Hi Emmnanuel,
Thank you very much for your insightful piece. It is free legal education for
which I can only thank you again! Your parents did good to send you to school.
Keep it up, my brother.
Sam
On Tuesday, 26 November 2013, 7:27, Alioni Emmanuel Drajole
<drajole...@yahoo.com> wrote:
ANALYSIS OF THE LORD
MAYOR'S IMPEACHMENT PROCEEDINGS FROM A STRICTLY LEGAL POINT OF VIEW.
Today I thought it prudent to look at yesterday's issue from a PURELY LEGAL
point of view with a focus on both sides, and the possible way forward.
Hopefully lessons can be learnt from the process, both by lawyers and
non-lawyers.
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.
PETITIONER ARGUMENTS:
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.
If you have any questions related to this opinion, send a private message
through the inbox, email to drajole...@yahoo.com
NOTE: THIS IS PURELY
A LEGAL OPINION NOT BASSED ON ANY POLITICAL SENTIMENTS.
ALIONI EMMANUEL
DRAJOLE
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