051-SLLR-SLLR-2002-3-SOORIYA-ENTERPRISES-INTERNATIONAL-LIMITED-MICHAEL-WHITE-COMPANY-LIMITED.pdf
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Sooriya Enterprises (International) Limited v. Michael
White & Company Limited
371
SOORIYA ENTERPRISES (INTERNATIONAL) LIMITED
v.MICHAEL WHITE & COMPANY LIMITED
SUPREME COURTFERNANDO, J.
PERERA, J. AND WIJETUNGA, J.
SC (SPECIAL) LA NO. 235/94CA (REV.) NO. 399/94DC COLOMBO NO. 4036/SplJULY 27, 1994
Affidavit – Oaths Ordinance, sections 4 and S – Is it mandatory for non-Christiansto make an affirmation in an affidavit? – Effect of non-Christians submitting anaffidavit under oath.
Held:
It is not imperative for non-Christians referred to in section 5 of the Oaths Ordinanceto make an affirmation in an affidavit.
Per Fernando, J.
‘The use of the word *may° in section 5 of the Oaths Ordinance of1895, instead of "shall" must be regarded as deliberate; with theconsequence . . . that non-Christians who believed in God would havethe option to swear or to affirm."
Case referred to :
Rustomjee v. Khan – (1914) 18 NLR 120, 123.
PETITION for leave to appeal from the judgment of the Court of Appeal.
S. Sivarsa, PC with S. Mahenthiran, A. A. M. Illiyas and Sampath Welgampayafor petitioner.
H. L. de Silva, PC with Romesh de Silva, PC, Gomin Dayasiri, G. G.Arulpragasam and Dina! Phillips for respondent.
Cur. adv. vult.
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Editor's note:
Vide Roshana Michael v. Saleh, OIC (Crimes), Police Station, Narahenpita andOthers – (2002) 1 Sri Lfl 345 at 355 for the same view.
July 27, 1994FERNANDO, J.
The petitioner seeks special leave to appeal upon the question whetherin making an affidavit a Muslim is imperatively required by law to makean affirmation, with the consequence that if he makes an oath insteadhis affidavit must be rejected. Mr. S. Sivarasa, PC, submits that thematter is governed by the provisions of the Oaths Ordinance, No. 9of 1895 (Cap. 17). Section 4 of that Ordinace requires all personsto make an oath, and then provides in section 5:
“Where the person required by law to make an oath –
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 an affirmation."
Mr. Sivarasa contends that notwithstanding the use of the word"may", a Muslim, being a person covered by section 5 (a), must makean affirmation. (He says, however, that section 5 (b) confers an optionto make an affirmation, on anyone having a conscientious objectionto making an oath.) He submits that the invariable practice of Muslimsis to affirm, and draws .our attention to the Muslim Marriage and'Divorce Act, No. 13 of 1952 (cap. 115) – sections 49 and 57 require
an "oath", but the prescribed forms contain the usual form of affirmation. I
I cannot accept this argument that section 5 (a) should be restrictivelyinterpreted in the light of later provisions and practice; rather, themeaning of that section when originally enacted has to be ascertained.
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Sooriya Enterprises (International) Limited v. Michael
White & Company Limited (Fernando, J.)
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That was done by Pereira, J. (de Sampayo, J. agreeing) in Rustomjeev. Khanw:
"While the old Ordinance No. 3 of 1842, made it compulsoryon witnesses who were non-Christians to make affirmations, thenew Ordinance (the Oaths Ordinance, 1895) made it optional withthem to do so. The primary provision of the new Ordinance is thatall witnesses shall make oaths. It then enacts that a witness who,being a non-Christian, is a Buddhist, Hindu or Muhammadan, orof some other religion according to which oaths are not of bindingforce, “may", instead of making an oath, make an affirmation.To swear is no more than to assert, calling God to witness,'or invoking His help to the deponent in the matter in connectionwith which the oath is taken, and it is open to any person, behe Hindu, Muhammadan or Zoroastrian, who believes in God,to claim to be sworn (rather than to affirm) …"
This view that "may" in section 5 is permissive, rather than mandatory,is supported by sections 7 and 9 of the Ordinance, which manifesta legislative intention to allow a witness or a deponent some choiceas to whether he will swear or affirm; so much so that the substitutionof an oath for an affirmation (or vice versa) will not invalidate proceedingsor shut out evidence. The fundamental obligation of a witness ordeponent is to tell the truth (section 10), and the purpose of an oathor affirmation is to reinforce that obligation.
The ratio decidendi of Rustomjee v. Khan,m that section 5 gavean option "to any person, be he Hindu, Muhammadan or Zoroastrian,who believes in God, to claim to be sworn (rather than to affirm)",has not been doubted for 80 years. The Oaths Ordinance was twiceamended thereafter: in 1915, and again in 1954 when section 5 (a)was amended. If the judicial interpretation of section 5 was erroneous,the legislature had the opportunity to correct it.
Because "much inconvenience arises from peculiar forms of oathbeing required to be administered to persons professing other than
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the Christian Religion", Ordinance No. 6 of 1841 required that suchpersons shall make an affirmation in the prescribed form. This provisionwas not considered satisfactory, and by Ordinance No. 3 of 1842 itwas provided that:
"… every individual not professing the Christian faith,and every Quaker, Moravian or Jew, shall, on all occasionswhatsoever where an oath is required . . . make a solemnaffirmation … in lieu thereof."
The use of the word "may" in the Oaths Ordinance of 1895, insteadof “shall", must be regarded as deliberate; with the consequence, asPereira, J. held, that non-Christians who believed in God would havethe option to swear or to affirm.
Mr. Sivarasa also submitted that the words "according to whichoaths are not of binding force" qualified not only “of some otherreligion", but also "a Buddhist, Hindu, or Muslim"; and that the legislaturethereby recognized that Muslims do not accept the binding force ofan oath, and therefore cannot swear. As a matter of grammar, thatclause cannot be read as qualifying the phrase "a Buddhist, Hindu,or Muslim". Even assuming that the legislature considered Muslimsas not accepting the binding force of an oath, yet the legislativehistory of section 5 is consistent with a legislative intention (as heldby Pereira, J.) to make an affirmation optional, and not mandatory.
The question raised has been authoritatively determined 80 yearsago, and never doubted since, so that there is now no question of
law or other matter fit for review. Special leave to appeal is refused,without costs.
PERERA, J. – I. agree.
WIJETUNGA, J. – I agree.
Special leave to appeal refused.
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