The Supreme Court of Uganda has received a petition by city businessman Hamis Kiggundu popularly known as Ham, in which he seeks to ‘arrest’ or stop the delivery of Judgement in the case he filed against Diamond Trust Bank Uganda and Diamond Trust Bank Kenya.
Kiggundu accuses DTB Uganda and DTB Kenya of allegedly illegally deducting over Shs120 Bn from his accounts under the pretext of servicing a loan he had acquired from the Bank, yet he had earlier on fully cleared the said loan.
The Supreme Court had scheduled to deliver its judgment in the said case on June 13th, 2023 but Kiggundu, through his lawyers of Mwema & Co. Advocates, seeks to halt delivery of the said judgment, such that his lawyers can adduce more evidence to pin DTB in the case.
The reason he wants the judgement halted is because he filed an appeal raising seven grounds including the fact that the Court of Appeal Justices erred in law and fact when they avoided adjudicating the substantial question of illegality which was the basis of the matter before them.
His appeal, dated June 12th, 2023 which has since been received by the Supreme Court, reads in part thus;
We act for the Applicants in the above matter which was filed on ECCMS on the 9th of June 2023 at 11:59 Pm.
The Applicant seeks a hearing of Civil Application No. 051 of 2021 for judgment on admission, leave to adduce additional evidence and order to arrest judgment in the main Appeal which is notified to be delivered on the 13th of June 2023 at 10:30 Am.
We have forwarded 5 copies of the application for court to record and served opposite counsel.
The application is very urgent and it concerns important matters in the prudential regulation of the Banking Industry.
We, therefore, request that the same be validated and fixed for hearing expeditiously as the justice of the case requires.
The letter which seeks to ‘arrest’ or stop the delivery of Judgementwas received by the Supreme Court
Background Of Matter
According to the application filed by Kiggundu, he seeks to stop the Judgement that had been scheduled for delivery on June 13th, 2023, so that he (Kiggundu) and his two companies be granted leave to adduce additional evidence from the Central Bank of Kenya, to elucidate and substantiate the illegalities committed by the DTB Kenya in respect of the disputed credit transactions between the two parties, which is the main issue of appeal.
Sources close to Kiggundu reveal that the pending judgment in the Supreme Court stems from a series of legal proceedings he initiated against Diamond Trust Bank (DTB) Uganda and DTB Kenya.
The case at hand originated from a syndicated banking agreement between Ham Enterprises Limited and Kiggs International Limited, and the two banks, which saw the two banks illegally deduct over Shs120Bn from Kiggundu’s accounts without his consent, claiming the same to be clearance for loans he had borrowed from them.
However, tables turned for DTB in October 2020, when Commercial Court Judge Henry Peter Adonyo ruled in Kiggundu’s favour, ordering DTB Uganda to refund all the money that was illegally deducted from his accounts because the deductions were made without Kiggundu’s consent.
Sources privy to the matter reveal that Court records indicate that Kiggundu had obtained loans from DTB Uganda and DTB Kenya between 2011 and 2016 to finance his real estate business.
However, the dispute arose when the banks claimed that Kiggundu had failed to fulfil his loan obligations, amounting to Shillings 45 billion, as per the agreed terms and threatened to seize the mortgaged properties.
But documents accessed by this website about the matter which includes a payment schedule for the said loan indicate that Kiggundu fully serviced the loan to zero balance, hence it was illegal for DTB to withdraw the said money from his accounts.
Ham’s payment model as summarized above
Kiggundu petitioned the commercial court, arguing that the withdrawn funds exceeded the outstanding loan amount, as he had already made full repayment.
Through his lawyer Fred Muwema, Kiggundu sought to strike out the banks’ defences and to obtain an order for the refund of illegally deducted funds.
In his ruling, Justice Adonyo dismissed the defence submitted by DTB and directed them to refund the money, along with an 8% interest rate, plus paying the costs of the suit.
But displeased with the decision, DTB Uganda and DTB Kenya sought relief from the Principal Judge, Dr. Flavian Zeija, who granted an order to stay the execution of Adonyo’s orders, thereby preventing Kiggundu from recovering the funds. Subsequently, the banks appealed to the Court of Appeal over the same matter.
However, in a twist of events, the Court of Appeal overturned Justice Adonyo’s ruling and ordered a retrial before a different judge.
Kiggundu, dissatisfied with the Court ruling, appealed with the Supreme Court, whose ruling scheduled for June 13th, 2023 he now seeks to halt.
The reason he wants the judgement halted is because he filed an appeal raising seven grounds including the fact that the Court of Appeal Justices erred in law and fact when they avoided adjudicating the substantial question of illegality which was the basis of the matter before them.
He also contends that his appeal was heard on November 11th, 2021 and the parties were directed to file written submissions and judgement was reserved on notice.
But along the way, Kiggundu argues that they realized the banks had admitted the grounds of appeal, so he filed an application seeking Judgement based on this admission.
But despite numerous letters to the Supreme Court, requesting to be heard, they were never heard, only to attend a pre-hearing session on Thursday last week, during which they were informed by Lady Justice Elizabeth Musoke that judgement is scheduled for June 13th, 2023.
“That consequently, the applicants have been denied access to the Supreme Court to seek adjudication of the dispute upon the aforesaid civil application which has occasioned a gross violation of the applicant’s non-derogable right to be heard as protected under article 28 of the constitution,” reads Kiggundu’s application in part.
The petition also contends that “…It’s a grave injustice for the Supreme Court which is the Highest Court in Uganda, to permanently lock Kiggundu out of an opportunity to be heard on such a novel and complex commercial dispute well knowing that its decisions are final, binding and not appealable.”
“In the meantime, the applicants recently discovered through Edwin Lubanga that the Central Bank of Kenya did not grant the requisite approval under the law to the second respondent (DTB Kenya) to enter into the disputed credit transaction which is the subject of this appeal,” adds the application.
According to Kiggundu, the said information or evidence was not known to him by the time of the hearing of their appeal.
Kiggundu now believes that this information is very relevant, crucial and credible enough to the substantial question of cross-border financial institution business of the banks which is the gist of the pending appeal, and therefore this application has been filed without delay and it should resultantly be allowed.
As such, the pending judgment in the Supreme Court will ultimately determine the outcome of Kiggundu’s appeal and the resolution of the ongoing legal battle between Kiggundu and DTB Uganda and DTB Kenya.
It should be noted that last week Kiggundu stormed outside the Supreme Court after DTB lawyers led by Edwin Karugire asked Court to dismiss his application, on grounds that it was irrelevant and intends to waste the court’s time, after Justice Musoke had insisted that judgement was to be delivered on June 13, 2023, which is Tuesday this week.
