Bakunda Darlington v Dr. Kinyatta Stanley and Another (Civil Appeal 27 of 1996)
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Holding
The Court of Appeal held that an advocate's commission as a commissioner for oaths is dependent on a valid practising certificate; once the certificate expires the advocate ceases to practise and his authority to administer oaths terminates under section 2(4) of the Commissioner for Oaths (Advocates) Act. Acts performed after the period of grace expires are invalid. Consequently, an affidavit sworn before such an advocate is not an affidavit at all and has no legal effect. As the election petition was not supported by a valid affidavit, the High Court was correct to strike it out. The court refused to condone the illegality and dismissed the appeal with costs.
Facts
The appellant was a parliamentary candidate for Kinkizi East constituency in Rukungiri District in the elections held on 27 June 1996. The first respondent won the election. The appellant petitioned the High Court to set aside the election and order fresh elections. At the hearing, the appellant's counsel applied to amend the affidavit accompanying the petition, considering it insufficient. The court found the affidavit had been sworn before an advocate who held no valid practising certificate. The High Court dismissed the application as incompetent and struck out the petition for want of a valid supporting affidavit, ordering the appellant to pay the respondents' costs of the application. The appellant appealed, arguing the affidavit was nonetheless valid in law because the commissioner's commission survived expiry of his practising certificate.
Issues
- Whether an advocate appointed as a commissioner for oaths may continue to serve as such after his practising certificate has expired.
- Whether an affidavit sworn before a commissioner for oaths who is an advocate without a valid practising certificate is a valid affidavit.
Orders
- Appeal dismissed with costs.
- Appellant to bear the costs of the application in the High Court.
Key headnotes
Legislation cited (5)
- Commissioner for Oaths (Advocates) Act (Cap 53) s.2
- Commissioner for Oaths (Advocates) Act (Cap 53) s.4
- Advocates Act s.10
- Advocates Act s.14
- Penal Code Act s.85
Cases cited (3)
- Olwora v Uganda Central Co-operative Union Ltd (Civil Appeal No. 25 of 1992)
- Kabogere Coffee Factory v Haji Twahibu Kigongo (Civil Application No. 10 of 1993)
- Makula International vs Cardinal Nsubuga (1982) HCB 11