Of course, A couldn’t swear to B’s affidavit.

Affidavits provided with court applications are not documents that replace someone else’s affidavit. If an affidavit is provided to the court, it must conform to what is primarily expected of an affidavit, that is, it is sworn to verify facts that are within the affiant’s personal knowledge.

In this pending case ((Umma Anina v. Jawahar – SLR – 1, Vol 2 of 2004 [2004] LKCA 17; (2004) 2 Sri LR 1 (October 12, 2004)), it appears that a person who holds a power of attorney for another person has lent an affidavit as if he were the person for whom he holds the power of attorney. In other words, what he swore was to the personal knowledge of the person for whom he holds the power of attorney.

The Court of Appeal record notes the circumstances of the case as follows:

“The defendant-petitioner through his attorney filed this application for review against the judgment on consent rendered by the Learned Additional District Judge of Colombo dated 14.7.2003, on the ground that there was never Respondent-Plaintiff states that the learned judge rendered judgment in favor of the plaintiff and that the alleged settlement was never explained to the petitioner. time and compelled the petitioner to enter into said settlement.

When this question was argued, the following preliminary objections were raised by the plaintiff-respondent. (Please note that only the objection number (i) is listed here in this article for brevity.)

(i) the purported affidavit of the respondent-petitioner’s agent is wrong in law and inadmissible in that the purported affidavit does not comply with Section 183A of the Code of Civil Procedure. »

In other words, a petition for review was filed to challenge a settlement reached in the district court, but the affidavit signed by the petitioner was not only flawed, but was not an affidavit at all, because an affidavit cannot be signed by a so-called power of attorney holder. whether the power of attorney holder lives with the person for whom they hold the power of attorney in the general area within the jurisdiction of the Court. More on that later, though.

A power of attorney is an instrument that allows a person to represent in court or in matters of a legal nature, a person who is abroad and is physically unable to attend matters of a legal nature which concern him. Or, the holder of a power of attorney may represent a person who is unable to attend certain matters of a legal nature due to certain compelling reasons which prevent him from representing himself.

The judgment of the Court of Appeal states:

“It is common ground that the affidavit which was submitted with the petition is from a certain Shahul Hameed, who is the holder of the power of attorney for the defendant-petitioner. In the said affidavit, the holder of the power of attorney declares that “I am the affiant and the attorney for the defendant-petitioner”.

“It should be observed that in the affidavit filed by Shahul Hameed there is no indication that the respondent-applicant is off-island nor is there any assertion that the respondent-applicant is incapable or unable to make the required affidavit.”

It’s not just that the person who signed the affidavit replaced another person and swore on certain facts as if that person was him, he also didn’t swear on facts that were within his personal knowledge. . Obviously, he was not in a position, by his own knowledge, to testify to things that someone else knew by his own knowledge (but he, as deponent, did not. )

The judgment states:

“The proviso in section 183A is similar to the first part of section 181 of the Code which deals with statements that an affidavit may contain. Article 181 states the following:

“Affidavits are limited to the statement of facts to which the declarant is capable, by his own knowledge and observation, of attesting.”

“Besides this infirmity in the said affidavit, compared to the petition, it reveals that the affidavit is no more than a repetition of the assertions of the petition.”

“Reference should be made to the following observation made by SN Silva, J. (as he then was) in Abeywardena v Abeywardena (supra) at 281.”

“The learned district judge observed that the affidavit confirms the allegations of the petition. Indeed, upon comparison, it is revealed that the affidavit is a verbatim repetition of the assertions of the petition. However, the correct test is not whether one confirms the other in a comparison of this nature. The repetition of the assertions of a petition in the affidavit is an evil which is often noted in the affidavits which are filed. The learned judge unfortunately saw a virtue in this evil.

Moreover, an affidavit cannot be a simple addition of a verification clause, an affirmation or an oath to the effect that the statements contained in the request are true, as specified in article 182 of the Code of Civil Procedure. The judgment cited makes it very clear that the purpose of an affidavit is not to repeat the petition, but to ensure that the affidavit testifies under oath to facts which are personally known to the deponent.

The judgment 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 prosecutors to ensure that the rules governing the affidavits to sections 181, 437, etc. of the Code are complied with.

In these circumstances, I am of the opinion that the affidavit of Shahul Hameed contains serious defects which contravene the provisions of Rule 183(A). Therefore, I conclude that there is no valid affidavit before the Court. There is therefore no valid request for review in the absence of a valid affidavit.

The Court also held that the Petitioner does not have the right to make the request for review through his agent, as the Petitioner resides within the local limits of the Court’s jurisdiction.

The respondent petitioner lived within the local limits of the Court’s jurisdiction and therefore the purported power of attorney holder could not hold the respondent petitioner’s power of attorney. In other words, a lawyer cannot be appointed to represent the interests of a person if that person relying on such power of attorney resides within the jurisdiction of the Court.

The judgment states:

“Looking at the caption of the petition and the affidavit filed in the application for review, 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.

He was tried in William Silva v. Sirisena (68 NLR 206) that a person holding a power of attorney as an agent of a party is prevented by Article 25 (b) of the Code of Civil Procedure from appointing an attorney on behalf of his principal, if the latter ci lies within the jurisdiction of the court at the time the action is brought therein. »

It is therefore clear that if the ‘principal’ and the holder of the power of attorney reside within the jurisdiction of the court, the holder of the power of attorney does not have the right to act on behalf of the ‘principal’ as its recognized agent.

This matter under consideration was such a bad request for review that even the petitioner’s attorney had accepted in his written submissions to the Court that the petitioner’s affidavit was flawed under s. 25(b) of the Code of Civil Procedure, because the defendant-petitioner — “according to the lawyer’s admission” — lies within the jurisdiction of the court seized of the motion.

It goes without saying that the application for review was dismissed with costs.

Denise W. Whigham