005-NLR-NLR-V-06-THURASAMI-v.-SELLACHI.pdf
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THURA6AM3 v. SELLACBtLD. C., Colombo) 16,488.
IMS.
July 81.
■Civil Procedure code, s. 480—Mark of declarant made in affidavit—Validityof signature in Sinhalese.°
A signature in Sinhalese set down by a process server in his affidavit■is not a “ mark " under section 489 of the Civil Procedure Code.
The dictum of Bonser, C.J., in The National Bank of tndia v. Fernando(D.C., Colombo, 6,892), decided by the Collective Court . on 4th
October, 1896, commented on.
T
HE plaintiff sued the defendants upon a promissory notegranted by them. . To his plaint, instituted under chapter
53 of the Civil Procedure Code, was attached the necessaryaffidavit showing that the amount he claimed was justly due tohim. Judgment was entered upon report of summons served<on the defendants. Thereupon the second defendant moved thatthe judgment he set aside on the ground that the summons had-not been served.
The District Judge, Mr. D. F. Browne, set aside the decree upona ground not taken by the defendants, and allowed liberty tothem to file answer. – His order was as follows:—
“ Without discussing any of the contentions preferred, I mustallow the motion of the defendants to set aside the decree fora reason which was not advanced in argument yesterday, but,being one which the Collective Court allowed as an absolutelygood reason in D. C. Colombo, 6,892, on the 4th October, 1895, isbinding upon me. That ruling was made in a like applicationto set aside a decree when the process server had signed theaffidavit ' or affirmation whereon the Fiscal’s return was basedby something written in Sinhalese. Bonser, C.J., there held: ‘ Ininy opinion a signature in Sinhalese is nothing more than a mark,,because the Court knows nothing of any other language than theEnglish language:’ Section 439 requires: ‘ and when a mark ismade instead of a signature, the person who writes the marks-man’s name against the mark shall also sign his name andaddress in the presence of the Court,” &c.
“ Here the signature is written in Sinhalese, and the manuscriptin idle blanks in the printed form was (judging by the handwriting)filled in by some person other /than the Deputy Fiscal beforewhom it was affirmed. This pirson did. not write the signatory'sname against the mark, and even if he had been the Deputy Fiscal
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(who did here certify that the signatory had the matter interpretedto him and was affirmed thereto, which also was omitted in thatcase), I would consider that he ought also to have written themarksman’s name against hiB mark. Hence ‘ this was not anaffidavit at all, and furnishes nothing on which the Court couldact,’ as'was there held.
“ Decree set aside, and defendant, in view of his affidavit as to hisdefence, showing, as 1 consider, reasonable probability that hehas a sufficient one, is allowed to file answer on or before the 9thinstant. Costs to be costs in the cause.”
Plaintiff appealed.
The case came up for argument before Moncreifi, A.C.J., andWendt, J., on the 15th July, 1902, and was referred by them to abench of three Judges.
On the 17th July the case was argued before MoncreifE, A.C.J.,Wendt, J., and Middleton, J.
Dornhorst (with Walter Pereira.), for appellant.—Ths authorityrelied upon by the District Judge (D. C., Colombo, 6,892, decidedon the 4th October, 1895) is only an obiter dictum, of Chief JusticeBonser. The Civil Procedure Code, section 439,1 provided thatwhen a person made a mark instead of a signature, the marksman’sname should be written out by a person against the mark, andthat the writer of the marksman’s name should sign his ownname and address. Bonser, C.J,. did not put the mark and signa-ture on the same level, but only observed that the law made asignature in Sinhalese, or any other language than English, evenwith a mark, so far as such signature and mark necessitated certainrequirements in common, but of course in the case of the markthe person who writes the marksman’s name should also signhis name and address. The District Judge has wrongly inter-preted the meaning of the Chief Justice.
H. J. C. Pereira (with Jayawardene}, for defendants, respond-ents.—The Full Court decision in the case of The NationalBank of India v. Fernando (D. C., Colombo, 6,892) relied on bythe District Judge is binding on the Supreme Court as at presentconstituted. It could be reversed only by the Privy Council orby Statutory Law. In The London 'Street Tramways Companyv. The London County Council, L. B. App. Ca. 375 (1898), theHouse of Lords held that upon a question of law a decision ofthat tribunal was conclusive even if it were erroneous, and thatit could be set right only by an Act of Parliament. The SupremeCourt of Ceylon has no power to set aside its own decision ifdelivered by the Collective Court. A signature in Sinhalese is
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virtually a mark to the Court, whose official language was English,anil therefore the District Judge’s ruling as to the insufficiency ofthe plaintiff’s affidavit was right.
Domhont, in reply.—The Supreme Court has often reversed itsown decisions which had) been delivered by the Collective Court.It was only in recent years that the Court has regarded thecollective opinion of its predecessors with an exaggeratedreverence. However, the case relied on by the District Judgecontains only an obiter dictum of one Judge, not concurred in bythe other Judges. That authority, therefore, is of.no value in the•consideration of the present case.
Cur. adv. vult.
21st July, 1902. Moncbeiff, A.C.J.—
This is an action on a promissory note. A summons was issuedon the 3rd March, 1902. On the 11th March the summons wasreported to have been served on the defendants, and time havingexpired, judgment was entered in favour of the plaintiff in termsof the plaint. A writ of execution was issued, and on the 24th Aprilthe proctor for the second defendant asked that the judgment mightbe set aside and execution stayed, and that the second defendantshould be allowed to defend the action. Upon argument theJudge granted this application, but not upon any of the groundsupon which it was made and by which it was supported. Theprocess server had written . his signature on his affidavit inSinhalese. According to the Judge, the Collective Court inDistrict Court case No. 6,892, on the 4th October, 1895, held thatthe affidavit upoin which the fiscal’s return in that case was based,and which was signed by the process server by “ something writtenin Sinhalese, ” was not properly signed. It was held in that case byBonser, C.J., that the process server’s signature was nothing morethan a mark, which ought not to be accepted, unless accredited inthe same way as a common cross or mark made by an illiterateperson. The case in question was heard by Chief Justice Bonsermid Justices Withers and Browne. The leading judgment wasdelivered by the Chief Justice,, who held, for several substantialreasons, that the summons had not been duly served, and said.inter alia: “ That affidavit purports to be made by one TohanisPerera, who describes himself as server, and it is signed inSinhalese characters, the meaning of which I do not understand.It purports to have been affirmed before J. S. Drieberg, DeputyFiscal, tiie signature of the Deputy Fiscal being affixed by what iscommonly known as a rubber stamp. ” The Chief Justice then.expresses extreme regret that rubber stamps should be used.Later on he adds:“ The signature is affixed in Sinhalese. In my
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1902. opinion a signature in Sinhalese is nothing more than a mark,July 91. because the Court knows nothing of any other language than theMoncbkiff, English language.” To that judgment Mr. Justice Withers saidA.C.J. .. j entirely concur with my Lord,” and Mr. Justice Brownesimply ” agreed ”.
Now, if the learned Judge was right in saying that the CollectiveCourt decided this point in the sense meant by the Chief Justice,
I should be the last to interfere with the decision, because I thinkit would neither be seemly nor expedient that a Full Court, evenif it had the power to do so, should reverse the deliberate decisioncf Judges who have, sitting in Full Court, come to a differentdecision. I think, however, that each case must depend on its owncircumstances. For example, if .the decision of a case depends onthe resolution of one question, or upon questions the resolutionof which is essential and vital to the decision, then if the Judgewho follows the Chief Justice simply says ” I agree,” he must betaken to have agreed upon those questions with the remarks ofthe Judge who gives the leading opinion. – On the other hand,although I think that the following Judge is bound by thesubstantial grounds of a decision, he is not to be taken to agree inall the particulars of the leading judgment, nor even with all thereasons which the leading Judge. has given for his opinion. Inthe case quoted I think .that Mr. Justice Withers and Mr. JusticeBrowne ought not to be taken to have assented to the propositionof the Chief Justice unless they said so.
In this case the process server signed his affidavit in Sinhalesecharacters, and I think it is open to us to say whether the signatureis good. It is possible that in some cases there may be confusionwith regard to what a signature and a mark consist of. But itseems to me that in section 439 of the Civil Procedure Code,which must be taken to rule this case,, the two things have avery different meaning. The section runs thus: “ In the eventof the declarant being a blind or illiterate person, or not able to-understand writing in the English language, the affidavit shall, at.the same time be read over or interpreted to him in his ownlanguage, and the jurat shall express that it was read over orinterpreted to. him in the presence of the Court, Justice of thePeace, or Commissioner, and that he appeared to understand thecontents; and also that he made his .mark or wrote his signaturein the presence of the Court, Justice of .the Peace, or Commissioner.And when a mark is made instead of a signature, the person whowrites the marksman’s name against the mark shall also sign hisname and address in the presence of .the Court, Justice of thePeace, .or Commissioner.”
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Now, the first part of the section provides for the reading over 1802.
of the affidavit to a declarant who is one of three things, either
blind, or illiterate, or not able to understand writing in the Monobeut,
A.C J
English language, and it provides that in the case of any of thesethree persons the jurat shall express the fact that it was readover to Mm. Then, it is enacted that the jurat shall state thatthe person has made his mark or written his signature inthe presence of the Court, Justice of the Peace, or Commissioner.
Therefore, there is a distinction between a person who makes Msmark and one who writes Ms signature. I suppose a blindperson, or an illiterate person, might write a signature as well asa person who does not “ understand writing in the Englishlanguage." The last part of the section, it seems to me, issignificant, because it provides for the certifying of the mark where“ a mark is made instead of a signature ” by the person whowrites the marksman’s name against the mark. There is a cleardistinction between a signature and a mark, and a provision as tocases where there is a mark and not a signature; the mark mustbe certified in the way specified. Chief Justice Bonser saysthat the signature in the case quoted, which is a signature inSinhalese, is a mark. I am not quite able to agree with that view.
There is a very substantial difference between this signature anda mark. This signature will always speak for itself ; a mark saysnothing. A signature may always be translated, if it is writtenin the characters of a foreign language; a mark cannot betranslated. A mark is absolutely nothing without the adjoinedcertificate; a signature is always .there speaking lot itself. ChiefJustice Bonser, however, was under the impression that, Englishbeing the language of tMs Court, a signature written, not asI think in a foreign language, but written in the characters of hislanguage by a foreign person, is not a signature. I have notbeen able to find it expressly provided that no language butEnglish can be admitted in any form in this Court. The ruleis undeniable; but I am not aware that it has ever been made soprecise as CMef Justice Bonser understood it to be. I find thatin the Civil Procedure Code it is provided in section 169 that theevidence of each witness shall be taken down in the Englishlanguage by the Judge. Section 186 provides that the judgment •shall Be written in English, and section 758 that the petition ofappeal shall be written in the English language. In my. opinionthese provisions would have been unnecessary if the strict viewof the Chief Justice were invariable. The fact that they havebeen made tends to indicate that the rule is not so absolute assupposed by the Chief Justice. For these reasons I think that the
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Monobbxff,
A.C.J.
Judge was wrong, and that, although it is desirable that processservers should sign their affirmation in English, a signature madein Sinhalese is not invalid'. I think that the order appealed fromshould be set aside on the footing that the Judge will considerthe application upon which the order wa6 made upon the meritsof the grounds by which it was supported.
Wendt, J.—
I agree in what has fallen from the Acting Chief Justice on thesubject of the case No. 6,802, both in its general application as adecision of a Full Bench of this Court' and also in particular asregards the substance of the decision. I do not think thatJustices Withers and Browne ought to be regarded as concurringin every point discussed or decided in the preceding judgmentof the Chief Justice, irrespective of whether it was one of thepoints necessary to be decided for the disposal of the appeal. Thecase was brought before this Court upon a petition of appeal,which merely raised the question of the validity and effect of asubstituted service of summons on the defendant, nothing beingsaid as to the proof of that service by the affidavit in question.But, certainly, that affidavit was attacked in argument, and: thedecision of this Court, as embodied in the judgment of ChiefJustice Bonser, proceeded on two grounds: first, that the affidavitwas s bad affidavit for several reasons, one of them being that itwas signed by an unattested mark; and secondly, that even if theaffidavit were a good one, the substituted service was ineffectual.In the result the defendant was let in to defend, and I cannotaccept the view that all the Judges concurring in that result werein favour of every reason put forward by the Chief Justice forholding that the affidavit was informal. Taking the point raisedby Bonser, C.J., I do not think that he was justified in drawing,from the fact of English being the language of the Court, theinference that every signature, to be regarded as such, upona process of Court or document used as evidence, must be inthe English language. I find that the opposite view was takenin England, where of course English is the language of the Court,in the case of Nathan v. Cohen (3 Dowling's Practice Cases,p. 370), which was a case of an affidavit signed: by the declarantin characters of some foreign language. Objection being takento this as evidence, Patteson, J., said:“It is not the English
character, but it is not a mark; and it purports from its posi-tion to be the signature of the person making the affidavit. Imust therefore presume that the person who made those letterswas able to read the affidavit, although the language in- which
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it was written was different from his own. ” It would appear 1802.that the jurat in that affidavit did not state, as the rules required JtUytt.in the case of a person ignorant of the English language, that the Wendt, J.affidavit had been interpreted to the declarant, and it was notsigned by the interpreter; and whereas Bonser, C.J., from thesignature of the signatory being in Sinhalese, concluded that thedeclarant was ignorant of the English language, the inference inthe case to which I have just referred: was that the declarantmust be presumed to have been able to read the language inwhich the affidavit was written. I think, therefore, that we are notobliged by the fact of English being the language of our courtsto hold that a signature in the Sinhalese language is a “ mark. ”
Coming to our Code, it does appear from certain sections in it(sections 159 and 438, for example) that the term " signature ” issometimes used to include a mark; but there is no such ambi-guity in section 489, inasmuch as, after speaking of the declarant"making his mark ” or “ writing his signature, ’’ the section goeson to provide that “ when a mark is made instead- of a signature ”certain formalities shall be observed. I think it clear from thedefinition in section 5 of the word " signed ’’ that the Codecontemplated marks ‘being made by persons unable to write only.
I think, therefore, that the order appealed from should .be set asidein so far as it is based- on the ground I have just dealt with, andthat the record should go back for idle defendant’s application tobe disposed of in due course.
In view of the fact that this ground was taken by the DistrictJudge of his own motion, and not by the respondent, I thinkthere should be ho costs of £$>peal.
Middleton, J.—
This is an appeal from an order of the District Judge of Colombo,which, so far as this Court is concerned, is, I understand, taken onlyas to the point whether a signature in a foreign language, affixedto an affidavit, is for the purposes of section 439 of the CivilProcedure Code to be deemed a mark.
It was submitted that this point had been conclusively decidedin a decision of the Collective Court, which was binding on us asa Collective Court.
The case in question was the case of the National Bank of Indiav. Fernando. It was an appeal against an order for substitutedservice on the defendant, and the judgment consequent thereonagainst defendant in his absence. The judgment of the SupremeCourt held that the so-called affidavit of service was not a goodaffidavit, because (1) the Fiscal’s signature could not have been
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Mh>di3toh,
J.
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flffiyflfj by the rubber stamp in bis presence, or section 440 wouldhave been complied with as to erasures and interlineations; (2)that the signature was a mark, and tbe provisions of section 439.not observed. Further, it was held that if it was a good affidavit,the order for substituted service, even if it ought to have beenmade, was not properly carried out.
The decision in the case really was that substituted serviceought not to have been allowed, but, if it might have been, thenthe affidavit witnessing such service was a bad one for the reasonsset out. In his judgment, Withers, J., entirely concurred, andBrowne, J., agreed.
The question then arises, whether the point as to a signaturebeing a mark was there directly in issue and decided. I conceivethe test to be applied would be almost identically that to be usedin a question or res judicata.
In the case of The National Bank of India v. Fernando, thequestion whether a signature was a mark was not directly in issue,and was not directly determined.
In my opinion the view expressed by Bonser, C.J., was oneincidental only to the validity of the affidavit in question. It wasput forward without the question having been duly consideredand determined as a matter in issue, and it is not clear that theJudges, who stated their concurrence in the real decision on theappeal which I have before specified, were necessarily in accordwith the Chief Justice in this particular reason for his objectionto the affidavit. They might have concurred generally in theresult without binding themselves to all the reasons. My mainreason, however, for holding that we are not bound by the judg-ment is that, so far as it relates to the point now before us, it wasan incidental expression of the Chief Justice’s opinion on a pointnot shown to be in issue, and not duly' heard and determinedby the Full Court. I think, therefore, that we are not concluded,as we might have been by a decision of the Collective Court,directly on the point.
To come to the point itself. I cannot conform to the opinion thata signature, written in a known language, can be deemed to be amark on the ground that it is illegible to persons unacquaintedwith that language. It is conceivable that a signature in theEnglish language may be so badly written as to be illegible to awell-educated person. I take it, it would still be no less thesignature of the person who wrote it, and could not be treated asa mark by the Justice of the Peace or Commissioner swearing thesignatory’s affidavit. I do not include in the meaning of theword “ signature, ” as used in the sections relating to affidavits in the
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Civil Procedure Code, the use of initials, which are said to be usedin some instances in Ceylon for the abbreviation of long andunpronounceable names. If initials were used, as they might be inthe case of a man not well understanding to write in the Englishlanguage, the Justice of the Peace would do well to treat .them asa mark. Section 489 provides for the case of a signature by aperson not able to write the English language, and enacts that thejurat shall then express that the signature was written in thepresence of the Justice of the Peace or Commissioner. If theaffidavit were properly attested', the jurat should say that so andso signed his name in the presence of the Justice'of the Peace orCommissioner,, and, if any doubt existed, the signature, if it wereone, would always be susceptible of translation by the CourtInterpreter. In the case before us, the affidavit in question maynot have been a good affidavit for other reasons than that it wassigned in Sinhalese, but its being signed in Sinhalese does not ofitself, to my mind, make it a bad one.
I agree with Wendt, J., as to costs.
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Middle torJ.