AIRPORT AND AVIATION SERVICES (SRI LANKA) LIMITED vs. BUILDMART LANLKA (PV

024-SLLR-SLLR-2010-V-1-AIRPORT-AND-AVIATION-SERVICES-SRI-LANKA-LIMITED-vs.-BUILDMART-LANLKA-PV.pdf


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AIRPORT AND AVIATION SERVICES (SRI LANKA) LIMITEDVS. BUILDMART LANKA (PVT.) LIMITEDSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.,
RATNAYAKE, J. ANDEKANAYAKE, J.
S. C. (HC) L.A. NO. 4/2009
H. C. APPLICATION NOS. HC/ARB 998/2006 & 1249/2007(Consolidated in terms of Section 35 of the Arbitration Act)
MARCH 23rd, 2010
Arbitration Act – Section 31 – Application for filing and enforce-ment of award – Section 32 – Application for setting aside anarbitral award – Oaths and Affirmation Ordinance – Section 12(2)proviso – Question of legal validity of an affidavit – Affidavit swornbefore the deponent’s own Attorney – Supreme Court Rules 6 – CivilProcedure Code – Section 437- Notaries ordinance Section 31, Section 32,Section 33.
This is an application for leave to appeal from a judgment of the HighCourt (Colombo). When the application came up for support before theSupreme Court, the Respondent took up a preliminary objection on theground that the affidavit filed by the Petitioner is not in accordance withthe proviso to Section 12(2) of the Oaths and Affirmations Ordinanceand therefore the said affidavit has no validity as it is defective.
The preliminary objection was raised on the basis that when thedispute between the parties was referred to arbitration, M. R. Attomey-at-Law and Assistant Legal Officer of the Petitioner was present atthe arbitral hearing as an employee and Attomey-at-Law. When thematter proceeded to the High Court the said MR had been the instruct-ing Attomey-at-Law of the Petitioner. Later when the Petitioner pre-ferred a leave to appeal application to the Supreme Court against thejudgment of the High Court, the Commissioner for Oaths who had ad-ministered the affirmation in the affidavit, filed together with the peti-tion in the Supreme Court, was the very same MR.
Held
Although there is provision contained in the Notaries Ordinancegranting relief when there is failure by the Notary to observe the
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Rules in the Notaries Ordinance, a similar interpretation cannot begiven to the proviso to Section 12(2) of the Oaths and AffirmationsOrdinance, in the absence of such provision to that effect.
The Notaries Ordinance deals with the law relating to Notaries,whereas the Oaths and Affirmations Ordinance relates to oathsand affirmations in judicial proceedings and other matters.
Rule 6 of the Supreme Court Rules, 1990 and Section 12(2) of theOaths and Affirmations Ordinance are clearly different. Whilst Rule6 provides for an Attomey-at-Law to file an affidavit in supportof the allegations referred to in the Petition, Section 12(2) of theOaths and Affirmations Ordinance deals with the administeringof any oath or affirmation or taking of any affidavit. In suchcircumstances, even in a situation where an affidavit of anInstructing Attomey-at-Law is to be filed in support of an applicationfor special leave to appeal, such an affidavit would have to bemade strictly in terms of the provisions contained in the Oaths andAffirmations Ordinance.
The proviso to Section 12(2) of the Oaths and AffirmationOrdinance has restricted the power of the Commissioner for Oathsto administer any oath or affirmation or take any affidavit for thepurpose of any legal proceedings or matter in which he is theAttomey-at-Law to any of the parties or in which he is otherwiseinterested.
Per Dr. Shirani Bandaranayake, J., –
"… It is apparent that the said MR, being the Assistant LegalOfficer of the petitioner Company and the Attomey-at-Lawfor the petitioner at the arbitration proceedings and in theHigh Court, is a person, who has an interest in the leave toappeal application before the Supreme Court. Accordingly theaffidavit filed along with the petition is not in compliance with theproviso to Section 12(2) of the Oaths and Affirmation Ordinance.In the circumstances. . . the affidavit filed by the petitioner has tobe rejected.”
Cases referred to:
Kanagasabai v. Kirupamoorthi – (1959) 62 N.L.R. 54
Berry (Herbort) Associates vs. I.R.C. – 1 WLR 1437
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Prior vs City Offices Co. 10 QBD 504
JayathHake and another v. Kaleel and others-(1994) 1 Sri L.R. 319
Pakir Mohideen v. Mohamadu Casim- (1900) 4 N.L.R. 299
Coder Saibu vs. Sayadu BeeBee
AN APPLICATION for leave to appeal to the Supreme Court from ajudgment of the High Court, Colombo.
Gamini Marapana, P.C., with Navin Marapana for the Respondent-Petitioner-Petitioner
Nihal Fernando, P.C. with Ruchira Anthords for the Claimant-Respondent-Respondent
Cur.adv.vult
August 4th 2010
DR. SHIRANI A. BANDARANAYAKE, J.This is an application for leave to appeal from thejudgment of the High Court of the Western Province (sittingin Colombo) (hereinafter referred to as the High Court) dated23.01.2009. By that judgment the High Court had madeorder dismissing the respondent-petitioner-petitioner’s (here-inafter referred to as the petitioner) application preferredunder section 32 of the Arbitration Act, No. 11 of 1995 and hadallowed the claimant-respondent-respondent’s (hereinafterreferred to as the respondent) application, to execute theArbitral Award in terms of section 31 of the Arbitration Act.
Being aggrieved by the said judgment of the High Court,the petitioner came before this court seeking leave to appeal.
When this matter came up for support for leave toappeal, learned President’s Counsel for the respondent tookup a preliminary objection on the basis that the affidavitfiled by the petitioner dated 10.02.2009 is not in terms withthe proviso to section 12(2) of the Oaths and affirmationsOrdinance and therefore the said affidavit has no legal validity
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as it is bad in law. Accordingly, both learned President’sCounsel for the petitioner and the respondent were heard onthe preliminary objection raised by the learned President’sCounsel for the respondent.
The facts of this application for leave to appeal, assubmitted by the petitioner, albeit brief are as follows:
On 04.09.2009 the respondent had initiated Arbitrationproceedings against the petitioner, claiming inter alia damagesfor breach of contract. The Arbitration Tribunal hadpronounced its Award in favour of the respondent on
The petitioner thereafter had filed an applicationbefore the High Court on 08.02.2006, in terms of section 32of the Arbitration Act to have the aforesaid Award set aside.The respondent had also made an application on 05.07.2007,to execute the said Award, in terms of section 31 of theArbitration Act.
Both applications were consolidated by the High Court on
in terms of section 35 of the Arbitration Act andon 23.01.2009 the High Court had delivered its judgment,enforcing the Arbitration Award given in favour of therespondent and dismissing the petitioner’s application.
Referring to the preliminary objection raised, learnedPresident’s Counsel for the respondent submitted that whenthe matter in dispute was referred to arbitration, MalpethiRatnasinghe, Attomey-at-Law and Assistant Legal Officer ofthe petitioner, viz., Airport and Aviation Services, was presentat the arbitral hearing as an employee and Attomey-at-Law.Thereafter when the matter proceeded to the High Court, thesaid Malpethi Ratnasinghe had been the instructing Attomey-at-Law of the petitioner. Later when the petitioner preferredan application to the Supreme Court against the judgmentof the High Court seeking leave to appeal, the Commissioner
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for Oaths, who had admitted the affirmation in the purportedaffidavit, filed together with the petition in the Supreme Courtwas the said Malpethi Ratnasinghe.
The contention therefore by the learned President’sCounsel for the respondent was that the said affidavit filedbefore the Supreme Court is not in compliance with theproviso to section 12(2) of the Oaths and AffirmationsOrdinance as Malpethi Ratnasinghe is the Attomey-at-Law ora person otherwise interested in the proceedings before theSupreme Court.
Oaths and Affirmations Ordinance, No. 9 of 1895, hadcome into being as an Ordinance to consolidate the lawrelating to Oaths and Affirmations injudicial proceedings andfor other purposes. Section 12 of the said Ordinance dealswith the Commissioner for Oaths and section 12(1) refers tothe ministerial authority to appoint fit and proper personsfrom time to time as Commissioner for Oaths. The functionof the Commissioner for Oaths and the restrictions arereferred to in section 12(2) and in the proviso to the saidsection, which reads as follows:
“A Commissioner for Oaths appointed under thisOrdinance may administer any oath or affirmation or takeany affidavit for the purpose of any legal proceedings orotherwise in all cases in which a justice of the Peace isauthorized by law so to do, and in all cases in which anoath, affirmation or affidavit is commonly administeredor taken before a justice of the Peace; and any oath oraffirmation or affidamt administered or taken by aCommissioner for Oaths shall in all legal proceedings andfor all other purposes have the same effect as an oath,affirmation, or affidavit administered or taken before a
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justice of the Peace; and all enactments relating to oaths,affirmations and affidavits administered or taken beforea justice of the Peace shall, with the necessary modifica-tions, apply thereto:
Proinded that a Commissioner for Oaths shall not exercisethe powers given by this section in any proceedingor matter in which he is attomey-at-law to any of theparties, or in which he is otherwise interested. ”
Whilst the main section, referred to above, deals withthe chief function of the Commissioner for Oaths, the provisodeals with instances, where a Commissioner for Oaths shallnot be able to exercise the powers given in terms of section12(2) of the Oaths and Affirmation Ordinance.
The contention of the learned President’s Counsel forthe petitioner was that since section 12 is only an enablingprovision, the prohibition spelt out in the proviso to section12(2) would only apply to the Commissioner for Oaths andtherefore the said prohibition cannot affect the legal validityof the affidavit filed by the petitioner. In support of hiscontention, learned President’s Counsel for the petitionerrelied on the provisions contained in the Notaries Ordinanceand section 437 of the Civil Procedure Code.
With regard to the Notaries Ordinance our attentionwas drawn to section 31 and 32 and the learned President’sCounsel for the petitioner submitted that section 32 of theNotaries Ordinance specifically states that the failure of aNotary to observe the Rules specified in section 31 of theNotaries Ordinance, shall not invalidate the instrumentattested by such Notary.
The Notaries Ordinance deals with the law relating toNotaries, whereas the Oaths and Affirmations Ordinance,
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as stated earlier relates to Oaths and affirmations in judicialproceedings and other matters. The Notaries Ordinance doesnot deal with any such matter. Moreover, section 33 of theNotaries Ordinance has specifically stated that no instrumentshall be deemed to be invalid by reason only of the failureof any matter of form. However, there is no such provisioncontained in the Oaths and affirmations Ordinance withregard to section 12(2), which states that an affidavitadministered contrary to the provisions contained in theproviso to section 12(2) of the said Ordinance would never-theless be valid. In such circumstances, although there isprovision contained in the Notaries Ordinance granting reliefwhen there is failure by the Notary to observe the Rules,a similar interpretation cannot be given to the proviso tosection 12(2) of the Oaths and Affirmations Ordinance, in theabsence of such provision to that effect.
Learned President’s Counsel for the petitioner submittedthat the disability imposed upon a Commissioner for Oathsin terms of the proviso to section 12 of the Oaths and Affir-mations Ordinance has been impliedly repealed and renderednugatory regarding the affidavits filed in Court proceedings,by the introduction of section 437 of the Civil Procedure Codeunder the Amendment to the Code of Civil Procedure Act,No. 79 of 1988. This section reads as follows:
“Whenever any order has been made by any Court for thetaking of evidence on affidavit, or whenever evidence onaffidavit is required for production in any application oraction of summary procedure, whether already institutedor about to be instituted, an affidavit or written statementof facts conforming to the provisions of section 181 maybe sworn or affirmed to by the person professing to make
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the statement embodied in the affidavit before any Courtor Justice of the Peace or Commissioner for Oaths or inthe case of an affidavit sworn or affirmed in a countryoutside Sri Lanka, before any person qualified toadminister oath or affirmation according to the law of thatcountry, and the fact that the affidavit bears on its face thename of the Court, the number of the action and the namesof the parties shall be sufficient authority to such Court orJustice of the Peace, or Commissioner for Oaths or suchperson qualified to administer the oath or affirmation.”
Section 437 of the Code of Civil Procedure Act deals withthe evidence on affidavits. The provisions contained in section437 of the Code of Civil Procedure Act, clearly refersto the applicability of the provisions contained in section181 of the Code and in Kanagasabai v. Kirupamoorthxf') theCourt had held that when affidavits are filed in the courseof civil prodeedings, it is the duty of the Judges, Justicesof the Peace and proctors to see that the rules governingaffidavits in sections 181, 437 etc. of the Civil Procedure Codeare complied with. It is in this background that an interpre-tation has to be given to the words ‘such person qualified toadminister the oath or affirmations’, stated in section 437 ofthe Code.
In the present application, the preliminary objectionsthat were raised by the learned President’s Counsel for therespondent relates to the person, who had administeredthe affirmation in the affidavit filed in Court. Section 437on the other hand refers to a person, who had prepared theaffidavit. In such circumstances, as rightly contended by thelearned President’s Counsel for the respondent, the provisionscontained in section 437 of the Code of Civil Procedure Act,has not made the provisions contained in the proviso tosection 12(2) of the Oaths and Affirmations Act irrelevant.
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Learned President’s Counsel for the petitioner took upanother ground in support of his position.
In this regard reference was made to the SupremeCourt Rules 1990 with particular reference to Rule 6. It wascontended that Rule 6 allows for the affidavit that should befiled along with the application for special leave to appeal tobe sworn or affirmed to even by the instructing Attomey-at-Law or the petitioner himself. Accordingly learned President’sCounsel for the petitioner contended that in such circum-stances, it is inconceivable that this Court would strike outan affidavit as invalid, which was sworn or affirmed to beforea Commissioner for Oaths, who is otherwise interested in theproceeding or matter, in which such affidavit is filed.
Rule 6 of the Supreme Court Rules, 1990 refers to thefilling of affidavits in support of allegations contained in anapplication filed before the Supreme Court. This Rule readsas follows:
“Where any such application contains allegations of factwhich cannot be verified by reference to the judgment ororder of the Court of Appeal in respect of which specialleave to appeal is sought, the petitioner shall annex insupport of such allegations an affidavit or other relevantdocument (including any relevant portion of the record ofthe Court of Appeal or of the original Court or tribunal).Such affidavit may be sworn to or affirmed by thepetitioner, his instructing attomey-at-law, or his recognizedagent, shall be confined to the statement of such facts.Every affidavit by a petitioner, his instructing attomey-at-law, or his recognized agent, shall be confined to thestatement of such facts as the declarent is able of his ownknowledge and observation to testify to: provided that
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statements of such declarent’s belief may also be admit-ted, if reasonable grounds for such belief be set forth insuch affidavit."
Rule 6 of the Supreme Court Rules 1990, deals with asituation where there is a need to file an affidavit in support ofallegations of fact which cannot be verified by reference to thejudgment or order of the Court of Appeal in respect of whichspecial leave to appeal is sought. In such circumstances suchan affidavit may be sworn to or affirmed by the petitioner, hisinstructing Attomey-at-Law, his recognized agent or by anyother person having personal knowledge of such acts. Rule 6of Supreme Court Rules, 1990 therefore refers to an affidavitthat is sworn to or affirmed by the aforementioned persons inorder to support the allegations referred to in the petition.
By section 12(2) of the Oaths and Affirmations Ordinance,provision has been made for a Commissioner for Oath toadministrate any oath or affirmation or take any affidavitfor the purpose of any legal proceedings or otherwise in allcases in which a Justice of the Peace is authorized by law.The proviso to section 12(2) of the said Ordinance howeverhas restricted this function as a Commissioner for Oath shallnot exercise the power enumerated in section 12(2) in anyproceeding or matter in which he is Attomey-at-Law to any ofthe parties or in which he is otherwise interested.
The provisions contained in Rule 6 of the Supreme CourtRule, 1990 and section 12(2) of the Oaths and AffirmationsOrdinance therefore are clearly different. Whilst Rule 6provides for an Attomey-at-Law to file an affidavit in supportof the allegation referred to in the petition, section 12(2) andits proviso of the Oaths and affirmations Ordinance dealswith the administering of any oath or affirmation or take anyaffidavit. In such circumstances even in a situation, wherean affidavit of an Instructing Attomey-at-Law is to be filed
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in support of an application for special leave to appeal, suchan affidavit would also have to be made strictly in termsof the provisions contained in the Oaths and AffirmationsOrdinance, whereas the provisions contained in section 12(2)of the Oaths and Affirmations Ordinance would undoubtedlybe applied to such an affirmation.
The provision contained in the proviso to section 12(2)of the Oaths and Affirmations Ordinance clearly states thatan Attomey-at-Law shall not exercise his powers in anyproceeding or matter in which he is the Attomey-at-Law toany of the parties or in which he is otherwise interested. Theword “proceeding’ is described in Stroud’s Judicial Distionaryof Words and Phrases (6th edition, Vol. 2. Pg 2060) as follows:
“The primary sense of ‘action’ as a term of legal art is theinvocation of the jurisdiction of a court by writ; “proceeding’the invocation of the jurisdiction of a court by processother than writ (per Lord Simon in Berry (Herbert)Associates v. I.R.C.{2). “Any proceeding” (JudicatureAct 1873 (C. 66) S. 89) is equivalent to “any action” anddoes not mean any step in an action (Pryor v. City OfficesCo.'3'.”
The Oxford English Dictionary (2nd edition, Vol. XII pg. 545)also refers to an action in clarifying the meaning of proceedingwhich reads as follows:
“The instituting or carrying on of an action at law; a legalaction or process; any act done by authority of a court oflaw; any step taken in a cause by either party.”
As stated earlier, the respondent in this application, beingthe claimant, had referred the dispute between the petitionerand the respondent to arbitration. At the time, the petitionerbeing the respondent in the arbitration proceedings has filedthe statement of defence (X2), which stated as follows:
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“The statement of defence of the respondent abovenamed appearing by Champika Mahipala and MalpethiRanasinghe its Attomeys-at-Law state as follows.”(emphasis added).
The said statement of defence of the respondent wassubscribed to by Malpethi Ratnasinghe, as an Attomey-at-Lawfor the respondent. The seal of the said Malpethi Ratnas-inghe was placed below her signature, which stated thatshe is the Assistant Legal Officer of the petitioner. It is notdisputed that the said Malpethi Ratnasinghe, Attomey-at-Lawand Assistant Legal Officer of the petitioner had subscribedto the admissions and issues, which were submitted by thepetitioner at the arbitral proceedings. The arbitral proceedingswere held on several dates and Malpethi Ratnasinghe asAttomey-at-Law and Assistant Legal Officer of the petitionerCompany had been present at the arbitral proceedings asemployee and Attomey-at-Law of the petitioner.
The arbitral proceedings of 14.06.2004 stated asfollows:
“Malpethi Ratnasinghe, Attomey-at-Law with Mr. Rafeekare present on behalf of the respondent Company.”
The arbitral proceedings of 23.09.2004 stated asfollows:
“Malpethi Ratnasinghe, Attomey-at-Law, Legal Officerof Airport and Aviation Services (Sri Lanka) Ltd. for therespondent Company.”
The arbitral proceedings of 29.10.2004 stated as follows:
“Ms. M. Ratnasinghe, Attomey-at-Law appears forrespondent.”
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On a consideration of the totality of the aforementioned,it is evident that the Statement of Defence, issues and thearbitral proceedings establish that Ms. Malpethi Ratnasinghewas the Attomey-at-Law for the petitioner at the arbitrationand also that she was a permanent employee of the petitionerCompany as she is the Assistant Legal Officer of the Airportand Aviation Services (Sri Lanka) Ltd.
Thereafter whilst the respondent filed an applicationbefore the High Court for the enforcement of the arbitralAward, the petitioner instituted action in the High Courtto set aside the arbitral Award. The petition filed by thepetitioner in the High Court clearly stated as follows:
“The petition of the petitioner above named appearing byManorie Champika Gunaratne Mahipala Attomey-at-Lawand her Assistant Malpethi Ratnasinghe Attomey-at-Lawstate as follows:
The High Court had entered its judgment in favour ofthe respondent enforcing the Arbitration Award and hasdismissed the application filed by the petitioner in the HighCourt seeking to set aside the Award. Being aggrieved, thepetitioner came before the Supreme Court seeking leave toappeal against the said judgment of the High Court. Thepetition was filed along with an affidavit of Shums MufeesRahumathulla Refeek, being the Chief Engineer (Projects) ofthe petitioner, viz., Airport and Aviation Services (Sri Lanka)Ltd., dated 10.02.2009. The affidavit was affirmed byMalpethi Ratnasinghe, Attomey-at-Law and Commissionerfor Oaths.
The question which arises at this point is, in a situationwhere the said Malpethi Ratnasinghe was the Attomey-at-Law for the petitioner at the arbitration and the Instructing
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Attomey-at-Law of the petitioner in the High Court, whethershe could administer the affirmation in the affidavit filed inthe leave to appeal application before the Supreme Court.
Learned President’s Counsel for the respondentcontended that the leave to appeal application is a part ofthe proceedings in the matter, which was before the HighCourt and at the Arbitration. Also it was submitted that theword ‘matter’ referred to in the proviso to section 12(2) of theOaths and Affirmations Ordinance, has a wider meaning thanthe word ‘proceeding’ and therefore the word matter wouldinclude the entire arbitral and High Court proceedingsrelating to the arbitral Award and its enforcement by theHigh Court.
Burton’s Legal Thesaurus (4th edition, pg. 393) describesthe word ‘matter’ in the following terms:
“action, causa, cause, cause in court claim, courtaction, dispute, inquiry, lawsuit, legal action, legalproceedings, litigation, pleadings, proceedings, suit, suitat law, trial” (emphasis added).
According to the said description it is apparent that theword ‘matter’ means legal proceedings that would includeentire proceedings commencing from the arbitral proceedingsto the final application for leave to appeal before the SupremeCourt.
Learned President’s Counsel for the respondent alsocontended that the said Malpethi Ratnasinghe, who hadadministered the affirmation in the affidavit filed before thisCourt has an interest in this application. Learned President’sCounsel for the petitioner submitted that neither the factof employment in the petitioner Company nor the fact
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that she had been the Instructing Attomey-at-Law for thepetitioner in the High Court would not create in her aninterest, which would be sufficient to disqualify MalpethiRatnasinghe in terms of the proviso to section 12(2) of theOaths and Affirmations Ordinance.
It is common ground that the said Malpethi Ratnas-inghe is an employee of the petitioner as she is the AssistantLegal Officer of the Airport and Aviation Service (Sri Lanka)Ltd. It is not disputed that employees of an organization arestakeholders, who have an interest in the said organization.
An affidavit is a statement given in writing made on oathor affirmation. The administration of an oath is thereforean essential requirement of a valid affidavit. It is also animportant requirement that such an administration of anoath should be carried out by a person, who is permitted todo so under our law.
There are several decisions which had considered thataffidavits sworn before the deponent’s own Attorney oughtnot to be received. In Jayatillake and another v. Kaleeland others?' Fernando, J., had referred to the decisions inPakir Mohideen v. Mahamadu Casim{5), where Bonser, C.J.,had stated that,
“This affidavit ought not to have been received by theDistrict Judge, for it was sworn before the deponent’sown Solicitor, Mr. Abeysingha. The practice in Englandhas been uniform, that an affidavit sworn under suchcircumstances will not be received, and we think that theEnglish practice should be followed here, and 1 have inprevious cases so held.”
This position was carefully considered by Mark Fernando,J. in Jayatillake and another v. Kaleel and others (supra),where it was clearly stated that,
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“In the course of the submissions it was observed thatthe counter-affidavits date 29.01.92 of both petitionershad been sworn before one of the junior counselappearing for them. Although it was suggested that hebeen retained only after 29.01.92, in fact his appearancehad been mentioned on 13.01.92 and 27.01.92. In PakirMohidin v. Mahamadu Casim, (supra) it was held byBonser, C.J., that an affidavit sworn befqre the deponent’sown Proctor ought not to be received in evidence (see alsoCoder Saibu v. Sayadu Beebi6) . This rule of practicehas been consistently observed and would apply toan Attomey-at-Law today. . . Mr. Athulathmudalimoved for permission to file fresh affidavits in identicalterms, but sworn before an independent Justice of thePeace. However, Mr. Choksy stated that the respondentsdid not object to the affidavits being received. It is in thosecircumstances that we refrained from rejecting theseaffidavits, without in any way intending to weaken theauthority of Pakir Mohidin v. Mohamadu Casim .” (supra)
As stated earlier, learned President’s Counsel for therespondent raised the preliminary objection stating thatthe affidavit being defective should be rejected and in thesecircumstances this matter differs from the situation whichoccurred in Jayatillake and another v. Kaleel and others(supra), where there was no objection raised for filing freshaffidavits. In the circumstances, it is necessary to follow thedecision of this Court in Pakir Mohidin u. Mahamadu Casim,(supra) and Jayatillake and another v. Keleel and others(supra).
Considering the totality of the aforementionedcircumstances thus it is apparent that the said MalpethiRatnasinghe, being the Assistant Legal Officer of the petitioner
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Company and the Attomey-at-Law for the petitioner at thearbitration proceedings and in the High Court, is a person,who has an interest in the leave to appeal applicationbefore the Supreme Court. Accordingly the affidavit filedalong with the petition is not in compliance with the proviso tosection 12(2) of the Oaths and Affirmations Ordinance. In suchcircumstances considering all the aforementioned, theaffidavit filed by the petitioner had to be rejected.
For the reasons aforesaid, I uphold the preliminaryobjection raised by the learned President’s Counsel for therespondent and this leave to appeal application is dismissedin limine. I make no order as to costs.
RATNAYAKE, J. – I agree.
EKANAYAKE, J. – I agree.
Preliminary objection upheld.
Application dismissed.