SILVA-Petitioner-and-L.-CHANDRADASA-DE-SILVA-Respondent.pdf


Edrick de Silva v. Chandradasa de Silva
169
1967 Present: H. H. G. Fernando, CJ., Tambiah, J., andSiva Supramaniam, J.
L. EDRICK DE SILVA, Petitioner, and L. CHANDRADASA
DE SILVA, Respondent
Election Petition Appeal No. 16 op 1966
Election Petition No. 4 of 1965—Balapitiya {Electoral District
No. 55)
Election petition—Statue of petitioner to present petition—Standard of proof required—Same as in a civil action—Burden of proof—Factum probandum—Petitioner'»evidence thereon uncontradicted—Duty of Court to take that circumstance intoaccount—Criminal Procedure Code, 88. 162, 101, 234 (1)—Civil Procedure Code,os. 147,163—Evidence Ordinance, 8. 3—Ceylon (Parliamentary Elections) Orderin Council, 1946, 8. 79.
In an election petition, where the only question to be determined ws3 whetherin terms of section 79 of the Ceylon (Parliamentary Elections) Order in Councilthe person who presented the petition had a ri^’it to vote at the election towhich the petition related, or in other words whether the name of that personwaa entered on the register of electors for Electoral District No. 55 in operationunder the Order in Council at the time of the holding of the General Election inMarch 1965—
jfield : When it is necessary to adduce proof of the status of a petitioner inan election petition, the standard of proof is the same as that required underour law in civil actions. Principles of the criminal law as to proof of guilt,which are reinforced by provisions such as sections 162, 19d and 234 (1) ofthe Criminal Procedure Code, are not applicable.
A petitioner need not adduce proof of status unless and until such proof isdemanded by objection taken by the respondent. Such proof may be demandedbefore the closo, or at the close, of the petitioner’s case.
The objection as to proof of status constitutes a formal submission to theCourt that there has not been evidence to prove the petitioner’s qualification assuch, plus a motion that the petition be dismissed if such proof is not adduced.But where there is evidence on record which, if believed, is ample proof ofthe petitioner's qualification to present the election petition, the burdenwould shift to the respondent if he challenges the evidence of status.
Where the petitioner has led evidence sufficient in law to prove his status, i.e.,a factum probandum, the failure of the respondent to adduce evidence whichcontradicts it adds a new factor in favour of the petitioner. There is then anadditional “ matter before the Court ”, which the definition in section 3 of theEvidence Ordinance requires the Court to take into account, namely, that theevidence led by the petitioner is uncontradicted. The failure to take accountof this circumstance is a non-direction amounting to a misdirection in law.
The petitioner’s name in the caption of his petition was given as “ LuwisduraEdrick de Silva The petition purported to be signed by the petitioner, butthe signature waa written aa “ 1>. Adrich de Silva The evidence of certainwitnesses called for the petitioner showed that the person whose signature
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170 E. N. G. FERNANDO, C.J.—Edrick de Silva v. Cha ndradaea de Silva
appeared in the petition was the person named in the caption, and that thatperson was “ Luwisdura Edrick de Silva ” who was registered in the EleetoralList as a voter. The evidence of those witnesses was not contradicted. Afterthe close of the petitioner’s case. Counsel for the respondent raised an objectionto the continuance of the hearing of the petition on the ground that thepetitioner had not proved his status to maintain the petition. The ElectionJudge upheld the objection and dismissed the petition.
Held, that the failure of the Election Judge to take account of theuncontradicted evidence of the aforementioned witnesses was a non-directionamounting to a misdirection in law which vitiated the conclusion of factreached ultimately by the Judge.
Obiter : “ Section 147 of the Civil Procedure Code permits an issue of law tobe disposed of as a preliminary issue, but it does not permit the same issue to bedecided more than once. Hence, even if it was permissible for respondent’sCounsel in this case to request a determination on the matter of status at thestage when he made it, that request disentitles him from loading any furtherevidence to disprove the status.”
Ej LECTION Petition Appeal No. 16 of 1266—Balapitiya (ElectoralDistrict No. 55).
Thiagalingam, Q.C., with M. L. de Silva and R. D. C. de Silva, forthe Petitioner-Appellant.
Colvin R. de Silva, with K. Shinya, Nimal Sevanayake, Mrs, SarathMuthetuicegama, Hannan Ismail and Nihal Jayawickrema, for theRespondent.
Cur. adv. mill.
13th September, 1967. H. N. G. Fernando, C.J.—
The election of the respondent as member for Electoral District No. 55Balapitiya at the General Election held in March 1965 was challenged inthis petition on various grounds set out therein. After the close of thepetitioner’s case, Counsel for the respondent raised an objection to thecontinuance of the hearing of the petition on the ground that thepetitioner had not proved his status to maintain the petition.After hearing argument the learned Election Judge made orderdismissing the petition on that ground. This appeal was against theorder of dismissal. The appeal was allowed by order made on 25thAugust 1967 and I now state my reasons.
The question whether the petitioner had a status to maintain thepetition is referable to Section 79 of the Ceylon (Parliamentary Elections)Order in Council. For the purposes of the present case the only questionto be determined is whether in terms of Section 79 the person whopresented the election petition had a right to vote at the Election towhich the petition related, or in other words whether the name of that
H. N. G. FERNANDO, CJ.—Edrick de Silva v. Chandradaea de Silva 171
person was entered on the register of electors for Electoral DistrictNo. 55 in operation under the Order in Council at the time of theholding of the General Election in March 1DG5. That register hasbeen produced marked P54.
There were a number of matters in evidence upon which the petitionerrelied as being in law sufficient to prove that the name of the person,whopresented the petition in this case was entered in the entry P51A in theregister P54. The argument for the petitioner in the appeal has beensubstantially that the conclusion reached by the trial Judge on theavailable evidence must be reversed on grounds of law.
Counsel appearing for the respondent in appeal argued at one stage thatin election law the requirement of proof beyond reasonable doubt, whichapplies in respect of charges made in a petition, applies equally for thepurposes of proving the qualification of a person to be the petitioner insuch a petition. The unsoundness of this argument is easily demonstrated,
Rogers (Vol. 2, p. 215) refers to the Walsall case decided in 1892, thereport of which is unfortunately not available to us, and states that theburden of proving that a petitioner docs not possess the requisite qualifi-cation is on the respondent. This statement was considered in Abey•ivardenav. Dharmapala 1, by Swan J., who rejected the contention thatthere is “ a presumption that a person who files an election petition isqualified so to do, and if his status is challenged it is for the respondent toprove that he is disqualified.” Sv'an J. added the following observations
“ There may be occasions where the burden might shift to therespondent to prove that the petitioner is disqualified. If, forinstance, the petitioner gave evidence and said that he had voted andpointed to the fact that his name appeared on the Electoral Registeras a duly qualified voter, and the respondent challenged Ids status, orcontended that he was disqualified, or that he was not the person whowas duly registered although his name appeared on the ElectoralRegister but that the person registered W'as somebody else residingin the same village and bearing the same name, then the burdenwould be on the respondent to prove the facts he alleges.”
I agree entirely with the view's which Swan J. expressed. But I notethat, in the case which he decided, Counsel for the respondent referred tothe matter of the absence of proof of the petitioner’s status at the close ofthe petitioner's case (cf. the first line of the order at p. 138). This meansthat reference to this matter of status was made after Counsel for thepetitioner had formally closed his case ; nevertheless Swan J. both at thestage when the reference wras made and at the stage w'lien he made hisorder, called upon the petitioner’s Counsel to lead evidence as to thepetitioner’s status (cf. the last sentence in the order). Swan J. firstrejected the contention that an objection (as to the absence of proof of
1 (1953) 55 N. L. R. 138.
172 H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de SUva
status) must be taken at the commencement of the trial, and also thecontention that the motion need be in writing. I cite again from hisorder :—
“ I do not think, as Mr. Nadarasa argued, that a substantive motionmust necessarily be a motion in writing. In my opinion a substantivemotion is one of real importance. I am unable to agree with Mr. Nada-rasa that it must be taken in litimie before the trial and if not so takenmust be deemed to have been waived. In East Cork 6 O’M. & H. 3G1the objection that the petitioner’s status had not been proved wastaken at the close of the whole case so that the petitioner had noopportunity to meet it. It was therefore properly over-ruled. Iconsider the application of Mr. Wikramanayalce made at the close ofthe petitioner’s case to have the petition dismissed unless evidence wasled to prove the petitioner’s qualification to file the petition to be asubstantive motion and that it has not been made so late as to entitleme to reject it.”
Thus the order (1) affirmed the correctness of the East Cork decisionthat an objection, that the petitioner’s status has not been proved, mustbe over-ruled if taken only at the end of the whole case ; and (2) held that,if the objection is taken before the close, or at the close, of the petitioner’scase, the petitioner can then lead evidence in proof of status. In thesituation at (1) above, there is in fact no proof at all of the petitioner’sstatus ; but this fact will not entitle the respondent to ask for dismissalon that ground. The situation at (2) is less extreme : here there is no suchproof on record at the close of the petitioner’s case, but if objection is thentaken on that ground, the petitioner can then adduce the proof. I
I respectfully adopt and confirm the conclusion of law which is manifestfrom Swan J.’s order ; namely that a petitioner need not adduce proof ofstatus unless and until such proof is demanded by the respondent, andthat such proof may be adduced even after the close of the petitioner’sease if the demand is only made at that stage. This conclusion, reachedin Ceylon 14 years ago, indicates that the election law attaches no greatimportance to the matter of proof of status ; the status is assumed if noobjection to lack of proof is taken at the close of the petitioner’s case,even though there is no proof on record. If the need for proof of amatter can be waived by mere silence on the part of the respondent, howcan it be said that the proof when demanded must be proof of thestandard required in criminal cases. There can be no waiver in criminalcases, by Counsel’s word or silence, of the prosecution’s burden to proveevery ingredient of a charge beyond reasonable doubt; juries are dailydirected in our Courts that an accused and his Counsel may sit tight-lipped throughout a trial, but that nevertheless the accused must beacquitted unless the prosecution proves by evidence, and beyond areasonable doubt, every fact necessary to establish the commission of theoffence. But in relation to the matter of proof of the status of thepetitioner in an election petition, it would be absurd for an election Judge
H. N. G. FERNANDO, C.J.—Edriclc de Silva v. Chaj^dradaaa de Silva 173
to direct himself in the same manner ; for the election, law is that thestatus is regarded as proved if both sides maintain silence with regard tothe matter.
I therefore reach the conclusion that, when it is necessary to adduceproof of the status of a petitioner in an election petition, the standard ofproof is the same as that required under our law in Civil actions.
This discussion of the objection as to proof of status has enabled me tounderstand its true nature. The objection constitutes a formal sub-mission to the Court that there has not been evidence to prove the peti-tioner’s qualification as such, plus a motion that the petition be dismissedif such proof is not adduced. An “ objection as thus understood,could not be taken in the instant case ; for here there was evidence onrecord, which if believed, was ample proof of the petitioner’s qualification.The first passage which I have cited from Swan J/s order applies insuch circumstances, and declares that the burden would shift to the
respondent if he challenges theevidence of status. Swan J,
refers in that passage to evidence of status given by the petitionerhimself, but only as an “ instance He did not think, nor did thelearned Judge who tried the present case think, that the status cannotbe proved by other evidence.
The learned trial Judge did not in his judgment direct himself on thequestion of the standard of proof required to establish the status of thepetitioner. But it is significant that he made the following observations:—
“ An analogy may appropriately be drawn regarding this matterfrom a trial in a criminal or civil case. In a criminal trial a prima faciecase which the defence has to meet can be said to be established onlyif the prosecution has succeeded in proving to the satisfaction of theCourt by reliable evidence, despite attacks made upon it, that theaccused committed the offence complained of. If the evidence for thBprosecution, though literally available, is such that there is reasonabledoubt as to its truthfulness at the end of the case for the prosecution,there is no prima facie case which the defence has to meet and tha,-court will not in that state of the evidence call upon the defence. In acivil trial too, where the standard of proof required is lower, if a courtdoes not consider the evidence of the plaintiff and his witnesses, afterthey have been cross-examined, to be worthy of credit the Court willnot proceed to hear the evidence of the defendant, as it has alreadymade up its mind that the plaintiff’s case cannot be maintained.”
In so far as the Judge thus invoked the principles of the criminal law 'as to proof of guilt, which are reinforced by provisions such as Sections162, 101 and 254 (1) of the Criminal Procedure Code, he misdirectedhimself in law, for those principles do not apply in regard to the proof of
the status of a petitioner in an election petition.<
/
Counsel for the appellant before us confidently submitted that never inhis experience had evidence adduced for the plaintiff in a civil action beenrejected as untrue by a trial Judge without calling for a defence. The
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IV.4 H. N. G. FERNANDO, C.J.—Edrick dc Silva v. Chandradasa de Silva
long experience ot my two brothers, the one as practitioner and the otheras Judge in. the original Courts, has been the same. Even Counselappearing for the respondent conceded that such a rejection is “ notnormal ”, and he was not able to cite any instances of such rejection ofuncontradicted evidence. Section 163 of the Civil Procedure Codecertainly appears to controvert the opinion expressed by the electionJudge in the instant case, for it provides that after the party beginning
has adduced his evidence, then “ the opposing partyshall
adduce his evidence ”, Moreover, there is no provision in that Code inany way resembling ss. 162, 191 and 234 (1) of the Criminal ProcedureCode. Section 163 of course does not have the effect that the opposingparty must actually lead evidence, and that judgment against him willfollow if he does not. For instance, his Counsel can in appropriatecircumstances be content to submit that the facts proved by the£jaintiff do not establish the pleaded cause of action or do not entitlethe plaintiff to the remedy he seeks, or that the plaintiff must fail onsome ground of law'.
But where the plaintiff has in a civil case led evidence sufficient in lawto prove a factum probandum, the failure of the defendant to adduceevidence which contradicts it adds a new factor in favour of the plaintiff.TEbere is then an additional “matter before the Court”, which thedefinition in Section 3 of the Evidence Ordinance requires the Court totake into account, namely that the evidence led by the plaintiff isuncon t radi ct ed.
When respondent’s Counsel in the instant case called upon the ElectionJudge to decide the matter of the petitioner’s status upon a considerationof the evidence on record at the close of the case for the petitioner, hedid so without himself calling any evidence in disproof of the status. Inother words, the evidence on record remained uncontradicted. Butnowhere in the judgment did the learned Election Judge refer to thiscircumstance as “ a matter before the Court ”, and it is evident that hetook no account of this circumstance in reaching his conclusion. Thefailure to take account of this circumstance was a non-directionamounting to a misdirection in law which vitiates the conclusion of factwhich the Judge ultimately reached. That is a sufficient groundon which to set aside the order dismissing the petition.
X must disgress here to point out that our procedure and practice incivil actions does not permit a party to harass the Court or his opponentby requiring the same question to be determined more than once ondifferent material. Section 147 of the Civil Procedure Code permits anissue of law to be disposed of as a preliminary issue, but it does notpermit the same issue to be decided more than once. Hence, even if itwas permissible for respondent’s Counsel in this case to request a deter-mination on the mafter of status at the stage when he made it, thatrequest disentitles him from leading any further evidence to disprove thestatus.
H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de Silva 176
The petition in this case names in its caption as the petitioner “ Luwis-dura Edrick de Silva of No. 11, Subadraramaya Road, Balapitiya Thepetition purports to be signed by the petitioner, and it was commonground at the trial that the signature is written as “ L. Adrich de SilvaI will now refer to some of the evidence upon which the petitioner reliedas proof of the fact that the person whose signature appears in the petitionis the person named in the caption, and that that person is “ LuwisduraEdrick de Silva ” who is registered in the Electoral List P54A as a voterof this electorate. For convenience I shall in so doing refer to the pagesin the brief typed for the Court of Appeal. The evidence will be betterunderstood if I state at once that, according to the judgment of thelearned trial Judge, during many of the days of trial a particular personwas seen to be seated just behind the Counsel and Proctor appearing forthe petitioner.
During the cross-examination of one Mr. Loos who had been the
Counting Officer at this particular election, the respondent’sCounsel put to the witness the following question :—
Q. You know this gentleman who is seated here in Court now(shows), he is the petitioner in this case—can you rememberwhether he was a counting agent of some other candidate ?
A. I cannot recollect.(page 989).
During the cross-examination of A. M. Amerasekera (p. 1316) the
witness stated that he met the petitioner about one or twoweeks after the General Election and on that occasion told thepetitioner that some persons had at an election meeting spokenin derogatory terms about one of the candidates who contestedthe present respondent, and the petitioner then inquired fromthe witness whether he could give evidence. He said “ therewas a village talk that Edrick de Silva was submitting anElection Petition. Hence, My Lord, I informed Edrick deSilva such a thing took place at Walagedara ”. Thereafter thewitness stated in answer to a leading question by respondent’sCounsel that he later received a letter from the Proctor for thepetitioner, and further stated that he made a statement to thatProctor.
When this witness was re-examined (p. 1346) he stated thatthe name of the petitioner is “Lewis Dure Edrick de Silva”,that he lived along Subaddrama Road, that he was the Chairmanof the Town Council, and that he was still a member of theCouncil, and had worked for Mr. Lakshman de Silva, anunsuccessful candidate at this election.
The next witness was one Ariyadasa. During his cross-examina-tion (p. 1383) the witness said that after a particular electionmeeting he had met “ the Chairman Mr. L. A. de Silva ” and
176 H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de Sdva
then gave him some information about speeches made at th©meeting. He too received a letter from the petitioner’s Proctor,(p. 1388).
In re-examination the witness said that the person whom hehad met was the petitioner, that his name was Luwisduia Edrickde Silva who had worked for Mr. Lakshman de Silva and hadbeen Chairman immediately prior to the 1965 Elections.
The Grama Sevaka gave the following evidence-in-chief :—(p. 1799)“Q. Subadhraramaya Road comes within your jurisdiction ?
A. Yes.
Q.You know the Petitioner in this case ?
A. Yes.
Q. He is Luwis Edrick de Silva ?
A. Yes.
Q. He lives at No. 11, Subadhraramaya Road, Balapitiya ?
A. Yes.
Q. He is a registered voter No. 689 in the Voters Register forthe Balapitiya Electoral District ?
A. Yes.”
In cross-examination the Grama Sevaka stated that he was aware thatabout August or September 1965 the petitioner had left his former addressand taken up residence in another house. His recollection was assistedby the fact that he himself had at one time thought of taking on thepetitioner’s former residence ; a while later (p. 1801) the witness explainedthat after the Chairman left the house a Surveyor went into occupation.I now reproduce some further evidence of the Grama Sevaka :—(pp.1801-1802).
Cross-examined:
“ Q. The person whom you referred to as Luwis Edrick de Silvaresided at 11, Subadhrarama Road. Is he present in Courthere today ?
A. Yes.
Court: Q. Where is he living now ?
A. Luwis Edrick de Silva is now residing in a house adjoiningthe house of the late Robert de Soyza which is in mydivision.
H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de Silva 177Tie-examined :
Q. You know the petitioner personally ?
Mr. Shinya : It would be 1 Do you know the person who is seated inCourt
Court: Is there any dispute ?
Mr. Shinya : I am challenging him to prove that he has any status.lie -examination continued :
Q. Do you know the person who is seated in this court ?
A. Yes, I know him well.
Q. You know he is Luwis Edrick de Silva ?
A. Yos.
Q. You know that he lived at the time of the Elections at No. 11,Subadhraramaya Road ?
A. Yes.
Q. You were the Grama Sevaka in May, 1963 ?
A. Yes.
Q. You know the Register on which the General Elections of 1965were fought ?
A. Yes.
A. Yes, in fact it was I who prepared the Voters list in respect ofthe Ward No. 5 of the Balapitiya Town Council.
Q. (Shown Electoral Register).
Mr. Shinya : I object, then he is reading the Electoral Register.
Court: Q. Can you give any voters number ?
A. The Chairman’s family were living at 11, SubadhraramayaRoad which is at the commencement of the road
At the end of the petitioner’s examination the following is the record ofthe end of the Grama Sevaka’s examination : (p. 1804)
“ Q. Does the petitioner live within your division ?
Mr. Shinya : Not petitioner, My Lord, he may be referred to as Luwis-dura Edrick de Silva.
To Court : Q. Does this man who is seated behind Counsel live inyour area ?
A. Yes, he is within my division and in fact he has beensuccessively elected Member for Ward No. 5 of theBalapitiya Town Council.”
178H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradaea de Silva
Let me now attempt to sum up the effect of this evidence. The GramaSevaka professed to know Luwis Edrick de Silva well and knew hisformer place of residence. In answer to a question phrased according tothe wishes of Counsel for the respondent, the witness stated that “ heknew well the person who is seated in Court ” (who obviously was pointedto in Court), and he then identified him as Lewisdura Edrick de Silvaliving at No. 11, Subadhraramaya Road, the registered voter named inP54a. That entry reads as follows :—
“ SUBH ADRARAM AYA ROAD
L. No.NameSex Serial No.
11 Luwisdura Edrick de SilvaM689”
It will be seen that the petitioner’s Counsel desired then to show theElectoral Register to the Grama Sevaka, but this was objected to. Thatobjection I now find was due to ignorance of the law. Section 7 of theLocal Authorities Elections Ordinance, Cap. 262, provides that the basicqualification for a local authority election is that a person’s name isentered in the current parliamentary register. A person who has hisname on that register is by s. 7 entitled to have his name entered in theElectoral List of the Ward of the Local Authority in which he resides.It is thus clear (see also s. 15 of Cap. 262) that the current ParliamentaryRegister is utilised for the purpose of preparing electoral lists under theOrdinance. There was a high probability therefore of the truth of theGrama Sevaka’s evidence that he knew the register on which the Parlia-mentary Elections of 1965 was held, and these circumstances stronglysupported the correctness of his personal identification of the personseated in Court as the registered voter “ Lewisdura Edrick de Silva”.
Although during the examination of the Grama Sevaka, respondent’sCounsel resiled from his former concession (p. 989) that the person seatedin Court was the petitioner, there was already the evidence of Amera-sekera and Ariyadasa identifying the petitioner as Luwisdura Edrick deSilva living at the address shown in P54A, and identifying the sameperson as the Chairman or the ex-Chairman. There was from both these■witnesses convincing circumstantial evidence that this person w'as thepetitioner : he told the witnesses that he was the petitioner, and he actedas a petitioner wrould because he put the witnesses into contact with theProctor on record. Moreover, Luwisdura Edrick de Silva, theex-Chairman, wras shown beyond any doubt to have been seated in Courtjust behind the petitioner’s lawyers, and he acquiesced when on severaloccasions he was pointed out in Court to various witnesses as the petitioner.None of the witnesses to whom I have so far referred was cross-examinedto suggest in any way that the person seated in Court was not theex-Chairman or not the petitioner.
H. N. G. FERNANDO, C.J.— Edrick de Silva v. Chandradasa de Silva179
Respondent’s Counsel’s mere statement during the Grama Sevaka’sevidence “ I am challenging him to prove that he has any status ” can inno way detract from the evidence adduced in proof of that status.Respondent’s Counsel in appeal did not even attempt to point to anyquestion in cross-examination designed to cast doubt on the truth of theGrama Sevaka’s evidence that Luwisdura Edrick de Silva, the personseated in Court, was indeed a registered voter.
This although the Grama Sevaka was called solely for the purpose ofproving the status of the petitioner. The learned trial Judge does notexamine this evidence in the judgment. He refers to it only to remarkthat, because he rejects the evidence of another witness, Lakshman deSilva, on the matter of status, he cannot act on other evidence on thesame matter. Now one factor taken into account against Lakshman deSilva was that (being an unsuccessful candidate) he was an interestedwitness ; thus the assumption on which the Judge acted was that whenthe evidence of an interested witness fails the test of credibility the Courtmay exclude from consideration the evidence of a disinterested witness(in this case the Grama Sevaka). This assumption is unlawful, becauseit led to the exclusion of relevant evidence, a matter which, in the judg-ment of Gadjendragadkar J. (1959 A. I. R., S. C. 362J which has oftenbeen applied in our Courts, is a ground of law upon which a conclusion offact may be impugned. The fact that the evidence thus excluded wasuncontradicted, and uncontested in cross-examination savehy an armchairchallenge, enhances the gravity of the ground of law. The assumption isalso illogical ; it pre-supposes that the safe course for a plaintiff orprosecutor is to call only one witness to prove any particular fact; to cal]more than one witness is to run the risk that the witness on whom herelies most heavily will be disbelieved arbitrarily on the ground that hisleast reliable witness might fail the test of credibility.
I hold that the learned trial Judge had a duty to consider the evidenceof the Grama Sevaka and the other evidence which I have summarized.I hold also that because that evidence was uncontradicted, and becausethe truth of the evidence was not contested or doubted in the couree ofcross-examination, the petitioner succeeded in proving :—
on the evidence referred to at (1), (2) and (3J above, that the peti-
tioner named in the caption of the petition is Luwisdura Edrickde Silva, who had been Chairman of Town Conned and who'Tn1965 was a member of the Council ;
on the evidence of the Grama Sevaka, that the person pointed out
in Court is the same Luwisdura Edrick de Silva, and was a voterregistered in P54.
Respondent’s Counsel had at no Btage during the hearing informed theCourt that he would he disputing the signature on the proxy and the
180 H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradaea d» Silva
flection petition as being that of the petitioner named therein. Neverthe-less the learned Election Judge considered this submission which wasmade after the close of the petitioner’s case. As stated earlier in thisjudgment the signature reads as “ L. Adrich de Silva ”.
Had the learned Judge reached the conclusion, which I have alreadyheld he should have reached, that the person named in the petition wasproved to be a registered voter, and thus qualified to file a petition interms of s. 79, he would have realized that the only remaining matter indispute was whether the named petitioner actually signed the electionpetition. I much doubt whether the Judge did realize that he wasdealing with a submission unique in my experience and his own—asubmission that a known identified individual named as plaintiff in aplaint had not signed the proxy filed with the plaint. In the presentcontext of an election petition filed with a deposit of Ks. 5,000, where anyone of the 16,519 registered voters who voted in favour of the unsuccessfulcandidate Lakshman de Silva was competent to file the petition, wherewas the need or temptation to 'c borrow ” the ex-Chairman’s name andpretend that he was the petitioner, and further to have some unknownperson forge a signature on the petition ? Why run in limine the riskthat the forgery might be noticed and the petition dismissed on thatscore ? If indeed the respondent’s Counsel had instructions that thesignature on the proxy ‘was not that of Luwisdura Edrick de Silva, theex Chairman, Why did he not take the simple course of marking evenone Town Council document bearing the genuine signature of theex-Chairman ? If Counsel had any faith in his own challenge, why did herun the risk of calling for a decision of fact upon uncontiadicted evidenceadduced by the opposing party ? Why should the ex-Chairman sit inCourt in a place riaturaily occupied by a person who had filed a petition,and why bhould he acquiesce when the signature on the proxy wasidentified as his signature in his very presence (p. 2028) ? In thesecircumstances. Counsel’s “ challenge ” was in my opinion unworthy ofconsideration by a Court.
Nevertheless, because the learned Election Judge did consider Counsel’ssubmission, and because we have held in our order of 25th August 1967that the status of the petitioner was proved, it is desirable that I dodiscuss the evidence and the Judge’s reasons for rejecting it.
The learned Judge rightly states that the only witness "who identifiedthe signature on the proxy as being that of L. Edrick de Silva, theformer Chairman, was Lakshman de Silva one of the unsuccessful can-didates at tins election. This witness had been a Member of Parliamentirom 1960 till 1905. The learned Judge has disbelieved his evidence,particularly his identification of the signature “ L. Adrich de Silva ” asbeing that of the former Chairman, and I will presently discuss theprincipal reasons for that rejection. In examination-in-chief he, like theotl>er witnesses, said that the petitioner had put him into contact withthe Proctor on record, that he had often travelled with the petitioner toColombo to see the Proctor, that the petitioner had been present in
Tt. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradaaa de Silva 181
■Court, that the petitioner had been Chairman of the Council, and after-wards a member. He stated that he had known the petitioner for 25years and was familiar with the petitioner’s signature and he identifiedthe signature on the proxy as being that of the petitioner. His capacityto identify the signature is rendered highly probable by the fact that hewas the Member of Parliament for Balapitiya during the petitioner’stenure of office as Chairman of the Town Council.
In cross-examination Lakshman de Silva readily agreed that he wasrelated to the ex-Chairman in a manner outlined by respondent’s Counseland he said that he called the ex-Chairman “ L. A. Uncle
It is relevant now to reproduce the following Questions and Answers in•the cross-examination of Lakshman de Silva :—
“ Q-
A.
Q.
A.
Q.
X
A,
Q.
A.
When you say that you have seen his signature, ■what you meanis that you have seen the ex-Chairman signing ?
I have seen him signing.
What you say is the signature appearing on this document isthe same as that of that ex-Chairman ?
Yes.
Is it not the fact that the ex-Chairman is L. A. de Silva and notL. E. de Silva ?
He is referred to as Edrick as well as Adrick.
When I asked you as I started my cross-examination to tell Hi3Lordship clearly what is the name of the person whom you callas the petitioner, you said it was Luwisdura Edrick de Silva ?
Yes.”
Here is the comment made in the judgment on this evidence :—
“ Confronted with the question whether the ex-Chairman was not infact L. A. de Silva, a brother of the 'person in Court, whose name waslater admitted by this witness to be L. Aria de Silva his reply was thatthe ex-Chairman was called both Edrick and Adrick and did notanswer to Counsel’s questions directly. Counsel thereupon producedcertain Gazette notifications” (The italics above are mine).
The reference in this comment to the reply of the witness, to his notanswering the question directly, and to Counsel thereafter producingGazette notifications, makes it evident that the trial Judg$ made thecomment with reference to the third question which I have sidelined X inthe above extract from the evidence. This question appears at p. 2070of the brief. There is nothing in that question suggesting that theex-Chairman was a brother of the person in Court. Indeed, up to thatstatre, not one word ha'* been mentioned in Court about a brother of
182 H. N. G. FERNANDO, C.J.—Edrick de SHva v. Chandradasa de Silva
Edrick de Silva named L. A. de Silva. It was most unfortunate for thewitness Lakshman de Silva, that the Judge when he came to write hisjudgment decided that the witness had ‘dodged’ a suggestion in thequestion now under reference, that the ex-Chairman had been a personnamed ‘ L. Aris de Silva
The name ‘ Aris de Silva ’ transpired only in subsequent evidence(p. 2072), in an unimportant answer to Court. The Gazette of 24thDecember 1964 contains a notice published by the Commissioner ofElections (Local Bodies) under the Local Authorities Elections Ordinanceof which this Court can take judicial notice. It is a list of the names ofthe members elected to the Balapitiya Town Council, showing themember for Ward No. 5 as ‘ Luwisdura Edric de Silva ’. No other personin that list bears the name Luwisdura, nor is there any “ Aris ” in the list.The respondent’s Counsel could not conceivably have been instructed tosuggest, nor did he in fact suggest, that anyone other than Edric de Silvahad been the Chairman or a Member of the Council. I must saytherefore with the greatest respect that the comment of the learned Judgewith regard to the evidence now under reference was based on a completemisconception both of the evidence and of Counsel’s suggestion. TheJudge’s subsequent statement in his judgment that “the ex-Chairman ofthe Town Council may well have been the brother L. Aris de Silva” showshow much he was influenced by this misconception.
Another reason for the Judge’s rejection of the identification of theex-Chairman’s signature arises from certain Gazette notifications whichpurport to reproduce in print the signature of the Chairman, TownCouncil, Balanitiva. In these notifications the signature is orinted in
assumption on which the Judge relied in this cormection was that if, asLakshman de Silva said, the Chairman signed as “ L. Adrich de Silva ”,that signature would have been reproduced in full in the Gazette notices,whereas in fact the English notices have the printed signature ‘ L. A. deSilva ’. With respect, in the absence of the originals of these notices or ofany evidence from the Government Printer’s Office, this assumption waspurely conjectural. The Appeal file of this case convincingly demonstratesthe fallibility of such conjecture. For although the petitions of appeal,filed in triplicate, bear the signatures “ L. Adrich de Silva ”, the typedcopies of the petition in our briefs have the signature “ L. E. de Silva ”.
The

English as ‘ L. A. de Silva’ (and in Sinhalese as

inconsistent with the evidence of Lakshman de Silva that (so far as heknows) the ex-Chairman only signed in English. But I have in thisconnection pointed out in Court that, although I myself sign Orders underthe Courts Ordinance only in English, my signature is printed in Sinhalain Gazette notifications of my orders.
The trial Judge was also probably influenced by the fact that in theGazette notices of the Town Council published in Sinhala the Chairman’s
This circumstance is apparently
name is printed as
H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de Silva 183
At another stage of the judgment, there occurs a criticism that thewitness would not have called the Chairman “ L. A. Uncle ” if as thewitness had himself said the Chairman’s name was Edrick. Here againthere is a simple explanation to be found in the Gazette notice. If theChairman insisted on signing himself ‘ L. A. ’ although his name is some-times spelt with an “ E ”, there is nothing suspicious in the evidence ofthe witness that he called the Chairman “ L. A. Uncle ”.
The learned Judge unfortunately failed to realise that these veryGazette notifications of the Town Council corroborate Lakshman deSilva’s evidence that the Chairman had used an alias ; although his nameEdrick is spelt with an “ E ”, he signs (according to the witness) as‘ Adrich The Gazette notices which have the printed signatures ‘L. A.de Silva’ show that the Chairman did use an ‘A’ and not an £E’ in signinghis name.
The last of the substantial matters referred to in the judgment whichrelates directly to the credibility of Lakshman de Silva is contained inthis passage from the judgment :— (p. 443).
“ Thus, during an ostensibly gentle but devastatingly effective pieceof skilful cross-examination by Mr. Shinya, this witness was compelledto admit that he was not personally aware whether the person who wasseated in Court and referred to as the petitioner was in fact thepetitioner.”
The only evidence to which this passage is referable is evidence at page2068, and Counsel for the respondent in appeal has not suggested that itrefers to anything else. The following is the relevant evidence :—
“ Q. How long after that did you go and have discussions orconsultations regarding this petition with the ex-Chairman ?
A. I believe about 1 week or 10 days of the petition being filed thepetitioner and I came to Colombo to discuss matters with thepetitioner’s Proctor.
Q. The reason for you to say that gentleman—the ex-Chairman—-is the petitioner is because he told you so. As a result of whathe told you ?
A. Yes.”
It is quite correct that in these answers the witness did say that heknew that the ex-Chairman is the petitioner because the ex-Chairman hadtold him so. But I can see here no admission under compulsion, butmerely a truthful answer to a leading question. Indeed I quite fail tounderstand what respondent’s Counsel thought he could gain from thisquestion. The witness had never claimed in his earlier evidence that hisinformation as to the identity of the petitioner was based otherwise than
184 H. N. G. FERNANDO, C.J.—Edrick de Silva v. Chandradasa de Silvu
on the ex-Chairman’s own statement and conduct ; so that there wasnothing in this particular answer which contradicted or modified anyprevious evidence, and nothing to justify the Judge’s impression that thewitness contradicted himself or admitted anything under compulsion.
The witness had earlier stated that he was not interested in filing anelection petition because he was not in a happy mood after his defeat.Then he came to know that the ex-Chairman was interested in filing apetition. He was told by the ex-Chairman that he had filed one, and hethen associated himself by going with the petitioner to see the Proetor.The questions which were put related to a period shortly after the electionand the ansAver truly states how first the witness became aware as to whohad filed the petition. In fact I cannot see how else the witness couldhave become aware of the matter. At that stage the most reliablesource from which to obtain information about the filing of the petitionwas from the petitioner himself. It is quite unreasonable to expect thatLaUshman de Silva should have tried to verify the truth of what theex-Chairman told him by going to Colombo and inspecting (if theRegistrar would permit him) the original petition ol appeal in the SupremeCourt. Plaintiffs in civil actions are identified numerous times everyday by witnesses who have not watched them signing proxies.
Examination of the evidence of Lakshman de Silva, and of the treat-ment of that evidence in the judgment, shows that on all or nearly all ofthe matters which influenced his rejection of the evidence, the Judgeeither misconceived the effect of the evidence and of suggestions in cross-examination, or acted upon inferences which were not rationally possible.On this ground, and on the grounds of misdirection stated earlier in thisjudgment, we allowed this appeal and directed that the hearing of thepetition must continue before the Election Judge.
I do not propose to examine much of the remaining part of the judg-ment, in which the learned Election Judge refers to matters unconnectedwith the evidence given by Lakshman de Silva. But one of the mattersdiscussed in the judgment, namely, the absence of the petitioner fromCourt on the last day of hearing, arose from a misconception of what hadtaken place in Court. According to the record (p. 2083 of the brief)Mr. M. L. de Silva, Junior Counsel for the petitioner, is recorded as havingmade the following statement before the Court adjourned on 17thSeptember 19CG :—
“ I am sorry, My Lord, that the petitioner is not here. He is veryseriously ill and is in the hospital. I close the case for the petitioner.”
On the next day of hearing (19th September 190G), Counsel for therespondent, in asking for corrections moved for the following correction
“ Finally on the last page Mr. Mahinda da Silva said : ‘ I am sorry,My Lord, that the petitioner is not here. His son is seriously ill andis in the hospital ’. ”
Sediris Singho v. Wijeainght
185
Despite this correction which was made by Counsel for the respondent,the learned Election Judge in his judgment states in caustic terms thatthe petitioner “ happened to fall seriously ill and was said to be in
hospital” “ The alleged serious illness of the person seated
behind Counselis open to the gravest suspicion.” “ Did
this illness result from being an eye witness on the previous day to the
inextricable position in which Lakshman de Silva found himself”
“ Did he suddenly take ill in the thought that, if he came to Court thatday, the Judge might of his own motion call him into the witness box. .. . ”
These comments were made adversely to the petitioner, and it is mostunfortunate that they were based upon a complete misconception as tothe stated reason for the absence of the petitioner from court. Thatabsence was a factor which influenced the decision of the learned Judge,because it is referred to among the reasons for the decision.
I have shown that the learned Judge wrongly disbelieved certainwitnesses, particularly Lakshman de Silva. But I have no doubt thatsuch former disbelief will not influence the mind of the learned Judge inhis consideration of the further matters which will now arise for decision.
Tambla.it, J.—I agree.
Siva Supramantam, J.—I agree.
Appeal allowed►