Ham vs DTB case splits Uganda Law Society

Hamis Kiggundu (L) at court

Members of the Uganda Law Society are split over the pending appeal filed in the Supreme court by businessman Hamis Kiggundu in which he’s seeking to recover over Shs 120 billion from Diamond Trust Bank Uganda and Diamond Trust Bank Kenya.

The case originated from a syndicated banking agreement between Ham Enterprises Ltd and Kiggs International Limited, and the two banks. In October 2020, Commercial court judge Henry Peter Adonyo ruled in favour of Kiggundu, ordering DTB Uganda to refund all funds deducted from his accounts. It was alleged that these deductions were made without Kiggundu’s consent. 

Records before court show that Kiggundu obtained loans totalling over Shs 120 billion from DTB Uganda and DTB Kenya between 2011 and 2016 to finance his real estate business.

The dispute arose when the banks claimed that Kiggundu had failed to fulfil his loan obligations, amounting to Shs 39 billion, as per the agreed terms. They threatened to seize the mortgaged properties. Kiggundu petitioned the Commercial court, arguing that the withdrawn funds exceeded the outstanding loan amount, as he had already made full repayment.

Represented by Fred Muwema, the businessman sought to strike out the banks’ defenses and obtain an order for the refund of unlawfully obtained funds. Adonyo dismissed the banks’ defense and directed them to refund the money, along with an 8 per cent interest rate and the costs of the suit.

Displeased with the decision, the banks sought relief from the principal judge, Dr Flavian Zeija, who granted an order to stay the execution of Adonyo’s orders. This prevented Kiggundu from recovering the funds. Subsequently, the banks appealed to the Court of Appeal.

In a subsequent ruling, Court of Appeal overturned Adonyo’s order and ordered a retrial before a different judge. Dissatisfied with this decision, Kiggundu lodged an appeal with the Supreme court.

Last week, when the parties were called for a pre-hearing conference, Kiggundu stormed out of the Supreme court after DTB lawyers led by Edwin Karugire had asked court to dismiss his application, seeking judgement on the admission of illegalities they committed.

Karugire wanted the application dismissed on grounds that it was irrelevant and intended to waste court’s time. Following the June 8 chaos, Uganda Law Society through its president Bernard Oundo released a statement indicating that the applicants (Kiggundu) and his supporters exhibited unruly behaviour including but not limited to having discourteous exchanges with the court, heckling and making unfounded allegations thereby interrupting the orderly business of the court. 

Oundo condemned such actions and advised people feeling aggrieved by the court decisions to always use appropriate legal means for redress. But addressing journalists in Kampala, a section of members of Uganda Law Society under another umbrella body for lawyers called Partners for Equal Justice Uganda (PEJU) said the statement by their president Oundo is biased and does not portray the principles of natural justice as it should be in the Constitution. 

The lawyers who were led by Steven Kalali, Zahid Sempala, Bonny Akol and Sali Babu note that the Supreme court should have heard Kiggundu no matter how his application is whether it has merit, bad in law, vexatious, vague or meritless.

They say by failing to hear him, the Supreme court which is the last appeal court of the land set a bad precedence to the subordinate courts by going ahead to fix judgement without hearing that application or deciding that the judgement is to encompass the issues the application is raising.

The lawyers argue that the Supreme court conducted itself in a legally reprehensible and unjust manner in the case by declining to hear the case well knowing that it has been in the system since 2021 in addition to the fact that the court itself had called the parties for the pre-session hearing of the same.  

“We note that the application was seeking judgement on admission to be entered and the law is seemingly clear. The same application was not accorded a hearing date expeditiously for reasons best known to the court but when slated on June 8th 2023 for pretrial conference, the applicant wanted to be heard, they and counsel were bull dosed under the guise that the judgement was ready for delivery on a particular date,” reads the statement. 

According to the lawyers, this they say has no legal basis in known procedure as the right to be heard is non-derogable under Article 28 and 44 of the Constitution.

“We further condemn the biased and partial statement issued by the Uganda Law Society president which in our view clearly offends the objectives of the society enshrined in the Uganda Law Society Act  Section 3 (d)that mandates the society to assist the public in all matters as regards the law,” reads the statement.”

According to the lawyers, they expected the ULS president to condemn the acts of delayed justice not according the litigants right to be heard in the application other than throwing tantrums at them or the manner they expressed their dissatisfaction towards not being heard.

“Whereas we may not agree with the manner in which the litigant expressed his dissatisfaction with the decision of court, we take note that, that was an expression of conduct of a frustrated litigant who felt that his right to be heard had deliberately been infringed upon, and we ought to be alive to the fact that freedom of speech and expression is enshrined in Article 29 of the Constitution,” said one of the lawyers Kalali.

According to this group, it is their prayer that the Supreme court upholds the constitutional provisions as well as the provisions under the United Nations Report on Independence and execute the mandates of court which is to determine all matters before court based on facts and impartiality.

Source: The Observer

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