MISC. APP 355/2006     2006        A    NO 12

IN THE HIGH COURT OF SIERRA LEONE CIVIL JURISDICTION

IN THE MATTER OF THE PETITION FOR WINDING UP OF ARCADIA MINING COMPANY LIMITED

AND

IN THE MATTER OF THE COMPANIES ACT CHAPTER 249 OF THE LAWS OF SIERRA LEONE 1960

BETWEEN HAROLD G SLONE             -          PETITIONER / REPONDENT

AND

ARCADIA MINING CO LTD                  - 1st REPONDENT/ APPLICANT

MOHAMED SERRY                                - 2NDRESPONDENT / APPLICANT

OSMAN KABBA                                     - 3RDRESPONDENT / APPLICANT

LANSANA FADIKA                               - 4THRESPONDENT / APPLICANT

AND THEODORE BURDEN                  - 5th RESPONDENT /APPLICANT

JANE NEWTON                                      - 6th RESPONDENT /APPLICANT

J B JENKINS JOHNSTON ESQ        FOR THE PETITIONER

ROWLAND WRIGHT ESQ               FOR THE RESPONDENTS

RULING DELIVERED THIS 8th DAY OF MARCH 2007

In this matter Mr. Roland Wright Solicitor for the respondents applied for cross examination of the deponent of the affidavit in support of the motion dated 19th January pursuant to order 27 rule 1 of the High court rules 1960. During the said cross examination the Attorney for petitioner/Applicant stated as follows:

"I recall swearing to an affidavit in Mr. Jenkins Johnston's Office. I knew Mr. Slone about 1 year and some months ago. I do not know what where the things he sent to Sierra Leone. I have authority to make this affidavit: It is with my lawyer. If given the opportunity I will produce it". This was all

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Based on what the attorney for the petitioner said on cross examination the respondent solicitor and counsel made an application for the attorney's affidavit in support of the motion dated 19th January to be expunged from the records. He submitted that

"It is fatal when the deponent himself informed the court that he signed the affidavit in the chambers of my learned friend. This court cannot be seen to condone what amounts to a forgery. This affidavit must be struck out. The witness has clearly indicated that he cannot read or write English and there is nothing to indicate that the deponent understood what he was signing as there was no illiteracy clause".

He referred the court to the following authorities to the effect that affidavits sworn before solicitors was declared void in the case of RE BAGLEY (1911) 1KB 317 CA.; BAKER VS AMBROSE (1896)2 QB 372.

On the fact that irregularities in the jurat cannot be waived by the parties he referred court to PILKINGTON VS HIMSWORTH 1Y&C EX 612. in which it was held that affidavit sworn by illiterate and blind persons not read over to him in the presence of the commissioner were ordered to be taken off the file in the absence of the illiteracy clause. He also referred to the case of RE LONGSTAFFE, 52 LAW TIMES 681

In response counsel for the Petitioner/Applicant submitted that the affidavit was in compliance with the law, it being in compliance with Order 27 rules 4, 5 &13. of the High Court Rules 1960. He challenged the counsel for the respondent to produce any rule of the High Court Rules 1960 which enables the court to expunge an affidavit for the reasons the respondent had proffered . He submitted that the only rule which refers to striking out is Order 27 rule 11 and this was for scandalous matters which clearly did not apply in this case. He submitted that order 27 rule 14 enjoins the court to receive any affidavit not withstanding any defect in form or otherwise in the title or jurat or any other irregularity.

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He observed that it was for the officer taking the affidavit to determine whether or not an illiteracy certificate was necessary. He noted that the witness came to court was ordered to take the witness stand and said clearly that he was the one who made the affidavit and under a challenge from counsel on the other side he signed his name on a piece of paper and that it was the same signature that was on the affidavit. He ended by noting that the respondent had had use of the affidavit in which case all rights to objection has been waived .

In reply the respondent noted that it was not a defect that can be cured. It is not a misdescription. It is deliberate misrepresentation. He pointed out that he has not waived his right noting that it was the applicant's solicitor who had insisted that they should carry on when he had indicated that he wanted to cross-examine the deponent. He submitted that the irregularity was such that it could never be cured by Order 27 Rule 14 in that what has been filed, in view of the defects, was not even an affidavit.

I have listened carefully to the submissions made herein by both counsels. That by the respondent seems very attractive but I am not the least tempted to succumb to it. This is so because never mind what it might appear the deponent attorney for petitioner might have said in the cross examination the application itself was to the effect that the witness signed the affidavit in my Jenkins Johnston's chambers and for lack of an illiteracy clause in view of which the affidavit should be expunged from the records.

On the first ground, I could only say that the submission of the respondent constrains me to bring into focus the latin maxim Omnia Praesumuntor Rite Esse Acta "AH Things Are Prsumed To Be Done Correctly Until The Contrary Is Proved" ; SEE SCOT VS BAKER (1968)2AH E R 993;(1969) 1 OB 659; Could it be doubted that the affidavit was sworn before one Mr. Victor William Horton Commissioner for Oath and justice of the Peace. There is nothing to show to this court officially that this affidavit was sworn before Mr. Jenkins Johnston. The deponent as it were might not be able to appreciate a distinction between signing and swearing but the counsel who made the application is . If

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the complaint is that it was signed in Mr. Jenkins Johnston's chambers, one is of necessity bound to draw a distinction between signing and swearing. The normal situation as it happens is that affidavits are signed in chambers of lawyers before they are taken to be sworn or notarized . I will therefore in the absence of any cogent evidence to show that indeed it was sworn in Mr. Jenkins Johnstons's chambers hold on a presumption of regularity couched in the latin maxim of OMNIA PRAESUMUNTOR RITE ESSE ACTA hold that the affidavit was sworn to where it purports to be sworn even though it might have been signed in Mr. Jenkins' chambers . There is nothing strange or unusual in that. That apart since this court has a discretion to receive the said affidavit if is satisfied that the deponent was indeed the maker of the said affidavit, there can be no doubt that indeed he was the maker as under challenge from the Respondent / applicant he amply demonstrated by his signing in a piece of paper in the same manner as reflected in the affidavit and that he understood what he was signing.

Turning to the issue of the need for illiteracy clause, in view of what has transpired in the cross examination, I could only state that Order 27 rule 13 provides as follows

13. "Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent that the deponent seemed perfectly to understand it , and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate , unless the court or judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent."

In the circumstance it is for the officer, the commissioner for oaths to say whether there is need for the illiteracy clause and not counsel. There is nothing in the cross examination

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suggestive of the fact that the applicant cannot read or write or was blind which the commissioner should have taken note of .Again this submission brings to mind the latin maxim OMNIA PRAESUMUNTOR RITE ESSE ACTA

Since there is no rule which states that affidavit could be expunged on any grounds apart from on scandalous grounds, I hold that the affidavit could not be expunged from the records .

Hon. Mr. Justice D.B. Edwards J.

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