Tilakaratne and Another
TILAKERATNE AND ANOTHERCOURT OF APPEALSOMAWANSA, J. (P/CAJANDBASNAYAKE.J.
CALA 276/2004D. C. MT. LAVINIA1168/99/LNOVEMBER 1. ANDDECEMBER 14, 2004.
Civil Procedure Code, section 757(1) — Leave to appeal — Petition to besupported by an affidavit — Affidavit deposed to by the instructing attorney -at-law — Validity ?
When the plaintiff-petitioner sought leave to appeal preliminary objectionwas taken by the defendant-respondent that, there is no proper affidavit filedas required by law as the affidavit tendered was deposed to by one of theinstruct attorneys at law, and hence the application should be dismissed in
It was contended by the plaintiff-petitioner that the material on which theplaintiff relies on, are all events that transpired in court and the best evidencethat one could place is that of the registered attorney-at-law, as what tran-spired in court was best known to him than to any one else and that theregistered attorney is the best witness.
Per Basnayake, J.
“When an attorney at law gives an affidavit on facts which are false wherewould he or she be placed ? Could the attorney say that the affidavit wasprepared on instructions ? There is no doubt that even the attorney-at-law isa fit and proper person to depose to the facts in an affidavit, provided thosefacts are within the knowledge of the attorney at law. It can’t be said that it iswithin anybody’s personal knowledge when facts are gathered throughinstructions."
In the present case some facts deposed to in the affidavit would have beenrelated to the registered attorney by the plaintiff — as regards the relation-ship and how the plaintiff became the owner of the corpus.
APPLICATION for leave to appeal from an order of the District Court of Mt. Laviniaon a preliminary objection raised.
Sri Lanka Law Reports
(2C38) 1 Sri L R-
Cases referred to:Kumarasinghe vs Ratnakumara – (1983) 2 Sri LR 39 and at 394 and 397
Chandrasiri vs Abeywickrema – (1998) 3 Sri LR 225
Hakeem Mohideen vs Mohamadu Caseem – 4 NLR 299
Sanath Jayatilake for plaintiff petitioner.
Ranian Suwandaratne with Ranjit Ranadeera for intervenient respondents.
April 26,2005ERIC BASNAYAKE, J.The plaintiff petitioner (Plaintiff) filed this petition seeking leave to ap-peal to have the order of the learned District Judge of Mt. Lavinia dated
set aside. When this case was called after notice, the learnedcounsel for the defendants/respondents (defendants) raised a preliminaryobjection to wit, that there is no proper affidavit filed in this case as re-quired by law, as the affidavit tendered was deposed to by one of theinstructing attorneys-at law, and hence moved court to dismiss this appli-cation in limine. Written submissions have been tendered by both partieswith regard to the preliminary objection taken.
In terms of section 757(1) of the Civil Procedure Code, applications forleave to appeal proceedings shall be made by petition supported by anaffidavit. In this case the plaintiff had filed along with the petition, an affida-vit, deposed to by one of the attorneys-at law. The learned counsel for theplaintiff submits that the material on which the plaintiff relies on, are allevents that transpired in court and the best evidence that one could placeis that of the registered attorney-at-law. He states that what transpired incourt was best known to him than to any one else and that the instructingattorney-at law is the best witness that is available. The learned counselappears to rely on the judgment of Kumarasinghe vs. Ratnakumaraf’1394,397 where Sharvananda J. (as he then was) states thus:
“An affidavit is an oath in writing signed by the partydeposing, sworn before and attested by him who hadCA
Tilakaratne and Another (Basnayake, J.)
authority to administer the same” Bacon’s Abridgement124.
An affidavit is a declaration as to facts made in writingand sworn before a person having authority to adminis-ter an oath.
Any particular fact may be proved by an affidavit. Thelaw provides for the admissibility, in certain circum-stances, of evidence by affidavit. The evidence given byway of an affidavit is a substitute for testimony given byword of mouth. The affidavit can be used as evidence offacts stated therein. Any person acquainted with the factsmay give the affidavit. An affidavit is only intended tosatisfy the court, prima facie, that the allegations in theapplication are true so that the court may take legal ac-tion such as issuing notice on the opposite party on thebasis of the evidence, provided by the affidavit. If theallegation of fact made in an affidavit in support of theapplication is not refuted by counter affidavit by the op-posite party, then the allegation in the application istreated as true.
Affidavit in support of the application thus serves the pur-pose of proof of facts stated therein. It furnishes the evi-dence verifying the allegation of facts contained in thepetition. Affidavit evidence carries equal sanctity as oralevidence.
While a stranger cannot make an affidavit it need not bemade by the party individually, but may be made by anyperson who is personally aware of the facts. The court isentitled to have the best evidence before it; where thereexists evidence which is first hand it will be most unsatis-factory to place before court evidence of any other de-scription. Ordinarily a petitioner is the best person whocan speak to the facts and verify the facts averred in thepetition ; then, it is he who should file the affidavit insupport of the said facts; but if there are other witnessestoo who can, to their personal knowledge, depose to those
Sri Lanka Law Reports
12006) 1 Sri L R.
facts there is no bar to their filing affidavits in support ofthe petition, in addition to or in substitution for thepetitioner’s affidavit. But if the petitioner does not file hisown affidavit verifying the facts, which he is personallyconversant with, then the court would be extremely re-luctant to grant relief. But the petitioner may be excusedfrom filing an affidavit, if for some good reason or groundhe is unable to do so.
In Chandrasirivs. Abeywickremaf21 the court held that “in terms of sec-tion 757(1) of the Civil Procedure Code the affidavit which is required tosupport a petition made by a party for application for Leave to Appealcannot be subscribed to by the registered attorney of such party”. Anaffidavit sworn by the defendant before his own proctor is not according tothe practice of English Courts, admissible in evidence Hakeem Mohideenvs. Mohamadu CaseenrPK
Under any circumstance, it is only persons who to their personal knowl-edge depose to those facts who are qualified to affirm an affidavit. In thepresent case some facts deposed to in the affidavit are that the 1 st defen-dant is the younger brother of the plaintiff and the 2nd defendant is the wifeof the 1st defendant, the plaintiff was the owner of Lot 4 in Plan 1210. ThisLot 4 was sub divided in to two Lots by the plaintiff in the Plan 5075 andLot 1 gifted to the 1 st defendant. In addition to that, the facts leading up tothe time the dispute arose were averred by the registered attorney-at-lawin the affidavit in question. Can she state that she averred all those factsfrom her personal knowledge ? All these facts would have been related toher by the plaintiff, and the consequential preparation of the petition. Theaffidavit almost in line with the petition was prepared thereafter.
Could the registered attorney at law say that she knew all the factsdeposed to in the affidavit ? In that case she should be an eligible witnesswho could give evidence from the witness box. When she comes to thewitness box she cannot be heard to say that she learnt those facts fromthe plaintiff. In that case that evidence becomes hearsay and inadmis-sible.
Sometimes a client may not speak the truth and the affidavit couldbe prepared on falsehood. An attorney-at-law could prepare an affidavit on
Hewage vs. Public Trustee (Wimaiachandra, J.)
the basis that the instructions given are truthful. This is not always thecase. When an attorney-at-law gives an affidavit on facts which are falsewhere would he or she be placed ? Could the attorney say then that theaffidavit was prepared on instructions ? There is no doubt that even anattorney-at-law is a fit and proper person to depose to the facts in anaffidavit, provided those facts are within the knowledge of the attomey-at-law. It cannot be said that it is within anyone’s personal knowledge whenfacts are gathered through instructions.
Therefore I hold that this affidavit is bad in law. Hence I uphold theobjection. Therefore leave is refused with costs fixed at Rs. 5,000.
SOMAWANSA, J. — I agree.
JAYASUNDERA vs. TILAKERATNE AND ANOTHER