Sri Lanka Law Reports
(2005) 1 Sri L. R.
SENANAYAKEVSCOMMISSIONER OF NATIONAL HOUSING AND OTHERSCOURT OF APPEAL,
SALEEM MARSOOF, P. C., (P/CA),
WIJAYARATNE, J., ANDSRIPAVANJ.,
DECEMBER 13, 2004.
Affidavit – Validity of an affidavit affirmed outside jurisdiction -Justice of thePeace appointed for Judicial District of Homagama – Judicature Act No. 2 of1978, section 45-Court of Appeal (Appellate Procedure) Rules 1990, Rule 3(1)(a). Filng of a fresh affidavit – Is it permitted? -Strict or absolute compliance witha Rule. Is it essential?
Held:Application for prerogative relief – the Court of Appeal enjoys a supervisoryjurisdiction.
Court should not non-suit a party where the non-compliance with Rulestakes place due to no fault of the party.
Strict or. absolute compliance with a Rule is not essential; it is sufficient ifthere is compliance which is substantial, this being judged in Ihe light ofthe object and purpose of these Rules. It is not to be mechanically applied.
APPLICATION for a writ of certiorari on a preliminary objection that the affidavitof the petitioner is bad in law.
Cases referred to :
Ceylon Workers Congress vs S. Sathasivam and others, Cala86/2000 – CAM 16.10.2002. Not followed.
Pakir Mohideen vs Mohamadu Cassim – 4 NLR 299,
Jayatilake and another vs Kaleel and others (1994) 1 Sri LR 319.
Kiriwanthe vs Navaratne (1990) 2 Sri LR 393
Rohan Sahabandu for petitioner.
Manohara R. de Silva for 6th respondent.
Commissioner of National Housing and Others Masroof.P/Ca
December 13,2004Saleem Marsoof, P/CA
This matter was taken up before a Divisional Bench in view of thenecessity to reconsider the decision of this Court in Ceylon Workers'Congress v. S. Sathasivam and Anothe/’1 in the context of a preliminaryobjection taken on behalf of the 6th Respondent that the affidavit of thePetitioner dated 8th June, 2001 affirmed to at Colombo before WijesurendraLokuge, Justice of the Peace in not valid insofar as he has only beenappointed as a Justice of the Peace for the Judicial District of Homagama.
Learned Counsel for the 6th Respondent relies on Rule 3(1 )(a) of theCourt of Appeal (Appellate Procedure) Rules, 1990 which requires thatevery application seeking to invoke the jurisdiction of this Court underArticles 140 or 141 of the Constitution shall be by way of petition, togetherwith an affidavit in support of the averments therein. That rule further providesthat where a Petitioner fails to comply with the requirements contained inthis Rule, the Court may ex mero motu or at the instance of any party,dismiss such application. Learned Counsel for the 6th Respondent submitsthat this Court in Ceylon Workers' Congress v. S. Sathasivam (supra)has held that the same Justice of the Peace, namely Wijesurendra Lokuge,who had attested an affidavit in Colombo which has been filed in that casehad acted outside his territorial jurisdiction and that the said affidavit wastherefore invalid. It is common ground that Wijesurendra Lokuge was theJustice of the Peace before whom the affidavit of the Petitioner in theinstant case was affirmed in Colombo and the only issue is whether hehas also been appointed as a Justice of the Peace for the Judicial Districtof Colombo.
Learned Counsel for the Petitioner submits that since the office of thesaid Justice of the Peace situated in Homagama was burnt down, he hasbeen functioning from an office in Colombo, and there are hundreds ofaffidavits attested by him in Colombo which have been filed in variousapplications before this Court. He further submits that although he hadendeavoured to ascertain from the Ministry of Justice, the Minister in chargeof which Ministry is the appointing authority of Justices of the Peace underSection 45 of the Judicature Act, No. 2 of 1978, as to the date and otherparticulars of the appointment of the said Justice of the Peace for theJudicial District of Colombo, he has failed to obtain this information as the
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1S4Sri Lanka Law Reports(2005) 1 Sri L. R.
Ministry had not maintained complete records of such appointments atthe relevant time. In the circumstances, he submits that he be permittedto renew the application he made in his written submissions dated 24thMay 2004 filed in these proceedings to tender a fresh affidavit in support ofthe averments contained in the petition. He submits that his client shouldnot be penalized for a defect which may have occurred due to no fault ofhis. He further submits that wherf the objection to the validity of the affidavitwas first taken up by learned Counsel for the 6th Respondent on 26thSeptember 2003, that he had moved that he be permitted to reply on 9thNovember, 2003. However, it appears from the docket that the case wasnot mentioned on that date as contemplated by the Order of Court dated26th September, 2003 and that when the case came up on 30th January,2004 time was sought for filing written submissions and after several datesthe written submissions dated 24th May, 2004 were filed on behalf of thePetitioner in which the said application had been made for permission totender a fresh affidavit in the same tenor.
I am of the view that the Court of Appeal (Appellate Procedure) Rules,
1990 have been formulated to facilitate the judicial process and with a viewof achieving justice rather than injustice. It appears from Rule 3(14) that itis contemplated that where there is some non-compliance with the Rules,the Registrar should put up the application for an order of Court. The intentionof this Rule is to give an opportunity for the Court to exercise its discretionwith respect to the matter as is implicit from the use of the word “may” inthe last sentence of Rule 3(1 )(a). Furthermore I am of the view that in. applications for prerogative relief where this Court enjoys a supervisoryjurisdiction, Court should not non-suit a party where the non compliancewith Rules takes place due to no fault of that party. In Pakir Mohideen v.Mohamodu Casim<z> the Supreme Court had in an instance where anaffidavit was found to be defective by reason of it having been sworn beforethe Defendant’s own Proctor, the Supreme Court nevertheless consideredthe contents of the affidavit in arriving at its decision. In Jayatillaka andAnother v Kaleel and Others131 where a similar difficulty arose as a resultof an affidavit having been affirmed before the relevant party’s attorney-at-law, the President’s Counsel appearing for the opposite party did not objectto the affidavit being admitted in evidence, and the Court refrained fromrejecting the affidavit in question. This Court is mindful of the decision inKiriwanthie v Nawaratne w in which the Supreme Court held that strict orabsolute compliance with a similar Rule was not essential, and that “it issufficient if there is compliance which is substantial – this being judged in
SCm. N. D. ■ Perera us185
.Balapatabendi, Secretary to the President and others
the light of the object and purpose of the Rule, It is not to be mechanicallyapplied”. In the circumstances, Court.is inclined.to. grant.the Petitionerpermission toifile.a.fr.esh.affidavit in identical terms attested by a Justice ofthe ,Peace, Commissioner of Oaths or any other authority before whomthe-Petitioner is entitled to depose to.an affidavit. For this purpose time isgranted till 20th January 2005,,on which date this case will be mentionedfor re-fixing the matter for argument on a date convenient to Court.
WIJAYARATNE, J. -1 agree.'
SRIPAVAN, J. -1 agree.
Preliminary objection overruled; petitionerpermitted to file a fresh affidavitin, identical terms,,.
SENANAYAKE vs. COMMISSIONER OF NATIONAL HOUSING AND OTHERS