BILLION BAY APPARELS (PVT) LTD. VS. CHIEF MINISTER SABARAGAMUWA PROVINCIAL COUNCIL AND OTHERS

BILLION BAY APPARELS (PVT) LTD.
VS.
CHIEF MINISTER SABARAGAMUWA PROVINCIAL COUNCIL AND OTHERS

COURT OF APPEAL,
VIJITH MALALGODA PC.J. (P/CA)
A.H.M.D. NAWAZ, J.
CA WRIT 85/2013
DECEMBER 18, 2014
FEBRUARY 12, 2015

Writ of Certiorari - Civil Procedure Code, Sections 181, 437 - Oaths and Affirmation Ordinance - Sections 9, 12(3) Omission in the Jurat to incorporate place of attestation? Fatal? Court of Appeal (Appellate Procedure) Rules -1990 section 3(8) is amendment possible? Affidavit in support? Should all Respondents file affidavits? A defect in a verification only an irregularity and not fatal?

The issue was whether the Respondents should be permitted to amend their affidavits in order to incorporate the place of attestation that has been omitted in the jurats of the respective affidavits.

HELD:

(1) The obligation to state the place of affirmation In the jurat has been cast upon the Commissioner for Oaths.

(2) A defective affidavit without reference to a place of affirmation is only an irregularity. A defect in a verification is only an irregularity and not fatal. It is no ground to reject the affidavit.

(3) Absence of the place of the affirmation from the jurat is not an incurable defect. Rule 3(8)of the Court of Appeal (Appellate Procedure) Rules 1990 permits an amendment to cure a defect in an affidavit. The Rules have been framed with a view to remedying the situation in question.

Per A.H.M.D. Nawaz, J

"Application for amendment has been properly made and the court allowed the respondents to amend the two affidavits only to the extent of including the place of attestation"

Held further:

(4) It is not imperative that the necessary affidavit has to emanate from all Respondents. It is not necessary that all Respondents should have filed their own affidavits.

(5) Remissness on the Part of a Justice of the Peace in not making sure to insert the date and place of attestation in the jurat, is not a ground for penalizing the affirmant because his involvement is minimalist in the formulation of the jurat.

(6) 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, to include it in the jurat but the failure to do so has not been declared an illegality or nullity any where in the said ordinance of such pristine antiquity.

APPLICATION for a Writ of Certiorari on a Preliminary Objection.

Cases referred to :

(1) Damayanthi Abeywardana Vs Hemalatha Abewardana 1993 1SLR 281
(2) Rajapakse Vs Gunasekera 1984 2 SLR 1 at 15
(3) Roshana Michael Vs. Saleh, OIC Crimes, Police Station, Narahenpita 2002 1 SLR 345 at 356
(4) Kanagasabai Vs. Kirupamorthy 62 NLR 54
(5) Facy Vs. Sanoon and others (CA) 2003 3 SLR 8
(6) Facy Vs. Sanoon and Others (SC) 2006 BLR 58
(7) Senanayake Vs. Commissioner of National Housing and others 2005 1 SLR 182

(8) Clifford Ratwatle Vs. Thilanga Sumathipala.
(9) Jeganathan Vs. Safyath
(10) De Silva Vs. L.B. Finance Ltd. 1993 1 SLR 371
(11) Ceylon Workers Congress Vs. Sathasivam CALA 86/2002 - CA Minutes of 16.10.2002.
(12) Mehar Singh and Others Vs. Mahendra Singh AIR 1987 Delhi 300.

Edward Samarasekara for the Petitioner,

Janak de Silva, DSG for the Respondents.

January 18, 2016.

Cur.adv.vult.

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

The issue before court is whether the 1st, 2nd, 4th, 5th, 6th, and 7th Respondents should be permitted to amend the affidavits of the 4th and 5th Respondents in order to incorporate the place of attestation that has been omitted in the jurats of the respective affidavits The preliminary objection to the maintainability of this application for judicial review arises in the following manner.

The Petitioner, by filing a counter affidavit dated 7th July

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