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.
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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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Comments

2 Comments so far. Leave a comment below.
  1. Emmanuel L. Muwonge,

    I beg to differ. Who “effected” the Order becomes relevant in a number of circumstances not the least of which is, whether the individual serving the Order was, for purposes of compliance with the statute controlling service of process, an adult person, as defined therein. Additionally, the individual serving process, in this case, the Order staying proceedings, must adhere to the protocol as outlined by the controlling statute. Assuming, arguendo, that the said protocol was complied with, service of the Order as characterized herein was effectuated upon delivery of said Order on the intended/designated recipient of that Order.

    As relates to the timing of service [whether the Order came in late or not], saying that this issue is not a legal issue doesn’t tell the entire story. Indeed, whether service has been timely made, is a question of fact for the fact finder. The ultimate question of fact therefore, is whether or not said Order was served prior to the activity that is the subject of the Order. Indeed, if the finder of fact concludes that the Order was served in a timely manner, any activity following the service of said Order becomes, contemptuous and, those participating in said activity would be adjudged to be in Contempt of Court. It is that simple.

    Having so noted, it is incumbent upon me to also add that, if the individual that is the subject of the Order, an attorney or, in this case, a lawyer, who may have caught wind of the issuance of that Order and the content of said Order prior to service of same upon him/her, s/he would be required to cease and desist any activity that is the subject of said Order and to inquire about same before proceeding beyond. The fact that s/he may have not been served with the Order, by itself, would not excuse such lawyer from the requirements imposed upon anyone acting as an officer of the court, to wit, prudently, in good faith and, in furtherance of upholding the law. Certainly, and upon discovering that an Order has been issued, the Canons of ethics would compel any officer of the court to exercise due diligence by inquiring into the existence of such presumed Order, the details and contents of such Order and, upon confirmation, to do the right thing. Moreover, knowledge that an Order has been issued by a competent Court with jurisdiction over the parties and matters in question is, referred to as Constructive Knowledge! Once you have constructive knowledge regarding the existence of a Court Order, the Court will hold you to the same standard as anyone with actual knowledge.

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