|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of Sri Lanka |
] [Hide Context] 8
FACY
v.
SANOON AND OTHERS
COURT OF APPEAL
UDALAGAMA, J.
DISSANAYAKE, J.
FERNANDO, J.
C.A. 1093/2002
MAY 19 and 27.2003.
JUNE 9. 2003
JULY 9, 2003
Writ of Certiorari - Writ of Quo Warranto - To declare appointment as Deputy
Mayor null and void - Preliminary Objection - Failure
to comply with Court of
Appeal (Appellate Procedure) Rules 1990 - Rule 3, 3(2) - Is it fatal? Absence of
a proper affidavit - Consequences
- Constitution Article 140, 141 - Oaths and
Affirmation Ordinance S. 5,
Held :
(i). Petition must be accompanied by a valid affidavit, as recognised by law,
Per Udalagama, J.
"The Petitioner is a Muslim who solemnly takes oath and swear, which he is free
to do, having clearly elected to make oath
and swear at the beginning of his
affidavit, the Justice of the Peace who attested the affidavit could not have
affirmed the petitioner
purportedly having stated that he read and explained
same to the affirmant I would consider an affidavit which contains both to
be
totally flawed."
Per Udalagama, J.
"Having regard also to the need to maintain consistency in judgments i would
also hold as held repeatedly by this Court that
a faulty affidavit could not be
considered a mere technicality but in fact fatal to the entire application and
as also held by
the Court on numerous occasions a defective affidavit is bad in
law and warrants rejection."
(ii). Failure to aver in his petition that the jurisdiction of the Court had not
previously been invoked (Rule 3 (2)) also warrants
dismissal of the Petition -
as there is no application to perfect the Petition/Affidavit, to comply with
Rule 3(2).
9
APPLICATION for a Writ of Certiorari and/or Quo Warranto.
Cases referred to :
1. De Alwis v Unantenne - 76 NLR 180
2. Ratwatte v Sumathipala - 2001 - 2 Sri LR 55
3. De Silva v L. B. Finance - 1993 - 1 Sri LR 371 (Distinguished)
4. Nicholas v Marcan Markar - 1981 2 sri LR 1 at 5 (CA)
5. Coomasaru v Leechman & Company - S.C.217/72 - 307/72 SCM 26.5.1996
6. Fernando v Sybil Fernando - 1997 3 Sri LR 1
7. Kiriwante v Navaratne - 1996 2 Sri LR 393 (Distinguished)
8. Marcan Marker v Nicholas - BALR 1986 Vol. I part VI - 245 (SC)
Distinguished.
9. CALA 182/2001 - CAM 2.4.2002
Romesh de Silva P.C., with Hiran de Alwis, Chandimal Mendis and Sugath Caldera
for petitioner.
D.S. Wijesinghe, P.C., with Sanjeewa Jayawardena and Priyanthi Guneratne for 1st
respondent.
A. Gnanathasan D.S.C.. with Janak de Siliva for 2,3,5th respondents.
Daya Pelpola with Niroshan Perera for 4th respondent.
Cur. adv. vult
August 06, 2003
UDALAGAMA, J.
The petitioner in this application moves inter alia for the issue of 01 a
mandate in the nature of a writ of Quo Warranto declaring
the appointment of the
1 st respondent as Deputy Mayor of Colombo be declared null and void and also
for a mandate in the nature
of a writ of Certiorari quashing the decision of the
4th respondent admittedly naming the 1st respondent for the said post of Deputy
Mayor of Colombo.
Interim relief prayed for on behalf of the petitioner appears not to have been
pursued.
The President of the Court of Appeal having acceded to the 10 application made
by the learned President's Counsel for the petitioner
10
to constitute a three
Bench Division on the basis that the case of De Alwis v Unantenne (1) was
erroneously decided, the matter
was taken up before three Judges of the Court of
Appeal on 19.05.2003.
When the matter was taken up on 19.05.2003 learned President's Counsel for the
1st respondent raised a number of preliminary objections
to this application and
moved that the petition be dismissed in limine. Learned counsel for the parties,
however, also made submissions
on the substantial matters for decision.
However, I am inclined to the view that the preliminary objections raised on
behalf of the 1st respondent need to be upheld and
the petitioner's application
dismissed in limine inter alia for the following fatal lapses which affect the
validity of the application
as the petitioner has singly failed to comply with
the mandatory provisions of the Court of Appeal (Appellate Procedure) Rules
1990.
It is to be noted that where the petitioner failed to comply with the imperative
provisions of the aforesaid rules court may ex
mero moto or at the instance of
any party dismiss such application.
The aforesaid rules mandate that a properly constituted application for relief
prayed under Article 140 or 141 of the Constitution
be made by way of a petition
together with an affidavit in support of the averments stated in the petition.
It is also manifest that the petition must be accompanied by a valid affidavit
as recognized by law.
In the instant case the affirmant to the petition being one Mohammed Facy
unambiguously by the preamble to his affidavit dated 12.06.2002
had taken oath
and sworn to the facts stated therein.
That where a person is required by law to make an oath is a 40 Buddhist, Hindu
or a Muslim or some other religion according to which
oaths are not of binding
force or has a consciencious objection to make an oath may instead of making an
oath make an affirmation
(vide provisions of section 5 of the Oaths and
Affirmation Ordinance as amended).
11
In the above context the petitioner undoubtedly had a right to make an
affirmation instead of an oath. However, I am of view that
the petitioner needed
to elect one of the two. I would also consider an affidavit which contains both
to be totally flawed. The
petitioner who solemnly takes oath and swear, which he
is free to do as stat- ed above, having clearly elected to make oath and
swear
at the beginning of his affidavit, the Justice of the Peace who attested the
affidavit could not have affirmed the petitioner
purportedly having stated that
he read and explained same to the affirmant. It is obvious to this court that
the Justice of the
Peace had failed to read over the affidavit prior to
obtaining the petitioner's signature and thereby ignored the need to observe
the
sanctity that is necessarily attached to an affidavit. If the Justice of the
Peace read over the affidavit carefully as he
was bound to do he could not
possibly have got the petitioner to affirm to the averments as had been done
vide the jurat clause
of the affidavit.
The preamble to paragraph (1) of the affidavit and the jurat clause is totally
inconsistent. No oath appears to have been administered
either.
Most significantly the very same petitioner who appears to have filed a counter
affidavit subsequently dated 31.12.2002 undoubtedly
discovering the obvious
error in the impugned affidavit without leave of court to correct same however
had done so and clearly
and unambiguously in the preamble to that affidavit
"declared and affirmed" to the facts deposed to, which appears to
be consistent
with the jurat clause. The averments in the second affidavit had impliedly
confirmed the flaw in the earlier affidavit.
Thus the impugned affidavit dated
12.06.2002 is patently defective.
12
In the absence of a proper affidavit there is in fact no application and in the
circumstance I would reject the submissions of the
learned President's Counsel
for the petitioner that the affidavit is in compliance with the law.
In Ratwatte v Sumathipala (2) Justice Edussuriya (with myself agreeing) held
"the deponent states that he is a Christian and
makes oath, the jurat clause at
the end of the affidavit states that the deponent has affirmed. The affidavit is
defective".
In Ratwatte v Sumathipala (supra) the objection to the affidavit was upheld and
the petitioner's application rejected with costs.
in the instant case too the deponent although a Muslim who could if he wished
to, make oath, once having done so at the preamble
had at the end of the
affidavit, affirmed to the facts deposed to.
Hence the impugned affidavit is clearly defective.
As also observed by Justice Edussuriya in the case cited above on the matter of
an omission, the deponent in the instant case who
at the preamble made oath but
whereas before the Justice of the Peace affirmed to the facts deposed to, could
not be considered
an instance where there was an omission as contemplated by the
provisions of section 9 of the Oaths and Affirmation Ordinance.
De Silva v L.B. Finance (3) cited by the learned President's Counsel for the
petitioner could be distinguished in that in the said
case cited the affidavit
did not carry the word "affirmed" in the jurat clause although in the body of
the affidavit
the word 'affirm' had in fact appeared.
Contrary to the submission of the learned President's Counsel for the petitioner
that non compliance of Rules does not warrant dismissal,
I would disagree and
respectully concur with the view expressed by Tennekoon C.J.cited in Nicholas v
Marcan Marker (4) at 5 wherein
His Lordship had in Coomasaru v Leechman &
Company (5) held as follows - "the rules of procedure must not be regarded as
mere technicalities which parties can ignore at their whims and pleasures".
Rules in my view are essential parts of procedural law, so made to be followed.
As held in Fernando v Cybil Fernando,(.6) ' "There is substantial law and there
is procedural law. Procedural law is not secondary.
The maxim ubi ius ibi
remidium reflects the complementary character of civil procedural law. The two
branches are also interdependent.
It is by procedure that the law is put into
motion and it is procedural law which put life into substantive law gives its
remedy
effectiveness and brings it into action.
13
As stated above the lapse referred to in the affidavit goes to the basic
validity of the affidavit. There is also no explanation
as to the reasons for
the obvious flaw of the affidavit. In such circumstances I would also
distinguish Kiriwante v Navaratna (7)
from the facts of this case.
Having regard also to the need to maintain consistency in judgments I would also
hold as held repeatedly by this court that a faulty
affidavit could not be
considered a mere technicality but in fact fatal to the entire application and
as also held by this court
on numerous occasions a defective affidavit is bad in
law and warrants rejection. In any event the petitioner is not entitled to
benefit from the obvious ambiguity in his own affidavit.
Hence the obviously flawed impugned affidavit filed by the petitioner is in my
view not a proper affidavit in law and in the absence
of a proper affidavit
there being no application, I would uphold the preliminary objection and dismiss
this petition in limine.
Apart from the above the non compliance by the petitioner of the provisions of
Rule 3(2) of the Court of Appeal (Appellate Procedure)
Rules 1990 also warrants
dismissal of the petition as the petitioner had admittedly failed to aver in his
petition that the jurisdiction
of this court had not previously been invoked in
respect of the matter in dispute. The petitioner even failed to explain his
failure
to comply.
As held in Nicholas v Marken Markar (supra) "the requirement in the Rules that
an averment be made stating that the jurisdiction
of court had not been
previously invoked in respect of the same matter is mandatory. Non compliance
with the said rule which is
imperative would render such application to be
rejected".
Although the judgment in the above case was reversed by the Supreme Court (8) in
which case Wimalaratne J. with Soza J. agreeing
allowed the petitioner to
perfect his petition by the insertion of the missing averment, Wanasundera J. in
a dissenting judgment
stated however that even though the rule was directory as
submitted by the learned Counsel for the petitioner, the order of rejection
of
the Court of Appeal ought not to be disturbed
14
Importantly however it must be
noted that the final relief granted was a direction to perfect the petition and
affidavit and comply
with the Rules. In the instant case however, there is not
even an application to perfect the petition and affidavit thereby warranting
the
dismissal of the petition on the basis of non compliance of Rules 3(2) of part
11 of the Court of Appeal (Appellate Procedure)
Rules 1990.
In any event it is also not the function of this court to relieve parties of the
consequences of their own folly and negligence.
As held by Nanayakkara J. (with myself agreeing) in CALA 182/2001P) which refers
to a similar preliminary objection "the petitioner
having been remiss and having
not exercised due diligence in preparing his affidavit and having failed
although an opportunity
of amending same had been available dismissed in limine
the application for non compliance of the Rules."
For the aforesaid reasons the non compliance with the mandatory provisions of
the Rules of court warrant the dismissal of this application
in limine and
accordingly the application of the petitioner is dismissed with costs.
I am also of the view that in the circumstances the determination of other
matters submitted before us would be an exercise in futility.
DISSANAYAKE, J. - I agree
FERNANDO J. - I agree
Preliminary objection upheld.
Application dismissed.
] [Hide Context]
CommonLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.commonlii.org/lk/cases/LKCA/2003/78.html