039-SLLR-SLLR-1993-1-DE-SILVA-AND-OTHERS-v.-L.-B.-FINANCE-LTD.pdf
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De Silva and Others v. L B. Finance Ltd.,
371
DE SILVA AND OTHERS
V.L. B. FINANCE LTD.,
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
RAMANATHAN, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 61/92.
S.C. SPECIAL (LA) NO. 109/92.
A./L.A. NO. 155/91.
C. COLOMBO NO. 95404/MHP.
DECEMBER 1st, 1992 AND MARCH 12th, 1993.
Affidavit – Validity – Jurat – Failure to include the words ’ affirmed thereto" injurat – Meaning of the word ‘affirmant' — Description of the deponents as'affirmants' – Civil Procedure Code Section 438 – Form 75 – Section 439.
' 1. Where the affidavit stated that deponents * affirm ' and in the body ofthe affidavit the deponents described themselves as “ affirmants * and in thejurat there was a statement that the affidavit was read over and explained tothe " within – named affirmants " there was a sufficient compliance with Section438 CPC and the affidavit was valid despite the fact that the jurat did not containthe fact of affirmation.
There was no reference to Form 75 in section 438 of the Civil ProcedureCode. Only the marginal note in Form 75 makes reference to section 438.Compliance with Form 75 is not essential.
The word ' affirmant * is not infrequently found in affidavits filed in thecourts. Its meaning is well known and accepted in this country even though itdoes not find a place in the Oxford Dictionary. It means * one who affirms *and it is so defined in Chambers Dictionary (1983 Ed.) Webster's CollegiateDictionary (3rd Ed.) and Odhams Dictionary.
Cases referred to :
King v. Ponnasamy Pillai, 28 N.LR. 156.
Simon Singho v. Government Agent W.P., 47 N.LR. 545.
Meeruppe Sumanatissa Terunnanse v. Warakapidya Sangananda Terunnanse66 N.LR. 333.
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[1993] 1 Sri LB.
Kanagasabai v. Kirupamoorthy 62 N.LR. 54, 58. .
Sivagurunathan v. Doresamy, 52 N.LR. 207.
Do Silva v. Seenathumma, 41 N.LR. 241.
Kandiah v. Abeykoon Sriskantha's Law Reports, Vol. fV 96.
APPEAL from judgment of Court of Appeal.
Manohara de Silva for defendant – appellants.
Harsha Soza for plaintiff – respondent.
Cur. adv. vult
March 29, 1993.
G. P. S. DE SILVA, C. J.
The plaintiff instituted action against the defendants on a hirepurchase agreement. At the commencement of the trial, issues 1-6were raised on behalf of the plaintiff and issues 7-16 on behalf ofthe defendants. On an objection taken by Counsel for the plaintiff,the District Judge made order rejecting all the issues raised by thedefendants, except issue No. 8. Thereupon the defendants movedthe Court of Appeal by way of an application for leave to appealagainst the order of the District Court. When the application for leaveto appeal came up for hearing before the Court of Appeal, Counselfor the plaintiff raised a preliminary objection which was upheld bythe Court of Appeal and the application for leave to appeal wasdismissed. The defendants have now preferred an appeal to this courtfrom the judgment of the Court of Appeal dismissing the applicationfor leave to appeal filed in terms of section 754 (2) read with section756(2) of the Civil Procedure Code.
The preliminary objection raised before the Court of Appealrelated to the validity of the affidavit filed in support of the petitionas required by section 756 (2) of the Civil Procedure Code. The shortpoint raised was that the affidavit was invalid for the reason thatthe jurat did not contain the fact of affirmation. At the hearing beforeus Mr. Harsha Soza for the plaintiff-respondent strenuously contendedthat strict compliance with the provisions of section 438 of the CivilProcedure Code was essential ; that the wording in section 438 ofthe Civil Procedure Code brings in Form 75 in the first Schedule
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De Silva and Others v. L B. Finance Ud., (G. P. S. De Silva, C. J.)
373
to the Civil Procedure Code ; that the affidavit must be in accordwith Form 75; that the affidavit filed by the defendants-appellantswas invalid for the reason that the jurat does not expressly state thatthe defendants who have declared themselves to be Buddhists have" affirmed thereto
The affidavit in question commences with the words – " We ….being Buddhists do hereby solemnly, sincerely and truly declare andaffirm as follows : " It is also to be noted that Paragraph (1) readsthus:- We are the petitioners above-named and the affirmants hereto.The jurat is as follows :- “ The foregoing affidavit was duly readover and explained by me to the within-named affirmants who havingunderstood the nature and contents signed same in my presence atColombo on this 16th day of August 1991 (The emphasis is mine)
On a consideration of the averments in the affidavit set outabove and the wording of the jurat it seems to me that the provisionsof s. 438 of the Civil Procedure Code have been complied with.The jurat expressly sets out the place and date on which the affidavitwas signed. This is an essential requirement of an affidavit.There is no dispute that the affidavit was signed before a Justiceof the Peace. There is specific reference in the jurat that the
affidavit was * duly read over and explainedto the within-named
affirmantsThe submission that the affidavit is invalid was really
based on the absence of the word “ affirmed " before the words■ duly read over * in the jurat. It seems to me, however, that a meaninghas to be given to the expression " within-named affirmants " in thecontext of the other averments in the affidavit referred to above.Reading the affidavit as a whole, the fair meaning that could be givento these words is that the deponents have affirmed to the contentsof the affidavit before the Justice of the Peace.
As submitted by Mr. Manohara de Silva for the defendants-appellants, s. 438 of the Civil Procedure Code makes no expressreference to Form 75 of the Civil Procedure Code. On the other hand,there are sections in the Civil Procedure Code, as rightly pointed outby Mr. de Silva, where there is specific mention of a particular’ form * set out in the Schedule – vide sections 793, 974, 797, 757,703, 651, 516 and 529 (2). It is only the marginal note in Form 75which makes reference to section 438. I hold that section 438 of the
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Civil Procedure Code does not require that the fact of affirmationshould be expressly stated in the jurat of the affidavit.
There is a further matter to which I must refer. Mr. Soza submittedthat there is no such word as " affirmant “ in the English language;it is a word which is not found in the Oxford Dictionary. However,it does find a place in the Chambers Dictionary (1983 Edition) inWebster's Collegiate Dictionary (3rd Edition) and Odhams Dictionary.The meaning as given in these dictionaries is “ one who affirms ".Moreover, it is an expression which is not infrequently found inaffidavits filed in our courts. Its meaning is well known and acceptedin this country, even though it does not find a place in the OxfordDictionary.
Mr. Soza cited the case of King vs. Ponnasamy Pillai(1), in supportof his submissions. But that was a case where the accused wascharged under ss. 196 and 190 of the Penal Code and the affidavitconstituted the foundation of the charge. Further, the court wasconcerned with the question whether the affidavit complied withthe provisions of s. 439 of the Civil Procedure Code and not ofs. 438 of the Civil Procedure Code, it seems to me that this case. is of little assistance in the appeal before us. Reliance was also placedon Simon Singho vs. Government Agent W.P., (2). This too was acase where the court was concerned with s. 439 of the Civil ProcedureCode which expressly enacts that, “ in the event of the declarant
beingnot able to understand writing in the English Language,
the affidavit shall at the same time be read over or interpreted tohim in his own language, and the jurat shall express that it was read
over or interpreted to him in the presence of.the Justice of the
Peace.and that he appeared to understand the contents…..". (The
emphasis is mine) The affidavit in question in that case containedno such jurat and Dias J. held that such an affidavit is valueless.Mr. Soza also cited the case of Meeruppe Sumanatissa Terunnansevs. Warakapitiya Sangananda Terunnanse(3>, which again was a caseconcerned with the provisions of s. 439 of the Civil Procedure Code.
Mr. Soza also referred us to the following observations of BasnayakeC.J. in Kanagasabai vs. Kirupamoorthy(4)" Before I part with this
judgment I wish to point out that the respondent's affidavit is undated.
It is the duty of the Justice of the Peace before whom an affidavit
SCDe Silva and Others v. L. B. Finance Ltd., (G. P. S. De Silva, C. J.)375
is sworn to see that the jurat is properly made Apart from thefact that this statement is obiter, the appeal before us is not concernedwith an undated affidavit or one where the place it was affirmed tois left blank.Counsel further relied on the case of Sivagurunathan vs.Doresamy (5), where Basnayake J. took the view that notice oftendering security required by s. 756 of the Civil Procedure Codemust be in Form 126 of the First Schedule to the Code, followingthe decision of the Full Bench in de Silva vs. Seenathumma (6).TheCourt observed " the omission to mention the 7th respondent in thenotice appears to be not accidental but deliberate. Therefore therehas been no intention to give her the prescribed notice". It seemsto me that this case too is of little assistance on the question beforeus in the instant appeal.
There remains for me to consider Kandiah vs. Abeykoon (7)(Sriskantha's Law Reports, Vol. IV 96) which was also relied on byMr. Soza. That was a case which dealt with proceedings taken underthe State Lands (Recovery of Possession) Act No. 7 of 1979 asamended. Section 5(2) of the Act itself required that the affidavit hasto be in Form C set out in the Schedule. However, the jurat wasnot in terms of Form C and, what is more, there was no indicationof the " place of deposition ". It was further noticed that * bothaccording to the body of the affidavit and the jurat one does not
know whether the deponent took an oath or made an affirmation".
(at page 99) The defects in the affidavit were considered in thecontext of the special jurisdiction conferred on the Magistrate'scourt, a jurisdiction which has far reaching consequences. The courtconcluded, " there can be no doubt that the operation of the Actand its provisions could well have a serious impact upon proprietoryrights ". It appears to me that this case is of minimal assistance indeciding the appeal before us.
On a fair reading of the entirety of the impugned affidavit it seemsto me that the preliminary objection taken was of a technical natureand the Court of Appeal was in error in upholding it. I accordinglyallow the appeal, set aside the judgment of the Court of Appeal anddirect the Registrar to return the record to the Court of Appeal sothat the application for leave to appeal may now be heard on itsmerits.
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In all the circumstances, I make no order for costs.
RAMANATHAN, J. – I agree.
WIJETUNGA, J. – I agree.
Appeal allowed.
Case sent back forhearing on merits.