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Present : Lasoelles C.J.
DHABMASENA v. SUDUMANA et al.
268—C. R. Ckilaw, 15,155.
Derisory oath—Oath must be recorded in writing by person appointed toadminister oath.
The failure of the person appointed to • administer a decisory oathto take and record in writing the evidence of the person sworn oraffirmed is a fatal irregularity.
Lascblles C.J.—If the person charged to administer the oath isallowed at a later stage to appear in the Court and give evidenceex parte from his recollection of what was said on oath, it is obviousthat the intention of the Ordinance will not have been carried ont.
HE facts are set out in the judgment.
R. L. Pereira, for the plaintiff, appellant.—The interpreter whowap appointed to administer the oath did not record the oath takenin writing at the time the oath was administered. That omission isa fatal irregularity. See Segu Mohamadu v. Kadiravail Kangany.1The oath in this case was not taken at the altar, but in the compoundof the church.
Samarawickrema, for the defendants, respondents. The case citeddoes not hold that a written report is essential. The person whoadministered the oath has given sworn evidence in Court soon afterthe oath was administered, when the fact was fresh in his mind, thatthe oath was taken.»
It would be idle to contend that he should have himself put hisevidence in writing. If his written report may be admitted, hissworn testimony should cany greater weight.
Pereira, in reply.—The plaintiff was not present when theinterpreter gave his evidence, and did not have an opportunity tocross-examine him.
August 5, 1912. Lascelles C.J.—
This is a case in which the claim in the action was for damagesfor injury to a fence. The entry in the journal under date July 3 isas follows: "Case settled. Fourth defendant-to swear that theportion of fence twenty-eight fathoms referred to did not belongto plaintiff at time of removal. To take oath at Badiruppuwa
i (1008) li N. L. R. m.
( 378 )
1918. church to-monow at 5.30 p.m.” It appears that on the followingg»n day, that is, on the 4th, the oath was taken by the fourth defend-er. ant; and on the 5th, the next day, the interpreter appeared inDharmaaena Court and was examined on oath ex parte, and he deposed that hev. Sudumana administered the oath to the parties in this case, and that the fourthdefendant had sworn that when he pulled up the twenty-eightfathoms of barbed wire the fence did not belong to the plaintiff;and he also deposed that he, that is, the fourth defendant, took theoath at Bandiruppuwa church.
The substantial objection to the procedure is that sub-section (2)of seotion 9 of " The Oaths Ordinance, 1895, ” has not been compliedwith. The section, dealing with decisory oaths, provides that theCourt may authorize any person to administer the. oath, and totake and record in writing the evidence of the person to be swornor affirmed and return it to the Court. Now, there is no doubtbut that in this case the procedure prescribed by the section has notbeen complied with; and the only question that I have to consideris whether, the failure of the interpreter to take and record theevidence of the persons sworn or affirmed is a fatal irregularity.
In my opinion the irregularity is fatal to the proceedings. Thecase here is a much stronger one than the case of Segu Mohamadu v.Kadiravail Kangany,1 because there was no contemporaneous reportof the evidence made at all. All that happened was that the inter-preter appeared in Court the day after he had administered the oathand recorded the substance of the evidence in a very perfunctorymanner. I think it would .be straining the language of the Ordinanceunduly to allow' this procedure as a compliance with the Ordinance.The object of the procedure is to have a distinct, complete, andintelligible record of the evidence given under the sanction of the oath.
If the person charged to administer the oath is allowed at a later stageto appear in the Court and give evidence ex parte from his recollectionof what w'as sai'd on oath, it is obvious that the intention of theOrdinance will not have been carried out. The loose way in whichthe statement on oath has been reported has left room for the state-ment in the petition of appeal that, as a matter of fact, the oathwas not taken in the church at all, but in the compound of the church;and the language reported to have been used by the fourth defendant,seems to me, to point to the fact that he gave his evidence in a veryguarded and reserved way. I am by no means satisfied that justicehas been done in this case, apart from any technical question; I1'would set aside the judgment in the case, and direct the case to betried in the ordinary course. The appellant is entitled to the costsof the appeal.
> (1908) li AT. L. R. 378.
DHARMASENA v. SUDUMANA et al