GAFOOR AND OTHERS

Vs.

HIBATHULLAH AND OTHERS

COURT OF APPEAL
LAFFAR, J.
SWARNADHIPATHI, J.
CA/WKF/02/19
WKF/262/2018
MARCH 8, 2021

Muslim Mosques and Charitable Trusts or Wakfs Act, No. 51 of 1956, section 9E(3)-Failure to annex the certificate of the director with the original plaint-Subsequent cure

The respondents instituted action before the Wakfs Tribunal against the petitioners in terms of the provisions of the Muslim Mosques and Charitable Trusts or Wakfs Act, No. 51 of 1956, as amended, seeking

inter alia that certain properties be declared part of a charitable trust and be governed by the provisions of the Act, and a declaration that the trustees of the said trust are mandated to inter alia maintain the buildings and students of a particular school. The petitioners took up a preliminary objection before the Tribunal that the respondents' plaint was bad in law since it was not accompanied by a certificate from the director, as required by section 9E(3) of the Act. The Tribunal overruled the preliminary objection, holding that the certificate had been subsequently filed with the amended plaint, which cured the defect in the original plaint. The petitioners filed a leave to appeal application in the Court of Appeal against the said order.

Held:

The absence of a certificate is a procedural defect which could be rectified during the pendency of the action. No material prejudice is caused to the petitioners by not filing the certificate with the original plaint. The irregularity has subsequently been rectified by the certificate being produced with the amended plaint.

Cases referred to:

1. Rodrigo v. Raymond [2002] 2 Sri LR 78
2. Gunaratne v. Abeysingha [1988] 1 Sri LR 255
3. Elias v. Cader (SC/50/2008, SC Minutes of 28.06.2011)
4. Sheriff v. Jamaldeen [2000] 2 Sri LR 90

APPEAL from the Judgment of the Wakfs Tribunal.

Chandaka Jayasundera, P.C., with Mehran Careem and lmaz lmthiyas instructed by Nalin Samarakkoon for the Petitioners.

N.M. Saheed with M.M.F. Shafeena and N.R. Husni for the Respondents.

cur. adv. vult.

July 14, 2021

LAFFAR, J.

The 1st, 2nd, 4th, and 10th Defendant-Petitioners (hereinafter referred to as the "Petitioners") are seeking Leave to Appeal from the order of the Wakfs Tribunal dated 02.03.2019. Leave was granted on 24.05.2019.

The Plaintiff-Respondents (hereinafter referred to as the "Respondents"), in terms of the provisions of the Muslim Mosques and Charitable Trusts

or Wakfs Act No. 51 of 1956 (as amended), instituted action before the Tribunal against the petitioners, seeking, inter alia:

1. To declare that the properties referred to in the Deed of Trust bearing No. 2125 is a charitable trust and governed by the provisions of Muslim Mosques and Charitable Trust or Wakfs Act.

2. To declare that the trustees of the said trust are mandated by the said trust to maintain the buildings and meet all cost of expenses that may be required to teach Arabic Language and maintain the students of the Gafooriya Arabic College.

At the hearing of the Tribunal on 02.03.2019, the learned Counsel for the Petitioners raised Preliminary Objections as to the maintainability of this action on the basis that:

1. The Tribunal did not have jurisdiction to hear and determine the said disputes that were presented to the Tribunal by the Respondents as the said Trust is not subject to the provisions of the Wakfs Act.

2. The Respondents failed to file the Director's certificate, along with the plaint and therefore, the plaint is bad in law.

It appears to this Court that the Tribunal has not yet made any orders in respect of the first objection. However, the Tribunal, in its order dated 02.03.2019, overruled the second objection. It is against that order the instant appeal is preferred.

In terms of section 9E(3) of the Muslim Mosques and Charitable Trusts or Wakfs Act No. 51 of 1956 (as amended), the Tribunal has no jurisdiction t