022-SLLR-SLLR-2000-V-3-GUNASINGHE-BANDA-v.-NAVINNA-AND-OTHERS.pdf
GUNASINGHE BANDA
v.NAVINNA AND OTHERS
COURT OF APPEALJAYAWICKRAMA, J.
ELECTION PETITIONSCA 5/99, CA 6/9913rd MARCH. 12th MAY, 200030th JUNE, 03rd JULY, 2000
Provincial Councils Elections Act No. 2 of 1988 S.82, S.92, S.98, S.101,
S.105. S.107- Parliamentary Elections Act lOofl978 -S.98- PresidentialElections Act 15 of 1981 – S.96 – Election Petition – Corrupt practice -Affidavit – Hearsay – Bad in Law cannot be acted upon – What is an affidavit
Oaths and Affirmation Ordinance No. 9 of 1895 – amended by S.22 of1915.13of1954,23 of1953-Civil Procedure Codes. 181,182.437&440
Stale Lands Recovery of Possession Act 7 of 1979 – S.5(2)
The Petitioner had alleged two grounds of corrupt practice based on twodifferent interviews, said to have been given to the “Lakbima" newspaperby the 1st and 2nd Respondents. No affidavit from either of the journalisthad been tendered.
The Respondent raised a preliminary objection that, in respect of thegrounds of corrupt practice pleaded as Charges 1 and 2 the Petitionerfailed to support same by any acceptable prima facie material and assuch it is not competent for the Petitioner to maintain/prosecute thePetition. It was contended that the affidavit annexed in support of theallegation of corrupt practice which is the foundation of the Petitioncontains hearsay and as such is not an affidavit as contemplated by Law.
The Petitioner contended that the Petition is not required to contain theevidence, conversely that it could contain hearsay evidence, the affidavitin support of the allegations in the Petition will not necessarily berequired to contain evidence and could contain hearsay evidence as well,and that in setting out an allegation of corrupt practice the Petitioner isnot bound by rules of evidence and could include in and as part of theallegation of corrupt practice, statements which are hearsay in thePetition.
Held :
Wording in S.98(d) of the Provincial Councils Election Act 2 of 1988regarding the filing of an affidavit in supportive of the allegation of such
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corrupt or illegal practice is different from S.80(B)d of the CeylonParliamentary Elections Order in Council. In S.80(B)(d) an affidavit in theprescribed form has to be filed fn S.98(d) of the Parliamentary Electionsact 10 of 1978 and Provincial Councils. Elections Act 2 of 1988 the words'in the prescribed form' are not included.’ In the subsequent amendmentto these Acts, those words have been deleted. Although S.80B(d) refersto a prescribed form, no form has been prescribed by law.
Whatever the form may be, an affidavit must conform to the provisionsof the Oaths and Affirmations Ordinance No. 9 of 1895 as amended byAct 22 of 1915, and Act 13 of 1954 and Act 23 of 1953 and Sections 181.182, 437 of the Civil Procedure Code.
It is very clear that an affidavit could contain only such facts as adeclarant is able of his own knowledge and observation to testify to.Therefore hearsay could not be included as contents of an affidavit.
A Petition stating facts of observation and belief is not converted intoan affidavit by the addition of a verifying clause, an affirmation or oathto the effect that the statements in the Petition are true.
Per Jayawickrema, J.
“If one is to base legal action on news items appearing in newspapers noone will be safe in this country. Present day media are hell bent only ason exposure rather than keeping the nation informed of the news. Thetruth or otherwise of news items depends on the integrity, impartiality,consistency and credibility of a journalist. The present day print andelectronic media make very serious allegations or statements borderingon defamation against persons in every strata of society includingreligious leaders and Judges just to demean such persons standing insociety."
It would be a very dangerous precedent to allow a person to file anaffidavit entirely depending on publications in the media, without beingable of his own knowledge and observation to testify to the truth orotherwise of the facts stated therein.
Petition cannot be supported by an affidavit which is based onhearsay even if the names of persons to whom the alleged statementshave been made are named as witnesses. Even if the Journalists vouchfor the fact that the Respondents did make such statements thePetitioners cannot base affidavits on that basis, for the simple fact thatthe facts are not of their own knowledge and observations.
CA
Gunasinghe Banda u. Afavinna and Others
(Jayawickrama. J.)'
209
Election Petitions in respect of the North Western Provincial CouncilElections.
Cases referred to :
Collettes v. Commissioner oj Labour and others (1989) 2 Sri L R 6at 15
Jayaralne v. Sirimavo Bandaranaike 69 N1R 184
David & Company v. Albert Silva 31 NLR 316
Simian Fernando v. Gunasekera 47 NLR 512
Rajapakse v. Gunasekera (1984) 2 Sri L R 1 at 15. 16. 17
Jayasinghe v. Jayakody 1985 2 Sri L R 77
Subramaniam v. Public Preseculor (1956) 1 WLR 965 at 969
Kandiah v. Abeykoon 1986 3 CALR 141
Bandaranaike v. Premadasa 1989 1 SRI LA 240 at 254-225
K.N. Choksy P.C.. with LC. Seneviratne, P.C., Daya Pelpola. D.H.N.Jayamaha, Ronald Perera. Lakshman Perera. Ms. Kusan Wyetunga forPetitioner.
H.L. de Silva. P.C. with D.S. Wijesinghe, P.C., Dr. JayampathyWickremaratne and Peter Jayasekera for 191 Respondent.
Faiz Musthapha, P.C. with Dr. Jayampathy Wickramaratne and GastonJayakody for the 2nd Respondent.
Cur. adv. vult.
August 01, 2000.
JAYAWICKRAMA, J.Two Election Petitions Nos. 5/99 and 6/99 were filed bytwo different petitioners against the 1st and 2nd respondentspraying that the election of the 1st respondent as a member ofthe North Western Province Provincial Council at the Electionheld on 25lh January 1999 be declared null and void.
As both petitions were identical in content they were takenup together for inquiry. The learned President’s Counsel forthe Respondent Mr. Faiz Musthapa raised the followingpreliminary objection:
“The petitioner has, in respect of the grounds of corruptpractice pleaded as charges No. 1 and No. 2, failed to
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support same by any acceptable prima facie material andas such, process has been secured without warrant and/orjustification thereof and as such, it is not competent for thepetitioner to maintain and/or prosecute the petition."
Thus the objection was taken that the petitioner could nothave and maintain the petition for the reason that the affidavitannexed in support of the allegation of corrupt practice whichis the foundation of the petition, contains hearsay and as suchis not an “affidavit" as contemplated by law.
The relevant facts and points of law as presented by therespondent are as follows:
The petitioner has come to Court alleging two groundsof corrupt practice based on two different interviews said tohave been given to the “Lakbima” Newspaper by the Is' and 2ndrespondents respectively. In paragraph 12 of the supportingaffidavit, it is averred that the 1st respondent “subjectedhimself to an interview through a journalist by the name ofK. Dasanayake Bandara and that the said interview wascarried in a particular issue of the said Newspaper. Paragraph17 of the affidavit alleges that the 2nd respondent granted aninterview to one Sam path Deshapriya and that the newspapercarried an interview. There had been no affidavits from eitherof the journalist.
Nowhere In the affidavit is it stated that the petitionerwas present when either of the interviews was granted. Quiteclearly, the affidavit in such circumstances contains hearsayand is violative of section 181 of the Civil procedure Code.Vide Collettes Ltd. v. Commissioner of Labour and others'" atpage 15. 3 * *
(3)The affidavit does not in any way add to the
production of the newspaper and does not in any way. even
prima facie, establish or suggest that the offending statementswere made Vide Jayaratne v. Sirimavo R.D. Bandaranaike'21.
CA
Cunasinghe Banda u. Navinna and Others
(Jayawickrama, J.)
211
The legal requirements of an affidavit are set out insections 181, 182 and 437 of the Civil procedure Code. Section181 bars hearsay and an affidavit which constitutes hearsayis bad in law and cannot be acted upon. Vide David & Companyu. Albert Silval3>, Simion Fernando v. Gunasekara141.
In terms of section 92 of the Provincial CouncilsElections Act No. 2 of 1988 an election can be avoided onthe grounds of general intimidation, bribery, etc, or noncompliance with the Act and an election of a candidate can alsobe set aside on any of the several grounds set out in S.92(2).Section 98 sets out the requirements of an election petitionand singularly it is only in respect of an allegation of corruptor illegal practice that a supporting affidavit is required as persection 98(d). The reason for this distinction is that anallegation of corrupt practice has, apart from avoiding theelection of a particular candidate, the effect of placing theoffender in peril of:
the conviction and resulting penal consequences.Section 82(1) of the Act.
subjecting such person to loss of competence to voteor being elected at an election to Provincial Council for07 years. Section 82(2).
loss of competence in the same manner as such (ii)above consequent to a report by an election Judge. Section101 read with section 105 and 107. 6
(6)Section 98(d) clearly makes the supporting affidavitmandatory for it says that the petition “shall also beaccompanied by an affidavit.” The contents of the affidavits isalso clearly sets out by section 98(d) which requires that “fullparticulars of any corrupt or illegal practice” should be set outincluding “as full a statement as possible of the names ofthe parties alleged to have committed such corrupt orillegal practice and date and the place of the commission
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of such corrupt or illegal practice." The Section furtherrequires that the accompanying affidavit shall be “in supportof the allegation of such corrupt or illegal practice. Thisprovision necessarily refers to the requirements set out in thepreceding portion of the section, namely “as full a statement aspossible of the names of the parties alleged to have committedsuch corrupt or illegal practice and the date and place ofcommission of such corrupt or illegal practice."
An affidavit based on hearsay does not clearly satisfythe requirements of the law. (Vide David & Company v. AlbertSilva(Supra), Simian Jemando v. Gunasekera{Supra) Collettesv. Commissioner of Labour(Supra)) and its acceptance, wouldtotally defeat the rationale for requiring an affidavit and is inthe teeth of the case of Jayaratne v. Bandaranaike(Supra)
The proviso to section 98 which states that there is norequirement that evidence should be stated in the petition,does not detract from this position. For, in order to enable theCourt to embark upon the inquiry, there must be an affidavitwhich prima facie suggests the commission of the act alleged.A serious allegation of this nature must be prima facieplausible as it is on par with the Court determining whetherthere is, for instance, a cause of action on the face of the plaintin a Civil action for the issue of process.
The Learned President’s Counsel Mr. L.C. Seneviratne forthe petitioners formulated his points of law in the followingterms:-
(1) That Simion Fernando v. Gunasekera and Jayaratne v.Sirimavo Bandaranaike are not applicable to the present casefor the reason that Simion Femando(Supra) case was inrelation to an application for a writ of quo warranto seeking tooust the respondent in that case who was the Chairman of aVillage Committee on the ground that his election to officeis null and void and Jayaratnes' Case(Supra) is a contempt ofCourt matter and in those cases Court had to take a decision
CA
Cunasinghe Banda v. Navinna and Others
(Jayawickrama, J.)
213
on the facts placed before Court by way of an affidavit anddocumentary evidence. The function of the affidavits in a writapplication and in an election petition are wholly different. InContempt matters to issue a rule nisi the Court has to act onavailable evidence that would lead the Court to conclude thatan offence appears to have been committed. In Jayaratnes’Case(supra) no affidavit had been filed. An Election petition isdecided after evidence is led and heard by Court.
Section 98 of the Provincial Councils ElectionsAct No. 2 of 1988 deals with “contents of the petition” andsub section (d) of section 98 requires the petition tocontain full particulars of the corrupt practice alleged andthe affidavit which accompanies the petition is filed insupport of the said allegation of corrupt practice and thedate and place of such commission of such practice."
The proviso to section 98 is fundamental to the matterin issue now. It states that “provided, however, that nothingin the preceding provisions in this section shall be deemedor construed to require evidence to be stated in thepetition." If the petition is not required to contain theevidence, conversely that it could contain hearsay evidence,the affidavit in support of the allegations in the petition will notnecessarily be required to contain evidence and could containhearsay evidence as well. The law is therefore clear that insetting out an allegation of a corrupt practice the Petitioner isnot bound by rules of evidence and could include in and as partof the allegation of corrupt practice, statements which arehearsay evidence in the petition. It therefore follows that theaffidavit which is required to support the allegation of corruptpractice set out in the petition cannot be confined to rules ofevidence only if it is to support an allegation of corrupt practicein the petition which is based on hearsay. The objective of theaffidavit which accompanies the election petition is to act asa restraint against frivolous allegations being made in thepetition. Thus what section 98 requires is that the affidavit
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should support the allegation of corrupt practice and not thefacts pertaining to the said allegation which may be hearsaysince such facts would be elicited at the hearing of the petition.
In the case of Rajapaksa v. Gunasekara!5> at 15, 16, 17the Supreme Court stated that the Court is not called upon tomake any order to the prejudice of the respondent on the basisof prima facie evidence furnished by the affidavit nor to inquireinto the truth of the averments in the affidavit before taking afurther step on the petition. It is for this reason that section98(d) only requires the affidavit to support the allegation madein the election petition.
The Supreme Court further states that “An Electionpetition cannot and should not be dismissed or rejected inlimine on the ground of incorrect or erroneous avermentsmade in the affidavit filed in support of corrupt or illegalpractice. The Election Judge enters on the exercise of hisjurisdiction on the basis of the averments in the electionpetition.
In Jayasinghe u. Jayakody161, the Supreme Court heldthat even though an affidavit accompanying the electionpetition, is based on information received by the Deponentfrom others (that is hearsay evidence) and the affidavit isdefective in that respect, the petition should not be dismissedon that ground namely that the source of information has notbeen disclosed as it is not a requirement of the law that thesource of information or the ground of deponent's belief has tobe set out in the affidavit. A defective affidavit will not affect thevalidity of an election petition in view of the decisions in theabove judgments. 7
(7)Although the above authorities are in respect ofelection petitions on the ground of corrupt or illegal practiceunder the Parliamentary Elections Act No. 01 of 1981 asamended. Section 98 of the Parliamentary Elections Act whichdeals with the contents of the petition is virtually the same as
CA
Gunasinghe Banda v. Navlnna and Others
(Jayawickrama. J.)
215
section 98 of the Provincial Councils Elections Act, underwhich this election petition has been filed. Infact 98(d) and theproviso to section 98 of the Parliamentary elections ActNo. 1 of 1981 as amended is identical with section 98(d) andthe proviso to section 98 of the Provincial Councils ElectionsAct. Further section 96(d) and the proviso to section 96 of thePresidential Elections Act No. 15 of 1981 as amended isidentical with section 98(d) and the proviso to section 98 of theProvincial Councils Elections Act are also identical.
The authorities cited and relied on by the respond-ents which deal with the elections under the ParliamentaryElections Act are equally applicable to the election petitionfiled under the Provincial Councils Elections Act in this case.
The affidavit of the petitioner even assuming that itcontains hearsay evidence does not in any way vitiate theelection petition filed by the petitioner and that the preliminaryobjections of the respondents would therefore be dismissed.
The law does not prevent evidence of a statementmade by another being led in evidence without the other beingcalled for the purpose of establishing that such a statementwas infact made. What the law states is that evidence of sucha statement could be admitted to establish the fact of thestatement having been made but such evidence would notestablish the truth of the contents of the statements. Thiswould have to be proved by calling the person who made thestatement or otherwise “Subramaniam v. Public Prosecutor171at 969.
The purpose of the said document the extract fromthe newspaper interview is the key to the admissibility of thestatement. The affidavit does not seek to establish the truth ofwhat is contained in the newspaper article at this stage butonly the fact that relevant statements have been made at theinterview which constitutes corrupt practice. According to this
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principle of law also the evidence cannot be challenged, as itonly seeks to support the fact that a press interview had beenheld as stated in the newspaper article. The affidavit does notseek to establish the truth or falsity of the contents of thestatement which would be done at a stage of leading ofevidence.
It is to be noted at this stage that the wording in section98(d) regarding the filing of an affidavit in supportive of theallegation of such corrupt or illegal practice is different fromsection 80(B) (d) of the Ceylon Parliamentary Elections Order incouncil. In section 80(B)(d) ah affidavit “in the prescribed form"has to be filed in support of the allegation. In section 98(d)of the Parliamentary Elections Act No. 10 of 1978 andProvincial Councils Elections Act NO. 2 of 1988 the words “Inthe prescribed form" are not included. In the subsequentamendment to these Acts the words “in the prescribed form"has been deleted. Although section 80(B)(d) refers to aprescribed form, no form has been prescribed by law.
Whatever the form may be an affidavit must conform to theprovisions of Oaths and Affirmations Ordinance No. 9 of 1895as amended by Act No. 22 of 1915 and Act No. 13 of 1954 andAct No. 23 of 1953 and sections 181, 182, 437 of the CivilProcedure Code. It was held in Kandiah u. Abeykoon181, that anaffidavit has to be in strict compliance with those which thelegislature has thought important enough to set out in theschedules. In that case Gunawardana, J. observed:- . . .
“Counsel for the Petitioner also drew our attention tocertain defects in the affidavit referred to and argued that theydeprive it of the effect contended for it. Firstly he pointed outthat the Jurat was not in the form as amended by act No. 58of 1981 and was deficient in not indicating the place ofdeposition . . . State Counsel appearing for the Respondentcontended in terms of Oaths and Affirmations Ordinancethese are mere irregularities and do not touch the validity of
CA
Gunasinghe Banda v. Navinna and Others
(Jayawickrama, J.)
217
the proceedings held before the Magistrate . . . One must Ithink be guided in this regard by the form of the affidavit ascontained in the schedule to the act (“Form C”) and it mustindicate on its face whether it was, that the deponent took anoath or made an affirmation, before it could be said that it wascapable of “verifying to the matters set forth in such anapplication.”
The above case relates to an application under StateLands (Recovery of Possession) Act No. 7 of 1979 and it washeld that the objections taken in regard to the validity of theaffidavit were validly taken and go beyond mere technicality.In that case Gunawardana, J. held that when such papers aredefective and not in accordance with the relevant provisions,the Court should not issue summons. He further observedthat an application under section 5(2) has to be “supported byan affidavit in Form C set out in the schedule” to the Act“verifying to the matters set forth in such application."
When one considers the judgments referred to by thelearned counsel for the petitioner, it is abundantly clear thatthe question of hearsay was never considered in any of thecases cited above. Technical objections as to the defects in theaffidavit were considered in the above cases but the validity ofan affidavit which consist only of hearsay to support thepetition has not been considered in any of the above cases. Thequestion that this election Court has to decide is whetherthe election petition could be supported by an affidavit thecontents of which is based only on hearsay. According tosection 6 of the Oaths and Affirmations Ordinance, all oathsand affirmations for any other purpose shall be administeredaccording to such forms and with such formalities as may befrom time to time prescribed by rules made by the SupremeCourt and until such rules are made according to the Formsand the formalities now in use. (Vide First schedule to the CivilProcedure Code Form No. 75) In the cases cited abovedefects in the affidavits were ignored because the formof the mandatory affidavit was not prescribed by law.
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According to section 12(3) of the Oaths and AffirmationsOrdinance every Commissioner before whom any affidavit istaken under this Ordinance, shall state truly in the Jurat orattestation at what place and on what date the same wasadministered or taken.”
Provisions in regard to affidavits in the Civil ProcedureCode are as follows:-
Affidavits shall be confined to the statement of such factsas the declarant is able of his “own knowledge andobservation to testify" to, except on interlocutoryapplications in which statement of his belief may beadmitted, provided that reasonable grounds for suchbelief be set forth in the affidavit (Section 181).
A petition stating facts of observation and belief is notconverted into an affidavit by the addition of a verifyingclause, an affirmation or oath, to the effect that thestatements in the petitions are true (section 182).
Evidence on affidavit, signing of the affidavit andalteration of an affidavit are dealt with in sections 437 to440 of the Civil Procedure Code.
According to the above provisions an affidavit couldcontain only facts as a declarant is able of his own knowledgeand observation to testify to. Therefore hearsay could not beincluded in an affidavit.
What is an Affidavit?In English Law an affidavit is a written statement in thename of a person, the deponent, who makes it and signs andswears (or affirms) to its truth before a Commissioner forOaths. (The Oxford Companion to Law by David M. Warker1980 Ed. page 38). An allegation means generally anystatement of fact made in a pleading or affidavit. (Page 49Oxford Companion to law)
CA
Gunasinghe Banda v. Nauinna and Others
(Jayawickrama. J.)
219
An affidavit must be confined to such facts as the witnessis able of his own knowledge to prove, except on Interlocutorymotions on which statements as to his belief, with the groundsthereof may be admitted. An affidavit may be sworn by anyperson acquainted with the. facts of the case. An allegation isa statement of fact made by a party in a legal proceeding.(Aiyar’s Law Terms and Phrases 4th ed. by A.S. Chaudhri 1958page 31 and 44).
Affidavits may contain only such facts as the deponent isable of his own knowledge to prove, unless the Court otherwiseorders. However, for the purpose of interlocutory applications,affidavits may contain the statements of informations or beliefwith the source and grounds thereof. Affidavit evidence canonly be entitled to the same weight as oral evidence if those whoswear affidavits realize that the obligations of the oath is asserious when making an affidavit as when making statementsin the witness box. (Phipson on Evidence 14th ed. page 165).
An affidavit is a statement made in writing, confirmed bythe maker’s oath, and intended to be used as judicial proof.(The Oxford English Dictionary – 1989 2nd ed. Vol. 1 page 216).
When one takes into consideration the aboveinterpretations and provisions of law it is very clear thatan affidavit could contain only such facts as a declarant is ableof his own knowledge and observation to testify to. Thereforehearsay could not be included as contents of an affidavit.
In the instant applications the affidavits tendered insupport of the petitions do not state at what place theaffirmations were administered as required by 12(3) of theOaths and Affirmations Ordinance. The attestations are asfollows:-
“read over and explained in English and havingunderstood signed and affirmed to on this 18lh day of
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February, 1999.” At what place the affirmations were taken isnot indicated. Below the signature of the justice of the peacein his seed the name and address is stated. But the place ofaffirmation has not been indicated clearly. The petitioner inparagraph 2 of the affidavit states that “I depose to thisaffidavit from facts within my personal knowledge anddocuments in my custody.” But in the two charges against therespondents, the petitioners states that the 1st respondent andthe 2nd respondent having subjected themselves to interviewsto two journalists by the name of K. Dasanayaka Bandara andSampath Deshapriya of the Sinhala Newspaper Lakbimathe full texts of which were published on Sunday the 13thDecember of 1988 and 20lh December 1988 the 1st and 2ndrespondents have answered a series of questions put to themby the said journalists at the said interviews and made thealleged statements.
The above statements in the affidavits are hearsay. Infactthe date and the place where the respondents made the allegedstatements are not stated in the affidavits. On a reading ofthe affidavits and the charges against the respondents it isabundantly clear that the statement attributed to therespondents were not made to the petitioner or in his presence.Therefore the facts alleged in the affidavit are not facts that thedeclarant is able of his own knowledge and observation totestify to. It is clear on a reading of the two publications of theLakbima Newspaper the petitioner has thought that therespondents have made such statements to these journalists.
If not for the publishing of the alleged statements in thepublications referred to, the petitioners would have not knownwhat the respondents have stated to the journalists. On areading of the relevant publications the petitioners have cometo the conclusion that the respondents have infact made suchstatements about the petitioner in application No. 05/99. Apetition stating facts of observation and belief is not converted
CA
Gunasinghe Banda v. Naviruxa and Others
(Jayawickrama, J.)
221
into an affidavit by the addition of a verifying clause, anaffirmation or oath, to the effect that the statements in thepetition are true. (182 of the Civil Procedure Code) Thepetitioners have not made any attempt to verify the fact, thatwhether the alleged statements were infact made to thejournalists. In normal circumstances if some news appears ina newspaper detrimental to a person, the immediate reactionis to write to the paper to find out the truth or otherwise of themaking of such statement or send a letter demand seeking anapology or retraction and failing to do so would make themliable for legal action. If one is to base legal action on newsitems appearing in Newspapers no one will be safe inthis country. Present day media are hell bent only onexposures rather than keeping the nation informed of thenews. The truth or otherwise of news items depends on theintegrity, impartiality, consistency and credibility of ajournalist. The present day print and electronic mediamake very serious allegations or statements bordering ondefamation against persons in every strata of societyincluding religious leaders and judges just to demeansuch persons standing in society. In Courts of law suchallegations have to be proved after properly initiatingproceedings according to law and procedure, to have anyresulting consequence. It would be a very dangerousprecedent to allow a person to file an affidavit entirelydepending on publications in the media without being able ofhis own knowledge and observation to testify to the truthor otherwise of the facts stated therein as observed bytheir Lordships of the Supreme Court in Bandaranaike u.Premadasa!91 at 254 to 255. Their Lordships observed asfollows: –
“Just as much the public have interests in the electionpetition, there is also the principle that the electionof a candidate should not be lightly interfered with.In Samar Singh v. Kedar Nath, it was contended thatthe Court has no power to reject an election petition
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in limine on a preliminary objection but must proceedwith the trial, record the evidence, and only afterthe trial of the petition is concluded, reject a defectivepetition. The Supreme Court in rejecting thisargument observed that “it would be in the interestsof the parties to the petition and to the constituencyand in the public interest to dispose of preliminaryobjections and to reject cm election petition if it doesnot disclose any cause of action.”
In Arthur Hussain v. Rajiv Gandhi when a similarsubmission was made, the Supreme Court rejectedthe argument as untenable and observed that thepowers (to reject an election petition in limine) in thisbeha(f are meant to be exercised to serve the purposefor which the same have been conferred on thecompetent Court so that the litigation comes to anend at the earliest and the concerned litigcmts arerelieved of the psychological burden of the litigationso as to be free to follow their ordinary pursuits anddischarge their duties. And so that they can adjusttheir qffairs on the footing that the litigation will notmake demands on their time or resources, will notimpede their future work, and they are free toundertake and fulfil other commitments. So long asthe sword of Damocles of the election petitionremains hanging, an elected representative of thelegislature would not feel sufficiently free to devotehis wholehearted attention to matters of publicimportance which clamour for his attention inhis capacity as an elected representative of theconcerned constituency. We take the view that theCourt has the power to reject an election petitionin limine, if there is a fundamental defect in anelection petition arising out of non-compliance witha mandatory provision.”
CA
Gunasinghe Banda v. Navinna and Others
(Jayawickrama. J.)
223
On a reading of the petitions and affidavits it is abundantlyclear that the petitioners were not able at least even to supportby an affidavit that the alleged statements were infact made bythe respondents. To initiate proceedings byway of an ElectionPetition on corrupt or illegal practice the petitioner must beable to of his own knowledge and observation to testify thatsuch statements were made. The mere reading of a publicationand believing that the statements attributed to therespondents were infact made is not sufficient to file anelection petition under section 98(d) of the Provincial CouncilsElections Act. One could overlook the defects as regards theformalities in an affidavit provided the statements of factsstated therein are facts as the declarant is able of his ownknowledge and observation to testify to. In the instant electionpetitions the petitioners were not able to state when and wherethe alleged statements were made by the respondents otherthan the producing of a copy of a newspaper, the publicationof which was obviously subsequent to the date of making ofsuch statement if such a statement was infact made. The dateand the place where the alleged statements were made are notstated in the affidavits.
In the instant cases if the petitioners made an attempt toverify from the newspapers to find out the truth or otherwiseof the fact of making such statements, and if the respondentsdenied making of such statements then there would have beenno ground for acting against them. In such an event theremedy would have been for the petitioners to take legal actionagainst the publishers for the publications.
In view of the above reasons I am of the view that a petitioncannot be supported by an affidavit which is based entirely onhearsay even if the names of persons to whom the allegedstatements have been made are named as witnesses. Even ifthe journalists vouch for the fact that the respondents didmake such statements, the petitioners cannot base affidavits
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on that basis for the simple fact, that the facts are not of theirown knowledge and observations. Therefore the judgmentsreferred to by the petitioners could be distinguished in theseinstances as the affidavits were based entirely on hearsay.
For the above reasons I uphold the preliminary objectionand dismiss both election petitions with costs.
Preliminary Objection upheld.
Election Petitions dismissed.