181-NLR-NLR-V-47-SIMEON-FERNANDO-Petitioner-and-GOONESEKERA-Respondent.pdf
512
DIAS J.—Simeon Fernando v. Oooneeekera.
1946Present:Dias J.
SIMEON FERNANDO, Petitioner, and GOONESEKERA, Respondent.
Application for Writ of Quo Warranto against G. D. G.Goonesekera.
Village Committee ejection—Disqualification of a member elected—No objectionraised on date of nomination—Right of such member to vote in election ofChairman—Affidavit—Declarant must testify to fasts known by him—Civil Procedure Code, s. 181—Village Communities Ordinance (Cap. 198),ss. 13, 15.
A person who is disqualified to be elected as a member of a VillageCommittee but who has been elected without apy protest as to hisqualification is entitled, unless his election is set aside by subsequentapplication to the Supreme Court, to vote at all the deliberations of theCommittee including that held for the purpose of electing the Chairman.
An affidavit must be confined to a statement of such facts as thedeclarant is able of his own knowledge and observation to testify to.An exception is made in the case of an interlocutory affidavit, in whichstatements regarding his belief may be admitted provided reasonablegrounds for such belief be set forth in the affidavit.
A
PPLICATION for a writ of quo warranto to have the election of theVillage Committee of Kanuwana declared null and void on the
ground that he failed to obtain the majority of the votes of the memberslegally entitled to vote at the meeting at which he was elected.
H. V. Perera, K.C. (with him E. B. Wikramanayake and E. O. F. deSilva), for the petitioner.
N. E. Weerasooria, K.C. (with him H. A. Koattegoda), for the respond-ent.
Cur. adv. wit.
October 29, 1946. Dias J.—
The petitioner, W. Simeon Fernando, prayed for a writ of quo warrantoto oust the respondent, who is the de facto Chairman of the VillageCommittee of Kanuwana on the ground that his election to that office isnull and void on the ground that he failed to obtain the majority of thevotes of the members legally entitled to vote at the meeting at whichhe was elected.
The Village Committee of Kanuwana consists of thirty-one members.The respondent, G. Don Gilbert Goonesekera, and one Norbert SriVardhana are both duly elected members. On nomination day one P.Simon Peter Perera, admittedly an ex-convict, who has served a sentenceof two years’ rigorous imprisonment for attempted murder, was nomina-ted for one of the wards. There being no other candidate, and no
DIAS J.—Simeon Fernando v. Qoonesekera.
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objection having been raised by anybody as to Eis qualifications forelection, he was declared to be duly elected. Section 13 (e) of theVillage Communities Ordinance (Chap. 198) disqualifies for election aperson who has served a sentence of imprisonment of either description fora period of three months or any longer period, on conviction of any * * crime ’ ’within the meaning of the Prevention of Crimes Ordinance (Chap. 18).It is common ground that the offence of attempted murder is such a“ crime.” Obviously, therefore, this ex-convict was disqualified, butnobody appears to have raised any objection, until this trouble arose.See section 15.
After the election of the members, the next thing to be done is to electthe Chairman and the Vice-Chairman. Under the repealed Ordinance(section 20 (7) ) the voting had to be by “ secret ballot ”. By section 27of the existing Ordinance (as amended by Ordinance No. 11 of 1940,section 7) the election of the Chairman and the Vice-Chairman is byballot. The presiding officer at such election is the Government Agent.Such election is to be conducted, subject to the provisions of section27 (1), in accordance with such procedure as may be prescribed by rulesunder section 59 of the Ordinance. These rules of procedure were notcited at the argument. They will be found in Volume III. of theSubsidiary Legislation of Ceylon for 1941 at pages.322-323. I note inpassing that section 59 of the principal Ordinance has been successivelyamended by Ordinance Nos. 11 of 1940, section 12, and 54 of 1942,section 24.
Part III. of the rules provide the procedure to be followed at theelection of a Chairman and a Vice-Chairman. I reproduce the relevantrule :—
2 (a) If there are two candidates for election and the names of suchcandidates are formally proposed and seconded, the Presiding Officershall proceed to the election of one of the candidates by ballot.
(6) The Presiding Officer shall, thereupon, take a count and declarethe candidate who obtains the larger number of votes the duly electedChairman of the Committee.
In the event of the election being rendered indecisive by reasonof an equality of votes, the matter shall be decided by lot, cast ordrawn, in such manner as the Presiding Officer may, in his discretion,determine.
I am entitled to presume that the Presiding Officer at this electionregularly performed his official duties before declaring the respondentto be the duly elected Chairman of this Village Committee. If as statedin paragraph 14 of the petitioner’s affidavit and the one subsequentlyfiled by the defeated candidate, Sri Vardhana, the latter’s objectionagainst the ex-convict participating in the ballot was made before theballot was taken, there are thirty other persons as well as the PresidingOfficer who would be aware of that fact, and who would be in a position totestify. If as asserted by the petitioner the Presiding Officer beforetaking the ballot questioned the ex-convict, and if the latter admittedthat he was a disqualified person, it is highly improbable that thePresiding Officer would have allowed him to vote.
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DIAS J.—Simeon Fernando v. Goonesekera.
In any event I think the Presiding Officer, as a disinterested person,if requested to do so, would have given the petitioner an affidavit to thateffect, or at least expressed willingness to testify before this Court when-ever required to do so. There is no evidence that any attempt was madeto secure that decisive evidence.
The petitioner asserts in paragraph 15 of his affidavit that therespondent was elected by a majority of one vote—Sri Vardhana securing15 while the respondent obtained 16 votes. This is pure hearsay, becausethe petitioner, not being a Committee member but only a voter, couldnot have been present. His evidence is therefore indirect and obtainedsecond-hand. In paragraph 16 the petitioner further says “ I have reasonto believe that the said P. Simon Peter Perera (the ex-convict) voted forthe respondent at the said election.” This again is hearsay. The reasonsfor his belief are not stated in the affidavit.
After notice had been issued and the respondent filed his affidavitsdenying (a) that Sri Vardhana had taken any objection to the status ofthe ex-convict to vote before the ballot was held, or (b) that the ex-convictdid, in fact, vote for the respondent—the petitioner filed a supplementaryaffidavit from Sri Vardhana, the defeated candidate. This affidavitasserts that he took objection to the status of the ex-convict before theballot was taken. He further states that the ex-convict voted for therespondent, but does not disclose the facts on which this statement ismade.
The submission made on behalf of the petitioner is that the ex-convicthaving voted for the respondent, who thereby secured election by amajority of a single vote, the election is rendered indecisive—for, if thevote of the ex-convict is eliminated, there would result an equality ofvotes between the two candidates. The Presiding Officer not havingproceeded to determine the question of chairmanship by lot, the electionis bad and therefore the respondent is not the dejure Chairman. On theother hand, if it is the fact that the ex-convict voted for Sri Vardhana,then the respondent secured a majority in spite of that disqualifyingvote, and his election is good.
The proof tendered by the respondent is equally unsatisfactory.
In paragraph 9 of his affidavit he states “ I verily believe that the said
P.Simon Peter Perera …. voted for the said Norbert PereraSri Vardhana, ” but the grounds for this belief are not stated. Theaffidavit oi Don Simon Jayasinghe, a Committee member, who should bein a position to give direct evidence merely asserts “As jar as 1 know,I have cause to believe that the said P. Simon Peter Perera voted forNorbert Perera Sri Vardhana.” The grounds of his knowledge and beliefare withheld from this Court.
Section 181 of the Civil Procedure Code makes it clear that affidavitsmust be confined to a statement of such facts which the declarant is ableof his own knowledge and observation to testify to. An exception ismade in the case of an interlocutory affidavit, in which statementsregarding his belief may be admitted, “ provided reasonable grounds forsuch belief be set forth in the affidavit”—see David and Go. v. AlbertSilva *, Samarakoon v. Ponniah 2, and Rajadurai v. Thanabalsuriya 3.
J (1930) 31 N. L. S. 316.* (1931) 32 N. i. R. 257.
* 10 T. L. R. 120, 12 C. L. Sec. 233.
Maakeen v. JPuUo.
516
It is obvious that the affidavits produced in this caBe contravene thesalutary provisions of section 181 of the Civil Procedure Code. It wassuggested, for this reason, and in view of the conflicting nature of theevidence, the Court would feel disposed to allow the parties to lead oralevidence—for example, of the Government Agent and the ex-convict.
I cannot accede to such a request. It is possible that cases may arisewhere such a course is necessary or desirable ; but this is not such a case.In the first place section 15 of the Ordinance (as amended by OrdinanceNo. 54 of 1942, section 9) provides that no person shall be a candidatefor election as a Committee member unless he is qualified for electionwithin the meaning of section 13. The proper time to object to theelection of a candidate on the ground that he is riot qualified for electionis when the nomination papers are delivered—see section 15 (3) (asamended by Ordinance No. 11 of 1940, section 4). This, however,does not operate as a bar to a subsequent application to this Court toset aside such election—Mendias Appu v. Hendrick Appu >. No suchsteps have been taken. This ex-convict, therefore, has been declaredto have been “ duly elected ” (section 15 (4) ) and continues to servein the Committee as a “ duly elected ” member thereof.
If so, he is lawfully entitled to vote at all the deliberations of theCommittee including that held for the purpose of electing the Chairman.I doubt whether the Presiding Officer has power under such circumstancesto refuse such a person to vote, even if objection had been taken to hisstatus. On this ground alone, this application must fail. In the secondplace, the burden of proof is on the petitioner. He has, in my opinion,failed to discharge it. For both these reasons, I refuse this application,with costs.
Appeal dismissed.