An illegality can be raised at any time before a court of law, says Justice Bashaija

In the case of Musoke Mike & Another V Kalumba James Revision Cause No: 09 Of 2019.

Before: Hon. Mr Justice Bashaija K. Andrew on 15/05/2020

Musoke Mike and Mubiru Vicent (hereinafter referred to as the “Applicants”) jointly brought this application against Kalumba James (hereinafter referred to as the “Respondent”) under Section 83 and 98 of the Civil Procedure Act Cap 71; and Order 9 r.27 and Order 52 rr.1 and 2 of the Civil Procedure Rules SI 71 –I; seeking for orders of revision. The brief background is that the Respondent sued the Applicants in the trial court vide; Civil Suit No: 105 of 2017. The Respondent obtained an ex parte judgment basing on what the Applicants allege to be a false affidavit of service. The Applicants were subsequently arrested and committed to a civil prison in execution of the ex parte decree. The Applicants then filed Misc. Application No. 62 of 2019 to set aside the ex parte judgment. The trial court also dismissed the application. The Applicants have now brought this application for revision on the ground that the trial court failed to exercise jurisdiction vested in it to entertain the application to set aside the ex parte judgment.

The Respondent opposed this application and stated that the application is frivolous, vexatious, and a mere delaying tactic and an abuse of court process. That even then, the Applicants adamantly sat on this application and failed to effect service upon him for three months. Also, this application brought after two years to challenge the ex parte judgement is an afterthought. Further, this application is improperly before the court and does not meet the grounds for revision, and the complaints raised by the Applicants lack merit. The Respondent insists that the Applicants were duly served with summons and hearing notices and instructed their clerk to serve their lawyers who declined service of the trial court and they are only conveniently denying the said person to avoid paying the judgment.  The Respondent prayed for dismissal of the application with costs.

The applicants raised a preliminary objection as regards the legality of the proceedings. Mr Oriokot Emmanuel, who prepared pleadings and appeared in the main suit and the miscellaneous application in the trial court for the Respondent, is not an enrolled Advocate and has no Practicing Certificate. The applicants then wrote to the Chief Registrar of the Courts of Judicature to find out if Mr Oriokot Emmanuel was indeed an enrolled Advocate and with a valid Practicing Certificate. The Chief Registrar of the Courts of Judicature replied confirming that the said Mr Oriokot Emmanuel is not on the Roll of Advocates.

This renders the proceedings illegal. It is the established position of the law that illegality can be raised at any time before a court of law, and it shall be investigated. In Makula International Ltd vs His Eminence Cardinal Nsubuga& Anor (supra) it was held that;

“A court of law cannot sanction what is illegal, and illegality once brought to the attention of court overrides all questions of pleading, including any admission made thereon.”

The effect of the above provisions is that Mr Oriokot Emmanuel was illegally conducting the proceedings before the trial court. That is inherently fatal to the proceedings. It is an offence against the law for such a person to conduct proceedings before any court of law.

The court found, the proceedings of the trial court and the subsequent judgment, ruling and orders, are null and void. They are of no legal consequence and cannot be sustained. The judgment and orders of the trial court are set aside each with costs to the Applicants. Since the illegality supersedes everything, including pleadings or admission made thereon, the orders sought in respect of the proceedings in the trial court are effectively overtaken the findings herein pertaining to the preliminary objection.

In the case of Musoke Mike & Another V Kalumba James Revision Cause No: 09 Of 2019. Before: Hon. Mr Justice Bashaija K. Andrew on