AFFIDAVIT- JURAT-VALIDITY
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C.A. Writ No. 85 / 2013
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-Vs-
1. Chief Minister,
Sabaragamuwa Provincial Council,
2. Secretary,
Sabaragamuwa Provincial Council,
3. Minister of Trade,
4. Divisional Secretary – Aranayake,
5. Provincial Land Commissioner,
Ratnapura.
6. Commissioner General of Lands,
Land Commissioner’s Department,
7. Hon. Attorney General,
Respondents
BEFORE :Vijith K. Malalgoda, P.C.
J, (P/CA) and A.H.M.D. Nawaz, J.
COUNSEL : Edward Samarasekara for the
Petitioner.
Janak de Silva, D.S.G. with for the
Respondents.
Argued on : 18.12.2014
Written Submissions on : 12.02.2015
Decided on : 18.01.2016
A.H.M.D. NAWAZ, J,
The issue before court is
whether the 1st, 2nd, 4th, 5th, 6th
and 7th Respondents should be permitted to amend the affidavits of
the 4th and 5th Respondents in order to incorporate the
place of attestation that has been omitted in the jurats of the respective affidavits. The preliminary objection to
the maintainability of this application for judicial review arises in the
following manner.
The Petitioner, by filing
a counter affidavit dated 7th July 2014, raised the preliminary
objection, pinpointing the defects in the jurats
of the aforesaid two affidavits and has urged this Court to dismiss the
statement of objections filed on behalf of 1st to 7th Respondents.
The impugned jurats go as follows:-
“Jurat in the affidavit of the 4th
Respondent
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The foregoing affidavit having been duly read over and
explained by me to the within named Affirmant and he appearing to have
understood the contents therein, affirmed and placed his signature on this
30th day of January, 2014 at
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Affirmant
Before
me
Commissioner for oaths/
Justice of the Peace
Jurat in the affidavit of the 5th
Respondent
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The foregoing affidavit having been duly read over and
explained by me to the within named Affirmant and he appearing to have
understood the contents therein, affirmed and placed his signature on this
30th day of January, 2014 at
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Affirmant
Before
me
Commissioner for oaths/
Justice of the Peace”
As could be seen jurats in both affidavits do not contain
the name of the place where the affidavits were affirmed and signed. The
objections raised by the learned Counsel for the Petitioner is that the
statement of objections should be rejected for want of a valid affidavit, whilst
the learned Deputy Solicitor General has contended that he should be permitted
to amend the affidavits. It has to be observed that it is through a motion
dated 9th December 2014 that the Attorney-at-Law for the 1st,
2nd, 4th, 5th and 6th Respondents
(State Attorney) has moved in terms of Rule 3(8) of the Court of Appeal
(Appellate Procedure) Rules of 1990 seeking permission to amend the affidavits
of the 4th and 5th Respondents.
In support of the
argument that the application by the Attorney General to amend the affidavits
should be rejected, the Petitioner relies on other matters including the
alleged invalidity. The Petitioner contends that though the Petitioner
highlighted the defects in the affidavits through his counter-affidavit, it
took the State more than two months to move for an amendment to these two
affidavits. In other words there was delay on the part of the State Attorney to
move for an amendment to the two affidavits. As for this objection I observe
that when this motion was supported by the learned Deputy Solicitor General on
18th December 2014, the Court took this matter off the argument roll
and granted both counsel an opportunity to file written submissions on the
question whether amended affidavits could be filed in Court. Thus the primary
issue uppermost before Court was whether it was open to the Counsel for the Respondents
to remedy the defects in the affidavits as have been pointed by the Petitioner
in the counter-affidavit. No doubt the Respondents moved for the amendment
rather belatedly but this Court will bear in mind the need to keep the channels
of procedure open for the merits of the objections to be gone into and the all
important question disposed of-namely whether a deficiency in the jurat of an accompanying affidavit to a
statement of objections is curable or not.
The Petitioner also
alleges that the separate affidavits of the 4th and 5th
Respondents contain hearsay and such hearsay emerges through contradictory and
uncorroborated material contained in the affidavits. The Petitioner further
points out that although a joint statement of objections of the 1st,
2nd, 4th and 5th Respondents and a separate
statement of objections on behalf of the 6th Respondent have been
filed, supporting affidavits have been filed only by the 4th and 5th
Respondents independently and not with the consent or concurrence of the other
Respondents.
Hearsay in Affidavits
On the question of
hearsay I would observe that whether the evidence proffered by the affidavits
contains hearsay or not is a matter that requires to be judged at the hearing
of the petition and the question does not fall to be decided at this threshold
stage when the Petitioner cries foul of defects in the jurats of the two affidavits. The requirement that a person who
swears or affirms to the averments in a petition or a statement of objections
must do so from his own personal knowledge introduces direct evidence and thus
excludes hearsay as objections to reception of hearsay are usually premised on
its inherent unreliability for adjudicative purposes and therefore it cannot be
acted upon for testimonial trustworthiness. The requirement to adduce direct
evidence in affidavits and the exception to the requirement are found in Section
181 of the Civil Procedure Code which declares,
“Affidavits
shall be confined to the statement of such facts as the declarant is able of
his own knowledge and observation to testify to, except on interlocutory
applications, in which statement of his belief may be admitted, provided that
reasonable grounds for such belief are set forth in the affidavit”.[1]
What has to be
ascertained through an affidavit was echoed by S.N.Silva J (as he then was) in Damayanthi
Abeywardana v Hemalatha Abewardana[2]
as follows:
“Learned
District Judge has observed that the affidavit confirms the averments in the
petition. Indeed, on a comparison it is revealed that the affidavit is a
verbatim repetition of the averments of the petition. However, the correct test
is not to consider whether one confirms the other upon a comparison of this
nature. Repetition of the averments of a petition in the affidavit is an evil
that we often note in affidavits that are filed. Learned Judge has regrettably
seen a virtue in this evil. The correct
test is to ascertain whether the affidavit contains direct evidence, that is,
statements of such facts as the declarant is able on his own knowledge and
observation to testify to and whether this evidence together with the
documentary evidence furnishes prima facie proof of the matters of fact set out
or alleged in the petition”
Be that as it may, these
are questions that this Court need not address its mind right now as judicial review
has not yet commenced and the material in the two affidavits vis-à-vis the
counter affidavit tendered by the Petitioner is yet to be tested. So we would
discountenance any argument based on hearsay at this stage. In any event one
cannot lose sight of Rajapakse v Gunasekera[3]
which stated that hearsay evidence contained in the affidavit supporting
corrupt or illegal practices filed with the petition under the Ceylon
(Parliamentary Elections) Order in Council (as amended by Act No.9 of 1970)
does not vitiate the election petition. So in some cases it is clear that even
the existence of hearsay in affidavits has been condoned.
Should all Respondents file affidavits?
I also make short shrift
of the argument that the 4th and 5th Respondents cannot
file affidavits when there are one statement of objections filed on behalf of
the 1st, 2nd, 4th and 5th Respondents
and another on behalf of the 6th Respondent. I hold that the law is
to the contrary.
Where the law requires
that an “affidavit in support” be filed together with the petition,[4]
or that a supporting affidavit be filed together with a statement of objections
or a counter affidavit,[5]
or that a statement of objections be supported by an affidavit,[6]
it is not imperative that the necessary affidavit has to emanate from all Respondents.
It is sufficient if the necessary affidavit or affidavits flow from one or more
persons who can swear or affirm to the averments in the statement of objections
from his or their own personal knowledge, and it is not necessary that all Respondents
should have filed their own affidavits. Neither does the affidavit filed need
an express concurrence from a Respondent who has not filed an affidavit.
So there need not be as
many affidavits as there are Respondents and a particular Respondent is not
under a duty to concur expressly in the affidavit of another Respondent though
no doubt the Court would look for consistency inter se in the affidavits
proffered to contradict or controvert the affidavit of the Petitioner.
The court now proceeds to
examine the objection that the affidavits filed by the 4th and 5th
Respondents should be rejected by Court as they do not indicate the place
of affirmation.
Whose obligation is it to formulate a proper jurat?
Section 12(3) of the
Oaths and Affirmation Ordinance reads as follows:-
“Every
Commissioner before whom any oath or affirmation is administered, or before
whom any affidavit is taken under this Ordinance, shall state truly in the
jurat or attestation at what place and on what date the same was administered
or taken, and shall initial all alterations, erasures, and interlineations
appearing on the face thereof and made before the same was so administered or
taken”.
It is apparent that the
obligation to state the place of affirmation in the jurat has been cast upon the Commissioner for Oaths. Such
obligation was alluded to by M.D.H.Fernando J in Roshana Michael v Saleh, OIC
Crimes, Police Station, Narahenpita[7]when
the learned judge stated-
“....As for
jurat, it is true that it is the person administering the oath or affirmation
who must state in the jurat that the oath or affirmation was administered in
his presence, and the place and date….”
Learned Deputy Solicitor
General has cited Kanagasabai v Kirupamorthy[8]
wherein Basnayake C.J declared to the effect that when affidavits are filed in
the course of civil proceedings it is the duty of Judges, Justices of the Peace
and Proctors to see that the rules governing the affidavits found in Sections
181, 437 and etc., of the Civil Procedure Code are complied with. As to the
absence of the date from the affidavit in the case, Basnayake C.J. commented,
“…..the
respondent’s affidavit is undated. It is the duty of the Justice of the Peace
before whom an affidavit is sworn to see that the jurat is properly made.”[9]
If the duty to
incorporate the date and place of attestation in the jurat of an affidavit is cast upon the Justice of the Peace or the
Commissioner for Oaths, it is his obligation and obligation alone and the
dereliction of that duty cannot be visited upon the person taking the oath or
making the affirmation namely the affiant. Therefore remissness on the part of
a Justice of the Peace or the Commissioner for Oaths in not making sure to
insert the date and place of attestation in the jurat of an affidavit cannot be a ground for penalizing the affiant
because his involvement is minimalist in the formulation of the jurat. Such remissness on the part of
the Justice of the Peace or a Commissioner for Oaths to specify the place of
attestation is his non-compliance with a statutory duty placed upon him in
terms of Section 12(3) of the Oaths and Affirmation Ordinance and a breach of
the statutory duty on the part of the Justice of the Peace or the Commissioner
for Oaths cannot deprive the Respondents of their right to be heard on their
statement of objections. In the circumstances it is iniquitous to render the
defective affidavit liable to be rejected in
limine, as the evidence which has been tendered to Court by way of the
affidavit remains untested and uncontroverted.
The Court of Appeal
precedent cited by the Petitioner in his written submissions-Facy
v Sanoon and Others[10]
which has since been reversed by the Supreme Court is in my view not
germane to the instant application before us. This is a case in which the
affidavit in question commenced with a statement that the party who signed it
stated at the beginning, “being a Muslim, do hereby make oath and swear as
follows”, but the jurat clause at the
end of the affidavit stated that such party “affirmed” to the contents. The
contention that was advanced before the Court of Appeal was that a party who
signed the affidavit “having opted to take oath, cannot later ‘affirm’ to the
affidavit before the Justice of the Peace or the Commissioner for Oaths.”
Udalagama J (with two other
judges agreeing with him) accepted this contention and rejected the affidavit
stating that it was fatally defective.[11]
It was in those circumstances of his holding that Udalagama J opined as follows
in that case:-
“…I would also
hold as held repeatedly by this Court that a faulty Affidavit could not be
considered a mere technicality but in fact fatal to the entire application and
as also held by the Court on numerous occasions a defective Affidavit is bad in
law and warrants rejection.”
I hasten to point out
that this dictum, albeit all embracing, does not hold true in light of the
reversal of this case in appeal by the Supreme Court - vide Facy
v Sanoon.[12]
The contention that “if a
party signed the affidavit “having opted to take oath”, it was not open for him
to affirm to the affidavit before the Justice of the Peace or the Commissioner
for Oaths”, was rejected by the Supreme Court which drew in aid Section 9 of
the Oaths and Affirmation Ordinance for its conclusions.
Section 9 of the Oaths
and Affirmation Ordinance which is a curative provision goes as follows:-
“No omission to
take any oath or make any affirmation, no substitution of any one for any other
of them, and no irregularity whatever in the form in which any one of them is
administered, shall invalidate any
proceeding or render inadmissible
any evidence whatever in or in respect of which such omission, substitution, or
irregularity took place, or shall affect the obligation of a witness to state
the truth.”
So the Supreme Court held
that the evidence proffered by an affidavit can be scrutinized by court notwithstanding
any defect or irregularity therein in the administration of oath by the Justice
of the Peace or Commissioner for Oaths. The affiant is not penalized and shut
out of courts.
The observations of Saleem
Marsoof J in relation to Section 9 of the Oaths and Affirmation Ordinance are
pertinent,
“This [section 9
of the Oaths Ordinance] is a salutary provision which was intended to remedy
the very malady that has occurred in this case, and clearly covers a situation
in which there is a substitution in the jurat of an affirmation for an oath.
This is not a case like Clifford Ratwatte v. Thilanga Sumathipalaor Jeganathan
v. Safyath…in which there was material to show that neither an oath nor an
affirmation was in fact administered by the Justice of the Peace…”
The learned Judge made
the point that in Facy v Sanoon it was not contended by counsel that the contents
of the affidavit in question showed that the deponent/affirmant was not present
before, or that the contents of the affidavit were not read and explained to
the deponent/affirmant by, the person who administered the oath/affirmation. Even
in this case it is not even suggested by the Petitioner in its counter-affidavit
that the respective affiants in the two affidavits were not present before, or
that the contents of the affidavit were not read and explained to the
deponent/affirmant by, the person who administered the oath/affirmation. The
gravamen of the complaint made in the instant case before us is that as a
result of the absence of the place of attestation in the jurat there is no affidavit before us.
Substance over Form
The liberality shown by our Supreme Court in regard to defective
affidavits is a tendency to look at substance rather than form. In fact Facy
v Sanoon manifests the triumph of substance over form which is
discernible in cases such as De Silva v L.B.Finance Ltd[13]
wherein the fact of affirmation was missing in the jurat. Whilst the Court of Appeal upheld the preliminary objection
raised on the invalidity of the affidavit in the case, the Supreme Court
accepted the impugned affidavit in appeal. I must however state that the place
of attestation was mentioned in the jurat
of that affidavit but the point of objection was that the affidavit was
invalid for the reason that the jurat did
not contain the fact of affirmation. The Court of Appeal upheld the objection.
But when the matter went up in appeal to the Supreme Court, the submission that
the affidavit was invalid because there was an absence of the word “affirmed”
before the words “duly read over” in the jurat,
was rejected. G.P.S. de Silva C.J (with Ramanathan and Wijetunga JJ.
concurring) decided to accept the affidavit having regard to the substance of
the other parts of the affidavit.
The welcome trend
discernible in the approach of our Supreme Court towards defective affidavits
has been one of facilitating the course of justice to be dispensed because the
fundamental obligation of an affiant in an affidavit is to tell the truth and
Courts would not be able to ascertain the veracity of the rival versions and
discharge its dispensation if they were to be trammeled by technicalities. This
gladsome approach of the Supreme Court is also reflected in a three Bench
decision of the Court of Appeal where the propriety of an affidavit attested by
a Justice of the Peace who was licensed to practice in a different judicial
district other than the district where he attested the affidavit came up for
consideration.
In the case of Ceylon Workers Congress v Sathasivam,[14] Wijesurendra
Lokuge, a Justice of the Peace, who was appointed for the judicial district of
Homagama attested an affidavit within the Judicial District of Colombo. The
Court of Appeal held that the affidavit attested by him within the judicial
District of Colombo had no validity in law. A reconsideration of this issue
came up before a Divisional Bench of the Court of Appeal in Senanayake
v Commissioner of National Housing and Others,[15]
where the Petitioner had filed in the Court of Appeal, an affidavit affirmed to
before a Justice of the Peace appointed for the Judicial District of Homagama; and
a preliminary objection was raised by the Respondent as to its validity; The
Divisional Bench of the Court of Appeal held that;
(i) In Applications for prerogative
relief - the Court Appeal enjoys a supervisory jurisdiction.
(ii) Court should not non-suit a party
where the non-compliance with Rules takes place due to no fault of the party.
(iii) Strict or absolute compliance with a
Rule is not essential; it is sufficient if there is compliance which is
substantial, this being judged in the light of the object and purpose of these
Rules. It is not to be mechanically applied.
Ceylon Workers Congress
v Sathasivam was
not followed by the three Bench and Saleem Marsoof J (P/CA), expressed the
view-
“I am of the view that the Court of Appeal (Appellate Procedure) Rules 1990
have been formulated to facilitate the judicial process and with a view of
achieving justice rather than injustice” (sic).
Once again recourse to
substance of the affidavit was facilitated for ascertainment of truth - a trend
which the Supreme Court has demonstrated. So this Court would adopt the same
approach towards the defective affidavits before us.
No illegality or nullity in the affidavits other than an
irregularity
I take the view that the
absence of the place of attestation in the two impugned affidavits does not
render them null and void, Nor are they illegal, No doubt jurats have been formulated by the Commissioner for Oaths without
following the statutory rule in Section 12(3) of the Oaths and Affirmation
Ordinance. To the extent of that non compliance the two affidavits are
defective but they have by no stretch of imagination become null and void or
illegal. The oversight or negligence of the Commissioner for Oaths if one were
pitch it so high in not inserting the place of attestation cannot render the
rest of the affidavits illegal or null and void. A defective jurat formulated by one person cannot go
to contaminate the evidence which is declared to be from personal knowledge
indicating the existence of direct evidence. Moreover the evidence contained in
the two affidavits has been controverted by a counter-affidavit by the Petitioner
who has then invited Court to ascertain the truth as to the issue before Court.
So the parties must be heard by court in its supervisory jurisdiction. That is
how due process would be best served.
This Court does not find
a scintilla of illegality in any of the provisions of the Oaths and Affirmation
Ordinance if a reference to the place of attestation is absent from the jurat. There is a positive duty on the
part of the Justice of the Peace or the Commissioner for Oaths to include it in
the jurat but the failure to do so
has not been declared an illegality or nullity anywhere in the Oaths and
Affirmation Ordinance of such pristine antiquity. So we would desist from
drawing any such implication in the absence of express stipulation and the
jurisprudence of the Supreme Court has not spelled out such an eventuality.
A defective affidavit without reference to a place of
affirmation is only an irregularity
If at all there would
remain on the affidavit a defective jurat
which at the most is an irregularity and not an illegality. A defective jurat without a mention of the place of
attestation therein is an irregularity but not an illegality. We are fortified
by Indian authorities which declare such a jurat
to be an irregularity. Mulla on the Code of Civil Procedure[16]
cites the precedent of Mehar Singh and Others v Mahendra Singh[17] which holds-
“A defect in a verification is only an irregularity and not fatal. It is
no ground in rejecting the affidavit.....”[18]
The
verification of the affidavit in Indian case had been signed without specifying
the date and place of the execution of the affidavit.
Thus
this Court holds that the absence of the place of affirmation from the jurat is not an incurable defect. We would draw in aid Rule 3(8) of the
Court of Appeal (Appellate Procedure) Rules 1990 which permits an amendment to
cure a defect in an affidavit. There is judicial permission which has to be
obtained for the purpose of amending pleadings which would include remedying
the defect in an affidavit. The Court of Appeal (Appellate Procedure) Rules
1990 has been framed with a view to
remedying the very situation that this Court is confronted with-the
regularizing the reception of evidence after having remedied an irregularity.
We hold that the application for amendment has been properly made and the Court
allows the Respondents to amend the two affidavits only to the extent of
including the place of affirmation in the respective jurats. In view of this holding for the above reasons we overrule
the preliminary objections urged by the Petitioner.
JUDGE OF THE COURT OF
APPEAL
Vijith K.
Malalgoda, P.C. J. (P/CA)
I agree
PRESIDENT
OF THE COURT OF APPEAL
[1]
See identical requirements in Order 19, Rule 3 of the Indian Code of Civil
Procedure
[2]1993
I1) 272 at page 281
[3]
(1984) 2 Sri.LR 1 at 15
[4]
Court of Appeal (Appellate Procedure) Rules, 1990, Rule 3(1) (a)
[5]
Court of Appeal (Appellate Procedure) Rules, 1990, Rule 3 (5)
[6]
Court of Appeal (Appellate Procedure) Rules, 1990, Rule 3 (7)
[7]
(2002) 1 Sri.LR 345 at 356
[8] 62 N.L.R 54
[9]Ibid p 58-9
[10]
(2003) 3 Sri.LR 8
[11]
Ibid at p 11
[12]
(2006) BLR 58
[13]
1993 (1) Sri.LR 371
[14]No. C.A.L.A. 86/2002 - CA Minutes of 16.10.2002
[15]2005 (1) Sri L.R. 182
[16]
Vide Mulla on the Code of Civil
Procedure 17th Edition Volume 2 at p 857
[17]
AIR 1987 Delhi 300
[18]
Ibid at p 302.
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