Kakoola v Waggwa (Civil Suit 411 of 1987) [1987] UGHC 1 (10 August 1987)

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## IN THE HIGH COURT OF COANDA AT KAMPALA

## STVII. SHITT NO. 411 OF 1987

JOS PH KAKOOZA ........... ... PPLICANT/DEFINDANT

#### "ersuo

TOMRY WASSER ...................................

# Before: The Henourable Mr. Justice A. O. Ouma

### **MULING:**

At the commencement of the hearing of an application by Notice of Notion for leave to bear an application by vay of Notice of Notion brought under 0.37 rr 4 and 9 and under 0.48 r 1, to set aside an ex parts temporary injustion, during the Court Vacation, Mr. Muhumuza learned counsel for the respondent/plaintiff, raised a preliminary legal point of objection. The point was that as Mr. A. T. K. Mukasa is not a proper Condissioner for oaths under our laws, the applicant's affidavit dated 22.7.1987, suorn before him upon which the application is grounded, is incompetent.

The Counsel cited and relied on Section 2 of the Commissioners for Oaths Act particularly sub-section (4) whereof, section 10 of the Advocates not 1970 as amended by the Advocates Act (Amendment) Decree, 1976, and the case of Aristella Kabwinukya v. John Krijna (1978) R. C. B. 251 in which it was held that is the law and practice for courts to refuse to not on a defective affidavit.

Mr. Kasolo for the applicant opposed the objection and submitted that the affidavit was properly before Court as once a Commissioner for Oaths is appointed he remains so irrespective as to whether or not he is practicing advocate. He further submitted in the alternative that the defect was a minor one. It can be cured under section 101 of the Civil Procedure Act.

Section 2 of the Commissioners for Oaths Act is quite explicit. Oaly a person who is a practising advocate, and moreover, for not less than two years practice as such in Uganda is addiately before may be appointed a Commissioner for Oaths. According to subsection (4) of

section 2, his commission scases when he coares to practise as an advocate. By subsaction (3) of Section 10 of the Advocates not as gmonded by the Advocates Act (Amendment) Decree, every advocate who has in force a practising contilled a issued under Degetion (1) thereof, may practice as such in the High Court or in any court subordizate therein.

Elman, Januari Tu. Mahamata High Count Wilo Mo. A. 142. T have found as a fact that his last proclising certificate renewed on the 30th December, 1902, expired on the 31st December, 1982. There is a pending application dated 13.12.1983 for renewal of his practising certificate.

I have no doubt, the position is very clear. At the material, time the affidavit supporting the application for leave, was suorn before Hr. : ukasa, his convission had tensinated consequent to his non-practising as an advocate and as such he was incapable of attesting to a valid affidavit as a commissioner for eaths. In the circumstances, the objection is up held; the affidavit is rejected and or struck out with costs to the respondent/plaintiff.

Defore, I take leave of this matter, I would suggest, quite strongly too, that to avoid or minimise this kind of ombarraphing irrogularities, a list of practising advocates who are appointed Commissioners for only should periodically as need to, be enviowed to ascertain those who are validly practising as such and be issued to the High Court registries and to the registries of the courts' below, for reference by the registries staff before accepting and filing affidavits. I see no difficulty in instituting and observing this procedure, if it is not already in practice.

$\hat{A}$ . O. $\hat{C}$ orinia JUDITI. $10/8/1937$ .

$\frac{1}{100}$ . Ouma

### 10.8.1987:

Mr. Kasolo for applicant present. Counsel for respondent absont. Ruling is delivered and signed.