When lawyers go too far and swear the clients’ affidavits

A litigant who filed a leave to appeal application arising from a District Court case in the Court of Appeal could not sign the affidavit that accompanied the petition. Maybe he was out of town and could not get the papers across on time (Jayasundera v. Tilakeratne and Another – SLR – 309, Vol. 1 of 2006 [2005] LKCA 75; (2006) 1 Sri LR 309 (April 26, 2005)

His instructing attorney had signed the affidavit and had sworn the document before a Commissioner of Oaths, effectively making the claims that were being made in the Court of Appeal by himself.

“When the plaintiff-petitioner sought leave to appeal, preliminary objection was taken by the defendant-respondent that there is no proper affidavit filed as required by law as the affidavit tendered was deposed to by one of the instructing attorneys at law, and hence the application should be dismissed in limine,” the Court of Appeal judgement notes.

It was contended by the plaintiff-petitioner that the material on which he relies “are all events that transpired in court and the best evidence that one could place is that of the registered attorney-at-law, as what transpired in court was best known to him than to anyone else and that the registered attorney is the best witness.”

In other words, the petitioner without deposing his own affidavit got his lawyer to do it and contended that the lawyer who was present in the District Court has the best knowledge of the matters at hand concerning the case.

The petitioner relied on the judgement in Kumarasinghe vs. Ratnakumara by Sharvananda J. It is a very strange case, this case under review. Usually as is well known the petitioner signs his own affidavit – or deposes his own affidavit rather – when filing appeal. That is common sense. It is the petitioner’s case after all.

In the case under review the petitioner gets his attorney to swear an affidavit because he says the attorney has the best knowledge of the facts as he was present in Court. This is a case of an Appeal from the District Court. In the DC, the case with regard to a land matter was heard in the presence of the plaintiff – now petitioner’s – attorney, obviously.

The Court of Appeal judgement notes: “The first defendant is the younger brother of the plaintiff, and the second defendant is the wife of the first defendant, the plaintiff was the owner of Lot 4 in Plan 1210. This Lot 4 was sub divided into two lots by the plaintiff in Plan 5075 and Lot 1 gifted to the first defendant.”

Now, the plaintiff, the petitioner in the Court of Appeal gets his instructing attorney to swear the affidavit submitted to the Court of Appeal submitting thereby some of these aforementioned facts about the land in appeal. Bad idea.

In effect, these facts are not firsthand knowledge, i.e., facts known personally to the attorney who deposed the affidavit.

In fact, the Court of Appeal judges called the affidavit “facts related as hearsay.” In other words, the plaintiff who had full knowledge of his land matter had told his attorney that these are the facts, and the attorney had then deposed the affidavit in court swearing in effect that “these are indeed the facts.”

The judges basically said, “no can do.”  It was stated in judgement by Basnayake J who wrote it, that “sometimes a client may not speak the truth and the affidavit could be prepared on falsehood. An attorney-at-law could prepare an affidavit on the basis that the instructions given are truthful. This is not always the case. When an attorney-at-law gives an affidavit on facts which are false, where would he or she be placed? Could the attorney say then the affidavit was prepared on instructions? There is no doubt that even an attorney-at-law is a fit and proper person to depose to the facts in an affidavit, provided those facts are within the knowledge of the attorney-at-law. It cannot be said that it is within anyone’s personal knowledge when facts are gathered through instructions.”

In many ways it could not get stranger than this. The litigant relates the entire story of his land matter to his attorney and the Court says if the litigant swears these facts are true it is a different matter but, when the attorney swears they are true she does not leave allowance for the fact that the litigant may have uttered falsehoods to the attorney.

The judges do not say that in so many words – but this meaning is clearly given in the judgement. But the judgement makes eminent sense. The attorney had to be instructed by the client and the client does not swear his statements when he makes them to his attorney. So how can the attorney then in turn swear the statements were true?

The Court of Appeal therefore held that the affidavit was bad in law. The preliminary objection was upheld, and leave was refused with costs fixed at Rs. 5,000.

However, in a different case a body of lawyers (Lawyers for Human Rights and Development (LHRD)) drew up the affidavit and deposed the affidavit on behalf of a minor in a fundamental rights application. (Nalika Kumudini, Attorney at Law (on behalf of Malsha Kumari vs. Nihal Mahinda OIC Hunugama Police and Others))

The Supreme Court stated in judgement: “On 24.1.96 the petitioner tendered photocopies of the instructions given to LHRD by the petitioner and her mother (X2 and X3), a copy of the statement she made to the Tangalla Police on 6.9.95 (X4), and the draft affidavits prepared by LHRD in accordance with the instructions of the petitioner and her mother (X5 and X6, both dated December 1995).”

It is clear that in this second case the Court allowed the affidavit to be deposed by the attorney on the instructions of the client who was a minor, and who was in hospital and was in no position to depose the affidavit on her own.

The Supreme Court judgement states: “The complainant attorney’s counter affidavit dated 6.5.96 was then tendered. She stated that on 20.11.95 the petitioner and her mother had visited the LHRD office in Colombo, and had given instructions for the preparation of their affidavits (i.e. X5 and X6), but had not come to sign them; and that a few days thereafter the mother had informed LHRD by telephone that they did not wish to pursue the matter.”

The lawyers however ignored the mother’s instructions because the petitioner was the child who had been a victim of a police harassment case. The lawyers filed the application, deposed the affidavits themselves on the instructions of the minor, and prevailed in court, quite a different outcome from the first case.

(The writer can be contacted at abeynayake@gmail.com).


– Daily News Sri Lanka

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