RAJAPAKSE AND ANOTHER v. GUNASEKERA AND OTHERS

001-SLLR-SLLR-1984-2-RAJAPAKSE-AND-ANOTHER-v.-GUNASEKERA-AND-OTHERS.pdf

Rajapakse v. Gunasekera
1
SC
RAJAPAKSE AND ANOTHER
v.GUNASEKERA AND OTHERS
SUPREME COURT
SHARVANANDA, J.. WANASUNDERA. J AND WIMALARATNE. J.
S. C. ELECTION PETITION APPEAL No. 1 OF 1983 AND S. C. ELECTION PETITIONNo. 2 OF 1983 (CONSOLIDATED).
ELECTORAL DISTRICT No. 159 – KALAWANA.
FEBRUARY 27, 28, 1984. MARCH 1, 12 TO 15. 19 TO 22 AND 26 TO 29. 1984.
Election Petition – Corrupt practice of publishing false statements concerning personalcharacter and conduct.
Section 58(1 )(d) read with section 77(c) and section 82 A(1) of the Ceylon(Parliamentary Elections) Order in Council, 1946.
Appeal on question of law – Burden of proof – Standard of proof – Were thestatements made and were they false ?
Section 80 (B) (d) of the Order in Council – Affidavit accompanying petition – If factsstated in affidavit not based on personal knowledge – should petition berejected ? – Jurisdiction of Election Court.
At two by-election meetings held on 31.12.1980 and 2.1.1981 the 2nd respondentMahinda Rajapakse speaking in support of the candidature of the 1st respondentSarathchandra Muttetuwegama for the Kalawana seat in Parliament made twostatements imputing immoral conduct with women in his room at Sravasti on the partof the petitioner Lionel de S. A. Gunesekera who was the opposing candidate. The 1strespondent won the election and the petitioner filed an election petition seeking to havethe election avoided on several grounds. Among these grounds was the allegation ofthe commission of the corrupt practice of publishing false statements in relation to thepetitioner’s personal character and conduct by the 2nd respondent with the knowledgeand consent or as agent of the 1st respondent at the aforesaid meetings of
31.12.1980 and 2.1.1981 and within the meaning of section 58 (1) (d) read withsection 77(c) of the Ceylon (Parliamentary Elections) Order in Council, 1946(paragraphs 4 and 5 of the petition).
The Election Judge found that the above mentioned charge of publishing falsestatements had been proved and declared the election of the 1 st respondent void. Theother charges were held not to have been proved. The respondents lodged separateappeals to the Supreme Court.
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With his petition, the petitioner filed his own affidavit but the averments in the affidavit inregard to the false statements the 2nd respondent was alleged to have made werebased on what he had heard off a tape recording (not produced) of 2nd respondent sspeeches. Yet he declared in his affidavit that the averments therein were on the basisof his knowledge. The petitioner denied the accusations of immoral conduct withwomen at Sravasti. The respondents gave no evidence but the evidence was thatthe petitioner was living in oDen adultery with one Manel Wijesinghe having seducedher when she was a minor on the promise of marrying her. He was married to NandaFernando whom he had kept as his mistress prior to marriage. He had fourteen children- seven by each of these women and had made false declarations in respect of the birthregistration of every one of his fourteen children. More women voters than men visitedhim in Colombo because he was ‘very young” He served a three year term of rigorousimprisonment for bribery but now attributes the conviction to his counsel being a Tamiland not understanding his instructions. He had made false statements as to his date ofbirth in the Book of Parliament and falsely denied his presence in Parliament in order toexplain his failure to attend at voting time at a crucial debate.
Held-
The Supreme Court cannot review a finding of fact by the Election Judge unless aquestion of law is involved or the finding itself is in a legal sense a question of law assection 82(A)(1) of the Ceylon (Parliamentary Elections) Order in Council. 1946,provides an appeal only on any question of law but not on any question of fact.Inferences from primary facts may themselves be findings of fact. But inferences fromprimary facts may also be inferences of law in their application to mixed questions of lawand fact. The decision of an Election Court as to the legal effect of a question of mixedfact and law is reviewable. The Supreme Court in appeal under section 82A of the Orderin Council will interfere with conclusions of facts only if it is shown either that theElection Judge had erred in law or reached a conclusion on the facts which it finds noreasonable person applying the law could have reached.
Under Section 58 (1) (d) read with section 77 (c) of the Ceylon (ParliamentaryElections) Order in Council, 1946, to invalidate the election the petitioner must prove –
that there has been a making or publishing before or during the election time bythe winning candidate or his agent of a statement of fact.
that the statement of fact is false.
that the statement is in relation to the personal character or conduct of thepetitioner.
that this has been made for the purpose of affecting his return.
What is objectionable is not adverse criticism however severe, however undignified orill-mannered, however regrettable, not an expression of opinion however unfounded orunjustified but a false statement of fact. The attack must be on the person beneath thepolitician – his personal character, integrity and veracity.
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Charges of corrupt practice being quasi-criminal in character must be sufficientlyclear and precise and proved conclusively by the petitioner. The burden of proof is onthe petitioner and the standard of proof must be proof beyond reasonable doubt If anyreasonable doubt arises in respect of any of the ingredients of the charge the benefitthereof should go to the person charged. This is because of the penal consequenceswhich follow a finding that a corrupt practice has been committed.
The affidavit which the petitioner filed complies in form with the requirements ofsection 80B (d) of the Order in Council and is bona fide and not fraudulent or dishonestand so long as this is so the petition cannot and should not be dismissed or rejected inlimine on the ground of incorrect or erroneous averments in the affidavit filed in supportof the allegation of corrupt or illegal practice. The Election Judge enters on the exerciseof his jurisdiction on the basis of the averments in the election petition and wherecorrupt or illegal practice is alleged on the footing of the allegations in the petitionsupported by an affidavit which on the face of it conforms to the law. Hence theobjection to the affidavit was rightly overruled.
The Election Judge held as a fact that the 2nd respondent did make the statementhe is alleged to have made at the two election meetings and as this finding cannot bebranded as irrational or perverse or based on no-evidence the finding must be accepted.
On the assumption that the 2nd respondent did make the impugned statements theburden is still on the petitioner to prove beyond reasonable doubt that the statementwas false. The petitioner’s unchallenged denial that he took any women to his room atSravasti for any immoral purpose establishes only that that reason for the 2ndrespondent’s conclusion that the petitioner is a man of immoral character is notwell-founded. The onus of falsifying that conclusion independent of the facts whichimpelled that conclusion, still remained to be discharged by the petitioner
The petitioner’s uncorroborated testimony has not been correctly evaluated in the lightof his proved disregard for truth. The trial Judge stated that the petitioner’s falsehoodswere in relation to unconnected matters but he had failed to appreciate the significanceof these admissions of his falsehoods and the vital bearing they have on the question ofthe petitioner s credibility and character moral and otherwise
If the right question, whether the petitioner had established that the accusation inregard to moral character was false had been posed the Judge would at least haveentertained some reasonable doubt as to the falsity of the allegation. An error of lawexists whenever the conclusion is one to which no court applying the relevant law as tothe burden of proof could have reasonably come. Whether the evidence is in a legalsense sufficient to support a determination of fact is a question of law. Where the trialJudge’s finding has been reached without any consideration whatever of the intrinsicand palpable infirmity in the evidence or without taking into account relevantconsiderations such as the danger of accepting the sole evidence of a witness who hasa record of lying even though in unconnected matters, the appellate court is entitled tohold that the finding is erroneous in law This error of law has vitiated the Judge’sfinding that the impugned statements complained of by the petitioner are false.
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Cases referred to :
G.V. Naidu & Co. v. Commissioner of Income Tax, AIR 1959 SC 359
Mahavithane i- Commissioner of Inland Revenue. (1962) 64N.LR 217, 222.
SubasmghevJayalath, (1966) 69 N.L.R. 121, 126
Edwards v Bairstow, [1955]CE ‘ ALL ER 48, 57.
Collettes Ltd. v. Bank of Ceylon – S.C. Ref. 6/32 (C.A. 325/74 – D C. Colombo73754/M)
Sree Meenakshi Mills Ltd. v. Commissioner of Income Tax. AIR 1957 SC 49.
In re W. (An Infant). [1971] 2 ALL ER 49. 56; [1971] 2 W.L.R. 1011. 1021;[1971] AC 682. 700.
R. v. Maqsud Ali. [1965] 2 ALL ER 464
Satish Kumar v. Election Tribunal. AIR 1963 Rajasthan 15 7
Kobbekaduwa v. Jayewardene, S.C. 3/82. S.C. Minutes of 10.1.82
Marjan v. Burah, (1948) 51 N.L. R. 34. 38.
Muttetuwegama v. Gunasekera et al, S. C. 4/81 -S.C. Minutes of 6.4.82.APPEAL from the judgment of an Election Judge.
Dr. Colvin R. de Silva with Miss Suriya Wickremasinghe. Mrs. M. Muttetuwegama. D.S.Wijesinghe, C. Boange, N. V. de Silva. S. Yusoof and Miss S. de Silva for 2ndrespondent-appellant in S.C. Appeal No. 1/83.
H. L. de Silva. President’s Counsel, with Neville de Jacolyn Seneviratne. K.Shanmugalingam. Sidat Sri Nandalochana. Peter Jayasekera. M. Y. M. Faiz and L. deSilva for 1st respondent-appellant in S.C. Appeal No.2/83
George Candappa. President’s Counsel, with S.C. Crosette Thambiah, WarunaBasnayake. Daya Pelpola and Ronald Perera for petitioner-respondent in both appeals.
Cur.adv.vult.
May 16. 1984.
SHARVANANDA. J.
In the by-election to Parliament held on the 12.1.1981, for theElectoral District of Kalawana, the 1st respondent. SarathchandraMuttetuwegama, was returned as the duly elected Member. The
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petitioner Lionel de Silva Abeyweera Gunasekera contested the seatas an independent candidate and the 1 st respondent as a Member ofthe Communist Party. The petitioner by his petition dated 22.1.81sought to have the said by-election declared void on the grounds setout in paragraphs 4, 5, 6 & 7 of his petition. The ground of generalintimidation contained in paragraph 7 of the petition was abandonedby his Counsel at the commencement of the hearing of the trial.
After trial the Election Judge held that the corrupt practices ofpublication of false statements concerning the personal character andconduct of the petitioner, referred to in paragraphs 4 & 5 of thepetition within the meaning of section 58 (1) (d) read with section 77(c) of the Ceylon (Parliamentary Elections) Order in council 1946,were committed by the 2nd respondent-appellant, MahindaRajapakse, with the knowledge or consent or as the agent of the 1strespondent and accordingly declared the election of the 1strespondent void and that he was not duly elected as Member ofParliament for Kalawana. In respect of the charge of publishing thefalse statement, referred to in paragraph 6 of the petition, the trialJudge has held that it had not been established. The two respondentshave each preferred an appeal to this court from the said Judgment. Inappeal S.C. 1 of 1983, the 2nd respondent who is hereinafterreferred to as the 2nd respondent and in S.C. 2 of 1983 the 1strespondent who is herein referred to as the 1 st respondent are therespective appellants. The petitioner-respondent who is referred toherein as the petitioner is the respondent in both appeals. Bothappeals were taken up together for hearing.
Counsel for the petitioner has relevantly stressed the limited scopeof the appellate jurisdiction of this court when hearing an appeal fromthe determination of an Election Judge. Section 82 (A) (1) of theCeylon (Parliamentary Elections) Order in Council, provides that anappeal to the Supreme Court lies on any question of law, but nototherwise against the determination of an Election Judge undersection 81. This court cannot, therefore, review the finding of fact bya trial Judge unless a question of law is involved in the finding or thefinding itself is, in a legal sense, a question of law.
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An appellate jurisdiction ordinarily embraces the power to reviewnot only conclusions of law but also findings of fact. In such situationsthe appellate court is not restricted to the “no evidence rule” in respectof findings of fact; it has to exercise its jurisdiction as a tribunal ofappeal on matters of fact, as well as on matters of law. It is notprecluded from forming its own independent opinion of the facts, bothin respect of perception and evaluation of facts. Upon an appeal froma judgment where both facts and law are open to appeal, the AppealCourt is bound to pronounce such judgment as in its view ought tohave been pronounced by the court from which the appeal proceeds.In the exercise of the appellate jurisdiction an appellate court may notbe disposed to take a different conclusion on questions of fact unlessit is satisfied that any advantage enjoyed by the trial Judge by reasonof having seen and heard the witnesses could not be sufficient toexplain or justify the trial Judge’s conclusion.
On the other hand the scope of the powers of an appellate courtwhere a right of appeal to the court lies only on a question of law, ismuch more restricted. It is bound by the findings of fact unless theconclusion of fact drawn by the tribunal appealed from is notsupported by any legal evidence or is not rationally possible. If suchplea is established the court may consider whether the conclusion inquestion is not perverse and should not therefore be set’ aside. Videthe judgment of Gajendragadkar, J. in G. V. Naidu & Co., v.Commissioner of Income Tax, (1) cited with approval by our SupremeCourt in Mahawithane v. Commissioner of Inland Revenue (2) andSubasinghe v. Jayalath, (3)
Lord Radcliffe in Edwards v. Bairstow (4) also elucidated the criteriafor identifying errors of law.
“I think that the true position of the court in all these cases can beshortly stated. If a party to a,hearing before commissionersexpresses dissatisfaction with their determination as beingerroneous in point of law, it is for them to state a Case, and in thebody of it to set out the facts that they have found as well as theirdetermination. I do not think that inferences drawn from other factsare incapable of being themselves findings of fact, although there isvalue in the distinction between primary facts and inferences drawnfrom them. When the Case comes before the court, it is its duty toexamine the determination having regard to its knowledge of therelevant law. If the Case contains anything ex facie which is bad in
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law and which bears on the determination, it is, obviously,erroneous in point of law. But, without any such misconceptionappearing ex facie, it may be that the facts found are such that noperson acting judicially and properly instructed as to the relevant lawcould have come to the determination under appeal. In thosecircumstances, too, the court must intervene. It has no option butto assume that there has been some misconception of the law, andthat this has been responsible for the determination. So there, too,there has been an error in point of law.”
Inferences from primary facts may be inferences of law or inferencesof fact. Where a finding is given on a question of fact, based uponinferences from facts, that is not always a question of law. Theproposition that inferences from primary tacts found are matters ofaw-Collettes Ltd., v. Bank of Ceylon (5)—will be correct in itsapplication to mixed cases of law and facts, but not to pure questionsof fact. Inferences from facts would be questions of facts or of lawaccordingly as the point for determination is one of pure fact or ofmixed question of law and fact. Where the point for determination is amixed question of law and fact, while the findings of the election courton the facts found are final, its decision as to the legal effect of thosefindings of proved facts is a question of law which can be reviewed bythis court. Where the finding is one of facts, the fact that it itself is aninference from other basic facts will not alter its character as one offacts. Vide Sree Meenakshi Mills Ltd., v. Commissioner of Income Tax
.
When the legislature has restricted the power of this court to reviewthe decisions of the Election Judge to questions of law, it obviouslyintended to shut out questions of fact from the purview of its appellatejurisdiction and to clothe them with finality. This court is bound andtherefore cannot question the correctness of a finding of fact unless itis not supported by any evidence or if it is unreasonable or perverse.Where there is evidence to support the findings of fact the decision ofthe Election Judge is final even though this court might not, on thematerials, have come to the same conclusion, had an appeal on thefacts been competent and this court had the power to substitute itsown judgment. This court on an appeal under section 82 A of theCeylon (Parliamentary Elections) Order in Council will interfere with theconclusion of facts only if it was shown either that the Election Judgehas erred in law or reached a conclusion on the facts which it findsthat no reasonable person applying the law could have reached.
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In para. 4 of the petition, the petitioner alleged that the 2ndrespondent at a public meeting in support of the 1 st respondent heldon 31.12.80 made the following false statement of fact. (The Englishtranslation of the Sinhala statement is set down as there is nocontroversy about its accuracy) :
“When I was a student in 1960,1 lived in Sravasthi with my fatherLionel Gunasekera also was there in the upstairs. One morning I sawhim bringing a woman to his room. I thought it was his wife. In theevening another woman was brought in. In the morning it was yetanother woman whowentout of the room. Then I knewwhattype ofperson he was. If he comes to your home you will have to protectyour young women. I wonder what will happen to your young girlsand young mothers if this man goes to Parliament.”
In para. 5 of his petition, the petitioner alleged that the 2ndrespondent, at another public meeting held on 2.1.81 also in supportof the 1 st respondent made the following false statement of fact:
” As though it were today I could remember the sixties, when Iwas residing with my father at Sravasthi and attending school.Lionel Gunasekera lived upstairs. One morning I saw Lionel taking awoman into his room. I thought she was his wife. In the evening Isaw him bringing another woman into his room. In the morning itwas a different woman that came out of the room. Then I knew whothe man was and this happened to be his daily routine. Is this thetype of man you intend sending to the Parliament ? The one advice Icould give the voters of Kalawana is, if ever this cad happens tocome canvassing for votes to your home protect your innocent wifeand daughter. It is even difficult for an elderly woman to escape him.If this cad is sent to the Parliament and your wife or daughterhappens to go to him for a’favour what will be the outcome ? I amwarning you in advance.”
In order to bring the case within the ambit of section 58 (1) (d), readwith section 77 (c) of the Ceylon (Parliamentary Elections) Order inCouncil, 1946, as a ground for invalidating the election of the 1strespondent the petitioner must prove firstly, that there has been amaking or publication, before or during the election time, by the 1 strespondent or his agent of a statement of facts, secondly, that thestatement of fact is false , thirdi■. that tne statement is in relation to
SCRa/apakse v Gunasekera (Sharvananda. J)9
the personal character or conduct of the petitioner himself; fourthly,that the statement has been made for the purpose of affecting hisreturn
Adverse criticism, however severe, however undignified orill-mannered, however regrettable it might be, in the interest of purityand decency of public life, in relation to the political views, position,reputation or action of a candidate will not bring it within the mischiefof the section. Political statements not calculated to attack thepersonal character or conduct of any rival candidate do not comewithin the pale of this section. Further what is objectionable is a falsestatement of fact and not a false statement of opinion, howeverunfounded or however unjustified It is only when the person beneaththe politician is sought to be attacked and his personal character,integrity and veracity are challenged and such statement is false, can itbe said that a false statement within the meaning of section 58 (d)has been made. Once it is established that such a statement is made,the question whether there was malice or not is immaterial.
Charges of corrupt practice are quasi-criminal in character and theallegations thereto must be sufficiently clear and precise and must beproved by evidence of a conclusive nature. The burden of proving thealleged corrupt practice is on the petitioner and the allegations mustbe proved beyond reasonable doubt. If any reasonable doubt arises,after the evidence has been scrutinized, in respect of any of theingredients of the charge, the benefit thereof should go to the personcharged. This is because of the penal consequences which flow froma disqualification arising out of a finding that a corrupt practice hasbeen committed. Vide sections 58 (2) and 82 (D) (2) (b) of the Ceylon(Parliamentary Elections) Order in Council. If the evidence adduced isnot sufficient and trustworthy to prove the charge, the case of thepetitioner cannot be said to be proved and the election cannot be setaside on such evidence.
The principal matters in dispute between the parties in this case are(1) whether the second respondent made the aforesaid statementsalleged in paragraphs 4 & 5 of the petition and (2) whether the saidstatements were false. If these questions are answered in theaffirmative, it cannot be seriously contended that the statements weremade in relation to the personal character or conduct of the petitionerfor the purpose of affecting the return of the petitioner.
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The Election Judge has, on an analysis and evaluation of theevidence found that the 2nd respondent did make these twostatements, referred to in paragraphs 4 & 5 of the petition in thecircumstances referred to therein. The cross examination of thepetitioner’s witnesses does not show that it was disputed that the 2ndrespondent did address the meetings held in support of the 1strespondent at Pallegama on 31.12.80 and at Weragama on 2.1.81,in the presence of the 1 st respondent. Proof of the fact that the 2ndrespondent did make the impugned statements consist only of thedirect evidence of P C. Ratnayake, who, in the course of his duties isalleged to have covered both meetings held on 31.12.80 and 2.1.81and of P C. Yapa, who accompanied P.C. Ratnayake. In the course ofhis evidence for the purpose of refreshing his memory in regard to theproceedings of the said two meetings, Ratnayake produced his roughnote-book (P 1) which is really an attendance register which hestated he used to record speeches that tended to provoke breaches ofthe peace or which contained attacks on the character of opposingcandidates. According to P.C. Ratnayake and H.Q.I. Ratnasingham,the latter had instructed P.C. Ratnayake to record in long hand inaddition to the matters referred to in the I.G.P.’s circular (P 4), anystatements made in speeches which constituted an attack on thecharacter of the opposing candidate. Ratnayake said that that waswhy he had recorded in P 1 the speeches of the 2nd respondent on31 12.80 and on 2.1.81 relating to his seeing the petitioner takingdifferent women to his room at Sravasthi. As this was an attack on thepetitioner’s personal character, P.C. Ratnayake had taken it down inP 1 According to him it was his practice to read out to H.Q.I.Ratnasingham the following morning the notes of the speechesentered in P 1 and on this occasion the H.Q.I. had asked him to enterthe character-attack ina sentence in theofficial
tape-recording-information book, which he did. Though in the courseof the trial, the Election Judge had ruled out the production of theentries in the tape-recording-information book as substantive evidenceunder section 35 of the Evidence Ordinance, the book was producedin court for perusal at the instance of the respondents and thewitnesses were cross examined onthat. This
tape-recording-information book in which the entries of the minuteswere made is an official book kept in the custody of the H.Q.I. Thelearned Judge has observed in his judgment, that P.C. Ratnayake hasmade brief notes in the tape-recording-information book that the 2nd
SCRajapakse v Gunasekera (Sharvananda. J.)11
respondent in his speech on 31 12.80 had referred to the ‘ Sravasthiwomen story” and on 2.1.81 that he had made a similar speech.Both counsel for the respondents have quite vehemently and with acertain measure of validity impeached the genuineness of the notebook P 1 and have characterised it as having all the hall marks offabrication
must admit that I was impressed with the criticism levelled byCounsel for the respondents, of the document P1 and of theexplanation given by Hatnayake ; how he came to maintain andpreserve that document and of the entries therein. But fortunately forRatnayake, the H.Q.I. Ratnasingham has testified that in addition tothe instructions contained in P4 he had instructed P C. Ratnayake totake down in long hand character-assassination speeches and that inpursuance of such instructions Ratnayake had come to maintain therough note book P1 and that he got Ratnayake to read out PI to himevery morning following a meeting which P C. Ratnayake had coveredthe previous evening. The Judge after consideration rejected thesuggestion that PI is a fabrication made for the purpose of this caseand has held that it is a genuine rough note book used by P.C.Ratnayake to record the notes of speeches of the meetings which hecovered. In respect of the credibility of P C. Ratnayake, the Judge hadobserved-
” P C. Ratnayake was cross examined at length and was recalledtwice into the witness box. He stood up to the test of crossexamination by Counsel for the respondents confidently and hisevidence stands unshaken and firm as a rock. I am satisfied beyondreasonable doubt that he speaks the truth in regard to the statementmade by 2nd respondent in the course of his speech on the31.12.30 and on 2.1.81 even though that evidence stands alone ”
The learned Judge has also accepted the evidence of H.Q.I.Ratnasingham and has stated that-
“ His evdence corroborates both P.CC. Ratnayake and Yapa inregard to the existence of P1 during the course of the election.”
He has also accepted the evidence of P.C. Yapa who stated inevidence that he accompanied Ratnayake to the meeting on31 12.80 refered to by Ratnayake and that he was able to recollectthat the 2nd re;pondent spoke of the petitioner bringing women toSravasthi, at the said meeting. He has characterised the evidence of
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Yapa as that of a truthful witness and that it supports the evidence otP C. Ratnayake. On the basis of the evidence of P C. Ratnayake andthe entries in the document P1 the trial Judge has concluded that 2ndrespondent did make the two statements referred to in paragraphs 4& 5 of the petition. It is to be noted that neither of the respondents gotinto the witness box to contradict the evidence of P C. Ratnayake.Counsel for the respondents have attacked this finding and haveinvited this court to reject the evidence of Ratnayake and to hold thatthe document P1 is a document fabricated for the purpose of this case.
As I stated earlier, in appeals against the decision of an ElectionJudge, this court does not sit as a court of appeal on facts and will notinterfere with the findings given by the Election Judge on aconsideration of the evidence, unless it is perverse or irrational orbased on no evidence. A critical study of the evidence tends tosupport the Judge’s conclusion that the 2nd respondent did make thetwo impugned statements. On the evidence placed before court theJudge was entitled to come to that conclusion and it cannot certainlybe branded as irrational or perverse or founded on “no-evidence” Itmay be, had this court been vested with the plenitude of appellatejurisdiction, both in respect of questions of law and of fact, that itmight have on its own perception and evaluation of the evidence cometo a different conclusion and reversed the finding of the ElectionJudge. Hamstrung as it is by the provision that its appellate jurisdictionis limited to questions of law only, this court cannot substitute itsfinding of facts for that of the Election Judge and reverse it as long asit is neither irrational nor perverse having regard to the evidence pacedbefore him His conclusion is based on the evidence on record and onthe credibility of witnesses and is one which a judicial mina couldreasonably come to ; hence that finding has to be treated as final. Allthat very persuasive arguments of counsel for the respondentswould tend to show is that one can perfectly reasonably come to theopposite conclusion on the material before court. But that will notsuffice to justify this court reversing the finding of the Elecion Judge.What Lord Hailsham said in re W. (an Infant) (7) is apposite in thiscontext :
” Two reasonable (persons) can perfectly reasonably come toopposite conclusions on the same set of facts without torefeitingtheir title to be regarded as reasonable …. Not every reasonableexercise of judgment is right and not every mistaten exercise ofjudgment is unreasonable.”
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SCRajapakse v Gunasekera (Sharvananda. J )
Hence on the assumption that the 2nd respondent did make theimpugned statement, I shall proceed to consider the next relevantqueston whether the statement made by the 2nd respondent was afalse statement in relation to the character of the petitioner.
It was submitted by Counsel for the respondents that the trial Judgehad erred in law in holding that the affidavit of the petitioner (1R5)accompanying his petition that was filed by way of complying withsection 80 B (d) of the Ceylon (Parliamentary Elections) Order inCouncil. 1946, was in conformity with the law notwithstanding theadmission by the petitioner, in the course of his evidence, that he hadno personal knowledge of what was spoken at the meetings at whichthe impugned statements were made.
Section 80 B (d) mandates that -“ An Election Petition shall set out full particulars of any corrupt or
illegal practice that the petitioner allegesand shall also be
accompanied by an affidavit in the prescribed form in support of theallegation of such corrupt and illegal practice and the date and placeof the commission of such practice ”
Admittedly no form has been prescribed by the legislature. Though theaffidavit that accompanies the petition need not be that of thepetitioner, in this case it is that of the petitioner himself. In paragraphs5 & 6 of that affidavit the petitioner states, with reference to thealleged false statements made by the 2nd respondent “lampersonally aware that the said false statement was made by the 2ndrespondent in a public meeting held in support of the 1st respondent.”In the course of the trial while the petitioner was giving evidence hestated n answer to questions put in cross examination as follows :
“Q. You said you were not present at the meetings held inPalakada. Weragama and Wewelkada ?
A Yes
O Were you personally aware of your own knowledge of thealleged false statements made at the meetings at Weragamaand Wewelkada ?
A No
Q (Shown 1R5) In the second portion of the 6th paragraph, youhave said ” I am personally aware” That is not true ?
I listened to what they had tape-recorded.
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O You were personally not present at the meeting ?
A No
Q Whose tape recording was it that you listened to ?
A Mr Pilapitiya’sQ He played it back to you ?
A Yes
Q When did you listen to the tapes ?
A Before filing this petition.
Q Is that tape available with Mr. Pilapitiya ?
A That was with him but now his children had erased it.
In view of the petitioner’s answers set out, counsel for therespondents contended that the petitioner had in fact sworn a falseaffidavit, in that, what he has deposed to as being “personally awareof” was what he had heard or gathered from the play back of thetape-recording of the two impugned statements made by the 2ndrespondent and not from personally listening to the 2nd respondent’sspeeches at the said meetings. According to counsel, they were allhearsay evidence. Counsel submitted that the petitioner, in thecircumstances, should not have testified in his affidavit that he waspersonally aware that the statements were made by the 2ndrespondent, but should have stated that he believed that the 2ndrespondent did make the impugned statements at the said meetingand should have disclosed the source of his information. Hecontended that the affidavit was based on hearsay and that thepetitioner had misrepresented to court that he was personally awareof the alleged facts when he had heard of them only and hance therelevant averments are incorrect and untruthful. Mr. H. L. de Silva,referred to Section 181 of the Civil Procedure Code which orovidesthat –
“Affidavits shall be confined to the statement of such fa:ts as thedeclarant is able from his own knowledge and observatioi to testifyto, except on interlocutory applications, in which statement of hisbelief may be admitted, provided that reasonable grounds for suchbelief be set forth in the affidavit.”
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15
He urged that the petitioner’s affidavit is not an affidavit in terms ofthis section. The burden of counsel’s argument was that an untruthfulaffidavit is a nullity and cannot serve any legal purpose and henceshould be rejected and disregarded. Counsel urged that the legalconsequences of a rejection of the petitioner’s affidavit would be thatin law, the petition of the petitioner was not accompanied by theaffidavit contemplated by section 80 B (d) of the Ceylon(Parliamentary Elections) Order in Council and that there was noproper petition under section 80 B for the Court to proceed with.
The Election Judge has held that the petitioner’s affidavit had beenmade m that form, bona fide. He has accepted the petitioner’sexplanation that he affirmed to the relevant averments in his affidavit,as of his own knowledge, because he heard the play-back of Mr.Pilapitiya’s tape of the 2nd respondent’s speeches. It was notdisputed that Mr. Pilapitiya had got the 2nd respondent’s speechestape-recorded, though these tapes were not produced in evidence(according to the petitioner these tapes had not been preserved). Thepetitioner was cross examined on the basis that Mr. Pilapitiya had infact got 2nd respondent’s relevant speeches tape-recorded. Atape-recording is admissible in evidence provided the accuracy of therecording can be proved and the voices recorded properlyidentified – R. v. Maqsud AH (8).
I agree with the Election Judge that the affidavit 1R5, upon the faceof it complies, in form, with the requirements of the law and that it wasmade in that form bona fide by the petitioner. Since the petitioner hadheard the tape-recorded speech of the 2nd respondent, he had bonafide assumed that he would be justified in swearing that he hadpersonally heard the 2nd respondent’s speeches. It is quite apparentthat he had not fraudulently or dishonestly stated in his affidavit 1R5that he was personally aware that the 2nd respondent made theimpugned statements when in fact he had only heard them by listeningto the tape-record of the speeches of the 2nd respondent.
When an affidavit is filed along with the petition in terms of section80 B (d), the only question that arises thereon is whether thedocument that purports to be an affidavit is in form an affidavitsupporting the allegations of the corrupt or illegal practice complainedof The court is nott?ij*d upon to make any order to the prejudice ofthe respondent, on theTiasis of the prima facie evidence furnished bythe affidavit nor to inquire into the truth of the averments in the
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affidavit before taking the further steps on the petition. The affidavitfiled in terms of the section, does not serve as evidence of any factstated therein in coming to any determination on that election petition.
In Sathiakumar v. Election Tribunal (9) the court observed, withreference to the similar obligation under the Indian Representation ofthe Peoples’ Act. 51, to file an affidavit with the Election Petition :
“It is incumbent upon every petitioner filing an election petition tosupport it by an affidavit in the prescribed form in case any corruptpractice was alleged. It appears that the intention of the legislatureto introduce this proviso (that an affidavit should be filed with theelection petition) was to prevent the petitioner filing an electionpetition from making wild allegations about corrupt practices and toimpose on him a reasonable restraint so that if false statementswere made he would be prosecuted for perjury.”
Commenting on section 96 (d) of the Presidential Elections Act, No.
15 of 1981, which similarly requires that the election petition shall beaccompanied by an affidavit in support of the allegation of corruptpractice this court, in the course of the judgment in election petition.Kobbekaduwa v. Jayewardene etal{ 10) observed –
“The function of an affidavit is to verify the facts alleged in thepetition. The affidavit furnishes prima facie evidence of the factsdeposed to in the affidavit. Section 13 of the Oaths and AffirmationsOrdinance (Cap. 17) furnishes the sanction against a false affidavitby making the deponent guilty of the offence of giving falseevidence.”
In my view the only penalty for filing a false affidavit along with anelection petition under section 80 B (d) of the Elections Order inCouncil, 1946, is the punishment prescribed by section 13 of theOaths and Affirmations Ordinance (Cap 17). Such affidavit will notaffect the validity of the election petition. The jurisdiction of theElection Court depends on the allegations made in an election petitionwhich ex facie conforms to the requirements of section 80 B of theCeylon (Parliamentary Elections) Order in Council and not upon theallegations which may ultimately be found established. Suchallegations though supported by an affidavits Required by section80 B, may, after the trial be held to be unfounded and in that case thepetition will be dismissed not because the court had no jurisdiction to
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Ra/apakse v Cunasekera (Sharvananda, J )
17
try the election petition, but because the allegations on which it wasbased are found to be untrue Nagalingam, J. observed in Marjan vBurah{ 11)
“As stated by Hukm Chand (1894 Ed. page 240) jurisdiction doesnot depend jpon facts or the actual existence of matters or things,but upon the allegations made concerning them. ”
In my view, unless the evidence led at the trial of the electionpetition discloses that the affidavit was made fraudulently ordishonestly for the purpose of complying with section 80 B (d) anaffidavit of facts supporting the allegation of the corrupt or illegalpractice complained of in the petition satisfies section 80 (B) (d) of theCeylon (Parliamentary Elections) Order in Council, though it maycontain untrue and incorrect averments. An election petition cannotand should not be dismissed or rejected in limine on the ground ofincorrect or erroneous averments made in the affidavit filed in supportof the allegations of corrupt or illegal practice The Election Judgeenters on the exercise of his jurisdiction on the basis of the avermentsin the election petition and where corrupt or illegal practice is theground of the petition, on the footing of the allegation in the petitionsupported by an affidavit which on the face of it conforms to the law. Iagree with the Judge in overruling the objection to the affidavit filed bythe petitioner in this case.
It is not necessary on the facts of this case to decide the otherquestion canvassed by Counsel whether the term “Affidavit” referredto in section 80 (B) (d) of the Ceylon (Parliamentary Elections) Order inCouncil, covers only an affidavit deposed to from the declarant’s ownknowledge or includes an affidavit deposed to from information andbelief of the deponent. Since the affidavit 1R5 is on the face of it anaffidavit of personal knowledge, the question does not arise fordecision I reserve the resolution of the question to a more appropriatecase where the decision turns on that issue.
It was vehemently contested that the statement made by the 2ndrespondent and referred to in paragraphs 4 & 5 of the petition havenot been proved beyond reasonable doubt to be a false statement andthat the Judge had erred in holding that it has been proved to be falsem relation to the personal character or conduct of the petitioner.
To avoid an election on the ground of corrupt practice, undersection 58 (1) (d) ofi^jpe Ceylon (Parliamentary Elections) Order inCouncil read with section 77 (c). the petitioner has to establish the
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falsity of the 2nd respondent’s statement of fact conclusively. Theevidence must be such as to bring the charge home to the 2ndrespondent beyond all reasonable doubt. Therefore if the evidenceadduced is not sufficient and trustworthy to establish the element offalsity, the case for the petitioner cannot be said to be proved and theelection cannot be set aside on such evidence. Even though theallegation made by the petitioner involves in a sense the proof of anegative, viz., that the statement made by the 2nd respondent is nottruthful, the legal burden of proving it beyond reasonable doubt stillrests on the petitioner.
Though the statements made by the 2nd respondent and set out inparagraphs 4 & 5 of the petition charged the petitioner –
That the petitioner took a woman one morning to his room at
Sravasthi, who the 2nd respondent thought was his wife
That in the evening another woman was brought in and,
Then in the morning it was yet another woman who went out of
the room,
the underlying allegation is that the petitioner is a man of immoralcharacter in relation to women. The three allegations of fact referredto in paragraphs 4 & 5 of the petition only form the basis for 2ndrespondent’s conclusion and allegation that the petitioner is a man ofimmoral character. A bench of five Judges of the Supreme Court inthis very case held on an earlier appeal on the question of sufficiencyof security for costs, in respect of the number of charges contained inparagraphs 4 and 5 of the petition that –
“There is only one charge in each of the paragraphs 4 & 5 of thepetition. The allegation that women were seen either going into orcoming out of the candidate’s room on three different occasionsconstitutes only the reason for making the statement that the
candidate is a man of immoral characterThey constituted
the particulars of the corrupt practice alleged.”
Muttetuwegama v. Gunasekera et al (12).
In his Judgment the Election Judge states –
“Tne corrupt practice complained of by the petitioner in thepresent case is confined solely to the words uttered by the 2ndrespondent, and mentioned fully in paragraph of the petition. Thestatement the 2nd respondent made is in regard to two incidents
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Rajapakse v Gunasekera (Sharvananda. J)
19
occurring in one day and another in the following morning. Thepetitioner has denied on affirmation that he took any women to hisroom for an immoral purpose on any day and has thereby denied intoto the truth of the 2nd respondent’s statement made at themeetings of 31.12.80 and 2.1.81 Not one suggestion was put tothe petitioner challenging his denial of these three incidents, namely,that the 2nd respondent has seen him taking women to his room inthe morning, again another woman in the evening and finally twodifferent women coming out of his room the following morning” andhe concluded that “the false statement therefore of the 2ndrespondent of the two visits of different women on any day to thepetitioner’s room and third woman emerging from his room thefollowing morning remains unchallenged.”
Both counsel for the respondents have legitimately urged that the trialJudge has failed to identify correctly the false statement that formedthe substratum of the charge of corrupt practice preferred by thepetitioner. They rightly pointed out that the Judge has not referred tothe elucidation given by the Supreme Court in this matter on the earlierappeal and referred to above and that the Judge has further erred inlaw in assuming that, in order to establish that the 2nd respondent’sstatement was false, it would be sufficient for the petitioner to provethat the three incidents referred to in the statement did not take place.The petitioner’s denial on oath that he took any women to his room atSravasthi for any immoral purpose and such denial remainingunchallenged, only established that the reason for 2nd respondent’sconclusion that the petitioner is a man of immoral character was notwell-founded. The onus of falsifying that conclusion, independent ofthe facts which impelled that conclusion, still remained to bedischarged by the petitioner. Ordinarily in the case of a candidate whohas led a chaste life or whose moral character is beyond question andfree from any taint, denial by him on oath will be sufficient to dischargethe burden of showing that the allegation of immoral character is false.Where the denial on oath by the candidate affected is allowed by therespondent to remain unchallenged or where the assertion of falsity ofthe statement complained of remains unshaken in cross examinationwhether it be by general impeachment of the credit of the candidate orby refutation which will erode his credibility or belie his denial, thenthere is sufficient proof of the falsity. But a denial on oath will not besufficient in the case of a candidate who has had an ignominious orquestionable past which will not bear examination. Other cogent and
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positive evidence of regeneration and of having turned a new leafbesides the petitioner’s denial will be necessary to rebut the allegationof immoral character against him. Unless there is fairly convincingevidence of reformation the claim of a person with an unenviablerecord, to a title to good character has to be examined with caution. Ifadded to past transgressions of the moral code, the candidate hasshown himself wanting in integrity and truthfulness, his credibilityrequires much more than his sworn testimony to commend itself foracceptance in a court of law Reasonable doubt will militate againstaccepting his uncorroborated testimony. Unfortunately for thepetitioner, he has been shown to be a man of the latter category andhence the respondents are entitled to contend that the court was notjustified in acting on the sole evidence of the petitioner,unsupported by any other evidence in substantiation of any allegationmade by him. They say that his past record of proved falsehood reflectslow credibility that should generate at least reasonable doubtrespecting the trustworthiness of his testimony. In my view, there issubstance in their complaint that the trial Judge has completely failedto correctly evaluate the petitioner’s evidence in the light of his proveddisregard of truth. True, ordinarily the assessment and evaluation ofevidence and credibility of witnesses is the province of the trial Judge ,but where the trial Judge’s finding has been reached without anyconsideration whatever of the intrinsic and palpable infirmity in theevidence or without taking into account relevant considerations suchas the danger of accepting the sole evidence of a witness who has arecord of lying even though in unconnected matters, the appellatecourt is entitled to hold that the finding is erroneous in law. An error oflaw exists whenever the conclusion is one to which no court applyingthe relevant law as to burden of proof could have reasonably come ;whether the evidence is in the legal sense, sufficient to support adetermination of fact is a question of law – vide (Collettes Ltd. v.Bank of Ceylon (supra))
With reference to his character and to his credibility, the followingfacts have been admitted by the petitioner in cross-examination :
When he was about twenty years old and a student in 1951 hestarted keeping one Nanda Fernando as his mistress. He hadbeen boarded at her parent’s house when the intimacycommenced. He thereafter kept her as his mistress and tookher to his home and told his mother falsely that he was marriedto her. He has seven children by her.
Rajapakse v. Gunasekera (Sharvananda. J.)
21
SC
In 1961 he seduced one Manel Abeysinghe, who was a minor,on the promise of marrying her. When Manel was sevenmonths pregnant, he married Nanda. The explanation he gaveis that he did not wish to jeopardise the chances of marriage ofhis daughters by Nanda. In spite of his marriage to Nanda, hecontinued to keep Manel as his mistress and has seven childrenby her. According to his affidavit 1R6 he did not disclose hisassociation with Nanda to Manel when he seduced the latterthough he said earlier in evidence, before he was confrontedwith the affidavit, that Manel was aware of his association withNanda and that he had children by her. He is now living in openadultery with Manel Abeysinghe.
As a Member of Parliament he had accepted a bribe and hadbeen convicted and was sentenced to three years rigorousimprisonment by the Supreme Court.
He made fourteen false declarations that his fourteen childrenwere leaitimate, when they were born illegitimate – vide theirbirth certificates.
The petitioner falsely sought to lay the blame for his convictionon his counsel who he said was a Tamil and did not understandhim. This is clearly a false excuse because the petitioner couldconverse in English and gave his evidence in English and wouldhave had no difficulty in giving his instructions.
The petitioner while in jail was sent to the Mental Hospital atAngoda. He was either actually of unsound mind orsuccessfully had malingered the mental condition to avoid therigours of prison life. His facile explanation was that he wassentto Angoda to relax.
With regard to his conduct in Parliament when he was an SLFPMember, on 3.12.1964 when the debate on the ThroneSpeech leading to the defeat of the government took place : hefalsely denied his presence in the House and said he was atRatnapura on that day in connection with a case in which hewas a witness. The Minutes of the House .showed that he waspresent. He falsely said that he was absent in order to avoidanswering the question why he was not present at voting time.
The Judge has held that petitioner’s version that he was held upat Ratnapura in a case is not true.
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Even in the Ratnapura case in which the petitioner said that hewas a witness, he admitted he was not a witness but was thedefendant having been sued for the recovery of Rs. 6,000 givento him by one Jaineris to obtain a crown land.
When his date of birth was 19.4.30 he had given his date ofbirth in his son’s birth certificate as 18.4.33.
In the Book of Parliament, his date of birth appears as19.4.1933 though he says that he gave the year as 1930.
The Judge has dismissed these admissions in the judgment with theobservation – “several falsehoods uttered by him in documentsrelating to unconnected matters were elicited from him undercross-examination and his credibility was sought to be assailed.” Thisobservation shows that the judge has failed to appreciate thesignificance of these admissions of his falsehoods. These all have a vitabearing on the question of the petitioner’s credibility and character,moral and otherwise. In this connection petitioner’s answer incross-examination is revealing of his prurient bent
Q. Were there more women voters than men voters who come tosee you in Colombo ?
A. At that time there would have been many women voters whocame to see me because I was very young.
The petitioner’s dishonourable record shows the petitioner in a verypoor light. It depicts him at least to be a man who does not regardhimself bound by rules of conventional morality and who is pre-disposed to lie when it suits him or who does not believe in thesanctity of truth. On the basis of the petitioner’s admissions, therespondents are very relevantly entitled to invite court to hold withthem that there is substance in their accusation that the petitioner is aman of immoral character, and that it is highly unsafe to accept hisbare denial of the allegation and to convict the respondents of thecharge of corrupt practice. The respondents have in my view, veryeffectively challenged the petitioner’s denial on oath and have at leasiraised reasonable doubt about his character in general and his moralcharacter in particular. It has to be remembered that the voters ofKalawana to whom that impugned statement was published are asegment of oriental society which holds conservative views onmorality and which is not disposed to tolerate permissiveness in anymeasure. In that social perspective a person whose life-style consists
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Rajapakse v. Gunasekera (Sharvananda. J.)
23
in cohabiting with a concubine in disregard of canons of conventionalmorality runs the risk, when he is seeking to be their representative inParliament, of the electors being warned that he is a man of immoralcharacter; and he cannot then legitimately complain that he is falselyaccused of being a man of immoral character A Member ofParliament should be an example of good character for people torepose confidence in him.
The Learned Judge appears to be of the view that it was sufficientfor the petitioner to deny on affirmation the allegation that he took anywomen on any day into his room at Sravasthi for immoral purposesand since “not one suggestion was put to the petitioner challenging hisdenial of those incidents, namely that 2nd respondent had seen himtaking one woman to his room in the morning and again another in theevening and finally seen a different woman coming out of the room onthe following morning” he had countered the allegation of immoralcharacter The judge has overlooked the fact that the thrust or gravamenof 2nd respondent’s allegation was that the petitioner is a man ofimmoral character and that the three instances referred to by the 2ndrespondent constituted only the basis for his conclusion regarding thepetitioner’s lack of morality. On the evidence before court, sinceWilliam’s evidence that he had seen the petitioner closeted withwomen at Sravasthi was rightly rejected by him, the Judge wasjustified in holding that there was no proof of those instances. But thatwas not enough. It was still necessary for the petitioner to rebut theallegation that he was a man of immoral character in order todischarge the onus that the law had placed on him to establish thefalsity of the 2nd respondent’s allegation against him. The Judge hasnot asked himself the right question and has not directed his mind tothe principal question involved in the case viz : whether the petitionerhad established to the satisfaction of court that the accusation ofimmoral character was false, beyond reasonable doubt. On the otherhand the Judge had concede a that it was sufficient for the petitionerto establish that there was no truth in the three specific instancesreferred to by the 2nd respondent in order to falsify the impugnedstatements. In my judgement, had the learned judge posed the rightquestion he would have in view of the petitioner’s proneness to liewhen it suited him and in view of his past record cautioned himself”whether it is reasonable to act on the sole and uncorroboratedtestimony of the petitioner that the allegation of immoral character didnot savour of any truth ” and would then have found it difficult to
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answer the poser in the affirmative with confidence ; he would at leasthave entertained some reasonable doubt about the falsity of theallegation.
In failing to address himself to the right questions involved in thecase and in neglecting to apply the proper criteria in evaluating theevidence against the respondents, the Election Judge has misdirectedhimself in law. This error of law has vitiated his finding that theimpugned statements complained of by the petitioner are false.
I therefore set aside the judgment of the Election Judge and allowthe two appeals and quash the determination of the Election Judgeholding that the 1 st respondent’s election is void and that the 1 st and2nd respondents had committed the corrupt practices referred to inparagraphs 4 & 5 of the petition. The petitioner-respondent will paythe 1st respondent viz : the 1st respondent-appellant in appeal S.C. 2of 1983, the costs of his appeal and costs of the trial in the Court ofAppeal and also pay the 2nd respondent viz :2nd
respondent-appellant in appeal S.C. 1 of 1983, the costs of his appealonly.
WANASUNDERA, J.-l agree.
WIMALARATNE, J.-l agree.
Appeals allowed.