( 170 )
Ukku Bandav.
The mere fact that the 2nd to 18th respondents had beenelected was not sufficient, as they had not entered on their officeand could not do so until July 1. “No instance has been producedin which the courts have granted an application in the nature ofa quo warranto where the party against whom it was applied forhas not been in the actual possession of the office. No such instancecan have happened; and all the cases cited are the other way. InRex v. Poyisonby 1 the court expressly held that there must be anuser as well as a claim in order to found such an application"(Buller J. in the King against WhitweU a). It is necessary to showthat the party against whom application is made is in officede facto and for this purpose it is not enoguh if the affidavit statessimply that the party has “accepted the office" without specifyingthe mode of acceptance (The Queen against Slatter 3).
The petitioner was not entitled to make this application, andI order that the rule issued on the respondents be discharged. Thepetitioner will pay the costs of the 3rd, 5th, 8th, 9th, 10th,11th, 12th, 13th and 14th respondents. There was no appearancefor the 2nd respondent, and Mr. Weeraratne for the 4th, 6th, and7th respondents did not oppose the application.
Mr. Fonseka as amicus curiae on the instructions of the Solicitor-General said that as the regularity of the election was questionedhe did not wish to leave unmentioned a matter which might affectthe question, and he drew my attention to the fact that the meetingwas held on March. 10, whereas under section 22 (1) of the Ordinanceit should have been held on a day within three months of the dateon which the term of office of the existing Committee should haveexpired. The term of the existing Committee ended on June 30,and the meeting for the election of the new committee shouldtherefore have been held on a date on or after April 1-
I do not think it necessary for me to express an opinion on thispoint.
Buie discharged.
* (1155) 1 VeseyJr. 245, 247.
4 5 T. R. 85.
311 Ad. ds E. 505.