019-SLLR-SLLR-1994-V2-NATHAN-V.-CHANDRANANDA-DE-SILVA-COMMISSIONER-OF-ELECTIONS-AND-OTHERS.pdf
CA
Amarasinghe v. Wanigasuriya (S. N, Silva, J.)
209
NATHAN
v.
CHANDRANANDA DE SfLVACOMMISSIONER OF ELECTIONS AND OTHERS
COURT OF APPEAL.
R. B. RANARAJA, J.
ELECTION PETITIONNO. C.A. E/P 7/94DECEMBER 02.1994.
Election Petition – Rule 14 of 4th Schedule to Parliamentary Elections, Act No. 1of 1961- Service of notice within 10 days of presentation of petition.
Under Rule 14 notice of presentation of an election petition must be served on therespondents within 10 days of the presentation of the petition. One of the modesof service prescribed in Rule 14 may be adopted but service of the notice within10 days is mandatory. Failure to do so is fatal.
Cases referred to:
Nanayakkara v. Kiriella (1985] 2 Sri LR 391.
Saravanamuttu v. De Silva 42 NLR 561.
Aron v. Senanayake 40 NLR 257.
Senanayake v. Chandrananda de Siva CA No. 4/1969.
Election petition to have election declared void.
W. Abeykoon with K. S. Ratrmvel, P. Sivapalan and R. Raviraj for petitioner
J.A. N. de Silva DSG with P. A. Ratnayake S.S.C. and R. M. R. Rajakaruna S.C.for 1st to 4th respondents.
Faiz Mustapha P. C. with R. £ Thambiratnam and A. Vinayagamoorthy for 5th to7th respondents.
N. Rahuman with Daya Pelpola and A. Maujooth for 8th respondent.
Cur. adv. vult.
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Sri Lanka Law Reports
[1994) 2 Sri LR.
December 16,1994.
RANARAJA, J.
The petitioner who was a candidate for the electoral district ofWanni at the Parliamentary elections held on 16.8.1994, has filed thispetition praying for a declaration that, for the reasons stated in thepetition, the election for that district is void and the return of 5 to 10respondents elected for the district is undue. The petition waspresented to court on 7th September 1994. The President of theCourt of Appeal directed the petitioner to serve notices on therespondent. The Registrar of this Court was directed to effect serviceon the respondents, if the petitioner delivered the requisite noticesand copies of the petition. On being nominated to hear anddetermine the petition, I fixed the matter for trial on 27.10.1994. On23.9.94 the petitioner tendered the notices for service on therespondents. They were dispatched on 28.9.94. The notice issued onthe 9th respondent was returned undelivered. On the date of trial allrespondents, except the 9th and 10th who were absent, wererepresented by counsel. The 5th to 6th respondents, who had by thenfiled their objections, moved for a dismissal of the petition in limine for,amongst other grounds, the non-compliance of rule 14 of the 4thschedule to the Parliamentary Elections Act. No. 1 of 1981. It wasagreed by all counsel present, that this preliminary objection bedecided in the first instance on written submissions and if need be. onsupplementary oral submissions. Time was given till 2.12.94 fortendering of written submissions. By that date, the petitioner and 1st to8th respondents had filed their submissions. Counsel for the 10threspondent stated he was associating himself with the submissionsmade by the other respondents. All counsel stated they did not intendmaking further oral submissions. The decision on the preliminaryobjection was put off for 16.12.94.
Rule 14 reads as follows:
*14(1) Notice of the presentation of a petition, accompanied by
a copy thereof shall, within ten days of the presentation of the
petition:-
be served by the petitioner on the respondent; or
be delivered at the office of the Registrar for service on therespondent, and the Registrar or the officer of his department to
sc
Nathan v, Chandrananda De Silva
Commissioner of Elections and Others (Ranaraja, J.)
211
whom such notice and copy is delivered shall, if required, givea receipt in such form as may be approved by the President ofthe Court of Appeal.
Service under paragraph (1) of the notice of the presentationof a petition and copy thereof by the petitioner on therespondent may be effected either by delivering such noticeand copy to the agent appointed by the respondent under rule9 or by posting them in a registered letter to the address givenunder rule 9 at such time that, in the ordinary course of post, theletter would be delivered within the time above mentioned, or bya notice published in the Gazette stating that such petition hasbeen presented and that a copy of it may be obtained by therespondent on application at the office of the Registrar.
Where notice of the presentation of a petition, accompaniedby a copy thereof, is delivered under paragraph (1) at the officeof the Registrar for service on the respondent, such service maybe effected in the same manner as the service of a noticeissued by a court is effected under the Civil Procedure Code."
This rule requires the petitioner to serve the notice of thepresentation of the petition on the respondent within ten days of filingthe petition. In the alternative, the petitioner may deposit the noticesat the office of the Registrar of the Court for service. If the petitionerchooses to serve the notices himself, he could do so by personalservice on the respondent or his agent or by posting them underregistered cover to reach the respondent within ten days ofpresentation of the petition. In the alternative, having deposited thenotices in the office of the Registrar, he should publish a notice in theGazette within the stipulated ten days stating that a petition has beenpresented and copies of it may be obtained from the Registrar. Theother option available is to deliver the notices to the Registrar withinten days of the presentation of the petition, for service on therespondents under the provisions of the Civil Procedure Code.
In the instant case, the petitioner has not taken upon himself thetask of serving notices on the respondent. Instead he has sought theintervention of the Registrar to do so. On 23.9.94 the Attorney-at-Lawof the petitioner has tendered the requisite notices to the Registrar forservice. That is, admittedly, outside the ten day period from the dateof presentation of the petition.
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11994) 2 Sri LR.
The learned counsel for the petitioner has made two submissions.Firstly, that rule 14 is not mandatory but directory. Secondly, rule 14should not be strictly interpreted.
In dealing with the first submission, it is relevant to consider theprevious decisions of this court as well as the Supreme Court on rule14 and its precursor, rule 15 of the Ceylon (Parliamentary Elections)Order in Council 1946, as amended by section 29 of Act No: 11 of1959. Rule 15 was exhaustively dealt with by a bench of three judges ofthe Supreme Court in the case of Nanayakkara v. Kirietlatn. Colin ThomeJ. after dealing with the previous judgments of that court concluded;
“I hold that the governing words “within ten days of thepresentation of the petition" in rule 15(1) apply to all and everymode of service set out in rule 15. It is mandatory for all modes ofservice so as to ensure service within the specified limit. Underrule 15 (1) (b) when the notices are tendered to the Registrar forservice, both the delivery and service must be effected within tendays. I hold that the failure to serve notices on the 1st. 3rd and8th respondents within the mandatory ten days is a fatal defect."
Ranasinghe, J. in the same case in a dissenting judgment on themain issue, came to the same conclusion on the mandatory nature ofrule 14, when he stated;
"The view I take of the said new rule 15 does not, in my opinion,detract from the view which has been expressed, that limitsrelating to time, within which any act should be done, set out inthe said Order in Council of 1946 are mandatory."
Thus it is clear that a bench of three judges of the Supreme Courthas unambiguously treated rule 15, which is identical to rule 14 weare now concerned with, to be mandatory and not directory. Non-compliance with this rule is necessarily fatal to proceeding furtherwith the petition.
Learned Counsel submits that Nanayakkara {supra) did notconsider the need to interpret rule 14 less strictly in the light of theobservations of De Kretser J. in Saravanamuttu v. De SilvaiZl wherehe stated at p. 569;
sc
Nathan v. Chandrananda De Silva
Commissioner of Elections and Others (Ranaraja, J.)
213
“In proceedings following an Election Petition it is not the policyof the law to place obstacles in the way of the petition beingheard, as rule 60 of the rules framed under the ParliamentaryElections Act of 1868 provides that no proceedings shall bedefeated by reason of any formal objection."
In that case the rules that came under consideration were rules 9and 16 of the Election (State Council) Petitions rules. They were held tobe directory and not mandatory. However, Akbar J. who consideredrule 18 of the same rules, which corresponds to the present rule 14, inAron v. Senanayake 01 expressed a contrary view when he stated;
“Rule 18 of the Election Petition Rules 1931, is explicit thatnotice of the presentation of the petition and the nature ofsecurity, accompanied by a copy of the petition shall be servedby the petitioner on the respondent within 10 days . . . Onewould have thought apart from any authority that the provision inrule 18 requiring service of notice not only of presentation of thepetition but also of the nature of security was imperative andthat non-compliance put a stop to any further step in the matterof the petition. This seems to be so, for the next rule, viz rule 19.gives the right to the respondent to object to the recognizanceprovided he objects in writing within 5 days from the date ofservice of the notice of the petition and of nature of the security.”
I would prefer to follow the reasoning of Akbar J. in Aron's case.Furthermore, a similar submission was made by counsel for thepetitioner in Senanayake v. Chandrananda de Silva w, In that case itwas urged that rule 14 is now set in an Election Law that containsfundamentally changed concepts as to the modes of elections andthat the rule should be looked at afresh untrammelled by anyprevious decisions. S. N. Silva J. after a survey of the authorities onthe principle of stare decisis concluded;
“Therefore I am of the view, that the decision in Nanayakkara’scase {supra) is binding on this court and that notice of thepresentation of the petition as provided for in rule 14 must beserved on each of the respondents within a period of ten days." I
I see no reason to depart from that conclusion on the need tofoilow decisions of superior courts until they are varied by the sameor higher court. The petitioner has failed to deliver the requisitenotices within the ten day period stipulated by rule 14. This is a fatal
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[1994} 2 Sri L.R.
defect which precludes the petitioner from proceeding further with hispetition. I accordingly dismiss the petition with costs.
Petition dismissed.