CIVIL PROCEDURE TWO COURSE WORK “Commissioning of Affidavits, implications

and effects of noncompliance”

OKELLO MOSES 2021-B411-11714, DAAKI ISABELLA NAZARETH 2021-B411-10870

NABYONGA AGNES 2021-B411-11365

An affidavit must be commissioned by a competent person; failure whereof renders it incurably

defective, this means that The commissioner for Oaths must have a valid practicing certificate as

an advocate or else the affidavit is invalid and of no effect.

In the case of Darlington Bakunda Vs Stanley Kinyatta1, this was an appeal by Darlington

Bakunda against the judgement of Justice Lugayizi, the brief acts leading to the appeal as

maybe gathered from the records of the court below are as follows; the appellant was a

parliamentary candidate for the constituency of Kinkizi East in Rukungiri District in the

elections which were held on the 27th-06-1996. He contented with the first respondent Dr.

Kinyatta who won the elections. The appellant petitioned the high court an order to set aside the

elections and new elections be held in the constituency.

When the Petition came up for hearing, the appellants counsel applied to court to amend the

affidavit accompanying the petition because in his (counsel) view the affidavit was not sufficient.

The court heard the application and dismissed it on grounds that it’s in competent as the affidavit

which was to be amended had been sworn before an advocate who had no practicing certificate.

Court then struck out the petition for incompetence as it was accompanied by an affidavit as

required by the law. Court ordered the petitioner to pay cost to the two respondents

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The appellant being dissatisfied with the decision against the ruling and still on appeal judging

on the arguments of three advocates two central points were agreed upon, one of which was

whether the advocate who had been appointed by the commissioner of oath under the provisions

of section 2 of the commission for oath (Advocates) Act can continue to serve as the

commissioner for oath after his practicing certificate has expired? and secondly what was the

effect of the oath or affidavit taken before commissioner for oath who is an advocate and whose

certificate has expired at the time he administered the oath ?

Mr. Mwesigwe Rututana counsel for the respondent submitted that an advocate does not qualify

to be appointed as a commissioner for oath unless he is in possession of a valid practising

certificate and once his practising certificate expires his authority to serve as a commissioner for

oath also ends

It was held on issue one that an advocate whose practising certificate has expired cannot legally

continue to administer the oath to anybody since his practising certificate is the basis upon which

the commission for oath operates as per provisions of subsection 2 and 4 of section 2 of the

commissioner for oaths (Advocates)Act.

Issue two, Mr. Mwesigwa insisted that any act done by an advocate after the first day of March

when he has to renew his practising certificate is invalid and has no legal effect by virtue of

section 14 of the Advocates Act. Thus appeal was dismissed with costs.

The Implications and effects of non-compliance of commissioning affidavits

The commissioner for Oaths must have a valid practicing certificate as an advocate otherwise

the affidavit is invalid and of no effect. In the case of Otim Nape George William vs. Ebil Fred
& Anor2,Justice Stephen Musota stated that under the Commissioner for Oaths (Advocates) Act

Cap 5, the Chief Justice appoints practicing Advocates who have practiced for not less than two

years in Uganda prior to making the application for appointment, and who are certified to be fit

and proper persons by two other advocates to be commissioners for Oaths. That this appointment

is published in the gazette. Each commission terminates forthwith on the holder thereof ceasing

to practice as an advocate. That for an advocate to practice law, must have a valid practicing

certificate. That it is on the basis of this that an Advocate can continue to be a commissioner for

oaths. The commission granted to an advocate under the Act goes with a practicing certificate.

That once an advocate has ceased to practice as such the commission also ceases. That therefore

an advocate whose practicing certificate has expired cannot legally continue to administer an

Oath to anybody since his/her practicing certificate is the basis upon which the commissioner for

oaths operates. That regarding the effect on the validity of an affidavit commissioned or

documents filed by an advocate whose certificate had expired, documents filed after expiry of

the days of grace were invalid.

In the case of MS Job Connect (U) Ltd vs. DFCU Bank3, the application was for leave to appear

and defend civil suit brought under O36r 3 & 4 and O 52 r 1& 24 supported by an affidavit.

Justice Hellen Obura while considering the affidavit commissioned by Mr. Semakula Augustine

held that it is clear from the ruling that Mr. Semakula Augustine was suspended from legal

practice for a period of two years with effect from 31st August 2012. It follows that any affidavit

commissioned by him during the period of suspension would be incurably defective and court

can only strike it out. That the affidavit in support of the application commissioned on 22nd July

2014 a month and nine days before the period of his suspension lapsed on 31st May 2014. The
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Civil Procedure Rules
affidavit in support is incurably defective and is accordingly struck out thereby leaving the

application unsupported. That the next question is therefore whether the notice of motion can

stand without an affidavit in support. The judge cited the case of Kaingana vs. Dabo Boubou

[1980] HCB] 59 for the authority that where an application is grounded on evidence by an

affidavit, a copy of the affidavit intended to be used must be served with the application. In such

a case the affidavit becomes part of the application. The notice of motion cannot on its own be

complete application without the affidavit. That in the instant case the notice of motion was not

enough. That following the above authorities the application was incompetent without the

supporting affidavit and cannot stand. That applications under O. 365 are grounded on evidence

by affidavit and therefore an affidavit is mandatory requirement. Any application that does not

comply with the requirement would be incompetent.

Where an affidavit is deponed by an advocate, the matter should not be contentious, otherwise

advocates are barred from deponing affidavits on contentious matters. Jayanth Amrathlal and

anor v Prime Finance Co Ltd. The applicant, through M/S MWM Advocates & Solicitors, filed

an application for leave to appear and defend a suit. The Application was supported by an

affidavit deponed to by Mr. Steven Mwandha, one of the advocates in M/s MWM Advocates and

solicitors it was held that the application was dismissed because the said application was

supported by an affidavit sworn by an advocate who is barred by the advocates Professional

conduct Regulations from deponing affidavits on contentious matters which he has as an

advocate cannot thus prove, Regulations 9 of the Advocates6 (professional conduct)

Regulations )1979 and thus incurably defective.

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Professional conduct Regulations 1979
The documents filed become invalid documents.

The invalid documents can be struck out by the court.

However, under section 37 a magistrate and registrar are ex officials of the Commissioner of

Oaths and are permitted to serve as commissioners for oaths even though they are not

advocating.

In the case of MS Job Connect (U) Ltd vs DFCU Bank8 The application was brought before

court for leave to appear and defend under Order 369 rule 3 for judgment in default of application

for leave to defend and rule 4 for application to be supported by affidavit and served on the

plaintiff, and order 52 supported by affidavit. justice Hellen Obura while considering the

affidavit commissioned by Mr. Semakula Augustine held that it is clear that Mr. Semakula was

suspended from legal practice for a period of two years. Any affidavit commissioned by him

during that period of suspension would be would be incurably defective and court can only strike

it out. An affidavit in support was commissioned on 22nd July 2014 a month and nine days before

the period of his suspension lapsed on 31st May 2014, is incurably defective and is struck out

thereby leaving the application unsupported. The application was incompetent without the

supporting affidavit therefore it cannot stand. An affidavit is a mandatory requirement therefore

the applications under order 36 or the Civil Procedure Rules fail as well.

An affidavit which is not commissioned is rightly rejected by the court. In the case of Kakooza

John Baptist vs Electoral Commission and Yiga Anthony10 Elections were held and the second

respondent was declared the winner. The appellant was dissatisfied with the outcomes of the

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Supreme Court EPA No 11/1997
election and sued claiming non-compliance with the laws which affected the outcome of the

election. Justice Mugamba heard the petition and answered all the agred issues in the negative

that none had been proved to the satisfaction of court. They appealed on various grounds

including whether the learned Justices of Appeal erred in law and fact in holding that he

appellants affidavit in rejoinder was incompetent. In his Judgment, Justice Bart Katureebe held

that the practice where a deponent of an affidavit signs and forwards the affidavit to a

commissioner of oaths without him being present is a blatant violation of law. A commissioner

who commissions an affidavit without seeing the deponent cannot say that the affidavit was

taken or made before him or her. Equally the deponent cannot claim to have taken or made the

affidavit before the commissioner of oaths. This ground is truly without merit and it must fail.

Similarly, advocates are barred from deponing affidavits on behalf of their client Ismail v

Kamukama and court held that, Counsel Jombwe's affidavit was defective because as counsel he

could not in the same cause depone of matters substantive and contentious pertaining to the

allocation of the suit premises and this offended against regulations 9 of the Advocates

(Professional conduct) Regulation 1977. But this did not in any way render the notice of motion

defective because it was still supported by affidavit of Kyeyune.