Kumarasinghe v. Ratnakumara
v.RATNAKUMARA AND OTHERS
SUPREME COURTSHARVANANDA. A.C.J.
COLIN THOME J. andABDUL CADER J.
S.C. APPLICATION 57/83NOVEMBER 17. 1983.
Supreme Court Rules 1978. Rules 65(1)—Affidavit — Should petitioner himselffile his own affidavit ?
Rule 65( 1) (a) of the Supreme Court Rules, says that a petitioner complainingof infringement of a fundamental right shall support his petition by an affidavit. Itdoes not predicate that the person swearing the affidavit must be the petitionerhimself.
Affidavit in support of the application serves the purpose of proof of factsstated therein. It furnishes the evidence verifying the allegation of factscontained in the petition. Affidavit evidence carries equal sanctity as oralevidence. While a stranger cannot make an affidavit it need not be made by theparty individually but may be made by any person personally aware of the facts.The Court is entitled to have the best evidence before it; where there existevidence which is firsthand it will be most unsatisfactory to place before courtevidence of any other description. Ordinarily a petitioner is the best person whocan speak to the facts and verify the facts averred in the petition: then, it is hewho should file affidavit in support of the said facts: but if there are otherwitnesses too who can. to their personal knowledge, depose to those facts thereis no bar to their filing affidavits in support of the petition, in addition to or insubstitution for the petitioner's affidavit. But if the petitioner does not file hisown affidavit verifying the facts, which he is personally conversant with, then theCourt would be extremely reluctant to grant relief. But the petitioner may beexcused from filing an affidavit if for some good reason or ground, he is unableto do so.
Cases referred to :
Samarawickrema v. The Attorney-General 1983 Srikantha Law Reports 47
RasheedAli v. MohamedAli 1981 2 Sri L.R. 29, 32
Nicholas v. O. L. M. Macan Markar Ltd. 1981 2 Sri LR 1
Re Cohen 1950 2 all ER 36. 37
Sri Lanka Law Reports
 2 Sri L. R.
Simeon Fernando v. Gunasekera 47NLR512.514
In re Young Manufacturing Co. Ltd. 1980 2 Ch. 753
PRELIMINARY OBJECTION to application complaining of infringement offundamental rights.
N. Senanayake. S.A. with Faiz Mustapha. M. L. M. Samarasinghe and Miss. A. D.Telespha. instructed by A. G. Raamuniiot petitioner
G. D. C. Weerasinghe with Danny de Silva for 1 to 4 respondents,
S. W. B. Wadugodapitiya. Additional Solicitor-General with T. A. Kaluaratchchi,S.C. for 5 to 7 respondents.
Cur. adv. vult
29 November, 1 983.
At the commencement of the hearing of the application apreliminary objection was raised by the Addl. Solicitor-Generalthat the petitioner's application does not conform to therequirements of Rule 65(1) of the Supreme Court Rules of 1978;in that, the petition of the petitioner has riot been supported bythe affidavit of the petitioner. He pointed out that though thereare appended to the petition the affidavits of petitioner's brotherRajasinghe Bandara and his mother Manoli Dharmadasa. thepetitioner has failed to file his own affidavit verifying the factspleaded by him in his petition. He has contended that it is animperative requirement of the Rule 65(1) (a) and (c), that thepetitioner should support his petition with his own affidavit. Hehas referred us to the judgment in Samarawickrema v. TheAttorney-General (1), Rash'eed AH v. Mohamed AH (2) andNicholas v. C. L. M: Macan Markar Ltd.. (3) which held that theSupreme Court rules are mandatory in nature and that non-compliance with same will result in the application beingrejected.
Rule 65(1) of the Supreme Court Rules (1978) states—
"(1) Where any person applies to the Supreme Court by petitionin writing for relief or redress in respect of infringement
SC Kumarasinghe v. Ratnakumara and Others (Sharvananda. A.C.J.)
… of a fundamental right … by executive oradministrative action, in terms of Article 126(2) of theConstitution, he shall—
in his petition set out all relevant facts to show what
fundamental right he claims to have and all facts toshow what infringement of such right has beenmade and details of executive or administrativeaction, which he alleges to have been taken ininfringement of his fundamental rights.
Support the petition by an affidavit and other
documentary material available to him.
The Addl. Solicitor-General's preliminary objections involve thequestion whether under the above rules the petitioner is requiredto file in support of his petition, his own affidavit and it is notsufficient if the petition is supported by the affidavit of someperson who is personally aware of the facts referred to in thepetition.
" An affidavit is an oath in writing signed by the partydeposing, sworn before and attested by him who hadauthority to administer the same. " 1 Bacon's Abridgement124.
An affidavit is a declaration as to facts made in writing andsworn before a person having authority to administer an oath.
Any particular fact may be proved by an affidavit. The lawprovides for the admissibility, in certain circumstances, ofevidence by affidavit. The evidence given by way of an affidavit isa substitute for testimony given by word of mouth. The affidavitcan be used as evidence of facts stated therein. Any personacquainted with the facts may give the affidavit. An affidavit isonly intended to satisfy the Court, prima facie, that the
Sri Lanka Law Reports
 2 Sri L. R.
allegations in the application are true so that the Court may takelegal action such as issuing notice on the opposite party on thebasis of the evidence, provided by the affidavit. If the allegationof fact made in an affidavit in support of the application is notrefuted by counter affidavit by the opposite party, then theallegation in the application is treated as true. Affidavits supportof the application thus serves the purpose of proof of facts statedtherein. It furnishes the evidence verifying the allegation of factscontained in the petition. Affidavit evidence carries equal sanctityas oral evidence.
As relevantly stated by Evershed M.R., In Re. Cohen (4)—
" Affidavit evidence can only be entitled to the sameweight as oral evidence, when those who swear the affidavitrealise that the obligation of the oath is as serious whenmaking an affidavit as to when making statements in thewitness box. "
Section 179 of the Civil Procedure Code provides :
" that the court may at any time for sufficient reasonsorder that any particular fact or facts may be proved byaffidavit, instead of by the testimony of witnesses given vivavoce before it. ”
Section 181 of the Civil Procedure Code further provides that
" affidavits shall be confined to the statement of such factsas the declarant is able of his own knowledge andobservation to testify to except on interlocutory applicationsin which statement of his belief may be committed, providedthat reasonable grounds for such belief is set forth in theaffidavit. "
An affidavit which does not comply with the requirements ofsection 181 does not furnish the necessary proof — videSimeon Fernando v. Gunasekera.(5). An affidavit of information
Kumarasmghe v. Ratnakumara and Others (Sharvananda. A.C.J.)
and belief, not stating the source of the information or belief isirregular — In Re. Young Manufacturing Co. Ltd. (6).
While a stranger cannot make an affidavit it need not be madeby the party individually, but may be made by any person who ispersonally aware of the facts. The court is entitled to have thebest evidence before it; where there exists evidence which is 'first-hand it will be most unsatisfactory to place before courtevidence of any other description. Ordinarily a petitioner is thebest person who can speak to the facts and verify the factsaverred in the petition; then, it is he who should file the affidavitin support of the said facts; but if there are other witnesses toowho can, to their personal knowledge, depose to those factsthere is no bar to their filing affidavits in support of the petition,in addition to or in substitution for the petitioner's affidavit. But ifthe petitioner does not file his own affidavit verifying the facts,which he is personally conversant with, then the court would beextremely reluctant to grant relief. But the petitioner may beexcused from filing an affidavit, if for some good reason orground, he is unable to do so.
The Addl. Solicitor-General's objection postulates our readinginto rule 65(1) (a) words which are not there. The rule says thatthe petitioner shall support his petition by an affidavit. It does notpredicate that the person swearing the affidavit must be thepetitioner himself.
The petitioner in his petition refers to complaints of his havingbeen assaulted on the 21st August 1983 and on 26th August1983. The petitioner's brother and mother, in their affidavits,state they are eye-witnesses to the assault on the 21st August1983. They do not claim to be witnesses to the alleged assaulton the petitioner at the Vavuniya Police Station on the 26thAugust, 1983. But they state that they visited the petitioner at theVavuniya Hospital on the 27th August 1983, and saw thepetitioner, who according to them was " unconscious and in acritical condition, his face was swollen beyond recognition andlip damaged. " They speak to the tell-tale marks on the
Sri Lanka Law Reports
[198312 Sri L. R.
petitioner's' body which they saw on that day. The petitioner in hispetition by his attorney-at-law has stated in paragraph 24 that" apolice guard consisting of two armed policemen has beenposted at his bed at the Vavuniya hospital throughout the dayand night and that he requested the said police guard to permitand/or obtain permission for a Justice of the Peace to be takenbefore the petitioner, for the purpose of signing an affidavit, butwas refused. "
The submission of the Addl. Solicitor-General that theapplication under Article 126(2) of the Constitution shouldalways be supported by the petitioner's affidavit and failure to filesuch an affidavit entails the consequence of the applicationbeing rejected cannot be sustained and hence we overrule thepreliminary objection.
COUN-THOME, J. – I agreeABDUL CADER, J. – I agree
Preliminary objection overruled.