034-NLR-NLR-V-50-PELPOLA-Petitioner-and-R.S.S.-GUNAWARDENA-Respondent.pdf
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WINDHAM J.—-Pelpola v. Gunawardena
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Present: Windham 3.
PEEPOEA, Petitioner, and R. S. S. GUN AWARID ENA,Respondent
In the Matter of the Trial of Election Petition No. 11of 1947 (Gampola)'
Election Petition—Allegations of general intimidation and undue influence—Amendment of particulars—-Parliamentary Elections Order in Council,1946, Section 56.
In an election petition defects in the particulars relating to a chargemay be amended if no prejudice has been caused to the respondent.
When undue influence is alleged, the electoral numbers, in the Register,•of the persons who were unduly influenced should be given in the parti-culars.
Where, in the column setting out the persons said to have been undulyinfluenced, there was reference to persons whose names were set outin the corresponding particulars relating to general intimidation—
Held, that there was no objection to the names set out in thoseparticulars relating to general intimidation being incorporated in theparticulars of persons said to have been unduly influenced.
Held, further, that, so long as the individuals were mentioned by name,the petitioner was entitled to endeavour to prove that certain personsbeing agents of the respondent committed certain acts of undue influenceagainst other persons named. Nor should the particulars be struck outby reason of the nature of the acts having been given in such terms as“ threatening, kicking and striking, restraint, obstruction ”, and nothaving been given so as to attribute a particular act of undue influenceto each particular person said to have committed undue influence.
^OrDER made pending the hearing of Election Petition, GampolaElectoral District.
E. F. N. Gratiaen, K.C., with C. S. Barr-Kumarakulasinghe,JB. B. Alutoihare, and A. 1. Rajasingham, for the petitioner.
U.A. Jayasundere, with Stanley de Zoysa, S. P. C. Fernando,<G. T. Samarawickreme, S. E. J. Fernando, and D. Wimalaratne, forthe respondent.
March 9, 1948. Windham J.—
This is an application to strike out all the particulars relating to theoharge of undue influence on this petition. A large number of defects oralleged defects in the particular have been argued to exist. Some ofthese I consider are not defects which would, in fact, prejudice therespondent. Others raise questions of more weight, and considerationsof a legal nature. I will take the objections one by one.
Firstly, it is said rightly that the times of day, as distinct from the date,of each of the acts alleged have not been inserted in the first column ofthe particulars. The times as well as the dates were ordered to be giventby the order of this Court, both in respect of the particulars of undueinfluence, and in respect of the particulars of general intimidation. I am
WINDHAM J.—Pelpola v. Quna.uiarde.na ..
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satisfied, however, with Mr. Gratiaen’s explanation that the omission wasdue to a defect in the copy of the Court’s order which was in his possession.I am also satisfied that it must have been clear to the respondent that thetimes omitted were the same times as were given in respect of therespective particulars of general intimidation to which each act of undueinfluence was related. Accordingly, I think, this is a case where noprejudice was caused to the respondent, and I will amend the particularsby the addition of those respective times, namely, the times given inthe particulars of general intimidation respectively referred to in theparticulars of undue influence.
Secondly, it is argued that the occupations of certain of the personsalleged to have committed undue influence are not given or are given asnot known. I think this is a minor objection, and the petitioner cannotbe expected to have discovered the occupation of each of these personsin every case. These particulars will accordingly stand.
Thirdly, it was objected that the electoral number in the Register ofthose persons alleged to have committed undue influence was not givenin some cases. In view of the terms of this Court’s order for particulars,this must be taken to imply that such persons had no electoral numbers.Since, however, it is not necessary that the persons unduly influencingshould be on the electoral register, this omission will have no legalconsequence.
Fourthly, a similar objection with regard to electoral numbers is takenin respect of one of the persons said to have been unduly influenced,namely, A. S. Karuppiah. This omission, similarly, will be taken asimplying that that individual was not on the electoral register, with thelegal consequence that the particulars in relation to him will be strucknut as disclosing no offence, since it is necessary that a person said to beunduly influenced must have heen a person capable of voting in the■electorate.
Fifthly, it is objected that in the column setting out the persons said1 o have been unduly influenced, there is reference to persons whose namesare set out in the corresponding particulars relating to general intimida-tion. That is true. I see no objection to the names set out in thoseparticulars relating to general intimidation being incorporated in theparticulars of persons said to have been unduly influenced. These namesset out under the particulars of general intimidation, however, do notappear to be exclusive, since the latter mention that the names set outconstitute only some of those persons said to have been the victims ofgeneral intimidation. As regards the persons said to have been undulyinfluenced, I think the names of all such persons must be specificallyset out, and accordingly the particulars of those persons will be amendedso as to make it clear that they include only the persons whose namesappear under the column “ persons unduly influenced ” and also thosepersons whose names are specifically set out under the correspondingcolumn of persons generally intimidated, including the names specificallyset out in the respective annexures to that latter column, and in eludingin all cases only those persons whose number on the electoral register isgiven.
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WINDHAM J.—JPelpola v. Qunawardena
The next point argued is that the particulars of persons undulyinfluenced and of persons committing the undue influence, inasmuchas they consist of a large number of names in each case, and inasmuchas these names clearly are the same names as are given under theparticulars of general intimidation, show that the petitioner is seekingunder the heading of undue influence to prove acts which in realityconstitute aots committed in the course of general intimidation. Andit is urged that such acts are not the proper subject-matter of Section 56of the Ceylon (Parliamentary Elections) Order in Council, 1946. Variouspassages from Rogers, on Elections, have been cited to me by bothparties in this connection. Upon a consideration of all the authorities,
I do not think that I can at this stage, before hearing the evidence, holdthat the particulars of undue influence should for that reason be struckout. So long as the individuals are mentioned by name the petitioner isentitled to endeavour to prove that certain persons being agents of therespondents committed certain acts of undue influence against otherpersons named. Nor do I think that these particulars should be struckout by reason of the nature of the acts having been given in such terms as“ threatening, kicking and striking, restraint, obstruction ”, and nothaving been given so as to attribute a particular act of undue influence toeach particular person said to have committed undue influence. Thispoint again may be the subject of comment at the conclusion of the ease.
I have had some hesitation with regard to the next point, namely,that under the column headed “ persons who committed undue influence ”,in respect of one particular instance there are inserted the words, “ alarge number of Sinhalese villagers unknown to the persons intimidated ”,no individual names being given. I will, however, reserve my decisionon this point until the conclusion of the evidence, should it then becomenecessary to decide it. There appears to be authority that particularsordered to be given need only be given if this is possible. At the sametime if any of the persons who might be shown to fall under that verygeneral heading of “ a large number of Sinhalese villagers ” is proved tohave committed the act alleged, and to have been an agent of therespondent, it may well be argued that he cannot be found guilty of.corrupt practice by reason of his not having been named in the particulars.But I make no decision upon the point at the present moment.
One more minor point remains, namely, that in the third and fourthinstances of undue influence, a blank space has been left Tinder thecolumn head “ nature of the acts of undue influence ”. Here again,I accept Mr. Gratiaen’s assurance that the omission is due to a clericalerror and that it was intended to insert in those blank spaces the sameparticulars as are given under the corresponding column under the headingof particulars of general intimidation, in instances No. 3 and No. 4respectively. I am quite sure that this must have been clear to therespondent, whose main platform in seeking to strike out these particularsof undue influence is that they are, in effect, the very particulars given ofgeneral intimidation, dressed in another guise. Those particulars of thenature of the acts will accordingly be inserted in the respective blankspaces.
Objections as to particulars mostly overruled.