MARK RAJANDRAN vs. FIRST CAPITAL LTD., FORMERLY, COMMERCIAL CAPITAL LTD

005-SLLR-SLLR-2010-V-1-MARK-RAJANDRAN-vs.-FIRST-CAPITAL-LTD.-FORMERLY-COMMERCIAL-CAPITAL-LTD.pdf


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[2010] 1 SRIL.R.
MARK RAJANDRAN VS. FIRST CAPITAL LTD., FORMERLY,COMMERCIAL CAPITAL LTD.,SUPREME COURT
DR. SHIRANI BANDARANAYAKE, ACTING C. J.RATNAYAKE, J., ANDEKANAYAKE, J.
S. C. H. C. (C. A.) LA NO. 289/2009WP/HCCA/COL. NO. 67/2007 (F)
D. C. COLOMBO NO. 17543/MRJUNE 7th, 2010
Oaths and Affirmations Ordinance – Section 4 – provisions as to howan oath should be given – Section 5 – only exemption to Section 4 -Supreme Court Rules – Rule 2 – every application for special leave toappeal should be made by way of petition & affidavit – Rule 6 – anapplication contains allegation of facts which cannot be verified byreference to the judgment or order of the Lower Court in respect ofwhich, leave is sought, should the petitioner annex in support of suchallegation an affidavit?
The petitioner preferred an application for leave to appeal to theSupreme Court from a judgment of the Provincial High Court of theWestern Province (Sitting in Colombo).
When the matter was taken up for support the respondent took up apreliminary objection to the affidavit filed by the petitioner in terms ofthe provisions of the Oaths and Affirmations Ordinance.
The respondent contended that in the affidavit, the petitioner hasaverred that he is a Christian and had made oath. Having averred thathe being a Christian in the affidavit, in the jurat, the petitioner hadaffirmed to the averments before the Justice of Peace.
The respondent took up the objection on the basis that the affidavit filedby the petitioner is not in terms with the provisions contained in theOaths and Affirmation Ordinance, and therefore there is no valid affidavitand accordingly, the petitioner has not complied with the SupremeCourt Rules of 1990.
Mark Rajandran vs. First Capital Ltd., formerly, Commercial Capital Ltd.,
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Held:
Rule 2 read with Rule 6 of the Supreme Court Rules, 1990, clearlyindicate that an application for leave should be made by wayof a petition with affidavit and documents in support of thatapplication.
The Oaths and Affirmations Ordinance, deals with the law relatingto Oaths and Affirmations in judicial proceedings and for otherpurposes. Whilst Section 4 deals with the provisions, where oathsto be made by persons, the exemptions to the said, Section isreferred to in Section 5 of the Oaths and Affirmations Ordinance.
If a person does not come within the category of religions referredto in Section 5 of the Oaths and affirmations Ordinance, theexemption would not be applicable to him to make an affirmationinstead of the oath he should have made.
Per Dr. Bandaranayake, Acting C. J., –
“Rule 2 read with Rule 6 of the Supreme Court Rules, 1990 clearlyindicate that an application for leave should be made by way of apetition with affidavits and documents in support of that application.In such circumstances, it is the affidavit that breathes life intothe petition. It would therefore be futile to attempt to support anapplication, where leave is sought against the judgment without avalid affidavit.”
Cases referred to:
Ratwatte v. Sumathipala (2001) 2 SLR 55
Kumarasiri and another v. Rajapaksha (2006) 1 SLR 395
Nanayakkara v. Kyoto Kyuma S. C. (Spl.) L. A. No. 115/2008 S. C.S.CM 1.10.2009
AN APPLICATION for leave to appeal from a judgment of the Provincial
High Court of the Western Province (sitting in Colombo), on a preliminary
objection taken.
K. Kanag Iswaran, P. C. with M. U. M. Ali Sc.bry an L. Jayakumar for the
Plaintiff – Appellant – Petitioner.
Romesh de Silva P. C. with Harsha Amarasekera for the Respondent –
Respondent.
Cur.adv. vult.
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June 07th, 2010
DR. SHIRANI BANDARANAYAKE, ACTING, C. J.This is an application for leave to appeal form thejudgment of the Provincial High Court of the Western Province(sitting in Colombo) (hereinafter referred to as the High Court)dated 01.10.2009. By that judgment the High Court hadaffirmed the judgment of the District Court dated 02.02.2007and dismissed the appeal instituted by the plaintiff-appellant-petitioner (hereinafter referred to as the petitioner).
The petitioner preferred an application for leave to appealbefore this Court.
When this application was taken up for support, learnedPresident’s Counsel for the defendant-respondent-respondent(hereinafter referred to as the respondent) took up apreliminary objection on the basis that the affidavit dated05.11.2009 filed by the petitioner, is not in terms withthe provisions contained in the Oaths and AffirmationsOrdinance and therefore the petitioner has not complied withthe Supreme Court Rules of 1990.
Learned President’s Counsel for the respondentcontended that in the affidavit, the petitioner has clearlyaverred that he is a Christian and had made oath. However,having averred that he being a Christian in the affidavit andmaking oath, in the jurat, the petitioner had affirmed to theaverments before the Justice of Peace.
In support of his contention, learned President’s Counselfor the respondent referred to the decisions in Ratwatte v.Sumathipalaw and Kumarasiri and another v. Rajapaksha{2).Learned President’s Counsel for the respondent also drew ourattention to section 4 of the Oaths and Affirmations Ordinance
Mark Rajandran vs. First Capital Ltd., formerly, Commercial Capital Ltd.,
SC(Dr. Shirard Bandaranayake, Acting, CJ.)63
which sets out the provisions as to how oaths should be givenand submitted that the only exemption to the provisionscontained in section 4 of the Oaths and AffirmationsOrdinance, is given in section 5 of the said Ordinance.
The Oaths and Affirmations Ordinance, deals with thelaw relating to Oaths and Affirmations in judicial proceed-ings and for other purposes. Whilst section 4 deals with theprovisions, where oaths to be made by persons, the exemptionsto the said section is referred to in section 5 of the Oaths andAffirmations Ordinance. The said section 5 reads as follows:
"Where the person required by law to make an oath-
fa) Is a Buddhist, Hindu or Muslim, or of some other religionaccording to which oaths are not of binding force; or
Has a conscientious objection to make an oath,he may, instead of making an oath, make anaffirmation. ”
It is therefore clearly evident that since the petitionerdoes not come within the category of religions referred toin section 5 of the Oaths and Affirmations Ordinance, theexemption would not be applicable to him to make anaffirmation instead of the oath he should have made.
In Ratwatte v. Sumathipala (supra) the Court of Appealhad to consider whether the affidavit was defective in amatter, where the deponent had stated that he is a Christianand had made oath whilst the jurat had stated that thedeponent had affirmed. In that the Court of Appeal had heldthat the affidavit in question was defective. In Kumarasiriv. Rajapaksha (supra), the Court of Appeal had considerednot only the validity of the affidavit, but also the necessity
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in having an affidavit along with the petition to consider anapplication for revision. In considering the question of filinga valid affidavit, Somawansa, J. had stated that it is the fleshand blood of the affidavit, which gives life to the skeleton inthe petition.
Considering sections 4 and 5 of the Oaths and Affir-mations Ordinance, stated above, it is quite clear that theaffidavit filed by the petitioner is not in terms with the afore-said provisions and therefore cannot be accepted as a validaffidavit.
Learned President’s Counsel for the petitioner, contendedthat although reference has been made in Rule 6 of theSupreme Court Rules 1990 of filing an affidavit, the saidfiling of an affidavit is not a mandatory requirement andtherefore there is no necessity to file an affidavit along withthe petition, which has clearly set out the facts relevant to theapplication. It was further contended that the requirementof an affidavit arises only when there is a necessity to ascer-tain facts which cannot be verified and therefore the applica-tion could be considered only on the petition even though theaffidavit filed is defective.
Rule 2 of the Supreme Court Rules, 1990 states thatevery application for special leave to appeal to the SupremeCourt should be made by way of a petition together withaffidavits and documents in support thereof as prescribed byRule 6.
A careful perusal of Rule 2 of the Supreme Court Rules,1990 as stated in Nanayakkara v. Kyoko Kyumd31 clearlyindicates that affidavit is filed in support of the applicationas prescribed by Rule 6 of the Supreme Courts Rules, 1990.The emphasis is given to the petition and the affidavit and the
Mark Rajandran vs. First Capital Ltd., formerly, Commercial Capital Ltd.,
SC(Dr. Shirani Bandaranayake, Acting, CJ.)65
other documents become secondary to the petition, as they. are filed for the purpose of supporting the application.
Rule 6 of the Supreme Court Rules, 1990, clearly refersto the instances, where an affidavit and other documentshave to be filed by the petitioner along with his application.Accordingly when an application contains allegations of fact,which cannot be verified by reference to- the judgment ororder of the lower Court, in respect of which, leave is sought,the petitioner shall annex in support of such allegation anaffidavit or other relevant documents.
Rule 2 read with Rule 6 of the Supreme Court Rules,1990 clearly indicate that an application for leave should bemade by way of a petition with affidavits and documents insupport of that application. In such circumstances, it is theaffidavit that breathes life in to the petition. It would thereforebe futile to attempt to support an application, where leaveis sought against the judgment of the High Court without avalid affidavit.
For the aforementioned reasons, the preliminary objectionraised by learned President’s Counsel for the respondent isupheld. This application is accordingly dismissed.
There will be no costs.
RATNAYAKE, J. – I agree.
EKANAYAKE, J. – I agree.
Preliminary objection upheld.
Application dismissed.