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Monday, August 27, 2012

AFFIDAVITS- DECIDED CASES


AFFIDAVITS
CASE LAW –EASY REFERENCE

Applicable Statutes-Civil Procedure Code (Section 180, 438) Affidavit Act, Oaths and Affirmation Ordinance – section 5



1.  Cadar Saibu Vs. Sayadu Bee Beebi - 4 NLR 130

 Affidavits sworn before a J.P. who is also a proctor         in the case are not admissible for the purpose of that  case.

 See also
 Pakir Mohideen Vs Casim - 4 NLR 299
 Jayathilake Vs Kaleel -1994- 1 SLR 319
 Chandrasiri Vs Abeyawickrama- 1998- 3 SLR  225.

2.  K.Vs. Wijetunga - 18 NLR 343

Affidavit sworn before a J.P. for the District of N                                         by a person not resident within the limits of the D.C  is  not invalid by reason of Section 437 of the Code.

 3.  K Vs. Ponnasamypillai - 28 NLR 156

Where a person was charged with having made a false statement in an affidavit submitted by him in a civil suit and there was no indication that the affidavit has been read over and explained to him. Parole evidence was inadmissible to supply the omission in the Jurat.

4.  De Saram Vs. SriSkanda Rajah - 45 NLR 15

A J.P, who honestly believes that an Affidavit, which it is proposed to swear before him is false may decline to administer an oath. But where it can be shown that he had no reasonable or
probable cause for his belief, he may be required to do his duty. In such a case remedy is by way of Mandamus.

5.  Simeon Fernando Vs. Goonesekera - 47 NLR 512
   
    Affidavit must be confined to statement of such     facts  as the declarant is able of his own language     and observation to testify to.

6.  Simon Singho Vs Government  Agent -
47 NLR 545          
             
Where the declarant is unable to understand writing  in the English language, the affidavit must be read over and interpreted to him on his own language and the Jurat shall express that it was read over and interpreted to him in the presence of the J.P. and that he appeared to understand the contents and that he made his mark or wrote his signature in the presence of the J.P. The absence of the Jurat in the case of affidavit sworn to by the person as above make the affidavit valueless.
     See also (3) above

7.  Kanagasabai Vs. Kirupamoorthy - 62 NLR 54

When affidavits are filed in the course of Civil Proceedings it is the duty of Judges, J.P.s, Commissioners for Oaths and Proctors to see that the Rules governing Affidavits in section 181, section 437 of the Code are observed.

                                                                   

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8.  Meeruppe Sumanatissa Terunnanse Vs.      Sangannanda Therunnanse - 66 NLR 333
Affidavit filed by a person, who is not able to understand writings in the English language is liable to be rejected if the Jurat is not in the form required by section 439 of the Code.

9Puttur North Co- operative Credit Society Vs.      Thambimuttu - 67 NLR 512
When an affidavit is sworn before a J.P. in terms of section 437 it is not essential that a certificate must appear on the affidavit itself that the deponent resides within the area for which the J.P. is appointed. In such a case the presumption of the regularity of official acts is applicable.

10. Thuraisamy Vs. Sellachichi - 6 NLR 25
A signature in Sinhala set down by a process server in his affidavit is not a mark under section 439.

11Juwan Vs. Singho - 5 SCC 144
 A Fiscal attesting a process server’s  affidavit  may affix his signature there to by means of a  stamp.



12.  Kobbekaduwa Vs Jayawardena -
       1983 - 1 Sri LR 419
 Function of an Affidavit is to verify the facts     alleged in the Petition. The Affidavit furnishes    prima facie evidence of the facts deposed to in the  affidavit. In an affidavit a person can depose only  to facts to which he is able to testify of his own  knowledge and observation.
 See also Rajapakse Vs. Gunasekara -
 1984 – 1 Sri LR 1

13.  Science House Ltd. Vs. PCA Laboratories -        1989 - 1 Sri LR 155
Company or other corporate body can support its Plaint by written evidence on Oath or a affirmation, that is an affidavit through its Principal Officer – then it becomes an affidavit of the Company.

14.  Kulatunge Vs. Abeykoon - 1986 - 3 CALR 141
        Affidavit – there should be strict compliance with        the affirmation and Oath Ordinance.

15.  Mohan Vs Carsons Cumberbatch & Co. Ltd. -        1988 - 2 Sri LR 75 
By virtue of the Affidavit Act- an affidavit can be   filed in the English language and it does not violate the constitution. Affidavit filed under section 213 (3) of the Companies Ordinance is valid- (Company Law).

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16.  Vishvalingam Vs. Liyanage and Others -         1983 - 1 Sri LR 203
      
       Affidavit – Administering an Oath – it is        customary take an oath before JP or              Commissioner of Oaths unless it is mandatory         to take oaths before a particular JP of standing.

17.  Silva Vs. LB Finance Co. Ltd -
        1993 - 1 Sri LR 371    
           
Where the Affidavit stated that deponent “Affirms” and in the body of the affidavit, the deponent describe themselves as affirments and in the Jurat there was a statement that the affidavits were read over and explained to the within named affirments – there is sufficient compliance with section 438 and the Affidavit is valid despite the fact that the Jurat did not contain the facts of affirmation compliance with Form 75 is not essential.
(See 40)

18.  Trico Freighters Ltd Vs. Young Civil         Engineers  - 2000 - 2 Sri LR 136 
           
Under section 5 of the Oaths and Affirmation Ordinance it is open even to Buddhist, Hindu or Muslim to make an oath because section 5 sets out that such a person may instead of making oath, make an affirmation.

An application is not bad in law merely because the deponent has made an affirmation with out stating that he is a Buddhist, Hindu or  Muslim.
Substitution of an Oath for an affirmation (or vice versa) will not invalidate the proceeding or shut out evidence. The fundamental objective of a witness or the deponent is to tell the truth and the
purpose of the oath or an affirmation is to enforce the obligation.
19Inaya Vs. L.O.L.C. - 1993 - 3 Sri LR 197

The deponent being Muslim had failed to solemnly, sincerely and truly declare and affirm the specific averments set out in the Affidavit. The recital merely states that he makes a declaration and in the Jurat there is no reference as to whether purported affidavit was sworn or affirmed to.

Though technicalities should not be allowed to stand in the way of justice, but however the basic requirements of the law must be fulfilled. The affidavit is defective.
However see (18) above.

20.   Clifford Ratwatte Vs. Thilanga Sumathipala-         2001 - 2 Sri LR 55
           
The deponent says that he is a Christian and makes oath. The Jurat states that the deponent has affirmed – the affidavit is defective.

Subsequent explanation cannot be used correct in any way what is obvious on the face of the application in question.
See also Kanagasabai Vs. Kirupamoorthy -
62 NLR 54.
(See 40)
           

21.  Distilleries Company Ltd. Vs. Kariyawasam -        2001- 3 Sri LR 119

In terms of Section 757 (1) the petition need not proceed in point of time to that of the affidavit so as to enable a party support the contents of the petition.



(See 40, 17)                                                                                  
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22Chadrawathie Vs. Dharmaratne -
        2002 - 1 Sri LR 43

The failure to specify whether the deponent was a non Christian that he was affirming to the matters therein denudes the document of the essential characteristics of the affidavit.

23.  Rohan Michel Vs. O.I.C. Crimes -
       2002 - 1 Sri LR 345
     
       A person, who makes an affidavit is usually        described as a “deponent” – it would not be         incorrect to describe him as a “declarant”. The use         of the word declarant in the Jurat does not vitiate         the affidavit, while it is inappropriate for a person         to take an oath or swear, if for him an Oath has no        bonding force or if he has a conscientious         objection to make an oath – the converse may be         true. A person, who does believe in the bonding         force of an oath may without doing violence to his         belief a solemn declaration or affirmation. Such         an affirmation alone may not suffice to constitute         a valid affidavit – but the addition of affirmation        will not vitiate an otherwise valid oath, the         description of the Petitioner as affirment did not         invalidate the oath she took. It is true that it is the         person who is administering oath or affirmation,         who must state in the Jurat that the oath or         affirmation was administered in his presence and        the place / time. 



The Jurat is defective as it purports to be the   Petitioner’s statement however the commissioner’s  attestation confirms that the document was signed   under oath in his presence.
 (See 40)

24.  Mohomed Vs. Jayarathne- 2002- 3 Sri LR 181
     
       The petitioner commenced his affidavit with an         affirmation and then swore to the contents at the        time he set his signature (Jurat).

The words used by the Petitioner in the opening part of his affidavit manifest his intention to make a solemn and formal declaration. The use of the word “affirm” in the Opening part and the word swear in the Jurat cannot militate against the manifested intention to make a formal declaration in the discharge of his fundamental obligation to tell the truth.
(See 17, 23, 40)

25.  Weeraman Vs. Sadacharan - 2002 Sri LR 222
     
       The affidavit did not carry an affirment. He was        allowed to amend it.
      
      Nowhere  in the contents of the affidavit is the        Defendant Respondent referred to as the declarant.       The Commissioner of Oaths therefore had not       administered an affirmation as required by law.       Even the Jurat clause is without an affirmation –       the affidavit is totally flawed.



                                                                                   

                                                                                   
           

                       
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26. Soorya Enterprisses Vs. Michel White -        2002 - 3 Sri LR 371

Its not important for non Christians to make an affirmation in an affidavit. The use of the word “may” in section 5 of Oath Ordinance instead of “shall” must be regarded as deliberate with the   consequence that a non Christian who, believed in God would have the option to swear or affirm to.
         See also Rustomjee Vs. Khan - 18 NLR 120.

27.  Jeganathan Vs. Safyath - 2003 - 2 Sri LR 372

Commencement of the affidavit with an Oath by  the Plaintiff and its conclusion with an affirmation in the    Jurat is contradictory and irreconcilable violating the express provisions of the Oath Ordinance.
 (See 40, 17)

28Facy Vs. Sanoon - 2003 - 3 Sri LR 8
       
       Petitioner Muslim takes oaths and swears the         affidavit – Jurat affirmation  affidavit is bad in        law.
(This three bench decision of Court of Appeal was set aside by the Supreme Court and sent back for rehearing.)       

29.  Umma Animar Vs. Jawahar -
2004 - 2 Sri LR 1

Under section 183 (A), who  may make an affidavit in lieu of a party to the action and the formalities – the   affidavit should contain an averment – that the party is out of the island or there should be an averment that the party is unable or incapable to make the required affidavit. There should be an averment that the facts are within their personal knowledge and observation as testified to.

If the principal and the Power of Attorney holder reside within the jurisdiction of Court, the power of Attorney holder is not entitled to act on behalf of the principal.

30.  Premasiri Vs. Gunapala -2004 -2 Sri LR 125
           
A Commissioner of Oaths is not confined to a particular district and can operate anywhere in the island irrespective of where his or her permanent residence is. His attestation is similar to an all island J.P.

31.  Senanayake Vs. Commissioner of National
       Housing -2005 -1 Sri LR 182 (DB)
           
Validity of an affidavit attested outside the jurisdiction of the JP – Party permitted to file a fresh affidavit  where Court enjoys a supervisory jurisdiction, Court should not non suit a party where the non compliance with rules take place due to no fault of that party.         
           
32.  Senevirathne Vs. Lanka Orix Leasing -
       2006 - 1 Sri LR 235
      
       In Debt recovery cases – the affidavit should          contain the necessary material.

           


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33.  Navarathne Vs. Wadugodapitiya –
       2006 - 1 Sri LR 275
      
       Affidavit in a Leave to Appeal application is        not signed – it is fatal.

   37.  International Dressers Pvt Ltd vs.Municipal            Council of Moratuwa - 2006 - 2 Sri LR 203
       
          A Director in terms of section 183A can make           affidavit in lieu of company.


34.  Kumarasiri Vs. Rajapakshe –
        2006 - 1 Sri LR 359

On an examination of the affidavit, it is clear    the   Jurat therein is not in conformity with   the law. It  is rather confusing and incorrectly  worded; it does not state where the affidavit was  affirmed.

 It is the flesh and blood of the affidavit which  gives life to the Skelton in the petition.

35.  Pan Asia Bank Ltd Vs. Kandy MPCS –
       2005 - 2 Sri LR 211

Where the deponent in the affidavit states that he being a Roman Catholic do hereby make oath in the attestation clause instead of stating that the deponent having sworn to the contents thereby states the contents thereof are affirmed to. The affidavit is bad in law. If the deponent places his signature at a different place and not in the presence of the Peace Officer – Affidavit is bad in law.

36.  Yogaratnam Vs. Naheem –
        2004 - 3 Sri LR 212
        
       Defacto status held out to the public by a JP is        not sufficient to confer validity to an affidavit,        when that J.P. has in law no authority to attest.
        See (31) above.
           


  
 
   38.  Kariyawasam Vs. Dona Mercy –
          2006 - 2 Sri LR 256
        
           Can a Catholic affirm?
      
         Section 5 (a) – Oaths Ordinance should not be           restrictively  interpreted. The use  of  the  word            “may” in the Oaths Ordinance instead of          “Shall” must be regarded as deliberate with the             consequence that non - Catholics, who believed          in God have the option to swear or to affirm.           Fundamental obligation of a deponent is to tell            the truth.

  39.  Par Marketiers (Pvt) Ltd Vs. HNB –
         2004 - 3 Sri LR 297

Affidavit not being affirmed to before a Justice of Peace of the relevant district may not be valid however, this objection cannot be taken up, after leave is granted.

40.  Kariyawasam Vs. RDA (S.P)-2007-2 Sri LR 33

There is no requirement that the J.P. must put the date below his signature in addition to the date given in the Jurat. However if the J.P. has written below his signature is a different date to the date in the Jurat – this creates a doubt.

41.  Mark Rajandran Vs. First Capital (SC)
        2010 – 1 – 60

        Affidavit - averred that he is a Christian and            make oath- Jurat affirmed - Affidavit bad in Law

(See 17, 18, 20, 23, 24)

 

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