VINAYAGAMOORTHY v. PONNAMBALAM

051-NLR-NLR-V-40-VINAYAGAMOORTHY-v.-PONNAMBALAM.pdf


178
Vinayagamo&rthy v. Ponnambalam.
1936
Present: Maartensz J.
In re Election Petition against the return of G. G.Ponnambalam as Member for Point Pedro.
VINAYAGAMOORTHY v. PONNAMBALAM
Election petition—Security for costs—Recognizance entered into by petitionerand sureties—Validity of form—Number of charges—Amount of security—Appointment of agent—Necessity for writing and stamp—Validity ofnotice given by agent—Ceylon (State Council Elections) OrdeT-sn-Council 1931', Schedule VI, rules 9, 16, IS—Stamp Ordinance, No. 22 of1909.
An election petition is not an instrument chargeable with stamp dutywithin the meaning of section 3, sub-section (14), of the Stamp Ordinance.
Where, in proceedings arising out of an election petition, a recognizanceis entered under rule 16 of the rules in Schedule VI of the Ceylon (State .Council Elections) Order-in-Council, 1931, whereby the petitioner and
i (1898) 4 N. L. it. 242.
Vinayagamoorthy v. Ponnambalam.
179
his sureties bound themselves jointly and severally to the King and thecondition of the recognizance was that it should become void if thepetitioner and the sureties or any one of them paid all the costs, charges,and expenses payable by the petitioner in respect of the electionpetition,—
Held, that the terms of the recognizance were sufficient to satisfy therequirements of rule 16 of the rules in Schedule VI of the Ceylon (StateCouncil Elections) Order-in-Council, 1931.
Wijeywardene-o. Jayawardene (26 N. L. R. 193) followed.
Allegations in the petition that the candidate and,his agent were guiltyof undue influence and treating amount to no more than Charges madeagainst the candidate and they constitute two and not four chargesfor the purposes of Article 74 of the Order-in-Council.
A notice that security for costs has been .given by a recognizanceexecuted by the petitioner and his sureties is sufficient.
An appointment under rule 9 by which a person is authorized by thepetitioner to act as his agent must -be in writing and must be stamped.
A notice given under rule 18 by a person, whose appointment has notbeen duly stamped is bad.
Retrospective effect cannot be given to the letter of appointment bysupplying the stamp as the rule requires notice to be given within aprescribed time.
T
HIS was an election petition filed on March 27, 1936, tb have theelection of the respondent for the Point Pedro electoral district
declared void on the ground that the respondent and his agent wereguilty of the following corrupt practices : —
(a) Undue influence on the day of the election and-before that date.
(b) Treating.
Bribery.
On the same day the petitioner filed a writing appointing a Proctor ofthe Supreme Court his agent with reference to the election petition to befiled against the respondent.
An instrument purporting to be .a recognizance in the sum of Rs. 5,000executed by the petitioner and two sureties was filed on March 31,1936.
Notice of the filing of the petition and that the required security hadbeen given by a recognizance executed by the petitioner and two suretieswas published in the Government Gazette. The notice which was sent forpublication was signed by the Proctor, as agent for the petitioner.
The respondent prayed for the dismissal of the petition on the followinggrounds:—
That the petition was not duly stamped.
That the recognizance was not in conformity with .the rules 12 (2),and 16 of the rules in Schedule VI of the (State CouncilElections) Order-in-CounciL
The recognizance was limited to Rs. 5,000, although, the petitioneralleged more than three charges.
The notice published in the Government Gazette was not in com-pliance with rule 18 as the writing appointing the Proctor wasnot duly stamped and the notice did not set out the nature ofthe security given.
180
Vinayagamoortky v. Ponnambalam..
H. V. Perera, K.C. (with him N. Nadarajah, E. B. Wikramanayake,D. W. Fernando, T-hambidurai, and Soorasangaran), for respondent.—Security is not given as in rule 12 (2). This cannot be cured. See rule12 (3). The recognizance under rule 16 makes the surety primarily liablefor costs. • The bond given makes them liable as sureties under theRoman-Dutch law. The form of the recognizance may be altered butnot the character. A recognizance is a debt due to the Crown (Brown v.Packeer'). It is not a mere obligation. It is the acknowledgment of adebt. The bond here is given by a principal and sureties as such. Thesureties make a general renunciation. Such a renunciation is insufficient(Wijeywardene v. Jay aw ar dene*; Ameresinghe v. Perera *; PandithanChettiar v. Singappuhamy *). Even if they have sufficiently renounced theprivileges they are still sureties and the recognizance requires that theyshall be principal debtors. Whatever equities are available would stillbe due to them as sureties. This is a fatal objection (Silva v. Karaliadde *).See Wijesekere v. Corea*. The objection may be taken at any time(Cobbet v. Hibberf). The rules in England are the same as our rules(2 Rogers 407). Rules 18 and 19 are contained in rule 8 of the Parliamen-.tary Elections Act.
There are more than three charges.. Corrupt practice under the Order-■ in-Council may be by the candidate himself or by someone with hisknowledge and consent or by his agent. A charge of bribery merely in apetition would be incomplete. It must specify by whom the briberywas. The person'must be placed in the proper category. Section 74.There -are here five charges; of undue influence and treating by therespondent; undue influence and treating by the agent, and bribery bythe respondent only. Under a charge of bribery by the candidate youcan. prove any number of instances of bribery by the candidate but notof bribery by the agent. It does not fall within the allegation. SeeTilekewardane v. Obeysekere *. Definitions are not only for the purposesof the criminal law but for all purposes. To make a candidate liable forhis agents’ treating the agency must be ad hoc for that particular purpose(Silva v. Coorey 2 Rogers 172). The allegation in the petition must be astatement of fact, not a charge. Article 74 provides three differentcategories. Instances must be covered by the allegation. The petitionmust be dismissed if the sum given as security is insufficient (Silva v.Karaliadde (supra) ).
The petition is not duly stamped. In England the practice is to stamppetitions. This is an instrument. The definition in section 3 (14) _qf theStamp Ordinance is not exhaustive. Section 4 introduces documents.Schedule B, Part I, catches up this document and it is not contained in theexemptions. Instrument is defined in Stroud as any document of aformal – legal kind. This is caught up by item 28.
The notice has not been given as required by rule 18. The.proxy is notstamped. This is an instrument and in any event comes under item 28.It may come under item 35. Agent is appointed only to accept notices.
2 IP N. L. R. 449.
2 35 N. L. R. 306.* 37 N. L. R. 310.
1 26 N. L. 379.
s 33 N. L. R. 85.‘ 5 C. L. W. 56.
119 L. T. SOI.
• 33 N. L. R. 65.'
• 33 .V. L. R. 25.
Vinayagamoorthy v. Ponnambalam.
181
(Rule 9.) Rule 18 speaks of the giving of notice. It must be by thepetitioner and not by an agent. Notice presupposes some person givingnotice. It is not a mere publication. Notice if published must show whogives the notice. There is no notice of the nature of the proposed security.The object of this notice is to put the candidate on inquiry as to thesufficiency of the security. (Williams v. Mayor of Tenby ) Nature ofsecurity must be distinguished from the form of the security. (Heely v.The Thames' Valley Railway Co.3) Nature of security means such infor-mation as would give the substance of it. A defective notice is no noticeat all (In re Seri3). See Aron v. Senanayake *.
F. de Zoysa, K.C. (with him Kumarasingharn, Tiruchelvam and Curtis)for petitioner.—Sureties bind themselves jointly and severally. Descriptionof themselves as sureties does not matter. That will affect only theprincipal and sureties as among themselves. These defences are not openagainst the Crown. It will have the force of a judgment and the petitionercan sell the property. (Goonetileke v. Abeygoonesekera’.) See the con-dition of the recognizance. Section 12 says there must be two sureties.Therefore the persons must describe themselves as such. (Walter Pereira701.) Even if the sureties are not bound the petitioner is bound and to thatextent it is a recognizance. (Anson on Contracts, p. 60.)
Charges of undue influence and treating are two charges. Charge oftreating, e.g., under section 52 is an offence whether the charge is againstthe candidate or the agent. The charge is under section 74 (a). Sections52 and 53 are merely definitions. The charge is not that it was done ata particular time but that it was done during the whole campaign. Theword general is not used but that does not matter. Respondent can askfor particulars of general charges. A charge against the candidateand one against the agent is only one charge although it may be materialfor the purposes of a criminal case who did it.
Appointment of agent need not be stamped. There is no provision inthe Order-in-Council that the authority should be given in writing. It isonly necessary to inform the Registrar that some person has beenappointed. The proxy may be treated as such a writing. There is noprovision that such a writing should be stamped. The defect, if any, ismerely a technical defect.
Nature of the security is the form of the security, that is, whether incash or by recognizance. Sufficient notice was given to put the respondenton inauiry. The fact that the petition is with the Registrar is specificallymentioned. The bond was with the Registrar. No prejudice has beencaused to respondent. Section 18 is the only section that provides fornotice through the Gazette. Only the'fact that a petition has beenpresented need be stated. The notice need not be signed by anybody.The respondent is only entitled to know that a certain person has filed apetition. All other particulars he must get from the Registrar.
A. L. Wijeyewardene, K.C., S.-G. (with him Tambyah, C.C.), for theAttorney-General.—The election petition is not an “ instrument ” withinthe meaning of item 28 of Part I. of Schedule B of Ordinance No. 22 of
1 (1879) 5 C. P. D. 135.* (1898) 1 Ch. 652.
*11 L. T. 268.<5 C. L. W. 51.
5 17 N. L. R. 368
182
MAARTENSZ J.—Vinayagamoorthy v. Ponnamualam.
1908. Ordinance No. 3 of 1890, section 4, gave a very extensive meaningto “ instrument ” defining it to “ mean and include every writtendocument This meaning was found to be too extensive and it wasrestricted when the later Ordinance No. 22 of 1909 was enacted andsection 3 (14) of that Ordinance gave it a limited meaning. As themeaning of “ instrument ” in section 3 (14) of Ordinance No. 22 of 1909was felt to be too limited, Ordinance No. 16 of 1917 was passed in orderto bring certain documents within the scope of section 4 of OrdinanceNo. 22 of 1909. To interpret “ instrument ” as argued by the respondent’sCounsel is to restore the meaning given in Ordinance No. 3 of 1890 andto ignore the reasons which led to the passing of the subsequentOrdinances.
The document left with the Registrar under rule 9 is stampable. This •rule is identical with rule 9 of the Parliamentary Election Petition Rules.This document comes under item 35 of Part I, Schedule B, of OrdinanceNo. 22 of 1909.
Cur. adv. vult.
November 25, 1936. Maabtensz J.—
This is an application by the respondent for the dismissal of the petitionagainst his election on the grounds stated in his statements of objectionsdated April 7 and May 25,1936.
The petitioner in his petition filed on March 27, 1936, avers that theelection of the respondent is void by reason- of corrupt practice in that“ the said Ganapathypillai Gangesar Ponnambalam and his agent wereguilty of—
undue influence on the day of the election, viz., February 22, 1936,
and before the said date,
treating on the said date and before and after the saiddate.
The said Ganapathypillai Gangesar Ponnambalam was also guilty ofbribery ”.
Apparently, on the same day the petitioner filed a writing appointingMr. Victor Austin Perera Nanayakkara, a proctor of the Supreme Court,his agent with reference to the election petition to be filed against therespondent. The writing is a proxy form only partly adapted for thepurpose for which it was used. It still contains clauses quite inappro-priate to a writing contemplated by rule 9 of the rules in. Schedule 6 ofthe Ceylon (State Council Elections) Order-in-Coiincil, 1931 (hereafterreferred to as the Order-in-Council).
An instrument purporting to be a recognizance in the sum of Rs. 5,000executed by the petitioner and two sureties was filed on March 31.
Notice of the filing of the petition and that the required security hadbeen given by a recognizance executed by the petitioner and two suretieswas published in the Government Gazette. The notice which was sent forpublication was signed by Mr. Nanayakkara as agent for the petitioner.
The grounds on which the respondent prays for a dismissal of thepetition, shortly stated, are:
That the recognizance is not in conformity with rules 12 (2) and 16of the rules as the executants other than the petitioner have notmade themselves primarily liable for the payment of all costs,charges and expenses..
MAARTENSZ J.—Vinayagamoorthy v. Ponnambalam.
183
That the recognizance given by the petitioner is limited to Rs. 5,000
though thepetitioner alleges more than three charges.
That the sureties are insufficient.
That the notice published in the Government Gazette purporting to
be signed by Mr. Nanayakkara is not in compliance with the pro-visions of rule' 18, as the writing appointing him agent is notduly stamped and the notice does not set out the nature of thesecurity in sufficient detail.
That the petition is not duly stamped.
The recognizance which is the subject of the first objection is an adapta-tion of the model prescribed by rule 16 and is as follows: —
“ Be it remembered that on the 30th day of March, in the year ofOur Lord One thousand Nine hundred and Thirty-six, before Rama-lingam Damodarampillai, a Justice of the Peaee, we (1) ErampuVinayagamoorthy of Point Pedro as principal, and (2) Sinnathangam,wife of V. Eliathamby Rajaratnam with the consent of her husbandhereinbelow signified, and (31 V. Eliathamby Vaithialingam, both ofValvetty as sureties bind and acknowledge ourselves jointly and■severally to Our Sovereign Lord the King in the sum of Rupees Fivethousand (Rs. 5,000) to be levied of our property movable and immov-able to the use of Our Lord the King, his heirs and successors, I thesaid Sinnathangam, wife of Rajaratnam, hereby specially renouncingthe beneficium senatus consulti velleiani and beneficium authenticate siqua mulier and we the said Sinnathangam, wife of Rajaratnam, andthe said V. Eliathamby Vaithialingam hereby renouncing all right andbenefits whatsoever to which we as sureties are by law entitled.
“ The condition of this recognizance is that if the said Erampu Vina-yagamoorthy and Sinnathangam, wife of Rajaratnam, and V. Elia-thamby Vaithialingam or any of them shall well and truly pay all costs,charges and expenses in respect of the Election Petition’ signed by thesaid Erampu Vinayagamoorthy relating to the Point Pedro ElectoralDistrict which shall become payable by the said Erampu Vinayaga-moorthy under the Election (State Council) Petition Rules 1931 to anyperson or persons then this recognizance to be void otherwise to standin full force.
“I the said V. Eliathamby Rajaratnam of Valvetty do herebyconsent to my wife the said Sinnathangam giving security as aforesaid.
Sgd. (In Tamil).
Sgd. (In Tamil).
Sgd. V. E. Vaithialingam.
Sgd. V. E. Rajaratnam.
“ Taken and acknowledged by the above-named (1) Erampu Vinayaga-moorthy, (2) Sinnathangam, wife of V. Eliyathamby Rajaratnam, (3) V.Eliathamby Vaithialingam, and (4) V. Eliathamby Rajaratnam, on the30th day of March, 1936, at Valvetty.
Before me :
R. Damodarampillai,Justice of the Peace. ”
164
MAARTENSZ J.—Vinayagamoorthy v. Ponnambalam.
Rule 16 enacts that the recognizance “ may be ” in the form set out inthe rule and petitioner’s Counsel contended that the recognizance neednot be an exact copy of the model, and that all that is necessary is that itshould have the same legal effect.
He argued that the person described as sureties as well as the petitionerwere in terms of the recognizance principal debtors and that the mere useof the term sureties did not change the character of the obligation(Wijeywardene v. Jayawardenel). In support of this argument he pointedout that the petitioner and his sureties bound themselves jointly andseverally and that the condition of the recognizance was that it shouldbecome void if the petitioner and the sureties or any of them paid all thecosts, charges and expenses in respect of the election petition which shallbecome payable by the petitioner under the rules.
For the respondent it was submitted that the fact that the sureties haveagreed to be bound jointly and severally did not render them principaldebtors and that even if their renunciation of the privileges of a suretywere effective they would not be liable equally with the' petitioner.
It was also contended that a recognizance is an acknowledgment of adebt due to the Sovereign and that the bond contains no such aeknowl- 'edgment.
I am of opinion that both objections to the recognizance must fail.
The persons described as sureties in the document do not bind them-selves as collateral security for the debt but bind themselves as debtorsequally with the petitioner, and as was held in the case of Wijeywardene v.Jayawardene (supra) the use of inappropriate words cannot alter thenature of the obligation.
The second objection is based on the fact that the words “ to owe ”are omitted after the word “ severally ” and before the words “ to ourSovereign I was at first inclined to the opinion that this was a fataldefect ;but on reconsideration I am of opinion that the liability is impliedby the fact that the executants bind themselves in the penal sum ofRs. 5,000 which is to be recovered by a levy of their property and by-theterms of the condition of the recognizance that the obligation is to be inforce unless the costs and charges payable by the petitioner are paid.
The second objection depends on whether the petition sets out fivecharges or three. The contention for the respondent is that the allega-tions that the candidate and his agents were guilty of undue influence andtreating form four charges. This contention necessitates an examinationof Articles 51 to 55 of the Order-in-Council relating to corrupt practicesand Articles 73 and 74 which specify the grounds on which an election ofa candidate shall be declared void.
By the Order-in-Council treating, bribery, and undue influence are“ corrupt practices ”. Sections 52 and 53 of the Order say what actsamount to treating, bribery, and undue influence and declare that anypersons committing any of the acts described shall be guilty of the offenceof treating or undue influence. In the case of Silva v. Cooray", whichwas tried under the Order-in-Council of 1923 it was held that the accused, ■who was the candidate, could not be convicted of bribery unless heauthorized or connived at the acts of the agent who committed acts of» (2984) 26 N. L. ft. 193.‘ (.1931) 33 N. L. ft. 25.
MAARTENSZ J.—Vinayagamoorthy v. Ponnambalam.
185
bribery. It was argued that the ratio decidendi of {his case was applicableto the case of a person charged with treating or exercising undue influence,and that a charge of treating and undue influence against a candidatediffered from a charge of treating and undue influence by an agent whichunder Article 74 (c) are grounds for avoiding an election.
Article 74 enacts that the election of a candidate shall be declared tobe void on an election petition on its being proved to the satisfaction ofan election Judge inter alia that a corrupt or illegal practice was committedin connection with the election by the candidate or with his knowledge orconsent or by any agent of the candidate (Article 74 (c) ).
It was contended, and I think the contention is sound, that an electionis liable to be declared void on proof that an* agent of the candidatecommitted a corrupt or illegal practice in connection with the election,even if the agent acted without the knowledge or consent of the candidate.
It was accordingly argued that an allegation of corrupt practice by acandidate and an agent comprised two charges, that is to say, a chargeof corrupt practice by the candidate and a charge of corrupt practice bythe agent. In support of this argument it was submitted that evidenceof corrupt or illegal practice by an agent could not be led in support ofsuch a charge against the candidate; and vice versa that evidence of acorrupt or illegal practice by a candidate could not be led where a chargewas made against the agent only.
I do not think this contention is sound. The charges made in anelection petition need not be formulated with the precision and exactnessof a charge in criminal proceedings. The petition must state the factsand grounds on which the petitioner relies to sustain the prayer of hispetition—rule 4. Rule 5 provides that evidence need not be stated inthe petition but the Judge may on application in writing by a respondentorder such particulars as may be necessary to prevent surprise andunnecessary expense and to ensure a fair and effectual trial.
In the case of Tillekewardene v. Obeyesekerethe election petitionalleged three offences : bribery? treating, and paying or contracting for thepayment for conveyance of voters, and security was given in -a sum ofRs. 5,000. In the particulars filed under rule 5 a number of cases undereach charge were stated and the respondent contended that the securitywas inadequate. Drieberg J. in the course of his judgment said, “ theword ‘charges’ in rule 12 (2) mean the various forms of misconductcoming under the description of corrupt and illegal practices ; for example,whatever may be the number of acts of bribery sought to be provedagainst a respondent the charge to be laid against him in a petition is oneof bribery ” and held that the security was not inadequate.
I am of opinion that this decision is an authority for the propositionthat when a charge of bribery is made against a candidate instances orcases could be given of bribery by an agent.
For the purposes of Article 74, the candidate is responsible for the actof his agent and the charge must be laid against the candidate. Thereforethe allegations in the petition that the candidate and his agents were 1
1 (1931) 33 N. L. R. 65.
186
MAARTENSZ J.—Vinayagamoorthy v. Ponnambalam.
guilty of undue influence and treating amount to no more than chargesagainst the candidate and in my opinion they constitute two charges andnot four. 1 accordingly overrule the objection as to the adequacy of thesecurity.
The fourth and fifth objections raise two questions: (1) whether thepetition and the writing appointing Mr. Nanayakkara the petitioner’sagent are chargeable with stamp duty, (2) whether the notice publishedin the Government Gazette gave the respondent notice of the nature of thesecurity as required by rule 18.
The petition, it was urged, was chargeable with stamp duty payable ona deed or instrument not otherwise charged in Part I, of Schedule B of theStamp Ordinance, No. 22 of 1909 (item 28). This contention is based onthe definition of the term “ instrument ” in section 3, sub-section (14), ofthe Ordinance which enacts as follows : —
“ Instrument ” includes every document by which any right or
liability is, or purports to be, created, transferred, limited, extended,
extinguished, or recorded.
It was argued that the use of the word “ includes ” instead of the word“ means ” in the definition gave an extended meaning to the term instru-ment and that an instrument was not limited to a document by which aright or liability is created, transferred, &c. The argument that theword “ includes ” gives the term defined an extended meaning is right:But the question is whether the meaning of the term instrument is soextended as to make it applicable to the petition filed in these proceedings.
I am of opinion that it does not. The word includes in a defining clausemeans that the terni defined shall have the meaning given to it in theOrdinance in addition to its popular meaning:(Ludovici v. Nicholas
Appu1.) I am not aware of'any authority nor has any been cited to mewhere it was held that a .petition of the nature filed in these proceedingswas an instrument in the popular meaning of the word.
The Solicitor-General, who appeared on behalf of the Attorney-Generaldid not support the contention of the respondent that the petition waschargeable with stamp duty. I agree with him that the definition ofinstrument if given the extended meaning contended for by the petitionerwould have the meaning given to it in section 4 of the Stamp Ordinance,No. 3 of 1890, which provides that an “ instrument ” shall mean andinclude every written document. He argued that the alteration of thedefinition in Ordinance No. 22 of 1909 was introduced to give the terminstrument a more limited meaning.
I certainly agree with this argument and unless the Ordinance clearlyprovides that petitions of the nature of the petition filed in these proceed-ings are chargeable with stamp duty, which it does not, I am not preparedto hold that, they are so chargeable by reason of an inference to be drawnfrom the terms of the definition of the term instrument.
For these reasons I overrule the objection to the petition on the groundthat it has not been stamped-
■ (1000) 4 .V. R. 12.
MAARTENSZ J.—Vinayagamoorthy v. Ponnambalam.
107
The importance of the question whether the writing by which Mr. Nana-yakkara was appointed the petitioner’s agent is chargeable with stampduty arises from the fact that the notice in the Government Gazette purportsto be signed by him. It was argued that if Mr. Nanayakkara’s appoint-ment as agent is bad because it was not stamped the notice published byhim is not a notice given by the petitioner as required by rule 18.
The respondent’s contention is that the appointment is chargeablewith duty either as a letter or power of attorney under Part I. of ScheduleB to the Stamp Ordinance or as an appointment of an agent to acceptprocess under Part 2 of the Schedule.
The second branch of the contention cannot succeed. The agent toreceive process referred to in Part 2 is an. agent appointed in pursuance ofthe provisions of section 30 of the Civil Procedure Code which enacts that“ Besides the recognized agents described in section 25, any personresiding within the jurisdiction of the Court may be appointed an agentto accept service of process ”. The process referred to is process issuedunder the provisions of the Civil Procedure Code.
The first contention must, in my opinion, prevail; Part 1 of the scheduleitem 34 imposes a duty of six cents on a letter or power of attorney forthe purpose of appointing a proxy to vote at a meeting, and item 35 'imposes a duty of five rupees on a letter or power of attorney, whetherexecuted in Ceylon or elsewhere for any other purpose whatsoever
The terms of item 35 are in my judgment wide enough to include anappointment of agent made under the provisions of rule 9.
The petitioner’s Counsel, however, argued that the writing by which thepetitibner appointed Mr. Nanayakkara his agent was not chargeable withduty because .such a writing was not necessary under the provisions ofrule 9. It was urged that all the petitioner had to do under this rule wasto leave at the office of the Registrar a writing signed by him, giving thename of some person entitled to practice as a proctor of the SupremeCourt whom he authorizes to act as his agent. In short that the writingwas not chargeable with stamp duty because the law did not require it.But the petitioner has not left such a writing at the office of the Registrarand the petitioner must rely on the document he has filed. There mighthave been some force in the argument if the petitioner had left such awriting at the office of the Registrar in addition to the document by whichhe appointed Mr. Nanayakkara his agent. But that is not the case landthe petitioner must rely on the document which is chargeable with dutyin proof of the fact that Mr. Nanayakkara was his agent.
I cannot accede to the argument that a formal document is not necessaryfor the appointment of an agent.
Rule 9 is a verbatim copy of rule 9 of the Parliamentary ElectionPetition rules made on November 21, 1868, pursuant to the ParliamentaryElections Act, 1868, printed as Appendix III. in vol. II. of Rogers onElections. There is on page 524 of this volume a form of appointment.It is certainly not a statutory form, but there would have been no necessityfor appending one if it was not the practice in- England to appoint an agent
188
MAARTENSZ J.—Vinayagwmoorthy v. Ponnambalam.
by a formal document in writing and I doubt whether such a practicewould have arisen if a formal appointment was not considered necessaryunder the provisions of rule 9.
The form is in these terms : —
Appointment of Agent.
In the High Court of Justice, King’s Bench Division.
The Parliamentary Elections Act, 1868, and The Corrupt and IllegalPractices Prevention Acts, 1883 and 1893.
In the matter of the Election Petition for the County (or as the case may
be) of
Between
A. B. 7:Petitioner.
And
C. D„, Respondent.
I, A. B. (or C. D.) the above-named petitioner '(or respondent) do hereby appointand authorize X. Y. of solicitor, to act as my agent herein.
And I hereby give notice that the address, at which notices addressed to memay be left, isaforesaid.
Dated thisday of, 19
(Signed) A. B. (or C. B.).
It will be observed that except for necessary variations no distinctionis made between an authorization under rule 9 and an appointment underrule 10.
Rule lO provides tfiat “ any person returned as a member may at anytime after he is returned send or leave at the office of. the Registrar awriting signed by him (or) on his behalf appointing a person entitled topractise as a proctor of the Supreme Court to act as his agent . .. . ”
There can be no question but that a formal appointment in writing isnecessary under this rule, and I can see no reason why such a writingshould be dispensed with in the case of an agent appointed by thepetitioner.
Apart from these reasons there must in my judgment be an appointmentof an agent for rule 43 requires an agent immediately on.his appointmentto leave written notice thereof at the office of the Registrar.
For these reasons I hold that the writing referred to in rule 9 is one bywhich a person is authorized by the petitioner to act as his agent, and notmerely an intimation to the Registrar that so and so is authorized to actas agent.
I accordingly hold that a written appointment is necessary and that itmust be stamped.
A subsidiary question with regard to the notice is whether the statementin the notice that “ security for costs has been given by a recognizanceexecuted by the petitioner and two sureties ” is sufficient notice of thenature of the proposed security. It was submitted on behalf of the res-pondent that the notice should have also stated the names of the suretiesand theiji addresses.
All that is required is that the notice should state whether the securityhas been given by deposit or by recognizance with sureties, ■ so that inthe latter case the respondent might if so advised take steps as providedby rule 19. See the case of Williams v. The Mayor of Tenby and others
1 (1879-80) 5 Common Pleas Div. 135.
MAARTENSZ J.—Vinayagamoorthy v. Ponnambalam.
189
I overrule the objection that the notice does not sufficiently specify thenature of the proposed security.
The notice was given by an agent whose authority to do so yas not dulystamped. The question arises whether the notice was for that reason notde jure given or whether the defect can be remedied by having the author-ity stamped under the provisions of section 36 of the Stamp Ordinance,No. 22 of 1909. It is not chargeable with a duty of five cents and istherefore not excluded by the terms of proviso A to that section. Againstthis procedure it was urged that rule 18 prescribes the time within whichnotice must be given and it was submitted that retrospecive effect cannotbe given to the letter of appoinment….
I do not think the provisions of section 36 apply. In Peiris v. Saravana-muttu1, where the question was whether a recognizance is liable to stampduty and it was contended that the recognizance was not liable to stampduty on the ground that an election petition was a quasi-criminal proceed-ing, Drieberg J. said, “ Nor, as I shall point out, is the question affectedby the nature of the proceedings for the fact that they are criminal wouldonly be relevant if it was sought to admit the recognizance in evidence,in which case it could be admitted though not duly stamped, undersection 36 (c) of the Stamp Ordinance, 1909. But it is not sought here• to have the recognizance admitted as evidence ”. Similarly in these pro-ceedings the petitioner does not seek to have the letter of authorityadmitted in evidence and neither section 36 (a) nor section 36 (c) applies.
In the case of defective proxies filed by proctors an amendment of theproxy was allowed in the cases of (1) Treaty v. Bawawhere the-proctor'sname had not been inserted in the proxy; in this case the objection to theproxy was taken in the answer (2) Tillekeratne v. Wijesinghe*, where theplaintiff appellant had omitted to sign the proxy. Here objection wastaken to the proxy in appeal. Hutchinson C.J. held that the proxy couldbe rectified at this stage by the plaintiff signing it.
In the case of Le Mesurier v. the Attorney-General *, the proctor whosecosts were taxed was not the proctor on the record and it was held that aparty who has recognized the appearance of a proctor as representinganother party to the suit cannot afterwards object to the taxation ofcosts due to such proctor on the ground that he had no authority to appear.In the case of Fernando v. Pereras, the petition of appeal was signed bya proctor who had acted as proctor for the appellant although he was notthe proctor on the record and this Court allowed the proctor on the recordto sign the petition of appeal nunc protunc.
In the case of Velappa Chetty v. Meydin *, the plaint was filed in the nameof Kolentah Velan Chetty (one of the payees of the note sued on) by hisattorney Velappa, on August 15. The plaint was accepted. On October14, the defendant moved that the plaint be taken off the file on the groundthat the power of attorney executed, in India was not duly stamped asrequired by the Stamp Ordinance then in force—Ordinance No. 3 of 1890.The motion apparently came on for discussion on October 17, by whichdate the power of attorney had been duly stamped.
> 33 N. L. R. 229.-* (1906) 10 N. L. R. 67.
= (1903) 7 N. L. R. 22.3 (1909) l Cur. Law Rep. 51
3 (1908) 11 N. L. R. 270.6 (1695) 1 .V. L. It. 333.
190MAARTENSZ J.—Vinayagamoorthy v. Ponnambalam.
The District Judge made the following order: —
“ Had I known ^he imperfection of the power of attorney under whichthe plaint was presented and filed, I should have rejected it. I do nowwhat I should have done then. I put matters in statu quo. I will nowentertain it as the power of attorney is effectual for use in the Colony,but the action must be considered as instituted from this date, the17^h October
Withers J. appears to have thought that, the plaint having beenaccepted the District Judge would not necessarily have rejected it, butmight have declined to issue summons until the power had been dulystamped. It was conceded at the argument in appeal that had the Judgeknown the power of attorney to be ineffectual for local use for want ofbeing stamped according to local law he would have rejected it.
Browne J. observed that had the defendant called for inspection of thepower of attorney at the outset he might very possibly have succeeded inhaving the plaint rejected, but as the result of his delaying to take suchaction the plaintiff was able to remedy this defect in the power by October17, and the District Judge’s order was therefore wrong.
In that case however the power of attorney was executed in India andunder section 31 of Ordinance No. 3 of 1890 the Commissioner of Stampscould have affixed upon it a stamp of the proper amount of duty and interms of the section the power of attorney had. the like force and validityin law as if it had been properly stamped. Section 42 of the StampOrdinance contains similar provisions. Section 17 of the Ordinancerequires a time limit of three months within which an instrument executedout of Ceylon may be stamped.
I do not think that section 34 of the Stamp Ordinance of 1890 referredto by Brown J. is applicable as it refers to instruments specified in Part IIof Schedule B to the Ordinance.
The nearest case I can find to the question I have to decide is ArumugamChetty v. Silva'. The plaintiffs in that case who were away in India senta"proxy from there to their proctor stamped with Ceylon stamps. Theproxy was not sent to the Commissioner of Stamps within three monthsfor him to stamp it as required by the Stamp Ordinance (sections 17and 42). Objection was taken to the proxy at the trial, and defendantmoved that the action be dismissed. The Supreme Court allowed theplaintiffs to give a proper and sufficient proxy ratifying, if necessary,what the plaintiffs proctor had so far done in the action.
De Sampayo A. C. J. who delivered the judgment said, “ It appears that-the plaintiffs in India drew up a proxy in favour of Mr. Bartholomeusz,and stamped it with the Ceylon stamps of the value required for thepurpose of this action. The objection is founded on the provisions ofsections 17 and 42 of the Stamp Ordinance, No. 22 of 1909, the effect ofwhich is to require that an instrument such as this, when executed abroad,should, within three months of their arriving in Ceylon, be sent to the-Commissioner of Stamps, and he should stamp the instrument with thestamps required. The objection, if it is to be dealt with, is a good one sofar as it went.' But the defendant wishes to have the whole action•dismissed, with costs, because of the imperfecton in the stamping of the
i (1923) 25 N. L. It. 31. –
Panditha v. Dawoodbhoy.
191
proxy of the proctor. I thing it was possible for the District Judge tohave made a proper order to put matters straight. But the actual orderhe made was that a certain person, who appears to ..hold a power ofattorney from the plaintiffs, should sign the proxy and put on a new setof stamps, and thus enable the proctor to continue the action. I think theproper course would have been to allow the plaintiffs, through theirattorney, to give a proper and sufficient proxy to the proctor, ratifying,if necessary, what the plaintiff’s proctor had hitherto done in the action.I refer to this matter of ratification, because up to the date of trial whenthe objection was argued, the defendant’s proctor did nothing to preventthe action going on. I think it is unjust now to put the plaintiff’s to theexpense of bringing a fresh action”.
It appears to me from the dicta of the Judges in the last two casesreferred to that the plaintiffs in the two cases would have been compelledto bring fresh actions if the objection to the instruments referred to, onthe ground of their not being stamped had been taken in limine.
I would emphasize the concluding words .of the passage cited from thejudgment of de Sampayo A. C. J. beginning, “ I refer to this matter ofratification . . . . ”
In the first of the two cases there can be no doubt that the District Judgecould have refused to accept the plaint on the ground that the power ofattorney had not been stamped. The power having been executed outof Ceylon it was possible to supply the omission. But in this case theomission cannot be supplied as one month has elapsed from the date of itsexecution. Section 43 which provides that an instrument may becertified as duly stamped by the Commissioner of Stamps if it is broughtto him within one year of its execution and the stamp duty leviable isduly paid to him and he is satisfied that the omission to stamp the instru-ment has been occassioned by accident, mistake or urgent necessity—cannot apply as there is no suggestion that the omission to stamp theletter of appointment was occasioned for the reasons stated in the section.Moreover no application has been made to the Commissioner of Stampsfor such a certificate.
• I am of opinion that the agent had no authority to give the noticepublished in the Government Gazette and I hold that the notice requiredby section 18 of the rules has not been served on the respondent.
I accordingly dismiss the petition with costs on the authority of the-case of Aron v. Senanayake1 decided by Akbar J.
Petition dismissed.