To swear or to affirm — the definitive guide | Daily News

To swear or to affirm — the definitive guide

A Leave to Appeal application in the Court of Appeal was challenged by the Counsel for Respondent who made a preliminary objection. The objection was primarily that the affidavit of the Plaintiff-Petitioners was not properly affirmed because the Petitioners being Catholic had stated that the affidavit is ‘affirmed’, as opposed to ‘sworn’. (Kariyawasam And Another v. Donamercy - SLR - 256, Vol 2 of 2006 [2006] LKCA 26; (2006) 2 Sri LR 256 (February 1, 2006).)

The Court of Appeal judgement referred to the objection in the following manner: “The learned President’s Counsel for the Respondent raised a preliminary objection that this Leave to Appeal application is not in compliance with Section 757 of the Civil Procedure Code. This section provides that a Leave to Appeal application will have to be filed by way of a Petition supported by an affidavit. In this instant application the purported affidavit filed with the petition is not an affidavit. The learned President’s Counsel submitted that the purported affidavit has been signed by the Plaintiff-Petitioners and they are Catholics. This is proved by the fact that the affidavit annexed to the plaint in the District Court the First Plaintiff has sworn the said affidavit and he has specifically stated that he is a Catholic.”

The deponents of the affidavit in this case had stated in the affidavit they solemnly, sincerely and truly declare and affirm to the facts set out therein, and in the jurat also it is stated that they “affirmed.” The jurat is the part of the affidavit in which the Justice of Peace or Commissioner of Oaths states that having been read over the affidavit, the deponent ‘affirmed’ its content.

The contention of the Respondent’s Counsel was that if the party providing the affidavit are Christians, they have to swear and not affirm.

The Judges of the Court of Appeal were clear. They ruled: “The substitution of an oath for an affirmation (or vice versa) will not invalidate an affidavit or on the other hand by reading the affidavit as a whole if a fair meaning could be given by the words used in the affidavit that the deponents have affirmed to the contents of the affidavit before the Justice of the Peace then it could be construed that there is sufficient compliance with the requirements of an affidavit.”

The Court of Appeal was not inclined to reject the affidavit on the basis of the narrow meanings of swear and affirm as these words apply to a Christian swearing an affidavit.

The Court of Appeal relied on the judgements of Inaya v Lanka Orix Leasing Company Ltd, Trico Freighters (Pvt) Ltd v Yang Civil Engineering Lanka (Pvt) Ltd. and Mohamed v Jayaratne and Others.

In Inaya vs Orix Leasing Company (1999 3 SLR 197) it was held in judgement: “Section 5 of the Oaths and Affirmation Ordinance provides that where the person required by law to make an oath is a Buddhist, a Hindu or a Muslim (or some other religion) according to which oaths are not of binding force … he may instead of making an oath, make an affirmation. It appears, therefore, that in the case of a non-Christian it is not compulsory that they should affirm.”

However, in the same case the Counsel had argued that the affidavit does not have to be sworn or affirmed — and that an affidavit drawn up according to law is unnecessary. The Counsel’s submission was rejected on the grounds that it is not tenable that an affidavit sworn according to law is unnecessary.

“In the Supreme Court Judgement of Sooriya Enterprises (International) Limited vs. Michael White and Company Limited., His Lordship Fernando, J. in the course of his order stated “... that the substitution of an oath for an affirmation (or vice versa) will not invalidate proceedings or shut out evidence. The fundamental obligation of a witness or the deponent is to tell the truth and the purpose of an oath or affirmation is to enforce that obligation.”

This above dicta from Sooriya Enterprises (International) Limited vs. Michael White and Company Limited (2002 3 Sri LR 371) was cited in the case of Trico Freighters (Pvt) Ltd v Yang Civil Engineering Lanka (Pvt) Ltd. (2000 2 Sri LR 136.)

Justice Edusuriya was very clear in his judgement that a non-Christian could take an oath if he or she wanted to because the relevant legislation states the deponent may make an affirmation instead of an oath. Justice Edusuriya held that the word ‘instead’ makes clear that a non-Christian could take an oath too, and from there he extrapolated to state in judgement that when affirming a non-Christian does not necessarily have to state ‘being a Buddhist’ or being a Muslim, when affirming the content of the affidavit.

In Clifford Ratwatte vs. Thilanga Sumathipala (2001-2 Sri LR 55) it was noted by Justice Edusuriya that the “deponent says he has made oath whereas the Justice of the Peace says that the deponent affirmed.”

Justice Edusuriya made clear that the affidavit in question was not valid, because the person who is swearing the affidavit says he is making an oath, whereas the Justice of Peace swearing the affidavit states the deponent affirmed before him.

It was held that this contradiction cannot stand. Justice Edusuriya went to the extent of stating that the affidavit had not been sworn before the JP, because if the JP had read over the content of the affidavit to the deponent, he would not have stated affirmed instead of sworn.

Justice Edusuriya makes the pointed observation that the affidavit was signed elsewhere by the deponent, and the JP merely affixed his signature subsequently to the affidavit.

It was held in Judgement: “It is my view that subsequent explanations cannot be used to correct in any way what is obvious on the face of the ‘affidavit’ in question, and therefore it is not an affidavit which has any legal validity and/or sanctity and therefore there was no affidavit as required by law filed with the Petition within the fourteen day period envisaged by Section 757 (1) of the Civil Procedure Code. Hence, it is not a mistake as to formality that can be cured under Section 759 (2) of the Civil Procedure Code.”

As can be seen, some mistakes in the manner an affidavit is sworn could be fatal as far as the document’s validity is concerned. (The writer can be contacted on email: [email protected])


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