138-NLR-NLR-V-44-RANESINGHE-v.-MACK.pdf
526
Ranesinghe v. Mack.
1943
Present: de Kretser J.
RANESINGHE v. MACK.
In the Matter of an Application for a Writ of Mandamuson the Commissioner of the Municipal Council, Galle,
■ No. 439.
Writ of mandamus—^Preparation of Voters’ list—Mistake of enumerator—Failure of applicant to claim inclusion of his name—Municipal Council(Constitution) Ordinance, Cap. 194, s. 23.
Where, in the preparation of Voters’ lists under the Municipal Council(Constitution) Ordinance the name of the applicant had been omittedby a mistake on the part of the enumerators and where the applicanthad failed to make a claim to have his name included in the list beforethe list was duly certified.
. Held, that no mandamus should issue against the Municipal Com-missioner as he had not failed to perform any duty imposed on him bythe Ordinance.
DE KRETSER J.—Ranesinghe v. Mack. __ 527
was an application for a Writ of Mandamus.
J. E."4d. Obeysekere (with him U. A. Jayasundere) for applicant.
E. F. N. Gratiaen for respondent.
Cur adv. wilt.
October 19, 1943. de Rretser J.—
Mr. Obeyesekere intimated that he would not contest the statementsin the affidavit of the respondent, and when, later, he sought to reconcilethat affidavit with the applicant’s I told him they were irreconcilableand invited him to call evidence. He did not accept the suggestion andargued differently. The facts appearing from the two affidavits are asfollows: —
Certain “ enumerators ” were entrusted with the task of preparingthe preliminary lists. They used what the respondent calls “ fieldbooks ” and the applicant “ rough books The enumerator concernedput down the applicant’s name in his rough list with the double quali-fication mark which indicated that he was entitled to be both a voterand a candidate. The applicant states that he saw to this being done.When, however, the enumerator made his fair copy and sent it in heomitted the mark from the applicant’s name as well as from others, aswas discovered later. The lists were then duly exhibited for inspectionafter due notification. The applicant failed to make a claim to havehis name included in the list as qualified to be a candidate and the listwas duly certified. Then on the 26th of August he saw the respondent andasked to be allowed to inspect the list as he intended being a candidatefor election. The omission was then discovered and the respondent,being satisfied that the applicant was entitled to it, put down the doublequalification mark against his name in his presence. Later the same daythe respondent decided that he had no power to alter the list (and it isadmitted he had none) and erased the mark he had inserted and the sameday wrote to the applicant the letter A. The respondent’s affidavit andthe letter make it quite plain that the mark did not exist on the list, andthe enumerator, when called upon to explain, admitted the omission.The applicant’s affidavit to the effect that he did inspect the list at theproper time and that the mark then existed and that he later learnedthat it had been erased by some one and that when he saw the respondentthe latter refused to “ reinsert ” the mark as he had no power to do soare quite incorrect and unworthy of one who aspires to be-a MunicipalCouncillor. The petitioner took no steps till the 20th of September, whenhe signed the petition which was received in the Registry on the 28th ofSeptember, and as a result rule Nisi issued only on the 29th of September.
Section 26 of the Ordinance prescribes the 7th of October as the latestday on which the lists should be certified, and enacts that the list when socertified shall be “ final and conclusive ”. At the present date thereforethe lists are final and conclusive.
Mr. Obeyesekete admitted that the applicant’s failure to avail himselfof the remedy provided by section 23 of the Ordinance was a seriousobjection. He pleaded that the applicant was entitled to believe thatthe enumerator would do his duty in a proper manner. That, however,44/38
528
DE KRETSER J.—Ranesinghe v. Mack.
is no answer to his own omission to be vigilant. He had no right toassume that the enumerator may not have changed his mind for goodreason or that the respondent may not have acted under the provisionsof section 21 (e) before publishing the list.
Mr. Obeysekere sought to find some means of escape in the ruling madein The King v. The Revising Barrister for the Borough of Hanley1 bi^t thefacts of that case are quite different. In that case the Revising Barristerheard certain objections and ordered that certain names should beexpunged, but being unable to write owing to an injury to his hand hehad employed a clerk and the latter had failed to strike out the names.As a result the Revising Barrister handed in to the Town Clerk anincorrect list, not having verified the accuracy of it as he should havedone. As Channell J. said, he performed the judicial part of his workbut omitted by inadvertence to perform the mechanical part. In thesecircumstances the Court issued a Writ of Mandamus as there was noother remedy provided.
In the present case a remedy was provided. Unlike the applicant inthat case, the applicant in this case has neglected to do what the lawallowed and expected him to do. The respondent, unlike the RevisingBarrister in that case, has not omitted to perform any duty imposed onhim by the Ordinance, and the facts closely resemble those in Re TheTown Clerk of Eastbourne ex parte Keay1 where the overseers made amistake in preparing the list and the mistake was discovered only afterthe list had been published after revision. It was there held that nomandamus should issue as the Town Clerk had done his duty. TheJudges in the Hanley case approved of that ruling.
The applicant therefor^ fails, and his affidavit is not only belated buttainted with falsehood. The rule nisi is discharged. The applicant willpay the respondent’s costs.
I note that the enumerator’s explanation does not contain a word ofregret. On the contrary he draws attention to section 23 and says thatthat section exists in order that omissions such as these may be recti-fied. The omissions are so many as to suggest not merely utter incom-petence but corruption. Omissions like these seriously affect civicrights, and while the ultimate responsibility is on the voter that doesnot justify the employment of incompetent persons in preparing thelists.
Rule nisi discharged.
1 11912) 3 K. B. D. 518.
1 86 Law Times 323.