Supreme Court has thrown out an appeal by city tycoon Hamis Kiggundu also known as Ham.
In the letter dated 26th November 2021, Ham through his lawyers Muwema & Co. Advocates, filed a fresh application to the Supreme Court seeking for a judgement.
In the appeal, Ham insists that Diamond Trust Bank (DTB) admitted to committing illegalities on appeal in a UGX 120 billion commercial dispute.
‘ ‘ In my view, your instant application does not raise any new issue to necessitate any further / new fillings, which would any case require leave of court to do so’’ the letter signed by Didas Muhumuza, the Supreme court Assistant Registrar reads In part.
He adds: What you are seeking in your application will most likely be taken care of in the final judgment since the grounds of appeal by the respondent to be relied on are already on court record.
‘’ You are therefore, advised to wait for the final decision of court which will hopefully address our concerns’’
Ham Enterprises had banked with DTB for close to 15 years but in 2019 when they carried out an audit on their accounts, [he claims] it was revealed that the bank had unlawfully and excessively withdrawn his accounts to a tune of Ugx. 34 billion and $23 million in a period of 10 years.
When the company sued to reclaim the money, High court duly ruled that DTB had flouted the banking laws through several illegalities and, therefore, ordered the bank to refund the money to Ham Enterprises.
What followed was a series of machinations in the judiciary.
On 17th Jan 2020, Ham Enterprises hence filed a suit at the commercial court for recovery of the excessive money unlawfully debited from its accounts, equally bringing these acts of illegalities committed by the DTB to the court’s attention.
On 7th October 2020, judgement was entered against the Bank based on fact that the Bank on court record admitted to committing illegalities by carrying out financial institution business in Uganda without a license as required by section 117 of the Financial Institution Act, and DTB Uganda acting as DTB Kenya Agent without approval in contravention of Regulation 5 Of The Financial Institutions (Agent Banking) Regulations 2017 and Section 126 (3) of the Financial Institutions Act as well as the relevant laws of Kenya making the bank to become a principal offender as provided for under section 19 of the Financial Institutions Act having taken part in and facilitated the commission of an offence.
There was also no counter claim by DTB in regard to any outstanding unpaid loans by Ham Enterprises to the Bank. The judgment equally directed the bank of Uganda to protect the Ugandan economy from illegal hemorrhages and uncontrolled flows of financial resources and to ensure that financial institutional business in Uganda is operated within the letter of the law to protect the nascent banking business industry in Uganda
On 20th October 2020, the bank appealed against the judgement of the commercial court on grounds that there was no illegality committed contrary to the Financial Institution Act
On the 5th May 2021 a panel of three Honorable Judges headed by Hon. Justice Richard Butera, Hon. Justice Kenneth Kakuru and Hon. Justice Christopher Madrama ruled in favor of the DTB, setting aside the High Court judgment without addressing the issue of illegality despite it being the substantial ground of appeal as filed by DTB. The Court of Appeal concluded by ordering a retrial at the high court while excluding the amended plaint that had raised the point of law of illegality committed by DTB thereby promoting and shielding the illegalities as committed by the bank contrary to the Financial Institutions Act.
On the 10th June 2021 Ham Enterprises appealed against the court of appeal decision at the Supreme Court
On 12th November 2021, the Supreme Court allowed the bank’s request to highlight submissions on grounds not contained in their memorandum of appeal on a matter not subject of appeal and parties were asked to submit on the same within 13 days.
Diamond Trust Bank in their Submissions admitted that the Court of Appeal failed to address the Substantial point of illegality upon which judgement was rightfully entered at the high court specifically stating in their submissions that:
“The learned Justices were entitled to first deal with the grounds regarding the procedure adopted by the trial Judge in striking out the defendants’ pleadings and granting the impugned orders before dealing with the other grounds” and on 23 November 2021, Ham applied.
1st December 2021 Supreme Court throws out an appeal