THILANGA SUMATfflPALA AND OTHERS
COURT OF APPEAL.
EDUSSURIYA, J. (P/CA)
D.C. COLOMB(^5305/Spl1st SEPTEMBER, 1999.
Affidavit – Christian – Jurat states deponent affirmed – Oaths andAffirmations Ordinance S. 9 – Civil Procedure Code S. 757 (1).
ft) The deponent states that he is a Christian and makes oath, the juratclause at the end of the affidavit states that the deponant has affirmed.The affidavit is defective.
"Subsequent explanation cannot be used to correct in aiiy way what isobvious on the face of the affidavit in question and therefore it anaffidavit which has any legal valdity or sanctity and therefore mere wasno affidavit as required by law filed with the Petition vithin 14 days, ascontemplated in S. 757(1) – C.P.C "it is not a mistake as to formality thatcan be cured under S. 759(2).” (
APPLICATION for Leave to appeal from the order of the District Court ofColombo.
H.L.de Silva PC, with L. C. Sqpeviratne PC., S.L. Gunasekera and Ronald
Perera for Defendant – Petitioners.
■ ■ <•
RomeshdeSilva, PC withPalithaK •narasinghe andHarshaAmerasekerefor Plaintiff Respondent.
Cur. adv. vult.
Sri Lanka Law Reports
12001] 2 Sri UR.
September 24, 1999.
EDUSSURIYA, J. (P/CA)When this application for leave to appeal from the order ofthe learned District Judge of Colombo came up for support inrespect of the interim relief sought by the Petitioners, learnedPresident’s Counsel for the Plaintiff-Respondent raised theobjection that the “purported affidavit of Franklin SaliyaAhangama filed along with the Petition is not an a^fdavit in lawin view of the fact that, although the deponent o'^Cns by statingthat he is a Christian and makes oath, the jurat clause enteredby the Justice of the Peace at the end of the affidavit statesthat the deponent had affirmed and therefore it can not beconstrued that it was an oath and as such this applicationcannot be maintained in view of Section 757 (1) of the CivilProcedure Code which requires the petition for leave to appealto be supported by an affidavit.”
Learned President’s Counsel for the Petitioners concededthat the affidavit in question is defective and that the juratclause appears to have been typed in the lawyer’s office, butcontended firstly that if there be non-compliance then it danbe corrected >imder Section 759 (2) of the Civil Procedure Code,andsS/econdly that it is a defect as to formality and it has notmaterikily prejudiced the Respondent. Learned President’sCounsel for the Petitioners also drew the attention of Court toSection 9 of the Oaths and Affirmations Ordinance.
It is my view that Section 9 of the Oaths and AffirmationsOrdinance has no relevance in view of the fact that thedeponent says he has made oath whereas the Justice of thePeace says that the deponent affirmed and it is not a casewhere there has been an omission to make any oath, or makeany affirmation or the substitution 15f anyone for any otherof them has taken place. NSi^fis there a question of anyirregularity in the form in which the oath or affirmation wasadministered.
Clifford Ratwatte v. Thilanga Sumathipala & Others
When one examines the affidavit in question, it is seenthat the deponent states that he is a Christian and that hemakes an oath (swears) but at the end the Justice of the Peacestates in the jurat clause that the deponent affirmed. Inaddition the Justice of the Peace states that it was “Read overand explained to the deponent and the deponent havingunderstood the contents thereof affirmed thereto in mypresence in Colombo on this 19th day of June 1999”.
If the contents of the affidavit were read and explained bythe Justice of the Peace I cannot fathom how he could have,after having read that the deponent was a Christian and wasmaking oath, at the end in the jurat clause could have statedthat the deponent affirmed.
Learned President’s Counsel for the Petitioners concededthat “Looking at the document it appears that the jurat wastyped in the lawyer’s office”.
I may add that looking at the document there can be nodoubt of that.
Then, how did this contradiction occur?
The Justice of the Peace has signed at the end of theaffidavit with a black ink pen. However, the date on the juratclause has been entered with a black ball point pen. I may alsoadd that the deponent has signed with a blue ball point pen.All this is clear to the naked eye.
In my view the contradiction that has occurred couldnever have occurred, had the Justice of the Peace (actually)read over and explained to the deponent the contents of theaffidavit as he claims he did in the jurat clause or had thedeponent (actually) made oath and sworn to the contents of theaffidavit in the presence of the Justice of the Peace.
I have also referred earlier to the difference in the ink usedby the Justice of the Peace in signing the Affidavit and the inkused in entering the date in the jurat clause.
Sri Lanka Law Reports
 2 Sri L.R.
I therefore hold that the Justice of the Peace did not readand explain to the deponent the contents of the affidavit as heclaims he did in the jurat clause, nor did the deponent makeoath and swear to the contents of the affidavit in the presenceof the Justice of the Peace, but that the Justice of the Peace“blindly” signed an “affidavit” which had been already signedby the deponent in some other place at some other time,without even entering the date.
I may also add that although the deponent hassubsequently filed an affidavit stating that he made oath andswore to the correctness of the contents of the affidavit inquestion there is no affidavit from the Justice of the Peaceexplaining how the jurat clause reads as “read over andexplained” … or stating that the deponent made oath. So, theposition still remains the same, that is, as the President’sCounsel for the Respondent contended, the deponent statingthat he made oath whilst the Justice of the Peace contradictsit by stating that the deponent affirmed after it was read overand explained to him.
It is my view that subsequent explanations cannot beused to correct in any way what is obvious on the face of the“affidavit” in question, and therefore it is not an affidavit whichhas any legal validity and/or sanctity and therefore there wasno affidavit as required by law filed with the Petition within thefourteen day period envisaged by Section 757 (1) of the CivilProcedure Code.
Hence, it is not a mistake as to formality that can be curedunder Section 759 (2) of the Civil Procedure Code.
In any event, an affidavit filed subsequently, which isoutside the fourteen day period contemplated by Section 757(1) of the Civil Procedure Code, cannot therefore be accepted now.
The application for leave to appeal is therefore rejectedwith costs fixed at Rs. 10,500/-.
CLIFFORD RATWATTE v. THILANGA SUMATHIAPALA AND OTHERS