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SEGU MOHAMADU v. KADIRAVAIL CANGANY
NLR11V277
[FULL BENCH.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wood Renton, and Mr. Justice Grenier.
SEGU MOHAMADU v. KADIRAVAIL CANGANY.
D. C. Badulla, 2,145.
Oaths Ordinance (No. 9 of 1895),
s. 9 (2)-Record of evidence by person appointed to administer oath-Report that
oath had been administered according to order-Prima facie
evidence-Sufficiency-Objection.
The defendant in an action consented to judgment being
entered against him, if the plaintiff and certain of his (plaintiff's) witnesses
would swear in the mosque to the truth of certain statements. The District Judge
recorded the statement, and it was signed by both parties. The Interpreter of
the Court was appointed to administer the oath, and he reported that " this day
at 3 P.M., in terms of the order in the above case, I administered oath to the
parties concerned in the presence of one another and in the presence of the
officiating priest." On the day appointed for the parties to appear the
defendant did not take any objection to the report as being insufficient, and
judgment was entered for plaintiff.
Held (by HUTCHINSON C.J. and GRENIER A.J., dissentiente
WOOD
RENTON J.), that the report of the officer appointed to administer the oath
afforded sufficient prima facie evidence that the oath had been administered in
terms of the order of Court; and that, in the absence of any objection by the
defendant, judgment was rightly entered for the plaintiff.
HUTCHINSON C.J.-In every case of an order for the taking of
an oath under Ordinance No. 9 of 1895 the Court should direct the person
appointed to administer it to record in writing at the time it is administered
the words sworn to, setting them out in his report, and not merely referring to
the order.
Held (by WOOD RENTON J.), that the provisions of section 9
(2) of Ordinance No. 9 of 1895, which require evidence given under that section
to be recorded in writing by the person appointed to administer the oath, are
peremptory; and judgment should not be entered in the absence of any record in
writing by the person appointed to administer the oath of the evidence given by
the witnesses.
APPEAL by the defendant from a judgment of the District Judge. The facts are fully stated in the judgments:
Van Langenberg, for the first defendant, appellant.
Bawa, for the plaintiff, respondent.
Cur. adv. vult.
August 21, 1908. HUTCHINSON C.J.-
The plaintiff claimed in this action a sum of money due from the two defendants on a promissory note. Judgment was given against the second defendants in default of appearance. The first defendant appeared and denied the signing of the note, but he admitted the signing of a note in blank, which was to be filled up with the correct amount found due when certain accounts were looked into, and upon which, in fact, only a small balance was due, and said that the note so signed in blank was the note now sued upon.
On the day of trial, March 11, 1908, the defendant's proctor said that before framing issues the defendant was willing that judgment should be entered against him, provided (1) plaintiff will swear in the mosque that he is satisfied with the truth of the entries in his books; (2) Meera Lebbe (plaintiff's attorney) will swear in the mosque that the first defendant put his mark to the note and that both defendants received the consideration; and (8) Meera Lebbe (a witness) will swear in the mosque that he saw the first defendant put his mark and both receive the money. The oath was to be taken in the mosque behind the jail in the presence of Mr. Abdul Rahaiman (the Interpreter) on Friday, the 13th, between 1 and 4 P.M. The District Judge has recorded this statement, and it is signed on the record by both parties.
On the 13th the Interpreter reported to the Court that he went tha
