With full knowledge that the bank had carried out illegalities, it decided to call for an independent joint audit in trial to preempt the acts of illegality so as to save their illegality based and questioned defense.
We can authoritatively report that Diamond Trust Bank Uganda and Kenya that have been trying to fight a losing battle have finally lost in a landmark Court Ruling.
This comes after a court order was granted in favor of Ham, nullifying and Halting Diamond Trust Bank’s Audit as it is repugnant to Article 28 of the Ugandan Constitution which provides a right for every Ugandan to fair hearing.
In January 2020, Ham Enterprises dragged Diamond Trust Bank Uganda and Kenya to Court for fraudulently debiting over Ugx. 120Billion from their Shillings and Dollar accounts. The Bank having failed to refund the unlawfully debited monies from the company’s accounts, Ham Enterprises instituted legal action against the Bank for recovery of the same. Diamond Trust Bank responded by alleging demand of Ugx. 39Billion and asking the court to Impose regulation 13 that was just smuggled into the mortgage act onto Ham Enterprises.
Ham Enterprises however objected as the Company was the Victim to the Bank’s fraud and perhaps the Plaintiff hence regulation 13 could be interfering with their right to fair hearing as provided in the constitution. A landmark win was registered in favor of Ham Enterprises with Diamond Trust Bank Conceding as the regulation was ruled out of Ham’s Case.
Tycoon Hamis Kiggundu with his lawyers at High Court
The High Court resultantly allowed the hearing of The Company’s Shs 120 Billion fraud case filed against Diamond Trust Bank (Uganda and Kenya) to proceed.
With total patriotism to save all fellow countrymen from the Bankers impunity and exploitation as provided by this regulation, Ham Enterprises U Ltd additionally petitioned the Constitutional court Challenging the Constitutionality of Regulation 13 of the Mortgage act, that requires Bank Customers to first deposit 30% of the disputed amount in the filled case before the hearing can proceed, seeking this act to be outlawed from
the Constitution of the Republic of Uganda.
On August 28, 2020, Ham Enterprises through their lawyers Fred Muwema and Arnold Kimara, further filled a preliminary objection asking court to dismiss Diamond Trust Bank Uganda and Diamond Trust Bank Kenya’s Joint Defense as it arises from an illegality given the fact that Diamond Trust Bank Kenya was conducting Financial
Institutions Business in Uganda without a license that permits it to do business in
Uganda, an act that is contrary to the Financial Institutions Acts of both Uganda and Kenya.
The written defense of DTB is based on this illegal FIB performed by the Bank in
Uganda with full knowledge that dismissal of the Bank’s defense implies full refund of all the unlawfully debited monies without any appeal, the bank tried to institute an independent auditor with a primary intention to preempt the acts of illegality so as to save their illegality based and questioned defense.
DTB’s Lawyers
These events had been followed by Justice Henry Peter Adonyo of the Commercial Court directing the Institution of Certified Public Accountants of Uganda to appoint an independent auditor to carry out account reconciliation of the financial transactions which are based on the credit facilities between Ham Enterprises and DTB On August 31, 2020.
Ham Enterprises however asked the court to halt the auditing process pending the determination of another application in which it is seeking to strike out the defense statements filed by Diamond Trust Bank (DTB) Limited as they arise from illegalities.
Through their lawyers of Muwema & Advocates, Ham Enterprises alleged that the said challenged credit facilities are in contradiction and repudiation of the court’s investigation into the legality of the credit facilities and thereby violates their right to a fair hearing.
Ham Enterprises noted that the Financial Institutions Act does not expect a foreign bank to lend money in Uganda because it expressly forbids them to do so.
“In perpetuating the above acts and omissions, it denied the government of
Uganda tax and non-tax revenue in addition to flouting the sovereign laws of the Country. This amounted to an infringement on the public law and public rights which this court is enjoined to protect in the public interest.”
Today’s ruling (September 30, 2020) In protection of the public law and interests, Justice Henry Peter Adonyo therefore ruled out in favor of Ham Enterprises by Halting the Bank’s proposed Audit that would undermine the illegalities that are yet to be
determined next week on Monday October 5, 2020.
We shall keep you posted with developments in regards to this case.
Watch the Space!
