037-SLLR-SLLR-1996-V-2-THIRANAGAMA-AND-10-OTHERS-v.-AMARASIRI-DODANGODA-AND-25-OTHERS.pdf
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THIRANAGAMA AND 10 OTHERSV.
AMARASIRI DODANGODA AND 25 OTHERS
COURT OF APPEALYAPA, J.
C. A. 01/94(Election Petition)
14.12.94, 12.1.95, 10.2.95,
5.4.95, 21.4.95,
9.6.95, 21.6.95,
19.7.95, 26.7.95,
30.8.95, 6.9.95,
22.11.95, 28.11.95,
15.12.95, 27.12.95,
23.1.96.
Provincial Councils Elections Act, 2 of 1988 – (Part VII) S51(7) 53(H)58S92(1)(b) 115 Counting of preferences Manual Processing of Results -checked by computer. Evidence Ordinance S58.
The 1st – 11th Petitioners who were the unsuccessful candidates of theU.N.P. at the election held on 24.3.94 for the Southern Province, ProvincialCouncil for the administrative District of Galle had filed an Election Petitionin terms of part VII of Act 2 of 1988.
The main allegations were:
No proper counting was done; and at most counting centresarbitrary figures were inserted,
The statements of the counting officers prepared under S51(7)were not delivered in sealed packets to the Returning Officer asrequired by S53(14).
When statements under S51 (7) were delivered to the ReturningOfficer, he merely sent them to the Computer Room without any scrutiny,
The Computer Room was a prohibited area for the candidates/agents and the Returning Officer himself was outside the ComputerRoom and he had no knowledge, control, supervision or directionover the data that was fed to the Computer by the ComputerProgrammers.
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The results released by the Computer were incorrect and materiallydifferent from what it should have been if a proper manual count wastaken under the supervision and direction of the Returning Officer andunder the observation of the agents of political parties or groups.
It was the position of the petitioners that the said election was not conductedin accordance with the principles laid down in Act, 2 of 1988, and that thenon-compliance has materially affected the results of the said election.
Held:
The 1st Petitioner admitted that when mistakes were pointed out, theywere corrected. Although there was a journal maintained at the countingcentre and he knew that he had a right to record any objections, he had notdone so. His evidence does not show any specific allegation of the errorsmade; further in the affidavit filed by him he has not made any allegationswith regard to any error being committed at the counting centre. The omissiontherefore creates a doubt with regard to the truth of this allegation.
There was no protest and complain to the Returning Officer. If that wasdone action could have been taken under S58 1(a) to suspect the seals.
However this allegation must be considered subject to S115 of the ElectionsAct.
On the evidence it is unacceptable to state that the Returning Officer didnot make arrangements to have the election results manually processedand that he decided to depend entirely on the computer for the processingof the results, when even the Elections Act had not made any provision forit. If that had happened it is very strange that, no objections were taken tothis procedure by the agents.
The evidence shows that the Computer Room was adjoining the Roomoccupied by the Returning Officer and it was separated by a door. Therewas also evidence that there was communication between this Room andthe Returning Officer. Therefore it is not possible to accept the position thatthere was no supervision or control by the Returning Officer over this room.
Per Yapa, J.
“It is very clear from the evidence presented that despite various allegationsmade, no action was taken to protest or taken any objection or complain inwriting.
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Was this failure on their part due to the fact that there was no reason tocomplain at that stage, since what- ever errors or mistakes at the recordingof the results as seen from the documents produced were corrected whenpointed out – Therefore these allegations remain as mere allegations withoutsufficient weight to move the Court to exercise its jurisdiction”.
In the matter of an Election Petition in terms of Part VII of Act 2 of 1988 inrespect of the election to the Administrative District of Galle in theSouthern Province Provincial Council.
Case referred to:
1. Weerasinghe v. Chandrananda de Silva, 1992 – 1 S.L.R. 76 at 92.
W. P. Gunatilaka with D.R. Samaranayake & U. Sooriyarachchi for thePetitioners.
Somapala Gunadheera for 1st Respondent.
Asoka de Silva, D. S. G., with S. Sriskandarajah, S. S. C., R. M. R. B. Navinna,S. C. and S. Rajakaruna, S. C. for the 25th & 26th Respondents.
Cur. adv. vuit.
April 02, 1996.
YAPA, J.
The 1st to 11th Petitioners who were the unsuccessful candidatesof the United National Party at the Elections held on 24th March 1994for the Southern Province, Provincial Council, for the AdministrativeDistrict of Galle, have filed this Election Petition in terms of part VII ofthe Provincial Councils Elections Act No. 2 of 1988. The Petitionershave made the candidates who were declared elected as members ofthe said Provincial Council, as 1st to 24th Respondents, theCommissioner of Elections as the 25th Respond and the ReturningOfficer at the said election as the 26th Respondent.
The main complaint of the Petitioners was that the said electionheld on 24th March 1994 was not conducted in accordance with theprinciples laid down in the Provincial Councils Elections Act No. 2 of1988 and the said non compliance has materially affected the resultsof the election.
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Briefly the main allegations of the Petitioners regard to the conductof the election were as follows.
When the counting of the preferences of the United NationalParty candidates commenced on 25.03.94, most of the countingofficers, had left the counting centres and only a skeleton staffremained.
At the stage of the said counting no proper counting was done,and at most counting centres arbitrary figures were inserted instating the preferences, according to the whims and fancies ofthe counting staff.
The statements of the counting officers prepared in accordancewith Section 51 (7) were not delivered in sealed packets to theReturning Officer as required by Section 53 (H) of the said ActNo. 2 of 1988.
When the statements under Section 51 (7) were delivered tothe Returning Officer, he merely sent them to the computer roomwithout any scrutiny.
The computer room was a prohibited area for the candidatesand the agents and the Returning Officer himself was outside thecomputer room and he had no knowledge, control, supervision ordirection over the data that was fed to the computer by thecomputer programmers.
The results of the election released by the computer wereincorrect and materially different from what it should have been ila proper manual count was taken under the supervision anddirection of the Returning Officer and under the observation ofthe agents of political parties or groups.
In view of the allegations referred to above the Petitioner allegedthat the said election was not conducted in accordance with theprinciples laid down in the Provincial Councils Elections Act No. 2 of1988 and that if the said preferences were duly counted according tothe provisions laid down in the said act, all the petitioners or some of
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them would have been declared elected and therefore such non -compliance has materially affected the results of the said election.
Thus the Petitioners in their petition which was accompanied bydocuments marked P1 to P11 pleaded as part and parcel of the petition,stated that they were entitled to a declaration that the election in respectof the administrative District of Galle.in theSouthern Province,Provincial Council held on 24th March 1994 is void.
The 1st Respondent in his statement of objections denied all theallegations of the petitioners as baseless and self serving statementsand stated that the election was conducted in accordance with theprovisions of the Act No. 2 of 1988.
The 26th Respondent who was the Returning Officer, in his affidavitalso denied the allegations of the Petitioners and stated that the resultswere counted, computed and processed manually in the results roomand the computer was used only for the purpose of checking themanually processed final results. He further stated that while manualprocessing was done in the results room a duplicate copy of the resultssheet was sent to the Assistant Returning Officer in charge of thecomputer room to enable him to have the data entered and processedseparately for the purpose of verification and analysis and confirmationto ensure accuracy. In his affidavit he referred to the following mattersto show that the allegations made by the petitioners were baselessand misconceived in law.
no complaint was received from any person as to any irregularity,at the counting centres or the results centre with regard to thecounting procedure and the computation of the results.
no complaint was received from any person with regard to anylaxity on the part of the staff or that there was a shortage of staffat the time the preference votes were being counted.
no complaint has been received with regard to counting officersrefusing to record or uphold an objection.
no persons other than accredited counting agents werepermitted to remain or had access to the results room.
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no reasons have been given for the Petitioners’failure to availthemselves of the redress available for their grievances eitherdirectly or through their counting agents at the time the grievancesarose.
In support of the allegations made by the Petitioners in their petition,the evidence of the following witnesses were led before the Court,namely Tiranagama, Siriwardane, Ranasinghe, and Pushpa Kumara.Briefly their evidence is as follows. Tiranagama one of the Petitioners,gave evidence and stated that the Petitioners were candidates at theSouthern Province Provincial Council Elections held on 24.03.94. Hesaid that Galle Administrative District consisted often electoral districtsand there were 62 counting centres. He said he was a candidate forthe Habaraduwa electorate and was present at the counting centre No.57 as a counting agent of the United National Party. He stated that thecounting started at about 8.00 or 8.30 p.m., and by 12.00 midnightcounting of votes received by each political party was conclued andthe results were announced. Thereafter he said the preference votesof the winning party namely that of the People’ Alliance were countedfirst and then the counting of the preference votes of the United Na-tional Party started at about 4.00 a.m. on 25.03.94. At that time hesaid there were about 50 counting officers attending to the countingand later the number of officers were about 30 and when counting wasconcluded there were about 20 counting officers. This witness saidthat there were five counting agents from his electorate and when heraised objection, complaining that counting officers marked some ofhis preferences to another candidate his complaint was not recorded.He admitted filing his affidavit marked P5 and proceeded to state thathe was present when ballot papers and other documents weredespatched by the counting officers and his position was that theywere not sealed and packeted. He then said that, when an officer broughtthe result sheet to the Returning Officer, he did not take it, but directedthe officer to the computer room to hand it over there. He also saidthat when he was there, many officers came with the results whichwere not in seal covers and the Returning Officer did not check thembut ordered the officers to take them to the computer room. His positionwas that the computer room was the adjoining room and it was notpossible to see what was happening in this room, except that,periodically there was communication between the computer room and
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the Returning Officer. He said that when errors were pointed out at thecounting, they were corrected, and that he verbally objected to thecounting being done using the computer counting system but hisobjection was not recorded. In cross examination also he admittedthat when mistakes made at the counting were pointed out they werecorrected, and further that the officers at the counting centre maintaineda journal and he knew that he had the right to record the objections inthe journal.
He finally said that he complained about the irregularities to theReturning Officer and also to M. S. Amarasiri who was the Chief Ministerat the time.
Witness Siriwardena in his evidence stated that he had been earliera Provincial Councillor of the United National Party and at the 1994March Provincial Council Elections he was present as an agent of theU.N.P. at the counting centre No. 2 of the Balapitiya Electorate and thecounting of preferene votes of the U.N. P. commenced at about 3.00a.m. on 25.03.94 and was concluded at about 7.00 a.m. He stated thatafter the counting of ballot papers a summary was prepared and thatsummary was taken into a journal and at that stage the votes given tohim were entered in favour of some other candidate. He specificallyreferred to the instance of entering 768 votes cast in favour of his No.10, being entered in favour of the candidateNo. 9, and the 50 odd voteswhich the candidate No. 9 had received being entered in favour of hisNo.10. He said when he complained about it to the chief counting officerhe rectified it. The reasons for this according to the witness was thatthe counting officers were tired and sleepy and therefore counting wasnot correctly done and on several occasions he had to point out theerrors. The witness further said that counting was done by officerswho were voters from the Galle District and therefore they were favouringthe candidates of their choice. He even attributed the recording of his768 votes in favour of the candidate No. 9 due to this reason. He saidafter the counting of preference votes the document where the resultswere entered, were not packeted and sealed. He said when the finalsummary was prepared he signed the summary and thereafter he wasin the Returning Officer’s room when the result sheets were broughtfrom Habaraduwa, Hiniduma and some other electorates and that theywere not brought in seal packets. He said when these results were
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brought, the Returning Officer directed the results to the computer roomover which the Returning Officer had no supervision. He stated that atthis time there were officials and many other including LaksmanRanasinghe, from the U.N. P.This witness further said that an officerbrought the results from the computer room and gave it over to theReturning Officer who announced them. The witness in crossexamination said that in his affidavit he had not stated everything relatingto the election, and that the affidavit was prepared after a discussionthat was held in Galle two weeks after the election, where the defeatedU.N.R candidates took part and decided to come to Court. He admittedthat whatever errors that were pointed out at the counting centre werecorrected. He further said that he did not make a complaint to theReturning Officer since he had no complaint to make, and that it wasat the said discussion they realized that the Returning Officer shouldhave been in the computer room.
Witness Ranasinghe, gave evidence and stated that he wasattached to the political office of the Chief Minister M. S. Amarasiri onthe day of the election and that he was in charge of the U.N.R electioncampaign to decide on any issue that arose during the election. Hesaid he had access to the office of the Returning Officer as he wasissued with a permit which was marked in the case as X6 and heentered the room of the Returning Officer around 7.00 p.m. on 24.03.94and the results arrived at frequent intervals and they were brought bythe officials. He stated that the results were brought in large envelopesand he could not say whether these envelopes were sealed as he didnot examine them. Later he said that he was seated with M.S. Amarasiria little distance away from the Returning Officer and saw the ReturningOfficer opening the envelopes where he did not see any sealing waxon them, and he even said that he saw results coming in open envelopesand these documents that came were computerized documents.Thewitness said that when the Returning Officer received the results heread the results to them, initialled them, and then announced the results “over the microphone. He said the room supposed to be the computerroom was a few feet away and he could not see what was happeninginside the room since only the officers coming under the control of theReturning Officer had access to this room. The witness further saidthat he and M. S. Amarasiri placed their signatures on the documentthat was submitted to them by the Returning Officer indicating that
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they were satisfied with the results. In the course of his evidence thewitness stated that he sawTiranagama and Wimalaratne at the gate asthey were not allowed to stay inside and that they stayed for about fiveminutes and moved out. In cross examination also the witness saidthat he left the Returning Officer’s room after signing the document tosay that he was satisfied with the counting of the results.
Pushpa Kumara gave evidence and stated that he was a countingagent for the U.N.R at the Balapitiya counting centre No. 4 in the saidelection and stated that when the preferences of the U.N.R were countedand when the numbers were read out for recording the results theywere entered in favour of the wrong candidates and he noticed 15 or 20such mistakes taking place, and further that when he complained aboutthem to the officers they got angry. In cross examination the witnesssaid that when these mistakes took place some were corrected but notall and said that when he complained to the officer concerned, they didnot record his complaint. When the witness was asked whether hemade a note of these mistakes, he said there was no paper to recordit, and further that he was not aware that the counting officers weremaintaining a journal. He also admitted that in the affidavit filed by himhe did not state that there were 15 mistakes done by the officers.
When the case for the Petitioners was closed the learned counselfor the 25th and 26th Respondents led the evidence of witnessHewawasam and Leelaratne. Hewawasam gave evidence and statedthat he functioned as the Returning Officer Galle District in the saidelection and as the Returning Officer he was asked to receivenominations and then on the instructions of the Commissioner ofElections, he conducted the election. He said he detailed about 5000public servants for the election, after giving them written and oralinstructions according to their grades. He stated that he had giveninstructions to the chief counting officers that when results were readyto send the original and a duplicate of the results to him, to give onecopy to the agent and to display another copy on the notice board ofthe counting centre. He said in the Galle District there were 62 countingcentres and 7 postal ballot counting centres; and the results from thesecentres came in sealed packets which contained the result sheet anda duplicate. The witness stated that at the time the counting took placethere were several assistant Returning Officers in his room and there
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were 30 officers attending to the processing of the results. He said theresults processing room was the adjoining room which was separatedby a door, and in his room apart from officers assisting him there weretwo agents from each political party and said that he rememberedLaxman Ranasighe, M. S. Amarasiri, Richard Pathirana, and Wijesinghe.He stated that when the results came he noted the time of arrival, andopened the packets in front of the agents and announced what was inthe result sheet for agents to know and passed the original to theprocessing room and the duplicate to the computer room, which wasdown stairs. He said results were processed manually on the instructionsof the Commissioner of Elections and the duplicate results sheet wassent to the computer room for the purpose of analyzing and finding outwhether there were any mistakes before final results were given out.He stated that on the day of elections nobody complained to him withregard to the manner in which the election was conducted and thecounting was done. He further said that before announcing the partyresults he got the agents to sign the statement, which was marked inthe case as R1 and that they signed it as they were satisfied with theresults. He said the results of the preferential vote also came in sealedpackets and that he adopted the same procedure that he adopted inregard to party votes before announcing the results. His position wasthat no one objected to the procedure that was adopted and that if anyobjection was taken he would have recorded it in the journal or anyperson taking such objection would have written it in the journal whichhe had officially maintained for such purpose. This witness producedthe preferential summary of the Balapitiya counting centre No. 1 andcentre No. 4 marked R2 and R3 where the counting agents of theU.N.P. had signed them. In cross examination the witness admittedthat the adding and processing of results were done in the adjoiningroom and said that before announcing the results he compared themanually added results with the computer added results and if theytallied only, he announced them. He said that the computer processingwas an additional safeguard and that the computer room was situateddown stairs and that was actually the Kachcheri computer room. Thiswitness in detail explained the manner of preparing the tally sheets,the 1 st summary and the second summary. He marked the 1 st summaryas R5, R6 1, R7 1 & R8 1 and the connected Tally Sheets as R5(A) toR5(T), R6(2) to R6(21), R7(2) to R7(21) and R8(2) to R8 (15). All thesedocuments he said related to the counting centre No. 1 Balapitiya. He
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further said that if the result sheets were not brought in sealed packetsit was possible to raise objections regard to the matter and his positionwas that the result sheets were brought in sealed packets.
Witness Leelaratne in his evidence stated that he served as theChief counting officer in the counting centre No. 4 of the Balapitiyaelectorate, and when the U.N.P. preferences were counted the U.N.P.counting agents were present and that at the time no one complainedor objected to the manner of counting. He also said that when thesecond summary marked as R3 was prepared, the U.N.P. countingagents signed it. His position was that if any error was made at thetime of counting it was possible to make a complain to one of theAssistant Returning Officers on duty and finally to make a complaintto the Chief counting officer who would enter the complaint in the journal.He also said that according to his knowledge no counting agent by thename of Pushpa Kumara made any complaint regarding wrong recordingof preferences and he rejected the suggestion that a lot of mistakeswere made at the counting. Finally he said that after the count, he tookthe results in sealed envelopes, and the results were prepared in threecopies and one copy was given to the agent and further that it was notpossible for the counting officers to manipulate the results as theywere cross checked.
In this case the Petitioners came to Court under section 92(1) (b)of the Provincial Councils Elections Act No. 2 of 1988. The relevantprovisions read as follows:
92. (1)The election in respect of any administrative district shallbe declared to be void on an election petition on the followinggrounds which may be proved to the satisfaction of the ElectionJudge, namely –
(b) non-compliance with the provisions of this Act relating toelections, if it appears that the election was not conducted inaccordance with the principles laid down in such provisions andthat such non-compliance materially affected the result of theelection.
Therefore it becomes necessary for the Petitioner to prove to the
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satisfaction of the Court that there was non-compliance with theprovisions of the elections Act by the failure to conduct the election inaccordance with the principles laid down in such provisions and furtherthat such non-compliance materially affected the result of the election.
The paragraph 29 of the petition (Paragraph 30 of the affidavit)sets out the grounds for setting aside the election by stating that therewas non-compliance with the provisions of the act in relation to thefollowing matters:-
As regards to the counting of preferences at the countingcentres.
The procedure followed in the delivery of the statements bythe counting officers and receiving the same by Returning Officer,and
. The method followed in feeding relevant data to the computerin the computer room without supervision and directions of theReturning Officer.
The first ground of non-compliance related to the counting ofpreferences. Here the main allegation was that counting officers mademistakes and errors in recording the preferences. In other wordspreference votes given in favour of one candidate was marked in favourof another candidate. According to witnesses this happened due totwo reasons. One reason being that the counting officers were tiredand sleepy and therefore they made these errors and the other reasonwas that most counting officers were from the Galle District and thereforewith a view to favour the candidates of their choice they purposelycommitted these errors.
On this matterthe witnesses who gave evidence wereTiranagama,Siriwardena and Puspa Kumara. According to Tiranagama, he hasadmitted that when mistakes made were pointed out, they were cor-rected. He has also taken up the position that when he complainedabout, these errors, his complaint was not recorded. He further saidthat there was a journal maintained at the counting centre and he knewthat he had a right to record any objections in the journal. Further it is
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seen from his evidence that there are no specific allegations of theerrors made. He had said errors made were corrected when they werepointed out. This may have been the reason why he did not take stepsto record his complaint. In addition when one examines the affidavitfiled by him marked P5, he has not made any allegation regard to anyerror being committed at the counting centre. If the position taken upby this witness in Court was true one cannot understand why he omittedto refer to it in the affidavit and further it was one of the grounds onwhich he came to Court. Therefore this omission creates a doubt withregard to the truth of this allegation.
The evidence of Siriwardena on this matter related to the 768 votesobtained in his favour, being entered in favour of the candidate No. 9.However he admitted that this error was rectified after it was pointedout. His position was that on several occasions he had to point outvarious errors and therefore he thought similar errors could have takenplace. However it is to be seen that according to his evidence whenthe final summary was prepared by the counting officers he signed itas one of the counting agents of the U.N.P. This shows that he wassatisfied with the counting, otherwise he could very well have protestedand refused to sign it. Further this witness has taken up the positionthat errors were committed by counting officers due to two reasons.First reason was that the counting officers were sleepy and tired. Thesecond reason was that most of the counting officers were from Galledistrict and therefore they were favouring the candidates of their choice.This is indeed a very serious allegation to make against the countingofficers. It has the effect of challenging the honesty and integrity ofthose officials responsible for the counting of preference votes. If thatwas the true position, one would have expected this allegation to bemade in his affidavit in clear terms, since he filed the affidavit after thediscussion he had with the defeated U.N.P. candidates. However whenone examines his affidavit filed by him marked P4, it is observed thatall what he has stated there with regard to this allegation and the otheris in paragraph 10 of his affidavit where he states . . . “ I stronglybelieve that many mistakes would have occurred innocently or bydeliberate acts of the officers to favour candidates of their liking”.Therefore it appears that what he has stated in the affidavit is only abelief he has entertained and not what has really taken place, otherwisehaving regard to the seriousness of the allegation made one would
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have expected him to refer to it not vaguely as he has done but in veryclear language. This only shows that these allegations are withoutsubstance. Further this position finds support from his failure to protestand make a complaint and his conduct of signing the final summary asa counting agent of the U.N.P.
The other witness was counting agent Pushpa Kumara, who hasnot stated in his affidavit filed, marked P2 that there were 15 to 20mistakes committed and that all these mistakes were not corrected.The failure to refer to them in the affidavit filed on 15.04.94, whenthese facts were more fresh in his mind than when he gave evidenceone year later and the failure to protest or complain and to keep a noteof these mistakes in view of the fact that there were 15 to 20 mistakeswhich one could not remember easily has weakened the trustworthinessof his evidence.
The second ground of non compliance was the procedure followedin the delivery of the statements by the counting officers and receivingthe same by the returning Officer. The main issue here is whether thestatements sent under section 51 (7) of the Provincial Councils ElectionsAct by the counting officers were deliverd to the Returning Officer insealed packets as required by section 53 (H) of the said act. On thismatter witnesses Tiranagama and Siriwardena has stated that thestatements were not sent and received in sealed packets. The U.N.P.legal representative Ranasinghe at first said that he could not saywhether these envelopes were sealed as he did not examine them. Butlater said that he did not see any seating wax on them. On this matterthe evidence of Hewawasam the Returning Officer and Leelaratne thechief counting officer supports the proposition that the results came insealed packets. Therefore what was the true position? Can the evidenceof witness Tiranagama, Siriwardena and Ranasinghe be accepted, asagainst the evidence of Hewawasam and Leelaratne.Then the questionthat arises would be as counting agents why did Tiranagama andSiriwardena fail to protest and complain to the Returning Officer. Ac-cording to them they said they saw Ranasinghe, the legal representativeof the U.N.P. and M. S. Amarasiri, Chief minister with the ReturningOfficer and therefore they could have even brought it to their notice. Ifthat was done action could have been taken under section 58 (1) (A) toinspect the seals. The latter part of section 58 (1)(A) states thus…
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The Returning Officer shall before he opens a sealed packet referredto in paragraph (h) of section 53 upon a request made by an agentappointed under section 56, permit such agent to inspect the seals onsuch packet”. Further this request could have been made either bywitness Ranasinghe or M. S. Amarasiri who were the two U.N.R agentsappointed under section 56 of the Provincial Council Elections Act. Inrespect of this matter the position earlier taken up by witnessRanasinghe was that he could not say whether these envelopes weresealed as he did not examine them and later he said he did not seeany sealing wax on them.Then the question can be raised, as to whydid witness Ranasinghe or M. S. Amarasiri fail to protest to the ReturningOfficer about this irregularity. Further they even had the right to inspectthe packets to see whether there were sealed on them.Therefore is itunreasonable to assume that no such protest or inspection was donesince the results came in sealed packets. Further this allegation mustbe considered subject to the provisions contained in section 115 of theElections Act which states “No election held under this act shall beinvalid by reason of any failure to comply with the provisions of thisact relating to elections if it appears that the election was conducted inaccordance with the principles laid down in such provisions, and thatsuch failure did not affect the result of the election”.
The third ground of complaint related to the feeding of relevantdata to the computer, without supervision and directions of the ReturningOfficer. It was even pointed out that the Elections Act made no provisionfor the processing of election results using the computer. This allegationwas made on the basis that no manual processing of results was done.On this matter what was the evidence available to prove that only thecomputer was used to process the results and that there was no manualprocessing of the results. Witnesses Tiranagama and Siriwardena statedin their evidence that when the result sheets were brought, the ReturningOfficer did not take them but directed the officers to the computerroom. They said the computer room was the adjoining room and thatthere was communication between the computer room and the ReturningOfficer. Witness Ranasinghe stated that the room supposed to be thecomputer room was a few feet away from him and he could not seewhat was happening inside the room and stated further that only theofficers coming under the control of the Returning Officer had accessto this room. The evidence of the Returning Officer Hewawasam was
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that the results processing room was the adjoining room separated bya door and the computer room was down stairs and it was actually theKachcheri computer room.
It is to be seen that the room referred to as the computer room bywitnesses Tiranagama, Siriwardena and Ranasinghe was infact theresults processing room. That was the evidene of the Returning OfficerHewawasam according to whom the computer room was down stairs.Further there was no evidence from Tiranagama, Siriwardena andRanasinghe that they ever saw any computer in this room. They onlysaid that they had no access to this room and further that only theofficers coming under the control of the Returning Officer had accessto the room. Siriwardena further said that the officers brought the resultsfrom the computer room and handed over them to the Returning Officerwho announced them. Therefore it appears that the witnessesTiranagama, Siriwardena and Ranasinghe had given evidence assumingthat the adjoining room was the computer room. However there was nomaterial placed by them before this Court even to suggest that it wasin fact the computer room. On the contrary there was evidence beforethis Court from the Returning Officer Hewawasam that the adjoiningroom was the result processing room. Unfortunately witnessesTiranagama, Siriwardena and Ranasinghe were not cross examined bythe learned Counsel for the 25th and 26th Respondents suggesting tothem that what they referred to as the computer room was infact theresult processing room. Similarly when the Returning Officer,Hewawasam gave evidence stating that this room in question was theresults processing room and the computer room was down stairs, thelearned counsel for the Petitioner did not suggest to him that it was notso. Therefore it is difficult to believe the position taken up by thewitnesses who gave evidence for the Petitioner and disbelieve theevidence given by the Returning Officer Hewawasam. Further it is „unacceptable to state that the Returning Officer did not makearrangements to have the election results manually processed andthat he decided to depend entirely on the computer for the processingof the results, when even the Elections Act had not made any provisionfor it. If that had happened it is very strange that no objection wastaken to this procedure by the agents. On the contrary it is the evidenceof witness Ranasinghe that he with M. S. Amarasiri signed the ReturningOfficer’s statement, as they were satisfied with the election results. In
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addition it was alleged that the Returning Officer had no supervision orcontrol, over this room which the witnesses of the Petitioners had referredto as the computer room. This room was adjoining the room occupiedby the Returning Officer and it was separated by a door. There wasalso evidence that there was communication between this room andthe Returning Officer. Therefore it is not possible to accept the posi-tion that there was no supervision or control by the Returning Officerover this room. Further in regard to this matter it would be relevant tonote the provisions of section 59 of the Elections Act which states asfollows: “Any power, duty or function of a Returning Officer under section58 may be exercised, performed or discharged for and on his behalf byany of his assistants or clerks acting under the supervision and direcionof such officer.”
In this case having regard to the various allegations made, it isvery difficult to understand the conduct of the counting agents appointedunder section 49 of the Elections Act who had to attend at the countingof the votes, and the agents appointed under section 56 of the saidAct who had to attend at the declaration of the result. It is very clearfrom the evidence presented that despite various allegations made, noaction was taken to protest, or take any objection, or complain in writing.Under the Elections Act there are provisions made to ensure that aproper and fair election is conducted and therefore it is important thatthe counting agents and the agents who attend at the declaration ofresult, should perform their duties diligently and with responsibility. Inthis case the counting agents could have protested in writing, theycould have refused to sign the summary of preferences made, andalso they could have even made an application for a recount. In thiscase it appears that none of these steps were taken by them.
Bandaranayake, J. in the case of Weerasinghe v. Chandranandade S//va(1) referred to the role of the counting agent in the followingterms. “The counting agent is not a helpless passive spectator merelygazing at ballot papers. He has a role to play; he represents thecandidate contesting the election and he is there to ensure as far aspossible a proper and fair election to the satisfaction of candidates. Ifhe is dissatisfied with any matter he has a clear duty to point it out andhave an objection or opinion recorded and he has the right to report thematter to a higher authority If still dissatisfied and that too recorded.
CA
Thiranagama and 10 Others v. Dodangoda
and 25 Others (Yapa, J.)
255
Thus there appears to be a clear duty on his part to take an objectionand have it journalised if anything improper is done during the count.”
Therefore it is clear that the counting agents and agents whoattended at the declaration of the result failed to take any remedialaction they were entitled to take under the Elections Act. Was thisfailure on their part due to the fact that there was no reason to complainat that stage, since what ever errors or mistakes at the recording ofthe results, as seen from the documents produced were corrected whenpointed out, that the statements prepared under section 51(7) weresent in sealed packets and also that the processing of results werecorrectly and manually done. Therefore these allegations remain asmere allegations without sufficient weight to move the court to exerciseits jurisdiction.
A question was raised by the learned Counsel for the Petitionerwhen he made submissions in regard to the effect of the objectionstendered by the 26th Respondent. He submitted that in the affidavitfiled by the 26th Respondent, he has admitted paragraphs 29 and 30 ofthe affidavit filed by the Petitioners. He submitted that they are thekey paragraphs of the petition namely paragraphs 28 and 30. Hetherefore submitted that these paragraphs in the affidavit have notbeen answered and that they are admissions within the meaning ofsection 58 of the Evidence Ordinance and thus the 26th Respondent isestopped or that he cannot be allowed at a later stage to repudiatethese admissions. In support of this submission he cited several au-thorities. However a close examination of the affidavit filed by the 26thRespondent reveals that the admissions in paragraphs 29 and 30 ofthe affidavit have been due to an oversight or due to inadvertencesince in the contents of the affidavit, the 26th Respondent has takenup the position that the provisions of the Provincial Councils ElectionsAct No. 2 of 1988 were complied with in conducting the election. It isobserved that in paragraphs 8,19, and 24 of the affidavit filed by thePetitioners, they alleged that the said election was not conducted inaccordance with the principles laid down in the Provincial CouncilsElections Act No. 2 of 1988, that the counting officers did not carry outa proper count in most counting centres and instead arbitrary figureswere inserted and further that the statements prepared by the countingofficers in accordance with section 51 (7) were not delivered in sealed
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packets as required by section 53 (H). These three paragraphs hadbeen denied by the 26th Respondent in his affidavit in paragraph 5.Further in paragraph 7 of the affidavit of the 26th Respondent whiledenying paragraph 25 of the affidavit filed by the Petitioners, he statesas follows: “I state that results were counted, computed and processedmanually in the results room which was the room occupied by me.Thecomputer was used only for the purpose of checking the manuallyprocessed final results. While manual processing was being done inthe results room a duplicate copy of the results sheet was sent to theAssistant Returning Officer in charge of the computer room to enablehim to have the data entered and processed separately for the purposeof verification analysis and confirmation to ensure accuracy.”Thereforethe effect of the affidavit filed by the 26th Respondent has been acomplete denial of the main allegations made by the Petitioners intheir affidavit which related to the errors committed by the countingofficers, their failure to send statements under section 51 (7) in sealedpackets and the use of the computer to process results without manualprocessing. Section 58 of the Evidence Ordinance reads as follows:
“No fact need be proved in any proceeding which the parties theretoor their agents agree to admit at the hearing, or which, before thehearing, they agree to admit by any writing under their hands, orwhich by any rule of pleading in force at the time they are deemedto have admitted by their pleadings:
Provided that the Court may, in its discretion, require the factsadmitted to be proved otherwise than by such admissions.”
As stated above the effect of the affidavit filed by the 26thRespondent has been to deny the allegations made by the Petitioners.Also this position could have been further clarified if the learned Counselfor the Petitioners referred to these alleged admissions beforecommencing the trial, which was the correct procedure. However whenone examines the provisions of section 58 of the Evidence Ordinance,it is evident that the alleged admissions are really not admissions andso they do not fall in to the situations mentioned in the said section.Therefore it is very clear that section 58 of the Evidence Ordinancehas no application to this case and thus this argument of the learnedCounsel for the Petitioners has to fail.
CA
Prematilaka v. Kularatne and Others
257
Having regard to all the circumstances referred to above in relationto this case I hold that the Petitioners have failed to prove theallegations referred to in their petition, and therefore I dismiss the petitionwith costs to the Respondents.
Application dismissed.