that the respondent was at the time of his election disqualifiedfor election in so far as he directly or indirectly by himself or any personor persons on his behalf or for his use or benefit, held or enjoyed rightsor benefits under a contract or contracts made by or on behalf of theCrown in respect of the Island for the furnishing or providing of servicesto be used or employed in the service of the Crown as contemplated bysection 13 (3) (c) of the Ceylon (Constitution) Order in Council, 1946.C. S. Barr Kw.narakulasingJie, with A. I. Rajasingham and Sam.
Wijesinha, for the petitioner.
E. G. Wikramanayake, with D. S. Jayewickreme, E. A. G. de Silva,
T. Samarawickreme, Cecil de S. Wijeyeratne, and G. Perera, for therespondent.
Alan Rose, K.C., Attorney-General, with M. Tiruchelvam, CrownCounsel, as amicus curiae.
Cur. adv. vult.
August 23, 1948. Dias J.—
The respondent, Reginald Abraham de Mel, was at the General Electionheld on September 20, 1947, returned as a member for the House ofRepresentatives for the Colombo Electoral District No. 3, known asColombo South Electoral District. The results were declared onSeptember 22, 1947, and were as follows : —
Mr. R. A. de Mel (the respondent) symbol The Key ..6,452 votes
Mr. P. Saravanamuttu (petitioner) ,,Flower..5,812,,
Mr. Bernard de Zoysa,,Chair. .3,774,,
Mr. M. G. Mendis„Hand..1,936„
Mr. V. J. Soysa,,Cup. .95„
The respondent’s majority over the pettioner was 640. The electorateis said to number about 32,000 voters.
On October 10, 1947, the petitioner filed a petition alleging that therespondent was not duly elected and returned, and claimed that theelection was void on the following grounds :—
that the respondent or his agents named in the particulars, orsome person or persons with his knowledge or consent committed“a corrupt practice ” in connection with the election by abetting thecommission of the offence of personation.
that “the corrupt practice ” of bribery was committed inconnection with the election by the respondent, or with his knowledgeor consent, or by his ageDts named in the particulars.
that by reason of general treating the majority of the electorswere or may have been prevented from electing the candidate whomthey preferred ; and
DIAS J.—Saravanamuttu v. de Mel.
that the respondeat was at the time of his election disqualifiedfor election in so far as he directly or indirectly by himself or anyperson or persons on his behalf or for his use or benefit held or enjoyedrights or benefits under a contract or contracts made by or on behalf ofthe Crown in respect of the Government of the Island for the furnishingor providing of services to be used or employed in the service of theCrown as contemplated by s. 13 (3) (c) of the Ceylon (Constitution!Order in Council, 1946.
The petitioner further claimed that he was duly elected and ought tohave been returned. This claim as well as the charge of general treatingwere abandoned by the petitioner ; and the case went to trial on thecharges (a), (6) and (d). The recriminatory objections filed by therespondent were in consequence abandoned.
The trial of this case took 67 working days, in the course ofwhich 149 witnesses were called by the petitioner and 42 by therespondent.
In a proceeding such as this certain fundamental rights of the citizenare involved. Therefore, an election petition enquiry is not merely acontest between two litigants. It is a matter in which the wholeelectorate, not to say the whole country, has a vital interest. As BertramC.J. indicated in Rambukwelle v. Silva1, in the trial of an election petitionthe public interest has also to be regarded. It is not an investigation inwhich the petitioner and sitting member alone are concerned. The votersalso have rights as well as the candidates. The electorate is entitled tohave the result of the election declared according to law. In suchenquiries two great principles are always sought to be maintained—firstly, that the election should be free ; and secondly that the characterof the candidate should be pure in regard to the election—Saravanamuttuv. Joseph de Silva 2 .
An election petition enquiry, however, is not a civil proceeding, but incertain ways possesses the character of a criminal trial in which thepetitioner is the prosecutor and the respondent is the accused—Peiris v.Saravanamuttu3. Therefore, the Court, particularly in dealing with thecharges of impersonation and bribery, must deal with the charges as ifthey are made in a criminal trial. The respondent must at every stageof the case be presumed to be innocent of all offence, while it is the dutyof the petitioner to prove his charges beyond all reasonable doubt byevidence which is clear and reliable—Saravanamuttu v. Joseph de Silva 4.All reasonable doubts must be resolved in favour of the respondent.Respecting the last charge in regard to the alleged disqualifying contracts,I agree with the learned Attorney-General, who assisted the Court asamicus curiae, that the burden of proof on the petitioner in regard to thatcharge would be to prove his case by a preponderance of probability or onthe balance of evidence.
1 (1924) 26 N. L. R. at pp. 253-254.
(1941) 43 N. L. R. at p. 316 and see Don Alexander v. Deo Fernando (1948) 49N. L. R. at p. 203.
(1931) 33 N. L. R. at p. 230.
(1941) 43 N. L. R. at p. 318.
DIAS J.—Saravanamutlu v. de Mel.
The Charge, of Abetment of Impersonation : Originally this species ofelection offence was unknown in Ceylon. In RambukweUe v. Silva1Bertram C.J. said : “ The charges of personation could not be proceeded■with, owing to a defect in the Order in Council which does not make acandidate responsible for personation which he or his agent may haveabetted The law has now been altered. Section 54 of the Ceylon(Parliamentary Elections) Order in Council, 1946, (hereafter referred toas the Order in Council) provides :—
“ Every person who at an election applies for a ballot paper in the nameof some other person …. or who having voted once at anysuch election, applies at the same election for a ballot paper in hisown name, shall be guilty of the offence of personation. ”
This section penalises the principal offender, namely the personwho commits the impersonation. This offence is committed when theimpersonator applies ior a ballot paper. It is not necessary that aballot paper should be actually handed to the impersonator. Theoffence is complete when the impersonator asks for a ballot paper inthe name of some other person, or when the offender having voted onceat the election applies at the same election for a ballot paper in hi3 ownname. The abetment of impersonation is penalised by section 58 (1) (a)of the Order in Council. Every person who aids, abets, counsels, orprocures the commission of the offence of personation is made guilty of“ a corrupt practice ”.
In passing, reference should be made so the case of Perera v.Jayeiuardene 2 where it was held that it is an essential ingredient of theoffences enumerated in section 58 of the Order in Council that the offendershould do the criminal act “ with a corrupt mind ”. It was held followingthe Stephney Election. Case 3 that where a statute does not unequivocallyprovide that a corrupt mind is not an essential ingredient for an offence,an act cannot be held to be “a corrupt practice ” unless done with acorrupt mind. I may be permitted to point out that this decision doesnot take into account the Four-Judge decision in Weerakoon v. Ranhamy 4which authoritatively dealt with the general principle regarding thenecessity to prove mens rea in statutory offences which do not specifically■enact that mens rea is an ingredient of the offence created. The FullBench pointed out that offences in which no specific state of mind formsan essential ingredient of the offence in the definition fall into two classes :
Prohibitions which are absolute and unqualified, whatever the motivefor doing them may be, and (5) Offences in which, although no specialstate of mind is defined as being a necessary ingredient for criminalliability, the absence of mens rea is, nevertheless, a good excuse. Inthe former class of case the offender does the prohibited act at his peril.The nature of his motives, intentions or his mens rea are immaterialwhen once the actus reus has been proved. In the latter class of offencesthe plea that there was no metis rea is really one in justification. Oncethe prosecution has established the ingredients required by the statute,at is for the accused to prove the absence of mens rea. Where a statute1 (1924) 26 N.L.B. at-p. 233.* O’M. <fc H. 34.
(1948) 49 N. L. B. 241.* (1921) 23 N. L. B. 33.
DIAS J.—Saravanamutlu v.de Mel.
creates an offence without making mens rea a necessary ingredient, it isoften difficult to decide into which category such a case falls. TheSupreme Court pointed out that this was to be determined by an examin-ation, not only of the words of the enactment, but of its purpose andsubject-matter. The intention of the statute to ignore or exclude theelement of mens rea in respect of certain of its provisions and to make itan absolute prohibition may be gathered (a) from the fact that the publicinterest was intended to be paramount, and that any individual incon-venience should give way to it; and (b) from the fact that thxns rea isexpressly required in respect of breaches of other provisions in the samestatute—see Casie Chetty v. Ahamadu 1 and Rex v. IVegodapola 2. It is,however, unnecessary to consider this matter further, because even if thefacts of the present case are held to be governed by Perera v. Jdyewardeite(supra) there can be no question but that the alleged abettors must haveacted with a corrupt mind provided the alleged facts are established. How-ever, as this question may come up for decision in future cases, I think itright to draw attention to these matters which merit further consideration.The recent English case of Harding v. Price3 will also have to beconsidered.
Section 77 of the Order in Council provides that the election of acandidate as a member shall be declared to be void on an election petitionon any of the grounds specified in that section, which may be proved tothe satisfaction of the Election Judge. Section 77 (c) indicates one suchground, namely “ That a corrupt practice or illegal practice was committedin connection with the election by the candidate, or with bis knowledgeor consent or bv any agent of the candidate ”.
Therefore, under the charge of abetment of personation, the burden ofproof rests heav ily on the petitioner to establish beyond reasonable doubtto my satifaction that “ a corrupt practice” was committed in connectionwith this election by the respondent, or with his knowledge or consent.,or by any agent of the respondent. In other words, it is for the petitionerto establish to my satisfaction :—
that some person committed the oftence of personation within
the meaning of section 54 ;
that such person was abetted, aided, counselled, or was procured
to commit that offence—
either by the respondent himself ; or
by some person or persons with the knowledge or consent of
the respondent; or
by any agent of the respondent, whether with or without
the knowledge or consent of the respondent.
1 (1915) 18 N. Ii. R. 184. '
* (1941) 42 N. L. R. at p. 464. In this case the question whether mens rea was anecessary ingredient of the offence of abduction was considered by the Court of CriminalAppeal.
3 (1948) A. E. R. 383. See also Weerakoone v. Ranhamy (1921) 23 NL. R. 33.Horan v. Arumugam (1916) 2 CWR. 177. Wickrexnasinghe v. Ferdinandus (1915) 5B.N.C.17. Skeikaly v. Lisa Humy (1911) 14 N. L. R. 349. Perumalti. Arumugam(1939) 40 N. Ii. R. 532, and Fonseka v. Fernando (1934) 36 N. h. R. 16.
DIAS J.—Saravartamulltt v. de Mel.
Both sides are agreed that in regard to (b) (iii) the petitioner’s casemust be confined to the particulars furnished to the respondent.
Before porceeding to consider the specific cases under this charge, it isnecessary first to consider certain matters which appear to be generallyrelevant to the charge. Democracy in this Island is still in its earlystages. The Courts in Ceylon have on more than one occasion referredto the ignorance and peculiar mentality of those to whom the suffragehas been granted. In the year 1930 in Fernando v. Cooray1 it wasobserved that the education of the ordinary voter as to the proper use ofthe vote had hitherto been almost non-existent, and that they have hadno opportunity until very recently of looking at matters with any idea ofpublic spirit. “ It will doubtless take many years to instil any such ideainto large sections of the less educated voters. If such is the frame ofmind of so many of the voters, all the greater the responsibility resting onthe candidates for election and their agents ”. In the light of theevidence given in this case it is open to question whether the educationof the ignorant and ill-educated voter has made much progress since1930. So recently as 1941 inSaravanamuttu v. Joseph de Silva2 the Courtwas constrained to point out that the electorate in Ceylon still consistedlargely of ignorant and illiterate persons.
The respondent, who has fought several elections previously, began hiscampaign in July, 1947. He, therefore, had nearly three months in orderto court the suffrage of the electors. He was his own election agent.Mr. Andrew de Silva, Proctor, was his friend and legal adviser before,during and subsequent to the election. The evidence clearly proves thatthe respondent was well alive to the dangers which beset the path of acandidate. He himself is a lawyer. The letter R 18 dated July 3, 1947,to his printer clearly shows that the respondent had carefully studied theprovisions of the law and was giving instructions to the printer that noorders for printing were to be executed on his behalf without the respon-dent’s special authority. It is also clearly established that the respondent,who is a business man on a very large scale, had doubts as to whether theNew Landing and Shipping Company', of which he was the proprietor andwhich was entering into contracts with the Crown in regard to the landingof goods from ships in the harbour to the warehouses on shore, might notdisqualify him. It is admitted that, foreseeing this danger, he was carefulto take competent legal advice as to the best manner in which such a■disqualification might lawfully be avoided. These facts clearly indicatethat the respondent not only had a large experience of political electionsbut also that he was well alive as to what he should or should not do.TTis commodious house, D’eyn Court, in Kollupitiya, on the Galle Road,were his headquarters. He employed a large election staff. His electionexpenses show thirty workers including several ladies. The evidence,however, indicates that his staff was in fact much larger. He obtained anumber of copies of the Electoral Register P 1. Six copies of each sectionof the relevant electorate were typed in his office, and a band of workersarmed with such lists went from house to house canvassing for votes andchecking up whether the voters were resident in the houses named in the•official register. These canvassers made notes on their lists of persons
1 32 N. L. R.atp. 141.s(1941) 43 N. L. R. at 312.
DIAS J.—SaravanamuUu v. de Mel.
who either were dead or who were absent or who no longer resided at theaddresses given in the official register. The respondent caused hisprinter to supply him with 46,000 copies of election cards, like the exhibit3? 11. If the electorate only numbered about 32,000 persons, it is difficultto understand why 45,000 cards were required. The respondent’sexplanation is that his agent, Felix Boteju, gave that order without hisinstructions. This, however, is not borne out by his letter R 18 to theprinter which clearly indicated that the latter was to execute no orderexcept on the respondent’s express instructions. It is to be observed thatthe explanation given by the respondent was not put to the printer whenhe gave evidence.
The respondent caused a card to be written out and filled in for eachelector in the electoral register. The canvassers then made a subsequentvisitation taking with them their checked lists and the relevant cards. Afurther check was thus made as to whether the electors were residing attheir addresses, and cards were handed to those who were in residence.Naturally, after the work was completed, each canvasser had left in hispossession a certain number of undelivered cards in regard to persons whowere dead, or who had left their residences, or who were not contacted bythe canvassers. These balance cards, instead of being destroyed, werebrought back and retained by the respondent. These facts have not onlybeen clearly established but are not contested. It is not in dispute thatthe checked lists and the undelivered cards were bundled together andkept in a trunk or box not in the respondent’s office at D’eyn Court—abuilding which is about 50 yards distant from the main house—but, forgreater safety, in the main building itself.
The reason why the respondent preserved these useless cards has notbeen satisfactorily explained. The witness Mr. George R. de Silva andthe respondent, who admits that the former was his mentor and model,both say that in their election campaigns they were in the habit of preser-ving these useless cards ; but neither of them has given satisfactory’explanation for adopting such a procedure. Mr. Bernard de Zoysa,who contested the respondent in this election, has stated that he destroyedthe balance of the election cards which his canvassers brought back.The petitioner stated that he did not write out election cards for deadand missing people, i.e., his election cards were only written out after hiscanvassers had checked the voters. Learned Counsel for the respondentwas constrained to admit that while the preservation of these uselesselection cards may indicate negligence on the part of his client, yet it didnot prove anything worse. On the other hand, Counsel for the petitionersubmits that the preservation of these cards amounts in the circumstancesto abnormal conduct, i.e., conduct which an honest and prudent candidatewould not adopt in the course of an election. Counsel for the petitionersubmits that where a person acts abnormally and there is no satisfactoryreason for the deviation from normal conduct, there must be some motiveunderlying such conduct. The case for the petitioner is that these cardswere deliberately preserved and utilized by the respondent or by hisagents, or by persons with the knowledge or consent of the respondent, inorder to facilitate impersonation at the election. The case for thepetitioner is that persons were brought into the Colombo South Electoral.
DIAS J.—JSaravanamtUtu v. de Mel.
District from outside that area on polling day, that they were given thesecards, and that they were abetted, counselled or procured to impersonatethe persona shown in those cards.
As I have observed before, the respondent is a lawyer, and in proctorAndre de Silva he had another lawyer to advise him right through thecampaign. They should have been aware of the observations ofde Kretser J. in Saravanamuttu v. Joseph de Silva 1 where the danger ofthese “ election cards ” was pointed out: “ . . . . Much, if not all,of the trouble would have been avoided if there had not existedcards indicating which side the voters were supporting.
. The cards serve another purpose for those who desire toimpersonate are furnished with an easy means of knowing and bearing inmind the names of those whom they are to impersonate … Itseems to me that the practice of using these cards is a gross violation of thesecrecy of the ballot which the law provides for, and that ignorant voters,instead of being protected, are led to disclosing their choice, not merelyby coming in the cars of the respective candidates but right up to the timewhen they are given their ballot papers… In my opinion, rules
should be framed prohibiting the distribution ofcards and
regulating entry to the polling station I entirely agree with these viewsof a very experienced Judge. In Britain the use of bands of music, torchesflags, banners, cockades, ribbons and other marks of distinction areexpressly forbidden a. It is a question meriting the attention of Parliamentwhether the printing, manufacture or distribution of election cards, badges,&c., should not be prohibited by law and their use made aground foravoiding an election. Had such a law been in force, the respondent mightnot have found himself in his present predicament.
The case for the petitioner is that on the night of September 19, 1947,i.e., oil election eve, the respondent caused persons to be brought into theColombo South Electoral District from outside that area, and that suchpersons were congregated at certain centres, particularly at No. 246,Havelock Road, an old house belonging to the respondent’s wife but overwhich the respondent exercised control by paying taxes, &c. It is furtherthe case for the petitioner that the election cards of deceased and missing,persons, who had not been contacted by the canvassers, were broughtfrom D’eyn Court to No. 246, Havelock Road, from which impersonatorsarmed with such cards were taken or conveyed to various polling boothsand either voted or attempted to vote for the respondent. It is allegedthat such impersonators were brought from places like Slave Island,Angulana, Moratuwa, Green Street, Grandpass, and so on—all places out-side the Colombo South area. It is further alleged that a building calledthe New Respect Club, off the main Colombo-Galle Road, was a “ sub-impersonation factory ”, while other centres for impersonation wereprobably established elsewhere. The case for the petitioner is that theseimpersonators were procured by the respondent and his agents, and thatthe alleged impersonations were abetted either by the respondent, orby persons unknown to the pertitioner with the knowledge or consent ofthe respondent, or by the agents of the respondent. This, in short, is
(1941) 43 N. L. R. at pp. 312-314.
Rogers an Elections (20th Edition), p. 375.
40 – N.L.R. Vol – xlix
DIAS J.—Saravanamuttu t>. de Mel.
the ease for'the petitioner on this charge. The question is whether thepetitioner has succeeded in establishing to my satisfaction, beyondreasonable doubt, the ingredients necessary to be proved in order tounseat the respondent.
This charge comprises 15 specific cases of alleged impersonations. Itmay be premised that if the petitioner succeeds in establishing any one ofthese charges beyond reasonable doubt, the respondent must be heldguilty of a corrupt practice.
[His Lordship then dealt with the cases of B. Hendrick, Luvinahamyand Mrs. M. M. I. L. Rodrigo (Erin Brenda Perera) and, after holdingwithout hesitation that these three persons were guilty of the offence ofimpersonation and that they were abetted in the commission of thatoffence by certain agents of the respondent, continued :—]
The Case of R. A. Roslin Nona.
Sopyhamy was registered voter No. 0717. It is beyond all disputethat at about noon on election day R. A. Roslin Nona, calling herselfH. Sopyhamy, appeared at the Kanatte Car Park polling station and claimedto vote. When she did so Mr. David de Silva, the petitioner’s agent inthe female section of that polling station, challenged her. He says thatthereupon Nissanka Piyasili, who was the respondent’s polling agentin the female section, protested and complained that Mr. David de Silvawas harassing voters unnecessarily. The presiding officer, Mr. C. H.Holmes, has no independent recollection of this incident. He recollectsthat several persons had beeD challenged, and he remembers that a womancalling herself Sopyhamy was referred to and that he handed five or sixmales and females to the Police. The presiding officer’s journal P 151 is ameagre document. This is the entry in the journal :—
“ The agents objected to about four female voters as impersonators.Their declarations were taken and they were handed to the Police forinvestigation. Some of the objections were frivolous. During thepoll there were signals by means of whistles and calls from privatehouses and lanes that certain persons were impersonating. I warnedthe agents that if they were in communication with people outside forpurposes of creating disturbances within and retarding work or withthe intention of annoying voters, I would turn such persons out of thepolling station ”.
Nissanka Piyasili characterises David de Silva’s evidence as false.According to him he was in the male section while the respondent’3 agentin the female section was Edwin Fernando. This was not put to Davidde Silva in cross-examination nor has Edwin Fernando been called.According to Nissanka Piyasili, he was in the male section near theentrance and he had nothing to do with the female section. The defencewitness, Sam Silva, has stated that Nissanka Piyasili is a person who willdo anothing for money. The letter P 349 dated July 30, 1946, addressedto the petitioner by Nissanka Piyasili, states that he is intending to printin the September copy of bis magazine an article on Mr. Saravanamuttuand invites him to send a block of his portrait. He also asks for ” generous
DIAS J.—Saravanamultu v. de Md.
contribution to meet the printing bill and also of making the blockNisaanka Piyasili admits that he has been to see the petitioner and thatthe petitioner had replied to him. The exhibit P 350, dated August 12,1946, written by Nissanka Piyasili to the petitioner, requests the lattei tosend him his contribution as promised. The suggestion is that thewitness is displeased with the petitioner who gave him only Rs. 25 anddid not give him a more generous contribution. The cheque P 196 datedApril 16, 1947, issued by the respondent for a sum of Rs. 200 to cashor bearer contains Nissanka Piyasili’s endorsement showing that hereceived that money. The witness admits that comparatively speakingthe respondent is of a more generous nature than the petitioner and thathe has a kinder heart and a kinder smile than the petitioner. Then thereis the cheque P 263 of April 28, 1947, issued by the respondent for a sumof Rs. 50 to cash or bearer which bears the endorsement of NissankaPiyasili. The witness admits that he has been in the habit of gettingsums of money from the respondent. He says they are loans-—a factwhich is open to doubt. In support of this statement Nissanka Piyasiliproduced his cheque R 57 of April 30,1947, for the sum of Rs. 200 payableto cash or bearer, but which still remains in his possession. The counter-foil of the cheque is not produced and this cheque might have been writtenon the day he gave evidence. This document proves nothing. Thewitness does not explain why this cheque is in his possession and has notpassed through the bank. The witness contradicts Oliver and the otherwitnesses as to the circumstances under which Oliver spoke at the meetingin support of the respondent at Wanathamulla. The witness has statedthat he associates with great men and that “ there is a perfect under-standing between the respondent and himself”. He admits that duringa municipal election, in one issue of his magazine he extolled the virtues ofthe witness Sam Silva and within 15 days of publishing that article heextolled a person called Grero as a more suitable person. In fact, NissankaPiyasili is a person whose evidence I am unable to accept on any disputedquestion of fact. Therefore, I have no hesitation in accepting theevidence of Mr. David de Silva as being the truth and that when hechallenged R. A. Roslin Nona, Nissanka Piyasili protested.
Roslin Nona was allowed to vote and, following the usual practice, theelection card which she brought was destroyed by the register clerk.
Roslin’s statement to the Police is the exhibit P 144. As she hasretracted that statement in this Court, it is not substantive evidence toprove any fact. Its sole effect is to discredit Roslin’s credit as a witness.This is what she said :—
“ Today at about 1 p.m. one L. K. Caroline Nona of Thimbirigasyayabrought me to Kanatte Roadand she instructed me to go
and vote for Mr. R. A. de Mel. She asked me to give my name asHettiaratchige Sopihamy and apply for a voting paper. I went andgave my name as Hettiaratchige Sopihamy and.applied for a ballotpaper. I was challenged. I signed a declaration form and voted.My correct name is Ranasinghe Aratcbige Rosalin Nona. I producemy rice ration book (which contains her real name) at the request ofthe Police.”
20*—B 13114 (10/63)
DIAS J.—Saravanamuttu v. de Mel.
In her evidence before this Court she has sworn that she did not makethat statement. Her present testimony is that she admits she imper-sonated. A woman in her garden called Carolina gave her three rupeesand one of the petitioner’s cards, not one of the respondent’s cards. Shesays she was asked to vote for Mr. Saravanamuttu and for the “ malla ”and that she voted for the flower. Subsequently, she was not sure whethershe voted for the flower or for the respondent. Carolina has been calledand she totally denies the allegations made by Roslin Nona. In cross-examination Carolina stated that on election day she was not living inTbimbirigasyaya but at Mariakaday. The other evidence proves thatRoslin Nona together with Catherina Perera, the mother of a man calledEkmon Seneviratne, were seen on election day in a truck displaying therespondent’s emblems conveying female voters to the poll. This is theevidence of Edward Singho. There is also the evidence of Amarasenawho positively identifies Roslin Nona as a woman he saw hanging aboutD’eyn Court after this election petition was filed. He also says that hesaw the respondent speaking to her. She is alleged to have told therespondent “ We have gone there ” and the respondent asked her “ Is thematter finished ? ”, to which Roslin Nona replied “ I want a job ”, towhich the respondent said “ We will see to it later ”. Amarasena alsosays that he saw Marcus Dias and the woman getting into a car and gosomewhere, and that after 15 or 20 minutes they returned with somepapers; and that it was then that the above conversation took place.I express no opinion as to the truth or otherwise of Amarasena’s evidencewhich I will deal with presently. I wish to say, however, that the respon-dent characterises Amarasena’s evidence on this and on every other factto which he testifies as being absolutely false, and I will have to considerthe question whether Amarasena is a person on whose credit the Courtcan at all rely. I therefore consider Roslin Nona’s case independently ofAmarasena’s evidence.
The presiding officer’s journal P 141 shows that the respondent visitedthe Ranatte Car Park polling station three times on election day, namely,between 9.10 and 9.15 a.'m., at 11.30 A.M., and again between 4.25 and4.35 p.m. Therefore, if Roslin Nona was there about noon she wouldhave probably seen the respondent visiting that polling station. Therespondent, however, denies that he saw her and this is probably true.The relevancy of this evidence will become manifest presently.
Roslin Nona’s bailsman in the Borella Police Station is Sam. Silva, thewitness. The defence contends that Sam. Silva was discovered as abailsman by Roslin’s brother-in-law, U. D. Paulis, at 4 p.m. This iscontradicted by the defence witness Police Sergeant Amerasekera whosays that it was Roslin Nona herself who gave him the name of Sam.Silva,and as he was anxious to have this young girl liberated on bail he madesearch for Sam. Silva and ran him to earth at the Borella junction. Sam.Silva corroborates Amarasekera. The importance of this point is thatSam. Silva, who is an agent of the respondent, was discovered not throughthe agency of U. D. Paulis but from what Roslin Nona herself told thePolice. It will be' seen presently that Roslin Nona had reason to believethat the respondent knew all about Sam. Silva.
DIAS J.—Saravanamuttu o. de Mel.
Roslin Nona was charged in the Magistrate’s Court. She was convictedon her own plea and sentenced to undergo three months’ rigorous imprison-ment. She served the sentenoe in Welikade Jail until the amnesty onDominion Day led to her release. She says : “ I pleaded guilty as nobodycame.” What that mean is she had no alternative but to plead guiltybecause the persons from whom she expected support in her necessitydid not come to her assistance.
From Welikade Jail Roslin Nona wrote a letter to the respondent inJanuary, 1948, that is to say three months after this election petition hadbeen filed. The respondent admits the receipt of this letter, but it is notforthcoming because he says the letter has been destroyed. Therefore,the petitioner had to prov^M^; letter by means of secondary evidence.
All letters written by prajgKctes are censored. If the letter is in thevernacular a translation is made and preserved in the files. The SupremeCourt has held that the translation of a vernacular document cannot beused as secondary evidence of the original. The translation, however,could be used by ths translator to refresh his memory when givingsecondary evidence ^pfche oontents of the original. That translation isthe exhibit P 146.
The secondary evidence which has been led is that Roslin Nona wrote toMr. R. A. de Mel at his Colombo address stating that she was suffering injail because she voted for Sir. de Mel by impersonating another. Shealso told the respondent that before she went to the Magistrate’s Courtshe had called at the respondent’s house and handed to him the summonsin her case. She further said that the Magistrate ordered her bail andthat it was Sam. Silva who bailed her uut—implying thereby that Sam.Silva was a person whose name would be familiar to the respondent. Shefurther stated in her letter that she was detected at the Kanatte pollingbooth and she asked Mr. de Mel whether he too had not seen her there.She appealed to Mr. de Mel on the ground that not only she but herchild were suffering and that she had never been to prison before. Shefurther added that some relatives of hers had been to see her in jail andhad told her that Mr. de Mel would come to see her. She therefore madean ad misericordiam appeal to Mr. de Mel to come and see her and amelio-rate her life in jail.
The receipt of this letter having been admitted by Mr. de Mel, twoquestions arise. Did he read the letter or did he not read the letter ? Ifind it difficult to accept the respondent’s evidence that because hedoes not understand Sinhalese, and as he is pestered -with such letters,he consigns them to the waste paper basket unread. The respondentis a public man who has been twice Mayor of Colombo. It is quiteinconceivable that, even if he did not know to read Sinhalese, he wouldnot have got the letter translated by one of his many dependants residingin his house. It is admitted by learned Counsel for the respondentthat had this letter been read it demanded a reply. What Roslin Nonawrote to the respondent is either true or it is false. If it is false, onewould expect a man in the position of the respondent, over whose heada serious charge of abetment of impersonation was then hanging, to atonce have replied characterising the allegations in that letter as being
DIAS J.—Saravanamuttu v. de Mel.
utterly false and disclaiming all knowledge of the statements of faotmade in that letter. The inference which flows from not replying toletters has been pointed out on more than one ocoasion by the SupremeCourt. In business matters, if a person states in a letter to anotherthat a certain state of facts exists, the person to whom the letter isaddressed must reply if he does not agree with or means to dispute theassertions—The Colombo Electric Tramways and .Lighting Co., Ltd., v.Pereira1 and R ijewardene v. Don John2. Of course there are exceptionsto this rule. For example, failure to reply to mere begging letters whenthe circumstances show that there w’as no necessity' for the recipientof the letter to reply can give rise to no adverse inference against therecipient. I cannot class Roslin Nona’s letter as being one which didnot oall for a reply from the respondent, particularly having regard tothe fact that at the time he received the letter this charge was hangingover his head. Explanation 2 to section 8 of the Evidence Ordinancesays :—-
“ When the conduot of any person is relevant, any statement madeto him or in his presence and hearing which affects suob conduct isrelevant.”
Illustration (/) to that section says :—
“ The question is whether A robbed B. The fact that after B wasrobbed C said in his presence ‘ The Police are coming to look for theman who robbed B ’ and that immediately afterwards A ran awayare relevant.”
In this case it is as if Roslin Nona told de Mel : “I impersonatedanother on your behalf. Unfortunately I was detected. I broughtthe summons to your house and handed it over to you. I am nowsuffering for what I did for your benefit. Please come and do some-thing for me ”, and the responQcut made no reply and did not denythe allegation. The inference I draw is that there was no reply tothis letter because there was no reply which could be sent. In myopinion, the silence of the respondent is an admission of the truth of theallegations contained in that letter. I rejeot the suggestion made onbehalf of the respondent that Roslin Nona, havin0 been induced toimpersonate by some agent of Saravanamuttu, wrote the letter to deMel and not to Saravanamuttu because de Mel was elected and notSaravanamuttu. I think this suggestion is fantastic. The petitionerhas pointed out that the conduct of the respondent in not replying toRoslin’s letter is all the more significant in view of the statements hebroadcast to the electorate in his manifesto, P 362, where he calls himself“ The friend in Deed of the poor and helpless and a person dedicated tothe servioe of the people ”.
When the petitioner supplied particulars of the alleged acts of imper-sonation, Roslin Nona’s case was held over because adequate particularsof this case had not been given. These were subsequently given.Therefore, when the petitioner’s Counsel opened his case he abstainedfrom making any reference to the facts relating to Roslin’s case. When1 (1922) 25 N. L. R. 193.* (1910) 25 N. L. R. 196.
DIAS J.—Saravanamutttc tr. de Mel.
the enquiry began Roslin was absent. On May 5, 1948, the Court ordereda warrant to issue on her. On the same day a warrant was also askedfor in regard to the man called Ekmon Seneviratne. This applicationthe Court refused holding that there had been no proper attempt to servesummons on him.
Roslin Nona was arrested and produced in Court on May 12, 1948—one week after the warrant had issued for her arrest. On the same dayEkmon Seneviratne appeared in Court. Roslin was partly examined onMay 12, 1948, and her cross-examinaton was put off for the next day.She was ordered to furnish bail and was directed to go with a fiscal’sofficer to her home and point out a certain person.
Tho petitioner alleges that between May 5, 1948, and May 12, Roslin.Nona had boen kept concealed by Ekmon Seneviratne in Ekmon’s house.The petitioner’s submission is that the respondent and his legal advisersat that period were under tho belief that secondary evidence of Roslin’sletter to tho respondent could only be proved by calling Roslin herself andthat her concealment was therefore due to this fact. The evidenceclearly indicates that the petitioner’s allegation is true, namely, thatEkmon Seneviratne kept this woman under concealment and that shewas accidentally discovered by the police or the fiscal’s officers when shewas returning to Ekmon’s house after a bath. In this connection it isalso relevant to note that the petitioner took out a summons on therespondent to produce the letter which Roslin wrote to him from jail.It is alleged th-.this process could not be served on the respondent.Therefore, the petitioner resorted to a stratagem. He lured the respon-dent to the house of one Colonne while tho petitioner's agents and thedeal’s officer lay in wait to serve the process on him when he left Colonne’shouse. It is alleged that the respondent having been warned at Colonne’shouse turned his car round and drove off at a rapid rate chased by thepetitioner’s car containing the fiscal’s officer. The chase proceeded alldown the length of Butters Road, but when the respondent’s car tried tonegotiate the right-hand turn at the junction between Bullers Road andthe Gallo Road near the Mejestic Theatre, the respondent’s car stopped,whereupon the fiscal’s process server succeeded in serving the process.The respondent denies that he fled to avoid service of process, but theevidence of quite disinterested witnesses, like the process server andthe police constable on point duty at the junction makes it quite plainthat the petitioner’s car followed the respondent’s car and that serviceof process was effected at that junction.
As I have pointed out, Roslin’s examination was not concluded on May12. It is alleged that something rather serious happened that night, and theallegation has been made that Roslin Nona was taken by night from herhouse in the respondent’s car No. CE 5801 for the purpose of tamperingwith her evidence. The allegation is strenuously denied by the defence.
Certain facts are beyond all possibility of dispute. We find that at9.35 P.M., on May 12, the petitioner telephoned to Superintendentof Police, Mr. Robins, and made a certain complaint. In consequenceof that complaint Mr. Robins issued certain orders to the Naharanpitiyapolice station via the Cinnamon Gardens police station as the telephone
DIAS J.—■SaraoanamuUu v. de Mel.
at the former station was out of order. In consequence of these directions.Police Constable Scharenguivel was sent out on what is called an ambushpatrol. He swears that he saw a car bearing the number 5801 comingalong, but owing to its speed he could not distinguish the two letters.He admits that this car slowed down and that when the driver saw himhe accelerated and disappeared. That car was closely followed by carNo. Z. 4351 which is the petitioner’s car. This car stopped and thedriver spoke to Scharenguivel. The suggestion is that car No. 5801contained Roslin Nona, and its driver finding that the police were onthe look outj he drove off. The respondent in his evidence says thathis car No. CE. 5801 was in that vicinity on that night as it was conveyingan asthmatic to his house. Why the respondent should give his carin the dead of night to an asthmatic in order to convey him home issomewhat difficult to understand. Even more curious is the fact thatthis asthmatic has not been called, and although this being a matterspecially within the knowledge of'the respondent and a fact of someimportance to his case, this witness has not appeared. It is furtherstated that the respondent’s car wets at the house of his senior Counselwhere he had gone to attend a consultation. It is to be noted, however,that the respondent owns two other cars. There is another fact. Wefind that at 3.10 A.M., on May 13, 1948, the witness Podiappu Hamywent to the Naharanpitiya police station. There he made the followingstatement:—
“ This evening at about 9 or 9.30 f.m. Mr. P. Saravanamuttu askedme to go near the house of Mr. R. A. de Mel and keep a watch. Afterabout 10 minutes of my arrival near the bungalow, I saw Mr. R. A. deMel’s car No. CE. 5801 come from Bagatelle Road and go into hisbungalow. I was in oar Z. 4351. After about 15 minutes the carcame out and went towards Bambalapitiya. I followed. It turnedtowards Bullers Road heading towards Naharanpitiya. At JawatteI saw two police constables. I did not stop there but followed on.Near Bolamesawatte the car slowed down but saw two policemen thereand drove on without stopping. I stopped my car and spoke tothe two police constables and told them that it was Mr. R. A. de Mel’scar and followed on. This car went to Kanatte Road, turned to CottaRoad and after that it turned back and came on to Bullers Road andthen turned towards Wellawatta on Galle Road. Went up toLunawa following the car. I turned back, came near N. E’s work-shop and lay in ambush. Then I saw the car. I again followed.The car came back to Mr. de Mel’s bungalow. I saw Nissanka (Nissan-ka Piyasili) and Marcus Dias along with the driver in the car. I cameto make this entry on instructions from Mr. Saravanmuttu.”
This statement is one reoorded under Section 121 of the Criminal Pro-cedure Code, and being a first information can be used for any legitimatepurpose, e.g., to corroborate tbe maker of that statement.
It is clear from these facts that something happened on the night ofMay 12, and that there were two incidents. The petitioner says thatwhen Roslin Nona left the courts after giving evidence, he decided tohave the woman shadowed. He therefore directed the witness K. H
DIAS J.—Saravanamuttu v. de Mel.
Perera to shadow Roslin. Perera says he saw Roslin and another atabout 7 p.m. getting into the car CE. 5801 and drive off towards HavelockTown. He then went to the Naharanpitiya police station but theyrefused to take any action saying “ Can’t a woman go in a car ?”. Pereratherefore went back to Saravanamuttu’s house by bus and reportedwhat had happened. It was then that Mr. Saravanamuttu contactedSuperintendent Robins. K. H. Perera was directed to go back toNaharanpitiya police station, and this time his statement was recorded.This statement is the exhibit P 148 which reads as follows :—
“ Roslin Nona a witness in the election petition …. came
to Bolamesawatte about 8.30 p.m. Car No. CE 5801 was at Torrington
Avenue junction. Roslin Nona also went off towards Havelock Road.”
Roslin Nona denies all this, but as I have already pointed out, hertestimony unless independently corroborated is of no value at all. Thesecond incident is concerned with Poddiappu Hamy, the driver ofMr. Saravanamuttu’s car who made the statement P 210. His evidenceis that he was directed to take Mr. Saravanamuttu’s car somewherebetween 9.30 p.m. and 10 p.m. and to keep watch at the respondent’sgate. His evidence is in line with the statement he made in P 210 andneed not be repeated. He says that when the car finally came back aftergoing to Lunawa it stopped at de Mel’s gate and Marcus Dias andNissanka Piyasili got out of that car and came towards PoddiappuHamy’s car while de Mel’s car turned into D’eyn Court. Witness thenthought that discretion was the better part of valour and he retreated,particularly as Marcus Dias has the reputation of being a rowdy. Itwas then that Poddiappu Hamy made the statement P 210.
All this evidence has been characterised as being a fabrication. Havingregard to all the facts and circumstances I cannot so hold. I am ofopinion that some attempt was made to contact Roslin Nona that nightbefore her examination continued on the following day. The conclusionI reach in regard to Roslin Nona’s case is that she has committed theoffence of impersonation and that she was abetted to commit this offenceby Ekmon Seneviratne in whose house she sought sanctuary when thewarrant was out against her.
Is Ekmon Seneviratne an agent of the respondent ?
Witness de Jonk, who until about the middle of September was on therespondent’s election staff at D’eyn Court, swears that Ekmon Seneviratneused to come to D’eyn Court practically every night. Witness EdwardSingho states that in the Torrington Avenue area Ekmon was de Mel’schief worker, and that he has seen Ekmon accompanying de Mel whenthe latter went out canvassing in that area. He says he has seen Ekmonindependently going from house to house canvassing for votes on behalfof the respondent. He further says that he saw Justin Boteju and Sam.Silva going about on the respondent’s business in Ekmon’s car. He has.seen Ekmon’s mother, Catherina Hamy, on pollong day transportingfemale voters, and he saw Ekmon himself transporting voters on electionday. The witness, Samaraweera, gives similar evidence. Piyasena, theprinter, has sworn that Ekmon came as messenger on behalf of the
DIAS J.—Saravanamuilu v. de Mel.
respondent, and the exhibit P 190 B shows the entry against respondentaltered to the name of Ekmon Seneviratne. On the day the results ofthe election were declared (September 22) we find the impersonator,Hendrick, from Market Passage, Slave Island, going to see Ekmon Sene-viratne in the Jawatta area. Hendrik’s explanation is that he hadgiven Ekmon Seneviratne a ride in his rickshaw on credit and he wentall that way to collect the fare. To anyone having experience of theColombo rickshaw-pullers it seems incredible that any rickshaw-pullerwould convey passengers on credit and then walk several miles, on asubsequent day to collect his fare. Hendrick, having transacted hisbusiness with Ekmon Seneviratne, got into a lorry belonging to therespondent, which happened to be passing quite by chance in whichamongst a crowd of the respondent’s supporters was the woman MillieNona, also from Market Passage, Slave Island. The suggestion for thepetitioner is that Hendrick not only impersonated people at the HolyFamily Convent but elsewhere, and that he had gone to see Ekmon tocollect the consideration due to him. There is no evidence whatever tosupport this suggestion although the reason given by Hendrick for goingto see Ekmon will not bear examination. The respondent’s evidencewith regard to Ekmon Seneviratne is unsatisfactory. He does not admitwhether Ekmon worked for him or not. He first said he did no work forhim. He then said he did hardly any work for him, and at another timehe said that Ekmon dii nob do much work for him. I am of opinion thatEkmon was one of the respondent’s cheif agents in the Jawatta areaduring this election. I therefore find that Roslin Nona was abetted inthe offence she committed by one of the respondent’s agents.
[His Lordship then dealt with eleven other cases of impersonation,namely, of M. Abraham Gunewardene, Norman of Angulana, CeciliaPerera of Green Street, H. Dona Veronica Peris of Grandpass, Gimarahamyof Market Passage, Slave Island, U. Justin, Kusumawathie, Ransohamy,E. A. Jane Nona, Caroline Perera and D. Roslin and continued :—]
This body of evidence involves fifteen independent cases of allegedimpersonation. I have given reasons for finding that in each of thesecases the alleged principal offender has been proved to have committedthe offence of impersonation beyond all rasonable doubt. The evidencealso leaves no room for doubt that there existed a preconcerted schemeor conspiracy on the part of a person ora body of persons to procure personsand to abet them to impersonate voters in order to secure extra votesfor the respondent. These fifteen independent chains of circumstantialevidence are so strong and cogent that it is impossible to regard theseimpersonations as being due to mere chance or coincidence. A body ofcircumstances by undersigned coincidence is sometimes capable ofproving a proposition with the certainty of mathematics. The cumula-tive effect of all this evidence when regarded as one whole gives rise tosuch decisive conclusions which are beyond the power of any advocate,however able, to explain away on the basis of mere chance, accident, orcoincidence.
Counsel for the respondent in the course of the inquiry put qusetionsto some of the witnesses suggesting that these fifteen cases represent a
DIAS J.—SaravanamuUu v. de Mel.
trap which had been set by supporters of the petitioner by procuringimpersonators and a supply of the respondent’s election cards, in orderto ensnare the respondent and to unseat him if he was successful atthe election. In his closing address, however, Counsel abandoned thissuggestion. He conceded, for purposes of argument, that it was clearthat there must have existed a scheme to abet impersonators to votefor the respondent. Counsel argued that it would be sufficient to securethe acquittal of the respondent on the first charge if he could advance areasonable hypothesis consistent with his client’s innocence, provided itcovered all the incriminating circumstances. He submits that theevidence may establish the existence of a scheme to abet impersonationby these fifteen persons, and that the evidence may even create a strongsuspicion against the respondent. According to him, there are fourpossibilities. These persons may have been abetted (a) by the respondenthimself, or (6) by agents of the respondent named in the particulars, or
by persons with the knowledge or consent of the respondent; ok (d)they may have been abetted by persons acting in the interests of therespondent in order to secure his election, but without his knowlegde orconsent. Learned Counsel pressed this fourth alternative as being aprobable and possible view which covered all the facts, and would createreasonable doubts in favour of the respondent. According to thissubmission, there existed a body of misguided supporters of the respon-dent, who unknown to him, and without his consent or approval, set aboutto procure impersonators, paid them money, supplied them with therespondent’s cards, taught them what to do and say, and sent them onelection day to vote for the respondent by impersonating genuine voters.
It is a sound proposition of law that in a case of circumstantial evidence,in order to convict a person, the Court must be satisfied beyond all reason-able doubt that the evidence is only consistent with the guilt of theaccused, and that it is totally inconsistent with any reasonable hypothesisof his innocence. It is quite insufficient for the accuser merely to establisha strong case of suspicion against the person accused. A “ reasonabledoubt ”, however, does not mean a fantastic or fanciful doubt. Areasonable doubt is one which creates sensible or sound doubts based oncommon sense and good grounds.
In the light of these principles let us examine the submission of learnedCounsel, that while there was a conspiracy on the part of a body of thesupporters of the respondent to secure his election by means ofimpersonation, nevertheless,- reasonable grounds exist for doubting thatwhat was done was by himself, or by his agents, or with his knowledgeor approval. If this submission has been proved, or even if it onlycreates a reasonable doubt as to the truth of the case for the petitioner,then, undoubtedly this charge fails, and the respondent is entitled to beabsolved from it.
There are 11 men and 4 women involved in these impersonations.Three men and five women were detected at the Jawatta polling station.Three women were arrested at the Colts’ pavilion. One man and onewoman were detected at the Holy Family Convent. One womanwas detected at the Campbell Place polling station and. another
DIAS J.—Saravanamuttu v. de MeL
at the Kanatte Oar Park. The majority of these fifteen persona .come from widely distant places outside the Colombo South District,like Slave Island, Kotte, Angulana, Panchikawatta, Wellampitiya,Green Street, Grandpass, and Angoda. They were all supplied withelection cards of the respondent, relating to genuine voters who eitherare missing or did not care to vote. All of them, with the exception ofone, admit that they impersonated. They make this admission although,in regard to some of them, charges are still hanging over their headsin the Courts. The majority of them when arrested told the Policethat they had been asked to vote for “ de Mel ”,. while at this inquirythey try to show that the police by some defect of hearing recordedde Mel” when what they actually said was “ Malla ” (the Blower).It is incredible that so many police officers should be hard of hearing.Rather it shows that a determined attempt had been made to inducethese persons to vary their stories. It is incredible that these persons,coming from places so widely separated, would have allowed themselvesto be accosted in broad daylight in the open streets, and consent, withoutfee ->t reward first obtained, to leave their business and agree to commitwhat they well knew was a serious offence. It is also highly improbablethat a band of persons would have boldly set out on election day in broaddaylight to waylay and accost likely persons, and run the grave risk ofselecting an incorruptible person and being detected either by the policeor the rival candidates, or being handed over to the police by one of thepersons they accosted. It is far more probable that these persons hadbeen contacted some time before election day, brought to some safe placewhere they could be rewarded and taught what to do and say withoutfear of detection. I find it difficult to believe that these fifteen persons,at the mere request of strangers and without having first been liberallyrewarded, would have left their lawful business and set out to impersonateand run the risk of being detected and gaoled.
According to the submission of Counsel for the respondent, thesemisguided supporters of the respondent must have contacted theimpersonators on some day before the election. According to him, oncethe polling was over, they lost all further interest in the impersonatorswho were left to fend for themselves. Their interest, however, revivedwhen a large number of these impersonators was arrested, and therearose the risk of the conspirators being detected. That is why, it issubmitted, that while the impersonators had difficulty in finding bail,this was found for them, after which they were tampered with and madeto change the stories they told the police, and a proctor found to defendthem. In other words, there were two separate conspiracies. The firstwas to abet these persons to impersonate. The second, which wasindependent of the first, was to take such measures as would protectthe conspirators from exposure. I am unable to agree with learnedCounsel. I agree that the evidence clearly proves that a conspiracyexisted ; but it was one conspiracy and not two. The abettors, whoeverthey may be, conspired not only to get the respondent elected, but alsoonce he was elected, to see that he was not unseated, and to take all. measures by finding bail and legal aid for the impersonators, and evenTampering with their evidence, to see that their object was not frustrated.
DIAS J.—Saravanamuttu v. de Mel.
If the submission made for the defence is correct, what follows ?The conspiracy must have been hatched some days before election'day.The conspirators, unknown to the respondent, had to contact the im-personators. This could not be done on the election day itself. Theyhad to obtain a supply of the respondent’s undeb'vered cards without,his knowledge, including the cards found in the possession of the-impersonators, and the seventy-two cards, P 31, found in the New RespectClub as well as the exhibits P 18 to P 30. They had to collect the imperso-nators at some safe place, arrange the reward which was to be given,pay them that reward, distribute the cards, and teach each impersonatorwhat his or her new identity was and what he or she would have to sayto the officers at the polling stations. I cannot believe that these conspi-rators were so short-sighted that they did not foresee the possibilitythat some of these impersonators might be detected and arrested.
Who is the man who is lucky to have such a body of friends andsupporters who, unasked, would engage in a criminal conspiracy of thiskind, spend their money lavishly, and run the risk of being detected andpunished ? Why should Felix Boteju who, according to the respondent,had left his services on September 9 in a huff, join these unknownfriends of the respondent on election day by voluntarily coming forwardto bail four persons who committed impersonations to benefit therespondent against whom be had a grudge. According to the respondentthis is a “ mystery ”. According to the petitioner there is no mysteryabout it at all. Felix Boteju was the respondent’s chief agent on electionday, and was engaged in the respondent’s business when he stood bailfor these persons. According to the petitioner, even on September 22when the results were announced, Felix Boteju was still the respondent’schief agent, and in a transport of joy, he embraced the man whom hisefforts bad enabled to win this contest. Why did Mrs. Rodrigo telephoneto D’eyn Court on the day before her case in the Magistrate’s Court,and why in Mr. Nicholas’ hearing did she refer to “ our case ”? Whydid Mrs. Rodrigo before going to Court interview Mr. Andrew de Silva, theproctor for the respondent, and why did she, from the Court, go straightto the respondent’s house and from there go to the house of Oliver ?Why did R. A. Rosaline Nona from gaol write to the respondent solicitinghis aid in the trouble she had become involved through helping therespondent ? Why did the respondent having received that letter notat once write to Rosaline Nona denying or repudiating the statements offact contained in that letter ? What inference flows from the incidentin the garage in the sea-side house in which Cecilia Perera was involved?What is the explanation of the visits of Gimara Hamy and Cecilia Pererato the respondent’s house ? What is the inference to be drawn from theincident on the night of May 12, 1948; when R. A. Rosaline Nona wasseen to enter the respondent’s car in the dead of night ? Can thesefacts be explained away on any hypothesis consistent with the view thatthe respondent was unaware of or did not approve of the conspiracyhatched by his misguided friends ? Felix Boteju is a person who couldgive material evidence for the respondent on this question whether whatwas done bad his knowledge or approval. The petitioner has left nt>stone unturned to secure his arrest. The respondent has done nothing
21B. 13114 (10/63)
DIAS J.—Saravanamuttu v. de Mel.
in the matter. The conclusion is irresistible that not only was there aconspiracy to abet impersonation, but also that this was hatched with■the knowledge and approval of the respondent. In the case of CeciliaZPerera, the evidence when fairly viewed leaves no room for doubt that therespondent abetted her by rendering intentional aid to her when she waschallenged at the polling station. The subsequent incident in the garageand her visit to D’eyn Court support this view.
Aacording to the respondent, he was all along quite sanguine regardinghis chances of success at the election. The circumstances point to adifferent conclusion, namely, that on election eve (September 19), he wasby no means sure of his chances, and was in consequence anxious andrestless. There were several candidates in the field. One of them wasa well-known public servant who had retired from the service speciallyito contest this seat. If the respondent was so sure of his success, why•did he preserve the useless undelivered cards together with the checkedlists in a trunk in his bungalow % Were they not preserved for thepurpose of impersonation should the necessity for so doing arise ? Couldthose cards leave his house without the knowledge of the respondent orthe members of his household ? A candidate, who has conscientiouslynursed his electorate for several months, would normally on the eve ofthe election relax, so that he might be at his best on the following day.The evidence, however, makes it clear that on tbe night of September 19,far from relaxing, the respondent was anxious and restless. There is noreason to doubt the evidence called for the respondent that from about9 F.M. he was going about the electorate and, finally, got home about
or 3 a.m. on election morning. I do not believe that the respondentwas continuously away from his home from 8 p.m. until 3 a.m. I believehe did return to D’eyn Court and went out again, and he could easilyhave done this without attracting the attention of his other workers inhis office which is far from the main bungalow. Those workers wereengrossed in their work. The fact that he was restless and went aboutfrom place to place is clearly proved. In my opinion, that is not theconduct of a man who, having done all that legitimately could be done,was confidently awaiting the verdict of the electors on the following day.It is rather the conduct of a man who was uncertain of the result. Ifthe submission of respondent’s Counsel is correct, it also follows thatwhile his misguided friends were engaged in a conspiracy to secure votesfor him by illegal means without bis knowledge or consent, the respondenthimself was wandering about the electorate in the dead of night. Whatwas he doing ? The evidence of witnesses like Messrs. Robert Senanayake,Oriel de Mel, and Annesley de Mel that they last saw therespondent at about 8 p.m. on September 19 is perfectly true. It mayalso well be that Benjamin de Silva, the respondent’s chief clerk, isspeaking the truth when he says that he last saw the respondent at about8 p.m. and he next saw him alighting from his car at about 4 a.m. Someof these witnesses did not stay at D’eyn Court all night.’ Those whodid, had duties allotted to them, and they were working in the office orin the grounds. It is quite possible for the respondent to have gone out,returned to the bungalow, and then gone out again without any of thesewitnesses becoming aware of the fact. According to the witness K. Don
DIAS J.—Saravanamuttu v. de Mel.
David, who has earned the name of the “ Torch-bearer ” (pandan-karaya)of a certain political party, the respondent was with him from 9 or
p.m. until 11.30 p.m. The credit of this witness has been attacked.He says that his nick-naine is derived from the fact that he is an“ enlightener of the ignorant ”. According to him, as he is in touch withcertain great personages, or as he put it, because he was “ within theinner circle”, people come to him to obtain favours. Unfortunately,he had cut a sorry figure in a Village Committee election in his ownvillage, so that in the present election he gave that village “ a wideberth ”. According to him, on the night of September 19 he dividedhis favours. He “worked” for a certain candidate in the ColomboCentral area from about 7 p.m. to 8.30 p.m. and then “ worked ” for therespondent in the Colombo South area from about 9.30 p.m. up to
a.m. The witness, of course, was not working to a time-table, andhis times are approximate only. It is possible that the respondent on this,night did meet this witness, but I cannot place reliance on the timesgiven. The persons who could corroborate the respondent’s evidenceregarding his movements are his motor car driver and the other man.who were with him in his car. Those persons have not been called.The witness Sam de Silva says that after he had retired to bed and was-asleep the respondent came to his house and awoke him merely to inquirewhether a certain tent had been erected. The witness is unable to fixthe time of this visit. It was a purposeless journey for the respondentto make to Borella. As to what the respondent was doing until 2.30 or3 a.m. there is no satisfactory evidence. According to the respondenthe visited K. L. Perera, the Wesley College, Kalumahatmaya, PodiWilbert, William Singho “ and other places ”. What was his object indoing this ? The petitioner’s suggestion is that the respondent duringthis period was engaged with his co-conspirators in arranging for theabetments of impersonators on the next day.
For what purpose was No. 246, Havelock Road, used on election day ?The case for the respondent is that he used these premises as his head-quarters for issuing petrol chits to the cars which his friends had senthim. Most of these cars, however, came with their tanks full. Whatwas the necessity to have a special headquarters for the issue of petrolchits when that work might just as easily' have been done at D’eynCourt 1 The case for the petitioner is that these premises were the placewhere the majority of the impersonators were collected, abetted, taughtwhat to say, given the election cards, and sent to impersonate. Theevidence of witnesses like Mrs. Paul, Kaimon, and Proctor Goonatillekeprove that some more than usual activity was taking place in thosepremises from an early hour on election day. I do not believe that thepremises were used as the headquarters for the issue of petrol chits.Mrs. Paul, Kaimon, and Proctor Goonetilleke say nothing about this,and the question was not squarely' put to them under cross-examination.Why was there not a single placard or election poster displayed at thesepremises to show that it was a place where work was being done for therespondent ? The respondent visited the Colts’ Pavilion polling stationhard by on no less than three occasions on election day. Why did henot drop in at least on one of these occasions at No. 246, Havelock Road,
DIAS J.—SaravanamtUlv v. de Mel.
to see how things were progressing there, or at least to cheer his supporterswith a word of encouragement ? These circumstances suggest that therespondent deliberately kept away from those premises because somethingimproper was happening there and he consequently gave the place awide berth.
Why did the respondent’s agents and supporters furnish bail for theseimpersonators at the police station? Manatunga, the professionalbailsman, and Costa, the other bailsman, impressed me as truthfulwitnesses. They have no motive or reason for stating what is false.I reject the suggestion that because Mr. Andrew de Silva’s clerk does notutilise the service of Manatunga as a bailsman, therefore Manatungaand Costa are giving false evidence to implicate the respondent. Mana-tunga swears that he stood bail for these impersonators at the requestof Andrew de Silva who paid him his fees. When the amount of hissecurity was exhausted, Andrew de Silva agreed that Costa, anotherprofessional bailsman, should stand surety for the other impersonators.I accept this evidence as the truth. I believe Andrew de Silva engagedthe services of these two bailsmen at the request of the respondent whopaid their fees. It is because the respondent was privy to the con-spiracy which was carried out for his benefit and he was under a moralobligation to assist these impersonators that he acted in this way.
Who engaged Proctor Jayanayake to defend the impersonators with-out any previous consultation with his clients 1 Who paid the Proctor’sfees ? Proctor Jayanayake has not been called. There would havebeen no breach of professional privilege for that gentelman to statethat his fees were not paid by the respondent, if that was the fact'. It isto be noted that Proctor Jayanayake was one of the respondent’s pollingagents at one of the polling stations.
So far I have dealt with the case as if it were one based exclusivelyon circumstantial evidence. The petitioner, however, relied on a certainbody of direct evidence.
H. S. Fernando (Baila Henry) and M. C. Fernando have already beendealt with. I have given reasons why I am unable to accept theirtestimony. There is one observation, however, which I desire to make inregard to the taking of the affidavit R 5 from M. C. Cooray on March 14,1948. Assuming that the respondent’s version is true, i.e., that M. C.Cooray voluntarily and uninvited came to see the respondent, and wasnot made intoxicated and brought by Felix Boteju to D’eyn Court asalleged by the witness at the inquiry—nevertheless the respondent andMr. Andrew de Silva, well knowing that M. C. Cooray had alreadygiven a statement to the petitioner, took from the witness the affidavitR 5. Such conduct has been held to be improper both in Britain and inCeylon. In the case of RambukweUa v. Silva1 Bertram C.J. said : “Ithink it well to draw attention to the principle laid down in the WiganBorough Case2 and the MovJtgomery Boroughs Case3 cited in the articleon “ Elections ” in Lord Halsbury’s Laws of England on page 449 thatit is not proper that persons who have been, or are likely to be, sub-poenaed by one side should be got by the other side to make statements
1 (1924) 26 N. L. R. at pp. 254-255.* (1881) O'M. <fc B. 1.
3(1892) Day 150.
DIAS J.—Sarava riamuitu v. de Mel.
or to sign prepared statements. The breach of this principle whichtook place was, no doubt, due to ignorance of the principle that has beenthus laid down. In spite of all temptations to the contrary, and in spiteof apprehensions that the witness may have been suborned to give falseevidence, it is always best that this rule should be duly observed ”. Therespondent and his Proctor, who are lawyers, should have been aware ofthis principle laid down by Bertram C. J.
Another witness the petitioner relied on to give direct evidence isHapuarachchi, from whom the petitioner appears to have obtained astatement. Hapuarachchi, like Felix Boteju, has disappeared. Althoughhe is a Government pensioner, he has not drawn his pension or, accordingto Hapuarahchci’s wife, had any communication with her since hemysteriously disappeared.
The man Victor is another witness on whom the petitioner relied togive material evidence. It is clearly established that Victor was asupporter of the respondent who, with Marcus Dias, were seen by severalwitnesses canvassing for votes with the respondent’s files and lists likethe exhibits P 6 to P 8 in their hands. Mr. Bernard de Soysa is one ofthe witnesses who directly testified to this fact. The respondent, how-ever, says that he only came to know of Victor after this inquiry began.Yet on the respondent’s list of witnesses filed on April 17, 1948, thisman’s name appears as a witness for the defence. The respondent admitsthat he may have seen Victor’s name in the particulars furnished to himby the petitioner, but he made no efforts to ascertain what this so-calledagent of his was alleged to have done to furnish evidence for the petitioner.I have no doubt that Victor was one of the respondent's agents in thearea. I find it clearly proved that Victor contacted the proctor for thepetitioner and that he made a statement, P 37, which I have not read, topetitioner’s 'proctor and counsel, and handed to them P 6 to P 8 whichare some of the respondent’s election files containing the lists of votersfor the area. Victor came into the witness box and flatly denied that heever made a statement to the legal advisers of the petitioner or that hehanded the files P 6 to P 8 to the petitioner’s proctor. Learned Counselfor the petitioner and his Proctor have given evidence. I have nohesitation in holding that Victor committed perjury at this inquiry, andthat he did make the statement P 37 (which is not admissible evidence)and actually handed over the files P 6 to P 8. to the petitioner’s lawyers.Obviously, the witness has been got at, in the same manner in which otherwitnesses have been tampered with.
Finally, we have the important witness Amarasena. In dealing withthe Gases of the impersonators, I have had occasion to mention thename of this witness. It is now necessary to consider the story he tellsand to assess the amount of credit, if any, which attaches to his testimony.
Amarasena is a young man who volunteered for service abroad duringthe war. He belonged to the Army Service Corps and saw active servicein the Allied Army from El Alamain to Italy. He admits that a CourtMartial sentenced him to a term of imprisonment for assaulting an officer.Such an offence committed in .the field during war would, one imagine,carry with it a death sentence. He was sentenced to imprisonment
41 – N1.R. Vol – xlix
DIAS J.—Saravanamuttu v. de Mel.
which the authority who reviewed the sen ten oe reduced to eighteenmonths. He denies that he was convicted of any other offence. Heexplains that he assaulted his superior officer because the latter calledhim a “ Black b .. d ”.
Amarasena says that he made the acquaintance of one David who gaveAmarasena a letter introducing the latter to Benjamin de Silva, one ofthe respondent’s trusted clerks. Amarasena says that be interviewedthe respondent towards the end of August, 1947. The respondent spoketo Amarasena and then called Felix Boteju and told him to employAmarasena as one of his workers. Felix Boteju took Amarasena to hisoffice at D’eyn Court and, having taken down his name and address,told Amarasena that he should report for duty on September 1.
Accordingly, on that day Amarasena began to work for the respondentunder the immediate supervision and control of Felix Boteju. Amarasenasays that he went about the electorate canvassing for the respondent.When he was free, he was at D’eyn Court and supervised the electionstaff in the office. Thereafter, he was placed at the head of a team of' men whose duty it was to go with the respondent’s lists from house tobouse in certain areas checking whether the voters were resident at theirregistered addresses, and to note who were missing or who had died, &c.This work Amarasena did and, when the work was completed, he banded,the checked lists to Felix Boteju.
Amarasena and his team were subsequently sent out again with thelists and the respondent’s election cards. His instructions were torevisit the houses, to deliver the cards to the registered voters, and tomake a final check of the typed lists. Amarasena says that when thiswork was completed, there was left over a number of the cards which,could not be delivered because the voters either had left tbeir addresses,or were dead, or could not be contacted. These undelivered cards andthe checked lists were brought back to Felix Boteju. Amarasena says,that this took plac. about a week before election day.
When Amarasena brought back the lists and the undelivered cards,Boteju directed Amarasena to take both to the main bungalow and handthem over to the son-in-law of the respondent. That gentleman bundledthe undelivered cards and the lists together and wrote on a piece of paperto which polling station those documents referred, and put them into abag or trunk under the table. The witness de Jonk stated that afterthese election cards had been written out, they were tied up and put intoa trunk together with the lists from which they were entered up. It willbe remembered that the respondent admits that these undelivered cardsand the checked liBts were so preserved. Amarasena says that he asked.Felix Boteju what necessity there was to take the cards of persons whowere shown in the lists as having left tbeir addresses'or who were dead.Felix Boteju then replied “ Deliver the cards and bring back the balance
On the night of September 19, 1947 (the.night before the election)Amarasena Bays that he was working at D’eyn Court. At 11 or 11.30 pjh.,Boteju told him that the respondent wanted to see them both intile main bungalow. Amarasena says that the respondent in the courseof conversation, placing his hand on Amarasena’s shoulder, said " We
DIAS J.—Saravanamuttu v. de Mel.
are in a dead heat. We must win this election at all costs. We must dosome impersonation. Go with Boteju ”. Thereafter, Boteju and Amara-sena took one of the cars and went to a place in Slave Island near theNippon Hotel. There Boteju contacted Millie Nona alias Aslin. Thiswoman produced some persons of both sexes who were transported inthe car to No. 246, Havelock Road. Boteju and those persons alightedat that place. According to Amarasena, thereafter right through thenight he and one Munasinghe transported men and women from SlaveIsland to No. 246, Havelock Road. Amarasena says that he must havetransported about eighty or ninety persons that night in batches of fiveor six per trip. Amarasena swears that Felix Boteju was in charge ofNo. 246, Havelock Road. Amarasena also says that about 5 a.m. on electionmorning a lorry came to that house with thirty or forty persons. Heestimates that there must have been about two-hundred or three-hundredmen and women at No. 246, Havelock Road, by the time the polls opened.
I have already discussed the evidence relating to the alibi sought to beestablished on behalf of the respondent in order to show that he wasnot at D’eyn Court on the night of September 19, 1947, at the timeAmarasena says the respondent spoke to him regarding, the impersona-tions. In my opinion, this alibi, when weighed in the scale against thepetitioner’s evidence, by no means establishes that it was not possiblefor the respondent to have been at D’eyn Court at the time Amarasenarefers to and yet not be seen by the other workers of the respondent inthe premises. The inspection of D’eyn Court shows that the groundsare spacious, the office is at the back, and the main house itself is a verylarge house where a member of the household may be in the house with-out being seen or known to be present by the other members of the house-hold. In my opinion, the alibi fails.
In the morning, Amarasena says that Boteju sent him to D’eyn Courtwith a chit. The respondent then called to Leslie Boteju who gaveAmarasena the bag containing the cards and the lists. This bag Amara-sena took to 246, Havelock Road, and handed it to Felix Boteju.
After that, Amarasena was ordered to take voters to the polls, and heswears that the persons who had been brought to 246, Havelock Road,were conveyed to the polling stations. Many of these persons askedAmarasena to refresh their memories regarding the names in the electioncards they had in their possession, and the voter’s number. On oneoccasion when Amarasena returned to 246, Havelock Road, at about10 or 10.30 a.m., he saw the respondent inside those premises engaged in•conversation with Felix Boteju.
The times given by Amarasena are approximate only. The respondenthas endeavoured to establish another alibi in order to show that at thetime referred to by Amarasena he was touring the electorate in thecompany of the witness Mr. M. F. Ghany, a member of the ColomboMunicipal Council and who was under obligations 'to the respondent.According to Mr. Ghany, he went to D’eyn Court on election day between7.45 and 8 A.M. in order to “ assist ” the respondent. This assistancetook the form of the respondent getting into Mr. Ghany’s car and visitingfifteen or sixteen polling stations. I have no doubt that the respondent
DIAS J.—SaravanamuUu v. de Mel.
did bo. Mr. Ghany, however, is uncertain as to the time when he finallyleft the respondent. Before the luncheon interval Mr. Ghany said thatthe respondent left him at about 12 noon. After the luncheon intervalMr. Ghany was of opinion that the respondent left him either at 11 or11.15 a.M. or 10 or 10.15 a.m. According to the respondent, he partedwith Mr. Ghany between 11 a.m. and noon. Mr. ..Ghany admits thatwhile the respondent got out of the car and entered various pollingstations he did not accompany him. The witness is positive that therespondent did not visit 246, Havelock Road. As I have pointed out,the Colts’ Pavilion polling station is in close proximity to No. 246, Have-lock Road. The journal of the presiding officer at the Colts’ Pavilionshows that the respondent visited the Colts’ Pavilion on three occasions—at 8.43 A.M., at 11.15 a.m., and again at 3.50 p.m. There is somethingwrong because the journal of the presiding officer at the Jawatta pollingstation has also recorded that the respondent visited that polling stationat 11.15 A.M. It is, of course, impossible for the respondent to havebeen at two different polling stations at the same time. It was onthis second visit to the Colts’' Pavilion that the respondent interferedwhen the impersonator Cecilia Perera was challenged. The presidingofficer’s journal fixes that time as being 11.20 a.m. According to Amara-sena, he saw the respondent engaged in conversation with Felix Boteju at246, Havelock Road, at about 10 or 10.30 a.m. If, as Mr. Ghany stated,the respondent lfeft him between 10 or 10.15 a.m., it was possiblefor the respondent to have gone to No. 246, Havelock Road, between10 and 10.30 a.m. and have gone to the Colts’ Paviliori at 11.15 a.m.The alibi therefore is not water-tight.
I am, however, unable to place reliance on the evidence of Mr. Ghany.This' witness is under obligations to the respondent. He admits, thatduring the Municipal elections in November, 1946, the respondent gavehim a present of four thousand rupees. He denies that this was a bribegiven to him by the respondent to vote for the latter as Mayor. Headmits that he collected a sum of twenty-thousand rupees from membersof the Municipal Council. He says he wanted this money because hisrival had spent about a lakh of rupees. Hesays this money was requiredin order to be given “ to various workers because there was thuggeryon the other side ”. He also added “ I paid thugs not to get thuggedfrom the other side ”. The respondent admits that on February 24,1948, he gave Mr. Ghany a loan of one thousand rupees. This wasduring the pendency of this case. The respondent says that Mr. Ghany’asister was to be married and a dowry had been promised and Ghany“ came running to my house and told me that he was short of onethousand rupees and asked me to accommodate him ”, In my opinionMr. Ghany is a person on whose word no Court can rely. I am satisfiedthat Amarasena is speaking the truth when he says that he saw therespondent at 246, Havelock Road.
Amarasena says that until about 11.30 a.m. he was engaged in trans-porting these persons to the polls. He made one trip to the Museumpolling station, and two trips to the Jawatta polling station. On his returnafter the third trip, he observed that there was confusion and conster-nation at No. 246, Havelock Road. He heard Felix Boteju telling people
DIAS J.—tSaravanamultu v. de Mel.
“ Go out and come back later Amarasena questioned Boteju asto what this meant. Boteju told him “ Things have become bad.You also had better go and stay at the C Booth and come later.”Amarasena did so, and when he returned some hours later, he foundnormal conditions prevailing at 246, Havelock Road. It will be remem-bered that the police raid on the New Respect Club took place aboutthis time.
According to Amarasena, on election day he did seven or eighttrips in all, taking impersonators to the polls involving about sixty orseventy persons. The others engaged in transporting impersonatorswere Munasinghe, Leslie Boteju and others.
After the poll closed, Boteju and Amarasena took a woman workerby car to an address at Avondale Road and then returned to D’eynCourt. There an angry scene was being enacted- Immediately FelixBoteju appeared, some persons surrounded him shouting “ Where areour people ? They are in police custody. We want our men ”—referring to those impersonators who had been detected and were underarrest. Amarasena went in search of the respondent. In the bungalowhe found Mr. de Mel confronting three or four men who were angrilythrowing money on a table saying “ We were promised Rs. 5 for eachvote. I voted seven times and should get Rs. 35 and this is what Igot ”. The respondent was replying “ I don’t know! I don't know! ”Felix Boteju then came on the scene and reported that persons had beenlocked up and that their friends were demanding their liberation on bail.The respondent told Boteju “ Try and bail them out ”.
Boteju and Amarasena with S. H. Fernando and M. C. Cooray thenwent to Bambalapitiya police station but the police refused to acceptbail. Boteju and Amarasena therefore returned to D’eyn Court. S. H.Fernando and M. C. Cooray say that they were two of the persons who wereinsisting that the persons they had brought from Angulana should be setfree—particularly M. Abraham Gunawardene and Norman. M. C.Cooray says he went back to Angulana to inform Gunewardene’s wife,while S. H. Fernando returned with Boteju and Amarasena. Accordingto S. H. Fernando, he was determined not to lose sight of Boteju untilhis friends were set free.
Amarasena says that he had been promised a certain fee and a bonusif the respondent was successful. As this did not appear to be an oppor-tune time for him to make this demand from the respondent, he wenthome. On September 23 and for several consecutive days, Amarasenasays he tried to get payment from the respondent, who put him off onvarious pretexts. On his last visit Amarasena says the respondent askedhis wife to give him Rs. 25, whereas he had to receive Rs. 100 as balancepay and Rs. 100 as a bonus. Amarasena says that he remonstratedwith the respondent and finally left in anger.
Amarasena candidly admits that had the respondent kept faith withhim, he would not have given him away. Having been treated in thismanner, Amarasena decided to avenge himself on the respondent byexposing him. He spoke to several people and finally contactedMr. Saravanamuttu, the petitioner, about three weeks after the election.42 – N.L.R. Vol – xlix
DIAS J.—SaravanamtUtu v. de Mel.
Amarasena had with him the typed list P 14 belonging to the respondentwhich he had used on polling day. This he handed to the petitioner and^old him his story.
This election petition was filed on October 10, 1947. On January 29,.1948, this Court ordered the petitioner to furnish particulars to therespondent. By this time it is suggested that Amerasena’s treacherymust have reached the ears of the respondent. Amerasena swears thaton Saturday, February 28, 1948, Felix Boteju and Marcus Dias came in acar to Amerasena’s house and induced him to accompany them to theMaliban Hotel, Borella, where arrack was consumed. After that thesuggestion was made that Amerasena should go to D’eyn Court andsee the respondent. Amerasena flatly refused to do so. So he was takenback to his own house, where Felix Boteju alighted ; while Marcus Diaswent in the car to fetch the respondent to Amarasena’s house. Bythis time, Amarasena says he was drunk. Mr. de Mel, Marcus Dias andColonne came to Amarasena’s house. Amarasena says that therespondent tried hard to persuade him not to give evidence in thiscase. He said amongst other things “You are a Sinhalese, I am aSinhalese. Why should you give evidence for a Tamil ? ” and usedsimilar arguments. Amarasena says that he refused to retraot. Finallyhe was persuaded to go to D’eyn Court with the respondent in his car.There a paper was produced and Amarasena was requested to sign it.On his refusing to do so, de Mel said “ You are drunk. Go home andthink about it and come tomorrow. I’ll send you the car ”. If M. C.Cooray’s and H. S. Fernando’s evidence can be believed the procedureadopted in inducing them not to give evidence was similar.
On the following day—Sunday, February 29, 1948, the respondent’scar came to Amarasena’s house, and he was taken to D’eyn Court..There were present at this interview, the respondent, his prospectiveson-in-law, his son, his daughter and Proctor Jayanayake. Amerasenasays that great pressure was brought to bear on him to sign the statementand also to get at the petitioner’s witnesses, and a reward was promised.Amarasena, however, remained unresponsive.
Thereafter, the respondent took Amarasena in his car for a drive, andin the Fort the respondent got a cheque cashed at a boutique in BaillieStreet. In the car the respondent again offered money to Amarasenawho refused to accept it. Finally he was dropped at Havelock Road,the respondent promising to send his car for Amarasena in the evening.
Amarasena then met Samaraweera and told him what had transpired.He was then directed to the petitioner, and Amarasena repeated hisstory to Mr. Saravanamuttu, who told Amarasena to go and see therespondent, and that he would arrange to have a photograph takenof the respondent’s car when it called to take him to the respondent’shouse. Mr. Saravanamuttu says that his inability to obtain films on aSunday frustrated this object.
At about 4 p.M. that afternoon the respondent’s car took Amarasenato D’eyn Court for the last time. In the car was Colonne besides thedriver. At D’eyn Court there were present the respondent, his ProctorAndrew' de Silva, and Felix Boteju. Amarasena swears that he observed
DIAS J.—Saravanamuttu v. de Mel.
R. A. Rosaline Nona hanging about the compound. The statement wasagain produced and Amarasena was offered sums ranging from Rs. 300to Rs. 1,000 to sign it as well as a job in the respondent’s business whichhe described as “ My Landing and Shipping Company ”. Amarasenasays that Andrew de Silva finding that all attempts to make Amarasenasign the statement were useless observed to the respondent “ Thatb . .will not sign ”. The respondent, however, did not give up.He requested Colonne to take Amarasena into the main bungalow wherewhisky and biscuits were offered him. The respondent asked Amarasenawhat he was going to say in Court, and Amarasena retorted “ Come tothe Court and find out ”. The respondent then warned him that if headmitted he took bribes he would be convicted., Amarasena says thatthe respondent also showed him a box containing a number of chequebooks, and he also showed him the counterfoil of a cheque for Rs. 100which he had given Colonne. All efforts to tamper with the witnesshaving failed, he was sent home in the respondent’s car. On March 1,1948, Amarasena says that the petitioner took him to the C. 1. D. wherehis statement was recorded.
The case for the respondent is that the whole story told by Amarasenais a tissue of falsehood from beginning to end. It is denied that therespondent ever set eyes on this witness until he entered the witness box,and that he never employed him. I agree that Amarasena on his ownshowing is a treacherous witness and his evidence, even if he is not anaccomplice of the worst type, must be accepted with the greatest caution.But before his evidence can be rejected, it is my duty to consider it andtest it.
Assume that Amarasena is a false witness who has been procured bythe petitioner and coached, to give false evidence about things whichnever happened. If so, the persons who coached the witness had afairly accurate knowledge of the routine in the respondent’s office andhouse. Amarasena stated that in the office there was a kind of partitioneffected by placing almirahs. The defence -witness Jayawickremesupports Amarasena about this partition. Amarasena described theposition of the telephone. This was observed when the .Court inspectedthe premises. How did Amarasena or the petitioner obtain possessionof the respondent’s list P 14 ? Amarasena’s description of how thevoters were checked and the cards were distributed is not different from-what the respondent himself stated. The alleged team mates whoaccompanied Amarasena when he -went his rounds should be. available todeny that what Amarasena is saying is true. The accredited supportersand agents of the respondent in the places where Amarasena says hecanvassed should be available to come forward and state that Amarasenanever came there. Amarasena stated that Felix Boteju had warnedhim that Sarna Samajists pretending to be de Mel’s supporters wouldcome and take money on the-pretext of supporting de Mel. Therespondent’s evidence is that Mr. Goonesinha had warned him aboutsuch a thing. How did the persons who coached Amarasena know thatfact? How did any stranger know that the undelivered cards were keptin a box or trunk ? If Amarasena’s evidence is false, it should havebeen possible to obtain some evidence to show where Amarasena was on
DIAS J.—Saravanamuttu v. de Mel.
September 19 and 20. Amarasena refers to Munasinghe and LeslieBoteju. Neither of them has been called to contradict Amarasena’sevidence. The defence is that it was Benjamin de Silva who -was in chargeof the petrol work at 246, Havelock Road, on election day, and that FelixBoteju was not there. It was not put to Amarasena that it was Benjaminde Silva and not Boteju who was at 246, Havelock Road, on election day.Persons at the Maliban Hotel, Borella, should be available to contradictAmarasena’s evidence.
Furthermore, Amarasena, although he is an unscrupulous person,gave his evidence well. He was a better witness than either therespondent or Mr. Andrew de Silva.
Amarasena on his own showing is an accomplice of a despicable type.If he can be believed, he was admitted into the inner councils of therespondent, and he now treacherously implicates his master out ofrevenge because the latter had not kept faith with him. As a judge offacts I, therefore, have kept prominently before my mind the cardinalprinciple that it is unsafe to convict any person on the uncorroboratedevidence of an accomplice. I have, therefore, considered the case apartfrom the evidence of Amarasena, and have reached my conclusions quiteindependently of the evidence of this tainted witness.
Is Ajnarasena’s story corroborated ? In other words, is thereindependent evidence, direct or circumstantial, which affects the respondent and the accomplice by connecting them or tending to connect themon some material point or points in which the accomplice incriminatesthe respondent ? In other words, is there any independent evidence,direct or circumstantial, which implicates the respondent and confirmsin some material particular, the story of the accomplice, not only thatthe offence of abetment of personation was committed but also that itwas committed either by the respondent, or by his agents, or by personswith the knowledge or consent of the respondent. Putting it in anotherway, corroboration is direct or circumstantial evidence, independentof the accomplice which affects the respondent by connecting him ortending to connect him with the abetment of personation as defined bythe Order in Council. This corroboration need not extend as regardsthe whole story told by Amarasena, for in that case there would be noneed for his evidence at all. It will suffice if Amarasena is corroboratedon one or more material particulars as regards the person he implicates.
In my opinion Amarasena has been so corroborated on materialparticulars :—
He is corroborated by the witness de Jonk who says that thecards and the lists were bundled and put into a box.
Amarasena says that he saw R. A. Rosaline Nona hanging aboutthe compound at D’eyn Court. That a connexion existed betweenthis impersonator and the respondent is proved by her letter to therespondent, and by the incidents of the night of May 12, 1948.
Amarasena says that the electors’ lists were subjected to a doublecheck’. The documents P 20 and P 22 found at the New Respect Clubshow that there was such a double check as already pointed out by me.
DIAS J.—Saravanamuttu v. de Mel.
The witness Weerasinghe corroborates Amarasena in regard tode Mel’s visit to Amarasena’s bouse on the night of February 28,1948. Marcus Dias and Colonne were- available to state that nosuch thing happened, and they have not been oalled.
Amarasena says that the respondent showed him the counterfoilof a cheque for Es. 100 issued to Colonne. That counterfoil has beenproduced from the respondent’s custody and is the exhibit P 19?dated February 29, 1948.
Amarasena says that on February 29, the respondent cashed a.cheque in Baillie Street. That cheque has been produced—P 198.The respondent says that bis counterfoil book containing that chequeis lost. I disbelieve the witness Ghouse that the cheque P 198 wascashed at Chatham Stieet on Monday. This monev changer has adesk outside the Chartered Bank, and when the bank closes that deskby arrangement with the Bank officials is kept inside the Bank.Ghouse admits that bis firm has authority from the Labour Departmentto work on Sundays. When there are ships in harbour on a Sunday,,provided they can get their desk out of the Bank, they can ply theirtrade. The -witness admits that though Banks are closed for businesson Sundays, it often happens that the Bank officials work. The gatesmust, therefore, bo opened. When this is done, the money changer’sdesk can be handed out by the gate-keeper. The cheque P 198 thuscould have been cashed on Sunday, but would only be entered in themoney changer’s books on the following day. The person who cashedthe cheque is the respondent’s driver. He has not been called. Icannot accept the suggestion that the petitioner having surreptitiouslyobtained information from the bank clerks about cheque P 197 andP 198, then fabricated the corroborative evidence of Amarasena. Inmy opinion, these two documents afford strong corroboration of onepart of Amarasena’s story.
(71 Gimarahamy, in an unguarded moment, admitted that she wastaken in a car on the night of September 19. This supports Amarasena.
The conduct of Milli Nona alias Aslin in going to the policestation and the Magistrate’s Court to liberate the impersonators onbail supports Amarasena’s story that it was she who supplied theimpersonators who came from 246, Havelock Road.
Amarasena’s possession of P 14, an admittedly genuine document,corroborates his story.
Felix Boteju’s complaint to the Colpetty Police against Marcus.Dias on the night of September 9 corroborates Amarasena.
I have considered the first charge against the respondent quiteindependently of the evidence of Amarasena. I. find that evidence-without the evidence of this witness proves that charge beyond aliireasonable doubt. The evidence of this accomplice corroborated as itis on material particulars, supports the findings I have independentlyreached.
DIAS J.—Sa.ramnamu.tlu. v. de Mel.
To sum up my findings—
After carefully weighing the evidence, oral, circumstantial anddocumentary, and the probabilities and arguments advanced on bothsides, I reach the conclusion that the following facts have been establishedto my satisfaction beyond all reasonable doubt :—
(а)The fifteen persons referred to above committed the offence of
personation on September 20, 1947 ;
(б)that these persons committed these offences for the benefit of the
.(c) that there existed a consipiracy by a body of persons to abet thesefifteen persons to commit the offence of personation for thebenefit of the respondent.
that the respondent was privy to this conspiracy, and that it was
done with his knowledge or consent.
I further find that such abetments were committed—
(i) In the case of Cecilia Perera by the respondent, at the Colts’Pavilion Polling Station. She was also abetted at 246,Havelock Road, by the agents of the respondent who werethere including Felix Boteju and Amarasena ;
Hendrick and Luvinahamy were abetted by the respondent’sagent Ebert alias Wilson Peris and also probably byAlbert. Abetment of the impersonator Luvinahamyalso took place at 246, Havelock Road, by Felix Botejuand Amarasona.
Mrs. Rodrigo was abetted by “the respondent’s agent,Oliver.
Gimarahamy was abetted at 246, Havelock Road, by theagents of the respondent, including Felix Boteju andAmarasena.
fv) U. Justin was abetted by the respondent’s agent, EkmonSeneviratne.
Kusumawathie and D. Rosalin were abetted at 246,Havelock Road, by the respondent’s agents includingFelix Boteju and Amarasena.
R. A. Rosaline Nona was abetted by the respondent’s agent,Ekman Seneviratne.
The impersonators H. Dona Veronica Peris, M. AbrahamGunewardene, Norman, Caroline Perera, E. A. JaneNona and Ran so Hamy were each abetted by unidentifiedpersons. 1 find that these abetments took place inpursuance of the conspiracy aforesaid which was carriedout with the knowledge or consent of the respondent.
(/) I also find that Milli Nona alias Aslin of Market Passage, SlaveIsland, participated in the abetment in procuring impersonatorsincluding Luvinahamy, Gimarahamy and Hendrick.
On these findings, I find the respondent guilty of the first charge.
DIAS J.—-Saravanamuttu v. de Mel.
The Charge, of Bribery.
Paragraph 3 (d) of the petition charges the respondent with committinga corrupt practice, to wit, bribery in connexion with this election byhimself, by his agents, or by persons with the knowledge or consent ofthe respondent.
Section 57 of the Order in Council defines what “ bribery ” is. Section:58 (1) (6) makes the commission of the offence of bribery a “ corruptpractice ’ ’. Section 77 (c) enacts that the election of a candidate shallbe declared void on an election petition if it is proved to the satisfaction,of the Election Judge that a “corrupt practice” was committed inconnexion with the election by the candidate, or with his knowledge orconsent, or by any agent of the candidate.
There were thirteen speific charges of bribery alleged in the particulars.All these have now been abandoned with the exception of seven which aresaid to have been committed on September 19, 1947, at a place calledWanatamulla.
These charges, unlike the first charge, depend entirely on directevidence. It is alleged that the respondent having on September 17,cashed the cheque P 200 for Rs. 6,000 sent his agents Mr. Swithin doMel and Hapuarachchi with a bag of money to distribute largess to thepoor electors of Wanatamulla on September 19, in order to secure theirvotes on the following day.
The respondent says that he cashed this cheque “ for emergencies ”.He has explained how he spent that money. I am unable to hold thatthis explanation is false or improbable. It is in the highest degreeimprobable that in broad dayloght the respondent would send two agentsfrom -morning till evening to go from house to house like Santa Claus distri-buting money in the manner alleged. The supporters of the rivalcandidates would become aware of such activities, and the fraud wouldeasily have been detected and the culprits caught in the act. In anyevent, far better evidence should, if this charge is true, have been forth-coming. Having regard to the careful manner in which the impersona-tions referred to in the first charge had been planned and carried out, Icannot imagine that the respondent or his agents would have been sofoolish as to attempt bribery on such a large scale by day.
The witnesses who were called to support this charge did not impressme. Were it not for the fact that Mr. Swithin de Mel, in a panicthat his presence might be secured by means of a warrant kept out ofthe way by going to the Southern Province and then crossing over toIndia without even telling his daughter who kept house for him, wherehe was going, there is nothing in this charge. The disappearance ofHapuarachchi is partly attributable to the same cause.
The evidence of the witnesses who gave direct evidence is unsatisfactoryand does not justify the Court in basing an adverse finding against therespondent on testimony which has neither the ring of truth, nor bearsthe stamp of probability.
I find that this charge has not been established, and I, therefore, holdthat the respondent is entitled to be absolved therefrom.
DIAS J.—Saravarmmuttu v. de Mel.
The Contracts which are alleged to disqualify theRespondent from, election.
The particulars specify four such contracts. One of these chargeswas abandoned at- the commencement of the inquiry. Evidence was ledin regard to the other three which may be described as :—
(а)The contract between The New Landing and Shipping Co., Ltd.,
and the Crown ;
(б)The plumbago contract ; and
(c) The respondent’s agreement to pay a debt by instalments.
(a) The Contract between the New Landing and ShippingCompany, Limited, and the Croton.
The question for decision is whether the contract P 156 dated June 28,1947, admittedly entered into between the Company known as theNew Landing and Shipping Co., Ltd., and the Crown in regard■to the landing of certain property of the Crown from ships in theharbour to the Customs warehouses on shore, is one which is caught upwithin the provisions of section 13 (3) (c) of the Ceylon (Constitution)Order in Council, 1946, so as to disqualify this respondent from beingelected as a member of the House of Representatives.
There had existed a business known as The Landing and ShippingAgency which was wound up and ceased to function in 1941. In 1942the respondent purchased this business, added to it and registered it inhis own name as sole proprietor calling it The New Landing and ShippingCompany. This was not a limited liability company.
The Government of Ceylon, having no lighterage facilities of its own,has to engage the services of private companies whenever goods belongingto the Crown have to be transported from ships in the harbour to theshore. During the war, and particularly during the food crisis, this workassumed large proportions. It was also found .that goods were beingpilfered in transit, and it was extremely difficult to fix the responsibilityfor such losses on any particular person or firm. It is in evidence thatvarious departments of the Crown were in the habit of utilising theservices of the New Landing and Shipping Company in this transportationwork. The Director of Food Supplies, in particular, engaged the servicesof this company to land the large shipments of food which were arrivingat the port of Colombo.
When the Order in Council became law, and the respondent decided tocontest the Colombo South seat, he realized that the work which hislighterage company was doing for the Crown might possibly lead to hisdisqualification under section 13 (3) (c) of the Order in Council. He,therefore, took legal advice and decided to transfer his businessto a new private company which was to be formed, namely, The NewLanding and Shipping Co., Ltd., (hereafter referred to as “ theCompany ”).
DIAS J.—Saravanamuitu v. ds Mel.
The company was incorporated on May 16, 1947. The capital of thecompany was Rs. 1,000,000 divided into 10,000 shares at Rs. 100 pershare.
Previous to the incorporation of the company, that is to say at thetime when the respondent was the sole proprietor of the old oompany,the Director of Food Supplies had been in correspondence with therespondent and other landing companies with the object of entering intocontracts in regard to this transportation work. With his letter P 232,dated April 8, 1947, the Director of Food Supplies forwarded to therespondent a draft agreement approved by the Attorney-General. Thisletter bears out the respondent’s evidence that he had intimated to theDirector that he intended to float a company under the CompaniesOrdinance, because the Director asks the respondent to let him know theregistered name and address of the new company and also the Ordinanceor statute under which it was incorporated “ to enable me to preparefinal copies for signature ”.
Mr. Alvapillai, the Director of Food Supplies, states that a few daysbefore June 28, the respondent saw him and said that he would get thecontract-s signed by his wife who was a Director. The respondent didnot reply to P 232 until after the company had been incorporated. Onthe following day, May 17, 1947, the respondent wrote the letter P 233to the Director stating that the name of the new company was the NewLanding and Shipping Co., Ltd., and gave its address. He added thatthe company had been incorporated under the Companies Ordinance,No. 51 of 1938. Mr. Alvapillai, the Director of Food Supplies, states- that a few days before June 28, the respondent saw him and said thathe would get the contracts signed by bis wife who was a director.
On June 28, 1947—that is to say about three months before theelection—the contract P 156 was entered into between the company andthe Director of Food Supplies acting for and on behalf of the Governmentof Ceylon. Clause 1 of the contract provides that “ in consideration of thepayment of remuneration at such rates as may from time to time bemutually agreed upon between the Director and the Company ” theCompany undertakes to perform and carry out for the Government,inter alia, the carriage and haulage in the port of Colombo, from theship’s side to shore of goods and cargoes imported, purchased, or other-wise acquired by or on behalf of the Government and to deliver the sameinto the Customs premises, &c. Clause 2 provided that the Company“ shall undertake and carry out the services specified in Article 1 inrespect of such food or other cargoes as may be allocated to them forcarriage, warehousing and delivery by the Director in writing ”. Thecompany further undertook to commence work within three hours ofthe receipt of such notice of allocation which was to be in writing signedby the Director or any other officer authorized by the Director to makesuch allocation. This contract was signed on behalf of the Companyby the respondent’s wife in her capacity as a director of the Companyand for the Crown by Mr. Alvapillai, the Director of Food Supplies. Thepetitioner alleges that this contract disqualifies the respondent fromelection.
431- N.L.R. Vol – xlix
DIAS J.—SaravanamuUu v. at Mel.
The relevant words of Beotion 13 of the Order in Council are a*follows :—
“ 13.(3) A person shall be disqualified for being elected or appointed
as …. a member of the House of Representatives or from
sitting or voting …. in the House of Representatives—
… .
if he, directly, or indirectly, by himself or by any person on his-
behalf, or for his use or benefit holds, or enjoys any rightor benefit under any contract made by or on behalf of theCrown in respect of the Government of the Island, for thefurnishing or providing of money to be remitted abroad, or ofgoods or services to be used or employed in the service of theCrown in the Island.”
There are certain provisions in sub-section (4) which qualify theprovisions of sub-section (3) (c), but they are not relevant to the questionswhich arise for decision here.
It is to be observed that what section 13 (3) (c) does is to disqualify aperson who holds or enjoys a right or benefit under a certain class ofcontracts. The Order in Council does not make the contract itselfinvalid.
It has been argued for the respondent that the contract P 156 is of noforce or avail by reason of the existence of Defence Regulation 43a whichpermits only the Port Controller to allocate work amongst the variouslighterage companies. It is submitted that the terms of this contraotconflict with this Defence Regulation, and that so long as the DefenceRegulation remains in force, the contract is inchoate and incapable ofperformance and remains so until the Defence Regulation is eitherrepealed or modified. The argument is that even if this is a contractwhich falls within the provisions of section 13 (3) (c) there are no rights orbenefits which can flow from this inchoate agreement.
The answer to this contention is that the Crown is not bound by anystatute or statutory regulation except by express reference or necessaryimplication—see section 3 of the Interpretation Ordinance (Chapter 2).In the case of The Province of Bombay v. The Municipal Corporation ofBombay*, the Privy Council laid down the test which should be appliedin such cases for ascertaining whether the Crown was to be held boundby a statute. It was laid down that the Crown is not bound by a statuteunless this was expressly provided, or was to be inferred by necessaryimplication. Their Lordships pointed out that the argument that whena statute is enacted for the public good, the Crown though not expresslynamed, must be held to be bound by its provisions, cannot now be ■regarded as sound except in a strictly limited sense. If it can be affirmedthat at the time the statute was passed and received the Royal sanction,it was apparent from its terms that its beneficent purpose must be whollyfrustrated unless the Crown were bound, then it may be inferred that the
{1947) App. Gas. 58.
DIAS J.—Saravanamvttu v. de Mel.
Crown has agreed to be bound. In the present case I cannot see howsuch an inference can arise. The Chairman of the Port Commission inhis letter R 19 appeared to take the view that the provisions of thiscontract infringed his powers under the Defence Regulations and protestedto the Director of Pood Supplies. The latter by his letter P 237 statedwhat, in my opinion, is the correct legal position. The Chairman of thePort Commission acquiesced with that view and gave way. A compromisewas effected, and a Priority Committee was formed in which lighteragecompanies had a representative, and the allocation of cargoes amongstthe lighterage companies was done by the Port Controller as the agent ofthe Director of Food Supplies. There was no protest from the NewLanding and Shipping Co., Ltd. It is the respondent who raises thequestion for the first time at this inquiry. There is ample scope for- theprovisions of the Defence Regulations to apply as between privateconsignors and consignees, even though the Crown may not be bound bythe Defence Regulations.
The case of George v. Mitchell1 shows that a contract may be goodand valid in spite of the existence of a Defence Regulation. A workmanemployed as foreman in an engineering works to which the EssentialWork Order applied, was replaced by another man. The displacedworkman was offered other work by the same firm but at a lower wage.He refused to agree and was in consequence dismissed- He sued hisemployers who argued that the plaintiff’s cause of action was suspendedby the Essential Work Order. The Court of Appeal held that thiscontention was unsound-
Counsel for the respondent further argued that P 156 was not a contractbut only an agreement to enter into future contracts. He stressed suchwords as “ May from time to time ”, and “ If and when ” in P 156 assupporting his contention. He also points out that the amounts to bepaid and the dates on which the services are to be rendered have not beenspecified. He says that under P 156 the Crown is not bound to givethe company any work at all. He, therefore, submits that P156 does notcreate an3r contract from which rights or benefits—either direct orindirect—could flow.
In my opinion P 156 does create a contractual obligation between theCrown and the Company. The principle applicable is thus stated in thequotation from Beal’s Cardinal Rules of Legal Interpretation, page 142 :
“ I think I may safely say as a general rule that where there is a writtencontract it appears that both parties have agreed that something shallbe done, which cannot effectually be done unless both concur in doing it,the contruction of the contract is that each agrees to do all that is neeess-saiy to be done on his part for the carrying out of that thing, though theremay be no express words to that effect. What is the part of each mustdepend on circumstances ”. The parties to P 156 could not say whencargoes needing clearance would arrive. The cost of clearance may varyfrom time to time according to the cost of living index, the availabilityof labour, strikes, &c. Therefore, by mutual agreement these matters
1 (1943) 1 A. E. R. 233.
DIAS J.—Sgravanamutlu v. de Mel.
had to be left open. What the parties say in effect is “ If the Directoror his agent gives the Company notice of allocation in •writing, the Com-pany undertakes to clear the goods within three hours of the receipt ofthat notice. The fees and rates of pay we deliberately leave open becausethese may vary according to circumstances. These matters we shallagree upon from time to time ”. In my opinion not only does P 156create a valid contract, but it is a contract from which rights and benefitsflow to both contracting parties.
The real question which emerges for decision is whether the Companywhen it entered into the contract P156 was acting as the agent or nomineeof the respondent. If that question is answered in the affirmative, thedisqualification created bjr section 13 (3) (c) arises. If the answer is inthe negative, no such disqualification can arise.
There is nothing in the contract P 156 to show that the respondentenjoys any special position, right, or benefit in this contract as distinctfrom the other shareholders of the Company. Furthermore there is noevidence of any collateral agreement between the Company and therespondent that he was to enjoy any special rights or benefits under thiscontract. It is not for the respondent to give explanations. It is for thepetitioner to satisfy the Court by a preponderance of probability or onthe balance of evidence that the Company when it entered into thiscontract did so as the agent or nominee of the respondent.
Both sides have referred to the case of Salomon v. Salomon 1. TheHouse of Lords held that upon incorporation a limited liability companyforthwith became a legal persona, as distinct from the members or share-holders—see Palmer’s Company Law (1942 edition), pages 45-46. TheCompany has been formed and duly incorporated in accordance with theprovisions of the Companies Ordinance. Once the certificate of incor-poration is issued, section 16 of that Ordinance makes that certificateconclusive evidence of its existence as ?, legal persona separate from andindependent of its shareholders. Therefore, the Company and therespondent are two distinct legal persons. The fact that he as a share-holder may ultimately benefit by this contract by the dividends he mayreceive, is too remote a benefit to disqualify him under section 13 (3) (c)of the Order in Council. No fraud has either been alleged or proved inregard to the incorporation of the Company. On the contrary, theevidence makes it clear that the respondent took legal advice and spokeabout the formation of the Company to Mr. Alvapillai. The motive ofthe respondent in having this Company incorporated is irrelevant. Thefact that a person does a lawful act with the express object of avoiding adisqualification does not render unlawful that which is a lawful r.ct. Thusit is not unlawful for a rich business man to turn his business intoprivate limited liability company in order to avoid taxation or to escapeestate duty. If a way of carrying out a transaction without incurring aliability, penalty or disability can be found (i.e., lawfully found), a personis justified in adopting it—^Commissioner of Inland Revenue v. Angus2.[ am, therefore, of opinion that there was nothing illegal or improper ini(1897)App. Ca's. 23. . '»(1889) 23Q.B.D.atp.593.
DIAS J.—Saravanamuliu v. de Mel.
the formation and incorporation of the company ; and that on incor-poration the company became a legal person distinct ftom andindependent of the respondent and the other shareholders. I furtherfind that at the date of his election the respondent did not “ directlyfor his use or benefit hold or enjoy any right or benefit ”under the contract P 156.
Did the respondent at the date of his election “ indirectly by himselfor by any person on his behalf or for his use or benefit hold or enjoy anyright or benefit ” under the contract P 156 ? Putting it in another way,has the petitioner satisfied the Court that the Company when it enteredinto this contract was acting as the secret agent or nominee of therespondent ? It is nor for the respondent to prove that the Companywas not his agent or nominee. This must be established by the petitionerby a preponderance of probability or on the balance of evidence. Indeciding this question the Court must examine the surrounding circum-stances including the subsequent conduct of the respondent and theCompany. One relevant matter would be whether there has been anyconfusion between the money of the company and the funds ofthe respondent, and whether there is evidence to show that therespondent enjoyed benefits which were not available to the othershareholders.
It has been established that on three occasions the respondent referredto the Company as “ My business ”. Amarasena stated that in February,1948, when the respondent was persuading him not to give evidence atthis inquiry, he referred to the Company as “ my business ”, and promisedhim work in the Company. In 1944 when the respondent was the soleproprietor of The New Landing and Shipping Company, the RubberCommissioner gave him work. The respondent requested the RubberCommissioner to give credit facilities to one Nelson de Silva, whom therespondent described as his kinsman, and agreed to be Nelson de Silva’ssurety. Credit was given to Nelson de Silva who defaulted. Legalaction was taken against him, but Nelson de Silva was evading service ofsummons. In June or July, 1947, the Rubber Commissioner’s Depart-ment brought pressure to bear by giving no work to The New Landing andShipping Co., Ltd. The respondent, however, who as a mere shareholderhad no concern with what work was given to the Company or not,telephoned that department and referred to the Company as “ mybusiness ” and enquired why they had been treated in this way. Whatis more, the respondent who by then had been elected to the House ofRepresentatives threatened to report Mr. Casinader, the head of thedepartment, to the Minister. When diving evidence in this Court therespondent said this :—
Q.—Is your Company a genuine Company or is it a camouflage ?—Icannot say it is a camouflage.
Q.—-Are the shares given to Mr. Andrew de Silva and Mr. David Perrislegal shares ?—Yes. I gave Andrew de Silva one lakh rupeesworth of shares, that is a one-tenth share. It is a genuineshare.
DIAS J.—Saravanamutlu v. de Met.
Q.—You genuinely intended giving Andrew de Silva one lakh, rupeesworth of shares in consideration of services rendered ?—Yes.
Mr. S. C. Banker, the Manager of Messrs. Narottam and Pereira, afirm of landing agents, says that there is an association of the lighteragecompanies working in Colombo, and that on August 15, 1946, the respon-dent who was then the proprietor of The New Landing and ShippingCompany was elected chairman of the association and has continuedsince. His qualification for election was that he represented The NewLanding and Shipping Company. No notification was ever made tothe association that The New Landing and Shipping Company had becomedefunct, and that- Company is still a member of the association whilethe limited liability Company is not. The respondent still remains amember of the association although he has not attended meetings. Henever sent a notification that he had ceased to possess the qualificationsof a member. Notifications of the meetings of the association are stillsent to him. Mr. W. H. D. Perera, the Port Controller, says therespondent once came to see him with J. Adfred Fernando in connectionwith some landing work in February, 1948.
One of the directors —-I believe the managing director—of the Companyis the respondent’s wife, who is described as being an invalid. The otherdirector is a servant of the respondent. The suggestion is that they aredummies and that the respondent is the person who manages and worksthis Company. There is also the admitted fact that the cheque books ofthe Company are often kept at the respondent’s residence in his safe, andnot at the registered office of the Company. Amarasena says therespondent showed these cheque books to him when he promised to giveAmarasena work “ in his Company
Mr. G. St. Elmo Nathanielsz, a clerk in the Eastern Bank, swore thatMrs. de Mel and the Secretary of the new Company authorized the bankby letter that the bank could honour cheques drawn by the respondent.He stated that that letter was in the bank and he had not brought it ashe had not been noticed to produce it. The witness was then directed toproduce that letter. Mr. Ross, the Manager of the Eastern Bank, there-after produced the document P 284 dated May 27, 1947. This is notthe document referred to by the bank clerk, which was a letter writtenby Mrs. de Mel and the Secretary of the new Company, whereas P 284 is adocument written by the respondent. Mr. Ross was then told that theclerk had sworn that the director and Secretary of the Company hadauthorized the bank to honour the signature of the respondent on accountof the Company. The witness’ answer was, not that there was no suchletter, but that he had not that information. He was asked to producethat letter, but nothing further has been heard about the matter, and,therefore, nothing flows from it. Bank clerks as a class generally areprecise witnesses. It is curious, therefore, that Mr. Nathanielsz shouldhave made a mistake on a matter like this.
Mr. Thirunathan of the Bank of Ceylon has produced certain chequesissued by the Director of Food Supplies both before and after the Companywas incorporated. These are P 268 of April 11, 1947, for Rs. 845-98 in
DIAS J.—Saravanamuttu v. de Mel.
favour of The New Landing and Shipping Company. This has been,endorsed by the respondent as the proprietor of that Company. P 269 ofApril 11, 1947, for Rs. 644 in favour of the same firm and endorsed by therespondent as proprietor. P 270 dated April 11, 1947, for Rs. 848-50 infavour of the same firm and endorsed by the respondent as proprietor.The new Company was incorporated on May 16, 1947. P 271 datedMay 19, 1947, for Rs. 195-96 in favour of The New Landing and ShippingCompany and endorsed by the respondent as proprietor. Also P 272dated May 24, 1947, for Rs. 1,016-03 in favour of The New Landing andShipping Company endorsed by the respondent as proprietor, P 273dated May 26, 1947. for Rs. 31,108-78 in favour of The New Landing andShipping Company endorsed by the respondent as proprietor and P 272dated June 5, 1947, for Rs. 21,985-78 in favour of the New Landing andShipping Company also endorsed by the respondent as proprietor andalso the further endorsement “ To the credit of our account, New Landingand Shipping Co., Ltd.”, signed by the respondent’s wife as Director.P 275 dated July 2, 1947, is for Rs. 16,058-91 in favour of the NewLanding and Shipping Company. This has been endorsed “To the credit ofour account for and on behalf of The New Landing and Shipping Co., Ltd.”,and has been signed by Mrs. de Mel and the Secretary, and the endorsementhas been guaranteed by the bank. P 276 dated July 11, 1947, is forRs. 33,138-24 in favour of The New Landing and Shipping Company.The endorsement is “The New Landing and Shipping Company” signed bythe respondent as proprietor. This cheque was negotiated with the moneychanger Ghany & Co., and eventually was placed to the credit of theaccount of Ghany & Co.
Therefore after the Company was incorporated the respondent hadendorsed cheques belonging to the new Company for sums aggregatingRs. 65,459-01 which sum came into his possesssion and not to the Company.Out of this sum Rs. 33,138-24 was taken by the respondent after thecontract P 156 was entered into. It is to be noted that the respondentmight have caused the hooks of the Company to be produced to showthat this money was credited to the Company. There is no suchevidence.
Then there is the cheque P 371 dated September 13, 1947, for Rs. 10,000drawn by the respondent in favour of J. Alfred Fernando, the Secretaryof the Company. The respondent explains that this was a loan by himto the Company which was short of cash to pay the workmen. If so,why was that cheque not drawn by the respondent in favour of theCompany, so that should any question arise hereafter, the fact that themoney was paid to the Company could be proved? The respondent is alawyer. His explanation is that he gave the cheque in a hurry and didnot therefore think of the legal implications. There is also the circum-stance that cheque counterfoils which have been called for are said to bemissing, making it difficult to ascertain for what purpose certain chequeshad been issued by the respondent. In other cases, the counterfoilsare blank. The respondent has been unable to give a satisfactoryexplanation of these things. Even certain cashed cheques which shouldbe in the bank vaults are missing.
DIAS J.—SaravanamuUu v. de Mel.
The return P 226 shows that the number of shares allotted for aconsideration other than cash by the Company amounts to 7,990. Theseallottees are :—-
The respondent….5,000..500,000
Andrew de Silva, Proctor… .1,000..100,000
J.Alfred Fernando….9904-10..100,000
David Pieris….500..50,000
Merrill Fernando. .. .500. .50,000
What were the services which the last four persons rendered to theCompany for which they were rewarded by such munificent donations?Mr. Andrew de Silva was the proctor who prepared the requisite papersfor the incorporation of the Company, and who put the matter through.Is a proctor who helps to incorporate a Company paid a fee of Rs. 100,000?What were the services rendered by J. Alfred Fernando for which he wasdonated shares worth Rs. 100,000 ? Why was Mrs. de Mel one of thedirectors only given 10 shares for which she presumably had to pay cash?In Topham’s Company Law (10th Edition) at pages 79-80 there is thispassage :—
“ Shares are often allotted as fully paid in consideration of servicesperformed by the promoters before the incorporation of the Company.If these services have enhanced the value of any property sold to theCompany, the allotment is really part of the consideration for the saleof the property, and is valid. If no property sold to the Company hasbenefited by the services, it is difficult to see what is the considerationfor the allotment, for past services are in law no consideration, unlessrendered at request ; and the company could not make such a requestbefore it was incorporated, or ratify it afterwards. Such considerationis, therefore, probably illusory ”.
In the light of all the facts and circumstances, it seems that the sharesgiven to Mr. Andrew de Silva and J. Alfred Fernando are for an illusoryconsideration.
After careful consideration I reach the conclusion that the contractP 156 was entered into by the Company as the secret agent or nomineeof the respondent who all along was, and still is, the real proprietor of thatbusiness. I hold that on the day of his election the respondent wasdisqualified from being elected by reason of the fact that he indirectly bya person on his behalf, namely The New Landing and Shipping Company,Limited, and for his use and benefit, held or enjoyed rights and benefitsdenied to the other shareholders under the contract P 156 made byor on behalf of the Crown in respect of the Government of the Islandfor the furnishing or providing services to be used or employed in theservice of the Crown in the Island.
The Plumbago Contract.
In April, 1947, the Director of Commerce and Industry issued thecircular P 29] to plumbago dealers in the Island calling for offers. OnApril 29, 1947, that is to say before election day, the respondent made
DIAS J.—SaravanamtUtu v. de Mel.
an offer by his letter R 25. By letter P 293 dated August 13, 1947, therespondent extended his offer until September, 1947. At the date of hiselection on September 22,1947, that offer, however, had not been accepted.On October 2, 1947, the respondent withdrew his offer. It is, therefore,clear that no contract was in existence at the time of his election. Thischarge therefore fails.
No doubt the respondent adopted the expedient of putting forward
J.Alfred Fernando who “ does not own a teaspoon of plumbago ” tomake an offer and for which Fernando was paid Rs. 123,705-45, andalthough it is said that Fernando in fact only retained Rs. 1,000 on thisdeal, I cannot hold that Fernando acted as the agent of the respondent,because Mrs. de Mel is also a dealer in plumbago ; and it is possible thatthe rest of that money or the greater portion of it went to Mrs. de Mel.
This charge, which was not pressed, therefore, fails.
The respondent's agreement to pay a debt by instalments.
The respondent during the war having supplied to the ImperialGovernment plumbago which was not up to sample, in August, 1946, headmitted liability in a sum of Rs. 345,742-83—see P 290. This liabilityhe was allowed to discharge by instalments for which the Ceylon Govern-ment, as the agent for the Imperial Government, accepted post-datedcheques. The Attorney-General holds the power of attorney of theproper authority representing the Imperial Government. At the dateof his election admittedly a sum of Rs. 84,000 was still due from therespondent to the Imperial Government.
Even assuming that such an obligation is “ a contract ” within themeaning of section 13 (3) (c) of the Order in Council, it is not within theambit of that sub-section because it was not made “on behalf of theCrown in respect of the Government of the Island ”. It is also doubtfulwhether an obligation of this kind can be said to be a “ contract ” withinthe meaning of that sub-section but I do not decide that point.
I hold that this charge fails.
It is necessary to draw attention to an irregularity which was broughtto light in the course of these proceedings. The Order in Council provideselaborate precautions for the preservation of the secrecy of the ballotafter the poll has closed. Section 47 provides that the presiding officerafter the close of the poll in the presence of the candidates and theirpolling agents as attend, shall seal certain documents and the ballotboxes. Thereafter it is the duty of the presiding officer to despatch suchsealed packets and the ballot boxes in safe custody to the ReturningOfficer.
The Returning Officer after the votes have been counted is required bysection 48 (6) to seal the tendered voted in separate packets. Section48 (9) provides that on the completion of the counting and after theresult has been declared by him, “ the Returning Officer shall seal upthe ballot papers and all other documents relating to the election . . .and shall, subject to the provisions of the next succeeding sub-section,retain the same for a period of six months, and thereafter shall causethem to be destroyed unless otherwise ordered by the Commissioner
DIAS J.—Saravanamultu v. de Mel.
Therefore, all documents relating to the election which had not hithertobeen sealed have to be secured and sealed by the Returning Officer.This would include such documents like the declarations made by voters,the presiding officer’s journals, &c.
Once these documents have been sealed, it is only a Judge of th»Supreme Court under section 48 (10) who may make an order “ that anyballot paper or other document relating to an election which has beensealed as required by this Order be inspected, copied, or producedThe Judge may not make such an order unless he is satisfied that suchinspection, copy or production is required for the purpose of institutingor maintaining a prosecution regarding an election petition. “ Save asaforesaid no person shall be allowed to inspect any such ballot paper or docu-ment after it has been sealed up in pursuance of sub-section (9) ”.
What happened was this. A party to this enquiry moved for asummons on the Registrar-General to produce or cause to be producedcertain declarations made by the impersonators. The Court allowed theapplication, that is to say, it allowed a summons to issue on the Registrar-General to produce or cause to be produced these documents. Under thelaw the witness, unless he claims privilege, must produce the documentsif they are in his possession or power. This order did not authorize himto break open any sealed packets without a special authorization fromthis Court under section 48 (10). What the Registrar-General did was,without consulting the Election Judge or the Attorney-General, construedthe summons to produce as an authorization from this Court undersection 48 (10) to open the sealed packets. This is irregular. I am satis-fied that this was done bona fide, and no harm has been done. Theobservations of Bertram C.J., in Rambukwella v. Silva1 and of de Kretser J.in Saravanamultu v. de Silva2 should be noted in this connection.
In terms of section 81 of the Ceylon (Parliamentary Elections) Order inCouncil, 1946, I determine that the election of Mr. Reginald Abraham deMel as member of the House of Representatives for the Colombo Southseat is void. I further determine that at the date of his election the saidMr. Reginald Abraham de Mel was disqualified from being elected undersection 13 (3) (c) of the Ceylon (Constitution) Order in Council, 1946.
I shall, therefore, in terms of section 82 of the Ceylon (ParliamentaryElections) Order in Council, 1946, report to His Excellency the Governor-General that the said Mr. Reginald Abraham de Mel has been proved tohave committed the “ corrupt practice ” of the abetment of personationas defined by section 58 (1) (o) of the said Order in Council by himself,by his agents and by unknown persons with the knowledge and consentof the said Reginald Abraham de Mel as fully set out in this judgment,and will, in consequence, be subject to the incapacities referred to insection 82 (3).
With regard to the costs of this protracted enquiry, counsel on bothsides agreed that they would each submit a statement of their expensesto me, and that after considering the matter I should make an appro-priate order which both sides agreed to accept. The statement submittedby tie petitioner amounts to Rs. 51,791-50 as being his actual out-of-
1 (1924) 26 N. L. R.atp. 252.x (1941) 43 N. L. R. 77.
BASNAYAKE J.—Abdul Aziz v. Podiappu.
pocket expenses. This enquiry lasted sixty-seven working days, andnecessarily, therefore, the expenditure involved in working up the case,the fees of learned counsel and the proctor, the batta of the witnesses andthe obtaining of certified copies and other documents must be con-siderable. I, therefore, fix the costs payable by the respondent to thepetitioner at Rs. 30,000.
I also desire to place on record my deep appreciation of the manner inwhich learned counsel on both sides assisted the Court in this difficultcase. I specially desire to express my thanks to the learned Attorney-General who attended Court in person to assist the Court as amicuscuriae on certain questions of law.
Election declared void.