FACY v. SANOON AND OTHERS

002-SLLR-SLLR-2003-V-3-FACY-v.-SANOON-AND-OTHERS.pdf


8
Sri Lanka Law Reports
[2003] 3 Sri L.R
FACYv
SANOON AND OTHERSCOURT OF APPEALUDALAGAMA, J.
DISSANAYAKE, J.
FERNANDO, J.
C.A. 1093/2002MAY 19 and 27.2003.
JUNE 9. 2003JULY 9, 2003
Writ of Certiorari – Writ of Quo Warranto – To declare appointment as DeputyMayor null and void – Preliminary Objection – Failure to comply with Court ofAppeal (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 heis free to do, having clearly elected to make oath and swear at the begin-ning of his affidavit, the Justice of the Peace who attested the affidavitcould not have affirmed the petitioner purportedly having stated that heread and explained same to the affirmant. I would consider an affidavitwhich contains both to be totally flawed."
Per Udalagama, J.
“Having regard also to the need to maintain consistency in judgments Iwould also hold as held repeatedly by this Court that a faulty affidavit couldnot be considered a mere technicality but in fact fatal to the entire applica-tion and as also held by the Court on numerous occasions a defective affi-davit is bad in law and warrants rejection."
. (ii). Failure to aver in his petition that the jurisdiction of the Court had notpreviously been invoked (Rule 3 (2)) also warrants dismissal of thePetition – as there is no application to perfect the Petition/Affidavit, tocomply with Rule 3(2).
CA
Facy v Sanoon & others (Udalagama, J.)
• 9
APPLICATION for a Writ of Certiorari and/or Quo Warranto.
Cases referred to :
De Alwis v Unantenne – 76 NLR 180
Ratwatte v Sumathipala – 2001 – 2 Sri LR 55
De Silva v L.B. Finance – 1993 – 1 Sri LR 371 (Distinguished)
Nicholas v Marcan Markar-1981 2 sri LR 1 at 5 (CA)
Coomasaru v Leechman & Company – S.C.217/72 – 307/72 SCM26.5.1996
Fernando v Sybil Fernando – 1997 3 Sri LR 1
Kiriwante v Navaratne – 1996 2 Sri LR 393 (Distinguished)
Marcan Marker v Nicholas – BALR 1986 Vol. I part VI – 245 (SC)Distinguished.
CALA 182/2001 – CAM 2.4.2002
Romesh de Silva P.C., with Hiran de Alwis, Chandimal Mendis and SugathCaldera for petitioner.
D.S. Wijesinghe, P.C., with Sanjeewa Jayawardena and Priyanthi Guneratnefor 1st respondent.
A. Gnanathasan D.S.C., with Janak de Siliva for 2,3,5th respondents.
Day a 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 01a mandate in the nature of a writ of Quo Warranto declaring theappointment of the 1st respondent as Deputy Mayor of Colombo bedeclared null and void and also for a mandate in the nature of a writof Certiorari quashing the decision of the 4th respondent admitted-ly naming the 1st respondent for the said post of Deputy Mayor ofColombo.
Interim relief prayed for on behalf of the petitioner appears notto have' been pursued.
The President of the Court of Appeal having acceded to the 10application made by the learned President's Counsel for the peti- .
10
Sri Lanka Law Reports
[2003] 3 Sri L.R
tioner to constitute a three Bench Division on the basis that thecase of De Alwis v Unantenne 0) was erroneously decided, thematter was taken up before three Judges of the Court of Appeal on19.05.2003.
When the matter was taken up on 19.05.2003 learnedPresident's Counsel for the 1st respondent raised a number of pre-liminary objections to this application and moved that the petitionbe dismissed in limine. Learned counsel for the parties, however,also made submissions on the substantial matters for decision. 20
However, I am inclined to' the view that the preliminary objec-tions raised on behalf of the 1st respondent need to be upheld andthe petitioner's application dismissed in limine inter alia for the fol-lowing fatal lapses which affect the validity of the application as thepetitioner has singly failed to comply with the mandatory provisionsof the Court of Appeal (Appellate Procedure) Rules 1990.
It is to be noted that where the petitioner failed to comply withthe imperative provisions of the aforesaid rules court may ex meromoto or at the instance of any party dismiss such application.
The aforesaid rules mandate that a properly constituted appli- 30cation for relief prayed under Article 140 or 141 of the Constitutionbe made by way of a petition together with an affidavit in support ofthe averments stated in the petition.
It is also manifest that the petition must be accompanied by avalid affidavit as recognized by law.
In the instant case the affirmant to the petition being oneMohammed Facy unambiguously by the preamble to his affidavitdated 12.06.2002 had taken oath and sworn to the facts statedtherein.
That where a person is required by law to make an oath is a 40Buddhi*st, Hindu or a Muslim or some other religion according towhich oaths are not of binding force or has a consciencious objec-tion to make an oath may instead of making an oath make an affir-mation (vide provisions of section 5 of the Oaths and AffirmationOrdinance as amended).
CAFacy v Sanoon & others (Udalagama, J.)11
In the above context the petitioner undoubtedly had a right tomake an affirmation instead of an oath. However, I am of view thatthe petitioner needed to elect one of the two. I would also consideran affidavit which contains both to be totally flawed. The petitionerwho solemnly takes oath and swear, which he is free to do as stat-ed above, having clearly elected to make oath and swear at thebeginning of his affidavit, the Justice of the Peace who attested theaffidavit could not have affirmed the petitioner purportedly havingstated that he read and explained same to the affirmant. It is obvi-ous to this court that the Justice of the Peace had failed to readover the affidavit prior to obtaining the petitioner's signature andthereby ignored the need to observe the sanctity that is necessari-ly attached to an affidavit. If the Justice of the Peace read over theaffidavit carefully as he was bound to do he could not possibly havegot the petitioner to affirm to the averments as had been done videthe jurat clause of the affidavit.
The preamble to paragraph (1) of the affidavit and the juratclause is totally inconsistent. No oath appears to have been admin-istered either.
Most significantly the very same petitioner who appears to havefiled a counter affidavit subsequently dated 31.12.2002 undoubted-ly discovering the obvious error in the impugned affidavit withoutleave of court to correct same however had done so and clearlyand unambiguously in the preamble to that affidavit "declared andaffirmed" to the facts deposed to, which appears to be consistentwith the jurat clause. The averments in the second affidavit hadimpliedly confirmed the flaw in the earlier affidavit. Thus theimpugned affidavit dated 12.06.2002 is patently defective.
In the absence of a proper affidavit there is in fact no applicationand in the circumstance I would reject the' submissions of thelearned President’s Counsel for the petitioner that the affidavit is incompliance with the law.
In Ratwatte v Sumathipala ® Justice Edussuriya (with myselfagreeing) held "the deponent states that he is a Christian andmakes oath, the jurat clause at the end of the affidavit states thatthe deponent has affirmed. The affidavit is defective".
50
60
70
80
12
Sri Lanka Law Reports
[2003] 3 Sri L.R
In Ratwatte v Sumathipala (supra) the objection to the affidavitwas upheld and the petitioner's application rejected with costs.
In the instant case too the deponent although a Muslim whocould if he wished to, make oath, once having done so at the pre-amble had at the end of the affidavit, affirmed to the facts deposedto.
Hence the impugned affidavit is clearly defective.
As also observed by Justice Edussuriya in the case cited aboveon the matter of an omission, the deponent in the instant case who 90at the preamble made oath but whereas before the Justice of thePeace affirmed to the facts deposed to, could not be considered aninstance where there was an omission as contemplated by the pro-visions of section 9 of the Oaths and Affirmation Ordinance.
De Silva v L.B. Finance®) cited by the learned President'sCounsel for the petitioner could be distinguished in that in the saidcase cited the affidavit did not carry the word "affirmed" in the juratclause although in the body of the affidavit the word 'affirm' had in■ fact appeared.
Contrary to the submission of the learned President's Counsel 100for the petitioner that non compliance of Rules does not warrantdismissal, I would disagree and respectully concur with the viewexpressed by Tennekoon C.J.cited in Nicholas v Marcan Market4)at 5 wherein His Lordship had in Coomasaru v Leechman &Company ®) held as follows – "the rules of procedure must not beregarded as mere technicalities which parties can ignore at theirwhims and pleasures".
Rules in my view are essential parts of procedural law, so madeto be followed.
As held in Fernando v Cybil FernandoS6) "There is substantial nolaw and there is procedural law. Procedural law is not secondary.
The maxim ubi ius ibi remidium reflects the complementary char-acter of civil procedural law. The two branches are also interde-pendent. It is by procedure that the law is put into motion and it isprocedural law which put life into substantive law gives its remedyeffectiveness and brings it into action.
CA
Facy v Sanoon & others (Udalagama, J.)
13
As stated above the lapse referred to in the affidavit goes to thebasic validity of the affidavit. There is also no explanation as to thereasons for the obvious flaw of the affidavit. In such circumstancesI would also distinguish Kiriwante v Navaratna W from the facts ofthis case.
Having regard also to the need to maintain consistency in judg-ments I would also hold as held repeatedly by this court that a faultyaffidavit could not be considered a mere technicality but in fact fatalto the entire application and as also held by this court on numerousoccasions a defective affidavit is bad in law and warrants rejection.In any event the petitioner is not entitled to benefit from the obviousambiguity in his own affidavit.
Hence the obviously flawed impugned affidavit filed by the peti-tioner is in my view not a proper affidavit in law and in the absenceof a proper affidavit there being no application, I would uphold thepreliminary objection and dismiss this petition in limine.
Apart from the above the non compliance by the petitioner of theprovisions of Rule 3(2) of the Court of Appeal (AppellateProcedure) Rules 1990 also warrants dismissal of the petition asthe petitioner had admittedly failed to aver in his petition that thejurisdiction of this court had not previously been invoked in respectof the matter in dispute. The petitioner even failed to explain his fail-ure to comply.
As held in Nicholas v Marken Markar (supra) "the requirement inthe Rules that an averment be made stating that the jurisdiction ofcourt had not been previously invoked in respect of the same mat-ter is mandatory. Non compliance with the said rule which is imper-ative would render such application to be rejected".
Although the judgment in the above case was reversed by theSupreme CqurtW in which case Wimalaratne J. with Soza J. agree-ing allowed the petitioner to perfect his petition by the insertion ofthe missing averment, Wanasundera J. in a dissenting judgmentstated however that even though the rule was directory as submit-ted by the learned Counsel for the petitioner, the order of rejectionof the Court of Appeal ought not to be .disturbed.
120
130
140
150
14
Sri Lanka Law Reports
[2003] 3 Sri L.R
Importantly however it must be noted that the final relief grantedwas a direction to perfect the petition and affidavit and comply withthe Rules. In the instant case however, there is not even an appli-cation to perfect the petition and affidavit thereby warranting thedismissal of the petition on the basis of non compliance of Rules3(2) of part 11 of the Court of Appeal (Appellate Procedure) Rules1990.
In any event it is also not the function of this court to relieve par-ties of the consequences of their own folly and negligence.160
As held by Nanayakkara J. (with myself agreeing) in CALA182/2001 (3> which refers to a similar preliminary objection'"the peti-tioner having been remiss and having not exercised due diligencein preparing his affidavit and having failed although an opportunityof amending same had been available dismissed in limine theapplication for non compliance of the Rules.”
For the aforesaid reasons the non compliance with the manda-tory provisions of the Rules of court warrant the dismissal of thisapplication in limine and accordingly the application of the petition-er is dismissed with costs.170
I am also of the view that in the circumstances the determinationof other matters submitted before us would be an exercise in futili-ty.
DISSANAYAKE, J.-I agree
FERNANDO J.-I agree
Preliminary objection upheld.
Application dismissed.