Affidavit Executed Before the Petition Was Signed.

 

Validity of an Affidavit Executed Before the Petition Was Signed.

 

The issue is whether a petition is rendered invalid merely because the supporting affidavit was affirmed, sworn or signed on a date earlier than the date on which the petition itself was signed.

Distilleries Company Ltd. v. Kariyawasam and Others, CA L.A. 163/2001, reported in [2001] 3 Sri L.R. 119:

Whether an affidavit may be affirmed anterior to the date on which the petition was subscribed and nevertheless “support” that petition.

1. Distilleries Company Ltd. v. Kariyawasam and Others

In Distilleries Company Ltd. v. Kariyawasam and Others, the Court of Appeal rejected the proposition that the chronological sequence alone necessarily invalidates the application.

The decision, as summarised in the attachment, proceeded on the basis that the function of the affidavit is to provide prima facie evidentiary support for the material facts contained in the petition. An affidavit affirmed before the petition was formally subscribed could therefore support the petition, provided that it genuinely supported the petition’s material factual allegations. A technical irregularity causing no actual prejudice was not regarded as sufficient to defeat the proceeding.

The principle emerging from Distilleries is therefore that:

The mere fact that the affidavit bears an earlier date than the petition does not, by itself, make the affidavit or petition invalid.

The controlling consideration is not simply which document was signed first, but whether the affidavit can truthfully and substantively be treated as supporting the petition ultimately presented to court.

2. Roylin Fernando v. W.A. Christian Gamini Fernando and Others

A materially different result was reached by the Supreme Court in Roylin Fernando v. W.A. Christian Gamini Fernando and Others, SC Appeal No. 18A/09.

 There, the affidavit was dated 20 June 2006, whereas the petition was dated in June 2008. The Supreme Court held that the two-year discrepancy was not a mere clerical error. An affidavit executed two years before the petition could not satisfy the mandatory requirement in section 757(1) of the Civil Procedure Code that the petition be supported by an affidavit. The appeal was accordingly dismissed.

The significance of Roylin Fernando is that an anterior affidavit is not automatically protected by describing the discrepancy as a technical defect. Where the interval is substantial, or where the circumstances demonstrate that the affidavit could not realistically have verified the petition later presented, the defect is substantive rather than technical.

 

3. Nagananda Kodithuwakku v. Chandana Sooriyabandara and Others

 

The same substantive approach appears in Nagananda Kodithuwakku v. Chandana Sooriyabandara and Others, CA Writ 137/2022.

In that case, the supporting affidavit had been executed approximately one year before the petition. The Court of Appeal held that the affidavit was neither contemporaneous with nor capable of properly supporting the petition as required by Rule 3(1)(a) of the Court of Appeal (Appellate Procedure) Rules. The defect was treated as fatal. The application was dismissed both for procedural non-compliance and insufficiency of evidence.

Although Nagananda Kodithuwakku concerned Rule 3(1)(a) and the writ jurisdiction, rather than section 757(1) of the Civil Procedure Code, it reinforces the underlying requirement that an affidavit must meaningfully verify and support the petition actually filed. An affidavit prepared long before the petition cannot perform that function merely because it is subsequently attached to the petition.

Reconciliation of the Authorities

The cases may be reconciled as follows:

 There is no inflexible rule that an affidavit must always be signed after the petition.

Distilleries establishes that anterior execution, considered by itself, is not necessarily fatal.

The affidavit must nevertheless support the petition actually presented.

It must verify the petition’s material facts and cannot be treated as supporting allegations, amendments or events that were not before the deponent when the affidavit was executed.

The length and circumstances of the interval are material.

In Roylin Fernando, a two-year interval was held to be substantive and not clerical. In Nagananda Kodithuwakku, an interval of approximately one year resulted in the affidavit being regarded as non-contemporaneous and incapable of satisfying the applicable procedural rule.

A minor difference in dates may remain a technical irregularity.

Where the affidavit and petition were prepared as part of the same transaction, contain corresponding material facts, and there is no suggestion that the petition was subsequently altered, expanded or materially changed, Distilleries supports the validity of the proceeding.

A substantial or unexplained difference is likely to be fatal.

Where the petition was prepared or finalised materially later, contains subsequent facts, or differs from what the deponent could have verified when executing the affidavit, the reasoning in Roylin Fernando and Nagananda Kodithuwakku applies.

 Application to the Particular Circumstances

The validity cannot therefore be decided merely by comparing the two dates. The following matters must be examined from the documents themselves: the precise interval between the execution of the affidavit and the signing of the petition;

whether both documents contain corresponding factual averments;

whether the affidavit expressly adopts or verifies the paragraphs of the petition;

whether the petition was materially amended after the affidavit was executed;

whether any event referred to in the petition occurred after the affidavit date; and

whether any credible explanation is available for the difference in dates.

Where the affidavit was executed only shortly before the petition, and both were demonstrably prepared together without any subsequent material alteration, the objection would be more properly characterised as a technical objection under the reasoning in Distilleries.

 

Conversely, where the affidavit substantially predates the petition, or where it is impossible to conclude that the deponent verified the petition in the form ultimately filed, the affidavit does not legally “support” the petition. The defect would then be substantive and potentially fatal under Roylin Fernando and Nagananda Kodithuwakku.

 

Conclusion

On the authorities contained in the attachment, an affidavit is not invalid solely because it was signed or affirmed before the petition was signed. However, its validity depends upon whether it genuinely and contemporaneously supports the petition ultimately filed.

The safest formulation of the governing principle:

An earlier date on the affidavit is not, by itself, fatal; but the affidavit must have been executed with reference to, and must substantively verify, the petition in the form presented to court. A substantial or unexplained interval, or a later material alteration of the petition, prevents the affidavit from performing that supporting function and renders the application vulnerable to dismissal.