Wijeykoon v. Rajapakse.
Present: Soertsz S.P.J.
WIJEYKOON v. RAJAPAKSE.
S. C. 323.
In re Application for a writ of quo warranto.
Village committee—Election oj chairman—Disqualified members of committee—Validity of election—Writ of quo warranto—Village CommunitiesOrdinance, No. 9 of 1924, s. 18 (a).
Where the applicant impeached the right of the respondent to theoffice of Chairman of Village Committee on the ground that theCommittee that elected him was not properly constituted inasmuch asthree persons on it were disqualified by virtue of section 18 (a) ofOrdinance No. 9 of 1924,—
Held, that as the respondent was elected by a de facto committee,it was for the applicant to establish that the votes of the disqualifiedmembers were cast for the respondent.
Where voting is by secret ballot the manner in which the votes werecast must be regarded as undiscoverable in law, even if, in fact, it isdiscoverable, unless there is provision for a scrutiny of the ballot.
HIS was an application for a writ of quo warranto on the respondentrequiring him to show by what authority he claims and exercises
the office of Chairman of the Village Committee of Walasmulla.
N. E. Weerasooria, K.C. (with him E. B. Wikramanayake), for petitioner.Three members of the Committee which sat to appoint a Chairmanhave been disqualified. Their votes were therefore void. See Bland v.Buchanan1 and Nell v. Longbottom*. If these three members had notvoted there would not have been a tie and a drawing of lots would havebeen unnecessary. The Ordinance requires that notice should be givento all the members of the Committee.. Since the three disqualifiedmembers were disqualified ab initio all the members have not beennoticed.
S. J. C. Schokman, C.C., as amicus curiae.—The Supreme Court hasnot declared the election of the three members in question void, but thatthey are not qualified to be members of the Committee. See Cumara-singhe v. Abeyratnet. It does not necessarily follow- that all decisionsarrived at meetings of the Committee at which these members werepresent prior to such declaration must be invalid.
The Committee has been elected in accordance with the provisionsof the Village Communities Ordinance and the quorum required bysection 16 (5) for the election of the Chairman was present, not countingthese three members. Assuming that the votes of the three membersare bad, the burden is on the petitioner to prove that they were givenfor the respondent. The latter cannot be expected to prove that.no personunder a disqualification voted for him. See Rex v. Jefferson'.
In the present case all the petitioner says is that one of the disqualifiedmembers was a “ supporter ” of the respondent.
> (1902) 2 K. B. 76.3 39 N. L. R. 160.
* (1894) 1 Q. B. 787.*5 B. £ Ad. 865; 110 English Rep. 1007.
SOERTSZ SJ>J.—Wijeykoon v. Rajapakse.
The cases cited by the petitioner’s Counsel would not apply to thiscase as—
it was known in- those cases for whom the votes were given ;
there was express provision in the statute referred to for” the
election being questioned on the ground that a majority oflawful votes was not given to the successful candidate.
Cur. adv. vult.
April 17, 1939. Soertsz S.P.J.—
This is an application made by sin inhabitant of the Subdivision ofWalasmulla who describes himself as a qualified and registered voterfor that Subdivision, for a writ of quo warranto on the respondentrequiring him to show by what authority he claims and exercises theoffice of Chairman of the Village Committee of Walasmulla.
The applicant impeaches the right of the respondent to this officeon the ground that the Committee that elected him to that office was nota'properly elected committee inasmuch as there were on it three personswho were disqualified to be elected or to be members of the Committeeby virtue of section 18 (o) of Ordinance No. 9 of 1924.
The applicant also alleges that the respondent and another werecandidates for the office of Chairman, that there were twenty-fourmembers of the committee present at the meeting held for the purpose ofelecting a chairman, that the voting resulted in a tie, twelve votes beingcast for each candidate, and that the respondent became chairman as aresult of the “ drawing ” which took place in consequence of the equalityof votes. He states that one of the three disqualified persons “ was asupporter of the respondent and voted at the meeting”, and that if hisvote or the votes of the two other disqualified persons “ had been rejectedby the chairman as invalid in law, the result of the voting would not havebeen a tie and there would have been no necessity for a drawing ”.
The case put forward by the applicant raises two questions: first,was the committee that met to elect a Chairman a properly electedCommittee; second, what was the effect of the three disqualified personstaking part in the voting for a Chairman.
In regard to the first question, it is clear that twenty-one of the twenty-four members Were duly qualified and duly elected, and therefore, in myopinion, it cannot be said that there was no Committee that had beenproperly elected. For instance, on his own showing, the applicant mustconcede that if the three persons he complained against, had refrainedfrom voting, the election of a Chairman at that meeting would have beena valid election. It is not -necessary to consider what the position wouldhave been if the majority of those present were not qualified to beelected or to be members. The second objection would, therefore,appear to be the real question for decision. I think it is clear law thatin a matter of this kind it is sufficient, so far as the respbndent isconcerned, that he was elected at least by a de facto committee. Theapplicant must establish, if he can, his case that the votes of thedisqualified persons or of any of them were cast for the respondent.It would be manifestly unfair to require the respondent to show that thosevotes or any of them were not given in his favour. He is not, and cannever be in a position to show that, for the voting was by secret ballot.
Amaratunga v. Aliois.
Where voting is by secret ballot, the proper view to take is, I think,the view that the manner in which the votes were cast, must be regardedas undiscoverable in law, even if in fact, it is discoverable unless, ofcourse, there is provision for a scrutiny of the ballot, and a scrutiny ispracticable. In this case there is no such provision. Indeed, as far asI am aware, no scrutiny will reveal how the voting went on this occasion.All we have here is the statement that one of the three persons was asupporter of the respondent, and the inference drawn therefore thathe gave his vote for the respondent. This is, probably, a good guess,but none the less it is a guess. It is notorious that there are last minute* conversions ’ in matters pertaining to elections, and it would beextremely dangerous to assume that even the most vigorous supporter,as far as appearances went, cast his vote for the candidate he professedto support. I, therefore, am of opinion that it has not been establishedthat the respondent’s election was the result of the participation of anyof these voters.
I desire to add that, in my opinion, the matter would hardly havebeen different if these three persons now came forward to say that theyvoted for the respondent. It would be against the principle of theballot to admit such statements. Even if they could be and wereadmitted, their probative value would be very questionable. I wouldhere refer to the decision m. and to the remarks made in the course of theargument in, The King v. Jefferson
For these reasons, I hold that the applicant has not madie out a casefor the writ to be enforced, and I dismiss his application.
I wish to express my thanks to the Attorney-General and to theCrown Counsel who appeared as amicus curiae.
WIJEYKOON v. RAJAPAKSE