R. A. PIYASENA, Petitioner, and A. J. M. DE SILVA et al., Respondents

104-NLR-NLR-V-53-R.-A.-PIYASENA-Petitioner-and-A.-J.-M.-DE-SILVA-et-al.-Respondents.pdf


460
NAGALINGAM S.P.J— R. A. Piyasena v. A. J. SI. de Silva
1951Present : Nag tiling am S.P.J.
A. PIYASENA, Petitioner, and A. -J. M. de SILVA et al..
Respondents
8. C. 97.—In the Matter of an Application for a Writ ofQuo Warranto on Anthony J. M. de Silva, Memberfor Ward No. 2, Hatton-Dickoya Urban Council.
ax
Quo Warranto—Urban Council—Election to ward—“ General personation "—Meaningof expression—Inspection of ballot papers—-Power of Court to order it—Voter—“ Error in description ”—Local Authorities Elections Ordinance, ss. 53 , 68.
Where, in an election to a ward of an Urban Council, the majority of thesuccessful candidate was small, and the number of bases of personation waslarger than the majority and consisted of votes in favour of the successfulcandidate—
Held, that the election was void on the ground of general personation.
Held, further, (i) that the Court has power to order an inspection of ballotpaperB not only duridg the six months mentioned in the proviso to Clause 4of section 68 of the Local Authorities Elections Ordinance, but also at anytime thereafter whenever it becomes necessary to do so in the interestsof justice.
(ii) that the terms of section 53 of the Local Authorities Elections Ordinancedo not go so far as to permit a Presiding Officer to allow a man to vote' whenhis name is entered in the electoral lists as that of a woman.
THIS was an application for a writ of quo warranto to set aside anelection to a ward of the Hatton-Dickoya Urban Council.
H. V. Perera, K.C., with C. S. Barr Kumarakvlasinghe, M. M. Kumara-kulasingham and G. C. Niles, for the petitioner.
L. Pereira, K.C., with A. L. Jayasuriya, A. B. Perera, S. P. Wije-wir.lcrema and W. D. Gunasekera, for the 1st respondent.
1). Jansze, Crown. Counsel, for the 2nd respondent.
Gut. adv. vult.
December 19, 1951. Nagalingam S.P.J.—
The election of the 1st respondent, Anthony J. M. de Silva, as memberfor ward No. 2 of the Hatton-Dickoya Urban Council is being challengedin these proceedings by the petitioner who is a registered voter for theward.
The ground upon which the election has been challenged is that certainvoters who were not entitled to vote were permitted by the PresidingOfficer to cast their votes in spi.te of objection and that in consequencethereof was the alleged majority secured by which the 1st respondentwas declared duly elected.There were six voters to whose voting
objections were specifically formulated. These six voters are said to
NAGALINGAM S.P.J.—ft. A. Piyasena v. A. J. M. de Silva
461
have voted in 'place of the following, whose names appear on the electorallist: (1) Mrs. "V. Ponnammah, (2) V. Veeraputhiram, (3)„U. M. Mahamani,
It. Gunawardena, (5) Meera Saibo Hyder Ali, and (6) W. Odiris Silva.
[After holding on the evidence that there had been impersonations inrespect of Mrs. Ponnammah, Veeraputhiram, Mahamani and OdirisSilva, but not in respect of Meera Saibo Hyder Ali, His Lordshipcontinued: —]
The last voter to whom objection has been taken is It. Gunawardena.In the lists, against the name of It. Gunawardena there is the furtherdescription indicating that the name is that of a female by the insertionagainst the name of the word “ Miss ” ; and in a column headed “ Sex ”the letter F also is placed opposite the name indicating again that thevoter is a female. The voter who claimed to be It. Gunawardena wasa male ; he gave evidence and stated that his sex had been wronglydescribed but that he himself was the person whose name was registeredas a voter. In his evidence, however, he admitted in express wordsthat he had a sister by the name of It. Gunawardena. In order towhittle down this evidence the uncle of the witness, one Munaweera,was called by the 1st respondent, and he denied that the witness It.Gunawardena had a sister by the name of Gunawardena at all, muchless one by the name of It. Gunawardena. He categorically statedthat there were three children in the family, two males and one female,the female going by the name of Hemawathie and the males going bythe names of Gunewardena and Chandrapala. His object was to indicatethat Gunawardena was not a surname of the family. Though I shouldhave hesitated if the evidence stood with that of these witnesses to holdthat there was a sister by the name of It. Gunawardena—for I mustsay Munaweera gave his evidence well and inspired confidence—theevidence of the headman Senadipathy who was also called by the 1strespondent so contradicted Munaweera’s statements that it left meshaken in regard to the confidence I had placed on Munaweera’s evidence ;the headman stated that It. Gunawardena’s brother was known by thename of C. Gunawardena. In view of the express statement by It.Gunawardena that he has a sister by the name of It. GunawardenaI would hold that the witness was not the person who was registeredas a voter and that in this case too it was a case of personation.
The conduct of the Presiding Officer has been' questioned in that hedid permit It. Gunawardena, a man, to vote, while the electoral listsindicated that the voter was a woman. While there is great force inthe argument that a Presiding Officer is called upon in terms of section53 of the Ordinance to permit a person who claims to be a voter to voteafter making his declaration as prescribed therein, I do not think it isa sound exercise of discretion on the part of a Presiding Officer that heshould permit a man to vote for a woman, for that would not be a caseof an error in the description of the voter but a complete metamorphosisor transformation of one person into another.
Mr. Jansze contended that so long as It. Gunawardena was the nameon the register and the person who came forward claimed to be B. Gune-wardena and was prepared to sign a declaration the Presiding Officer
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NAGALINGAM S.P.J.—B. A. Piyasena v. A. J. M. de Silva
hud no further duty but to accept the declaration and to hand him aballot paper to enable him to vote. Mr. Jansze’s contention was basedon a submission that the word “ Miss ” and the letter F placed oppositethe faame should be treated as futile hieroglyphics meaning nothing inparticular, for there is nothing in the Ordinance which requires theindication of the sex of a person to be recorded in an electoral list. Butif this contention be sound, I should have imagined that the full namesof the voters would at least have been given so as to provide some clueas regards the sex of the voter. 'But in an electorate where there arepersons of various communities whose names the Presiding Officermay not be familiar with and hence afford him not the slightest inklingas to whether the voter is a male or a female, it is not only proper butessential that the electoral list should indicate the sex of the voter ifan election is to be conducted in accordance with ordinary rules under-lying a proper election. Besides one can imagine cases where a particularname may stand for persons of either sex.
I do not therefore accept the contention that the indication of the sexof the voter on an electoral list is to be treated as a piece of uselessinformation; but on the other hand I should say that it is as much anintegral part of the name as the surname itself, especially as in the listsonly initials are used with the surname or what would correspond tothe surname. I did not understand Mr. Jansze to say, for instance,that where a person who declared that his name was Puniasoma butclaimed to vote under a name of Odiris Silva that appeared in the voters'list, the Presiding Officer would have been justified in permitting himso to vote. Hence in permitting R. Gunawardena, a man, to vote inplace of R. Gunawardena, a woman, the Presiding Officer did fall intoan error.
Mr. A. B. Perera for the 1st respondent developed this argument morefully and contended that so long as the person who claimed the vote wasprepared to sign a declaration the Presiding Officer had no furtherresponsibility in the matter. He relied upon certain English decisionswhich were decided under the provisions of the English election laws.The provision is to be found in the most recent enactment, the Representa-tion of the People Act, 1918, Rule 41 of -the Registration Rules in theFirst Schedule to the Act, which declares:
“ No misnomer or inaccurate description of any person or placeon any list or on the register or in any notice shall prejudice theoperation of this Act or these rules as respects that person or placeprovided that the person or place is so designated as to be commonlyunderstood.”
Substantially the same provision is to be found in the earlier Statute5 and 6 William IV Chapter 75 section 142. In the case of The Queen v.John Thwaite8 1 it was held that, where a man whose true name wasJoseph Cowall but whose name had been entered in the electoral list asJames Cowall signed the voting paper in the name of James Co wall,the voting was not irregular, as it was held that it was a misnomer within
» (1853) 1 E. <fe B. 704.
NAGAXjINGAM 8.P.J.—R. A. Piyasena o. A. J. M. de Silva
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the meaning of section 142 of the Statute of William IV. It was furtherheld that it was the true voter who did vote and no other. But thereis a passage in the judgment of Lord Campbell C.J. which brings out theproper meaning to be attached to the term *' misnomer The learnedChief Justice said:
‘‘ Suppose a person named James had been put down in the rollas Jem, and had been known as Jem throughout the borough, I donot say that he must have signed the name Jem, but surely he mighthave done so.”
There is no statutory provision under our law which permits of sucha course being adopted in our elections but the presence of section 53in the Ordinance seems to proceed on the footing that where there is anerror in the name, so long as the voter was the identical person who wasintended to be referred to by the entry in the list, he should be permittedto vote on his subscribing a declaration. But, of course, it cannot besaid that one totally different name could be substituted for another.For instance, it is possible to spell some of the Ceylonese names eitherwith a G or a J, or with a V in place of a W. And if these variationsappeared I think there can be no doubt but that the voter would beentitled to vote after having subscribed the declaration.
In the cases of R. G unawardena and Odiris Silva there is no pretencethat the names that appeared in the electoral lists had any semblanceto the names by which parties were known, and this though R. Guna-wardena in the former case happens to be identical.
On the facts, therefore, I hold that there have been five cases ofimpersonation—all save that of Meera Saibo Hyder Ali.
There is no allegation in the petition or in any of the affidavits filed,nor was there any evidence led to show that the 1st respondent or any ofhis agents was a party to these impersonations. Mr. A. B. Perera,however, contended, relying upon section 69 of the Ordinance, that theelection cannot therefore in any event be avoided. I do not think section69 has any application to the circumstances of the present case. Thatis one which deals with an entirely different situation. The questionhere is whether the impersonation of five voters on the electoral list canbe said to amount to general impersonation so as to render the electionvoid. It is obvious that if the five persons who impersonated the fivevoters did cast their votes in favour of the 1st respondent then it wouldhave a serious repercussion on the election of the 1st respondent. Hewas elected by a majority of two over the only other candidate. Iam also of the view that unless it could be shewn that at least two ofthese persons did vote for the 1st respondent the result c*f the electionwould not be different and no grounds would exist for interventionby this Court. I am fortified in this view by a passage in Rogers 1:
“ It is possible, however, that a case might arise in which the majorityof the successful candidate was small, and in which there was a largenumber, of cases of personation, larger than the majority and all comprisingvotes in his favour. Then if it were desired not to put in issue the
1 On Elections, 20th ed., Val. II, p. 355.
35 —N. L.R. Vol.-Uii
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NAGALINGAM S.P.J.—R. A. Piyasena v. A. J. M. de Silva
acts of the unsuccessful candidate and of his agents by claiming theseat on a scrutiny, there seems no reason why a petition should notbe filed claiming that the election was void on the ground of generalpersonation, and why it should not succeed if the majority could begot rid of. ’ ’
It therefore seems to me that it is necessary to examine the ballotpapers cast by these five persons. Mr. A. B. Perera, however, contendsthat the Court has no power and in fact that it is not possible to determinethis question and that it must be held that as no proof can be adducedto shew that any or all of these five votes were cast in favour of the1st respondent the petition must be dismissed. The only provisionin the Ordinance, he says, that enables the Court to inspect the ballotpapers is the proviso to Clause 4 of section 68, which only empowersthe Court to inspect the ballot papers within a period of six monthsof the date of their receipt by the elections officer. More than six monthshave now expired, and hence his contention that there is no power inthe Court.
I do not think that this is a proper construction of the proviso nor doI think that the Court has no power besides that indicated in section 68.
I think the section itself is framed on the footing that thg Court hasan inherent power to order an inspection whenever it becomes necessaryin the interests of justice to do so ; section 68 merely indicates to theelection officer that while the documents are in his custody nobody isto have inspection of them, but, of course, if this enactment stood byitself without any proviso, it would be a complete and effective bareven to the Court inspecting the documents during the time they arein the custody of the elections officer. To remove this anomalous resultthe proviso has been enacted, so that it may be abundantly clear thateven during the period of six months the Court is not debarred frominspecting or ordering an inspection. The very purpose of requiringthe documents to be retained for a period of six months, to my mind,is self-explanatory. It is to prevent the destruction of documents thatmay be essential to the proper adjudication of a matter before theCourt.
Mr. A. B. Perera suggested that the documents were to be retainedfor departmental purposes in the event of any allegation being made
against any of the officers who conducted the election. But this cannot
be; for no one, even if there was an allegation against the electionofficers, could inspect them while theywerein the custody ofthe election
officer. They can only be inspectedoncethey havebeendirected to
be produced before the Court and by the order of the Court. If, ofcourse, there is an investigation in Court within the six months evenas against the election officers, then no doubt that would be a case where
a Court could order an inspection. But to say that the retention of the
documents is directed by the sectionwiththis end inviewis to place
a too narrow construction on the law ofelections. Itakeit that the
period pf six months is prescribed in the Ordinance because the Legislaturehad deemed it a sufficiently long period of time within which any questionrelating to the election would have been brought before the Court. It
Salih a. Fernando
466
is clear that where within a period of six months a matter relating tothe election is brought before the Court and information is given to theelections officer or he receives knowledge of the pendency of proceedingsin Court it would be his duty not to destroy the documents till the finaldisposal of the case. I do not think it could ever have been contemplatedthat the mere fact that the adjudication by Court takes place six monthsafter the date of the receipt of the documents by the elections officeris to be regarded as the pivot upon which the rights of the parties areto turn and to affect adversely a party who would otherwise have beenentitled to succeed. I think, therefore, that the Court has the right toorder an inspection even after the lapse of six months from the date ofthe receipt of the documents by the elections officer.
In view of the foregoing, it would be apparent that no final ordercan be made till an inspection is made of the five ballot papers of theimpersonators referred to above. I therefore direct the Registrar toopen the sealed packets in the presence of Counsel for the petitionerand for the 1st respondent with a view to determining how these fiveballot papers have been marked.
On scrutiny it is found that four of the five ballot papers have beencast in favour of the 1st respondent and one in favour of the unsuccessfulcandidate. The four ballot papers cast in favour of the 1st respondentmust be rejected and so would the one in favour of the unsuccessfulcandidate. On this basis the 1st respondent has not a majority.
I therefore hold that the election of the 1st respondent is void. The1st respondent will pay to the petitioner the costs of these proceedings.In all the circumstances, the 2nd respondent would bear his own costs.
Election declared void-