033-SLLR-SLLR-2004-V-3-YOGARATNAM-v.-NAHEEM-AND-OTHERS.pdf
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Sri Lanka Law Reports
[2004] 3 Sri L.R
YOGARATNAMv
NAHEEM AND OTHERSCOURT OF APPEALGAMINI AMARATUNGA.JCALA 92/2003DC KANDY 14958/PAUGUST 26, 2003SEPTEMBER 25, 2003OCTOBER 2, 2003
Affidavit – Validity – Attested by a Justice of Peace who has no authority toattest affidavits within the Judicial District of Colombo
Held (1) De facto status held out to the public by a Justice of Peace is notsufficient to confer validity to an affidavit, which that Justice ofPeace has in law no authority to attest.
Gamini Amaratunga. J:
‘There is no proper valid affidavit supporting the averments set out in theleave to appeal application”.
APPLICATION for leave to appeal from an order of the district Court of Kandy.
CA
Yogaratnam v Naheem and others
(Gamini Amaratunga, J.)
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Cases referred to:-
Ceylon Workers Congress v S. Sathasivan and another- CALA 86/2002-CAM 16.10.2002
Foreign Employment Bureau of Sri Lanka v Suraj Dandeniya – CALA324/2003 – CAM 12.01.2004
L.C. Seneviratne PC with Rani/ Prematiieke for the petitioner.
Gamini Marapana PC with Reza Muzni and Navin Marapana for 1stdefendant-respondent.
Cur.adv.vult.
March 3, 2004
GAMINI AMARATUNGA, J.This is an application for leave to appeal against the order of the 01learned District Judge of Kandy refusing to grant an interiminjunction sought by the plaintiff-petitioner in the course of apartition action. At the stage of the inquiry relating to leave toappeal the learned President’s Counsel for the 1st defendant-respondent raised a preliminary objection in limine to the validity ofthe leave to appeal application on the ground that the affidavit filedalong with the leave to appeal application in support of theaverments set out therein is not a proper affidavit and thataccordingly there is no proper leave to appeal application beforeCourt. The basis upon which the learned President’s counsel 10challenged the validity of the petitioner’s affidavit is that it has beenattested by one Wijesurendra Lokuge who has no authority to attestan affidavit within the Judicial District of Colombo.
In support of this contention, the learned President’s Counselcited the case of Ceylon Workers Congress v. S. Sathasivam andanotherJ1) In that case objection was taken to the validity of anaffidavit, which was relevant to that application, attested byWijesurendra Lokuge in Colombo, on the basis that he was aJustice of the Peace appointed for the Judicial District ofHomagama and accordingly the said Wijesurendra Lokuge had no 20authority to attest an affidavit within the Judicial District of Colombo.
The Gazette Notification showing the appointment of WijesurendraLokuge as a Justice of the Peace for the Judical District ofHomagama was produced before this Court.
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Balapatabendi, J. for the reasons set out in his judgment, (withAmaratunga, J. agreeing) held that an affidavit attested byWijesurendra Lokuge, Justice of the Peace within the JudicialDistrict of Colombo had no validity in law.
The affidavit filed in this case in support of the present leave toappeal application has been attested by Wijesurendra Lokuge, whoaccording to the decision of this Court in C.A.L.A. Application86/2002 (supra) had no authority to attest an affidavit in the JudicialDistrict of Colombo, The affidavit, which is challenged in theseproceedings has been attested in Colombo on 25/3/2003.
The learned President’s Counsel for the plaintiff-petitioner in thewritten submissions filed has contended that when Justices of thePeace display their name boards proclaiming that they are Justicesof the Peace, the affirments who wish to have their affidavitsattested have no way of checking whether a particular Justice ofthe Peace is in fact a Justice of the Peace and therefore an affidavitattested before a Justice of the Peace, who held out to the publicthat he has authority to function as a Justice of the Peace in aparticular locality, should be accepted as a valid affidavit. In short,the argument of the learned President’s Counsel is that the de factostatus held out to the public by the so called Justice of the Peaceis sufficient to give validity to the affidavit even though that Justiceof the Peace was not de jure a Justice of the Peace for thatparticular locality.
With great respect, I am unable to agree with this line ofargument. If a person, who is in fact is not a Registrar of Marriages,displays a signboard indicating that he is a Registrar of Marriagesand an innocent couple, in the honest belief that such person hasthe authority to register a marriage, get their marriage registeredbefore him, is such marriage valid in law? The obvious answer is inthe negative. Accordingly I am not persuaded to accept theargument that the de facto status of a Justice of the Peace issufficient to confer validity to an affidavit, when that Justice of thePeace has in law no authority to attest such affidavit.
The only answer to the learned Presidents Counsel’s (for the 1 stdefendant-respondent) submission that Wijesurendra Lokuge hadno authority to attest an affidavit in the Judicial District of Colombo
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Yogaratnam v Naheem and others
(Gamini Amaratunga, J.)
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is the Gazette Notification which shows that he is appointed tofunction as a Justice of the Peace for All Island or for the JudicialDistrict of Colombo.
The petitioner has not produced any such Gazette Notificationbefore this Court. Therefore in order to ensure the consistency ofthe decisions of this Court, I with approval follow the ruling given bythis Court in C.A.L.A. Application 86/2002 (supra) to the effect thatWijesurendra Lokuge has no authority in law to attest an affidavitwithin the Judicial District of Colombo. In the result I uphold the 70preliminary objection raised by the learned President’s Counsel forthe 1st defendant-respondent and hold that there was no properaffidavit presented to this Court supporting the averments in theleave to appeal application of the plaintiff-petitioner.
This Court in the case of Foreign Employment Bureau of SriLanka v Suraj DandeniyaS2) has decided that an affidavitsupporting the averments set out in a leave to appeal applicationhas to be filed within the fourteen days stipulated by law for thefiling of a leave to appeal application. In the present case, after Iruled out the plaintiff-petitioner’s affidavit dated 25th March 2003, sopurportedly attested by Wijesurendra Lokuge, there is no validaffidavit supporting the averments set out in the leave to appealapplication. In the result there is no proper leave to appealapplication before this Court. Accordingly the purported leave toappeal application is hereby rejected and dismissed without costs.
Application dismissed.