DIAS J.—Simon Singho v. The Government Agent, W. P.
1946Present : Dias J.SIMON SINGHO, Petitioner, and THE GOVERNMENTAGENT, W. P., et al., Respondents.
Application fob A Wkit of Certiorari or Quo Warranto on theGovernment Agent, W. P.
Writ of mandamus—Petitioner should have personal interest in making appli-cation—Affidavit—Declarant unable to understand English—Jurat isessential—Civil Procedure Code, s. 439.
It is essential in an application, for a writ in the nature of mandamusthat the petitioner should have some personal interest in making it.
The absence of the jurat in an affidavit where the declarant is unableto understand writing in the English language makes the affidavitvalueless and inadmissible.
PPLICATION for a writ of mandamus in respect of the electionof a Village Committee member.
E. W. Perera (with him Dodwell Ooonewardene), for the petitioner.
C. It. Oooneratne, for party noticed 2nd respondent.
Jansze, C.C., for the first respondent (Government Agent).
Cur. adv. vuU.
November 4, 1946. Dias J.—
This matter commenced as an application for a writ of certiorari,mandamus, or quo warranto. When the enquiry began, the petitionerconfined his case to an application for a mandamus.
If the facts of the case are as opened to me at the commencementof the enquiry, the proceedings which took place on May 29, 1946, at theNittambuwa Mixed School for the election of a Village Committee memberfor Ward No. 8 of the Egodapotha Peruwa cannot stand. The evidencecalled on behalf of the petitioner, however, falls far short of what wasattempted to be proved, and the application for the writ cannot suoceed.
On March 30, 1946, the first respondent, the Government Agent ofHie Western Province, acting under section 14 (1) of the Village Com-munities Ordinance (Chapter 198) published the printed notices PIand 1D1 announcing that the general election for this Village Committeewould take place on May 29, 1946.
Nomination day was fixed for April 24. On nomination day, therebeing only one candidate for Ward No. 9, he was duly declared to beelected for that ward. Two nomination papers'—one from a personnamed Henson and another from the second respondent (the successfulcandidate)—wore tendered for Ward No. 8. Petitioner makes nocomplaint as to anything done on nomination day. In accordancewith the notification given in the notices PI and ID1, the election for thisward was to take place at 2.30 p.m., on May 29, at the NittambuwaMixed School.
28—H 10792 (8/68)
DIAS J.—Simon Singho v. The Government Agent, W. P.
Ward No. 8 is thus described in the printed notice :—
“ The northern portion of Nambadaluwa from the Colombo KandyP. W. D. road ”
while Ward No. 9 is stated to be :—
“ The southern portion of Nambadaluwa from the Colombo KandyP. W. I>. road.”
In other words, these two wards lie on opposite sides of the main Colombo-Kandy road, Ward No. 8 to the north and Ward No. 9 to the south,between the Colombo-Kandy road which runs from west to east. WardNo. 8 is also called the “ Horagolla Side ” of Nambadaluwa where thelate Sir Solomon Dias Bandaranaike had his residence—a location whichshould be familiar to every villager of the place. It might not be clearto a non-villager like Henson. The map 1R2 which was produced duringthe enquiry makes the position clear.
The petitioner’s case is nothing less than a charge that the presidingofficer, Mr. Mahatantilla, said to be a “ young and inexperiencedperson ”, was imposed upon by the- Vidane Arachchi and one Weera-singhe, both of whom are kinsmen of the second respondent, with theobject of eliminating Henson the rival candidate, so that the secondrespondent could secure an easy victory at the election.
It is alleged that the Vidane Arachchi and Weerasinghe with thatobject succeeded in persuading Mr. Mahatantilla on election day thatthe two wards No. 8 and 9 had become “ mixed ”, and that Ward No. 9was really Ward No. 8, and that Ward No. 9 was Ward No. 8.
The case for the petitioner is that the result of this conduct was thatthe voters who had come to vote for Henson were “ turned out ” of theplace, whereby the second respondent obtained an overwhelming majorityagainst the single vote which was cast for Henson.
That Henson, who does not reside in this locality, was under a mis-apprehension is quite clear. The evidence shows that on election dayhe was still labouring under this misapprehension, and when the identityof the wards was pointed out to him, he voluntarily left the place, andwith him went a section of his supporters.
I cannot accept the suggestion that they were “ turned out ”. Henson’ssubsequent conduct supports this inference. He despatched the telegramXI to the first respondent seeking an interview on the following day.It was stated that at that interview a certain document was shown toHenson and his proctor. It was asserted that that document had been“ suppressed ” and a new document X9 (called for by the petitioner andproduced from the custody of the first respondent) was “ substituted ”for the document which was shown to Henson and his proctor. NeitherHenson nor his proctor has given evidence to establish this assertionwhich is denied. Jt was also asserted that the document X4 is a falsedocument At the close of the enquiry, counsel unreservedly, thoughbelatedly, withdrew these allegations. Ho also stated that he wasmaking no complaint against the character or integrity of Mr. Mahatan-tilla. He submitted, however, that Mr. Mahatantilla was duped andimposed upon by the Vidane Arachchi and Weerasinghe. The Vidane
DIAS J.—Simon Singho v. The Government Agent, W. P.647
Arachchi has given evidence. Hardly anything adverse to the witnesswas elicited in cross-examination. He oandidly admitted that, beingarelative ofthe second respondent, ho naturally desired his kinsman shouldbe elected in preference to Henson ; but ho denied that anything wasdone by him or anyone else to make either the presiding offioer, Henson,or any other person believe that Ward No. 9 was really Ward No. 8.I accept that evidence.
It is to be observed that it is not Henson who is making this appli-cation, but one J. A. Simon Singho, who states in his affidavit, P2, thathe is a qualified voter for Ward No. 8—a fact about which there appearsto be some doubt. Mr. Henson cannot make' this application for thesimple reason that after the interview with the first respondent, bothhe and his proctor withdrew their objections—see X4.
It was alleged that X4 was a false document, but that allegation waswithdrawn. The documents X9 and X10 and the official minutes onX10 are documents produced by the petitioner and must be regardedas a part of his proof. These documents destroy petitioner’s case. Theyprove that there was no irregularity in the conduct of this election.Mr. Mahatantilla, in his affidavit, 1R1, has sworn to what took place.
In my opinion, 1R1, X9, X10 and XIOc demolish the petitioner’scase.
It is essential in an application of this nature that the petitioner musthave some interest in the matter. Under cross-examination thepetitioner stated quite unequivocally that he was not interested in theelection at all and although he was present and was a voter, he had gonethere merely as a sightseer (“ nikkan ”) and not for the purpose of voting.He stated that the Horagolla people (Ward No. 8) were ordered to stayand when others were told to go away that no Horagolla people left.This is the case for the first respondent. He says that the affidavit P2was never read over and explained to him but that a document in Englishwas produced, that he was taken before a Burgher gentleman andordered to sign it. He denies that he stated in the affidavit that peoplewere sent away without recording their objections. On being asked whyhe personally did not object to the alleged irregularities, the witnessgave a significant answer. He said “ I did not object, because theelection for my ward was to follow ”. He then realised that the electionfor Ward No. 9 could not take place, because the seat was already filled,and said “ My ward*was filled, therefore, I could not vote ”.
If his ward was filled, then his ward was No. 9. If so, what interesthas he in Ward No. 8 ? It is obvious that the petitioner is a man ofstraw who has no personal interest whatever in this matter. For thatreason alone this application should be refused. –
The affidavit of the petitioner on which these proceedings began isvalueless and inadmissible. Section 439 of the Civil Procedure Codeprovides that in cases where the declarant is unable to understandwriting in the English language, the affidavit must be read over andinterpreted to him in his own language “ and the jural shall express thatit was read over or interpreted to him in the presence of the Justice of
WUBYEWARDBNB J.—Mcuahim v. The Controller of Prices.
the Peace or Commissioner, and that he appeared to understand thecontents, and that he made his mark or wrote his signature in the presenceof the Justice of the Peace or Commissioner/'
The affidavit P2 contains no such jurat. The petitioner cannot under-stand writing in the English language. The absence of the jurat in thecase of affidavits sworn to by persons like the petitioner makes theaffidavits valueless—P. v. Ponnasamipulle l. The affidavits P4 and P5are also defective for the same reason.
The application fails and must be dismissed with costs.