137-NLR-NLR-V-22-SOYSA-v.-PERERA.pdf
( 464 )
1921
Present; Ennis J.SOYS A v. PERERA.
Order in Council, 1920, s. IS-—Qualification of elected Member of Council—
Ordinarily resident within the constituency for three years.
Section 13 of-the Ceylon (Legislative Council) Order in Council,1920, was as follows: “ No person shall be capable of beingelected a Member of Council …. who has not beenordinarily resident within the area …. for a period ofthree years immediately preceding the date of nomination as acandidate for election.”.
The usual and customary residence of the respondent, who waselected as a Member of Council for Western Province (B) Division*was at Cotta (within the division), and he was nominated as acandidate on March 31. He was absent in England from July*1916, to May, 1919, but he was under no legal obligation to staythere during that period, and was free to return at any time.
Held, that he was ordinarily resident within the area, and that- he was qualified to be a candidate for election.
Actual inhabitancy during every one of the days is not necessary.It is sufficient if the claimant can make out a constructive inhabi-tancy. In order to make out a constructive inhabitancy theremust be an intention of returning after a temporary absence anda power of returning at any time without breach of any legalobligation.
M
R. WALTER DE SOYSA presented an election petition tothe Governor in Executive Council complaining of the undue
election of the Hon. Mr. E. W. Perera for the Western Province (B)Division, on the ground that he had not been ordinarily resident withinthe constituency for a period of three years immediately preceding.
Ennis J. was appointed under section 35 of the order to reporton the petition.
The report sent by Ennis J. was published in the Ceylon Govern-ment Gazette of June 10,1921, and is as follows :—
In the Matter of the Election for the Constituency of the Western 'Province (B) Division holden on April 21, 1921.
James Samuel Walter de Soysa, of Sunnyside, Moratuwa .. Petitioner,
Vs.
Edward Walter Perera Senanayake Wijeratna Jayatilleke, presently
of CottaRespondent.
Whereas an election petition complaining of the undue election ofthe above-named respondent for the Western Province (B) Division,on the ground that the said respondent had not been ordinarily residentwithin the said constituency for a period of three years immediatelypreceding the datejpf his nomination as a candidate for election, waspresented to the Governor in Executive Council on May 6, 1921, by theabove-named petitioner:
1921
( 465 )
And whereas, under and by virtue of the provisions of clause 35 ofthe said Order in Council, the Governor in Executive Council did appoint
the Honourable' Mr. Justice Ennis, a Puisne Justice of the Supreme Soyta «.Court of Ceylon, to inquire into and report on the ground on which Pererathe validity of the said election was brought into question:
And whereas the said Honourable Mr. Justice Ennis has duly heldsuch inquiry as aforesaid and made his report dated May 31, 1921,which is set forth in the schedule to this Notification :
And whereas the Governor in Executive Council has duly consideredthe said report; and decided that no further inquiry is necessary:
Now, therefore, We, Sir William Heqpy Manning, G.C.MG., K.B.E.,
C.B., Governor as aforesaid, do hereby confirm the conclusions arrivedat in the said report, and declare the said Edward Walter Perera Sena,nayake Wijeratna Jayatilleke to have been duly elected to serve asMember for the said Western Province (B) Division.
Given at Colombo, in the said Island of Ceylon, this Sixth day ofJune, in the year of our Lord One thousand Nine hundred and Twenty,one.
By His Excellency’s command,
Graeme Thomson,
Colonial Secretary.
Schedule.
The Commissioner to His Excellency the Governor.
Chief Justice’s Chambers,
Colombo, May 31, 1921.
Sib,—In pursuance of the Commission appointing me to inquire into. and report on the grounds on which the validity of the election of Mr.
W. Perera as Momber of the Legislative Council for the Constituencyof the Western Province (Division B) have been brought in questionby Mr. J. S. W alter de Soysa as set out in the election petition presentedby him, I have the honour to inform Your Excellency that I inquiredinto the matter on May 30 in the presence of Mr. B. W. Bawa, K.C.,and Mr. B. F. de Silva for the petitioner, and Mr. Samarawickreme andMr. Cooray for the respondent.
In the absence of any rules under section 35 of “ The Order inCouncil, 1920,” I adopted the procedure for an ordinary civil trial.
The following issue was framed t—'
Was the respondent ordinarily resident within the area of theWestern Province (B Division) for the period of three yearsimmediately preceding March 31, 1921 ?
Certain other issues proposed by Mr. Samarawickreme for therespondent relating to Mr. Obeyesekere’s claim to be declared elected,in the event of Mr. Perera’s election being declared void, I refused to
– frame, as they were outside the scope of my Commission.
The onus of proof on the issue framed being on the respondent,Mr. Samarawickreme called Mr. E.- W. Perera. After Mr. Perera’sevidence had been taken, Mr. Bawa for the petitioner accepted all the 'facts as stated by Mr. Perera.
I enclose for Your Excellency’s information a transcript of theshorthand notes of Mr. Perera’s evidence.*
35
* Not reproduced.
1921.
Ennis
A-C.J.
Soysa v.Perera
( 466 )
Daring the three years immediately preceding March 31, 1921,Mr. Perera was in England up to May, 1919, and actually lived in Cotta,within the constituency, from May, 1919, to March 31, 1921.
The only question for consideration was whether Mr. Perera'sabsence in England within the three-year period affected his claim tobe elected under the provisions of the Order in Council.
Many cases were cited, but they all related to the right of avoter to vote by being resident within a certain district for a prescribedtime, i.e., cases which would be more appropriate to a considerationof section 24 (e) of the Order in Council, in which the word “ ordinarily ”is not found.
The principles to be applied in such cases were set out in thecase of Fordv. Barnes,1 viz.:—
(а)That actual inhabitancy during every one of the days is not *
necessary.
(б)That it is sufficient if the claimant can make out a constructive
inhabitancy.
(c) That in order to make out a constructive inhabitancy there mustbe an intention of returning after a temporary absence and apower of returning at any time without breach of any legalobligation.
In the case of Whithorn v. Thomas,2 Erie J. said :—
“ The word ‘ residence * comprises in some respects the ordinaryidea attached to home. Sleeping in a place may not be neces-sary at all to constitute a residence there ; the man might beabsent the whole six months, perhaps from illness,, but if hehas all the time the intention to return, and it be occupiedby his wife and family, it might still be his residence.”
I am of opinion that the use of the term “ ordinarily ” found inthe Order in Council to describe the kind of residence necessary toqualify for election does not make these principles any less applicable;It seems rather to point to the necessity for applying them and toindicate that the customary (or ordinary) place of residence is to countnotwithstanding temporary absences.
In this connection the case of Ford v. Hart3 is instructive. Inthat case it appeared that an officer in the Army was in the habit ofalways living with his mother when on leave from his regiment, andhad actually resided there during the entire period qualifying for a vote,but it was held that as he could not return at his own option, but onlywith the permission of his Commanding Officer, he was not entitled tovote.
Looking at the facts of the present case in order to applythese principles, I find that the Perera Walawwa is in Cotta, within theconstituency ; that the respondent has an interest in it tinder a fideicommission, subject to a life interest in favour of his grandmother;that -he has resided there, on and off, from his boyhood; that from 1910he has paid for the upkeep of it and for the maintenance of his grand-mother there; that from September, 1912, to July 2, 1915, he lived inthe Walawwa ; that from July 2,1915, to May, 1919, he was absent inEngland, but was under no legal obligation to stay there during thatperiod, and was free to return at any time; that on his return he wenthome to Cotta and found his belongings there just as he had left them ;and that he has lived there ever since.
* 14 Law Journal Common Pleas 38.
8 29 Law Times 685.
1 53 Law Times 675.
( 467 )
From these foots it would seem that the family-W alawwa wasMr. Perera’s usual and customary residence. I was not impressed bythe argument, addressed to me by Mr. Bawa for the petitioner, thatMr. Perera could not return to the family residence without the per-mission of his grandmother. I am of opinion that he had full libertyto return to the family home, and was expected to so return, withoutany question of permission.
The fact that he had lived there for some years prior to hisdeparture for England, that he left his belongings 'there and returnedto live there, showed that he had an intention to return.
It was further argued that an absence of nearly four yearswas too long to be merely a temporary absence. On this argumentthe observations of Erie J. in Whithorn v. Thomas1 are in point. Mr.Perera is not a married man, but the family Walawwa was clearlyhis home, and he does not appear to have abandoned his intentionof returning to it, or to have done any act indicative of any intentionto set up a home for himself elsewhere. The home at Cotta was opento his return at any time, and he was under no legal obligation to residein England, Mr. Perera’s stay in England was, in the circumstances,but a temporary absence from his customary abiding place, to whichhe was at liberty to return at any time;
The concluding argument addressed to me was that the term“ resident ” was not a technical term, that it was a word adoptedfrom the popular language, and therefore to he interpreted in its ordinarysense, and that in popular language no one would say that a personwho had been absent from a particular locality for over one year out ofthree was ordinarily resident there for three years. This argument was aparaphrase of certain observations in one of the judgments in Whithorn,v. Thomas-1 The original observations were based on the facts of thatcase, where an attempt had been made to obtain the residential qualifi-cation by renting a small closet in the residential area and sleepingthere for a few nights away from home during the period, i.e., shamcircumstances with an absence of any real intention to live in the place,
I gathered that the argument really meant that there must be someperiod of actual occupation, and that the whole term cannot be madeup of constructive residence. In the present case there is an actualresidence in Cotta of nearly two years within the three-year period,so I am unable to see the application of the argument to the facts inthis case. Here there was an actual residence at Cotta for a longperiod immediately before and immediately after the period of absence,an intention to return, and no legal impediment either at Cotta or inLondon to prevent the return. There was nothing sham about theactual residence, and there is a clear case of constructive residence,which, in my opinion, would not be set aside on a “ popular ” construc-tion of the words “ ordinarily resident,” for even such a constructionrecognizes that some absences, e.g., from illness, can be made withoutaffecting the real residence of a person, and the legal, principles merelyenunciate the rules for such a construction.
I would answer the issue in the affirmative, and ha^g the honour
to report accordingly.~
1 have, &c.,
F. M." ENNIS,
Acting Chief Justice,Commissioner.
114 Law Journal Common Pleas 38.
1921.
Ennis
A.C.J,
Soysa v.Perera
1