015-NLR-NLR-V-33-IN-THE-MATTER-OF-AN-ELECTION-PETITION-re-AVISSAWELLA-DISTRICT-ELECTORATE.pdf
PH
Tillekewardene t. Obeyesekere.
66
1931Present: Drieberg J.
In the Matter of an Election .Petition re Avissawella District
Electorate.
TILLEKEWARDENE t>. OBEYESEKERE.
Election petition—Security for respondent's costs—Three charges—The Ceylon
(State Council Elections) Order in Council, 1931.
Where an election petition alleged three offences against the respondent,viz., bribery, treating, and contracting for payment for conveyance ofvoters,—
Held, that security of five thousand rupees deposited for respondent’scosts was sufficient on the basis of three charges within the meaning ofsection 13 (2) of the rules in the sixth schedule to the Order-in-Council,1931.
The word " charge ” may be applied to the offence stated in thepetition and also to each act constituting the offence.
HIS was an election petition in which the respondent moved thatthe petition be dismissed on the ground that the security of
given was inadequate as there were more than three charges.
1 IS Moore I. A. 181.* {1888) 13 A. C. 780.
3J. V. A >»10(S /SO)
GO
DBIEBERG J.—Tillekeutardene c. Obeyesekere.
R. L. Pereira, K.C. (with him H. V. Perera and Seneviratne), for respond-ent.—The petition must be dismissed because the security is insufficient.The Order in Council requires a deposit of Rs. 5,000 on account of thefirst three charges and Bs. 2,000 for every subsequent charge. In thispetition the petitioner states 17 cases of bribery, 26 of treating, and atleast 14 of the offence of conveyance of voters.
[Drieberg J.—Must not the amount be determined on the avermentsin the petition when security is tendered?]
Any objection at that time would be premature. It would be open tothe petitioner to say that he limited himself to three specific acts. Thetime for objection would be when particulars were disclosed and thenumber of charges could be discovered. Each act of bribery or treatingwould constitute a specific charge. This is clear from the Englishauthorities.1 The object of the provisions of the Order in Council isto prevent the harassing of a respondent by frivolous’ charges. Amultiplication of charges would mean an increase of costs to be incurredby the respondent. In previous election cases where the number ofcharges was not limited a respondent’s costs generally amounted toabout Rs. 25,000. A deposit of Rs. 5,000 is obviously inadequate tomeet a case of 57 charges as in this petition.
F. de Silva (with him E. B. Wikramanayake), for petitioner.—The word " charge ” is loosely used in the English cases. The numberof charges is not limited in England so that no distinction is made betweenthe form of misconduct alleged and the number of acts sought to beproved under it. The word “ charge ” means the form of misconductcoming under the description of corrupt and illegal practices. Anynumber of acts can be proved under it. These are generally referredto in England as “ cases ” or “ instances There are therefore onlythree charges in this petition. An election petition is not a matterthat concerns merely the parties to it. It is a matter of public interestand a full investigation into the conduct of the respondent is necessary.
Counsel cited I O’M <6 H 197; Rogers on Parliamentary Elections (newed.); p. 196; 6 O’M & H 105; 150; 336; 59; 34; 119; US.
R. L. Pereira, K.C., in reply.—When a " charge ” is investigated andproved it becomes a “ case ”.
September 18, 1931. Drieberg J.—
In his ’petition the petitioner alleged that the respondent was guiltyof three offences: bribery, treating, and paying or contracting for thepayment for conveyance of voters.- The petitioner gave security in asum of Rs. 5,000 on the basis that there were three charges only.
In answer to an. application for particulars the petitioner stated 17cases of bribery and 26 of treating; the particulars of the offence ofconveyance of voters are not clear but they include at least 14 cases ofpayments or contracts for conveyance.
On these particulars' being furnished, the respondent moved on the14th instance that the petition be dismissed on the ground that thesecurity of Rs. 5,000 was inadequate as there were more than three charges.> i O'M. <b H. ZOO ; i L. R. Common Pleas 1*5.
DB1EBERG J.—Ttlleketoardene v. Obeyesekere.
67
Mr. Pereira for the respondent contends that each act of bribery,treating, or conveyance is a charge in the sense in which the word is usedin section 12 (2) of the rules in the 6th schedule of the Order in Council of1931. If this is so, the security should have been Bs. 5,000 for the firstthree and Bs. 2,000 for each of the additional 54 charges, amounting inthe aggregate to Bs. 113,000. Our rules regarding election petitionsfollow the English Parliamentary RuleB made under the ParliamentaryElections Act, 1868,1 the form of the petition for declaring an electionvoid being the same.
Security to the required amount has to be given on the presentationof the petition or within three days and, if. not so given, the petition mustbe dismissed. It follows from this that the amount of the security mustbe determined on the averments in the petition.
If each act on which the respondent is charged with an offence such,for example, as bribery constitutes a distinct charge within the meaningof rule 12 (2), then it will be necessary to disclose them in the petitionfor the purpose of determining the amount of security; but is thisnecessary?
It can be urged that the requirement in the form of the. petition givenin the rules that “ the facts and grounds on which the petitioners rely ”should be stated calls for an averment of each act of, e.g.t bribery, andthat an averment generally that the respondent has been guilty of theoffence of bribery is not enough.
This question was settled shortly after the passing of the ParliamentaryElections Act of 1868 in the case of the Westminster Election Petition *,where it Was contended that a petition which merely alleged that therespondent was guilty of certain offences was bad as it did not set out thefacts and grounds on which the petitioner relied. It was held that thepetition was sufficient and that further information of the act or actssought to be proved need not be furnished until an order for particularsis made. The many cases in which the petitions appear in the reports ofEnglish Cases show that they are so drawn. That this is the recognizedpractice appears from the form of petition given in Rogers, Vol. II., page523. Mr. B. L. Pereira argued that though such a petition would beadequate in England it will not be so here for this reason. In England,under the Parliamentary Election Buies, security has to be given in£1,000 whatever may be the number of offences stated in the petitionor the acts given in the particulars. Under our rules the amount ofsecurity depends on the number of the “ charges in the petition Hecontends that sufficient mention of the number *of the acts sought to beproved must be made in the petition in order that the amount of thesecurity can be ascertained. If this contention is right the petition shouldnot. be dismissed but the trial should be limited to one act of bribery,one of treating, and one of payment or contract for conveyance.
In my opinion by the word “ charges ” in rule 12 (2) is meant the variousforms of misconduct coming under the description of corrupt and illegalpractices; for example, whatever may be the number of acts of briberysought to be proved against a respondent the charge to be laid againsthim in a petition is one of bribery. The fact that the security here has' 31 & 32 Viet. c. 125.» (1809) L. R. 4 C. P. 145 & 19 L. T. 565.
68
pftIEBEB& J.—Tilleketoardene v. Obeyesekexp.
to depend on the number o£ matt 'rs submitted for inquiry in the petitiondoes not compel us to adopt a different view of what these matters arefrom what is accepted in practice in England nor does it necessitateany departure from what an election petition should state. The matterson which the petition prays for inquiry are that the respondent hascommitted the offences of bribery, treating, and conveyance of voters,and so far as the petition is concerned each constitutes a charge againstthe respondent.
The word “ charge ” can be applied to the offence stated in the petitionand also to each act constituting the offence though the latter are moreoften referred to in the reports as “ cases ” or “ instances ” of the offence.^
The distinction between the charges set out in the petition and thecharges in the particulars is shown in the manner in which evidence ofnew matter is allowed after particulars have been given. An additionalcircumstance of an offence is, on good cause being shown, allowed to beproved at the trial though not included in the particulars—Cheltenham(1869),* Wigan,2 in which other cases on this point are mentioned. Thisis not allowed unless it falls under one of the offences alleged in thepetition.
It was urged that it was the intention of the Legislature to requireheavy security to prevent a large number of unlawful acts being allegedon insufficient grounds and to prevent protracted trials. The object ofthis provision is stated in the rule itself and this is to secure a successfulrespondent against the costs incurred by him. A petitioner who hasfailed to prove a large number of charges can be deprived of his costs,though he has succeeded on others in having the election declared void—theHereford Case.3 Counsel laid stress on the large number of specific instancesof offences set out in the particulars, but this is not an unusual feature inelection petitions. In the Hereford Case (supra) there were 184 instancesof bribery alone, and in the Norwich Case 4 nearly 100. The petitionersin those cases had to give security in a sum of £1,000. If the respondent'scontention is right such petitions here would have to furnish securityin sums of Rs. 367,000 and Rs. 199,000, respectively. The Legislaturecould not have acted in the belief that the cost of litigation is heavierhere than in England.
I hold that the petition contains no more than three charges and thesecurity given is in order and I disallow the respondent’s motion of the14th instant.
This matter was argued on the same day as another motion dated the14th instant by the respondent that the charge of payments and contractsfor payment for conveyance of voters be dismissed on the ground thatthe petitioner had not fully complied with the order for particulars. Idealt with that motion the same day but made no order as to costs.
The petitioner is entitled to the costs consequent on this motion, butI direct that they will not be payable by the respondent until the finaldetermination of these proceedings.
Application refused.
3 1 O'M. 4s H. 194.
♦ 1 O'M. 4s H. 91.
> 1 O'M. 4s B. 64 and 19 L. T. 120.* 1 O'M 4s H. ***