SILVA v. BANDA

043-NLR-NLR-V-28-SILVA-v.-BANDA.pdf


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Present : Garvin and Lyall Grant JJ.
SILVA v. BANDA.246—D. C. Kandy, 32,108.
Buddhist temporalities—Right of a trustee de jure to sue for injunction—
Infamous crime—Ordinance No, 8 of 1905, s, 8,
A de jure trustee may maintain an action for an injunctionagainst persons who unlawfully prevent him from entering uponhis office or who interfere with him in the exercise of the said office.
The word “village’* is not used in section 17 of the BuddhistTemporalities Ordinance in a sense which excludes a town lyingwithin the limits prescribed in the register of godurugam.
A conviction by a Court-Martial in proceedings arising fromthe riots of 1915 does not amount to a conviction for an “ infamouscrime*' within the meaning of section 8 of.the Ordinance.
P
LAINTIFF asserting that he was the duly appointed trustee ofthe Niyagampaya vihare brought this action in the District
Court of Kandy for an injunction restraining the defendants frominterfering with him in the exercise of his office as trustee and also28/19
1926.
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1886.
Silva o.Banda
for a declaration that he is the duly appointed trustee. Thelearned District Judge granted the plaintiff the declaration. andrelief and the defendants appealed therefrom on the followinggrounds: —
That the District Court had no jurisdiction to entertain
this action.
That the plaintiff was not the duly appointed trustee
inasmuch as—
Out of the 248 votes cast for plaintiff as against
defendants 182 votes, 138 votes were not entitledto vote.
The plaintiff was convicted of an infamous crime.
Hayley, for defendant, appellant.—The 138 voters from Gampolatown belonged to the Ramannaya sect. They could not take partin the election of a trustee to a temple of the Siamese sect.'
Further, the 138 voters of Gampola town do not belong to thegodurugam of this temple. The register of godurugam speaksonly of villages in the Gangapahala korale, corresponding nowto villages of Gampola. The town of Gampola is thus excludedfrom the area. Again, section 17 of the Buddhist TemporalitiesOrdinance speaks of residents in the villages to which the templeis attached who may vote.
The District Court had no jurisdiction to entertain the case.Even if the objection was not taken in the lower Court the consentof parties cannot give a Court jurisdiction which it does not otherwisehave_(see In re Aylmer Vansittart v. Taylor 2).
The plaintiff seeks a declaration from Court that he is thetrustee, and it follows that any attempt to oust the de facto trusteeshould be by way of quo warranto. See Application for a Mandamuson the Chairman of the Municipal Council.3 The plaintiff in thisaction in effect proceeds to impeach the election of the firstdefendant, who is the de facto trustee (see Subasmghe v. Ekneligoda 4.)
The plaintiff has been convicted of treason, house-breaking,riotously destroying buildings, and shop-breaking. This woulddisqualify him from being elected. Section 18 of the BuddhistTemporalities Ordinance does not permit people who have beenconvicted of infamous crimes to be appointed trustees.
See Wood Renton’s Encyclopaedia, Vol. VII., p. 149. Infamyis defined as conviction of some crime followed by a judgment.
Drieberg, K.C., with Navaratnam, for plaintiff, respondent.—The wordvillage cannot strictly be interpreted. By implication Gampola townis included in the godurugam of this temple, because Gampola town ispart of the godurugam of Haliyawela vihare and Wanawasa vihare.
1 20 Q. B. D. 258.
i Ellis and Blackburn 910.
318 N. L. R. 91.iiC.W. R. 167.
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The plaintiff alleges he is de jure trustee, and his application in thiscase to be declared the trustee is only incidental to the main applica-tion which is for an injunction against the defendant.
Infamous crime denotes a crime in which there is moral turpitude;thus in 9 Hal. 666 (g) infamous crime is a crime which includessodomy, bestiality, &c.
Hayleyt in reply.
March 25, 1926. Garvin J.—
The plaintiff, who claimed that he was the duly elected trusteeof the Niyagampaya vihare for a period of three years commencingDecember 8, 1924, brought this action to have it declared that heis the duly elected trustee and for an injunction restraining thedefendants from preventing his entering upon the office of trusteeand from interfering with him in the exercise of the said office.
The learned District Judge granted the plaintiff the declarationand relief he claimed, and the defendants appeal. The two maingrounds on which this appeal is supported are that the Court hadno jurisdiction to entertain this action, and, secondly, that theDistrict Judge was wrong in his finding on the facts that theplaintiff had been duly elected trustee of the Niyagampaya vihare.Inasmuch as the respective cases of both parties have been fullystated and investigated it is perhaps as well first to determinethe facts of the case.
The first defendant was the trustee of the Niyagampaya viharefor a period of three years ending December 7, 1924. The otherdefendants were sued as members of the District Committee. Thesixth and seventh defendants have been discharged from the actionand are not parties to this appeal. On December 5, 1924, a meetingof the District Committee was • held for the purpose of electing atrustee for the next period of three years as required by section 17of the Buddhist Temporalities Ordinance, No. 8 of 1905. Theplaintiff claims to have been duly elected at that meeting by amajority of 248 votes to 182 polled by the first defendant. Thedefendants deny that the plaintiff was duly elected. They say that188 votes cast for the plaintiff by the residents of Gampola townwere admitted subject to objection and on the understanding thatthe objections were to be considered when the poll was closed,that the objections were considered and upheld, and the first defend-ant, who in consequence of the rejection of these votes then hadthe majority, was declared duly elected. The plaintiff impeachedthis statement as untrue. His story is that the poll was closed, thevotes were counted in the presence of his lawyer, and that he receivedthe congratulations of his supporters on the result. The crowd
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Silva i>.Banda
who awaited the result of the election thereupon left the scene afterthe usual demonstrations. It was then only that the idea wasconceived of circumventing the election of a Low-country Sinhalese—a result which was a source of much disappointment and annoyanceto many—by challenging the right of the residents of the town ofGampola to vote. If the plaintiff's story be true he must bedeemed to be the duly elected trustee, unless and until his electionis successfully impeached by appropriate proceedings. The result,however distasteful to the minority, cannot be invalidated by theexpedient of entertaining objections to the voters after the election,hearing and upholding those objections in the absence of the voters,and then, on the new basis resulting from the rejection of thesevotes, setting aside the original election and declaring anothercandidate the duly elected trustee.
Which of these two versions is the true one ? This is a purequestion of fact upon which the learned District Judge hasunhesitatingly come to the conclusion that the plaintiff's is thetrue story, and he has given reasons for his decision which appearto me to be both convincing and sufficient.
Section 17 of the Buddhist Temporalities Ordinance declaresthat a trustee shall be elected “ by a majority of the voters residentin the villages to which the temple is attached."
Having established, as he has done, that the majority of the votescast at the election without objection were in his favour the plaintiffis entitled to claim that he is the duly elected trustee unless and untilhis election is successfully impeached, not illegally and in the mannerthe defendants sought to do, but by appropriate legal proceedings.
Now, the grounds on which it is sought to impeach this electionin these proceedings are—
That 188 votes were cast for the plaintiff by persons who
were not entitled to vote—
(а)Because they were adherents of the " Ramannaya
,sect " and not of the Siamese sect.
(б)Because they were residents of Gampola town which
is not within the godurugam of this temple.
That the plaintiff was convicted of an infamous crime and
was not therefore eligible for election (vide section 8).
It is by no means clear by what tests it is to be determinedwhether a Buddhist layman is an adherent of one sect or another.Even so no attempt has .been made to apply these tests to thecase of any individual voter. There is no evidence in this casewhich will justify any court in disfranchising the voters of Gampolatown on the ground that they have been proved to be adherentsof the Ramannaya sect." It is not therefore necessary to consider
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whether it has been established that “ adherents of the Bamannayasect ” are disqualified from voting for the election of a trusteeto a temple of the Siamese sect, and vice veret.
The godurugam of this temple is recorded in the register ofgodurugam as consisting of—
Gampola Gabadagama.
Villages in Ganga Ihala korale.
Villages in Ganga Pahala korale.
Admittedly what is now Gampola town lies within the GangaPahala korale. It is contended that though Gampola town lieswithin the limits of this korale it is a town and not a “ village " andas such is excluded from the area the residents of which are entitledto vote. It will be noticed that section 17 contemplates anelection by the residents in the “ villages ” to which the templeis attached. The word village must, I think, be used in the samesense in the register. But if this somewhat specious contentionis to be accepted the effect of the passing of the BuddhistTemporalities Ordinance was to exclude from participating in suchelections all Buddhists who were residents in town. But it isimpliedly admitted that a town may form part of the godurugamof a temple and that its. inhabitants do enjoy the privilege ofvoting for trustees, for it is urged that Gampola town is part of thegodurugamof Haliyawela vihare and Wanawasa vihare. The
entry in the register that “ villages in the Ganga Pahala korale "are part of the godurugam is not decisive of the question againstthe residents of the town. Indeed it is some evidence that it ispart of the godurugam. There is the further fact that the townresidents regularly supply the priest of Niyagampaya viharewith food. “ It would indeed " says the learned Judge ** besurprising if Gampola, once a royal residence, was not a villagewhich supplied the food of the priests at the great vihare in theKing's personal domain which adjoined. As a matter of factGampola even to-day regularly supplies that food when theNiyagampaya priests go round to ask for it, as they do."
There is no reason to suppose that in the register of godurugamthe word “ village " was used in this instance in a sense whichexcludes a town lying within the limits prescribed.
The last ground on which the plaintiff's claim is resisted isthat he is a person who prior to the election was convicted of aninfamous crime. The fact is that he was convicted by a Court-Martial which sat to try charges proceeding frbm the riots of 1916of treason, riotously destroying buildings, and shop-breaking, andsentenced to death. The sentence was commuted and laterhe was released by order of the Governor. It is a matter of
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Gabvin J.
Silva v.Banda
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1986.
Oabyin J.
Silva v.Banda
common knowledge that the charge of treason was only maintain-able by reason of the special circumstances obtaining at the timethe riots took place.
No authority, however, was cited for the proposition that underthese circumstances the plaintiff must be deemed to have beenconvicted of an “ infamous crime." That expression ordinarilyimplies a crime which involves gross personal immorality and theonly express reference in the books to which counsel could refer usidentifies the expression “ infamous crime " with crimes of thatcharacter. This crime of which the plaintiff was convicted is not“ infamous ” in that sense.
In the result the plaintiff has proved that at the meeting heldfor the purpose on December 5, 1924, he was duly elected trustee,while the defendants have failed in their attempt to impeach thevalidity of his election.
It only remains to consider the plea to the jurisdiction of theCourt. No objection to the jurisdiction was taken in the Courtbelow. In appeal, however, counsel submits that a District Courthad no jurisdiction to entertain an action in which the validityof an election is called in question. He argued that this was ineffect a proceeding to impeach the election of the first defendantwho is the de facto trustee, on the ground of irregularity in theconduct of the election. He relies on the decision in Subasinghe v.Ekneligoda 1 as his authority for this proposition. The soundnessof this decision is challenged by counsel for the respondent. It issufficient for the purpose of this appeal to say that Subasinghe v.Ekneligoda (supra) bears no analogy to this case. The point fordecision in that case was whether the unsuccessful candidate couldmaintain an action in the District Court to impeach the election ofhis successful rival on the ground that the election was irregularlyconducted. It was held that the District Court had no jurisdictionto entertain such an action.
The facts here are entirely different. The plaintiff's actionwas in substance an action for an injunction against persons whowere preventing him from exercising an office to which^he had beenduly elected. He sues as de jure trustee. He has establishedthis claim by proof that he was elected by a majority of the voters.If he failed on this question of fact it might possibly have beenurged that his action failed. But having established his claimhe is entitled to the remedy he seeks. It is the defendants whoare seeking to impeach his election. They have failed. Ifcounsel’s contention is to prevail a de jure trustee may not main-tain an action for an injunction against persons who unlawfullyprevent his entering upon his office or who interfere with himin his exercise of the said office. That he prays also to be declared
14 c. W. R. 167.
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the duly elected trustee is beside the point, The foundationof the action is that he is vested with the right to the office.Whether he held office for a year, for a day, or not at all, because hewas illegally prevented from assuming his office, makes no differencewhere the foundation of the claim to an injunction is that theclaimant is de jure trustee. In each case that has to be established.
It may and often is challenged by the defendants but that cannotdeprive the District Court of jurisdiction if it had jurisdiction togive relief to a de jure trustee.
The simple question is whether a de jure trustee may maintainan action in the District Court for an injunction to restrain personswho interfere with him.
The jurisdiction of District Courts is set out in section 64 ofthe Courts Ordinance. It extends, inter alia, to all civil mattersexcept where any of such matters have been exclusively assignedby way of original jurisdiction to the Supreme Court, or otherwisespecially withdrawn from its cognisance.
The right of a de jure trustee to his office and to exercise thatoffice without illegal interference by others is a civil right, theinfringement of which entitles him to a remedy. It must bepresumed that the District Court in exercise of its general rightto give relief where there has been an infringement of a civil rightis entitled to give the plaintiff the relief he claims unless it can beshown that this case is specially placed outside the limits of itsjurisdiction. Subasinghe v. Ekneligoda (supra) does not help theappellant, and no other authority has been cited in support of thecontention that a case such as this is not within the jurisdictionof a District Court to entertain.
That a de jure trustee may maintain such an action has beenrecognized by this court. In The Trustee of Mutiyangama Vihare v.Bandara the Court entertained an action by a person claimingto be de jure trustee against the former trustee and the incumbentof the vihare to recover the property of the vihare which theywere withholding from him. There as here the answer was adenial that the plaintiff had been duly elected.
If a District Court may entertain an action by a person claimingto be de jure trustee to recover property of the vihare from thetrustee for the previous term who was wrongfully retaining thatproperty on the plea that the plaintiff had not been duly elected,it is difficult to see why in similar circumstances it may not issuean injunction restraining the persons who were illegally interferingwith him in the exercise of his office.
I would therefore affirm the judgment of the District Courtand dismiss the appeal with costs.
Lyall Grant J.—I entirely agree.
1888.
Gabvxk J
Silva v.Banda
Appeal dismissed.