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Day November 26, 2013

This is no way to treat a lawyer serving a court order even if you think the order is not authentic


GUN2
This is no way to treat a lawyer serving a court order even if you think the order is not authentic. Actually, it’s no way to treat a fellow human being. IT IS WRONG simply WRONG and I hope folks involved are held to account. I think the legal fraternity should act coz this manner can’t be tolerated.

gun

They have broken all the basic principles of decency. Anyway apart from walking naked on the streets, there is nothing the regime can do now that can surprise anyone. At that time he was an officer of court because he was having a court document and police was mandated to give him security so that he could serve it on the Minister and the ED.

The police are aware of this coz in the nine months they spend in Masindi they are taught basic legal concepts among which is to use reasonable force and to me that force was too excessive since even the victim of the violence had only come to serve them with a court order. Ugandans don’t deserve this kind of treatment! Am deeply hurt by this torture perpetuated by policemen who are expected to be the custodians of the law!
The lawyer had to do that to make sure Frank Tumwebaze never denies that he was served with the injunction. There are three basic methods are used for service of process:
a) Actual, or personal, service,
b) Substituted service, and
c) Service by publication.

Although each method is legally acceptable, PERSONAL SERVICE (which was used in the instant case, as shown in the photo below) is preferred because it is the most effective way of providing notice and it is difficult for the defendant to attack its legality. Personal service means IN-HAND DELIVERY of the papers to the proper person. The arguments that followed strengthen the lawyer’s case.
Where an order of court is not stayed, either by a successful application or by operation of a specific law, that order is executable and /or complied with by whomever it is directed to and/ or by whomever it has to be complied with.

In the Lukwago scenario, the court order was granted about 45 Mins before the vote at KCCA was made. Suffice to say, minutes before the vote was made, notice / knowledge of the said order was brought to the attention of the presiding chair Frank Tumwebaze; but he trashed it as ‘unauthentic.

Efforts by Hon. Segona to get in in the chambers turned futile as police blocked him from entering, but it was given to a one lukwago supporter who was in the premises and there after passed to Allan Sewanyana one of the LCs who latter brought it to the attention of Frank T. who in effect trashed it as ‘unauthentic’

Needless to state that an interim order is made in all cases in which it appears to the court to be just or convenient so to do. This is for the protection of the court when it is overwhelmed with matters for disposal. Therefore such orders are given under compelling circumstances. ONCE THEY ARE ISSUED THEY HAVE TO BE OBEYED. They are lawful court orders, DISOBEDIENCE OF WHICH WOULD RENDER THE SUBSEQUENT PROCEEDINGS A NULLITY

See the cases of:
a) Burundi Tobacco Co. S.A.R.L & Leaf Tobacco & commodity (U) Ltd v BAT (U) Ltd Civil Appeal Reference No. 22 of 2010,
b) Lweza Clays Ltd & Anor vs Tropical Bank Ltd & Anor, Civil Application No. 129 of 2009.
c) Muwema & Mugerwa Advocates & Solicitor vs. Shell (u) Ltd & 10 others CA CA NO. 18 OF 2011

The issue of whether the order came in late or not or whether there was no service of the court order is not a legal one. What is pertinent for court’s consideration is whether the opposite party was aware of the issuance of that order. That the opposite part had knowledge that an order was issued is itself sufficient. It goes without say that the court order was issued about 45 minutes before the KCCA vote was made & the information about the order went viral.

Adherence to court order is not determined by who serves the order. That it was issued by court is itself sufficient, Period! The legality of wrongful service is a matter that can be contended in the courts of law, if any

The difference is Tumwebaze does not care what the law says, he simply cares what his boss says, Ugandans have made M7 to be above the law, let’s not act like we are surprised about the results.

Do you remember what happened to kasibante, when the EC refused to accept the court orders for interim relief? Don’t be surprised when the Lukwago matters ends up in his favour just as Kasibante did. Lukwago, will undoubtedly will this case on technicality.

There is need to emphasized that the principle of law is that the whole essence of litigation as a process of judicial administration is lost if orders issued by court through the set judicial process, in the normal functioning of courts, are not complied with in full by those targeted and/or called upon to give due compliance/effect. A State organ, or agency or person legally and duty bound to give due compliance must do so. Court orders cannot be issued in vain.” Per HON. JUSTICE MR. BASHAIJA K. ANDREW in the case of MURIISA NICHOLAS Vs. ATTORNEY GENERAL & Others MISC CAUSE NO. 035 OF 2012.

The general principle regarding respect for court orders was stated in Chuck Vs Cremer ( I Coop Temp Cott 342) cited in the judgment of Rooner L. J. in Hadiknson Vs Hadkinson that:

“A party who knows of an order whether null or void, regular or irregular cannot be permitted to disobey it …. It would be most dangerous to hold the suitors or their solicitors, could themselves judge whether an order was null or void – whether it was regular or irregular.

That they should come to the court and not take it upon themselves to determine such a question. That the course of the part knowing an order, which was null or irregular, and might be affected by it was plaint. He should apply to the court that it might be discharged. AS LONG AS IT (the Court order) EXISTED, IT MUST NOT BE DISOBEYED.”

H.O

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Once a party knows of a Court Order, whether null or valid, regular or irregular, he cannot be permitted to disobey it.


This is Councillor Allan Ssewanyana serving the court order to Frank Frank K Tumwebaze. Is there any more proof you need?

This is Councillor Allan Ssewanyana serving the court order to Frank Frank K Tumwebaze. Is there any more proof you need?

Just pondering on the legal ramifications of the continued seating of the KCCA assembly, notwithstanding the issuance of the court order! Imagining if this will not turn out like the Kasibante saga during the recounting of his votes at the Mengo C/ Magistrate court.

Secondly, in as much as i have no problem with the appointment of the 4 professional body of councillors; their swearing in however, under the Local Governments’ Act is so intriguing to brood over; Given the fact that Kampala is no longer a district subject to the aforesaid law, but rather it’s a City governed by an independent law, The KCCA Act.

For record purposes, let us all keep this court order safely if we are to write book about this drama in future.
Once a party knows of a Court Order, whether null or valid, regular or irregular, he cannot be permitted to disobey it.

In the Locus Classicaus case of GEOFFREY GATETE & ANGELLA MARIA NAKIGONYA VS. WILLIAM KYOBE SCCA NO. 7 OF 2005 it was noted that: ‘… the word “effective (service)” means (service of) “having the desired effect; producing the intended result”.’ Thus the intended result is always achieved, once the defendant is aware / informed of the purpose of the Order. And once he is aware, that is sufficient.
guts2

guts3

There can be no doubt that the desired and intended result of serving the court order on the defendant’s agent (Frank Tumwebaze) in the Lukwago Misc Appl was to make the defendant aware of the Orders granted against it / him so that he /it has the opportunity to adhere to the order of the court. The surest mode of achieving that result is serving the defendant in person through its presiding chair (The Minister of kampala- Frank Tumwebaze).

The Gatete case discusses both the concept of ‘effective service’ & ‘what is deemed to be good service’. If fact, it distinguished the two issues. My interest is not on ‘what is deemed to be good service’ because it is not relevant in the present scenario. As long as the service is effective, who effected it, is inconsequential. What is vital is; has the intended purpose of effecting the service been achieved? That is what is of paramount consideration. That the service has been effective supersedes who effects it; and to me that’s what matters the most.

The issue of whether the order came in late or not or whether there was no service of the court order is not a legal one. What is pertinent for court’s consideration is whether the opposite party was aware of the issuance of that order. That the opposite part had knowledge that an order was issued is itself sufficient.

It goes without say that the court order was issued about 45 minutes before the KCCA vote was made & the information about the order went viral.

The validity or invalidity of the court order is not a matter for non adherence of the court order. Whoever has a problem with the regularity of the order has the only recourse of challenging it in the courts of law; but not to disobey it.

I have heard that Justice Nyanzi Yasin has stayed the removal of Lukwago until Thursday.May be council will sit again on Friday this time at 7am.
H.O

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