Decided Cases on Affidavits

An affidavit must be confined to a statement of such facts as the declarant is able of his own knowledge and observation to testify to 

47 NLR512 SIMEON-FERNANDO-Petitioner-and-GOONESEKERA

Respondent "In paragraph 9 of his affidavit he states “ I verily believe that the said P. Simon Peter Perera . . . . voted for the said Norbert Perera Sri Vardhana, ” but the grounds for this belief are not stated. The affidavit of Don Simon Jayasinghe, a committee member, who should be in a position to give direct evidence merely asserts “ As far as I know, I have cause to believe that the said P. Simon Peter Perera voted for Norbert Perera Sri Vardhana.” The grounds of his knowledge and belief are withheld from this Court. 

Section 181 of the Civil Procedure Code makes it clear that affidavits must be confined to a statement of such facts which the declarant is able of his own knowledge and observation to testify to. An exception is made in the case of an interlocutory affidavit, in which statements regarding his belief may be admitted, “provided reasonable grounds for such belief be set forth in the affidavit”—see David and Co. v . Albert Silva , Samarakoon v. Ponniah , and Rajadurai v . Thanabalsuriya. 

It is obvious that the affidavits produced in this case contravene the salutary provisions of section 181 of the Civil Procedure Code. It was suggested, for this reason, and in view of the conflicting nature of the evidence, the Court would feel disposed to allow the parties to lead oral evidence-for example, of the Government Agent and the ex-convict. 

An affidavit must be confined to a statement of such facts as the declarant is able of his own knowledge and observation to testify to. An exception is made in the case of an interlocutory affidavit, in which statements regarding his belief may be admitted provided reasonable grounds for such belief be set forth in the affidavit. " 

An affidavit sworn before a Justice of the Peace for the district of Negombo - by a person not resident within the limits of the district is not invalid by reason of section 437 of the Civil Procedure Code. 

18NLR343 THE-KING-v.-WIJETUNGA 

It is contended that under section 437 an affidavit could only be sworn to before a Court or a Justice of the Peace or a Commissioner to administer oaths by a person who at the time of the swearing actually resides within the local limits of the jurisdiction of such Court, Justice of the Peace, or Commissioner, but that the affidavit in question was sworn to by the accused before a Justice of the Peace for the district of Negombo when at the time the accused was not resident within the district. I cannot accede to this contention. The words of the section are that the affidavit may be sworn to " by the person professing to take the statement embodied in the affidavit before any Court or Justice of the Peace or Commissioner to administer oaths within the local limits of whose jurisdiction he is at the time residing." I think that these last words—" within the local limits of whose jurisdiction he is at the time residing "—refer only to " Commissioner," the requirement intended being that in the case of a Commissioner to administer oaths, appointed by the Supreme Court under section 20 of the Courts Ordinance, he should at the time of administering the oath referred to in section 437 of the Code be resident within the local limits of the jurisdiction of the Court in which the affidavit is intended to be used. The concluding portion of section 437, in which there is no reference to Commissioners, but only to the Court or a Justice of the Pence, supports this view.  

069-NLR-NLR-V-67-PUTTUR-NORTH-CO-OPERATIVE-CREDIT-SOCIETY-Appellant-and-C.-THAMBIMUTTU-and-another

One ground was that the affidavit which accompanied the application to enforce the award was defective because it did not show that it was made before a Justice of the Peace within the local limits of whose jurisdiction the deponent was at the time residing.

Held, (i) that the affidavit was not defective. When an affidavit is sworn before a Justice of the Peace in terms of section 437 of the Civil Procedure Code it is not essential that a certificate must appear on the affidavit itself that the deponent resides within the area for which the Justice of the Peace is appointed.  

051-SLLR-SLLR-2002-3-SOORIYA-ENTERPRISES-INTERNATIONAL-LIMITED-MICHAEL-WHITE-COMPANY-LIMITED 

Affidavit - Oaths Ordinance, sections 4 and 5 - Is it mandatory for non-Christians to make an affirmation in an affidavit? - Effect of non-Christians submitting an affidavit under oath.

Held:It is not imperative for non-Christians referred to in section 5 of the Oaths Ordinance to make an affirmation in an affidavit.P er Fernando, J.“The use of the word “may” in section 5 of the Oaths Ordinance of 1895, instead of “shall" must be regarded as deliberate; with the consequence . . . that non-Christians who believed in God would have the option to swear or to affirm.” 

DE SILVA AND OTHERS V. L. B. FINANCE LTD., 

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. 

The preliminary objection raised before the Court of Appeal related to the validity of the affidavit filed in support of the petition as required by section 756 (2) of the Civil Procedure Code. The short point raised was that the affidavit was invalid for the reason that the jurat did not contain the fact of affirmation. 

On a fair reading of the entirety of the impugned affidavit, it seems to me that the preliminary objection taken was of a technical nature and the Court of Appeal was in error in upholding it. I accordingly allow the appeal, set aside the judgment of the Court of Appeal and direct the Registrar to return the record to the Court of Appeal so that the application for leave to appeal may now be heard on its merits. 

KUMARASINGHE v. RATNAKUMARA AND OTHERS 

Affidavit in support of the application serves the purpose of proof of facts stated therein. It furnishes the evidence verifying the allegation of facts contained in the petition. Affidavit evidence carries equal sanctity as oral evidence. While a stranger cannot make an affidavit it need not be made by the party individually but may be made by any person personally aware of the facts. The Court is entitled to have the best evidence before i t ; where there exist evidence which is firsthand it will be most unsatisfactory to place before court evidence of any other description. Ordinarily a petitioner is the best person who can speak to the facts and verify the facts averred in the petition: then, it is he who should file affidavit in support of the said facts: but if there are other witnesses too who can. to their personal knowledge, depose to those facts there is no bar to their filing affidavits in support of the petition, in addition to or in substitution for the petitioner's affidavit. But if the petitioner does not file his own affidavit verifying the facts, which he is personally conversant with, then the Court would be extremely reluctant to grant relief. But the petitioner may be excused from filing an affidavit if for some good reason or ground, he is unable to do so.  

INAYA v. LANKA ORIX LEASING COMPANY LTD. 

Section 5 of the Oaths and Affirmation Ordinance provides that where the person required by law to make an oath is a Buddhist, a Hindu or a Muslim (or some other religion) according to which oaths are not of binding force . . . he may instead of making an oath, make 200 Sri Lanka Law Reports [1999] 3 Sri L.R. an affirmation. 

In the affidavit before Court the defendants being Muslims had failed to solemnly, sincerely and truly declare and affirm the specific averments set out in the affidavit. The recital merely states that they make a declaration and in the jurat there is no reference as to whether the purported affidavit was sworn to or affirmed to. 

WEERAMAN v. SADACHARAN

(1) Nowhere in the contents of the affidavit is the defendant-respondent referred to as an affirmant; he is referred to as a declarant.

(2) It, therefore, appears that the Commissioner of Oaths had not administered an affirmation as required by law, even the jurat clause is without an affirmation.

(3) The affidavit is fatally flawed - and should be rejected in limine. Permitting the defendant-respondent to amend the affidavit is wrong.  

SENANAYAKEVSCOMMISSIONER OF NATIONAL HOUSING AND OTHERS

Affidavit - Validity of an affidavit affirmed outside jurisdiction -Justice of the Peace appointed for Judicial District of Homagama - Judicature Act No. 2 of 1978, section 45-Court of Appeal (Appellate Procedure) Rules 1990. Rule 3(1) (a). Filing of a fresh affidavit - Is it permitted? -Strict or absolute compliance with a Rule. Is it essential? 

DISTILLERIES COMPANY LTDv.KARIYAWASAM AND OTHERS 

Civil Procedure Code - S. 24, S. 27, S. 181, S. 757(1) - Affidavit can it be affirmed anterior to the date the Petition had been subscribed to? What is support? Proxy - who can sign same? 

" Drawing the attention of the court to the affidavit of the petitioner, learned counsel argued that it had been affirmed to on the 23rd of May 2001, while the petition had been signed on the 24th of May 2001, and thereby the petitioner had supported the contents of a non existing petition by his affidavit . 

When this section is carefully analyzed it becomes evident that the averments contained in the affidavit should only be supportive of the contents of the petition and for that purpose it does not stipulate that the petition has to be anterior to the date of petition. In other words the petition need not precede in point of time to that of the affidavit so as to enable a party to support the contents of the petition. An affidavit that is required to be submitted along with the petition under section 757 (1) of the Civil Procedure Code should only furnish prima facie proof of the material facts set out or alleged in the petition and it should be confined to the   statement of such facts as the declarant is able of his own knowledge and observation to testify in accordance with section 181 of the Civil Procedure Code. If the argument urged by learned counsel for the plaintiff respondent was to prevail, this court would be compelled to reject many applications that are filed with petitions and affidavits under section 757 (1) of the Civil Procedure Code in limine, even if they bear the same date unless the court was absolutely certain that the petition was anterior in point of time to that of the affidavit. 

This can be explained clearly by way of an illustration, if an affidavit bearing the same date as the petition is affirmed to in the morning, and the petition is signed in the evening, it can be argued that the petitioner by his affidavit has supported the contents of a non existing petition. If we were to uphold this contention it would inevitably lead to grave hardships and practical difficulties to the parties in cases. It should be stated at the outset that the argument advanced by learned counsel for the respondent is of a highly technical nature. Even if one were to accept the argument advanced by learned counsel for the respondents-respondents, as the correct technical legal position the question that has to be determined in the instant case is whether, it has caused any prejudice to the respondent. It is my view, if it has not caused any such prejudice, the court can act on it. I must state that the authorities submitted by learned counsel for the respondent does not support the proposition he advanced in the course of his argument. I am of the view that the decision reached in the case of Seneviratne Banda v. Chandrawathle, will provide some useful guidance in solving the present problem. It was a case filed under the Maintenance Ordinance where the liability to pay maintenance is of a civil nature, it was argued in that case that there was no proper application in terms of section 13 of the Maintenance Ordinance as there was only an affidavit filed without a petition as contemplated by the section. Nevertheless the court held that as the affidavit set out all the facts material to the application there was sufficient compliance with section 13 of the Maintenance Ordinance. This is a case where there was a total absence of a petition. But as far as the present application is concerned, as both the petition and affidavit are there, I am of the view that the process of reasoning used in that case by analogy can be applied to the instant case even if some irregularity has occurred by the fact that the affidavit had been affirmed to before the petition was subscribed to, as alleged by the respondent. " 

JAYATILLAKE AND ANOTHERv.KALEEL AND OTHERS 

An affidavit sworn before the deponent’s own Proctor ought not to be received in evidence. Vet here the affidavits were not rejected because Counsel for the respondents did not object to their reception. "

In the course of the submissions it was observed that the counter affidavits dated 29.1.92, of both Petitioners had been sworn before one of the junior counsel appearing for them. Although it was suggested that he been retained only after 29,1.92, in fact his appearance had been marked on 13.1.92 and 27.1.92. In Pakir Mohidirt v. Mohamadu Casim, it was held by Bonser, C.J., that an affidavit sworn before the deponent’s own Proctor ought not to be received in evidence (see also Cadar Saibu v. Sayadu Beebi. This rule of practice has been consistently observed, and would apply to an Attorney-at-Law today. It is a salutary rule intended to ensure that an affidavit is duly read; explained in the deponent's own language if it is in a language which he does not understand; understood; and then signed."  

TRICO FREIGHTERS (FVT) LTDv.YANG CIVIL ENGINEERING LANKA (PVT) LTD

 Affidavit - Oaths and Affirmations Ordinance S.5 - Civil Procedure Code -Form 75 - Affirmation - Oath - Religion not stated. 

Held :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.  

The Land Reform Commission Vs Kandy Plantations Limited, SC/HCCA/LA/35/2020 In Pakir Mohidin v. Mohamadu Casim 4 NLR 299, it was held that "an affidavit sworn by the defendant before his own proctor is not, according to the practice of English Courts, admissible in evidence, and such practice should be followed here". 

In Cadar Saibu v. Sayadu Beebi 4 NLR 130, it has been held that "affidavits sworn before a Justice of the Peace, who is also a proctor in the case, are not admissible for the purpose of that case". 

In Airport and Aviation Services (Sri Lanka) Limited v. Buildmart Lanka (Pvt) Limited (2010) 1 Sri L.R. 292, where facts are similar to the facts of the present matter, Her Ladyship Dr. Shirani Banadaranayake, J. (as she then was) has held that an Assistant Legal Officer of an organization has an interest in a leave to appeal application filed before the Supreme Court by such an organization. 

Seylan Bank PLC V Christobel Daniels CA PHC APN 58/2014, is a decision of the Court of appeal where the supporting affidavit had been attested by the Legal Officer Human Resources of the bank who also acted as its lawyer in applying certified copies for the bank. The Court found the said legal officer fell within the prohibited categories. 

Environmental Foundation (Guarantee) Ltd. V Director General of Wildlife Conservation and Others CA Writ 51/2018 reported in (2020) 1 Sri L R 366, was a matter where the Commissioner for Oaths who attested the affidavit had been an employee of the Petitioner. The Court cited the Judgment in Airport and Aviation Services (Sri Lanka) Limited mentioned above with approval where the Commissioner for Oaths who attested the affidavit was the Attorney-at- Law for the petitioner at the related arbitration proceedings and the instructing attorney in the High Court case, and also an employee of the Petitioner in the capacity of Assistant Legal Officer. 

In Jayatillake and Another V Kaleel and Others (1994) 1 Sri L R 319, it was indicated that an affidavit sworn before the deponent’s own junior counsel ought not be received in evidence and Samantha Kumara V T. A. C. N. Thalangama & Others SC/SPL/LA/99/2021 SC Minutes dated 08.06.2021 is another example where the preliminary objection raised in terms of the proviso to section 12(2) of the Oaths and Affirmation Ordinance was upheld as the Commissioner for Oaths who attested the affidavit has written certain communications on behalf of the deponent and appeared for the deponent in the Court of Appeal and marked his appearance in this Court as well. 

In one of the recent cases, namely Faith Pharmaceuticals (Pvt) Ltd. and another V Matrix Life Care (Pvt) Ltd and Others SC/HC/LA/45/2021, decided on 01.12.2022 this Court held that an Affidavit affirmed before an Attorney-at-Law and Commissioner for Oaths who was working at the same Law Office in which the Registered Attorney for the affirmant was working is bad in law. In the said case, this Court observed that our Courts, even at the beginning of the 19th Century had followed the English Principle which did not accept the affidavits sworn before one’s own Lawyer. 

Thus, it is clear that our Courts for a long period of time continuously has followed the principle now contained in the proviso to Section 12(2) of the Oaths and Affirmations Ordinance. The Counsel for the Petitioner attempts to indicate that this is a mere technicality and the error must be allowed to be rectified. Though he referred to many decisions where our Courts considered certain errors contained in affidavits as insignificant and not fatal, those decisions were not made in relation to the proviso to section 12(2) of the Oaths and Affirmations Ordinance or its effect. However, the cases cited above directly relates to the matter in issue. The Petitioner has not cited a single case where the proviso to said section 12(2) has been given a different interpretation. Furthermore, it must be noted that the proviso to aforesaid section 12(2) contains an express prohibition. As observed in Environmental Foundation (Guarantee) Ltd V Director General of Wildlife and Others CA Writ 51/2018, a Court cannot override such prohibition using a general provision such as section 9 of the said Ordinance. On the other hand, as observed in Faith Pharmaceuticals (Pvt) Ltd and another v Matrix Life Care (Pvt) Ltd and Others SC/HC/LA/45/2021 said prohibition contained in the said proviso is more concerned with the credibility of the affidavit to be tendered in the judicial proceedings. If the affidavit is attested by a commissioner for oaths who has an interest in the matter involved, such attestation may be tainted with bias and partiality, the affidavit will lose its evidential value. 

For the reasons given above, I hold that the Affidavit accompanying the Petition is bad in law. The Petitioner has not shown that on the face of the Order of the Learned High Court Judges, there are illegalities which need no affidavit to support the factual matrix related to the impugned order. Thus, the application for leave to appeal is bad in law.