The court considered that the learned justice had allowed an
improperly sworn affidavit on the record of court and the court
observed that the applicant’s counsel had not entered
appearance to cross-examine the witness in order to prove
that the affidavit had been sworn in absence of the
commissioner for oaths.
The court observed that an application for the reference does
not act as bar against further hearing of the case as the judge
still has to exercise discretion to either grant the leave or not.
In the result, the reference was dismissed