KAMPALA, UGANDA: 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 judgment 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.
Ham in his petition further notes that the Chief Justice committed PERJURY and lied by ruling that on 6th June 2023 when he signed the judgement, stating that: “Since the other members of the Coram are in full agreement with the judgement and orders I have proposed above, judgement and orders are accordingly hereby given in the terms set out there in” yet there was no full agreement or at all, to the lead judgement by the other members of the Coram by the 6th June 2023 as they signed later after 7 days on 13th June 2023 rendering the judgement defective and unconstitutional.
He notes that Hon Justice Percy Night Tuhaise made a disclaimer dated 29, June 2023 claiming she had only been instructed to deliver the judgement by the chief justice despite acknowledgment of pending unsettled applications on file.
It is stated in the petition that; “The act or conduct of issuing a post judgement statement tilted “Reasons why I declined to half delivery of judgement” which was signed and delivered by Hon Lady Justice Percy Night Tuhaise on the 29th June 2023 amounted to a disclaimer of responsibility casting aspersions on the integrity of the whole judgement making process in civil appeal No 13/2021, rendering the said process a nullity and in contravention of Articles 2, 28, 44, 126 and 128 of the Constitution”.
Ham further notes that Hon Justice Percy Night Tuhaise noted in her said disclaimer that; “When the above matter was called for delivery of judgment, learned Counsel Friday Roberts Kagoro, assisted by learned Counsel Anthony Tomusange, representing the Appellants, requested me to halt the delivery of the judgment, giving reasons that the Appellants filed Civil Application No. 51 of 2021 seeking judgment on admission, pending hearing before this Court; and that, subsequently, the Appellants received further evidence that would be instrumental in making this Court arrive at a just decision, which prompted them to file Civil Application No. 15 of 2023, also pending before this Court, seeking this Court to arrest delivering the judgment.
According to the petition, the judge further noted in the same disclaimer that “The gist of the Appellants’ Counsel’s prayers was that I halt the delivery of the judgment and fix Miscellaneous Application No. 15 of 2023 for hearing, after which they would be ready to receive the judgment. At some stage in their submissions, learned Counsel for the Appellants even suggested that I hear the application, allow it or dismiss it.”
Hon Justice Percy noted that the Judgement was received under protest by learned Counsel Friday Roberts Kagoro of the appellants, which she accordingly recorded, after informing him that it was his right to do so.
Hon Justice also stated that; “I listened to Counsels’ submissions from each side and appreciated that Miscellaneous Application Nos. 51 of 2021 and 15 of 2023 were pending hearings in this Court. Counsel for both sides even went to the extent of highlighting some aspects of the merits of each application.”
She concluded by stating that “My simple role in court that day was to deliver/read a judgment, as mandated by the head of the panel, which role, which could even be performed by a Registrar of this Court, did not confer upon me competence to fix any applications for hearing, let alone hear or determine such applications, or delve into the merits of such applications. I was not sitting in Court as a panel, not even as a Single Justice, in the sense of presiding over a hearing and determining it.
“My simple role was to deliver/read a judgment, as opposed to fixing or hearing an application, whether such application was to arrest a judgment, or to adduce further evidence. This is the reason I have refrained from addressing those aspects of the submissions from both sides which would make me delve in the merits of the two applications as if I constituted the Coram competent to hear and determine the two applications. As I sat to deliver/read the judgment, there was no order from any panel to the effect that judgment be arrested, nor was there anything from the Registrar of the Court, or on the face of the record, giving me reason, or hampering me from proceeding to deliver/read the judgment. This is the reason why I proceeded to read/deliver the judgment.”
Justice Percy Night Tuhaise’s Full Disclaimer
According to Ham, despite evidence on court records of a direct letter of credit between Ham Enterprises (U) Ltd and Diamond Trust Bank Kenya Limited. Supreme court on actual falsehood proceeded to rule that the transaction between the two was a syndicated loan contrary to articles: 2, 20, 21, 28, 44, 126, and 128 of the constitution of Uganda that provides for a fair hearing before an independent impartial court of laws.
A syndicated loan is where two or more local or foreign banks mobilize to fund a creditor through a licensed bank and DTB Kenya was never licensed in Uganda nor authorized by Central Bank Kenya.
Ham concluded the petition by noting stating that “In determining civil appeal No 13/2021, the Supreme Court did not deliver a judgement of fact as it instead set out to distort the constitutional order and existing las governing the financial control and regulation in Uganda.
THAT the said Supreme Court proceedings and judgment are therefore retrogressive and are an affront to the public policy of Uganda as they suborn illicit financial transactions which shall induce a regime of unregulated and unrestrained shadow banking system much to the detriment of the Ugandan economy.
THAT the general conduct of the supreme court in civil Appeal No 13/2021 seriously negated the legal precept of;
“Justice must not only be done but must also be seen to be done” THAT the general conduct of the supreme court in the said appeal also militates against the equitable principle of audi alterem parterre which is enshrined in Article 28 of the constitution and protects the inviolable right to a fair hearing.
THAT the effect of the impugned general conduct of the supreme court ensured that justice was not done and also not seen to be done when the court denied the petitioners their constitutional right to be heard in civil applications No 51/2021 and No 15/2023 respectively.
THAT the petitioners have been served manifest and permanent injustice in the failure of the judicial duty to hear them in the above-mentioned civil applications which have been left hanging and undetermined since the judgement in a civil appeal 13/2021 from which they arise, was delivered on the 13th June 2023.
THAT there is, therefore, a need for this Honourable Court to interpret and declare upon the constitutionality or otherwise of the impugned acts and omissions of the Supreme Court as expressed in the impugned judgment, with a view of upholding the principles of judicial independence, judicial accountability and supremacy of the constitution.
Below is Ham’s Full Petition