Legal Services and Laws of Sri Lanka


SLR-2003 Vol.3-P8

SLR - 2003 Vol.3, Page No - 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 -PreliminaryObjection-
Failure to comply with Court of Appeal (Appellate Procedure) Rules 1990 - Rule 3, 3(2) - Is it fatal?Absenceofaproper
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 electedtomakeoath
and swear at the beginning of his affidavit, the Justice of the Peace who attested the affidavit could not have affirmedthe
petitioner purportedly having stated that he read and explained same to the affirmant I wouldconsideranaffidavitwhich
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 Courtthat
a faulty affidavit could not be considered a mere technicality but in fact fatal to the entire application and asalsoheld
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 (Rule3(2))also
warrants dismissal of the Petition - as there is no application to perfect the Petition/Affidavit, to comply with Rule 3(2).
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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 awritofQuoWarranto
declaring the appointment of the 1 st respondent as Deputy Mayor of Colombo be declared null and void and also for amandate
in the nature of a writ of Certiorari quashing the decision of the 4th respondent admittedly naming the1strespondentfor
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 learnedPresident'sCounselforthe
petitioner
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to constitute a three Bench Division on the basis that the case of De Alwis v Unantenne (1) waserroneouslydecided,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 ofpreliminary
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 tobeupheld
and the petitioner's application dismissed in limine inter alia for the following fatal lapses which affect thevalidityof
the application as the petitioner has singly failedtocomplywiththemandatoryprovisionsoftheCourtofAppeal
(Appellate Procedure) Rules 1990.

It is to be noted that where the petitioner failed to comply with the imperative provisions of the aforesaid rules courtmay
ex mero moto or at the instance of any party dismiss such application.

The aforesaid rules mandate that a properly constituted application for reliefprayedunderArticle140or141ofthe
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 bythepreambletohisaffidavit
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 otherreligionaccording
to which oaths are not of binding force or has a consciencious objection to make an oath may instead of making anoathmake
an affirmation (vide provisions of section 5 of the Oaths and Affirmation Ordinance as amended).
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In the above context the petitioner undoubtedly had a right to make an affirmation instead of an oath. However, I am ofview
that the petitioner needed to elect one of the two. I would also consider an affidavit whichcontainsbothtobetotally
flawed. The petitioner who solemnly takes oath and swear, which he is free to do as stat- ed above,havingclearlyelected
to make oath and swear at the beginning of his affidavit, the Justice of the Peace who attested the affidavit could nothave
affirmed the petitioner purportedly having stated that he read and explained same to the affirmant. Itisobvioustothis
court that the Justice of the Peace had failed to read over the affidavit prior to obtaining the petitioner'ssignatureand
thereby ignored the need to observe the sanctity that is necessarily attached to an affidavit. If the JusticeofthePeace
read over the affidavit carefully as he was bound to do he could not possibly havegotthepetitionertoaffirmtothe
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 oathappearstohavebeen
administered either.

Most significantly the very same petitioner who appears to have filedacounteraffidavitsubsequentlydated31.12.2002
undoubtedly discovering the obvious error in the impugned affidavit without leave of court to correct same howeverhaddone
so and clearly and unambiguously in the preamble to that affidavit "declared and affirmed" to thefactsdeposedto,which
appears to be consistent with the jurat clause. The averments in the second affidavit had impliedlyconfirmedtheflawin
the earlier affidavit. Thus the impugned affidavit dated 12.06.2002 is patently defective.
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In the absence of a proper affidavit there is in fact no application and in the circumstance I would rejectthesubmissions
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 Christianand
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'sapplicationrejectedwith
costs.

in the instant case too the deponent although a Muslim who could if he wished to, make oath,oncehavingdonesoatthe
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,thedeponentintheinstant
case who at the preamble made oath but whereas before the Justice of the Peace affirmed to the facts deposedto,couldnot
be considered an instance where there was an omission as contemplated by theprovisionsofsection9oftheOathsand
Affirmation Ordinance.
De Silva v L.B. Finance (3) cited by the learned President's Counsel for the petitioner could bedistinguishedinthatin
the said case cited the affidavit did not carry the word "affirmed"inthejuratclausealthoughinthebodyofthe
affidavit the word 'affirm' had in fact appeared.

Contrary to the submission of the learned President's Counsel for the petitionerthatnoncomplianceofRulesdoesnot
warrant dismissal, I would disagree and respectully concur with the view expressedbyTennekoonC.J.citedinNicholasv
Marcan Marker (4) at 5 wherein His Lordship had in Coomasaru v Leechman & Company(5)heldasfollows-"therulesof
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 procedurallaw.Procedurallawisnot
secondary. The maxim ubi ius ibi remidium reflects the complementary character of civil procedural law. The two branchesare
also interdependent. It is by procedure that the law is put into motionanditisprocedurallawwhichputlifeinto
substantive law gives its remedy effectiveness and brings it into action.
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As stated above the lapse referred to in the affidavit goes to thebasicvalidityoftheaffidavit.Thereisalsono
explanation as to the reasons for the obvious flawoftheaffidavit.InsuchcircumstancesIwouldalsodistinguish
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 thiscourtthat
a faulty affidavit could not be considered a mere technicality but in fact fatal to the entire application and asalsoheld
by this court on numerous occasions a defective affidavit is bad in law and warrants rejection. In any eventthepetitioner
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 inthe
absence of a proper affidavit there being no application, I would uphold the preliminary objection and dismiss thispetition
in limine.

Apart from the above the non compliance by the petitioner of the provisions of Rule 3(2) of the CourtofAppeal(Appellate
Procedure) Rules 1990 also warrants dismissal of the petition asthepetitionerhadadmittedlyfailedtoaverinhis
petition that the jurisdiction of this court had not previously been invokedinrespectofthematterindispute.The
petitioner even failed to explain his failure to comply.
As held in Nicholas v Marken Markar (supra) "the requirement intheRulesthatanavermentbemadestatingthatthe
jurisdiction of court had not been previously invoked in respect of the same matter is mandatory.Noncompliancewiththe
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 whichcaseWimalaratneJ.withSozaJ.
agreeing allowed the petitioner to perfect his petition by the insertionofthemissingaverment,WanasunderaJ.ina
dissenting judgment stated however that even though the rule was directory assubmittedbythelearnedCounselforthe
petitioner, the order of rejection of the Court of Appeal ought not to be disturbed
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Importantly however it must be noted that the final relief granted was a direction to perfect the petition and affidavitand
comply with the Rules. In the instant case however, there is not even an application to perfect thepetitionandaffidavit
thereby warranting the dismissal of the petition on the basis of non compliance of Rules 3(2) of part11oftheCourtof
Appeal (Appellate Procedure) Rules 1990.

In any event it is also not the function of this court to relievepartiesoftheconsequencesoftheirownfollyand
negligence.

As held by Nanayakkara J. (with myself agreeing) in CALA 182/2001P) which refers toasimilarpreliminaryobjection"the
petitioner having been remiss and having not exercised due diligence in preparing his affidavit andhavingfailedalthough
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 courtwarrantthedismissalof
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 beanexercise
in futility.

DISSANAYAKE, J. - I agree

FERNANDO J. - I agree

Preliminary objection upheld.

Application dismissed.

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