Affidavits that are provided along with petitions in Court are not documents that are a place-holder for someone else’s affidavit. If an affidavit is provided in Court it ought to conform to what’s primarily expected of an affidavit which is that it is sworn to verify facts that are within the personal knowledge of the deponent. 
In this case under review ((Umma Anina v. Jawahar - SLR - 1, Vol 2 of 2004 [2004] LKCA 17; (2004) 2 Sri LR 1 (October 12, 2004)) it seems a person who is a Power-of-Attorney holder for another individual swore an affidavit as if he is the person who he is holding the Power of Attorney for. In other words what he was swearing to, was within the personal knowledge of the person who he is holding the Power of Attorney on behalf of.
The Appeal Court case record notes the circumstances of the case as follows:
“The defendant-petitioner through his Power of Attorney holder filed this application in revision against the consent judgement entered by the learned Additional District Judge of Colombo dated 14.7.2003, on the basis that there never was a settlement. The defendant-petitioner states that the learned Judge had entered the judgement in favour of the plaintiff and the alleged settlement was never explained to the petitioner. He further states that the learned Judge was out of judicial temperament at that moment and forced the petitioner to enter into the said settlement.
When this matter was taken up for argument the following preliminary objections were raised by the plaintiff-respondent. (Please note that only objection number (i) is listed here in this article for purposes of brevity.)
(i) the purported affidavit of the Power of Attorney holder of the defendant-petitioner is bad in law and inadmissible in that the purported affidavit is not in conformity with section 183A of the Civil Procedure Code.”
In other words a revision application was made challenging a settlement made in the District Court, but the affidavit sworn by the petitioner was not only flawed but was not an affidavit at all because an affidavit cannot be sworn by a so-called Power of Attorney holder if the Power of Attorney holder is living with the person he is holding the power of Attorney for in the general area in which the jurisdiction of the Court falls. More about that later, though.
A Power of Attorney is an instrument that enables a person to represent in Court or in matters of a legal nature, an individual who is abroad and is physically unable to attend to such matters of a legal nature that concern him. Or the Power of Attorney holder may be representing someone who is unable to attend to certain matters of a legal nature due to certain compelling reasons that prevent him from representing himself.
The Appeal Court judgement states:
“It is common ground that the affidavit that was tendered with the petition is from one Shahul Hameed, who is the Power of Attorney holder of the defendant-petitioner. In the said affidavit the Power of Attorney holder states that “I am the affirment and the attorney of the defendant-petitioner”.
“It is to be observed that in the affidavit filed by Shahul Hameed, there is no averment to state that the defendant-petitioner is out of the island nor is there an averment that the defendant-petitioner is unable or incapable to make the required affidavit.”
It’s not just that the person who was swearing the affidavit stood in for another person and swore to certain facts as if that person was him, he also didn’t swear to facts that were within his own personal knowledge. Obviously he wasn’t able of his own knowledge to testify to things that somebody else knew of their own knowledge, (but he as deponent did not.)
The judgement states:
“The proviso to section 183A is similar to the first part of section 181 of the Code which deals with as to what statements may an affidavit contain. Section 181 states as follows:
“Affidavits shall be confined to the statement of such facts as the declarant is able of his own knowledge and observation to testify to.”
“Besides this infirmity in the said affidavit, when compared with the petition reveals that the affidavit is nothing more than a repetition of the averments of the petition.”
“It is apt to refer to the following observation made by S.N. Silva, J. (as then he was) in Abeywardena v Abeywardena (supra) at 281.”
“Learned District Judge has observed that the affidavit confirms the averments in the petition. Indeed, on a comparison it is revealed that the affidavit is a verbatim repetition of the averments of the petition. However, the correct test is not to consider whether one confirms the other upon a comparison of this nature. Repetition of the averments of a petition in the affidavit is an evil that we often note in affidavits that are filed. Learned Judge has regrettably seen a virtue in this evil.”
Furthermore an affidavit cannot be a mere addition of a verifying clause, an affirmation or oath to the effect that the statements in the petition are true, as made clear in section 182 of the Civil Procedure Code. The judgement cited makes it abundantly clear that the point of an affidavit is not to be repetitive of the petition but to make sure that the affidavit bears sworn testimony to matters that are personally known to the deponent.
The judgement held:
“In Kanagasabai v Kirupamoorthy (62 NLR 54) the Supreme Court held that when affidavits are filed in civil proceedings, it is the duty of Judges, Justices of the Peace and Proctors to see that the rules governing affidavits in sections 181, 437 etc. of the Code are complied with.
In these circumstances, I am of the view that the affidavit of Shahul Hameed has serious defects which contravene the provisions of section 183(A). Accordingly, I hold that there is no valid affidavit before the Court. Hence there is no valid application for revision in the absence of a valid affidavit.”
The Court also held the petitioner is not entitled to make the application for revision through his Power of Attorney holder as the petitioner resides within the local limits of the jurisdiction of the Court.
The defendant petitioner lived within the local limits of jurisdiction of the Court and therefore the purported holder of the Power of Attorney could not hold the power of Attorney of the defendant Petitioner. In other words an Attorney could not be appointed to represent the interests of any person if that person who relies on such a Power of Attorney resides within the jurisdiction of the Court.
The judgement states:
“By looking at the caption of the petition and the affidavit filed in the application in revision, both the defendant-petitioner, namely, Aliya Buhari Umma Anina and the Power of Attorney holder, Shahul Hameed, reside in the same house at No. 20/7, Ketawalamulla Lane, Colombo 9, within the local limits of the jurisdiction of this Court.
It was held in the case of William Silva v. Sirisena (68 NLR 206) that a person holding a Power of Attorney as the agent of a party is debarred by section 25(b) of the Civil Procedure Code from appointing a proctor on behalf of his Principal, if the Principal is residing within the jurisdiction of the Court at the time the action is instituted there.”
Hence it is clear that if the ‘Principal’ and the Power of Attorney holder reside within the jurisdiction of Court, the Power of Attorney holder is not entitled to act on behalf of the ‘Principal’ as his recognized agent.
This case under review was such a bad application for revision, that even the Counsel for the petitioner had accepted in his written submissions to Court that the affidavit of the petitioner was flawed in terms of section 25(b) of the Civil Procedure Code as the defendant-petitioner — ‘on the admission of counsel’ — resides within the jurisdiction of the Court to which the application was made.
Almost needless to say, the application for revision was dismissed with costs.
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