Elogu and Another v Ocen (Miscellaneous Application No. 78 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court held that a commission granted to an advocate as Commissioner for Oaths under Section 1 of the Commissioners for Oaths (Advocates) Act does not automatically terminate upon expiry of the advocate's annual practicing certificate. The commission continues until revoked by the Chief Justice or until the advocate ceases to practice. Where an affidavit is commissioned by an advocate whose practicing certificate has lapsed, Section 14A of the Advocates Act 2002 protects innocent litigants by allowing time to rectify the defect rather than dismissing the application.

Outcome

Application allowed to proceed subject to filing of fresh affidavits within fifteen days

Facts

The applicants sought leave to appeal out of time from a judgment delivered on 15 September 2021 in Civil Suit No. 003 of 2016 by the Chief Magistrate's Court at Amuria. The applicants claimed they were not notified of the judgment date and only learned of it on 10 May 2022 when the respondent began cultivating the disputed land. The respondent raised a preliminary objection that the affidavit supporting the application was defective because it was commissioned by an advocate whose practicing certificate had expired in 2018. The court addressed the preliminary objection before considering the substantive application.

Issues

1. Whether an affidavit commissioned by an advocate without a current valid practicing certificate is valid and can support an application.
2. Whether Section 14A of the Advocates (Amendment) Act 2002 applies to cure defects in affidavits commissioned by advocates without valid practicing certificates.
3. Whether the expiry of an advocate's practicing certificate automatically terminates their commission as a Commissioner for Oaths.

Orders

• Applicants granted fifteen days from the date of this ruling to file fresh affidavit(s) in support of the application duly commissioned by an advocate with a valid practicing certificate.
• Costs arising from the preliminary objection to abide the outcome of the application.

Rules and key headnotes

Legislation cited (11)

• Civil Procedure Act Cap 71 s.98
• Civil Procedure Act Cap 71 s.96
• Civil Procedure Act Cap 71 s.79(1)(b)
• Judicature Act Cap 13 s.33
• Civil Procedure Rules SI 71-1 Order 52 Rules 1 and 3
• Advocates Act Cap 267 s.14(1)
• Advocates Act Cap 267 s.10
• Advocates Act Cap 267 s.11
• Advocates (Amendment) Act 2002 s.14A
• Commissioner for Oaths (Advocates) Act Cap 5 s.1
• Commissioners for Oaths Act s.4

Cases cited (5)

• Alfred Olwora v Uganda Central Cooperative Union Limited (Civil Appeal No. 25 of 1992)
• Prof. Syed Huq v Islamic University in Uganda (Supreme Court Civil Appeal No. 47 of 1995)
• Hon. Lokeris Samson v Komol Emmanuel and the Electoral Commission (Election Petition Appeal No. 009 of 2021)
• Ochwa David v Ogwari Polycarp and Electoral Commission (Election Petition Appeal No. 16 of 2021)
• Male Wilson v Kayondo Fred and Another (Election Petition Appeal No. 27 of 2021)

The original judgment as reported. Read the original PDF before relying on any passage.