MUTTETUWEGAMA V. GUNASEKERA AND OTHERS

005-SLLR-SLLR-1983-2-MUTTETUWEGAMA-V.-GUNASEKERA-AND-OTHERS.pdf


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Sri Lanka Law Reports
[1983] 2 Sri L. R.
M UTTETU WEG AM AV.
GUNASEKERA AND OTHERS
SUPREME COURT
SAMARAKOON. C.J.. WANASUNDERA. J.. AND SOZA. J.
S.C. NO. EP 2/82JANUARY 24. 1 983.
Election Petition — Ceylon (Parliamentary Elections) Order-in-Council. Section80 B (C) — "Material Facts".
The 1st Petitioner-Respondent challenged the election of the Respondent-Appellant as a member of Parliament setting out, inter-alia, "material facts" in thepetition. The Respondent-Appellant contended that the pleading did not complywith the provisions of Section 80 of the Elections Order-in-Council (Cap. 381)as it had not contained "full particulars".
Held —
There is a statutory distinction between "material facts" and "full particulars" andit is sufficient if the petition shows the prima facte ground for avoiding theelection.
Case referred to :
1. Wijewardena V. Senanayake 76 NLR 97 at 106.
H. L. de Silva. S. A. with K. Shanmugahngam. Sidat Sri Nandalochana. PeterJayasekera and S. H. M. Razeek for Respondent-Appellant.
K. Shanmugahngam with D. S. Wijesmghe and Miss Saumya de Silva for 2ndand 3rd Respondents.
George Candappa with S. C. Crossette Thambtah. V. Basnayake. Daya Pelpolaand Ronald Perera for Petitioner-Respondent.
Cur. adv. vult
February 11.1983.
SAMARAKOON. C. J.
The Appellant was elected as Member of Parliament to theKalawana Constituency at a by-election held on 12-01-81. Thefirst Respondent challenged this election setting out two groundsin his petition.
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Mutteiuwegama v. Gunasekera and Others (Samarakoon. C.J.)
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We are here concerned with the second ground alleginggeneral intimidation committed by the supporters of theAppellant within the meaning of section 77(a) of the Ceylon(Parliamentary Elections) Order in Council 1946. Paragraph 7 ofthe petition sets out the material facts as follows :
'The material facts on which the Petitioner relies are asfollows :—
"(a) The harassments. threats and intimidation of supportersof the petitioner and the threats and intimidation held out toVoters and Electors and even polling agents by those whowere supporting the 1st respondent.
Physical violence, use of firearms, attacks on supportersof the said Petitioner during the Election campaign andattacks on motor vehicles which were used by thesupporters of the Petitioner all of which were carried out bythe supporters of the 1 st Respondant.
That the supporters of the 1 st Respondent prevented thepetitioner from attending the petitioner's election meeting ofAiyagama on 10-1-1981 by use of road blocks on the saidroad to Aiyagama.
That the Voters of Medagalature were threatened withswords by supporters of the 1st Respondent on 10-1-1981.
That the supporters of the 1 st Respondent threatenedand or used physical force and violence during the periodon 4-1-1981 to 11-1-1981 preventing the Voters ofAlupathgala Koswatta. Singharajahandiya, Meddagala,Galature, Nikagoda, Manane, Pimbura. Uthuru Meddagala,Ramburakotuwa, preventing the said Voters from exercisingthe choice of their free will.
That the supporters of the 1st Respondent did on12-1-1981 threaten, harass and intimidate the Voters of Galature,
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Sri Lanka Law Reports
[1983] 2 Sri L. R.
Manane. Pimbura. Pelawala and Niriella and thereby preventthe said Voters from exercising their free will."
The Appellant contends that this pleading is not a compliancewith the provisions of section 80 B(C) of the Election Order inCouncil as amended by Act No. 9 of 1 970 which states that thePetition " shall contain a concise statement of the material factson which the Petitioner relies". Counsel submitted that merelystating the acts which are relied on is insufficient. He contendsthat the Petition must provide the names of the perpetrators, thenames of the victims of such acts and the names of the places atwhich such acts were committed. He stated that full particularsmust be given. Throughout his argument he used the words "fullparticulars". It is significant that whereas the provisions ofSection 80B(d) require full particulars. Section 80 B(C) does notrequire "full particulars". It only requires "material facts" to bepleaded and that too. only a concise statement. I have alwaysunderstood a "concise statement" to be one that is brief andcomprehensive. This is one of the basic rules of pleadings in CivilCourts. (Vide Section 40 of the Civil Procedure Code). Such arequirement eliminates prolixity. This concise statement must setout the "material facts" on which the Petitioner relies. Acomparison of Section 80B(c) and (d) shows a statutorydistinction between "material facts”, and "full particulars". Thelatter has a wider range in that it includes as full a statement aspossible of names of parties and the date and place ofcommission of the corrupt or illegal practice. One rule commonto both is that evidence need not be pleaded. For the purpose ofproviding material facts the Petitioner is not obliged to give fullfacts. All he need do is to plead such facts as are essential toshow prima facie ground for avoiding the election, and also allsuch essential facts which he seeks to rely on to establish theground or grounds of avoidance. If he is in possession of morefacts than one he must plead all those he relies on. In a charge ofgeneral intimidation " a Petitioner must specify at the least thenature of the alleged intimidation; whether it consisted of actualviolence, or of threats of violence, or of some other kind ofintimidation, and when and where such intimidation is alleged tohave occurred. A petitioner cannot be permitted merely to
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Muttetuwegama v. Gunasekera and Others (Samarakoon. C. J.)
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specify a ground of general intimidation in an election petitionwith the hope that he can substantiate it with evidencesubsequently secured”, per Fernando. CJ. in Wijewardena v.Senanayake. The Respondent is entitled to know the nature ofthe charge against him.
Looked at in this light I do not think the pleadings in para 7 ofthe petition are wanting in any manner. There are sufficientpleadings to proceed to inquiry on the charge and the Petitioneris restricted to such instances as are therein set out. I wouldtherefore dismiss the appeal with costs.
WANASUNDERA, J. — I agreeSOZA, J. — I agree
Appeal dismissed.