TRICO FREIGHTERS (FVT) LTDv.
YANG CIVIL ENGINEERING LANKA (FVT) LTD
COURT OF APPEAL.
EDUSSURIYA J. (P/CA).
CALA NO. 79/99.
DC COLOMBO 14582/MR.
06th JULY. 1999.
Affidavit – Oaths and Affirmations Ordinance S.5 – Civil Procedure Code -Form 75 – Affirmation – Oath ■ Religion not stated.
Under Section 5 of the Oaths and Affirmation Ordinance, it is opento even a Buddhist. Hindu or a Muslim to make an oath because Section5 sets out that such a person may instead of making oath make anaffirmation.
“An affirmation is not bad in law merely because the deponent hasmade an affirmation without stating that he is a Buddhist, Hindu orMuslim."
Substitution of an oath for an affirmation (or vice versa) will notinvalidate proceedings or shut out evidence. The fundamental objectionof a witness or the deponent is to tell the truth and the purpose of an oathor affirmation is to enforce that obligation.
Case referred to :
Sooriya Enterprises (International) Ltd vs Michael White & Co. Ltd.,Sc Spl LA 235/94 – SCM 27. 07. 94
S. Sivarasa, P.C., with K.M.B. Ahamed and U.M. Mowjood for Petitioner.Kuwera de Zoysa with M. Weerakkody for the Respondent.
Cur. adv. vuli.
July 13, 1999.EDUSSURIYA. J. (P/CA)
Counsel for the Respondent has raised an objectionthat a person who makes an affirmation must set out in the
CA Trico Freighters (pvt) Ltd. v. Yang Civil Engineering Lanka (Pot) Ltd. 137
affidavit that he is a Buddhist, Hindu or Muslim or a personwho has a conscientious objection to make an oath and assuch is entitled to make an affirmation.
Counsel also referred to form 75 of the Civil ProcedureCode and drew the attention of Court to the words withinbrackets, “or if deponent is not a Christian”. Those words havebeen included only to specify that if a deponent is not aChristian that the deponent must make an affirmation as setbut therein.
Under Section 5 of the Oaths and Affirmations Ordinanceas it stands today it is open to even a Buddhist, Hindu or aMuslim to make an oath because Section 5 sets out that sucha person may instead of making oath make an affirmation.Therefore it is my view that an affirmation is not bad in lawmerely because the deponent has made an affirmation withoutstating that he is a Buddhist, Hindu or Muslim.
In the Supreme Court Judgment of Sooriya Enterprises(International) Limited vs. Michael White and CompanyLimitedm. His Lordship Fernando, J. in the course of his orderstated ”… that the substitution of an oath for an affirmation(or vice versa) will not invalidate proceedings or shut outevidence. The fundamental obligation of a witness or thedeponent is to tell the truth and the purpose of an oath oraffirmation is to enforce that obligation.”
Therefore I hold that the affidavit in question is valid in
Affidavit valid in law.
TRICO FREIGHTER (PVT) LTD v. YANK CIVIL ENGINEERING LANKA (PVT) LTD