The republic of uganda in the supreme court of uganda at kampala

Commissioners for Oaths (Advocates) Act (Cap. 53):

(a) Section 6

For the Petitioner, Mr. Balikuddembe, submitted that the 1st Respondent’s affidavit accompanying his answer to the petition was defective on the ground that the person before whom the affidavit was sworn, was not disclosed on the face of the affidavit in accordance with S.6 of the Commissioners for Oaths (Advocates) Act (Cap.53). Counsel contended that the law required that disclosure, so that it can be ascertained if that person had the power to administer the oath.

Subsequent to that submission, an affidavit by Lawrence Gidudu, Registrar of the Courts of Judicature, was filed in the proceedings, to prove that it was he who administered the oath to the 1st Respondent, and affixed the seal of the High Court to authenticate his own signature thereon, Under S.4 of the Commissioners for Oaths (Advocates) Act, Registrar Lawrence Gidudu, as such Registrar, has virtue office the powers and duties of a Commissioner for Oaths. His affidavit however, was vigorously objected to, on the grounds that it was filed out of time, and did not cure the defect complained of.

Section 6 of Cap 53 reads as follows:

“6. Every Commissioner for Oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

Section 8 of the Oaths Act (Cap.52) makes the same provision in virtually identical terms. Neither Act, however, expressly requires the Commissioner for Oaths to state in the jurat or attestation that he or she is a Commissioner for Oaths. The form of the jurat set out in the Third- Schedule to the Commissioner for Oaths Rules, includes the expression- “Commissioner for Oaths”, and it is indeed proper and common practice to include it. The provisions of the Act, however, do not make it mandatory to do so. Its omission, in my view, does not make an affidavit invalid. It becomes a matter of evidence whether the affidavit was sworn before a person empowered to take it. That evidence was provided in Lawrence Gidudu’s affidavit. I was not persuaded that, that affidavit should have been rejected on the ground that it was filed after the objection was raised and argued. Owing to the peculiar circumstances of this trial, the Court took a liberal stance, and was not too strict on time for filing the affidavit evidence. I saw no justification to make this the exception. In the result I found that the Respondent’s affidavit was not defective.

(b) Section 5(1)

Mr. Nkurunziza, one of counsel for the Respondent submitted that eleven of the affidavits filed in the proceedings in support of the petition were defective for offending the proviso to sub-section (1) of S5 of the same Act (Cap.53), because they were sworn before Commissioners for Oaths, namely Mr. Birungi and Mr. Kiyemba Mutale, who were on the team of counsel acting for the Petitioner in these proceedings.

The sub-section, so far as is relevant, reads:

“5. (1) A commissioner for oaths may, by virtue of his commission, in any part of Uganda administer any oath or take any affidavit for the purpose of any court or matter in Uganda….

Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding ……..”

Counsel argued that in as much as the proviso is prohibitive, a Commissioner for Oaths who acts in defiance of the prohibition acts without his powers, and consequently the affidavit is not competently commissioned and is not an affidavit. In reply Mr. Balikuddembe confirmed that he had introduced Mr. Birungi and Mr. Kiyemba Mutale to the Court as part of the team of legal counsel for the Petitioner at the commencement of proceedings. He intimated, however, that at the time the affidavits in question were sworn before them, respectively, none of them had instructions to act for the Petitioner. In the alternative, he submitted that while the proviso prohibits a commissioner for oaths from exercising his powers in the stated circumstances, it does not invalidate an affidavit taken by a commissioner who defaults.

Mr. Birungi and Mr. Kiyemba-Mutale were introduced as counsel for the Petitioner on 5th April, 2001. The one affidavit taken by Mr. Kiyemba Mutale is dated 22 March, 2001. The others were taken by Mr. Birungi. Five of them were taken on 23d March, one on 31st March and four on 1St April 2001. There is no evidence to contradict Mr. Balikuddembe’s statement from the bar that on those dates neither Commissioner for Oaths was acting as advocate for the Petitioner. It cannot be said therefore, that either of them exercised the power given by S.5 (1) of Cap.53 in contravention of the proviso. Mr. Nkurunziza did not, and in my view could not, extend his argument to make the prohibition in the proviso retrospective, so as to render the affidavits defective upon the said advocates being instructed subsequently. In view of the foregoing, I need not discuss in detail Mr. Balikuddembe’s alternative argument. I should only mention, however, that I am inclined to the view that the effect of the prohibition is not to divest the power of the commissioner. I am also not inclined to the tendency to visit the fault of an advocate, on an innocent person who was not in a position to avoid or rectify such fault. In the result my conclusion was that the 11 affidavits were competently made and taken.