AIRPORT AND AVIATION SERVICES (SRI LANKA) LIMITED VS. BUILDMART LANKA (PVT.) LIMITED

AIRPORT AND AVIATION SERVICES (SRI LANKA) LIMITED
VS. BUILDMART LANKA (PVT.) LIMITED

SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.,
RATNAYAKE, J. AND
EKANAYAKE, J.
S. C. (HC) L.A. NO. 4/2009
H. C. APPLICATION NOS. HC/ARB 998/2006 & 1249/2007
(Consolidated in terms of Section 35 of the Arbitration Act)
MARCH 23RD, 2010

Arbitration Act - Section 31 - Application for filing and enforcement of award - Section 32 - Application for setting aside an arbitral award - Oaths and Affirmation Ordinance - Section 12(2) proviso - Question of legal validity of an affidavit - Affidavit sworn before the deponent's own Attorney - Supreme Court Rules 6 - Civil Procedure Code - Section 437- Notaries ordinance Section 31, Section 32, Section 33.

This is an application for leave to appal from a judgment of the High Court (Colombo). When the application came up for support before the Supreme Court, the Respondent took up a preliminary objection on the ground that the affidavit filed by the Petitioner is not in accordance with the proviso to Section 12(2) of the Oaths and Affirmations Ordinance and therefore the said affidavit has no validity as it is defective.

The preliminary objection was raised on the basis that when the dispute between the parties was referred to arbitration, M. R. Attorney-at- Law and Assistant Legal Officer of the Petitioner was present at the arbitral hearing as an employee and Attorney-at-Law. When the matter proceeded to the High Court the said MR had been the instructing Attorney-at-Law of the Petitioner. Later when the Petitioner preferred a leave to appeal application to the Supreme Court against the judgment of the High Court, the Commissioner for Oaths who had administered the affirmation in the affidavit, filed together with the petition in the Supreme Court, was the very same MR.

Held

(1) Although there is provision contained in the Notaries Ordinance granting relief when there is failure by the Notary to observe the

Rules in the Notaries Ordinance, a similar interpretation cannot be given to the proviso to Section 12(2) of the Oaths and Affirmations Ordinance, in the absence of such provision to that effect.

The Notaries Ordinance deals with the law relating to Notaries, whereas the Oaths and Affirmations Ordinance relates to oaths and affirmations in judicial proceedings and other matters.

(2) Rule 6 of the Supreme Court Rules, 1990 and Section 12(2) of the Oaths and Affirmations Ordinance are clearly different. Whilst Rule 6 provides for an Attorney-at-Law to file an affidavit in support of the allegations referred to in the Petition, Section 12(2) of the Oaths and Affirmations Ordinance deals with the administering of any oath or affirmation or taking of any affidavit. In such circumstances, even in a situation where an affidavit of an Instructing Attorney-at-Law is to be filed in support of an application for special leave to appeal, such an affidavit would have to be made strictly in terms of the provisions contained in the Oaths and Affirmations Ordinance.

(3) The proviso to Section 12(2) of the Oaths and Affirmation Ordinance has restricted the power of the Commissioner for Oaths to administer any oath or affirmation or take any affidavit for the purpose of any legal proceedings or matter in which he is the Attorney-at-Law to any of the parties or in which he is otherwise interested.

Per Dr. Shirani Bandaranayake, J., -

". . . It is apparent that the said MR, being the Assistant Legal Officer of the petitioner Company and the Attorney-at-Law for the petitioner at the arbitration proceedings and in the High Court, is a person, who has an interest in the leave to appeal application before the Supreme Court. Accordingly the affidavit filed along with the petition is not in compliance with the proviso to Section 12(2) of the Oaths and Affirmation Ordinance. In the circumstances. . . the aff

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