074-NLR-NLR-V-11-SEGU-MOHAMADU-v.-KADIRAVAIL-CANGANY.pdf
(277)
[Full Bench.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wood Benton, and Mr. Justice Grenier.
SEGU MOHAMADU v. KAT5IBAVAIL CANGANY.
D. C. Badulla, 2,U5.
Oaths Ordinance (No. 9 of 1896), s. 9 (2)—Record of evidence by personappointed to administer oath—Report that oath had been administeredaccordingtoorder—Prim&facieevidence—Sufficiency—Objection.
The defendant in an action consented to . judgment being enteredagainst him, if the plaintiff and certain of his (plaintiff’s) witnesseswould swear in the mosque to the truth of certain statements. TheDistrict Judge recorded thestatement, and itwas signed byboth
parties.The Interpreterof theCourt wasappointedtoadminister
the oath, and he reported that " this day at 3 p.m., in terms of theorder in the above case, Iadministered oathtothe partiescon-cernedin the presenceof one another andin the presence of the
officiating priest.”Ontheday appointed for thepartiesto appear
the defendant did not takeany objection tothereport asbeing
insufficient,andjudgment wasenteredfor plaintiff.
Held (by Hutchinson C.J. and Grenier A.J., dissentients WoodKentonJ.). that- thereport ofthe officerappointedtoadminister
the oath affordedsufficientprimafacie evidence that theoath had
been administered in terms of the order of Court; and that, in theabsence of any objection' by the defendant, judgment was rightlyentered fortheplaintiff.
Hutchinson C.J.—In every case of an order for the taking of anoath under OrdinanceNo.0 of1895 the Courtshoulddirect the
personappointed to administer itto recordin writing.atthe time
it is administeredthewordsswornto, setting themout inhis report,
avid not merely referring to the order.
Held (by Wood Renton J.), that the provisions of section 9 (2)of Ordinance No. 9 of 1895, which require evidence given underthat section to be recorded, in writing by the person appointed toadminister the oath, are peremptory; and judgment should not beentered in the absence of any record in writing by the person appointedto administer the oath of the evidence given by the witnesses.
1 (1900) I. L. R. 28 Calcutta 253.
1908.
August 21.
22-
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ms.
August HJ.
A
PPEAL'by the defendant from a judgment of the DistrictJiidge. The facts are fully, stated in the judgments.
Van Langenberg, for the first defendant, appellant.
Bawa, for the plaintiff, respondent.
'Cur. adv. vult.
August 21, 1908. Hutchinson C.J.—
The plaintiff claimed in this action a sum of money due from thetwo defendants on a promissory note. Judgment was given againstthe second defendants in default of appearance. The first defendantappeared and denied the signing of the note, but he admitted thesigning of a note in blank, which was to be filled up with the correctamount foudd due when certain accounts were looked into, andupon which, in fact, only a small balance was due, and said that thenote* so signed in blank was the note now sued upon.
On the day of trial, March 11, 1908, the defendant’s proctor saidthat before framing issues the defendant was willing that judgmentshould be entered against him, provided (1) plaintiff will swear in themosque that be is satisfied with the truth of the entries in his books;(2) Meera Lebbe (plaintiff’s attorney) will swear in the mosque thatthe first defendant put his mark to the note and that both defendantsreceived .the consideration; and (3) Meera Lebbe (a witness) willswear in the mosque that he saw the first defendant put his markand both receive the money. The oath was to be taken in themosque behind the jail in the presence of Mr. Abdul Rahaiman (theInterpreter) on Friday, the 13th, between 1 and 4 p m. The DistrictJudge has recorded this statement, and it is signed on the record byboth parties.
On the 13th the Interpreter reported to the Court that he wentthat day at the appointed hour and found the parties there present,except the witness Meera, and that in Meera’s absence the defendant .objectd to the other two swearing. The defendant was willing tohave another date fixed, and the District Judge fixed the 27th. Onthe 27th the Interpreter was absent on business, and the taking ofthe oath was postponed to April 3; on the 3rd it was postponed tothe 10th; and on the 10th the Interpreter reported that “ this dayat 3 p.m., in terms of the order in the above case, I administeredoath to the parties concerned in the presence of one another and inthe presence of the officiating priest.” Upon that the Court enteredjudgment for the plaintiff; and the defendant appeals.
On the 13th the defendant had presented a petition to the Courtasking that the plaintiff should be required to~swear that he was notin his boutique on the day the note was alleged to have been signed,and that his attorney Meera had not made a certain statement tohim; and on the 27th he presented a similar petition. The District. Judge seems to have taken no notice of these petitions. The
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•defendant contends that he did not consent to the taking of the oath 1908.on April 10; and it seems that he did not, but that he wished that Avgutt^ZI.the plaintiff should swear to something different from that which Hutchinsonwas prescribed in the agreement of March 11. He had no right,however, to alter the terms of that agreement; and I think that the•date for taking the oath was not an essential term of the agreement.
But there remains the question whether the oath was duly taken.
The appellant urges that the agreement was made under the pro- -visions of section 9 of Ordinance No. 9 of 1895. That section enactsthat if any party offers to be bound by an oath in a form commonamongst or held binding by persons of the race or persuasion towhich he belongs, if it is made by the other party or a witness, theCourt may ask the other party or witness whether he will make theoath; if he agrees, the Court may administer it, or may authorizeany person to administer it, and to take and record in writing theevidence of .the person to be sworn and return it to .the Court; andthe evidence so given shall, as against the person who offered to bebound, be conclusive proof of the matter stated. There was noexpress reference in this case to the Ordinance; the settlement ofdisputes by an oath taken in a particular form by one party on thechallenge of the other is a practice of immemorial antiquity; but Ithink that since this enactment came into force the procedure in allsuch cases should be regulated by the enactment, and no doubt theparties so intended in this case.
It was said during the -argument that agreements of this kindwere common, especially in Village Tribunals. After the argument.1 wrote to the Government Agent of the Western and CentralProvinces to inquire as to the practice in the Village Tribunalswith regard to such agreements; and I have received replies, withthe records of several cass in Village Tribunals, which were decidedon the taking of an oath in pursuance of such agreements. Theprocedure in all cases where the oath is not taken in Court is this:tiie words to which the parly is to swear are recorded by thePresident; the parties go to the church or mosque or temple, wherethe words are sworn to; no questions are put to the party swearing;the Court then takes on oath the evidence of the officer who waspresent that the oath was taken; and then gives judgment. Itis not customary foi the officer authorized to administer the oath torecord in writing what takes place; and although it is said that hereports to the Court that the oath was taken in the words writtenin the order of the Court I cannot find in' any of the cases sent tome any record of any such report in writing. This practice is notsanctioned by the Ordinance, which requires the person authorizedto administer the oath “ to take and record in writing the evidenceof the person to be sworn and return it to the Court. ”
In the present case the officer who was authorized to administeri.t reported in writing to the Court as I have stated above; but the
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1908. appellant objects that that is not a sufficient record of the evidence ofAugust 21. person g^orn. The Court, in its order appointing the officer inHutchinson whose presenoe the oath was to be taken, records the very words of theC,J‘ oath, and he reports that he administered it in the terms of the order.In D. C., Ratnapura, 1,374,* this Court held that a similar report wassufficient. Thg Ordinance does not make the report confelusive asto the fact of an oath having been taken, or as to its having beentaken in the presence of the parties, or as to the words sworn to,but enacts that the evidence so given shall, as against the person whooffered to be bound, be conclusive. If that person were to deny thatthe report was true, or (as fn {his case) were to deny that he was pre-sent, the Court could take the oral evidence of the officer or of otherswho were present; but primd facie, I think the report is sufficient.
I think, however, that in every case of an order for the taking ofan oath under the enactment the Court should direct the personappointed to administer it to record in writing at the time it is .administered the words sworn to, setting them out in his report, andnot merely referring to the order.
In the present instance I should hold the report to be prirndfacie sufficient. And as the defendant did not appear in Court andmake any objection on the day appointed—the 10th, the day towhich the further hearing had been adjourned on the 3rd—I shoulddismiss this appeal with costs.
Wood Renton J.—
In this case, which raises' an interesting and important questionof practice, I'have the misfortune to differ in the result from therest of the Court. The respondent sued the appellant and oneAdaikkalam Kangany in the District Court of Badulla on a promis-sory note for Rs. 460.79. alleged to have made by them in hfefavour. Judgmnet was entered against Adaikkalam Kangany bydefault; and on the same day, March 11, 1908, the appellant’sproctor stated that his client was willing to submit to judgment,provided—and here I propose to quote the journal entry in full—
" Plaintiff (i.e., respondent) will swear in the mosque that he issatisfied with the truth of the entries in the books: Meera Lebbe(attorney), that first defendant (i.e., appellant) put his mark to thenote, and both defendants received the consideration at the time:Meera Lebbe (witness), that he saw first defendant put his mark andboth receive the money. The oath to be taken in the mosque(behind the jail) in the presence of Mr. Abdul Rahaiman, on Friday,13th instant, between 1 and 4 p.m. ” The District Judge added thefollowing note to this entry:—“ For report on 14th instant. ” Theoath was not, in fact, taken till April 10. Between March 11 andthat dajte there had been several postponements, for one cause andanother, of the ceremony; and the appellant had presented a petition> S. C. Min., March 20,1907.
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to the District Judge praying that the point as to which the respon-dent was jto swear should be modified, and stating, in effect, thatif this prayer was not granted, he withdrew his submission to thearbitrament of the oath. I do not consider it necessary to dealwith .the allegations in the petition in detail, for I think that theydisclosed no case which would have justified the Court in permittingany such withdrawal. I assume for the moment that the presentcase comes under the Oaths Ordinance (No. 9 of 1895). ThatOrdinance prescribes (section 9, sub-section 4) the procedure to befollowed where a party refuses to take the special statutory oath oraffirmation, but it contains no provision for the revocation ofconsent by the party who offersto beboundby such an oath or
affirmation and, so far as I amaware, thereis nolocal decision
precisely in point. The question whether and under what circum-stances revocation of consent should be permitted has, however,been considered in India under Act X. of 1873, of which “ TheOaths Ordinance, 1895, ” is an almost literal reproduction. InLekhraj Sinyh v. Dvhhna Kuar 1 the parties had agreed to have thecase decided by the oath of athirdpersonafterlocal inquiry.
Stuart C.J. held that this wasreallya referenceto arbitration
which would have been valid if all the defendants had agreed toit, but that, in the absence of such consent, it was illegal. ButOldfield J. added that, assuming the agreement in question to comeunder Act X. of 1873, it was revocable before the referee had madehis award- In Ram Narain Sinyh v■ Babu Singh,3 however, thislatter dictum was not followed, the Court holding that revocationof consent to be bound by an oath in a particular form undersection 9 of Act X. of 1873 ought not to be allowed, except “ onthe strongest possible grounds. ” A more serious difficulty,however, is raised by what actually transpired at the time of, andsubsequently to, the taking of the statutory oath in the presentcase. The relevant journal entries are these: —
April 10,1908.—Parties absent. Vide Mudaliyar's report.
Enter judgment as prayed for. ”
“ April 10, 1908.—Decree entered against first defendant. ”
The effect of these entries is that the learned District Judge, onreceiving Mr. Abdul Bahiman’s report, straightway, on thestrength of that report, and in the absence of the parties, gavejudgment against the first defendant. The report is in the followingterms
" Sir,—I beg to report that this day, at 3 p.m., in terms of theorder in the above case, I administered oath to the partiesconcerned in presence of one another and in the presence of theofficiating priest.
“ April 10, 1908.A. S. Abdul Bahaiman. ”
1008.August 21
WoodBenton J
' (1880) 1. L. R. 4 <01. 302.
(1895) I. L. R. 18 all. 46.
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1908. The question that we have now to decide is whether, on theseAugust 91. materials, the learned District Judge was entitled to enter judgmentWood against the appellant. I think that he was not, and I propose to-Renton J. give my reasons as briefly as possible.
The present case comes under “ The Oaths Ordinance, 1895. ”Both sides were represented by proctors, and understood it in thatsense. Moreover, apart from any question as to the intention of theparties, I should say that an offer by one litigant to submit to-judgment if .the others swears to certain facts in a mosque is an offerto be bound by an oath in a particlar form within the meaningof sections 8 and 9 of the Ordinance. I think that any oath takenunder circumstances which invest it with a peculiar sanctionprovided that it satisfied the other conditions indicated in section 8,would fall under these sections, even if there was nothing distinctivein the words of the oath itself. We have not, therefore, to considerhere the legal effect of an agreement between parties to stake theirdispute on the result of something in the nature of an ordeal under-gone by one or other or both of them. The. result of such spordeal, conducted without the knowledge or privity of the Court,could always, I suppose, be made the basis of a judgment byconsent. Whether the Courts would allow, or consciously be anyparty to, the determination of a lawsuit by the application of sometest bearing a strong analogy to a wager—e.g., to cite an illustra-tion mentioned in the argument, if the plaintiff stood on one legfor half an hour—is a point that can be formally decided when anecessity for its determination arises.
If the case comes under “ The Oaths Ordinance, 1895, ” andthe oath is administered out of Court, the person authorized so toadminister it must “ take and record ” the evidence in writing, “ and.return it to the Court. ” This is expressly required by section 9,sub section (2). It is only to “ evidence so given ” that section 9,sub-section (3), attaches the privilege of being “ conclusive proof ofthe matter stated-” The sole form in which, under the Ordinance,such “ matter ” can be “ stated ” to the Court is in the writtenreturn for which section 9 (2) provides. Moreover, it is, I think,noteworthy that the failure to make such a return is not includedamong the irregularities which, under section 10 of the Ordinance,do not invalidate the proceedings or render the evidence inadmis-sible. That section refers only to irregularities in the form of takingor administering the oath. It is unnecessary and inadvisable toattempt to lay down any general rule as to the form in whichevidence given out of Court under the provisions of section 9 (2)of the Oaths Ordinance, 1895, should be recorded. I supposethat it is in the Gansabhawa Tribunals that recourse is had to theseprovisions most frequently, and with the greatest measure of success,and it is not to be expected that evidence taken under such auspiteesshould be written down with the fullness and the precision that one
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would look for at the hands of a trained professional Judge. But,in my opinion, it is not sufficient for the Commissioner of the Court,if I may describe him by that name, merely to report, as in thepresent oase, that he administered the oath in terms of the orderprescribing it. Some contemporaneous record there must be ofwhat was said under the sanction of that oath. If the special oathwere, as under section 9 (2) it may be, administered by the Judgehimself in Court, there could, I suppose, be no question that it washis duty to record in writing the evidence given in pursuance of itat the time when it was given. I do not see that that duty is anythe less incumbent upon a Commissioner to whom the Judge hasdelegated it; and the more accurately and completely it is dis-charged by Court or Commissioner, the more surely will .the importantand salutary provisions of the Oaths Ordinance be made effectual.Frequently the sanction of a special oath is the only means by whichthe Court can get at the truth. Unless the evidence given underthat sanction is carefuly taken down, the door is left open for everysort of evasion of the results of the reference to the oath. I respect-fully dissent from the view expressed by the. Supreme Court in D. C.,Batnapura, 1,374,1 that section 9 (2) of Ordinance No. 9 of 1895 issufficiently complied with, primd facie or otherwise, By a return thatthe oath has been administered ,r.as directed by the Court. ” None ofthe other local decisions that I have been able to find are in point.But the available information as to the history in Ceylon of theprocedure which the Ordinance consecrates is not inconsiderable.The delation of disputes to oath of party is probably as ancientas civilization, and has in all ages been made the subject of legisla-tive recognition and regulation. We see it in the jus juranium ofRoman {Inst. IV., 13, Dig• XII., 2) and Roman-Dutch (see Nathan,Com. Law, S. A., IV., S. 2190) Law, and in the sentient dedsoireof the French Code Civil (Arts 1358 et seq.) and of most of thecontinental Civil Codes formed after the French model (e.g., theItalian, Art, 1364, the Spanish, Art- 1236, and the Portuguese,Arts, 2523, 2524). In Ceylon the regulation of the decisory oathcommenced early under British rule. A Proclamation of 1819 (No.
5 of 1819) prohibited the administration of extraordinary oaths.“ No. 5 of 1819, ” says Sir Charles Marshall {Judgments, p. 142),
“ was introduced from a conviction that the practice of admitting onparticular, occasions oaths or rather imprecations – differing from theusual appeal to the Deity, such as that sometimes resorted to by theCingalese, of swearing on the heads of their children (c/. Hatingirav. Andirissa 2), would only bring into disrepute and contempt theobligation of the ordinary oath, without producing any greaterdegree of veracity in what is deposed under the- sanction of extra-ordinary ones- ” This prohibition was maintained_ by the 26th rule'of practice under Ordinance No. 6 of 1834, which first .provided for..
1908.
August SI.
WoodRenton J.
1 S. C. Min. March SO, 1907.
* (1900-01) 1 Browne 106.
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1903.
August 21.
WoodRenton J.
the introduction of the English rules of evidence into Ceylon. Rule26 also directed that “ all witnesses shall be sworn according to theform prescribed by the rites of the religion which they respectivelyprofess.” Sir Charles Marshall states (Judgments, p. 1G6) that priorto Ordinance No. 6 of 1834 ‘‘ oaths by parties decisory and others, ”had been abolished, and as late as 1875 (see Deonis de Zoysa v. deAbrew *) Morgan C.J- held that the Courts ought not to recognizethem except a6 the basis of a judgment by consent. OrdinanceNo. 3 of 1842 allowed the substitution of a' solemn affirmation foran oath in certain cases. Ordinance No. 9 of 1895 consolidates thelaw as to oaths and affirmations. In its Sth and 9th sections itmakes provision for the giving of evidence, which may or may notbe of a ‘ ‘ decisory ’ ’ character, under the. sanction of a particularform of oath, thus combining the “ decisory oath ” and the specialreligious or ceremonial oath of the old. procedure. I do not thinkthat anything in the nature of an ordeal comes within the purviewof the Ordinance of 1895. It is an enactment regulating the givingof evidence; and I think that the provisions which require suchevidence to be recorded in writing are peremptory. The reportthat we have received since the argument from the GovernmentAgent of the Western Province shows that the law is already under-stood and applied in that sense by the Village Tribunals within his'jurisdiction. “ The evidence, ” he says, ” is taken and recorded inwriting at the time and place where the oath is administered- Inthe Central Province, on the othr hand, no record is made. I amstrongly of opinion that we should enforce what seems to me to be theplain letter of the Statute Law, and that the practice of the VillageTribunals in the Western Province should be approved. Althoughthe point now before us was not taken in the Court below or in thepetition of appeal, it arises on the face of the record, and we haveat pur disposal all the materials necessary for its decision.
I would set aside the decree appealed against, and send the caseback for a new trial onevidence given either in the ordinary way, or,if the parties so desire, under the provisions of sections 8 and 9 of” The Oaths Ordinance, 1895,” as I have tried to interpret them.The appellant should have the costs of this appeal. All other costsshould abide the event.
Grenier, A.J.—
I have had the advantage reading the judgment of my Lord andmy brother Wood Renton in this case, and as the facts have been..fully stated in their judgments, it becomes unnecessary for me torecapitulate them. Undoubtedly the procedure in all cases whereparties agree to abide by the decisory oath should be governed by theOaths Ordinance, and I agree with the rest of the Court in holdingso. At the argument of the appeal I was strongly of opinion that1 (1875) Ram. 1872-76.
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the objection raised by the appellant’s counsel, founded on thenon-observance of the strict letter of the provisions contained insection 9 (2) of the Oaths Ordinance, was, in the circumstances ofthis case, of so technical a nature that it should not be allowed toprevail, and I am of the same opinion still. I agree with my Lordthat primd .facie the report is sufficient, especially when, as pointedout by him, the defendant did not appear in Court and make anyobjection on the day appointed for the purpose. The practiceadopted by me in the District Court of Colombo under the OathsOrdinance was to swear the officer authorized to administer the oathin the presence of the parties in open Court after the oath agreedupon had been taken, and then record his evidence as to the natureof the oath .that he had administered and the words used by theparty taking the oath.
If no objection was raised by the challenging party, judgmentwould be entered as previously agreed upon. It certainly would beadvisable to conform strictly to the provisions of section 9 (2); butthe report sent in this case contained primd facie proof in writingthat the oath had been administered in terms of the order of Court,and I fail to see in what way the defendant has been prejudiced bythe evidence of the persons to be sworn not having been formallytaken and recorded in writing.
Appeal dismissed.
I would dismiss the appeal.
1908.
August 21.
Grenier
A.J.
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