By Frank Kamuntu
Businessman Hamis Kiggundu alias Ham has petitioned the Constitutional Court challenging the ruling delivered last month by the Supreme Court in the multi-billion case against Diamond Trust Bank saying the judgement was defective and unconstitutional by law.
The Supreme Court, which is Uganda’s highest Court on June 13th 2023 ordered that Civil Suit No. 43 of 2020 be remitted to the High Court for retrial before another judge and among others upheld the legality and enforceability of syndicated lending contracts.Under Constitutional Petition No. 18 of 2023, dated 07th of July 2023 Ham, and his two companies, Ham Enterprises Ltd and Kiggs International (U) Ltd, now wants the Constitutional Court to compel the Supreme Court to retry Supreme Court Civil Appeal (SCCA) No. 13/2021 as well as two other related applications.
Through his lawyer Fred Muwema of Muwema and Co. Advocates, Ham says the Supreme Court judgement was injudicious and “in complete violation of the Uganda code of judicial conduct and the Petitioners’ inviolable rights to be heard”. This, he says, caused him to suffer “an infringement of his constitutional right to a fair hearing”.
Ham further questions how the Judgment was dated and signed by the chief justice on June 6, 2023, but later signed by other panel justices on June 13, 2023, and delivered on the same date despite the chief justice stating that other Coram members were in full agreement with it 7 days before their actual signing; referred the case to the high court for retrial under a new Judge after not hearing 2 pending applications and disallowing the substantial issue of illegality.He, therefore, wants the Constitutional Court to compel the Supreme Court to “expunge the proceedings and judgment in CivilAppeal No. 13/2021 from the public records of Uganda” as well as retry the entire Supreme Court Civil Appeal (SCCA) No. 13/2021.
Facts and background to the case
Ham through his companies obtained a loan from DTB-U and DTB-K which Ham failed to pay back in full. As a result, DTB commenced a recovery process in early 2020. By this time, the businessman owed DTB-U USD 4,014,444 and DTB-K USD 6,974,600.
However, Ham sued Diamond Trust Bank for unlawfully, deceptively, extortionately and excessively withdrawing over Ugx 120 billion from his accounts over a spread banking period of close to 10 years seeking recovery of the same from the Court.
High Court Ruled in favour of Ham and ordered the bank to refund their money at an 8% interest rate. The bank was aggrieved and appealed at the court of appeal. The appellant court ordered a retrial of the case back at the high court after abolishing the substantial dispute of illegality.
Ham Appealed at Supreme Court and additionally Filed Misc. applications; 1,51/2022 seeking judgement on the bank’s admission of committing illegalities on court records and 2, 15/2023 seeking introduction of new evidence against the bank from the Director Supervision, Central Bank of Kenya which applications were never heard as provided for under articles 28 and 44(C) of the Ugandan Constitution.
Fact: Ham sued DTB for recovery of 120 billion unlawfully and deceptively withdrawn in excess of their liabilities to the bank and DTB has no claims of any monies against Ham but is rather on the defensive against Ham’s recovery court case.
Back To The Petition
On July 9, 2023, Ham filled a Constitutional Petition Challenging the Supreme Court Judgement on June 6, 2023, but delivered on June 13, 2023, for being out of order and illegitimate on the following grounds: The Judgement is Contrary to Article 28 which provides a right to a fair hearing. Judges at the Supreme Court proceeded to make a ruling on the main appeal without hearing pending applications on file.Application No.51/2021 for judgement on admission by DTB which would automatically have disposed of the case in Ham’s favor but to protect Karugire’s reputation. The judges ignored the same contrary to Article 28.
Ham noted in the petition that: “THAT the parties attended the pre-hearing conference on the 8th of May 2023 but Hon. Lady Justice Elizabeth Musoke JSC who presided over the session, declined to conduct the pre-hearing session which had been called and instead informed the parties that judgment in the appeal would be delivered on the 13th June 2023.Application No.15/2023 introduces new evidence from Kenya Central Bank signed by the director supervision clearly indicating that DTB had committed an illegality in addition to not having been authorized to transact in Uganda contrary to articles 2, 20, 21, 28, 44, 126, and 128. but the Application was not heard by the above-mentioned re-constituted panel with the result that the said Civil Application neither stands heard, allowed or dismissed.
Ham further notes that; “in a further desperate effort to be heard, the Petitioners filed Civil Application No. 015/2023 on the 10th June 2023 seeking orders that, (1) Civil Application No 051/2021 be heard and finally determined by Court, the Petitioners be granted leave to adduce additional evidence from the Central Bank of Kenya to elucidate and substantiate the illegality committed by the third Respondent in respect of the impugned credit facilities, that the Supreme Court be pleased to arrest its judgment pending the hearing and determination of the above applications,” But on the 13th of June 2023, when Petitioners’ Counsel made an impassioned plea to Hon. Lady Justice Percy Tuhaise who was scheduled to deliver the judgment, to arrest the judgment and allow the pending applications to be fixed for hearing, the honourable justice instead declined and went ahead to read the judgement.
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