R. G. SAMARANAYAKE, Appellant, and A. KARIAWASAN, Respondent

001-NLR-NLR-V-69-R.-G.-SAMARANAYAKE-Appellant-and-A.-KARIAWASAN-Respondent.pdf


THE
NEW LAW REPORTSOF CEYLONVOLUME LXIX
Present: Sansoni, C.J., H. N. G. Fernando, S.P.J.,and T. S. Fernando, 3.R.G. SAMARANAYAKE, Appellant, and
KARIAWASAN, Respondent
Election Petition Appeal No. 8 of 1965—Bentara-Elpitiya
Election petition—Agency—Wide meaning of term “ agency ” in election mattera—Sub-agent of a candidate—Responsibility of candidate for false statements madeby such sub-agent at an election meeting—Corrupt practice—Ceylon (Parlia-mentary Elections) Order in Council, 1946, ss. 58 (1) (d), 77 (e), 82.
A person can become the agent of a candidate, not merely by direct appoint-ment by the candidate himself, but also by appointment made by an agentwho himself has authority to employ other people to further the election ofthe candidate. A person, therefore, who, on invitation from a candidate’sagent, makes a speech at an election meeting to promote the election of thecandidate is a subordinate agent of the candidate and is an “ agent ” withinthe meaning of that term in section 77 (c) of the Parliamentary Elections Orderin Council. “ When a candidate engages the services of a person generallyto promote his candidature, any act of that person performed with the objectof promoting the candidature is the act of an agent within the meaning ofsection 77 (c). Accordingly, any person who is invited by a candidate, or byhis agent authorised to convene an election meeting, to speak at any suchmeeting in support of the election, has implied general authority, amountingperhaps to a carte blanche, to make any speech which in the opinion of thatperson is likely to promote the election, and a false statement made by thatperson in such circumstances is made by an ‘ agent ’ within the meaning ofseotion 77 (c). ”
An act done by a person who with the consent of the candidate promotesthe election of the candidate, is one for which the candidate is responsible.It does not then matter whether the candidate knew that the particular personwould in fact do the very act which he ultimately performs for promotingthe election.
The petitioner and the appellant were rival candidates for election to a seatin the House of Representatives. In an election petition filed by the petitioner,one ground on which the election of the appellant was declared void undersection 77 (o) of the Parliamentary Elections Order in Council was that one Wwas an “ agent ” of the appellant, and that she was guilty of corrupt practice
H. N. G. FERNANDO, S.P.J.—Samaranayake v. Kariawoean
under section 68 (1) (</) of the Order in Council in that she had made a falsestatement of fact in relation to the personal character or conduct ofthe petitioner.
At a number of election meetings held in support of the appellant, W madefalse statements alleging that the petitioner took a bribe of Rs. 500 from heron the promise that he would obtain a job for her. At a meeting held on 6thMarch, W spoke in the hearing of the appellant, who himself followed withhis speech on that occasion. There was no evidence that in that speech theappellant attempted to discourage or prevent W from making such statements.Another meeting, which was held on 20th March, was organised by a personwho was the admitted agent of the appellant, for the purpose of arrangingmeetings. In regard to both those meetings, the Trial Judge held that Wmade the statements as the agent of the appellant, and that hex agency hadbeen proved beyond reasonable doubt. He found that, after her first speechat an earlier meeting on 25th February, W was invited to speak at the othermeetings by the organisers of those meetings.
Held, that the presence of the appellant at the meeting on 5th March, andthe fact that he himself spoke there, clearly established that the meeting wasconvened with the appellant’s knowledge and consent. Inasmuch as themeeting was convened with the knowledge and consent of the appellant, theorganiser of the meeting had authority to invite speakers to that meeting. Thatbeing so, the finding of the Trial Judge that agency was established in thisinstance depended quite obviously upon a finding of fact that the organiserof the meeting was an agent of the appellant and that, as such agent, he invitedW to speak at the meeting. W was thus a subordinate agent of the appellant,having been chosen by the organisers of the meeting, who did have authorityso to choose her. The Trial Judge’s reference to the fact that organisers calledupon W after her first speech was virtually a finding that the organiser of themeeting of 5th March invited her to speak at that meeting because ho-knewwhat she had stated at the first meeting. W had general authority to promotethe appellant’s election by her speeches. In the circumstances, the electionof the appellant was void under section 77 (c) of the Parliamentary ElectionsOrder in Council on the ground that a corrupt practice falling within section68 (1) (d) was committed by his “ agent ” W.
ELECTION Petition Appeal No. 8 of 1965—Bentara-Elpitiya.
V. Perera, Q.C., with Izzadeen Mohamed and S. S. Basnayake,for the Respondent-Appellant.
Nimal Senanayake, with Desmond Fernando and Suriya Wickremasinghe,for the Petitioner-Respondent.
Cur. adv. tmil.
August 1, 1966. H. N. G. Febnando, S.P.J.—
This Appeal is from the determination of an Election Judge in anelection petition filed in respect of the Parliamentary General Electionheld in March, 1965, for Electoral District No. 57, Bentara-Elpitiya. Thepetitioner in the case was one of the unsuccessful candidates at that elec-tion, and he is hereinafter referred to as “ the Petitioner ”. The successfulcandidate is the Appellant in this Appeal and will be referred to as
H. N. O. FERNANDO, 8.P.J.—Samamnayake p. Kariawatan
*
such. The determination of the Election Judge was that the electionof the Appellant was void under section 77(c) of the ParliamentaryElections Order in Council, on the ground that two persons, Tillak Karuna-ratne and Soma Withanachchi, both agents of the Appellant, were guiltyof corrupt practices under section 58 (1) (d) of the Order in Council.
In relation to the finding concerning Tillak Karunaratne the principalargument before us was that the learned Election Judge misdirectedhimself in law in holding that Karunaratne was guilty of a corrupt practice.It is not necessary to consider that argument in this judgment in viewof the conclusion we have formed, that the election was properly declaredvoid on the ground that Withanachchi had been guilty of a corruptpractice. It suffices, therefore, now to state reasons for that conclusion.
The corrupt practice stated in section 58 (1) (d) consists of the makingor publishing, for the purpose of affecting the return of any candidate,any false statement of fact in relation to the personal character or conductof such candidate. Except in regard to one matter (I will refer to itlater), it has not been argued before us that the Election Judge misdirectedhimself in holding that Withanachchi was guilty of the offence definedin section 58 (1) (d). In this instance, the principal ground argued hasbeen that the Trial Judge erred in law in holding that two offences undersection 58 (1) (d) which were committed by Withanachchi, were in termsof section 77 (c) of the Order in Council, committed by her as agent of theAppellant, and that one of such offences had in addition, been committedwith the knowledge and consent of the Appellant.
Withanachchi admitted in evidence that at a number of meetings heldin support of the candidature of the Appellant, she made statementsalleging that the Petitioner took a bribe of Us. 300 from her on the promisethat he would obtain a job for her. After stating in the judgmentthat this admission had been made, the Trial Judge proceeded to considerthe evidence regarding some only of these meetings. He held expresslythat she made the statement at meetings held at Balagala on 25th Feb-ruary, 1965, at Thanabaddegama on 27th February, at Bodiwela on 5thMarch, and at Kahambiliyakande on 20th March. In regard to the Bodi-wela meeting on 5th March, he held that she spoke in the hearing of theAppellant, who himself followed with his speech on that occassion. Inregard to the next meeting on 20th March, he held that the meeting wasorganised by Karunaratne who was the admitted agent of the Appellant,for the purpose of arranging meetings. In regard to both these meetings,he held that Withanachchi made the statements as the agent of theAppellant, and that her agency had been proved beyond reasonabledoubt. In deciding this question he relied on what he described as theprinciple enunciated in the Barnstaple Case.1
“ I say that if an agent, although he may be no agent to the candidate,be employed by the agent of a candidate, he is a sort of subordinateagent, and if he is employed by persons who have authority to employ
H1874) 2 O'M. <b H. cU p. 105.
4
H. N. G. FERNANDO, 3. P. 3 .Samarancyaks o. Kcrxawasan
people to further the election of a particular individual, and in the courseof canvassing makes use of a threat or a promise, such an act willmake the candidate liable, however innocent the candidate may be,or however careful the candidate may have been to avoid such conduct.As Mr. Harrison vary fairly puts it, he cannot take the benefit of theservices of the individual and repudiate them at the same time. Butthe Judge must be satisfied that the man, when he was acting, wasacting as the agent for furthering the election of a particular candidate.”
The same principle is referred to in the Wakefield, Case 1:—
Accordingly a wider scope has been given to the term ‘ agency ’in election matters, and a candidate is responsible generally, you maysay, for the deeds of those who to his knowledge for the purpose ofpromoting his election canvass and do such other acts as may tend topromote his election, provided that the candidate or his authorisedagents have reasonable knowledge that those persons are so actingwith that object. ”
There was apparently no evidence as to who precisely was responsiblefor arranging the election meeting held on 5th March ; but the presenceof the Appellant at that meeting and the fact that he himself spokethere quite clearly established (although the Trial Judge did not findit necessary expressly so to hold), that this meeting was convened withthe Appellant’s knowledge and consent. In connection with his findingof agency he relied on Withanachchi’s statement that after her firstspeech (i.e., on 25th February), she was invited to speak at the othermeetings by the organisers of those meetings. If then the meetingon 5th March was convened with the knowledge and consent of theAppellant, the organiser of that meeting had authority to invite speakersto that meeting. That being so, the finding of the Trial Judge that agencywas established in this instance depends quite obviously upon a findingof fact that the organiser of the meeting was an agent of the Appellant,and that as such agent, he invited Withanachchi to speak at the meeting.The language of the Barnstaple judgment does not exactly fit the evidenceconcerning Withanachchi, because it refers to the making of a threator promise in the course of canvassing, and not to the making of falsestatements in a speech. But the language of the citation from the Wake-field Case, when it refers to the responsibility of a candidate for the deedsof those who to his knowledge for the purpose of promoting his election,canvass and do such other acts as may tend to promote his election, in myopinion is clearly intended to include acts other than canvassing, whichmay tend to promote the election of the candidate. For present purposesthe importance of what has been called the Barnstaple principle is thata person can become the agent of a candidate, not merely by directappointment by the candidate himself, but also by appointment madeby an agent who himself has authority to employ other people to further
1 2 O'M. 3b H. at p. 100.
H. N. G. FERNANDO, S.PJ.—Samaranayake v. Kariouxuan
ft
the election of the candidate. The reasoning of the Trial Judge in thepresent case, when he stated that the Barnstaple principle applies, isquite clearly that in the case of Withanachchi’s participation at themeeting on 5th March she was, in the language of the Barnstaple principle,a subordinate agent of the candidate, having been chosen by the orga-nisers of the meeting, who did have authority so to choose her. The TrialJudge’s reference to the fact that organisers called upon her after herfirst speech is virtually a finding that the organiser of the meeting of 5thMarch invited her to speak at this meeting because he knew what shehad stated at the first meeting.
There is a further statement in the judgment concerning the meetingof 5th March to which I must now refer. The Trial Judge states thatalthough the Appellant spoke at this meeting only after Withanachchihad spoken there is no evidence that the Appellant either stopped herfrom speaking or repudiated her statement in his own speech whichfollowed. The Trial Judge in this connection states his opinion thatif the Appellant did not consent to what Withanachchi had previouslysaid, he should have either stopped her or subsequently repudiatedher statement. In this way the Judge has inferred that Withanachchi’sstatement had been made with his knowledge and consent.
What was in my understanding, the principal contention for theAppellant, is that a person who on invitation from a candidate or hisagent, makes a speech at an election meeting in support of the candi-date is not an ‘ agent ’ within the meaning of that term in section 77 (c).For this contention reliance was placed on the language of the Barnstaplejudgment when it refers to acts done by a subordinate agent in thecourse of canvassing, and also certain observations in the DungannonCase 1 :—
“ I think it must be made out that a party, before he is chargeableas an agent, has been entrusted in some way or other by the candidatewith some material part of the business of the election which ordi-narily is performed, or is supposed to be performed, by the candidatehimself. Whether it has any distinct reference to canvassing oranything of that kind, appears to me to be immaterial, but in somesense oi another he must be considered as entrusted by the candidatewith the performance of some part of the business of the election,which properly belongs to the candidate himself, though he is unableto perform it in many cases without somebody to aid him. ”
Relying upon these observations it was argued that, whereas can-vassing is something which can ordinarily be performed by the candidatehimself, making a speech about a candidate is not something whichthe candidate can himself do, but which essentially is something whichcan only be done by other persons.
1 3 O'M. dkH.atp. 101.
I
6
H. N. G. FERNANDO, 8.P.J.—Samaranayake v. Karimoasan
The brief report of a part of the judgment in the Dungannon Casedoes not reveal the context in which the observation I have citedwas. made. But the headnote shows that the election in that casewas declared void on the ground of bribery by agent. The question,whether a candidate is responsible for the making of a false statementby a person invited to speak at an election meeting, was not consi-dered in the case. On the contrary, that case was decided in 1880,at a time when there was no statutory provision declaring it to bean illegal practice to make false statements relating to the personalcharacter or conduct of a candidate. Statutory provision for thatoffence was made only in 1895. The Barnstaple Case itself was a deci-sion of 1874, and one can well understand why, in that judgment therewas no occasion to use language pronouncing upon the question whether,the making of a speech may or may not be the act of a candidate’s“ agent ”, But the Wakefield Case, although it was also decided in1874, does contain a statement of the law in terms which are of assis-tance to us, because it refers to the deeds of persons who do acts forthe purpose of promoting an election.
The argument that authority to canvass is essential in order toconstitute “ agency ”, was rejected in the Borough of Plymouth 1 whereSwift, J. stated :—
“ It seems to me that a person may well be the agent of a candidate,with the consequence of affecting him with any impropriety of whichthe agent is guilty, although he is not a canvasser in the strict Bense ofthe word at all. There are many ways in which a man can become anagent, quite apart from being an authorised canvasser. ”
An election meeting is clearly intended for the purpose of promoting theelection of the candidate whom the organisers of the meeting support,and persons who are invited by the organisers to speak at that meetingmust surely be presumed to speak with the purpose of promoting theelection of the candidate. Even upon the nanowest application of theprinciple of responsibility stated in the Wakefield Case, an act done by aperson who with the consent of the candidate promotes the election of thecandidate, is one for which the candidate is responsible. It does not thenmatter whether the candidate knew that the particular person would infact do the very act which he ultimately performs for promoting theelection. The passage which I have cited from the Wakefield Case ispreceded immediately by the observation that although by the ordinaryLaw of Agency a person is not responsible for the acts which his allegedagents choose to do on their own behalf, that construction of agency maynot be put upon the acts done at elections.
I have stated my reasons for the opinion that the restricted language ofthe Dungannon judgment cannot be relied on in the present case, but thelanguage of the Barnstaple judgment should, in my opinion, be applied
1 (1929) 7 O'M. <Sb H. 101.
H. N. G. FERNANDO, S.P.J.—Samaranayake v. Kariawasan
7
by analogy to the new situation which later arose in England, when in1895, the making offalse statements was declared to be an illegal practice.If a subordinate agent chosen to promote an election by the canvassing ofvoters renders a candidate responsible for the agent’s illegal manner ofcanvassing (e.g., by bribery, threats or promises), then equally a personchosen to promote a candidate’s election by making a speech at a meeting,will render the candidate responsible for the agent’s illegal manner ofpromoting the election, in this instance, by making false statementsconcerning the character of another candidate.
[ have referred to English cases because they were cited in supportof the arguments of counsel for the Appellant; but in fact, our law is inmany respects so different from the English law, that it is perhaps saferfor our courts to construe our own law on this matter, without too muchreliance upon English decisions. The English law requires an electionjudge to report whether or not a candidate has by his agents been guiltyof the illegal practice of making false statements as to character, etc. Onthe other hand, section 82 of our Order in Council requires the judge toreport whether any (in this context), corrupt practice has been committed by,or with the knowledge and consent of, any candidate, or by his agent.Similarly, section 77 (c) declares the relevant ground of avoidance to bethat a corrupt practice was committed by the candidate or with his know-ledge or consent, or by any agent of the candidate. While in Englandavoidance follows only because' the candidate committed the offence, eitherby himself or by his agents, in Ceylon the ground of avoidance is thatan offence committed by some other person was committed either withthe knowledge or consent, or by an agent, of the candidate. In view ofthese differences it is safer to rely on English decisions only in so far as theyappear to support what would be the prima facie construction of our ownlaw. Here then, was an offence committed by Withanachchi. Thelearned Trial Judge, relying upon the Barnstaple principle, held that shewas a subordinate agent of the Appellant, and that the statements shemade were made as such agent. .There is no question that she made thestatements in the course of promoting the election of the Appellant.There is no difficulty in placing upon section 77 (c) the construction that acorrupt practice committed by an agent in the course of her known objectof promoting a candidate’s election is one within the contemplation ofsection 77 (c). Even if English decisions in pari materia may be ofassistance in construing our law, no decision was cited during the argu-ment, which held, that to make a speech at an election meeting is not topromote the election of a particular candidate.
I accept Mr. Perera’s argument that every corrupt practice committedby any and every agent of a candidate must not be held, within themeaning of section 77 (c) of our Order in Council, to have been committedby an agent. The decision in Tilekewardene v. Obeysekere *, clearlysupports that argument, since it holds that an express authorisation toborrow motor cars for election purposes, but not to hire them, does not
7-Volume LXIX
(1931) 33 N. L. R. 126.
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H. N. G. FERNANDO, S.P.J.—Samaranayake v. Kariawasan
render a candidate liable if the agent in excess of his authority hires carsinstead. Nor do I disagree with the reliance there placed on Englishdecisions to the effect that a restricted, as opposed to a general, authorityto canvass specified voters did not render a candidate responsible for illegalacts done by his agent of his own accord in canvassing other voters. Butin the present case, Withanachchi had general authority to promote theAppellant’s election by her speeches.
In Rutnam v. Banda l, the second charge was that the respondent (thesuccessful candidate at the election) “ by persons acting on his behalfused force and violence in order to induce and compel voters to refrain fromvoting at the election ”. According to the findings of Hearne, J. on thischarge, the force and violence was exercised on polling day itself by twonamed individuals. The reasons stated for the finding, that “ undueinfluence was exercised by two agents of the respondent ”, and that theelection must therefore be declared to be void, are important for the presentpurposes. In the case of one individual, the respondent had admittedat the trial that he was aware that the individual was working to get himvoters, and that he was content to rely on his support. In the case of theother individual, Hearne, J. held on the evidence, that this individualhad been clearly authorised to canvass voters for the respondent, and thatthe respondent had solicited this individual’s support on his behalf.Hearne, J. decided that the authority to canvass established the 1 agency ’for the purpose of rendering the respondent liable for the acts of the agentsin preventing voters from voting on polling day. With respect, the justi-ficaton for that decision is his other finding that the respondent hadsolicited the support of the agents, not only for canvassing, but to promotehis election.
In my opinion there is here authority for the proposition that, when acandidate engages the services of a person generally to promote hiscandidature, any act of that person performed with the object ofpromoting the candidature is the act of an agent within the meaning ofsection 77 (c). Accordingly, any person who is invited by a candidate,or by his agent authorised to convene an election meeting,"to speak at anysuch meeting in support of the election, has implied general authority,amounting perhaps to carte blanche, to make any speech which in theopinion of that person is likely to promote the election, and a false state-ment made by that person in such circumstances is made by an ‘ agent ’within the meaning of section 77 (c).
It was argued that section 77(c) should not be construed in this way,because of the consequent avoidance of an election and the disqualifica-tion of the candidates. But that is not the only consideration involved.There is the need tc prevent the infringement of every candidate’s rightthat his chances of election must not be prejudiced by fajke statementswhioh discredit him, and whith indeed are expressly prohibited bysection 58 (1) (d). If such false statements are made by persons invited to
1 (J944) 46 N. L. B. 146.
H. N. G. FERNANDO, S.P. J.—Samaranayake v. Kariawasan
9
promote a candidate’s election by making speeches, it is not unreasonablethat the candidate should be penalised. There is no evidence that theAppellant in this case attempted to discourage or prevent Withanachchifrom making such statements.
I must consider now the objection taken on behalf of the Appellantthat the Election Judge erred in law in holding that Withanachchihad committed a corrupt practice. The objection was in substance, thatthere was misdirection regarding the burden of proving the falsity ofWithanachchi’s statement that the Petitioner took a bribe from her.The evidence relevant to this matter was—
That of witnesses who claimed to have heard the statement made
by Withanachchi at meetings.
The denial at the trial by the Petitioner that he took the bribe.
The evidence of Withanachchi at the trial that the Petitioner
took the bribe.
Certain other matters, some of which the Election Judge regarded
as being matters which negatived the truth of Withanachchi’sstatements, and some of which showed her to be an untruthfulwitness.*
In the first part of his judgment, the Election Judge stated his intentionnot to act upon the Petitioner’s denials (cf. 2 above), without examiningthem with reference to suxrounding circumstances. He thereafterconsidered Withanachchi’s evidence and stated three different groundsfor disbelieving her. Firstly, because of falsehoods in her other evidence ;secondly, because he inferred from a letter written by her in October1964 and from certain other matters that her story concerning her rela-tions with the Petitioner was untrue. The third ground relating to hermotives was not, I agree, a valid one. The Election Judge did notexpressly state that he ultimately accepted the Petitioner’s denial ofthe bribe. On this score, Mr. Perera contended that in the result hedisbelieved both Withanachchi and the Petitioner, and that accordingly,the falsity of Withanachchi’s statements had not been established.
I must reject this contention for two reasons. One is that the Judgedid not in fact disbelieve the Petitioner on this question of a bribe. Heat first left that question open to be decided after a consideration ofall the relevant evidence, and his ultimate finding that Withanachchi’sstatements were false shows that he accepted the Petitioner’s denialas being true. My second reason is that disbelief of Withanachchi’sevidence of the alleged bribe necessarily meant disbelief of the truthof her former statements concerning the bribe. Wherever the burden ofproof lay initially, the position at the end of the trial was that the Judgerejected the evidence of the bribe as being untrue. With great respect,it would be contrary to common sense to hold that nevertheless thefalsity of the same story as told by the same person on previous occasionshad not been established.
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Kamnaratne v. The Queen
Before concluding this judgment, I must concede that I have attri-buted to the Trial Judge, in some instances, inferences and assumptions■which he has not expressly stated in his judgment, although in all theseinstances it is readily apparent that the findings of fact could only havebeen reached with the aid of such inferences and assumptions, whichproperly arose on the evidence. I may also, in one or two instances,have found support for the Judge’s findings of fact in evidence which hehas not expressly accepted, but only when it was manifest that the Judgedid intend to act upon such evidence, or would have so acted. Thedetermination of an Election Judge can only be reversed on the groundof misdirection on a question of law, and the jurisdiction to reverse hisfindings of fact on such a ground is a strictly limited one. In such acontext, the Appellate Tribunal has not merely the power, but also theduty, to seek valid reasons upon which to support the findings of fact,at least to the extent which I have thought fit in this case.
I hold that there was no misdirection in the finding that a corruptpractice was committed by the Appellant’s agent Withanachchi. Thedetermination of the Election Judge is affirmed with costs.
Sansoni, C.J.—I agree.
T. S. Fernando, J.—I agree.
Appeal dismissed.