034-NLR-NLR-V-70-T.-B.-M.-HERATH-Appellant-and-W.-M.-SENAVIRATNE-and-another-Respondents.pdf
Herath v. Senaviratne
145
1967 Present : H. N. G. Fernando, S.P.J., T. S. Fernando, J.,and Abeyesundere, J.T. B. M. HERATH, Appellant, and W. M. SENAVIRATNEand another, Respondents
Election Petition Appeal No. 12 of 1966—Electoral DistrictNo. 47 (Walapane)
Election petition—Corrupt practice—False statements made at an election meeting
concerning the unsuccessful candidate—Police reports in proof of such statements
—.Admissibility in evidence—Evidence Ordinance, sa. 35, 160—Amendment
of particulars—Discretion of Court to allow it—Scope—Election Petition
Rules, Rule 5.
A police officer took down at an election meeting rough notes of thespeeches made at the meeting and subsequently prepared from those notes areport for transmission to the Officer-in-Charge of the Station. After thereport was prepared the rough notes were destroyed.
Held, that the Police report was not admissible in evidence under Section 36of the Evidence Ordinance in proof of statements made by the speakers at themeeting. Such a report is not a “ book, register or record ” within the meaningof that Section.
Wimalasara Banda v. Yalegama (69 N. L. R. 361) followed.
Towards the close of the case for the petitioners-respondents, after some10 dates of trial, Counsel appearing for them moved, in consequence of astatement made by the respondent-appellant during his cross-examination, toamend the particulars by adding a new charge of making a false statementconcerning the character of the opposing candidate. This amendment wasallowed by the Election Judge without appreciating the gravity of theprejudice to the appellant which arose upon his being required to face a newcharge of which he had no warning earlier.
Held, that Rule 5 of the Election Petition Rules which provides thatparticulars may be ordered “ to prevent surprise and unnecessary expense,and to secure a fair and effectual trial ” does not permit the Election Judge toadmit a new particular which is substantially a new charge nevercontemplated in the original petition.
Semble : Leave to amend particulars may be allowed only if it appears uponaffidavit that the failure to furnish the particulars in duo time had been bonafide. In practice the existence of good faith must bo established by affidavit.
ElECTION Petition Appeal No. 12 of 1966—Electoral District No. 47(Walapane).
Colvin R. de Silva, with K. Shinya, Raja Bandaranayake, JayatissaHerath, and Nihal Jayawickreme, for Respondent-Appellant.
Sunil de Silva, in support of the application for a postponement byPetitioners-Respondents.
LXX—7
Cur. adv. will.
1*—H 1010&—(11/67)
146
H. N. G. FERNANDO, S-P.J.—Herath v. Senaviratne
January 16, 1967. H. N. G. Fernando, S.P.J.—
The appellant was elected Member of Parliament for Walapane at theGeneral Election held in March 1965. His election was held to be voidfollowing an election petition on the ground that the appellant and threeother persons, being agents of the appellant, had committed corruptpractices in connection with the election. The corrupt practice in eachcase consisted of the making of false statements of fact in relation to thepersonal character or conduct of the unsuccessful candidate.
The learned Election Judge has stated in his judgment that in the caseof this petition, the petitioners relied only on Police reports in support ofthe charges that the alleged false statements had in fact been made. Thesummary of the evidence relating to the procedure according to whichthese reports were prepared establishes that the practice in the electoratehad been for a police officer to take down at an election meeting roughnotes of the speeches made, and subsequently to prepare from thosenotes a report for transmission to the Offieer-in-Charge of the Station,and that after the report was prepared the rough notes were destroyed.
The learned Election Judge was clearly of opinion that these reportswere admissible in evidence under section 35 of the Evidence Ordinance.I have considered in the Rattota Election Appeal (see S. C. Minutes of20th December 1966)1 the question whether such a report cc is a book,register or record ” within the meaning of section 35, and have therestated my reasons for holding that it is not. Moreover, it is perfectlyclear that in the present case the reports were not used to refresh memory,or to enable a witness to give evidence in terms of section 160 of theEvidence Ordinance. The reports were therefore improperly admitted,and it follows that there was no legal evidence to establish that theseveral statements alleged to have been made had in fact been made bythe appellant and his agents. The findings that corrupt practices hadbeen committed were thus erroneous in law.
In the case of one charge which the learned Election Judge held to beestablished, there was material, other than a Police report, relied uponfor the finding that the appellant had made a false statement of factconcerning the unsuccessful candidate.
In the course of the evidence given by the appellant at the trial he ad-mitted that he had at an election meeting made the following statement:—“ I will prove that Mr. Ramanayake (the opposing candidate) is a Christian.Why did he not vote at the election of a Basnayake Nilame.” Thelearned trial Judge held that this statement was false because he reachedthe conclusion that Mr. Ramanayake was a Buddhist at the time that thestatement was made although he had been the son of a Christian Minister,and had been a Christian until sometime in 1962. The Judge furtherheld that this statement contained an innuendo that Mr. Ramanayakehad been masquerading as a Buddhist, and therefore constituted astatement affecting his character or conduct.
1 (1966) 69 N. L. M. 361 (Wimalasara Banda v. Yalegama).
If. N. G. I*tiRN"ANDO, S.P.J.—ItercUh v. Senamratne14?
In view of the admission by the appellant that he made the allegedstatement, and of the conclusions of the trial Judge as to its falsity andthe innuendo, I propose to assume for present purposes (despite the lack ofthe benefit of argument on behalf of the respondents to this appeal) thatthe improper admission of the relevant Police report does not vitiate thefinding that the statement was in fact made by the appellant.
The Election Petition in this case was filed on 17th April 1965, and theparticulars relating to the charges were furnished on 23rd February 1966.Those particulars did not refer to any alleged statement concerning thequestion whether Mr. Ramanayake was a Christian or a Buddhist. Butapparently with the object of testing the credit and the honour of Mr.Ramanayake at the trial, Counsel for the appellant attempted to showthat Mr. Ramanayake had posed as a Buddhist while in fact being aChristian. This he did by producing the Personal File contained in aGovernment Department in which Mr. Ramanayake had been employed;there was ample material in the file to show that in the year 1962 andearlier Mr. Ramanayake declared himself to be a Christian ; and Counselsucceeded also in proving that Mr. Ramanayake’s father had been aMinister of a Christian religion. Mr. Ramanayake bv his evidenceapparently succeeded in satisfying the learned Election Judge that he hadchanged his religion, and had become a Buddhist after some date in 1962.
Towards the close of the case for the petitioners, after some 10 dates oftrial, Counsel for the petitioners moved on 29th April 1966 to amend theparticulars of alleged false statements by adding the particular that theappellant had made a false statement that Mr. Ramanayake was aChristian. This amendment was allowed by the learned Election Judge,and that is how the charge that this statement had been made came intoissue at the trial. In allowing the amendment the learned Judge referredto Rule 5 of the Election Petition Rules which provides that particularsmay be ordered " to prevent surprise and unnecessary expense, and toensure a fair and effectual trial ”, and he was satisfied that the appellantwould not be prejudiced by the admission of the new particular, which wassubstantially a new charge never contemplated in the original petition.
Counsel for the appellant referred to certain English decisions to theeffect that leave to amend particulars may be allowed only if it appearsupon affidavit that the failure to furnish the particulars in due time hadbeen bona fide, and that in practice the existence of good faith must beestablished by affidavit. In the instant case although Counsel for thepetitioner declared his intention to furnish such an affidavit it was notultimately furnished.
But there is another ground which compels me to hold that the learnedElection Judge wrongly exercised his discretion to allow this amendment.He failed to take account of the fact admitted by Mr. Ramanayake thathe had been a Christian until 1962 and to realise that the question of fact
148
H. X. G. FERNANDO, S.P.J.—Herath v. Senamratne
actually involved was one quite difficult of solution, namely whetherMr. Ramanayake had both ceased to be a Christian sometime in 1962, andalso commenced thereafter to be a Buddhist. Had the appellant andhis advisers been aware in February 1966 (when the particulars werefurnished) or even when the trial commenced on 5th April 1966, that theissue of fact whether Mr. Ramanayake was still a Christian early in March1965 would affect the appellant’s due return and his franchise rights,many inquiries might have been successfully made with a view to estab-lishing the truth of the statement that Mr. Ramanayake was a Christian.Indeed the burden of proving the falsity of that statement lay on thepetitioners in this case, and much might have been done on behalf ofthe appellant in rebuttal of Mr. Ramanayake’s version, if the vitalimportance of the question had been known before the trial commenced.Conscious of the possibility of prejudice to the appellant, the learned Judgeindicated that he would permit the further cross-examination of witnessespreviously called by the petitioners. But the Judge failed to appreciatethe gravity of the prejudice to the appellant which arose upon his beingrequired to face a new charge of which he had no warning until the closingstage of the petitioners’ case. It was one thing for the appellant to hopeto shake the credit of Mr. Ramanayake by an attempt to show that hehad posed as a Buddhist ; it was quite another for the appellant, at therisk of forfeiting his seat in Parliament, to have to substantiate a formerstatement that Mr. Ramanayake had been a Christian.
I am satisfied in the circumstances that the appellant did not have a fairtrial on the new charge, and that the Judge erred in law in admitting thecharge.
For these reasons I would reverse the determination of the ElectionJudge, and hold that the appellant Tikiri Banda Mudiyanselage Herathalias Herath Mudiyanselage Tikiri Banda was duly elected as theMember for Walapane at the election held on 22nd March, 1965. Therespondents to this appeal will pay to the appellant the taxed costs of theappeal and of the trial of the petition. I further direct that the report ofthe Election Judge dated July 29, 1966 and made in terms of section 82 ofthe Ceylon (Parliamentary Elections) Order-in-Council, 1946, should notbe transmitted to the Governor-General.
T. S. Fernando, J.—I agree.
Abeyebundeke, J.—I agree.
Appeal allowed.