030-SLLR-SLLR-2006-V-2-KARIYAWASAM-AND-ANOTHER-vs.-DONA-MERCY.pdf
256
Sri Lanka Law Reports
(2006) 2 Sri L R.
KARIYAWASAM AND ANOTHERVS.DONA MERCYCOURT OF APPEAL.
EKANAYAKE, J.
SRISKANDARAJAH, J.
CALA 280/2002.
DC COLOMBO 19481 /L.
DECEMBER 7, 2005.
Civil Procedure Code, sections 438, 754 , 757 – Oaths Ordinance No. 9 of 1835amended by Act, No. 6 of 1841, Ordinance 03 of 1942 – Amendments in 1915and 1954, section 5(a) – Affidavit – Can a Christian affirm? – Substitution of anoath for an affirmation – Will it invalidate an affidavit? – Sufficient compliance?- “May" as opposed to “shall”?
The respondent contended that, a leave to appeal application has to be filedby way of a petition supported by an affidavit. The plaintiff respondents beingCatholics cannot affirm, as a Christian must necessarily swear when he makesoath, therefore the purported affidavit is not an affidavit – the application shouldbe dismissed in limine.
HELD:
Section 5(a) of the Oaths Ordinance, should not be restrictivelyinterpreted in the light of the later provisions and practice.
CA
Kariyawasam and Others vs. Dona Mercy
(Sriskandarajah, J.)
257
The use of the word "may” in the Oaths Ordinance of 1837 instead ofshall must be regarded as deliberate, with the consequence that nonCatholics who believed in God would have the option to swear or toaffirm.
Per Sriskandaraja, J.
“Fundamental obligation of a deponent is to tell the truth and the purpose ofan oath or an affirmation is to enforce an obligation, therefore the substitutionof an oath for an affirmation (or vice versa) will not invalidate an affidavit”.
APPLICATION for leave to appeal from an order of the District Court of Colombo,on a preliminary objection taken.
Cases referred to:
De Silva and Others vs. L. B. Finance Ltd 1993 1 Sri LR 371 at 373
Clifford Ratwatte vs. Thilanga Sumathipala 2001-2SriLR55
Sooriya Enterprises (International) Ltd vs. Michael White & CompanyLtd 2002 3 Sri LR 371.
Rustomjee vs. Khan 18 NLR 120, 123
Inaya vs. Lanka Orix Leasing Company Ltd 1993 2 Sri LR 19
Trico Freighters (Pvt) Ltd vs. Yang Civil Engineering Lanka (Pvt) Ltd.2000 2 Sri LR 136
Mohamed vs. Jayaratne and Others 2000 3 Sri LR 181.
Manohara R. de Silva for petitioner.
Nihal Jayamanne, PC with Dilhara de Silva for respondent.
Cur. adv. vult.
February 1,2006.
SRISKANDARAJAH, J.The learned President’s Counsel for the Respondent raised a preliminaryobjection that this Leave to Appeal application is not in compliance withsection 757 of the Civil Procedure Code. This section provides that a Leaveto Appeal application will have to be filed by way ofa Petition supported byan affidavit. In this instant application the purported affidavit filed withthe petition is not an affidavit. The learned President’s Counsel submittedthat the purported affidavit has been signed by the Plaintiff-Petitioners and they are Catholics. This is proved by the fact that the
2S8
Sri Lanka Law Reports
(2006) 2 Sri L R.
affidavit annexed to the plaint in the District Court the 1 st Plaintiff hassworn the said affidavit and he has specifically stated that he is a Catholic,the 2nd Plaintiff-Petitioner is the daughter of the 1 st plaintiff-petitioner, Butthese plaintiff-petitioners in the purported affidavit filed in this Leave toAppeal application in paragraph 1 stated that they solemnly, sincerelyand truly declare and affirm to the facts set out therein, and in thejurat also they have stated that they affirmed to the facts before theJustice of the Peace. In these circumstances the learned President’sCounsel submitted that a Christian cannot affirm, a Christian mustrteces?arily swear when he make oath therefore the document purportingto be an affidavit is not an affidavit.
The learned President’s Counsel further submitted that a distinctionmust be made between an affidavit which is defective and/or not in sufficientcompliance with section 438 of the Civil Procedure Code, and a documentwhich is not on the face of it an affidavit at all. If the document is not anaffidavit at all then that document must be rejected as not being an affidavit.The decision in De Silva and Others v L B. Finance0> has no application.In the case of Clifford Ratwatte vs. Thilanga Sumathipala<2> the personwho submitted the affidavit states that he is a Christian and makes anoath in the body of the document and in the jurat clause he says that heaffirms. The court held that this document was not an affidavit. The learnedPresident’s Counsel submitted that this case is similar to the presentcase and it is clear that the purported document is not an affidavit as thePetitioners being Catholics have affirmed in the body of the document aswell as in the Jurat.
In De Silva and Others vs. L. B. Finance Lfd.(Supra) at 373. G R S. deSilva C. J. observed:
“The affidavit in question commences with the words -“We.. .being Buddhists do hereby solemnly, sincerely and trulydeclare and affirm as follows": It is also to be noted thatparagraph (1) reads thus:- We are the petitioners above – namedand the affirmants hereto. The jurat is as follows:- “The foregoingaffidavit was duly read over and explained by mg to the within-named affirmants who having understood the nature andcontents signed same in my presence at Colombo on this16th day of August 1991. (The emphasis is mine).
CA
Kariyawasam and Others vs. Dona Mercy
(Sriskandarajah, J.)
259
On a consideration of the averments in the affidavit set outabove and the wording of the jurat it seems to me that theprovisions of section 438 of the Civil Procedure Code have beencomplied with. The jurat expressly sets out the place and dateon which the affidavit was signed before a Justice of the Peace.There is specific reference in the jurat that the affidavit was“duly read over and explained …to the within-namedaffirmants…" The submission that the affidavit is invalid wasreally based on the absence of the word “affirmed” before thewords “duly read over" in the jurat. It seems to me, however,that a meaning has to be given to the expression “within-namedaffirmants" in the context of the other averments in the affidavitreferred to above. Reading the affidavit as a whole, the fairmeaning that could be given to these words is that thedeponents have affirmed to the contents of the affidavit beforethe Justice of the Peace.”
In Sooriya Enterprises (International) Limited vs. Michael White &Company Limitea – Fernando J, rejected the argument that in making anaffidavit a Muslim is imperatively required by law to make an affirmation,with the consequence that if he makes an oath instead his affidavit mustbe rejected and observed that section 5 (a) of the Oaths Ordinance, No. 9of 1835 (Cap. 17) should not be restrictively interpreted in the light of thelater provisions and practice; rather, the meaning of that section whenoriginally enacted has to be ascertained. He quoted with approval passagesfrom Perera J’s judgment in Rustomjee vs. Khan*' – and held:
The ratio decidendi at Rustomjee vs. Khan, that section5 gave an option “to any person, be he Hindu, Muhammadan orZoroastrian, who believes in God, claim to be sworn (ratherthan to affirm)” has not been doubted for 80 years. The OathsOrdinance was twice amended thereafter: in 1915, and againin 1954 when section 5 (a) was amended. If the judicialinterpretation of section 5 was erroneous, the legislature hadthe opportunity to correct it.
Because “much inconvenience arises from peculiar forms •of oath being required to be administered to persons professingother than the Christian Religion", Ordinance No. 6 of 1841required that such persons shall make an affirmation in theprescribed form. This provision was not considered satisfactory,and by Ordinance No. 3 of 1842 it was provided that:
260
Sri Lanka Law Reports
(2006) 2 Sri L R
“every individual not professing the Christian faith,
and every Quaker, Moravian or Jew, shall, on all occasionswhatsoever where an oath is required … make a solemnaffirmation… in lieu thereof.”
“The use of the word “may” in the Oaths Ordinance of 1835, instead of“shall”, must be regarded as deliberate; with the consequence, as Pereira,J, held: that non-Christians who believed in God would have the option toswear or to affirm."
The rationale in the above Supreme Court judgments and the Judgmentsof the Court of Appeal in Inaya v Lanka Orix Leasing Company Ltd.™ -Trico Freighters (Pvt) Ltd v Yang Civil Engineering Lanka (Pvt) Ltd.™ – andMohamed vJayaratne and Others ' ~ is that the fundamental obligation ofa deponent is to tell the truth and the purpose of an oath or affirmation is toenforce that obligation. Therefore the substitution of an oath for anaffirmation (or vice versa) will not invalidate an affidavit or on the other handby reading the affidavit as a whole if a fair meaning could be given by thewords used in the affidavit that the deponents have affirmed to the contentsof the affidavit before the Justice of the Peace then it could be construedthat there is sufficient compliance with the requirements of an affidavit.
In view of the above judgments the affidavit filed in the present casefulfils the requirements of an affidavit. Therefore this Court overrules thepreliminary objection of the Respondent.
EKANAYAKE, J. – /agree.
Preliminary objection overruled. Matter set down for argument.