069-NLR-NLR-V-67-PUTTUR-NORTH-CO-OPERATIVE-CREDIT-SOCIETY-Appellant-and-C.-THAMBIMUTTU-and-anot.pdf
1965 Present:H. N. G. Fernando, A.C.J., and Abeyesundere, J.PUTTUR NORTH CO-OPERATIVE CREDIT SOCIETY,Appellant, and C. THAMBIMUTTU and another, Respondents
S. C. 151164 (Tnty.)—D. C. Jaffna, 161
Affidavit—Procedure for swearing—Civil Procedure Code, s. 437—Co-operative
society—Dispute referred to arbitrator—Award of arbitrator—Duty of District
Court to enforce it—Co-operative Societies Ordinance (Cap. 124), s. 53.
When the award of an arbitrator in respect of a dispute which had beenreferred to him under the relevant provisions of the Co-operative SocietiesOrdinance was sought to be enforced in the District Court, the District Courtrefused to enforce the award on two grounds. One ground was that theaffidavit which accompanied the application to enforce the award wasdofective because it did not show that it was made before a Justice of thePeace within the local limits of whose jurisdiction the deponent was at thetime residing. The other ground was that the award was illegal on its facebecause it ordered the payment, by way of interest, of an amount greater themthe principal debt.
Held, (i) that the affidavit was not defective. When an affidavit is swornbefore a Justice of the Peace in terms of section 437 of the Civil Procedure Codeit is not essential that a certificate must appear on the affidavit itself that thedeponent resides within the area for which the Justice of the Peace is appointed.In such a case, the presumption of the regularity of official acts is applicable.
(ii) that the District Court had no power to refuse to enforce the awardon the ground of an error of law or of fact on the part of the arbitrator inreaching his determination within jurisdiction. Such an error could be correctedon an appeal ; but if there was no appeal, then in terms of section 53 of theCo-operative Societies Ordinance the award became final and could not bequestioned in a civil Court.
Bandahamy v. Senanayake (62 N. L. R. 313) distinguished.
,y.PPEAL from an order of the District Court, Jaffna.
H. W. Jayewardene, Q.C., with K. S. Rajah and D. S. Wijeivardene,for the Petitioner-Appellant.
No appearance for the Respondents.
Cur. adv. wit.
September 3, 1965. H. N. G. Fernando, A.C.J.—
This appeal was preferred from an order of the learned District Judgerefusing to enforce an award made by an arbitrator to whom a disputehad been referred under the relevant provisions of the Co-operativeSocieties Ordinance.
One ground upon which the learned District Judge acted was thatthe Affidavit which accompanied the application to enforce the awardwas defective. In Kanagasabai v. Kirupamoorthy1 Basnayake C. J.made the following comment:—
“ The affidavit does not show that it was made before a Justiceof the Peace within the local limits of whose jurisdiction the deponentwas at the time residing. (Section 437 of the Civil Procedure Code).”
I do not disagree with the view that it may be desirable for a personbefore whom an affidavit is made to certify on the document itself thatthe deponent resides within the area for which the person is appointed.But Section 437 does not require that such a certificate must appearon the affidavit itself, and unless some such dispute actually arises asto the place of residence of the deponent, the presumption of the regu-larity of official acts should in my opinion suffice to establish that aJustice of the Peace ordinarily acts in conformity with the requirementsof Section 437. Moreover, in the present case, the question whetherthe affidavit was defective is purely academic, since all the mattersdeposed to in the affidavit were also testified to in oral evidence givenin Court. The order of the District Judge cannot therefore be supportedon this ground.
The learned Judge also held that the award ordered the paymentby way of interest of an amount greater than the principal debt, andthat accordingly the award was illegal on its face. I will assume for.present purposes the correctness of the opinion that an arbitrator actingunder the Co-operative Societies Ordinance is bound by the principleof the common law as to the amount of interest which may be decreedagainst a debtor. Nevertheless, the District Judge had no power torefuse to enforce the award on the ground that this principle had notbeen observed. He relied on the statement in Bandahamy v. Senanayake *that “ the party against whom the award is sought to be enforced shouldbe given an opportunity of showing the existence of defects, even thoughthe award does not bear any fatal flaws on its face ”.
That statement must be understood in the light of the observationsin the judgments as to the character of the defects which may vitiatean award at the stage when enforcement is sought. The majorityjudgments approved the decision in Jayasinghe’s Case3 which in turnadopted the views expressed by Gratiaen J. in Barnes de Silva’s Case*:—
“ This rule, the validity of which may be assumed for the purposesof the present appeal, does not lay down the procedure for makingsuch applications, but it is the clear duty of a Court of law whosemachinery as a Court of execution is invoked to satisfy itself, beforeallowing Writ to issue, that the purported decision or award is primafacie a valid decision or award made by a person duly authorised
1 (1959) 62 N. L. R. 54 at 59.* (1955) 56 N. L. R. 462.
•(I960) 62 N. L. R. 313.* (1953) 54 N. L. R. 326.
under the Ordinance to determine a dispute which has properly arisenfor the decision of an extra-judicial tribunal under the Ordinance.In that event alone would the Court be justified in holding that thedecision or award is entitled to recognition and capable, under theappropriate rule, of enforcement as if it were a decree of Court.”
This view was approved and adopted by Basnayake C. J. in Bandahamyv. Senanayake. It is explained also in the judgment of Sansoni J.:—
“What Section 45 provides for is the enforcement of an award which :—
(а)is made upon a dispute duly referred under the Ordinance, and
(б)is made by a person duly empowered by or under the Ordinance
to make it. ”
The defects, the existence of which may thus be shown, are defectswhich fall within the observations of Gratiaen J. which are cited above.Such defects, substantially, may be described as matters which establisha lack of jurisdiction in the person making the award. An error oflaw or of fact on the part of the arbitrator in reaching his determinationwithin jurisdiction is not such a defect. Such an error can be correctedon an appeal, provision for which is found in Section 53 (formerly Section45) of the Ordinance; but if no appeal is taken, then in terms of thatSection the award becomes final and cannot be questioned in a civilCourt. A District Court, which in this context is a Court of executionand not a Court of appeal, has no power to refuse to enforce an awardon the ground that the award itself is erroneous.
I would allow this appeal with costs in both Courts. The order appealedfrom is set aside, and the order nisi for the enforcement of the awardis made absolute.
Abeyesukdere, J.—I agree.
Appeal allowed.