THE RUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. APPL. NO. 186 OF 2014
(ARISING FROM CIVIL SUIT NO. 166 OF 2014)
M/S KRISH IMPEX LTD . …………………………………… APPLICANT
UNION LOGISTICS (U) LTD ……………………………… RESPONDENT
BEFORE HON. JUSTICE FLAVIA SENOGA ANGLIN
This was an application for leave for unconditional leave to appear and defend made under 0.36 r 3 and 0.52 r 1 C.P.R.
The application was supported by the affidavit of Ganatra Girdharil the operations manager of the Applicant Company. The affidavit in reply opposing the application was sworn by one Hitesh Shah.
When the application was called for hearing on 30.04.14, Counsel for the Respondent sought to be allowed to cross examine Ganatra Girdharil, the deponent of the supporting affidavit. After the cross examination, the deponent was re-examined by his Counsel, whereupon, Counsel for the Respondent raised a preliminary objection concerning the validity of the supporting affidavit. He claimed that since the affidavit was not sworn before a Commissioner of Oaths, there was no affidavit in support of the application and therefore it could not stand.
In cross examination the deponent stated that the affidavit was signed by him at his shop and handed them over to his lawyer, while in re-examination, he stated that he signed the same before a Commissioner of Oaths.
Counsel for the Respondent contended that the Applicant’s evidence that affidavit was signed at his shop was a violation of the mandatory requirement that an affidavit has got to be sworn before and signed by a Commissioner for Oaths. He cited the case of Kakooza John Baptist vs. Election Commission and Another S.C, Election Petition Appeal No.11/2007 and Muhammed Majyambere vs. Bhakresa Khalil HC MA 727/11, where the courts pronounced on the effect of the SS 5 and 6 of the Commissioner for Oaths (Advocates) Act and rule 7 made there under.
Counsel for the Applicant denied that the supporting affidavit offends the provisions of S.5 and 6 of the Commissioner for Oaths (Advocates) Act. He argued that it’s the deponent’s evidence that he signed the affidavit before a Commissioner of Oaths, although it was signed at his shop. The case of Ephraim Turinawe vs. Molly Kyalimpa Turinawe SCCC Reference No. 01/2012 was cited in support, where a Deponent testified that the affidavit was signed in the office of her lawyer – court held that, that did not mean that the Commissioner of Oaths was not there, since the affidavit showed it was signed in Kampala. And that it was up to Counsel contesting the affidavit to cross examine the deponent to prove that the Commissioner for Oaths was not present but not for the Respondent to prove that Commissioner was there”
Counsel for the Applicant relied upon the holding in that case to argue that in the same way, it was up to Counsel for Respondent to cross- examine the deponent top prove that the Commissioner Jacob Osilo was not at the shop premises.
The case of Kakooza John Baptist (Supra) was distinguished from the present case in that, in that case the deponent admitted having sworn the affidavit and sent it to the Commissioner. While the case of Mohammed Majyambere (Supra) was distinguished from the present case because Counsel for the Applicant in that case conceded that the signature on the affidavit had been photocopied and Applicant had not appeared before the Commissioner of Oaths.
Counsel urged court to exercise its inherent powers under S.98 C.P.R and make such orders necessary for the ends of justice and prevent abuse of the court process.
He also cited the provisions of Art 126 (2) (e) of the Constitution and prayed court to overrule the objection.
Counsel for the Respondent, put in his rejoinder by way of written submissions, which are on record. He cited S.5 of the Commissioner for Oaths (Advocate) Act and S.6 of the Oaths Act to argue that the Applicant did not appear before the Commissioner and take oath and the place and date of attestation must be stated, which according to him had not been done.
Having heard the submissions of both Counsel and upon giving them the best consideration. I can in the circumstances; I find that I must over rule the preliminary objection. The reasons for the decision are the following:-
The affidavit complained of clearly indicates that it was sworn / affirmed at Jinja on the 21.03.14. It bears an original signature which is not disputed to be that of the Applicant. It also bears the stamp and signature of the Commissioner of Oaths Jacob Osilo, an Advocate in Jinja.
No evidence was enlisted from the Applicant to show that the manner in which he saw the affidavit breached the law. Though he stated that he signed the affidavit at his shop, he was not asked by Counsel for the Respondent whether the Commissioner of Oaths was present or not.
Under S. 4 (1) of the Commissioner for Oaths (Advocates) Act, a Commissioner for Oaths can commission an affidavit anywhere in Uganda for the purposes of any court. In any case, in cross examination, the Applicant clearly replied that he swore the affidavit before a Commissioner of Oaths.
I am persuaded the decision in the case of Engineer Ephraim Turinawe and Another (Supra) – where their Lordships considered the provisions of S. 5 and 6 of the Oaths Act and concluded that “signing the affidavit in Counsel Kaggwa’s chambers does not mean that the Commissioner Deo Bitaguma was not there and Counsel for the Applicants should have inquired as to whether the Commissioner was in chambers”.
Applying the holding to the present case, I find that since the affidavit showed it was sworn in Jinja, where the Commissioner of Oaths is, it was up to Counsel for Respondent to prove that Jacob Osilo was not at the Applicant’s shop. As held by the Supreme Court, the Applicant did not have the evidential burden to prove that Commissioner Osilo was present.
The case of Kakooza John Baptist (Supra) is distinguishable – the appellant in that case is an Advocate who admitted that he swore the affidavit and sent it to the Commissioner – meaning that he never appeared. As an Advocate, he ought to have known better.
The Applicant in the present case is a lay person – he could not be expected to know that not every lawyer is a Commissioner of Oaths, and that every Commissioner of Oaths is a lawyer. Counsel for the Respondent in his cross examination ought to have made a clear distinction between just a lawyer and a lawyer who is a Commissioner of oaths.
In Majyambere’s case (Supra), the affidavit was also rejected because the signature on the document was either photocopied or scanned and placed on the affidavit. The deponent never appeared. The signatures of the deponent and of the Commissioner of Oaths in the present case are not disputed as being authentic.
As to the Applicant’s submission that the objection is a mere technicality under Art 126 (2) (e) of the Constitution and only intended to frustrate the bonafide defence of the Applicant, I agree with Counsel for the Respondent that the position as regards the article has been settled by the Supreme Court. “… the Article was never intended to do away with rules of procedure”. – See __ Industries Ltd vs. Attorney General SCCA No. 52/95.
The Supreme Court in the case of Byaruhenga & Co. Advocates vs. UDB SCC.A 2/2007 left it to the discretion of the judge in the circumstances of each case to decide whether in the circumstances of a particular case and the dictates of justice, a strict application of the law should be avoided.
In the circumstances of the present case with the impugned affidavit signed by the Deponent (Applicant) and with the signature and the stamp of the advocate not disputed and for all the other reasons already stated, I find that the Respondent has failed to prove that the affidavit was not signed before a Commissioner of Oaths.
The preliminary objection is accordingly over ruled. The application is supported by an affidavit and should be heard on merit. The costs will abide the outcome of the application.
Flavia Senoga Anglin