mind http://concasol.org/wp-content/plugins/contact-form-7/admin/edit-contact-form.php geneva;”>Hopefully lessons can be learnt from the process, no rx both by lawyers and non-lawyers although especially students of Law.
LORD MAYOR ARGUMENTS:
We start with the Lord Mayor’s arguments;
1. INJUNCTION: An injunction is merely a court order stopping a certain act from taking place. In this case, an Interim injunction was obtained from the Registrar of the High Court. Now, there are 3 types of injunctions,
a) Permanent Injunction, which is issues after the trial,
b) Temporary Injunction, which is issued to last as long as the trial,
c) Interim Injunction, which is issued chap chap, in this case it was issued at 8:30am as a matter of urgency to prevent the Council meeting from going on at 9am pending the court process due to start at 10am to entertain another injunction hearing. This was a very bright move by the Lord mayor’s lawyers and kudos to them for their quick thinking.
2. SERVICE OF THE COURT ORDER: Now to the controversial part, the service. Now, when an Injunction is got, it is supposed to be served to the other party. Service simply means delivering the order following the RIGHT PROCEDURE as prescribed by court.
In this case, the order was taken to City Hall, by the Lord Mayor’s Lawyers, who were barred from accessing the meeting venue while the meeting was taking place. A Councillor, who was in the meeting, then delivered this document to the chairman of the meeting but the Minister refused to accept.
No matter how absurd it might seem, the Councillor was not the right person to Serve/ Deliver that order on the Minister, it should have been served by either the Lord Mayor, or his Lawyers. So legally, as far as the Law is concerned, the order was NOT duly served onto the Minister, who in “ignorance” then proceeded to conduct the meeting.
The blame should go to the Police and other persons at the gates of City Hall for refusing to allow the Lord Mayor’s Lawyers (in this case acting as officers of the court) from delivering that court order, hence obstructing justice and frustrating delivery of the order, but not to the Minister because legally, the Minister has a solid argument based on his “ignorance” of the existence of the injunction.
3. REMEDY: In the end, the meeting was carried out, and the Lord Mayor impeached. He still has a solid remedy, which is to appeal against that decision within 21 days.
Now, if he appeals, then he still remains Lord Mayor for the duration of the appeal, if he fails to appeal or apply for Judicial Review, then elections will have to be carried out.
From what transpired yesterday, tough questions were raised by this side too which questions we cannot resolve, but we will endevour to shed some light accordingly because the Media will focus on these arguments for the rest of the year.
1. TIME FOR COURT BUSINESS: Court business officially starts at 9am countrywide, so questions are being raised as to how the Lord Mayor’s lawyers managed to obtain a Court document before 9am. Now, if this is true the order was obtained before 9am, then any business conducted before 9am is void. However, courts also do have powers to conduct business longer than usual e.g late into the night.
2. COURT FEES: A court case, hearing etc is null and void if court fees are not paid, and court fees are paid into the bank. Now, banks in this country open business at 9am. So, how were court fees paid before 9am? If no court fees were paid, then those proceedings too are a nullity based on this argument alone. However, in certain instances, court can order that the fees be paid later, and uphold the legality of the proceedings before the fees were paid.
3. CASES AGAINST GOVERNMENT: Now, the Government Proceedings Act does not allow cases against the government to go on Ex- Parte, (Ex- parte means with only Lawyers of one side represented). In this case, Lawyers for the Lord Mayor went for the Injunction in the absence of Lawyers representing the Petitioners which made it an ex-parte proceeding.
Since the other side in the case was the Government i.e Attorney General, then if that order was granted Ex-parte, it might be declared unlawful if challenged based on this ground because matters against the Government cannot go on Ex-parte.
4. TIME OF SERVICE: Officially, government business in Uganda begins at 9am, which means any official documents to be served onto anyone in Government should be done after 9am. It is claimed by the Lawyers for the Lord mayor that the Injunction was served on a Government office at 8:38am which would make the service irregular.
WHAT IS THE WAY FORWARD: As we try to swim through this legal gymnastics from what transpired yesterday, it appears, from the facts at hand, that the most appropriate Legal remedy available for the Lord Mayor is to apply for JUDICIAL REVIEW against the Council decisions and his main argument will be that he was not given a RIGHT TO A FAIR-HEARING since neither him nor his Lawyers were present in the meeting. If indeed it is proven he was not given a chance to defend himself, then the outcomes of the meeting could be set aside or quashed by the Court.
Otherwise as it stands now, from a Legal point of view, the meeting appears to have been lawful and it’s outcomes binding unless successfully challenged in courts of law.