IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for Leave to Appeal M. Tudor Danister Anthony Fernando No. 475, Colombo Road, 3^rd Kurana Negombo.

Plaintiff SC/HCCA/L.A Case No. 279/2012 HCCA Gampaha Appeal No. 203/07 (F) Vs.

DC. Negombo Case No. 4851/L Rankiri Hettiarachchige Fredie Perera No. 587/10, Colombo Road, 3^rd Kurana, Negombo. Defendant AND BETWEEN Rankiri Hettiarachchige Fredie Perera No. 587/10, Colombo Road, 3^rd Kurana, Negombo.

Defendant-Appellant Vs.

M. Tudor Danister Anthony Fernando No. 475, Colombo Road, 3^rd Kurana Negombo.

Plaintiff-Respondent AND NOW BETWEEN M. Tudor Danister Anthony Fernando No. 475, Colombo Road, 3^rd Kurana Negombo.

Plaintiff-Respondent-Petitioner Vs.

Rankiri Hettiarachchige Fredie Perera No. 587/10, Colombo Road, 3^rd Kurana, Negombo.

Defendant-Appellant-Respondent Before : Saleem Marsoof, PC J B. Aluwihare, PC J Priyantha Jayawardene, PC J Counsel : Gamini Marapana, PC with Navin Marapona for the Plaintiff-Respondent-Petitioner Romesh de Silva, PC with Sugath Caldera for the Defendant-Appellant-Respondent Argued on : 24^th June, 2014 Decided on : 17^th December, 2014 Priyantha Jayawardena, PC., J, The Plaintiff-Respondent-Petitioner (hereinafter referred to as the Petitioner) filed a Plaint in the District Court of Negombo stating inter-alia that he is entitled to the right of way more fully described in the third schedule to the Plaint and prayed for a permanent injunction preventing the Defendant-Appellant-Respondent from obstructing that right of way etc.

The Defendant-Appellant-Respondent (hereinafter referred to as the Respondent) filed his Answer and stated inter-alia that Petitioner’s action be dismissed and included a counter claim for a declaration that his land described in the schedule to his Answer is owned by him without being subject to any right of way or any other servitude, for a permanent injunction preventing the Petitioner from entering his land and for costs.

The matter was fixed for trial and admissions and issues were recorded. The Petitioner commenced his case and gave evidence and led the evidence of several other witnesses on his behalf. Once the Petitioner’s case was closed the Respondent gave evidence and he too called a witness to give evidence on behalf of him. Once the trial was concluded the learned District Judge delivered her judgment in favour of the Petitioner. The Respondent being aggrieved by the said Judgment lodged an Appeal to the High Court of Civil Appeals of the Western Province holden in Gampaha.

The High Court allowed the appeal and dismissed the Petitioner’s action. The Petitioner being aggrieved by the said Judgment preferred an application for leave to appeal to this Court. The said application was filed by way of a Petition and supported by an Affidavit as required by the rules of this court.

When this matter was taken up for support a preliminary objection was taken up by the learned President’s Counsel for the Respondent on the basis that there is no proper affidavit before court.

i.e., ‘ The affidavit of the Petitioner dated 11/07/2012 states at the commencement of that he being a Christian “do hereby make oath” whereas in the jurat, it is stated that he “affirms”. ’

Thus, the issue in this application is to determine the validity of the affidavit filed by the Petitioner in this application.

The affidavit filed by the Petitioner in the Supreme Court along with his Petition commences as follows;

‘ I, Malnaidelaage Tudor Danister Anthony Fernando of No. 475, Colombo Road, 3^rd Kurana, Negombo being a Christian do hereby make oath and state as follows:

1. I am the deponent above named and the Plaintiff-Respondent-Petitioner named herein. I filed plaint in the District Court of Negombo praying, that I be declared entitled to the right of way more fully described in the third schedule to my plaint and for a permanent injunction preventing the Defendant-Appellant-Respondent from obstructing that right of way