DEFECTIVE AFFIDAVITS.

DECIDED JUDGMENTS ON DEFECTIVE AFFIDAVITS.

Duncan Abeynayaka – LLB, Attorney At Law

 

OATHS AND AFFIRMATIONS ORDINANCE NO. 9 OF 1895

CIVIL PROCEDURE CODE SEC 181, 437 ETC..

 

01. RUSTOMJEE V. KHAN 18 NLR 120

PEREIRA J.

Under the Oaths Ordinance, 1895, it is open to a non-Christian who believed in God to swear rather than affirm.

On the petition filed the District Judge made an interlocutory order in terms of sub-section (b) of section 377 of the Civil Procedure Code. The respondent filed two affidavits in terms of section 384. One of these affidavits the District Judge rejected, because the deponent, a Parsee gentleman, and presumably a Zoroastrian, preferred to swear instead of affirming. Whatever other reasons there may be for rejecting this affidavit:, the reason given by the District Judge appears to me to be untenable. He says: " The word ' sworn ' would seem only to be appropriate to the case of an oath by a Christian. "I do not agree with him here. While the old Ordinance, No. 8 of 1842, made it compulsory on witnesses who were non-Christians to make affirmations, the new Ordinance (the Oaths Ordinance, 1895) made it optional with them to do so. The primary provision of the new Ordinance is that all witnesses shall make oaths. It then enacts that a witness who. being a non Christian, is a Buddhist, Hindu, or Muhammadan, or of some other religion according to which oaths are not of binding force, " may," instead of making an oath, make an affirmation. To swear is no more than to assert, calling God to witness, or invoking His help . to the deponent in the matter in connection with which the oath is taken, and it is open to any person, be he Hindu, Muhammadan or Zoroastrian who believes in God to claim to be sworn (rather than to affirm) in such form and with such formalities as may be approved by the Court.

 

02. KANAGASABAI V. KIRUPAMOORTHY 62 NLR 54

October 30, 1959.

BASNAYAKE , C.J.

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 affidavits in sections 181, 437, &c., of the Civil Procedure Code are complied with.

It is the duty of the Justice of the Peace before whom an affidavit is sworn to see that the jurat  is properly made. It reads : “ Affirmed to the truth and correctness hereof and signed at . . . . this . . . . day of August 1958. ” This is not the only defect in this affidavit. It violates the rule governing affidavits in section 181 of the Civil Procedure Code. That section provides :

“ 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 be set forth in the affidavit. ”                    

 

03. DAMAYANTHI ABEYWARDANA V HEMALATHA ABEWARDANA 1993 1 SLR 272

March 19, 1993.

S. N. SILVA, J.

Section 376 of the Civil Procedure Code provides that a petition filed by way of summary procedure should be supported by affidavits and other documentary evidence necessary to furnish prima facie proof of the material facts set out or alleged in the petition. In regard to a person who may depose to an affidavit and its contents, reference should be made to sections 437 and 181 of the Civil Procedure Code. Section 437 provides that whenever evidence on affidavit is required for production in any application or action of summary procedure, whether already instituted or about to be instituted, affidavits or written statements of facts conforming to the provisions of section 181 may be sworn or affirmed to by the person professing to make the statement embodied in the affidavit, before any court of Justice of the Peace or Commissioner of Oaths within the local limits of whose jurisdiction he is at the time residing.

The rule in section 181 confines an affidavit to a statement of such facts as the declarant is able of his own knowledge and observation to testify to and is intended to restrict the contents of affidavits to direct evidence as is prescribed in section 60 of the Evidence Ordinance. By necessary implication it excludes hearsay from such affidavits. The only exception is that in interlocutory applications a statement of what is believed, as to the relevant facts, may be included. This exception is subject to a proviso that reasonable grounds for such belief should also be set forth in the affidavit.

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.

 

04. RAJAPAKSE V GUNASEKERA 1984 2 SRI.LR 1

May 16, 1984.

SHARVANANDA, J.

The affidavit which the petitioner filed complies in form with the requirements of section 80B (d) of the Order in Council and is bona fide and not fraudulent or dishonest and so long as this is so the petition cannot and should not be dismissed or rejected in limine on the ground of incorrect or erroneous averments in the affidavit filed in support of the allegation of corrupt or Illegal practice. The Election Judge enters on the exercise of his jurisdiction on the basis of the averments in the election petition and where corrupt or illegal practice is alleged on the footing of the allegations in the petition supported by an affidavit which on the face of it conforms to the law. Hence the objection to the affidavit was rightly overruled.

 

05. DE SILVA AND OTHERS V. L.B. FINANCE LTD. (1993) 1 SLR 371

March 29, 1993.

G. P. S. DE SILVA, C. J.

Where the affidavit stated that deponents “affirm” and in the body of the affidavit the deponents described themselves as “affirmants” and in the jurat  there was a statement that the affidavit was read over and explained to the "within - named affirmants" there was a sufficient compliance with Section 438 CPC and the affidavit was valid despite the fact that the jurat  did not contain the fact of affirmation.

There was no reference to Form 75 in section 438 of the Civil Procedure Code. Only the marginal note in Form 75 makes reference to section 438. Compliance with Form 75 is not essential. The word “affirmant” is not infrequently found in affidavits filed in the courts. Its meaning is well known and accepted in this country even though it does not find a place in the Oxford Dictionary. It means “one who affirms” and it is so defined in Chambers Dictionary (1983 Ed.) Webster's Collegiate Dictionary (3rd Ed.) and Odhams Dictionary.

 

06. TRICO FREIGHTERS (PVT) LTD. V. YANG CIVIL ENGINEERING LANKA (PVT). LTD (2000) 2 SLR 136

July 13, 1999.

EDUSSURIYA, J. (P/CA)

Under Section 5 of the Oaths and Affirmations Ordinance as it stands today it is open to even a Buddhist, Hindu or a Muslim to make an oath because Section 5 sets out that such a person may instead of making oath make an affirmation.

Therefore it is my view that an affirmation is not bad in law merely because the deponent has made an affirmation without stating that he is a Buddhist, Hindu or Muslim. that the substitution of an oath for an affirmation (or vice versa) will not invalidate proceedings or shut out evidence. The fundamental obligation of a witness or the deponent is to tell the truth and the purpose of an oath or affirmation is to enforce that obligation.”

 

07. SOORIYA ENTERPRISES (INTERNATIONAL) LIMITED V. MICHAEL WHITE & COMPANY LIMITED [2002] 3 SRI L.R. 371

July 27, 1994

FERNANDO, J.

This view that "may" in section 5 is permissive, rather than mandatory, is supported by sections 7 and 9 of the Ordinance, which manifest a legislative intention to allow a witness or a deponent some choice as to whether he will swear or affirm; so much so that the substitution of an oath for an affirmation (or vice versa) will not invalidate proceedings or shut out evidence. The fundamental obligation of a witness or deponent is to tell the truth (section 10), and the purpose of an oath or affirmation is to reinforce that obligation.

The ratio decidendi of Rustomjee v. Khan,m that section 5 gave an option "to any person, be he Hindu, Muhammadan or Zoroastrian, who believes in God, to claim to be sworn (rather than to affirm)", has not been doubted for 80 years. The Oaths Ordinance was twice amended thereafter: in 1915, and again in 1954 when section 5 (a) was amended. If the judicial interpretation of section 5 was erroneous, the legislature had the opportunity to correct it. Because "much inconvenience arises from peculiar forms of oath being required to be administered to persons professing other than the Christian Religion", Ordinance No. 6 of 1841 required that such persons shall make an affirmation in the prescribed form. This provision was not considered satisfactory, and by Ordinance No. 3 of 1842 it was provided that:

" . . . every individual not professing the Christian faith, and every Quaker, Moravian or Jew, shall, on all occasions whatsoever where an oath is required . . . make a solemn affirmation . . . in lieu thereof."

The use of the word "may" in the Oaths Ordinance of 1895, instead of “shall",, must be regarded as deliberate; with the consequence, as Pereira, J. held, that non-Christians who believed in God would have the option to swear or to affirm.

 

08. MARK RAJANDRAN V. FIRST CAPITAL LTD. FORMERLY, COMMERCIAL CAPITAL LTD. ( 2010 ) 1 SLR 60

June 07th, 2010

DR. SHIRANI BANDARANAYAKE, ACTING, C. J.

held that the Petitioner has clearly averred that he is a Christian in the affidavit and making oath, in the jurat , the Petitioner had affirmed to the averments before the Justice of Peace. It is therefore, clearly evident that since the petitioner does not come within the category of religions referred to in Section 5 of the Oaths and Affirmation Ordinance, the exception would not be applicable to him to make an affirmation instead of the oath he should have made.

 

09. M. TUDOR DANISTER ANTHONY FERNANDO VS. RANKIRI HETTIARACHCHIGE FREDIE PERERA SC/HCCA/L.A CASE NO. 279/2012

17th December, 2014

PRIYANTHA JAYAWARDENA, PC., J,

it is pertinent to note that the jurat  states that ‘ foregoing having being read over by me to the within named deponent and he having appeared to appeared to understood same, affirmed and set his hand unto this on this 11th day of July, 2012 at Colombo. (emphasis added ).

In the affidavit filed along with the instant application, the jurat  expressly sets out the place and date on which the affidavit was signed. These are essential requirements of an affidavit. There is no dispute that the affidavit was signed before a Commissioner of Oaths and she had the authority to do so. What is essential in an affidavit is to state that the person who is stating the facts therein does so after taking an oath or affirmation as an affidavit is considered as evidence in law. Therefore, it is necessary to show that the person who swears or affirms to the facts stated in the affidavit did so before a competent authority or a person. For this reason the place of swearing or affirmation, the date on which the affidavit was signed are essential parts of the jurat .

There is specific reference in the jurat  that the affidavit was “read over to the within named deponent….” The disputed part of the affidavit is the use of the word ‘affirmed’ instead of ‘ sworn ’ in the remaining portion of the jurat . Apart from stating that the Petitioner signed the affidavit before a Commissioner for Oaths, Jurat  states the place and the date on which the affidavit was signed. Jurat  in an affidavit is an integral part of an affidavit and it cannot be considered in isolation. In other words an affidavit should be considered in its totality. In applying this test and considering the totality of the affidavit and applying the relevant law and accepted practices, the fair conclusion that could be arrived is that the Petitioner has stated the facts in the affidavit under oath before the Commissioner for Oaths as demonstrated at the beginning of the affidavit and, the affidavit filed along with the instant Petition fulfills the requirements of the Oaths and Affirmation Ordinance.

 

10. BILLION BAY APPARELS (PVT) LTD. VS CHIEF MINISTER, SABARAGAMUWA PROVINCIAL COUNCIL AND OTHERS C.A. WRIT NO. 85/2013

18.01.2016
A.H.M.D. NAWAZ, J,

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 jurat s 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".

Should all Respondents file affidavits?

Where the law requires that an "affidavit in support" be filed together with the petition, (Court of Appeal (Appellate Procedure) Rules, 1990, Rule 3(1) (a)) or that a supporting affidavit be filed together with a statement of objections or a counter affidavit, (Court of Appeal (Appellate Procedure) Rules, 1990, Rule 3 (5)) or that a statement of objections be supported by an affidavit, (Court of Appeal (Appellate Procedure) Rules, 1990, Rule 3 (7)) 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.

 

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.

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 Others10 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. 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.

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/J, 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 casel 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.

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 jurat s 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. $0 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 Procedure16 cites the precedent of Mehar Singh and Others v Mahendra Singh  (AIR 1987 Delhi 300) which holds a defect in a verification is only an irregularity and not fatal. It is no ground in rejecting the affidavit....." (AIR 1987 Delhi 300)

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 jurat s.