Bakunda v Kinyatta & Anor (Civil Appeal No. 27 of 1996)
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Holding
The Court of Appeal held that an advocate's commission to administer oaths under the Commissioner for Oaths (Advocates) Act is tied to his practising certificate. Once an advocate ceases to practise — including by failing to renew his certificate — his authority to act as a commissioner for oaths ends. Consequently, an affidavit sworn before an advocate whose practising certificate had expired is invalid and of no legal effect. As the affidavit supporting the election petition was sworn before such an advocate, it was not an affidavit at all, and the trial court was correct to strike out the petition for incompetence. The appeal was dismissed with costs.
Facts
The appellant was a candidate in the parliamentary elections held on 27 June 1995, in which the first respondent, Dr. Kinyatta Stanley, was declared the winner. The appellant filed an election petition challenging the result, supported by an affidavit. The affidavit had been sworn before an advocate acting as a commissioner for oaths whose practising certificate had expired at the time he administered the oath. The respondents objected that the affidavit was not sufficient, contending that an advocate whose practising certificate has expired ceases to have authority to act as a commissioner for oaths. The trial court struck out the petition for incompetence on the basis that it was not accompanied by a valid affidavit as required by law, and ordered the appellant to pay the respondents' costs of the application. Dissatisfied, the appellant appealed, arguing purely on a point of law as to whether the document presented amounted to an affidavit.
Issues
- Whether an advocate appointed as a commissioner for oaths can continue to serve as such after his practising certificate has expired.
- Whether an oath or affidavit taken before a commissioner for oaths whose practising certificate had expired is valid in law.
Orders
- The appeal is dismissed.
- The appellant to pay costs of the appeal and the costs of the application in the High Court.
Key headnotes
Legislation cited (3)
- Commissioner for Oaths (Advocates) Act s.2
- Advocates Act s.19
- Penal Code Act s.85
Cases cited (5)
- Olwora v Uganda Central Co-operative Union Ltd (Civil Appeal No. 25 of 1992)
- Kabogere Coffee Factory v Hajji Twahibu Kigongo (Civil Application No. 10 of 1993)
- Makula International vs Cardinal Nsubuga (1982) HCB 11
- Emill Williams Guide to the Practice of Supreme Court page 10
- Chitaley & Rao: The Code of Civil Procedure Vol. 3 (1908) pages 1-2