scKariyawasam v Southern Provincial
Road Development Authority and 8 Others
SOUTHERN PROVINCIAL ROAD DEVELOPMENTAUTHORITY AND 8 OTHERS
SUPREME COURTSHIRANEE TILAKAWARDANE, J.
DISSANAYAKE, J. ANDAMARATUNGA, J.
S.C. APPLICATION NO. 157/2006
Fundamental rights – Article 126(2) of the Constitution – Has the petitionerfiled the application within the period prescribed by Article 126(2) of theConstitution ?- Section 13(1) of the Human Rights Commission Act, No. 21 of1996 – Affidavit – Jurat.
At the hearing the respondents raised three preliminary objections, namely;
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Application of the petitioner is not filed within time;
The affidavit filed by the petitioner in support of his application isdefective;
The petitioner has not disclosed that he had made an application tothe Human Rights Commission on the same matter.
An application for alleged infringement of a fundamental right whichhas been filed in the Human Rights Commission within one monthfrom the alleged infringement of a fundamental right is pendingbefore the Commission shall not be taken into account incomputing the period of one month within which an application maybe made to the Supreme Court in terms of Article 126(2) of theConstitution.
The jurat (of the affidavit) contains all necessary particularsincluding the date of affirmation and attestation. There is norequirement that the Justice of the Peace must put the date belowhis signature in addition to the date given in the jurat. Failure to pulthe date below the J.P.'s signature cannot affect the validity of theaffidavit when the date of attestation is embodied in the jurat.
PerGamini Amaratunga J. *
"However, where the J.P. has written below his signature a date
different to the date given in the jurat, such writing creates a doubtnot only with regard to the exact date of affirmation and attestation,but also with regard to the other particulars given in the jurat. If thisdoubt is not cleared by a reasonable explanation consistent withpetitioner’s contention the affidavit is liable to be rejected asdefective
The failure to disclose by the petitioner in his petition that he hadmade an application to the Human Rights Commission on the samematter is not a ground to reject this application as he has not gainedany undue advantage by his failure to refer to it.
APPLICATION under Article 126(1)
On a preliminary objection being taken.
Saliya Pieris with Sapumal Bandara for the petitioner.
D.S. Wijesinghe. P.C. with Kaushalya Molligoda for the 1st. 2nd, 3rd and 8threspondents.
Kariyawasam v Southern Provincial
SCRoad Development Authority and Others (Gamini Amaratunga.J.)35
July 5, 2007
GAMINI AMARATUNGA, J.The petitioner, a Technical Training Coordinator of the SouthernProvincial Road Development Authority has filed this fundamentalrights application, dated 28.4.2006 and filed on 2.5.2006,challenging his transfer from the Head Office at Galle to theRegional Engineer’s Office at Elpitiya. The transfer has been madeby letter dated 14.3.2006. The reliefs sought by the petitioner are adeclaration that the respondents have violated his fundamentalright guaranteed by Article 12(1) and an order quashing theimpugned transfer.
At the hearing before us the learned President's Counsel for the1st to 8th respondents raised three preliminary objections, namely;
That the application of the petitioner is out of time.
That the affidavit filed by the petitioner in support of hisapplication is defective for the reason that the date writtenbelow the signature of the Justice of the Peace who attestedthe petitioner's affidavit is different from the date given in the
That the petitioner has failed to disclose that he had madean application to the Human Rights Commission on thesame matter.
After oral submissions, both parties have filed their writtensubmissions on the preliminary objection.
The petitioner's application for relief against the impugnedtransfer dated 14.3.2006 has been filed on 2.5.2006. On the face ofit, it is clearly out of time for not being within the period of onemonth prescribed by Article 126(2) of the Constitution.
The learned Counsel for the petitioner submitted that thepetitioner has made an application to the Human RightsCommission seeking relief against the impugned transfer. Thepetitioner has not averred this fact in his application. Howeveralong with his written submissions the learned Counsel has filed acopy of the petitioner's application made to the Matara branch ofthe Human Rights Commission. It is dated 27.3.2006 and the date
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[2007/ 2 Sri L.R
stamp on it indicates that it has been received by the Matarabranch on the same date. The Copy of a letter dated 14.6.2006written by the Regional Co-ordinating Officer of the Matara branchof the Human Rights Commission to the 3rd respondent shows thatthe Commission has sent two letters dated 28.3.2006 and24.4.2006 to the 3rd respondent calling for a report on thepetitioner's complaint and that the 3rd respondent had failed torespond to those letters even by 14.6.2006.
According to section 13(1) of the Human Rights Commission ActNo. 21 of 1996, "where an inquiry into a complaint made by anaggrieved party to the Human Rights Commission within onemonth of the alleged infringement of a fundamental right ispending before the Commission, the period within which suchinquiry is pending before the Commission shall not be takeninto account in computing the period of one month withinwhich an application may be made to the Supreme Court interms of Article 126(2) of the Constitution."
The petitioner’s application to the Human Rights Commissionwas within one month of the impugned transfer. The Human RightsCommission, by calling for a report from the respondent Authorityhas set in motion the process of holding an inquiry into thepetitioner's application, but the Authority has failed to submit itsreport to the Commission. In those circumstances, the petitioner isentitled to claim the benefit conferred by section 13(1) of theHuman Rights Commission Act. I accordingly hold that thepetitioner's application to this Court is not time barred.
The second objection is that the date given in the jurat of thepetitioner's affidavit is different from the date written by the Justiceof the Peace (the J.P.) below his signature and therefore theaffidavit is defective. The date given in the jurat is "27th day of April2006" and the date written below the J.P.'s signature is 2006.4.12.The learned Counsel for the petitioner submitted that the petitionerhas signed the affidavit on 27th April 2006 before the JP but thelatter in writing the date below his signature had made a mistake bywriting the date as 2006.4.12. On the other hand the contention ofthe learned President's Counsel for the 1st to 8th respondents wasthat the date given by the J.P. coincides with the one monthrequirement as the period of one month from the impugned transfer
Kariyawasam v Southern Provincial
SC Hoad Development Authority and Others (Gamini Amaratunga,J.)37
letter expired on 14.4.2006. The learned President's Counselsubmitted that the 13th and 14 April being public holidays onaccount of the New Year, the probabilities are that the J.P. signedthe affidavit on 12th before the onset of the holidays.
A jurat "is a certificate of officer or person before whom writingwas sworn to. In common use the term is employed to designatethe certificate of the competent administering officer that writingwas sworn to by the person who signed It. "Black's Law Dictionary- 5th Ed.p.765. In other words, the jurat is the J.P.'s attestationclause which is essential to the validity of an affidavit.
The jurat in the petitioner's affidavit states that it was read overand explained to the affirmant; that he understood its nature andcontents and that he affirmed and signed it on 27th day of April2006 at Colombo. On the right hand side of the jurat the J.P. hassigned below the printed words "before me." Thus the jurat containsall necessary particulars including the date of affirmation andattestation. There is no requirement that the J.P. must put the datebelow his signature in addition to the date given in the jurat. Thefailure to give the date below the J.P.'s signature cannot affect thevalidity of the affidavit when the date of attestation is embodied inthe jurat.
However where the J.P. has written below his signature a datedifferent to the date given in the jurat, such writing creates a doubtnot only with regard to the exact date of affirmation and attestation,but also with regard to the other particulars given in the jurat. If thisdoubt is not cleared by a reasonable explanation consistent withthe petitioner's contention that the date 2006.4.12 written below theJ.P.'s signature was a mistake made by the J.P., the affidavit isliable to be rejected as defective.
The learned Counsel for the petitioner submitted that thepetitioner has signed the affidavit on 27.4.2006. The petition filed inthis Court is dated 28.4.2006, which was a Friday. The next twodays i.e. 29th and 30th April, 2006 were Saturday and Sunday. The1st of May was a public holiday. The petitioner's application hasbeen filed on 2.5.2006, which was the first working day after28.4.2006. This sequence of events supports the petitioner'scontention that the petitioner signed the affidavit on 27.4.2006.
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In the body of the affidavit, in paragraph 14, (paragraph 13 in thepetition) there is a reference to a letter dated 19.4.2006, sent by the3rd respondent to the petitioner. A copy of that letter is attached tothe petition marked P10. It is the 3rd respondent's reply to thepetitioner's appeal dated 16.3.2006 sent to the 3rd respondent toget the transfer cancelled (P8). The 3rd respondent in his affidavithas admitted that the petitioner's appeal against the transfer wasrejected by P10. If the affidavit had been prepared and signed bythe J.P. by 12.4.2006, the petitioner could not have referred to P10dated 13.4.2006 in his affidavit. This intrinsic evidence contained inthe affidavit clearly shows that the affidavit had been prepared on adate subsequent to 19.4.2006.
In considering the submission of the learned Counsel for thepetitioner that the date 2006.4.12, written below the J.P.'s signaturewas a mistake, this Court can taken into account ordinary humanconduct as well. The date "27th day of April 2006" is printed in thejurat. The J.P. had placed his signature parallel to the printed jurat,towards the right hand edge of the same paper. In the absence ofreasons so compelling, this Court is unable to hold that the J.P. hadconsciously and deliberately put the date as 2006.4.12 when thejurat, parallel to his signature, has the date '27th day of April’ in theprinted form.
The learned Counsel for the petitioner also submitted that thedate written by the J.P. appears to be 2006.4.17 and not 2006.4.12.In fact in the way the date is written it is not clear whether the dateis 12 or 17. The learned Counsel for the petitioner submitted thatthe J.P. in writing the date 27th had written figure 1 instead of figure2. If the second figure in the date written by the J.P. is taken as 7,it is consistent with the second figure of the date given in the jurat.As pointed out earlier, in considering the ordinary human conduct itis not possible to rule out the possibility of human error.
The petitioner's reference in his affidavit to P10 dated 19.4.2006Is a clear indication that the affidavit could not have been preparedand signed on a date prior to 19.4.2006. The date given in the Jurat(27.4.2006) is consistent with the position that the affidavit hadbeen signed on 27.4.2006 (which is a date subsequent to P10dated 19.4.2006). On the other hand the date 2006.04.12 (or 17)written by the J.P. cannot be a correct date in view of the reference
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in the body of the affidavit to P10 dated 19.4.2006. Thus the onlyreasonable conclusion this Court can come to is that the datewritten by the J.P. below his signature was an inadvertent error andas such it cannot affect the validity of the jurat. Accordingly I holdthat the affidavit of the petitioner is not defective and the secondpreliminary objection is also overruled.
The third preliminary objection is that in his petition the petitionerhas failed to disclose that he had made an application to theHuman Rights Commission on the same matter. It is true that in hisapplication the petitioner has not referred to his communication tothe Human Rights Commission. However by his failure to refer toit, the petitioner has not gained any undue advantage and as suchthe 3rd preliminary objection is not a ground to reject thepetitioner's application. Accordingly I direct to list the petitioner'sapplication for hearing on its merits.
SHIRANEE TILAKAWARDANE, J.- I agree.
DISSANAYAKE, J.- I agree.
Preliminary objections overruled.
Matter set down for argument
KARIYAWASAM v. SOUTHERN PROVINCIAL ROAD DEVELOPMENT AUTHORITY AND 8 OTHERS