MARK RAJANDRAN VS. FIRST CAPITAL LTD., FORMERLY,COMMERCIAL CAPITAL LTD.

MARK RAJANDRAN VS. FIRST CAPITAL LTD., FORMERLY,
COMMERCIAL CAPITAL LTD.,

SUPREME COURT
DR. SHIRANI BANDARANAYAKE, ACTING C. J.
RATNAYAKE, J., AND
EKANAYAKE, J.
S. C. H. C. (C. A.) LA NO. 289/2009
WP/HCCA/COL. NO. 67/2007 (F)
D. C. COLOMBO NO. 17543/MR
JUNE 7TH,2010

Oaths and Affirmations Ordinance - Section 4 - provisions as to how an oath should be given - Section 5 - only exemption to Section 4 - Supreme Court Rules - Rule 2 - every- application for special leave to appeal should be made by way of petition & affidavit - Rule 6 - an application contains allegation of facts which cannot be verified by reference to the judgment or order of the Lower Court in respect of which, leave is sought, should the petitioner annex in support of such allegation an affidavit?

The petitioner preferred an application for leave to appeal to the Supreme Court from a judgment of the Provincial High Court of the Western Province (Sitting in Colombo).

When the matter was taken up for support the respondent took up a preliminary objection to the affidavit filed by the petitioner in terms of the provisions of the Oaths and  affirmations Ordinance.

The respondent contended that in the affidavit, the petitioner has averred that he is a Christian and had made oath. Having averred that he being a Christian in the affidavit, in the jurat, the petitioner had affirmed to the averments before the Justice of Peace.

The respondent took up the objection on the basis that the affidavit filed by the petitioner is not in terms with the provisions contained in the Oaths and affirmation Ordinance, and therefore there is no valid affidavit and accordingly, the petitioner has not complied with the Supreme Court Rules of 1990.

Held:

        (1) Rule 2 read with Rule 6 of the Supreme Court Rules, 1990, clearly indicate that an application for leave should be made by way of a petition with affidavit and documents in support of that application.

        (2)The Oaths and Affirmations Ordinance, deals with the law relating to Oaths and affirmations in judicial proceedings and for other purposes. Whilst Section 4 deals with the provisions, where oaths to be made by persons, the exemptions to the said, Section is referred to in Section 5 of the Oaths and Affirmations Ordinance.

        (3) If a person does not come within the category of religions referred to in Section 5 of the Oaths and affirmations Ordinance, the exemption would not be applicable to him to make an affirmation instead of the oath he should have made.

Per Dr. Bandaranayake, Acting C. J., -

        "Rule 2 read with Rule 6 of the Supreme Court Rules, 1990 clearly indicate that an application for leave should be made by way of a petition with affidavits and documents in support of that application. In such circumstances, it is the affidavit that breathes life into the petition. It would therefore be futile to attempt to support an application, where leave is sought against the judgment without a valid affidavit."

Cases referred to:

        (1)Ratwatte v. Sumathipala (2001) 2 SLR 55

        (2)Kumarasiri and another v. Rajapaksha (2006) 1 SLR 395

        (3)Nanayakkara v. Kyoto Kyuma S. C. (Spl.) L. A. No. 115/2008 S. C. S.CM 1.10.2009

AN APPLICATION for leave to appeal from a judgment of the Provincial
High Court of the Western Province (sitting in Colombo), on a preliminary
objection taken.}

K. Kanag Iswaran, P. C. with M. U. M. Ali Sc.bry an L. Jayakumar for the Plaintiff - Appellant - Petitioner.

Romesh de Silva P. C. with Harsha Amarasekera for the Respondent - Respondent.

Cur.adv. vult.

June 07th, 2010
DR. SHIRANI BANDARANAYAKE, ACTING, C. J.

        This is an application for leave to appeal form the judgment of the Provincial High Court of the Western P

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