W.C.Fernando, V. L. De. Silva, .

1951 Present: Rose C.J.

W. C. FERNANDO, Petitioner, and L. DE SILVA, Respondent

S. C. 100-IN THE MATTER OF AN APPLICATION FOR A WRIT of
Quo Warranto ON THE MEMBER FOB WARD NO. 8, URBAN COUNCIL,
MORATUWA
 

Quo Warranto-Election of member of Urban Council-Spiritual intimidation of voters-Ground for disqualification-Criminal prosecution is no alternative remedy-Local Authorities Elections Ordinance, No. 53 of 1946.

A writ of quo warranto would lie to invalidate an election held under the Local Authorities Elections Ordinance if spiritual intimidation of the voters can be proved. In such a case, an alternative remedy cannot be said to be available to the petitioner in prosecuting the person or persons responsible for the intimidation, if the prosecution would not necessarily assist the petitioner in the avoidance of the election.

An election pamphlet contained words meaning that religious bodies in general and in particular the Roman Catholic Church had stated in clear terms that candidates of a certain political party and their sympathisers should not be voted for. It did not, however, hold out any threat or inducement which could be reasonably said to operate as undue influence upon Catholic or any other members of the electorate.

Held, that there was no spiritual intimidation of the voters.

THIS was an application for a writ of quo warranto on a member of the Urban Council, Moratuwa.

H. V. Perera, K.C., with D. S. Jayawickreme, Sam P. C. Fernando and G. T. Samarawickreme, for the petitioner.

C. S. B. Kumarakulasinghe, with H. W. Jayewardene, for the respondent.

Cur. adv. vult.

November 8, 1951. ROSE C.J.-

On 9th December, 1950, an election was held under the provisions of the Local Authorities Elections Ordinance (No. 53 of 1946) for Ward No. 8 of the Urban Council, Moratuwa. Elections were also held on the same day for the remaining 11 wards of Moratuwa. The candidates for Ward No. 8 were Mr. Leonard de Mel who polled 573 votes and the respondent who polled 934 votes. The latter was therefore declared elected.

The petitioner who is a registered voter of Ward No. 8 of the Moratuwa Urban Council prays for the issue of a mandate in the nature of a Writ of Quo Warranto on the respondent to show by what authority he exercises the office of member for Ward No. 8 for the Urban Council, Moratuwa, and for a declaration that the election of the respondent to the said office is void.

The petitioner relies on two matters, a sermon alleged to have been preached by the Rev. Fr. Jerome de Silva at the St. Joseph's Church, Moratuwa, shortly before the election and a pamphlet (PI) which was distributed on behalf of the respondent to a number of electors a day or two before the polling day. He contends that the joint effect of the sermon and the pamphlet was to deprive the considerable Catholic portion of the electorate of Ward No. 8 of their freedom of choice in their selection of a candidate, in that undue spiritual influence was exercised upon them, and that therefore the present matter falls within that class of case in which spiritual intimidation has been held to invalidate an election.

The principles applicable to such cases can be extracted from a number of Irish cases 1[Galway (1872) 2 0' M. & H. p. 46.North Durham (1874) 2 O' M. & H. p. 152. South Meath & North Meath cases (1892) 4 O' M. & H. 130, 185. North Louth (1911) 6 O' M. & H. p. 103. Down (1880) 3 O 'M. & H. p. 115.] and are summarized in Mr. Rogers' book on elections (20th edition) at page 347. These principles have been restated and applied in this country by Soertsz J. in Piyadasa v. Goonesinha 2[ (1941) 42 N. L. R. 339 at page 342.]. It is true that the facts of the latter case had to do with general bribery and undue influence but the principles there stated would seem also to be applicable to a case in which spiritual intimidation was alleged. The same principle was applied

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