011-NLR-NLR-V-54-S.V.KUNASINGHAM-et-al-Petitioners-and-G.G.PONNAMBALAM-Respondent.pdf
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Kunasingham v. Ponnambalam
1952Present: Gunasekara J.
S. V. KUNASINGHAM el dl., Petitioners, and, G. G. PONNAMBALAM, Respondent
Election Petition No. 19—In the Matter of an ApplicationTO AMEND THE PETITION DATED THE 23RD DAY OF JUNE, 1952
Election petition—Amend'ment thereof—Computation of time for presentation ofelection petitions—“ Within 21" days of ”—False declaration as to electionexpenses—Constitutes corrupt practice “ in connection with the election ”—Ceylon (Parliamentary Elections) Order in Council, 1946, ss. 58 (1) (/), 70,77 (c), 83 (2).
Where a particular time is given, from a certain date, within which an actis to be done, the day of the date is to he excluded. Therefore, Section 83 (1)of the Parliamentary Elections Order in Council, 1946, requiring an electionpetition to be presented “ within twenty-one days of ” the date of publication•of the result of the election in the Oovermnent Gazette means within twenty-one■days exclusive of the date of publication.
The corrupt practice, contemplated in Section 58 (1) (/) of the Order inCouncil, of knowingly making a false declaration as to election expenses isa corrupt practice committed “ in connection with the election ” within themeaning of Section 77 (c) and can be the subject-matter of amendment of an■election petition under Section 83 (2).
Where the corrupt practice of knowingly making a false declaration as toelection expenses is alleged, the time limit for presenting the eleetioh petitionis governed by proviso (a) of Section 83 (1). The filing of the return and declara-tions is a separate act done in pursuance or in furtherance of the corruptpractice, and there is nothing in the enactment to require that such act' must bean act that is eiusdem generis with a payment of money.
This was an application for leave to amend an election petition.
C. S. Barr Kumarakulasinghe, with P. Somatilakam, G. T. Samara-wickreme, A. Vythialingam and J. V. C. Nathanielsz, for the petitioners.
H. V. Per era, Q.C., with N. K. Choksy, Q.C., E. B. Wikramanayake, Q.C.,and H. Wanigatunga, for the respondent.
Cur. adv. vult.
GTJNASEKAJRA J.—KJunasingham v. Ronnambalatn
37
August 18, 1952. Gttxasekara J.—
This is an application under section 83 (2) of the Ceylon (ParliamentaryElections) Order in Council, 1946, for leave to amend an election petitionhy the inclusion of an additional ground upon which the election isquestioned. The proposed amendment consists of an allegation that therespondent —•
** was guilty of a corrupt practice under section 58 (1) (/) of theCeylon (Parliamentary Elections) Order in Council, 1946, in thatbeing a candidate and his own election agent he knowingly madedeclarations as to his election expenses required by section 70 of thesaid Order in Council falsely.”
Section 83 (2) provides that an election petition presented in duetime may, for the purpose of questioning the return or the electionupon an allegation of a corrupt or illegal practice, be amended withthe leave of a Judge of the Supreme Court within the time within whichan election petition questioning the return or the election upon thatground may be presented. The respondent objects to the presentapplication on the grounds that the election petition has not beenpresented in due time, that the allegation contained in the proposedamendment is not one upon which the election can be questioned, thatthe application for leave to amend the petition is out of time, and thatthe security that has been deposited in terms of the ParliamentaryElection Petition Rules, 1946, is insufficient to cover an additionalcharge.
Section 83 (1) provides that (subject to certain exceptions) everyelection petition shall be presented within twenty-one days of the date ofpublication of the result of the election in the Government Gazette. Theresult of this election was published in the Gazette of the 2nd June and theelection petition was presented on the 23rd June. It is contended for thepetitioners that in the computation of the 21 days the 2nd June must beexcluded, and the petition has therefore been presented in due time.The argument is that of the relations that can be indicated by the pre-position “ of ” the one indicated here is separation, so that the 21 daysare distinct from the day on which the result of the election is published.It is contended that “ within one day of the date of publication ” wouldnot mean on the day of that date, and so the 21 days too must be 21days exclusive of that day. In support of this common-sense viewMr. Kumarakulasinghe cited cx parte Fallon x, where it was held by a Benchof four Judges that a statute requiring annuity deeds to be enrolled with-in twenty days of the day of execution meant within twenty daysexclusive of the day of execution, and Lord Kenyon C.J. said :
“ It would be straining the words to construe the twenty days allinclusively. Suppose the direction of the Act had been to enrol thememorial within one day after the granting of the annuity, could it bepretended that that meant the same as if it were said, that it shouldbe done on the same day on which the Act was done ? ”
1 {1793) 5 T. JR. 283, 101 E. R. 159.
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G U NASEKARA J.—Kunaaingham v. Ronnambalam
It appears to be assumed in this dictum that “ within 20 days of ”and “ within 20 days after ” the execution mean the same thing.Mr. H. V.Perera contends thatthereasonforthis assumptionis that there isno practical difference between the two expressions where the periodis to be computed with reference to an event that marks a point of time,and not with reference to an appreciable space of time such as a day.He maintains that the use of the word “ of ” has the effect of includingthe first day in the computation of the number of days, though “ after ”has the effect of excluding it. The question in Fallon’s Case, however,was not whether the 20 days did or did not include the moment of execu-tion, but whether they included the day of execution. I am thereforeunable to agree that that case can be distinguished on the ground thatthere is a distinction between the two expressions that is material in thepresent case but which was not material in that case.
Mr. ELumarakulasinghe has also referred to other cases as supportingthe view that for the purpose of computing the length of the prescribedperiod there is no difference between the two expressions. In the localcase of Wickramasooriya v. Appusinho1 Browne A. J. held that “ whentime from, after, or within a certain time of a particular period is allowedto do an act, the first day is excluded. ” In Williams v. Burgess2 thedecision in Fallon’s Case was held to be applicable to the question as tothe meaning of “ within twenty-one days after the execution ”, and it washeld that the number of days must be calculated exclusively of the dayof the execution. Lord Denman, C.J. Said :
“ This point is in fact decided by Ex parte Fallon, the authority ofwhich is not questioned. The statute in that case directed annuitiesto be enrolled within twenty days of the execution : here, warrants ofattorney are to be filed within twenty-one days after the execution.There is no distinction whatever between the two ; and nothing inthe nature of the case to exempt it from the strictness of the ordinaryconventional rule. That case being in point, we should not be justifiedin encouraging any doubt.”
A few years later, in Muss ell v. Ledsam 3 Parke B., said "The usual coursein recent times has been to construe the day exclusively, whenever any-thing was to be done in a certain time after a given event or date. ”Having referred to this dictum, Mathew L.J. held in The Goldsmiths’Company v. The West Metropolitan Mailway 4 that “ the rule is nowwell established that where a particular time is given, from a certaindate, within which an act is to be done, the day of the date is to beexcluded ”. That case was followed in the recent case of Stewart v.Chapman 5 where the expression “ within fourteen days of the commissionof the offence ” occurring in section 21 of the Road Traffic Act, 1930,was construed. Lord Goddard C.J. (with whom Ormerod J. agreed)held that it seemed to him “ entirely to apply to the words of this section ”and that therefore the day of the commission of the offence must be 1 2
1{1895) 1 N. L. R. 178.3 {1845) 14 M. & W. 574.
2(1841) 10 Law J. Rep. (N. S.) Q. B. 10.4 11904] 1 K. B. 1.
6 [1951) 2 K. B. 792.
I
GXTNASEK.ARA J.—Kunasingham v. Ponnambalam
excluded in the computation of the fourteen days. There is thus a con-siderable weight of authority in support of the view for whichMr. ELumarakulasinghe contends; namely, that for the purpose ofcomputing the length of the prescribed period there is no differencebetween a provision that a thing may be done within a certain time “ of ”and a provision that it may be done within a certain time “ after ” agiven event or date, and that in either case the day of the event or thedate must be excluded.
Mr. Perera argued that in the present case the legislature clearlyintended that the day of the publication of the result should be one of thedays on which a petition might be presented, and .that therefore the 21days must include that day ; if that day were excluded, a petition filedon that day would be out of time, as being outside and not within the 21days. I agree that the day of publication is one of the days on whicha petition may be presented, being the first day of the prescribed periodsWhat turns on the question of computation, however, is not whether thatday falls within or outside this period, but whether the period is 2nd Juneto 23rd June, as it would be if the 21 days are computed exclusive of the2nd, or 2nd June to 22nd June, as it would be if they are computedinclusive of that day. The question is not as to when the prescribedperiod begins, but as to when it ends upon a proper computation of it.
Mr. Perera 5s next argument is based on a variation in the language ofsection 83 (1) where it prescribes the time for presenting an electionpetition in certain special circumstances. A petition falling withinproviso (a) or paragraph (ii) of proviso (6) may be presented “ at anytime within twenty-eight days after the date of ” the payment or actreferred to in the respective provisos ; and one falling within paragraph(i) of proviso (b), “ at any time before the expiration of fourteen daysafter the day of the publication in the Government Gazette ” of the noticeas to election expenses. Mr. Perera contends that the use of the word“ after ” in the provisos raises a presumption that the expression “ withintwenty-one days of ” used earlier in the same section does not mean thesame thing as “ within twenty-one days after ”, In support of thisview he relies on the following passage in a judgment in an Indian case 1:“ Cl. (a) uses the words ‘ conceal his presence &c. Cl. (6) uses theexpression ‘ give an account of himself ’. When two distinct words,are used in the same section, the ordinary rule of construction is thatthey do not mean identically the same thing. I therefore do notthink that the two words £ presence 5 and c himself 5 are interchange-able, and that the inability to give an account of himself is the exactequivalent of the omission to explain his presence at a particular timeand place. ”
If there is such a rule of construction as is contended for by Mr. Pererait seems obvious that it must at any rate be subject to the qualificationthat the two words or expressions are reasonably capable ofb eing con-strued to mean two different things. An illustration is provided by the verycase that is cited : for no strain on language is involved in such a con-struction of the words “ presence ” and “ himself ”, or of the expressions“ conceal his presence ” and “ give an account of himself ”. While1 A. I. It. 1928 Allahabad 33, at 37.
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GUNASEKLARA J.—Runasingham v. Ponnambalam
several cases have been cited where “ within so many days of ” has beenheld to mean the same thing as “ within so many days after ”, Mr. Pererahas not been able to cite any case where these two expressions have beenheld to mean two different things. Nor has he contended that in ordinarynsage they do not mean the same thing. I am unable to see that “ withintwenty-one days of” can have a different meaning to “ within twenty-one days after (The question whether it can mean “ within twenty-one days before ” need not be considered.) As regards the presumptionthat Mr. Perera invokes, it is pointed out in Maxwell on Interpretation 1that the presumption of a change of intention from a change of language(of no great weight in the construction of any documents) seems entitledto less weight in the construction of a statute than in any other case,for the variation is sometimes to be accounted for by a mere desire toavoid the repeated use of the same words, sometimes by the circumstancethat the Act has been compiled from different sources, and sometimesby the alterations and additions from various hands which Acts undergoin their progress through Parliament ”, and that it seems legitimate inconstruing a statute “ to take into consideration that it may have been theproduction of many minds and that this may better account for anyvariety of style and phraseology which is found than a desire to convey adifferent intention. ”
In my opinion the day of the date of publication of the result of theelection in the Gazette must be excluded in the computation of the 21 days,and the election petition has therefore been presented in due time.
The grounds upon which an election may be questioned are set out inparagraphs (a) to (e) of section 77, and it is contended for the petitionersthat the allegation that is now made falls within paragraph (c) whichreads :
“ (c) that a corrupt practice or illegal practice was committed in
connection with the election by the candidate or with his knowledge
or consent or by any agent of the candidate. ”
It is provided by section 70 that within thirty-one days after the date ofpublication of the result of an election in the Government Gazette the elec-tion agent of every candidate at that election shall transmit to thereturning officer a return respecting election expenses, and that thereturn shall be verified by declarations made in a prescribed form by thecandidate and his election agent. In terms of section 58 (1) (/) everyperson who, being a candidate or election agent, knowingly makes thedeclaration as to election expenses required by section 70 falsely is guiltyof a corrupt practice. Mr. H. V. Perera contends that such a corruptpractice being necessarily one committed after the publication of theresult of the election cannot be a corrupt practice that was committed“ in connection with the election ”, though it may be said to have beencommitted in reference to the election. His argument, which he baseson the context, is that the corrupt practice must be so connected with theelection as to be a flaw that has already vitiated it at the time when thereturning officer declared the result of the poll: for (he maintains) whatthe election judge is required to do upon proof of the corrupt practice1 Ninth Edition pp. 326-327.
GUNASEKAK A J.—BLunasingham v. Ponnambalam,
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is to declare the election “ to be void ”, and that is nbt the same thing assetting aside what may have been valid originally ; and the other groundsupon which the judge is required to make such an order are all flaws thatvitiated the election before the candidate was declared to be elected.As Mr. Kumarakulasinghe points out, however, this argument is notsupported by the terms of paragraph (d) of section 77, and does not takeinto account an implication contained in other provisions that the groundsare not confined to grounds existing at the time of the declaration of theresult of the poll. Among the grounds specified in paragraph (d) is theappointment as an election agent of a person whom the candidate knewto he disqualified by conviction of a corrupt practice ; but there is nothingin the terms of that paragraph to exclude such an appointment madeafter the election, although under section 59 (4) an election agent maybe appointed before, during or after the election. Section 63 (6), whichprovides that “ where it has been proved to the satisfaction of the electioncourt by a candidate that any payment made by an election agent incontravention of this section was made without the sanction or connivanceof such candidate shall not be void ”, clearly implies that certain pay-ments made after the declaration of the result of the poll may be aground for declaring the election to he void ; for payments made incontravention of the section would be payments of claims sent in to theelection agent more than fourteen days after the day on which the candi-date is declared elected, or other payments made more than twenty-eight days after that day. Again, it is implied in section 75 that a candi-date is liable for his election agent’s error or false statement in the returnor declaration respecting election expenses : for a j'udge is empoweredto relieve him from such liability in the circumstances set out in sub-sections (1) and (3). It does not appear that in respect of these mattersthe candidate incurs any liability unless the corrupt practice or illegalpractice committed by the election agent is regarded as one that fallswithin paragraph (c) of section 77. I am unable to accept Mr. Perera’sconstruction of the words “ in connection with the election ”, and I haveno doubt that the corrupt practice of knowingly making a false declarationas to election expenses is a corrupt practice committed “ in connectionwith the election ” and can be a ground upon which the election maybe declared to be void. I am confirmed in this view by the circumstancethat in the United Kingdom elections have been declared to he voidupon this ground. See, for example, Cheltenham, (1911)1, Berwick-upon-Tweed (1923) z, Oxford Borough (1924) 3.
The next question for decision is whether the application for leave toamend the petition has been made within the time within which an electionpetition questioning the election upon this ground could have been pre-sented. (This application first came up for argument before Gratiaen J.on the 28th July, and upon the hearing being postponed the partiesagreed that any order that might eventually he made should he regardedas having been made on that day.) It is claimed for the petitioners thatthe application has been made within the time prescribed by proviso (a)to section 83 (1) and has therefore been made in due time. In this
1 6 O’ M. <h H. 194.
7 O’ M. <& H. 49.
2 7 O’ M. & H. 1
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GTOSTASETC ABA J.—Ktmaaingham v. Ponnamb a lam
proviso to the rule”, requiring every election petition to be presented'within 21 days of the date of publication of the result in the Government■Gazette, it is enacted that an election petition questioning the electionupon the ground of a corrupt practice and specifically alleging a payment•of money or other act to have been made or done since that date by themember whose election is questioned or his election agent in pursuance<or in furtherance of such corrupt practice may, so far as respects such•corrupt practice, be presented at any time within twenty-eight days afterthe date of such payment or act. The application, which was madeon the 25th July, alleges that “ the respondent, who was his own electionagent, filed his return and declarations respecting election expenseson or about the 3rd July, 1952”. The objection that the applicationis out of time is based on a contention that there is no allegation of apayment made or other act done in pursuance or in furtherance of thecorrupt practice that is alleged. It is also contended that any “ otheract ” alleged must be one that is eiusdem generis with payment of money.Mr. Kumarakulasinghe replies that the act that the proviso requiresto be specifically alleged to have been done in pursuance or in furtherance•of the corrupt practice may be an act that is involved in the corruptpractice itself and need not be a separate and distinct act. He submits,however, that even otherwise the filing of the return and declarationswas a separate act done in pursuance or in furtherance of the corruptpractice of making false declarations that is alleged in the proposedamendment, and that there is nothing in the enactment to require that-the act so done must be an act that is eiusdem generis with a payment ofmoney. I agree with this view, and I hold that the application has beenmade in due time.
The last of the grounds upon which the application is resisted is thatf>he addition of the proposed charge would render insufficient the securityfihat has been given in terms of Rule 12 of the Parliamentary ElectionPetition Rules, 1946, for the payment of all costs, charges and expenses-that may become payable by the petitioners. Under paragraph (1)•of the Rule such security must be given at the time of the presentation ofthe petition or within three days afterwards ; and paragraph (2) provides"that the security shall be to an amount of not less than Rs. 5,000, and■that “ if the number of charges in any petition shall exceed three addi-fional security to an amount of Rs. 2,000 shall be given in respect of■each charge in excess of the first three”.The election petition, which was
presented on the 23rd June, contains three charges, and a sum of Rs. 5,000was deposited as security in respect of those charges on the 25th June.It is contended for the respondent that there is no provision for thegiving of additional security after the expiration of the period of threedays from the presentation of the petition and therefore the petitioncannot, or should not, be amended by the inclusion of a new charge.Mr. Perera points out that the giving of security is a matter offundamental importance, for paragraph (3) of Rule 12 provides that—
“ If security as in this rule provided is not given by the petitioner,no further proceedings shall be had on the petition, and the respondentmay apply to the Judge for an order directing the dismissal of thepetition and for the payment of the respondent’s costs. ”
Somasunderam v. Periyanagam
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Moreover, Rule 12 (2) provides that the security inust be given, by adeposit' of money, and in terras of Rule 13 (1) the money so depositedvests in the Chief Justice. It is pointed out that the respondent wouldbe deprived of the benefit of this provision in respect of any purportedsecurity that is given otherwise than in compliance with the rules.
It is quite clear that there is provision for the amendment of a petitionby the addition of new charges even after the lapse of three days fromthe presentation of the petition, and that there is no limit to the number ofcharges that can be added with the leave of a Judge if the requirements ofsection 83 (1) are satisfied. If Mr. Perera is right in his contention thatthere is no provision for the giving of additional security at that stage ofthe proceedings, it seems to me that the result would be that no securityneed be given in respect of those charges ; and not that the number ofcharges must be limited by the amount of the security deposited inanticipation of new facts coming to light or new offences being committed.It is therefore not necessary to consider whether there is substance in thecontention that additional security cannot be given after the lapse ofthree days from the presentation of the petition.
The application for leave to amend the petition in the manner proposedis allowed. The costs of this application will be costs in the cause.
Application allowed.