021-NLR-NLR-V-33-SILVA-v.-KARALLIADDA.pdf
DRIEBEBG J.—Siloa o. Karalliadda*
86
19S1
Present: Drleberg J.
In the Matter of the Election for the Matale Electoral
District.
SILVA t>. KAR ALLI ADD A.
Electionpetition—Security' forcosts—Insufficiency of amount—Recognizance—
Signature of petitioner—Dismissal of petition—Ceylon (State CouncilElections) Order «». Council, 1931, rules 12 (5), (6), 19 and 21.
Where, in an election petition, security has not been furnished in theright amount, the petition must be dismissed under rule 18 (3) of therules under the Ceylon (State Council Elections) Order in Council, 1931.Rules 19-21 do not apply to such a case.
Where security is given by recognisance, the bond must be signed bythe petitioner as well as the sureties. Where the bond fails to complywith this requirement, the irregularity is fatal and cannot be curedunder rule 21.
T
HIS was an election petition in which the respondent moved that thepetition be dismissed on the following grounds—
that* the security tendered, Rs. 5,000, was insufficient as thepetition contains six specific charges,
(6) that the recognizance was not signed by the petitioner and that itwas not stamped.
H. V. Perera (with him N. E. Weera*ooria)t for the respondent.
Qratiaen, for the petitioner.
August 7, 1931. Driebbrg J.—
The respondent moves that the election petition be dismissed on theground that (he security tendered, Rs. 5,000, is insufficient as the petitioncontains six specific charges. Rule 12 (2) provides a minimum securityof Rs. 5,000 and Rs. 2,000 for each charge in excess of three; the petitionmakes charges of treating, bribery, undue influence, and conveyance ofvoters; in paragraph 3 (d) the petition alleges “ that by reason of generalbribery, treating, intimidation, and other circumstances the majority ofvoters were prevented from voting for the candidates whom they pre-ferred It was, no doubt, intended to allege the offences set out inArticle 74 (a). In my opinion the charges of general bribery, generaltreating, and general intimidation were distinct charges from those ofbribery, treating, and undue influence in regard to ascertained and namedpersons dealt with in Aticles 51, 52, and 53 respectively.
But apart horn this there are the four distinct charges I have mentionedand the bond entered into for Rs. 5,000 is therefore inadequate.
The security required by rule 12 (2) has to be given at the time of thepresentation of the petition or within three days after, and if not so giventhe rule 12 (3) provides that no further proceedings shall be had on thepetition and that the respondent may move for an order directing itsdismissal and payment of the respondent'9 costs. This provision is
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DEIEBERG J.—Silva v. Karalliaddo.
imperative and on this ground alone the petition should be dismissed;rules 19 to 21 do not apply to a case where the petitioner has not furnishedsecurity to the right amount.
The respondent also takes objection to the recognizance not bearing astamp. I was referred by Mr. Perera to the judgment in the NorthernProvince (Eastern Division) Electorate of Ennis A.C.J.* where thisobjection was considered. The one authority referred to in the judgment,
The Windsor Petition 2, dealt with an unstamped promissory note tenderedin evidence. It was admitted by the Judge on the ground that anelection petition was a g« as i-criminal proceeding; section 14 (4) of theStump Act, 1891,3 enacts that except in criminal proceedings an instru-ment not duly stamped shall not “ be given in evidence or be available forany purpose whatever
In the Athlone Petition 4, an objection that a recognizance was notstamped was disallowed “ on the ground that the Court of Common Pleasdoes not require the recognizance to be stamped; it would have beenotherwise had it been the case of a petition to Parliament Under ourStamp Ordinance, schedule B., Part 2, a recognizance in civil proceedingsin the Supreme Court is liable to stamp duty. It should be noted thatthe ruling in the Athlone Petition (supra) was not based on the reasonthat the proceedings were criminal or quasz-criminal but on practice, andin the case of the Windsor Petition (supra) the report does not show forwhat purpose it was sought to use the unstamped promissory note; if itwas used for a collateral purpose, t.e., to prove fraud, its beingunstamped would not matter—Holmes v. Sixsmitk s.
I do not wish to give a decision on this point, as it affects a question ofrevenue, without hearing the Attorney-General and it is not necessary forthe petition must be dismissed on the first ground of objection.
A third objection was that the recognizance was signed by the twosureties and not by the petitioner only. Section 6 (5) of the Parlia-mentary Elections Act, 1868, requires that the recognizance shall “ beentered into by any number of sureties not exceeding four ” and rule 18provides that .there shall “ be one recognizance acknowledged by all thesureties or separate recognizances by one or. more the form given inrule 19 clearly shows that the recognizance is by the sureties only.
In the Kingston-upon-Hull Election Petition6, there were thirteenpetitioners, four of whom entered into a recognizance for £250 each; theamount of the security under section 6 (5) of the statute is £1,000. Itwas held that, though the petitioners could not sign as sureties, eachrecognizance could not be said to be bad on the face of it and invalid butit was of course open to the objection that the party entering into it was ■both principal and surety, and that this objection must be treated as oneto the sufficiency of the sureties under section 8 of the statute and thepetitioners were allowed under section 9 to remove the objection by thedeposit of money.
Buie 12 (1) of the sixth schedule to the Order in Council states thatsecurity for costs, charges, and expenses “ payable by the petitioner shallbe given on behalf of the petitioner ”, and rule 12 (2) provides that the
1 .S. C. Min. of April 3, 1925.*(1869)19 L. T. 530.
1 (0:M. and H).9(1852)7 Ex. 802.
34 and 35 Viet. c. 392.9(1869)19 L. T. 648.
DRIEBERG J.—Silva ®. Karalliadda.
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security “ shall be given in the form in rule 16 set forth, with two* sureties,or by a deposit of money, or partly in one way, or partly in both rule 15provides that there may be one recognizance acknowledged by both thesureties or separate recognizances each acknowledged by one surety asmay be convenient.
It cannot be said that these provisions require that the recognizanceshould be signed by the petitioner except for the form in rule 16. Theform in the English rules expressly provides for signature by the suretiesonly, the bond being conditioned on payment by the petitioner. Theform in our rules is one that has to be signed by the petitioner as well asthe sureties. The word “ said ” in the second paragraph of rule 16cannot refer to persons other than those whose names appear in the firstparagraph as having acknowledged their liability on the recognizance; inview of the form in rule 16, rule 12 (2) must be regarded as requiring thepetitioner to enter into a recognizance with two sureties.
This was the view taken by Ennis A.C.J. in the case of the 1 NorthernProvince (Eastern Division) Electorate (supra) which was under the Orderin Council of 1923 which had the same provisions regarding security asthe new Order in Council. He was of opinion that- this was not a case ofinsufficiency of security which could be cured under rule 21 but that beinga recognizance which was not in compliance with rule 12 (2) the respondentwas entitled to ask that the petition be dismissed.
For this reason and for the failure of the petitioner to furnish a bond forthe right amount I order that the petition be dismissed- and that thepetitioner pay the costs of the respondent.
1 In re thb Bye-Election fob the Northern Province (Eastern Division)
Electorate.
April 3, 1926. Ennis A.C.J.—
This is an objection by the respondent to the recognizance tendered by the peti-tioners on the ground that the sureties are insufficient. This objection is madeunder rule 19 of the Election (Legislative Council) Petition Buies. 1924. At thesame time this is an application by the respondent under rule 12 (3) for an orderdirecting the dismissal of the petition, and for the payment of the respondent's costs,on the ground that, within the time limited by sub-rule 1, security for the paymentof costs had not been given on behalf of the petitioners. The question of thesufficiency of the security has not been gone into, because the other matter was takenas a preliminary issue. It was objected, that the bond had not been stamped, andsecondly, that the recognizance was not in fact a recognizance as the petitioner wasnot a party to it. The question as to whether or not the bond should be stamped isan interesting one, principally because it raises the question as to whether certainbonds in the Criminal Procedure Code, which have hitherto been accepted unstamped,should not be stamped. Mr. Soertsz argued that the recognizance need not bestamped, and he cited The Windsor Case to show that election petition proceedingsare regarded as quasi-criminal, and he drew attention to that case to show that inEngland the Act, which makes the stamping of criminal proceedings unnecessaryapplies. So here we must turn to our own Stamp Ordinance, and it is to be observedthat there is no general exemption of criminal proceedings. Section 4 of the Ordi-nance requires certain instruments mentioned in the schedule chargeable with dutyto be stamped. Section 16 provides that such instruments shall be stamped at orbefore the time of execution. Section 28 provides by whom the duties are payable.Section 35 provides that an insufficiently stamped instrument shall be impounded.Section 36 provides that insufficiently stamped instruments shall not be acted upon.Schedule B, Part I., Article 15 (6) specifies the duties payable on bonds given assecurity for the payment of money. The present recognizance is an undertaking topay the costs and charges of petition in a certain event, and it purports to be arecognizance with sureties. As such it would seem that it should be stamped. 1need not, however, determine this question, because as 1 have said other documentsof a similar nature might also have to be stamped, and before deciding it I should