050-NLR-NLR-V-17-TISSERA-v.-ANNAIYA.pdf
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Present : Pereira J.
TISSERA v. ANNAIYA.
402——G t E. Ghilaw, 15,586.
Decisory oath—Oath should he recorded in writing at the time the oathis taken—Oaths Ordinance, s. 9.
Section 9 o( the Oaths Ordinance, 1895, enacts that the ■ personauthorized to administer a decisory oath should “ take and . recordin writing the evidence o£ the person to be sworn.*’
Held, that when the evidence given by the person is incorporatedinto, the- oath, the terms of the oath should be taken down, :andrecorded at the time and place the oath is made.
fjlHE facts appear from the judgment.
The evidence of the interpreter was as follows: —
B. de Silva, Court Interpreter, sworn.—I proceeded to the church.Parties were present. The oath was duly taken as challenged, at, thealtar, which .is the usual way of swearing. .1 recorded hia oath' audproduced it (marked X).
Cross-examined.—I .wrote the statement X .after returning to 'Court.Defendant wanted plaintiff to • swallow something which the sacristanhad in bis hand. Plaintiff did not consent to do so.
Re-examined.—It was defendant who wanted this, not the * sacristan.I administer oaths regularly. I never heard of such a formality. Theoath was taken at 6 a.m. 1 recorded it at 11. I had no ink at..thechurch.
– The report of the interpreter was in these terms r—
X.—I, Michael Tissera, swear on Xotapitiya church* that the- fullamount of the note has not been paid by defendant.
IMS.
^Michael Tissera, Plaintiff.
The oath was taken in my presence at the Kotapitiya church byplacing his hands on the altar.
3—9—13.B. de Silva, Interpreter.
J. S. Jayewardene, for the defendant, appellant.—The oath wasnot recorded in writing at the time it was taken. It was held inDharmasena v, Sudumana et al. 1 that the failure of the personappointed to administer the oath to take and record in writing theevidence of the person then and there was a fatal irregularity.
Balasinghamt for the plaintiff, respondent.—In Segu Mohamadu v.Kadiravail Gangany2 the Full Bench did not consider the failure torecord the words 6wom to at the time of swearing a fatal irregularity.
_1 (1912) 15 N.L.R. 577.1 (1908) 11 N. L. B• 277.
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The Judges held that the proper thing to ap was to record m wriuugat the time, but did not consider the irregularity fatal to the judge-ment. In Dharmasena v. Sudumana et al.1 Chief Justice Lasoelles•said : “ I am by no means satisfied that justice has been done inthis case, apart from any technical question. ” In the present caseit was not challenged at any stage of the case that the plaintiff sworeas reported. The only complaint was that the oath was not properlytaken, as the plaintiff did not swallow holy water. The interpretersays that it is not usual to swallow holy water. It is not open tothe plaintiff to get the judgment set aside by pointing out a techni-cal irregularity without showing that he was prejudiced thereby.Judges often embody admissions of parties in the' judgmentswithout recording it at the time they were made. A party shouldnot be allowed to ask that the judgment be set aside withoutshowing that he did not make the admission.
Cur. adv. vult.
/
November 12, 1913. Pereira J.—
In this case the defendant agreed to be bound by a certain oathto be* taken by the plaintiff at the Kofeapitiya church in terms, ofsection 9 of the Oaths Ordinance, 1895, and the Court Inter-preter was apparently authorized to administer the oath.. Undersub-section (2) of section 9 of the Ordinance it is necessary that theperson authorized to administer the oath should “ take and recordin1 writing the evidence of the person to be sworn. ” In the presentcase it so happened that the evidence to be given by the plaintiffwas incorporated into the oath to be taken by him. It wa6 thereforenecessary that the person authorized to administer the oath shouldtake down and record the terms of the oath in the same way thatevidence would be taken and recorded. Now, the only way to“ take and record ” evidence is to record it as it emanates fromthe mouth of the witness. The recording at one place of a statementmade by a witness at a different place and time, from the merememory of thc^pttrsQn recording, can hardly-be said to be to “ takeand recordevidence, although perhaps there is no objection toa bare oath-Being taken at one place and the evidence given underthe sanction^ thereof being taken and recorded at another place andtime. Ih {jhe present case the oath into which, as observed above,the evidence to be given by the witness was incorporated wastaken in the church at 6 a.m. There was then no contemporaneousrecord made. • The evidence embodied in the oath was recorded bythe Court Interpreter from memory at 11 a.m. in Court. In myopinion this was by no means a compliance with the requirementsof section 9 of the Ordinance. I think that the*'dicta of the Judgesin the cases cited in the course of the argument 'of the appeal(Dharmasena v: Sudumana,* Mohamadu v. Kadiravail2) support thisview…
'(1912) 15N.L.R. 377.
* (1909) 11 N. L. R. 277.
ISIS*
Annoipa
191*,
Pbbkiba J.
Tiaaera v.Annaiya
I set aside the order appealed from and remit the case to theCourt below for further hearing and adjudication.
The appellant is entitled to his costs in appeal. Costs in theCourt below will abide the result.
Set aside.