052-NLR-NLR-V-52-BISO-MENIKA-Appellant-and-WIJERATNE-BANDA-Respondent.pdf
1950Present: Nagalingam J.BISO MENIKA, Appellant, and WUERATNE BANDA, RespondentS. C. 775—M. C. Matale, 15,066
Oaths Ordinance (Cap. 14)—Section 8 (2)—Non-compliance—Fatal irregularity.
Where the applicant challenged the defendant to take oath at a- devale—
Held, that the failure of the person authorised by Court to administer theoath to make a record in writing of the terms of the oath at the time it wastaken by the defendant, in terms of section 8 (2) of the Oaths Ordinance, wasa fatal irregularity.
Quaere, whether‘the oath should have been taken during the hours of worshipat the devale.
L PPEAL from a judgment of the Magistrate’s Court, Matale.
T. B. DissanayaTce, for the applicant appellant.
S. Jayaivichrama, with M. D. H. Jayawardene, for the defendantrespondent.
October 18, 1950. Xagauxgaai J.—
The applicant who claimed maintenance for an illegitimate child fromthe respondent appeals from the order of the learned Magistrate dismissingher application on the ground that the respondent had taken the oathwhich the applicant had challenged him to take.
Two grounds have been urged in support of the appeal. The firstis that though the agreement was that the oath was to be taken atMinneriya Dewale it was taken at a time when the devdle was not openfor worship and while its doors ^remained closed. It may be a mootpoint as to whether the respondent understood that the oath should betaken during the hours of worship at the devale but on the other handit is impossible to negative the contention on the applicant’s behalfthat when a party is required to take the oath in. a devale that it wouldbe expected that the oath would be taken during the hours of worship.There was no time fixed at which the oath was to be administered, forhad a time been fixed and the time happened to be one at which thedevale is normally closed, then it may be possible to take the view thatit was within the contemplation of the parties that irrespective of thecircumstance of the devale being closed for worship the oath was to betaken at that time. To say the least, the question is one of grave doubtas to whether the oath was to be taken during hours of worship or not.
The second point urged on behalf of the appellant is that there hasnot been a compliance with section 8 (2) of the Oaths Ordinance, Cap. 14Ij. E.. in that the person authorised by Court to administer the oathfailed to take and record in writing the evidence of the person to be swornor affirmed and return it to the Court. The Interpreter-Mudaliyar ofthe Court was authorised to administer the oath on the 28th May, 1950.This order was made on the 22nd May, 1950. In point of fact the Inter-preter-Mudaliyar did not make a record in writing of the terms of the oathtaken by the respondent at the time it was taken or at any other time.On 81st May, however, he gave oral evidence in Court and stated: “ Interms of order of 22.5.50 I accompanied applicant and respondent tothe Minneriya Dewale in Minneriya and administered the oath agreedupon to the respondent in the presence of the applicant.”
It would be noticed that there is no evidence as to when the oath wasadministered in fact. It is, however, not suggested that it was taken onany date other than 28th May, as directed by Court. Nevertheless,though it is a small point, I think there should have been specific evidenceas to when the oath was taken.
The main objection taken, however, is not purely a technical one.According to the record, while the respondent was yet under cross-exami-nation, the applicant appears to have made the challenge, and the learnedMagistrate records:” The applicant at this stage challenges the res-
pondent to take oath that he had nothing to do with her.” The Magis-trate's order, however, is, “ The respondent will swear that he never-had sexual intercourse with the applicant ”. It is difficult to say thatthe oath directed to be taken by the learned Magistrate is identical withthat by which the applicant agreed to be bound^
The applicant in her testimony had affirmed that the respondent kepther as his mistress for about one and a half years, on the under-standing
that he would marry her, that he used to visit her in her house and thathe had written two verses avowing his love to her, which she produced.The respondent when he gave evidence denied that he promised to marrythe applicant or kept her as his mistress and further denied the paternityof the child.-
In the light of these conflicting statements of the two parties, it is easyto see that the applicant’s challenge was very mueh wider than what theMagistrate ordered the oath should be. ■ Her challenge was that therespondent- had to swear that he had nothing to do with her. It may bethat on a basic analysis of the terms of the oath the applicant requiredthe respondent to take, it may be said that the respondent should beabsolved on his taking the oath that1 he had never had sexual intercourse-with the appellant. Yet I think that the oath suggested by the appellantis much wider, for while the fact of sexual intercourse having taken place-between the appellant and the respondent may only have been known,to the two of them, the visits of the respondent to the applicant’s houseand the fact that he had written verses to the applicant and his promiseto marry her may have been within the'knowledge of others and this mayhave tended' to make the respondent hesitate to take the oath in- themanner suggested ’by the applicant.
The Interpreter-Mudaliyar’s evidence does not assist one in determiningwhat were the precise terms of the oath taken by the respondent, whetherit was on the terms suggested by the applicant or those indicated by theMagistrate in his order. It is clear to see that the requirements of thelaw that the terms of the oath should be reduced to writing is not a mereformality but one of great substance. This provision of the law. hasreceived judicial interpretation. In the case of Dharmasena v. Sudumale 1the facts were almost similar. There too it was the Interpreter who wascommissioned to administer the oath but he failed to make a writtenrecord of the terms of the oath at the time it was administered, but onthe day following the Interpreter gave evidence on oath in Court settingout, however, the terms of the oath which had been taken. Lascelles C.-J.held that the procedure prescribed by the section (section 9 as it thenstood) had not been complied with and that it was an irregularity whichwas fatal to the proceedings.
The section requires that the person authorised to administer the oathshould take and record in writing the evidence of the person to be affirmed.This implies that the record in writing of the evidence should be made atthe time the evidence is affirmed to, namely at the time and as the oathis taken by the party. See observations of Pereira J. in Tissera v. Annaiya-
Having regard to these considerations, I do not think it can be said thatthere has been a compliance with the provision of the law. The objectionis sound and must be upheld. I would therefore set aside the orderof the learned Magistrate and remit the case for trial on its merits.In all the circumstances of the case I think it desirable that the. fresh,trial should be before another Magistrate. The applicant will be entitledto the costs of appeal..
Order set aside.
(1912) 15 N. L. B. 377.
* (1913) 17 N. L. -R. 154.-