087-NLR-NLR-V-64-S.-S.M.-K.-MANSOOR-Petitioner-and-THE-MINISTER-OF-DEFENCE-AND-EXTERNAL-AFFAI.pdf
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SRI SKANDA RAJAH, J.—Mansoor v. The Minister of Dejence
and External Affairs
1963Present: Sri Skanda Rajah, J.
S. S. M. K. MANSOOR, Petitioner, and THE MINISTER OP DEFENCEAND EXTERNAL AFFAIRS and another, Respondents ! • *
S. C. 349 of 1962—Application for the issue of a Mandate in the nature of aWrit of Certiorari and for the issue of a Mandate in the nature of a Writ ofMandamus under Section 42 of the Courts Ordinance
Certiorari—Mandamus—Affidavits submitted by the Crown—Cross-examination of thedeponent—Permissibility—Citizenship Act, s. 12 (4).',
A person who has sworn an affidavit on the Crown side in proceedings for aprerogative writ under section 42 of the Courts Ordinance may in very specialcircumstances ho allowed to bo cross-examined on tho affidavit.
The petitioner’s allegation in the present application for writs of certiorariand mandamus was that *ho Minister of Defence and External Affairs did notexercise tho powers granted to her by section 12 (4) of tho Citi/onsnip Act andthat certain affidavits tendered on behalf of the respondents contained falseaverments stating that the deponent had sent tho relevant papers to the Minister.There was no affidavit from the Minister.
Held, that in view of the remarkable character of tho case tho deponentshould be tendered for cross-examination on his affidavits.
Application for the issue of writs of Certiorari and Mandamuson the Minister of Defence and External Affairs and on the PermanentSecretary to the Ministry of Defence and External Affairs.
M.Tiruchelvam, Q.C., with V. Kumaraswamy, in support.
H. Deheragoda, Crown Counsel, for the 1st and 2nd Respondents.
January 29, 1963. Sri Skanda Rajah, J.—
.In this matter the learned counsel for the petitioner asks that Mr. K. T •Perera who has sworn certain affidavits be tendered for cross-examinationon the affidavits. He alleges that his instructions are that these affidavitscontain false averments and that the averment that he sent the papers tothe Prime Minister is not true.
Gander v. Mwrugiah
499
According to English practice, very seldom a person who has sworn anaffidavit in writ proceedings is allowed to he cross-examined on theaffidavits In the case of Regina v. Stokesley, Yorkshire Justices, Ex parteBartram Chief Justice Goddard said: “ This is probably the first case inrecent history in which application has been made in Crown proceedingsfor leave to cross-examine on affidavits. Leave has never been given, orat least not for a great number of years. In Rex v. Kent Justices, Exparte Smith, Hewart C.J. sitting with Avory and Shearman JJ. said,
‘ For something like fifty or sixty years no order had been made on theCrown side for the cross-examination of a deponent. It was enough toadd that such an* order was not likely to be made except in very special.circumstances, and that no such special circumstance had been shownin the present case’.” (The Weekly Law Reports Vol. 1—1956—page 254at 257). Lord Goddard allowed leave to cross-examine and at the conclu-sion of the judgment he said at page 258 : “We allowed cross-examinationin this case because this is a case of a remarkable character In myopinion the present case is also of a remarkable character for the reasonthat in this application it has been alleged that the papers never wentto the Minister concerned, namely, the Minister of Defence and ExternalAffairs. There is no affidavit from the Minister. I consider this anextraordinary circumstance and alloAv the application for cross-exami-nation of Mr. IC. T. Perera on the affidavit.
[The following order was made on the same day in respect of a similarapplication (S. C. No. 426 of 1962) :—]
January 29, 1903. Ski Skanda Rajah, J.—
•In-this case too as in- application No. 349 of 1962 which I have justdisposed of the petitioner’s allegation is that the Minister has not exercisedthe powers granted to her by Section 12 (4)' of the Citizenship Act andthat the averments in Mr. K. T. Perera’s affidavit aTe not true. So Imake the same order as in that application. That is to say, Mr. K. T.Perera will be cross-examined on his affidavit.
•
Application for cross-examination on the affidavits allowed.