032-NLR-NLR-V-33-TILEKEWARDENE-v.-OBEYSEKERE.pdf
126
Tilekewardene v. Obeyesektre.
1931
Present: M&odonell C.J.
TTLKKKWAET)RXK v. OBKYESEKERE.
In the Matter of an Election Petition for theAvissawella Election.
Election petition—Chargeofillegalpractice—Hiring ofcars—Candidate's
warningto agent—Agent actingoutside theauthority—Liabilityof
candidate—Meaning of word ' knowingly '—Ceylon (State CouncilElections) Order in Council, 1981, s. 64 (2).
Where a candidateforelectioninstructed anagentto borrow cars
from friendsandrelatives,informinghim * at the same time thathe
did not intend to spend money on the hiring of cars as the law did notallow him to do so,—
Held, that the act of the agent in hiring cars and providing them withpetrol was outside the authority given him and that the candidate wasnot responsible for the illegal practice committed by the agent.
Where anagentpays orcontractsfor paymentfor the hiring ofcars
for the conveyance of voters to and from the poll for the purpose ofpromoting or procuring the election of a candidate,—
Held, that- he was guilty of an illegal practice, even though he wasunaware that he was breaking the law.
T
HIS was an election petition presented against the return of therespondent asmemberfor theAvissawellaconstituency atthe
election held on June 20, 1931. The petition alleged that the respondenthimself or through his agent had been guilty of the corrupt practices ofbribery, treating, and of the illegal practice of contracting for paymentfor motor cars for the conveyance of voters to and from the poll.
l>. L. Pereira, K.C. (with him Deranhjagala and Seneviratne)., forrespondent.—Decisions of case law on master and servant are not appli-cable in their entirety to election law. The implication of the phrasemust be sought in the decisions in election cases themselves. Section64 of the Order in Council lays down what is an illegal practice. “ Know-ingly " implies a knowledge of the law and not merely of the facts (EastCork Case 1).
Where agency is limited a principal is not liable for acts of his agentoutside the scope of that limitation (Bodmin Case 2, The Harwich .CaseThe Westbury Case 4t Salmon on Torts 102).
B. F. de Silva (with him E. . B. Wickramanayake), for petitioner,cited section 74, sub-section (b), of the Order in Council.
[Macdonell C.J.—Does not that refer to such acts' as the failureof the returning officer to make a return, or the insufficient number ofpolling booths and things of that kind?]
Not necessarily. It would take in a violation of section 64.Registration expenses must be included in the return (Penryn Case 5).
A candidate is responsible when an act is done by his agent evenwithout his knowlege or consent. Agency is a question of fact. Itmay be createdby acquiescence (Rambukwella v. Silva e). Asamatter
i 6O'M. dsH.aJtpp. 850-352.4 3 O'M. de H. 78.
* 1O'M. do H.117 at p. 119.* I O'M. de H. 131-
3 3O'M. de H.69.4 26 N. L. R. 231 at p.246.
MACDOXELIi C.J.—TiJckewardene v. Obeycschcrc.
127
of fact, Alwis and Bandaranaike were both agents. Agency is definedin The Great Yarmouth Case l. A candidate cannot be allowed to retainthe benefits of an agent's illegal practice. See Aylesbury Case3, BastKerry Case 3, The Harwich Case *. What is sufficient evidence of agencyis laid down in the Wakefield Case 3, Taunton Case 6. Even an agent’sagent can bind the candidate by his acts (Barnstaple Case 7). A candidateis • liable even for the acts of a volunteer agent (Bolton Case *). Thosewho are active on polling day are agents for whose acts the candidate isliable (Tewkesbury Case ®). The Boman-Dutch law has also adoptedthe wider view of the liability of a master for the torts of a servant. Itis now identical with the English law (Estate Vender Byl v. Swampoel10).See also Mkize v. Martens ll.
October 30, 1931. Macdonell C.J.—
The petition' in this case was presented by Senadirage Don DavidTilekewardene, a duly registered voter for the Avissawella ElectionDistrict, against the return of Forester Augustus Obevesekere, respondentto this petition, as member for the Avissawella constituency as theresult of the election held on June 20, 1931. The petition alleges thatthe respondent himself or through agents has been guilty of the corruptpractices of bribery and of treating, and of the illegal practice of makingpayments or contracts for payment for the conveyance of voters to andfrom the poll, and asks that the election be declared void.
There were interlocutory proceedings on this petition before Drieberg J.at the instance of the respondent in one of which he asked for the petitionto be dismissed on the ground of inadequacy of security, this applicationbeing dismissed with costs to be paid at the conclusion of the inquiry,and in the other of which petitioner was required to furnish furtherparticulars with regard to the charge of payment for conveyance ofvoters, costs in this to be in the cause.
The petitioner’s counsel commenced by leading evidence as to .theillegal practice, hiring, alleged against the respondent and later ledevidence as to the corrupt practices alleged, namely, bribery and treating,but in his particulars* as also in the arguments for each side, the corruptpractices alleged, namely, bribery and treating, were dealt with firstand the illegal practice alleged, the hiring, was dealt with last. It willbe convenient in discussing the charges to adopt this order, bribery,treating, hiring, the more as it is the charge of hiring which arises thechief difficulty in this inquiry and requires fullest treatment.
Before "discussing the charges in detail it is necessary to make a fewobservations on the witnesses generally called in support of them. Someof.them had been previously convicted of crimes, which previous con-victions they had to admit. In estimating the credibility of any particularwitness I am influenced very little by the fact of his having been previously.
i 5 O'M. ds H. 175 at p. 1781
4 O'M. dt B. 59.
6 O'M. df H. atp. 68.
< O'M. dsB .61 atp. 70.
8 2 O'M. dt H. 100 atp. 102.
2 O'M. ds H. 73.
2 O'M. df H-105.
2 O'M. df H. 138 at p. 142:
» 3 O'M. H. at p. 99.
(2927) S. A. L. R. (.A.D.) at p. 145.
” (JPJ4) S. A. h. R. (A.D.) 382.
12/33
128
MACDONELL C.J.—-TiUkeioardene e. Obeyesekere.
convicted. A man may break the criminal law, and more than once,without showing that he is really a man of such character as .to make onedoubtful of his credibility. Far more important than previous con-victions in estimating the credibility of a witness is his general recordwith regard to what he has done* and what his manner of life has been.If a witness is on his own admission a man of no fixed occupation, who hasgone from one means of livelihood to another and confesses himself not tobe in regular or steady work, that is a factor in the problem of his credibilitywhich I take into account, as every one must, who has to estimate whether.sworn testimony is to be accepted or not. But previous convictions haveonly a very slight weight with me since the crimes they involve may havebeen temporary slips from virtue.
It was argued for the petitioner that it is impossible to produce aswitnesses on a charge of corrupt practices in an election petition personsof a high character. This is perfectly true, and one does not expect•of such witnesses a high moral or social level, but one does expect of them,ns of witnesses in any other kind of inquiry, that they shall give theimpression that they are honestly trying to speak the truth and thatthey shall produce a story which convinces one’s reason as being probably.a true one. I am bound to say, at the outset, that very few ofthe petitioner’s witnesses satisfied this necessary test, but if one is scepticalof that evidence it is not by reason of any deficiency morally or sociallyin the witnesses but because the stories they told were not in themselvesconvincing. I will now gc> into the charges in detail. [His Lordshipafter discussing the charges of bribery and treating dismissed them.]
These observations dispose of the corrupt practices alleged, namely,“bribery and treating. I have expressed a strong opinion as to the■character of the evidence produced in support- of these charges becauseI am perfectly satisfied that that evidence, with the exception of that ofthe witness L. A. Perera, who after all does not say very much, is falseand perjured. The witnesses impressed me very unfavourably. Neithertheir manner nor their matter was calculated to carry conviction—indeed,one could go a great deal further and say that the matter impressed oneas an impudent invention throughout.
I now have to consider the third charge, that, namely, which allegesxhe illegal practice of paying or contracting to pay for vehicles to-conveyvoters to the poll, what shortly is known as “ hiring To make thischarge intelligible, it will be necessary to tell the story first of all from therespondent’s side since the evidence upon it from the petitioner’s sidegives c. very fragmentary idea of what happened. The respondent saysthat he announced publicly at a meeting that he was not going to spendany money on the provision of vehicles to carry voters to the poll, thelaw would not allow it, and he said further that he relied on his numerousfriends and relations lending him their vehicles for that purpose- Earlyin June he met Mr. Alwis, a near connection by marriage, and told himthe same thing, namely, that he was relying on friends and relations forthe lend of vehicles on polling day. Mr. Alwis who was engaged inworking for Dr. Paul, a candidate for the South Colombo Division, saidthat he could manage this. He himself was getting the lend of vehicles•from his friends and relations for Dr. Paul for the South Colombo election
MACDONELL C.J.—Tilekewardent v. Obeyesekerc.
129
on June 13 and was certain that he could get from them a similar oblige-ment for the Avissawella election day, June 20, and further that he wouldbe responsible for collecting on that day the cars of the respondent’sfriends and relations for the conveyance of voters. Dr. Paul was un-successful for .the South Colombo Division and Mr. Alwis found that,in his own words “ people were getting tired of lending oars.” Theelection day was dose; he felt, he said, that he must not fail in his promiseto the respondent to bring the number of cars necessary on June 20,and, as he could not get them from friends, he decided to disobey therespondent's instructions and, unknown to him, to hire such number ofcars as he thought needful. He says that he did so from two persons,Nonis Fernando and Fonseka. From Nonis he got 45 cars and fromFonseka 20 buses. He says that the agreement was that he was to payRs. ?5 for each vehicle and to provide petrol for them. A friend of his,a Mr. de Livera, a proctor, recommended him to get the petrol necessaryfrom a dep6t in Cotta Road and from a man by name Usoof. (Usoof'sactual relations to this depot will be stated later.) Mr. Alwis and Mr. deLivera went to this dep6t on June 18 when Mr. Alwis ordered of Usoof
gallons of- petrol and paid a deposit of Rs. 700, his own moneyhe says, though actually handed over to Usoof by Mr. de Livera. OnJune 10 many cars and buses, lent and hired, assembled at night in thegarden of the respondent’s house in Cotta Road, and apparently in thelarge portion of open ground to the side of the house where there is a tenniscourt and a good deal of open ground round the tennis court. Mr. Alwissat at a table in the garden some distance from the house and gave outorders for petrol on Usoof’s depot which is less than a quarter of a milefrom the respondent’s house. Car drivers took these chits to the depotreceived petrol, about 8 gallons each, drove off that night to theconstituency and next day carried voters to and from the poll. Duringthe polling day several of the buses ran out of petrol and Mr. Alwis■ being informed of this went to a petrol dep6t in Welampitiya kept bv oneSivakngam, and said that he wanted petrol but had no money to pay forit at the moment but that he was Mr. H. P. Dias Bandaranaike’s nephew.Sivalingam told him to call again in half an hour, he did so, and Sivalin-gam then said that he had inquired, and was satisfied, and Would honourany orders for petrol which Mr. Alwis might send. So Mr. Alwis didsend these orders during the day to the amount of 113 gallons and hesays that he paid the price asked, namely, Rs. 152.55, on June 24.
This is the story as told from the respondent’s side, and the petitioner’switnesses tell what purports to be their side of the story. Two witnesseswere called from the Cotta Road depot, Usoof himself and Buhari. Itwould appear that the business really belongs to Usoof’s wife but thathe. is in a position to take orders and give directions with regard to it.BuhaK is the wife’s nephew and seems to have been the clerk actuallyin charge. Usoof says that on June 18 Mr. de Livera and Mr. Alwiscame and ordered 1,000 gallons of petrol, de Livera making a depositof Rs. 700 in part payment but saying that it was Alwis’s money._ Thetwo men went away without taking a receipt, and the clerk, that' isBuhari, made out the receipt in the name of the respondent, and enteredin his book the Rs. 700 as cash received from Mr. F. A. Obeyesekere.
5:J. N. A 99010 (8/50)
130MACDONELL CJ.—Tilekewardene v. Obeyesekere.
Shortly afterwards Mr. de Livera returned with the receipt, protestedthat it must not be made out in the respondent’s name and tore out thecounterfoil from the receipt book. He also crossed through the entryin the book for cash received. The erasure, I may add, is a very effectiveone and the name is almost obliterated. Mr. de Livera said that theentry must be either in his own name or in that of Usoof, and Usoof saidthat the entry had best be in his name since neither Mr. de Livera norMr. Alwis had an account with the firm. A further entry therefore wasmade in lieu of the one orossed out “ By cash from Usoof Rs. 700Later on Mr. de Livera even took away the receipt book and Usoofsays he has never got it back. At some time or other, the witness doesnot say when, Mr. de Livera paid the balance and the entry in the booksfor that amount is also said to be in Usoof's name. Usoof says furtherthat on the night of June 19 a large number of cars came to therespondent’s'garden, and later to the depot where they were supplied withpetrol. The particulars given of this charge were that the money wasreceived from the respondent, but Usoof says that it is quite incorrect tosay that he either went to the respondent's house or that he was paidby him. He is definite that the money was paid to him by Mr. de Livera.Buhari supplements this story. He says that he received Rs. 700 fromUsoof who told him on the phone that it was in connection with Mr.Obeyesekere's election, that thereupon he made out a receipt in Mr. Obeye-sekere's name, that shortly after Mr. de Livera brought it back protestingagainst its being so made out, and struck out the entry in the cash receivedbook, and he also says that Mr. de Livera has the counterfoil book andthat it has not been returned. He says that he wrote Usoof’s name inthe cash received book at Usoof’s request but that he does not knowwhy Usoof so requested him. Mr. Alwis gave evidence on this matterand admits that he went to the depdt with Mr. de Livera on the latter'ssuggestion, and that he ordered the petrol and gave Mr. de Livera theRs. 700 which the latter paid to Usoof in his presence. They went awayto the Orient Club and it was only then that they remembered that theyhad received no receipt. Mr. de Livera then sent his chauffeur back tothe dep6t to fetch it. It was argued that this part of the story was nottrue because Buhari says that .Usoof had mentioned to him earlier on thephone to give the receipt to Mr. de Livera’s chauffeur, therefore it cannot becorrect that they forgot about the receipt and then sent the chauffeurfor it, they must have mentioned it at the time and said that they wouldsend the chauffeur for it later. This might be a point damaging toMr. Alwis’s credibility if Usoof had been asked about it, but he was not.Buhari struck me as a timid and reluctant witness. He made a greatpother about admitting having ever seen Usoof on June 18 and it wasonly with great difficulty that he was got to admit, what must have beenthe case, that be did see Usoof on that day, and before I can use such acontradiction of Mr. Alwis's testimony as damaging thereto, it would benecessary for the point to have been far more fully investigated in evidencethan it was. It was argued that the time given by the witness Buhariwould not allow for Mr. Alwis and Mr. de Livera to return to the OrientClub, discover that they had not got the receipt and send the chauffeurback again, but that the time indication given by Buhari would have
MACDONELL C.J.—Tilekewardene v. Obeyesekere.
181
been ample to enable them to have gone to the respondent's bungalowatm for the receipt to have been taken there. This is possibly true, butonly if one assumes Buhari to have been absolutely accurate in thetime indications he gave, and there were so many uncertainties in hisevidence that I am not prepared on this question as to the time—atbest an uncertain piece of evidence—to say first of all that Mr. Alwis’sstory about overlooking the receipt is untrue, and then to infer from itsometheing for which there is no evidence, namely, that they were incommunication with the respondent himself at that time. I wouldpoint out that Mr. de Livera was not called. It is stated that he cannotbe found. The failure to call him is unsatisfactory but I do not knowthat that failure would justify me in throwing dpubt on the evidence ofMr. Alwis or in inferring, for that was the whole point, that the respondentwas privy to this arrangement about the petrol. Mr. Alwis has admittedhis shart in the story with what seemed to me perfect frankness and Ido not know that Mr. de Livera’s evidence would carry it very muchfurther. As affecting the illegality that Mr. Alwis himself was confessedlycommitting it certainly would not carry that story any further.
The important point about this story is, of course, did the respondentknow anything about the matter or did he not? And one naturallyasks the question, how did the receipt come to be made out in his namein the first instance and why was the Bs. 700 entered as cash receivedfrom him? Now, it is rather curious that for bo+h these things each ofthe witnesses, Usoof and Buhari, lays the blame on the other, not onanything said or done either by Mr. Alwis or by Mr. de Livera. Usooftwice says “ The clerk (i.e., Buhari) made out the receipt inMr. Obeyesekere’s name." Buhari says three times that he had been‘ told on the phone by Usoof that there was petrol wanted in connectionWith Mr. Obeyesekere's election, and that that was why he made out thereceipt in respondent's name. One can leave these contradictions asthey stand. It would be quite contrary to this evidence to infer fromit that the receipt was made out in the respondent's name in consequenceof anything said or done by Mr. Alwis or Mr. de Livera. •
There is yet another point .that must be dealt with in regard to thismatter. When Mr. Alwis had ordered the petrol, he received from Usoofa serial order book and was told by him that any orders for petrol issuedby him, Mr. Alwis, out of that book, would be honoured at the depot. Ac-cordingly on Hie night of the 19th when sitting in respondent's garden hegot the men from whom he had hired, Nonis Fernando and Fonseka, to bringup the drivers in batches and gave to each driver an order containingthe distinctive number of his car or bus and the number of gallons to besupplied him. He did not, however, sign any one of these orders. Whenthey were produced in Court it was found that at the place where thesignature should have been, there was in each case a circle and dot madein pencil, and it was suggested that this was part of a design on the partof Mr. Alwis to keep his name out of the matter. Sixty of these chits. -were put in. I have examined them all and I am quite satisfied that thecircle and dot were made by a different hand from that which wrote inthe number of gallons and the car number. To this there are twoexceptions, the first and second of the chits produced. On these the
132
MACDONELL C.-T.—Tilekewardene v. Obeyesckere.
writer had omitted to give in figures the number of gallons required andthe same hand which put the circle and dot in the signature place, haswritten in the figure “ 6 ” against the word gallons and hqs put a circleround it unmistakably similar to that of the circle in the signatureplace. That the circle and dot were not made by the hand that wrotethe number of the car and the number of gallons required is perfectlyplaiiv, because in several ol the car numbers a nougbt occurs, and whereverit does, it is a circle quite differently made from the circle at the bottomof the chit. 'Moreover the circle and dot were not made by the samepencil as that which wrote in the car numbers and gallons. Usoof saysthat the circle and dot were on the chits when he received them. Idoubt much importance attaches to the matter, but in any case I amsatisfied that the circle and dot were not made by the person who wroteon the chits the gallons and the numbers of the cars.
Thereis one other thing in connectionwiththese twowitnesses
which ought to be mentioned as showing anyway that Usoof was avery willing petitioner’s witness. He was served with a subpoena thefir$t day of the hearing, only a few minutes before he went intothe witness box. He explained that he had come into to see someonein the Attorney-General’s department, thatthisgot known,and that
he waspromptly, served with a subpoenaandtold to wait. When
requested he produced from his pocket the order chits which I have justbeen discussing. He was asked how he got them, and he said thathe got them from Buhari who was then waiting outside the Courton a subpoena served on him some days before. Next day Buhari washimselfexamined as a witness and askedto produce his-subpoena.
This ordered him to bring with him certain documents but not theorder chits, and he- denied positively that he had brought them inthe day before or given them to Usoof. T conclude that Usoof hicoming in on the first day knew he was going to be summoned andobligingly brought the chits with him. It is of importance only as showingthat if the witness Usoof inclines to one side rather than the other it isto the petitioner’s side.
One can now proceed to examine the evidence of the drivers who werecalled to support this charge of hiring. The first charge of hiring allegedthat the. persons contracted with or paid were one Matthias Baas and thedrivers of 23 vehicles, but only one of these drivers was called and MatthiasBaas was no.t called at all. The one driver called was Hendrick Fernando,the driver of car 6 160, which curiously enough is a car licensed for privateuse, and the explanation of how he came, when hired by someone, to bedriving this private car that day, was not very satisfactory. He saysthat on the afternoon of June 19 he and the 31 cars engaged with himwere all lined up in McCallum Boad where a list of them was made byone Eddie Iya who was not called as a witness, and that Mr. Alwis waspresent -in a car; that later, towards evening, they went to therespondent’s garden where Mr. Alwis gave car chits for petrol and thatthey went to Usoof’s depot and got it there. The hire he says wasBs. 25 which Matthias Baas paid him subsequently. About 7 or 8 p.m.he and the other cars drove off to Megoda. They had dinner that nightat the house of the father of Mr. Bernard Jayasuriva, the election agent,
MACDONELL C.J.—Tilekewarderte v. Obeyesekere.
189
who had a bag of money from which he handed to Matthias Bass Be. 1for each driver which was deducted from the amount of his pay for hiring.He does not say when this occurred but as the only time according tohim when Matthias Baas was present was in the afternoon and eveningof the 19th, then this handing out of money by the election agent musthave been in the evening of that day. Now Mr. Jayasuriya denies thisstory in toto and says he was elsewhere at the time. He was in a car withthe witness Mr. Jayewardene at Megoda, drove in with him to the re-spondent's house and was there doing election business with the respondenttill about 2 a.m. Mr. Jayewardene was waiting for him all that time andconfirms this story. If so, he cannot have been at his father’s housepaying out from a bag of rupees to Matthias Baas. I will have to dealwith this evidence as to Mr. Jayasuriya’s movements at greater lengthlater on. It is sufficient for the present to- say that I accept it anddiscredit the story of Hendrick Fernando accordingly. Mr. Alwis deniesthat he ever ordered any cars to be lined up in McCallum Road or that heknows Matthias Baas at all. He gives the names of the people from whomhe ordered cars and Matthias Baas is not one. I do not profess to havegot to the bottom of this story about the cars being lined up in McCallumRoad, save that it was not at the instance of any agent of the respondentthat they were brought there, and in any case if it was to be establishedas against the respondent Matthias Baas should have been called.
The second charge of hiring gives the name of William Singho as theperson hired from, and mentions the drivers of 36 cars of whom, however,only two were called, the witnesses Karthelis Appu and Francis Fernando.The person through whom they were alleged to have been hired, WilliamSingho, was not called. Karthelis Appu says that he is the driver ofC 7689, his stand being usually at the Fort, that he was engaged byWilliam Singho and told to go to McCallum Road, like- the last witness,where he found a large number of cars lined up. He says that afterwardsthe cars dispersed and that he himself returned to the Fort but that at7 o’clock he went to the respondent's bungalow as ordered. From therehe was sent to a petrol depot kept by one Ratnayake in Prince of WalesAvenue near Victoria Bridge where he got petrol, that Mr. Bernard Jaya-suriya led him and the other cars, in a car of his own, and that at the dep6tMr. Jayasuriya and another person unknown to him agreed to pay for thepetrol which Ratnayake was to supply. Having got his petrol he wentoff to Megoda and worked next day carrying voters to and fro. At theend of the day Walter Perera gave him a chit, P 12, to the effect that carC 7689 worked most satisfactorily and diligently. Mr. Walter Pererastates that he gave this chit to a fair tall stout driver—Karthelis wasdark—because that driver said that he had been working for the re-spondent all day but that without a chit he would get nothing for hislabours, and that he asked for the chit saying he would go to the re-spondent and get some money. Mr. Perera’s impression was that thecar was a lent one. The other witness Francis Fernando is the driver ofC 5715 and says he was engaged with 60 others by William Singho, thatthey lined up in McCallum Road and that they *went to the respondent’shouse at 7 p.m. He said that the list was made by Mr. de Livera whileKarthelis Appu had said that the list was made by one Harry Fernando
134MACDONELB C.J.—TiUkewardene v. Obcyetehere.
and it will be remembered that Hendrick Fernando said that the listwas made by yet a third person. He says nothing about any cars dis-persing previous to going to the respondent’s house, a fact which surelywould have struck his attention had it occurred. He says that theywent to Prince of Wales Avenue and got petrol there and that he sawKarthelis there. He then says that at 1 a.m. they left for Horotota andthat Karthelis went with him. But later on he says that Karthelis didnot go with him^ and Karthelis says definitely he went to Megoda whichis a sufficient distance from Horotota-. I think the contradictions betweenthese two witnesses can be left to adjust themselves. The story, however,,of the petrol supply from the depot in Prince of Wales Avenue needs-further discussion because the depot keeper, Ratnayake, was called andstated that on June 19, rather before midnight—this had been opened as-occurring at 2 a.m.—he supplied 32 cars with 139 gallons of petrol on,the order of Mr. Bernard Jayasuriya then present who paid him the priceRs. 187.55 in cash on the spot, and he produced the carbon of the receiptfor this sum upon which, however, no name appeared. It will be remem-bered that Karthelis says* that Mr. Jayasuriya undertook to pay, not thathe paid. He confirmed himself as to the time by pointing to severalentries subsequent to it but before the entries for June 20 began, i.e., beforemidnight of the 19fch. He says he remembers the incident because of thebigness of the sale and he denies that he was aware of there being anyother elections that day. He volunteered further that Mr. H. P. DiasBandaranaike had, on the day before he gave evidence, offered him Rs. 200not to say that Mr. Jayasuriya was there. Mr. Bandaranaike says thatthis is an absolutely false story and that he has never seen him, and Ithink I can accept Mr. Bandaranaike’s denial. The story of the Rs. 200not to sayw that Mr. Jayasuriya was there was something volunteeredon the spur of the moment. Now Mr. Jayasuriya says, as has beenmentioned, that during the late afternoon of the 19th he was at Megodain Mr. Jayewardene’s car and that the latter drove him back to therespondent's house which they reached at about 8.30 or 9 p.m. and thathe remained there working with the respondent until 2 a.m. Mr. Jaye-wardene confirms this story, namely, that he was with Mr. Jayasuriyaon that evening, and that they never went near Prince of Wales Avenueat all. It is not disputed that it would have been quite out of their wayto go anywhere near that thoroughfare. Now Mr. Jayewardene admitsthat during that evening at the respondent’s house he sometimes did notsee Mr. Jayasuriya for half an hour or twenty minutes. It is thereforejust possible for Mr. Jayasuriya to have gone to Prince of Wales Avenueand back without Mr. Jayewardene’s being aware of it, but it is veryimprobable that • he did so. The whole story is that he was extremelybusy with the respondent re-arranging who were to be the polling agentsnext day and at what booths, and besides there is nothing else in theevidence suggesting that he had anything to do with the transport, thatbeing a matter left exclusively in Mr. Alwis’s hands. I have mentionedthe contradictions between the evidence of Karthelis Appu and FrancisFernando, and the witness Ratnayake struck me as equally unsatisfactory.His story that he served a large number of cars that night and that he
MACDONELL C.J—Tileketcardene t>. Obeytsekere.
185
was paid for that service is quite possibly a true one but it was not onMr. Bernard Jayasuriya's orders nor was it from him he received a pay-ment of Bs. 167.55.
Two other -driver witnesses were called, W. D. Hendrick and AlfredBoteju, who ean conveniently be taken together. Hendrick says that hewas a driver of the Ford bus 617, that he was engaged two weeks beforethe election by Mr. Jayasuriya, who picked him and his bus out from anumber of other buses then standing together at Maradana, and that onthe 19th he went to respondent’s house, got petrol from a dep6t near by,and then went that evening to Salawa estate from which place he workednext day transporting voters, and he says that when he was short ofpetrol on the 20th he received some from a Pontiac car which carriedyellow colours and was labelled “ petrol ”. This story had best be dealtwith at this point. The respondent does possess a Pontiac, an oldishcar of a rather dingy blue which was used on the day of the electionmainly for the purpose of bringing from Colombo the lunch for thepolling agents. But he denies emphatically that it was labelled " petrolor that any petrol was given out from it. Hendrick and Boteju whenasked to describe the Pontiac were unable to give its distinctive symbol,the red Indian’s head; one of them said it was ash colour which curiouslyenough was the colours of a rival candidate Mr. Goonewardene, and theother said it was green. Mr. Bambukwella, a Sub-Inspector of Police, saysthat on June 20 he did see a car carrying petrol and that he thinks,—though he cannot remember—that it had a yellow flag with a placard“ petrol ” on it but that he did not see it giving out petrol. He wasju6t passing in a car so that that was all he noticed. If this evidence asto a Pontiac with a yellow flag giving out petrol were otherwise confirmed'by trustworthy evidence, it might be of some weight against the•respondent but as I do not trust the evidence of the witnesses W. D.Hendrick and Alfred Boteju—I will say why later—Mr. Bambukwella’sevidence does not carry the matter very far. I think the story of thePontiac with a yellow flag giving out petrol can be dismissed.
To return to these two drivers. The other one, Alfred Boteju, was thedriver of the bus S 536 and says that he too was engaged by Mr. Jayasuriyaand that on the 19th he arrived at Salawa estate at S.30 p.m. from wherenext day he took voters to Waga, and that Hendrick was there also.He says that at the end of the day Mr. Wijeyesekere, the superintendent of.the estate, paid him Bs. 10 and Mr. Jayasuriya another Bs. 10, and thatas well as getting petrol from the Pontiac he got a supply from the estatebungalow. There is a good deal of evidence in reply to the story of thesetwo men. First of all Mr. Jayasuriya says that it is quite untrue that hehired their buses and points out, reasonably enough, that if he had beenout to hire buses he would not have hired two only, nor would he havehired Hendrick’s Ford which admittedly was too small a bus to be ofmuch use. Mr. Wijeyesekera denies the whole story, the buses coming,the payment and the supply of petrol from the bungalow, adding thatthere was none at the bungalow to supply. He also gives this detail,that he had a number of voters on the estate who were still waiting
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MACDONELL C.J.—Ttlekewardene v. Obeyesekere.
there at 8.30 a.m. on June 20 for a conveyance to take them to the poll,and that he had to send a message to Hanwella in answer to which twobuses, a Graham and a Dodge, arrived at about 9 a.m. Obviously if thebuses of Hendrick and Boteju had been at Salawa.estate, as those witnessessav they were, it would not have been necessary for Mr. Wijeyesekere tosend to Hanwella for transport. But the answer to these witnesses doesnot end here. The witness Timothy Almeida knows Hendrick and saysthat Hendrick engaged through him two buses for June 20 in the interestsof the candidate Mr. Goonewardene, and further that bus 617 whichHendrick said he was driving that day had been incapacitated severaldays Before and was incapacitated on the polling day. The witnessAV. R. Dep confirms this. He was the owner of this very bus 617 up tillJuly 2 when he sold it to Edwin, Hendrick’s brother, since which dateHendrick does drive bus 617, but he adds that Hendrick never drove itwhile it was in his own ownership which would be until well after June 20,and that on that day it was incapacitated and could not be driven at all.These two are perfectly independent witnesses and they show conclusivelythat Hendrick’s story is an invention. As to Boteju, the respondentsays that a man came to him after the election with a bill asking forRs. 10d for the following reasons: “ To people who worked on Sunday,the 21st, on a pleasure journey ”, and the paper gives the numbers of threecars and two buses, one of which was S536 which is the number of the witnessBoteju’s bus. Respondent says that when the man brought him this paperhe told him that he knew nothing about it and refused to pay, whereuponthe man went away disappointed. But before doing so the respondentasked the bearer of the paper what his name was and . wrote down on itthe name as given by the bearer, namely, J. W. A. Boteju, which is thename of this witness. This document was produced in Court and is inSinhalese but with the name J. W. A. Boteju written in Roman charactersat the bottom, and it was not challenged that this was respondent’swriting. Now.Boteju denies all knowledge of this paper. In so denyingit 1 am quite satisfied that he speaks falsely, and this is sufficient to justifyme in saying that this story is just as much an invention as that ofW. D. Hendrick.
One further witness remains to be dealt with as to the hiring. It will beremembered that on the day of the election certain buses ran out of petroland that Mr. Alwis obtained them a further supply from a depot inAVelampitiya managed by one Sivalingam. He was called as a witnessand says that on June 18 Mr. H. P. Dias Bandaranaike and Mr. Alwisordered a large quantity of petrol, amount unspecified; that in conse-quence of this he sent a letter to Delmege, Forsyth & Co. asking for a
gallons of petrol to be supplied on the 20th early ” for theelection supply ”. His letter was put in, and it certainly does not suggestthat, he had received any specific order for petrol but that he was simplydoing what a wise business man would do, obtaining a supply for a daywhen much would be wanted. He says that on June 20 he supplied 113gallons to cars sent him’ by Mr. Alwis and that on the 24th Mr. H. B.Dias Bandaranaike paid him in full Rs. 152.55 but that the latter tookaway the carbon copies out of the order book on the ground that some ofhis receipts were missing. It may be here stated that Mr. Bandaranaike
MACDONELL C.J.—Tilekewardene v. Obeyesekere.
137
denies paying him anything at ail. Both he and Mr. Alwis deny havingever gone there on the 18th, though, as has been stated, Mr. Alwis did onthe 20th get a supply of petrol from Sivalingam mentioning Mr. Bandara-naike’s name as a guarantee. Mr. Bandaranaike says that he did seeSivalingam that day, who told him that Mr. Alwis wanted petrol, to whichhe replied that the money would be quite safe, and he adds “ Sivalingamhad already given the petrol before he spoke to me ", A curious thingabout Sivalingam’s story is' that in the particulars it is stated that thepetrol was obtained from him by Mr. S. W. B. Dias Bandaranaike andby Mr. H. B. Dias Bandaranaike, while Mr. Alwis’s name is not mentionedat all. Sivalingam denies ever having said that Mr. S. W. B. DiasBandaranaike came, and he is quite positive that he mentioned Mr. Alwis’sname when giving the information that led to his being called as a witness.That information he gave to some man unknown and did so, he says,because the man came with a chit from his partners telling him to “ giveinformation to bearer ”. Not the least extraordinary thing about Sivalin-gam ’s evidence, although it went unnoticed in argument, is' this, thatthere is nothing in his story to suggest that he saw either Mr. H. B. DiasBandaranaike or Mr. Alwis on the 20th at all. The implication from whathe does say is that he saw neither of them that day. Now it was,said inargument that Mr. Alwis is only candid where matter in evidence that hecannot deny compels him to be. Here at any rate is an incident to thecontrary. There is no written evidence to connect him with this incidentfor the letter to Delmege, Forsyth & Co., Ltd., does not do so, and thereceipts Sivalingam says he had given to Mr. Bandaranaike, both originalsand carbon duplicates. The discrepancies between the particulars,which could only have been got from Sivalingam, and the evidence givenby him at this inquiry, would have justified Mr. Alwis, had he been adishonest witness, in denying that he had ever seen Sivalingam. at all.Save for Sivalingam’s own entry in his books that it was Mr. Bandaranaikewho paid him, the latter also could have taken the risk of denying thathe had ever seen' Sivalingam either. I was invited to say further thatMr. Bandaranaike contradicted Mr. Alwis where he says “ Sivalingamhad already given the petrol before he spoke to me ”, Now Mr. Bandara-naike could only haye got this information from Sivalingam since it isnowhere suggested that he met Mr. Alwis that day. If so, then this goes,to the credibility of Sivalingam but not to that of anyone else. Besidesthere is no contradiction. Mr. Alwis says that he returned to Sivalingam’s—he had been told to wait while inquiries were being made—and that thelatter said, not that he had seen Mr. Bandaranaike, but that he hadfound out who he, Mr. Alwis, was, and that he would honour his ordersfor petrol.
I would wish shortly to summarize the petitioner’s evidence on thischarge of hiring. That of Usoof and Buhari is correct in the main as tothe ordering and supply of petrol and I accept that of Sivalingam sofar as it is confirmed by the evidence of Mr. Bandaranaike and of Mr. Alwis,and no further. The evidence of Hendrick Ferflando leaves me doubtful.
A car 0 160 got petrol that night but I am in doubt whether it was drivenby Hendrick Fernando. The evidence of Karthelis Appu equally leaves
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MACDONBLL C.J.—Tilekewardene «. Obeyesekere.
me doubtful. Car C 7689 undoubtedly worked for the respondent on theday of the election. Whether it was driven by Karthelis Appu is anotherstory, and the contradictions of Francis Fernando as to whether he wasor was not with Karthelis leaves his story in grave doubt likewise. Withregard to the remaining three witnesses I can be more positive. I amsatisfied that Batnayake was fixing an incident which affected somebodyelse upon Mr. • Jayasuriya and was saying in that connection what wasfalse. The witnesses W. D. Hendrick and Alfred Boteju have, I am quitesatisfied, put up a false and invented story.
It has been said that the whole conduct of the respondent, of the electionagent, Mr. Jayasuriya and of* Mr. Alwis on June 19, shows that therespondent must have known that cars were being hired, but one mustascertain what the position of affairs was before pronouncing on thisargument. As to the position generally, I see no reason to doubt thestory told by the respondent and his witnesses, namely, that the electionagent himself being occupied fully with other things took no part in thematter of transport, that the respondent had warned Mr. Alwis not tospend anything on hiring but to get cars from friends and relations, thatMr. Alwis had tried to do so and failed and that then, so as not to breakhis promise to the respondent, he made arrangements to hire, concealingfrom the respondent that he was doing so. It has been urged, quiterightly, that it would have been better had Nonis and Fonseka been called*.True, but that evidence. could not have added anything towards provingthe illegality which Mr. Alwis confesses he had committed, and that theirevidence would have implicated the respondent himself there is nothingto show. Then I am not prepared to say that their absence casts suspicion-on that story which is a pretty frank confession of wrong doing. Theposition, then, on the evening of the 19th was this. The respondentsays he was busy all that evening rearranging who were to be pollingagents next day at what booths. In any case he would be bound to bebusy on something. Cars were coming into his garden in great number.Many, perhaps the majority, were cars hired by Mr. Alwis who sat outin the garden giving , them orders. He had concealed the hiring from therespondent but had assured him that he would get friends and relations,to send, and the respondent seeing cars arriving would naturally thinkthat Mr. Alwis’s efforts had been successful. The respondent's action in-remaining working at his house and in not going to the garden to seewhat Mr. Alwis was doing is, at the least, equally consistent with a beliefthat these were lent cars arriving and with a knowledge that they werehired cars. If these facts are equally consistent with knowledge by therespondent of the illegality that Mr. Alwis was committing and withignorance thereof, then there is at the very least a doubt of which therespondent must have the benefit. It was asked, would he not go up toMr. Alwis and ascertain what he was doing? No, because he would*think that Mr. Alwis was busy with cars, and those lent ones; whyinterrupt a busy man? Besides, he was kept busy that night himselffrom 9 p.m. to 2 a.m. or thereabouts, working with his election agent asto the persons to be sent to the several polling booths. But would notthe election agent have gone to Mr. Alwis to inquire? One would sayno, and for similar reasons. He was doing his own proper job or alt least-
MACDONELL C.J.—Tileketoardene e. Obeyesekere.
139
that part which required attention at the moment. Then it was said,how unnatural for Mr. Alwis never to go near the respondent that night.There is the same answer and for the same reasons. Mr. Alwis wasbusy, and when he interrupted his work to go into the house for a hastymeal, why would he then go and talk to the respondent? He wouldguess him to be busy, even if he did not know this fact, and the momenthe had finished his refreshment he would himself have to be back at workagain. The conduct of these three several persons as testified to by themseems to me reasonable enough, having regard to the circumstances ofthe moment. Then I cannot infer that either the respondent or hiselection agent knew or must have known that the vehicles Mr. Alwis wasbusy with were, many of them, hired vehicles apd not lent ones at all.The respondent stated in evidence that on polling days many vehiclesincluding buses which were normally hired vehicles, were lent by their•owners to carry voters, so there would be nothing startling in some of thevehicles Mr. Alwis was busy with being buses; he would be giving ordersto them as well as to the cars.
What struck me during the hearing as of more importance was whatrespondent must have seen in the constituency on polling day itself.The evidence as to this is of the shortest. The respondent said in chief“ At 6.30 a.m. I got into my Daimler and went with my family frompolling booth to polling booth and he then went on to answer the•charge about the Pontiac supplying petrol. The only thing in cross-examination which shows he was asked about polling day is the onepassage “ On the 20th I was dropped at 7 p.m. at the Club. I woke upat 10 p.m. and was summoned to the Kachcheri to hear the result ”, andin re-examination he stated that about buses ordinarily used for hiringbeing lent for the polling day, which I have mentioned above. At night,it would not be easy to distinguish hired from private vehicles, but thosehe would have seen driving round the constituency on polling day would,many of them, be vehicles whose marks would show them to be oneslicensed to ply for hire and so not. private vehicles. Should not thishave aroused his suspicions and even have affected him with knowledgethat he was getting the services of hired vehicles? As confessedly he .did- not stop these vehicles from being used on his behalf, could he notbe held to have accepted their services and so made himself a party to theillegality? Well, the respondent was not asked about this matter andit was not, I think, referred to in argument. It may be that his suspicionswere aroused, or again it may be that knowing some hiring cars and buseshad been lent he would not be struck by their large number or concludethat some of them must have been not lent but actually hired. Toaffect him with knowledge that vehicles had been or must have been hiredfor his candidature that day, there would have to be evidence much moredefinite than that actually before me. It is my duty to draw properinferences from the evidence led but not myself to supplement thatevidence and then to draw inferences from the evidence so supplemented.
I conclude, as I am bound to, that the evidence is wholly insufficient toaffect respondent with knowledge that the vehicles working for- him onpolling day were hired.
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MAC DON ELL C.J.—Tilekctcqrdenc v. Obeycsekere.
As to the respondent’s evidence generally, I may say that I accept itand that he impressed me throughout as giving a full and straightforwardaccount of everything within his knowledge. In particular. I acceptentirely his statement that he said publicly, and to Mr. Alwis, that hewould not spend any money whatever on hiring vehicles, and that hemeant it, also that he was quite ignorant of Mr. Alwis having hired vehicles-or bought petrol on his behalf.
I think I am justified in saying the same of the evidence of the electionagent, Mr. Bernard Jayasuriya. He impressed me as giving his evidencewith entire frankness and without concealment of anything. He seems,to have given his services to the respondent for nothing, refusing any fee.There was one thing, however, in his evidence in chief which did, at onetime, cause me some doubt. My own note reads thus 4 4 Saw Alwis inthe garden. Was told he was getting petrol from some depot or other.Knew getting petrol not allowable to the agent or the candidate. Notinvestigate the matter—the information was given me later not thatday. ” I was at first inclined to think that this was an admission ofhaving known at the time that Mr. Alwis was giving out petrol, andthat his saying that the information was given him later, and not that day,was an attempt to take back that admission. But I do not think Iwould be justified in so holding in view of the very favourable impressionthis witness made on me generally for candour and straightforwardness.Moreover, the learned counsel for the petitioner did not himself take it assuch an admission. He cross-examined at some length as to whetherwitness did not know what Mr. Alwis was doing that night in the garden,but nowhere suggested that the witness had "by the words quoted admittedthat he knew; nor did he suggest this in argument. I must not try tobe wiser, and I conclude that Mr. Bernard Jayasuriya misunderstoodthe question put to him and was speaking the truth when he said that theinformation was only given him later.
I also accept the evidence of the remaining principal witness for therespondent, Mr. Alwis. I am satisfied that he was told, as he says, to getthe lend of cars from friends and relations and that he did this until hefound them remiss, that he then decided to hire cars and buses so as notto fail the respondent in what he had promised, that the respondent didnot know nor was he privy to this, and that Mr. Alwis himself did notknow that it was an illegal practice for the supporter o,f a candidate tohire vehicles. I thought him a perfectly straightforward witness. Itwas arguedthat he wasonlystraightforwardonmatters where the
evidence forthe petitionercompelled him to be.Ihave given one case,
that of Sivalingam, whichseemsto me to pointina contrary direction.
But one cango further. Idoubthe need ever, ifhehad been a dishonest
witness, have admitted hiring vehicles at all. That he did hire, fromNonis and Fonseka, is something known to us only from his own admission.It has not perhaps been sufficiently remarked how very little evidencethere is on petitioner's side to connect Mr. Alwis with the hiring at all.His name is mentioned once in the particulars, on charge 2, the hiringfrom William Singho. On this charge the witnesses were Karthelis Appuand Francis Fernando with Ratnayake to bear them out. Not one of
MAC DON ELL C.J.—Ttlekcwardenc v. Obcyesckere.
141
the three mentions Mr. Alwis’s name anywhere in his evidence, nor doeither W. D. Hendrick or Alfred Boteju, the two bus drivers who saythey worked from Salawa estate. In actual fact one witness and oneonly connects him with the hiring and that in a very uncertain way,Hendrick Fernando. He says that when Matthias Baas was engagingthem and lining them up in McCallum Road, Mr. Alwis was there in a car.But he does not say that he did anything. Later, of course, the witnessreceived his petrol chit for the Cotta Road depot from Mr. Alwis—for theuse of what? Of 0 160 which is not a hiring car at all but a private one.Now remembering that the evidence of the petitioner ended on a Fridayafternoon and that the evidence for the respondent only began on thefollowing Monday morning, what could a dishonest witness have done?He would have had to admit the purchase of petrol since the evidence ofUsoof and Buhari would have made it impossible for him to deny thatpurchase, but there is nothing save an uncorroborated and ambiguoussentence in the evidence of one witness to connect him with any hiringat all. He would, if dishonest, have been safe in denying the hiringaltogether, and he could have minimized the illegal act he had to admithaving committed, the buying of petrol, by saying that it was for the useof private cars, O 160 among them, and there would have been no .evidencethat I can discover to contradict him. But he volunteered theinformation that he had hired on a wide scale and this seems to mestrong evidence of his honesty as a witness.
Mr. Alwis admits, then, that he, did what the law prohibits, namely, thathe hired vehicles for the benefit of a candidate and bought petrol suppliesfor them. It was argued for the respondent that as he did this inignorance that he was thereby breaking the law he was not guilty of anillegal practice in so hiring. The law on the subject is to be found insection 64 of the Ceylon (State Council Elections) Order in Council, 1931,as follows: —
“ 64.(1) No payment or contract for payment shall, for the
purpose of promoting or procuring the election of a candidate at anyelection, be made—
(a) On account of the conveyance of voters to or from the poll,whether for the hiring of vehicles or animals of transport ofany kind whatsoever, or for railway fares, or otherwise. 2
(2) Subject to such exception as may be allowed in pursuance of thisOrder, if any payment or contract for payment is knowingly made incontravention of this Article either before, during, or after an election,the person making such payment or contract shall be guilty of anillegal practice, and any person receiving such payment or being aparty to any such contract, knowing the same to be in contraventionof this Article, shall also be guilty of an illegal practice.
Sub-section (2) is almost identical in wording with section 7 (2) of theEnglish Act of 1883, and the difference is immaterial to the matter beforeme. What is the meaning of the word “ knowingly ” in this sub-section;what must be the knowledge possessed by the person paying or contractingto pay? I think what is meant by the word “ knowingly ” is that the
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MACDONEIdL C.J.—Tilekewardene v. Obeyetekere
person paying or contracting to pay must know that he is paying orcontracting for payment for the hiring of vehicles on account of theconveyance of voters to and from the poll and for the purpose of promotingor securing the election of a candidate. If he has that degree of knowledge,then he is guilty of an illegal practice even though he may be ignorantthat thereby he is breaking the law; per Wright J. in Southampton *.Here the sole purpose of the hiring was to convey voters to the poll topromote the election of the respondent, this is confessed. Then Hr. Alwisin^ hiring was guilty of an illegal practice in contravention of section 64.
It remains to consider how the respondent is affected by this illegalpractice on the part of Mr. Alwis. If what Mr. Alwis did was done withinthe scope of the authority given him by the respondent, then * therespondent would be responsible even though the manner in which Mr.Alwis did it was in direct disobedience to the respondent's orders. Ifwhat he did was not within the scope of that authority, then therespondent would not be responsible. Now the evidence, which as I havesaid I accept, is that the respondent instructed Mr. Alwis to borrow carsfrom friends and relations and get them to lend the same, at the same timeinforming, him that he (respondent) did not intend to spend a cent on thehiring of cars, since the law did not allow him to do so. There is abundantevidence to this effect, and it is confirmed by the circular letter, R 14jiated June 5, 1931, which Mr. Alwis sent to his friends with therespondent's approval asking them to lend cars for the election. Unlessone rejects this evidence or regards it as a blind, and I see no reason to doeither of these things, then Mr. Alwis was the agent of the respondent toborrow vehicles and was within the scope of his authority or agency orwithin his mandate—whatever expression we prefer—in doing so, buthe had been told that the respondent would not spend any money onhiring and had been impliedly if not expressly forbidden himself to hire.Likewise, as the greater includes the less, he had been at least impliedlyforbidden to buy petrol for the working of cars hired. Then I can onlyconclude that in hiring these vehicles and paying for petrol for them,he was not acting as the agent of the respondent. It is not the case ofhis doing what he had been authorized to do though in a manner for-bidden, but the case of his doing something he had not been authorized todo at all.
There are reported election decisions which • deal with this point.In Westbury 2, Lush J. sayw as follows:—“ I had occasion last week, inthe Harwich case, to consider and define how agency may be constituted,and how the extent of authority may be measured. I repeat what I6aid on that occasion, that an agent is a person employed by another toact for him, and on his behalf, either generally, or in some particulartransaction. The authority may be actual, or it may be implied fromcircumstances. It is not necessary, in order to prove agency, to show
that the person was actually appointed by the candidate
If agent, the next question is, what is he appointed to do; or if notappointed, what kind of service does he profess to do which is acceptedby the principal. If a person were appointed or accepted as agent for1 {1895) 5 O'M. <fc H. 25.3 O'M. db B. at p. 79.
MACDONEIxL CJ .—Tilekcwardene v. Obeyesekere.
US
canvassing generally, and he were to bribe a voter, the candidate wouldthereby forfeit his seat. But if he was appointed or accepted to canvassa particular class, as if a master were asked to canvass his workmen andhe were to go out of his way, and bribe a person who was not his workman,the candidate would not be responsible. In the one case the agent wouldbe acting within the scope of his authority, though it may be in abuse ofit; in the other he would be acting beyond his authority, and would beno more to the candidate than a stranger.’*
This is the principle of the matter, I would also quote from EastDorset1, since the facts there are close .to those of the present case. Therea friend of the candidate had hired, as well as lqn$ or procured the loanof cars, and it was argued that the authority he had received from thecandidate was wide enough to cover both. In this connection Pickford J.said as follows:—“ Now I think that if a candidate says to anotherperson, * Get me cars, get me as many care as you can ’, and that personhires some cars, that would be in all probability sufficient to make thecandidate responsible. On the other hand, if the candidate says, * Willyou lend me some cars? * and the person to whom he said it says * Yes,I will, and my friends will lend you some too and the candidate thensays, ‘ Well, send them up *, I am not at all sure that that would make
him responsible for the hiring by that person to whom he was speaking»>
These cases are sufficient authority on the matter. As what Mr. Alwisdid was outside the authority given him and outside the agency entrustedhim, respondent cannot be held responsible for the illegal practice whichMr. Alwis admits having committed.
The petition against the respondent fails, therefore, on all points.
As to costs. The evidence on the hiring shows that the agent of therespondent was guilty of an illegal practice. There was tl^erefore onthis part of the petition a case for inquiiy, and if this charge of an illegalpractice stood alone, I might well have to leave each side to pay its owncosts. But it does not stand alone. It must have been known to thepetitioner very soon after the election that he had on the hiring a strongprimd facie case. He was not, however, content with this case but fortifiedit with charges of bribery and treating which were false charges, and Icannot help thinking that toH make to the petitioner any concession inregard to costs after this, would simply be an encouragement of falseaccusations. Elections must be kept as pure as possible and electionpetitions are one means of keeping them so. But then those petitionsmust be clean themselves and not reinforced with idle falsehoods. Thematter does not end here. Even on the hiring charge, the illegal practice,where, I repeat, petitioner had a good primd facie case if he had but beencontent with that, false charges had to be introduced and some of themat any rate of that particularly sinister type where the facts are true—and so impervious to cross-examination—in every point save one, theperson of whom they are alleged. If the petitioner chooses to introduceaccusations of this nature into a charge where he has sufficient clean
1 6 O’M <St B. 48.
13/33
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MAODONELL C.J.—Tileketcardene v. Obeyesekere.
evidence, if he chooses to run crooked where he could run straight, thereis nothing to prevent him doing so but he must not expect favourabletreatment in the matter of .costs. I see no reason, then, the petition havingfailed, to depart in this matter from the ordinary rule.
For the foregoing reasons I am of opinion that this petition must bedismissed and thajb the costs of the same, except those ordered by DriebergJ. to be paid by respondent, must follow the event.
Dismissed.