By Frank Kamuntu
Supreme Court on Tuesday delivered a ruling on Hamis Kiggundu, Diamond Trust Band (DTB) fraudulent case under which the businessman seeks to recover over Ugx120billion that was withdrawn from his accounts without his consent.
In a judgment read by Lady Justice Percy Tuhaise, the Supreme Court sent this case for retrial at the Commercial Division of the High Court after quashing the issue of the illegalities.
The judgment was inked by Chief Justice Owiny Dollo on behalf of the panel consisting of five justices; Dollo himself, Lady Justice Faith Mwondha, Lady Justice Percy Tuhaise, Justice Stephen Musota and Justice Mike Chibita.
“The issue of illegality having been resolved in this appeal, between the parties hereto, which was the genesis of the appeal to the Court of Appeal, and ultimately to this court, is remitted back to the High Court for trial before another judge; basing only on issues of fact arising from the pleadings,” read Justice Percy Tuhaise.
The ruling stated that the Court of Appeal ought to have addressed and determined the issue of illegality of the credit facilities extended to Kiggundu which was raised before it, and then refer the case back to the trial Court for determination of the issues of facts.
“Therefore, in declining to pronounce itself on the issue of illegality of the impugned transactions between the disputants, which was the crux of the appeal before it, and instead striking out the amended plaint for the reasons it has given, I find with the greatest respect to the Court of Appeal that it erred in law in doing so,” said the Chief Justice.
Second, observed the Chief Justice, the trial judge had ordered the audit of the impugned of the contested transactions and ascertainment of the status of the loans between the parties; hence, he was under a duty to determine the aspects of the dispute arising from the loan the bank had extended to them, and over which the issue of illegality had not arisen.
“ He (Adonyo), however, failed to do so; and instead made an omnibus finding of, and order on, the illegality of all the transactions. His failure to conduct a trial in the head suit, where from the ascertainment of all the facts pleaded would have been achieved by the parties adducing relevant evidence, offended the age-old cardinal rule that no one should be condemned without being accorded the right to be heard on the matter in controversy. His decision, therefore, occasioned a miscarriage of justice.”
On the issue of foreign lending in Uganda, the ruling stated that the laws that govern the operations of financial institutions in Uganda are enshrined in the Constitution, provided for in Acts of Parliament, and, as well, in subsidiary legislations and regulations.
The Chief Justice said the Bank of Uganda, being the Central Bank, is seized with oversight or supervisory and regulatory powers over all financial institutions operating in the country.
”The issue of illegality having been resolved in this appeal, High Court Civil Suit No. 43 of 2020, between the parties hereto, which was the genesis of the appeal to the Court of Appeal, and ultimately to this Court, is remitted back to the High Court for trial before another judge; basing only on issues of fact 15 arising from the pleadings,” further read Justice Tuhaise before ordering Ham Enterprises and Kiggundu to pay 50% of legal costs to DTB Uganda and DTB Kenya.
The Battle Is Not Yet Over
Counsel Robert Kagoro, an advocate at Muwema, and Mugerwa Advocates, a law firm representing Ham Kiggundu, vowed that let it shine or rain they must win this battle.
”Of course, today’s ruling has created a bad precedent for lower courts because there is no way you can deliver a judgment when there is a pending application on the same case. That’s illegal and unacceptable but as you all know this is a Supreme Court, our hands are now tied from challenging this judgment but since we have been reverted to Commercial Court, just know we are not giving up, we must fight till we finally win this case,” vowed Counsel Kagoro.
It’s worth noting that tycoon Ham had applied to arrest today’s judgment till his application under which he wanted to adduce more evidence against DTB was not heard nor trashed but left pending without clear reasons.
READ TUESDAY’S JUDGEMENT BELOW
