KAMPALA – On June 8, 2023, the Supreme Court summoned the two parties in the Ham Enterprise versus Diamond Trust Bank – DTB fraud case for the pre-hearing of the application for judgment on the admission of illegalities not substantially addressed by the Court of Appeal.
Shortly after, the city tycoon Hamis Kiggundu alias Ham told the press that Hon. Justice Elizabeth Musoke shocked the court when she said that the Chief Justice instructed her not to entertain the application but rather inform the applicants that delivery of judgment in the main appeal is on June 13, 2023.
Dissatisfied Ham noted that the move is contrary to article 28 of the constitution which provides for the right to a fair, speedy and public hearing to all Ugandans by an independent and impartial court or tribunal established by law and equally contrary to article 44(c) of the constitution which provides that Notwithstanding anything in the Constitution, there shall be no derogation from enjoyment of the right to a fair hearing. So every Ugandan has the right to be heard.
Through his lawyer; Fred Muwema of Muwema and Co Advocates, Ham now applied for the arrest of the scheduled judgment, noting that it arose out of bias and perhaps the honourable court could not determine the main appeal before hearing and determining a miscellaneous application for judgment based on the bank’s admission to committing illegalities both in the high court and the supreme appeal.
In his application, he asserts that
a) Civil Application No 051/2021 Ham Enterprises Ltd 2 Ors vs Diamond Trust Bank (U) Ltd & Diamond Trust Bank (K) Ltd which was filed by the Applicants seeking orders for judgment on admission, be heard and finally determined by the court.
b) The Applicants be granted leave to adduce additional evidence from the Central Bank of Kenya to elucidate and substantiate the illegality committed by the 2nd Respondent in respect of the disputed credit transactions between the Applicant and the 2nd Respondent, the subject of this Appeal.
c) This Honourable Court be pleased to arrest its Judgment in Supreme Court Civil Appeal No 13/2021 which is scheduled to be delivered on the 13th of June 2023 at 10:30 a.m pending the hearing and determination of Civil Application No 051 /2021 and the application for leave to adduce additional evidence.
d) This Honourable Court be pleased to issue further and better orders as shall meet the ends of justice.
e) Costs of the Application be provided for.
He added that “TAKE FURTHER NOTICE that the grounds in support of this application herein are contained in the supporting affidavit of Hamis Kiggundu, the 3rd Applicant and a director of the 1st and 2nd Applicants respectively and a further affidavit of Edwin Lubanga, which shall be read and relied upon at hearing but briefly are that”;
- The Applicants filed a memorandum of appeal in Supreme Court Civil Appeal Nol 3/2021 in which they raised 7 grounds of appeal to wit;
i) The learned Justices of Appeal erred in law and fact when they avoided to adjudicate the substantial question of illegality which was the basis of the Respondents Appeal before them.
ii) The learned Justices of Appeal erred in law and fact when they abandoned the grounds of appeal raised by the Respondents and irregularly introduced new grounds of appeal that were not implicitly set out in the memorandum of appeal and thereby erroneously ordered;
a) the striking out of the Appellants Amended Plaint in HCCS No 43/2020 and further ordered a retrial on the basis of the original pleadings,
b) the saving of the order for appointment of auditors which order has been vacated and was never resurrected in the suit.
iii. The learned Justices of Appeal erred in law and fact in finding that the Respondents were never heard on the question of illegality in MA No 654/2020 before their joint Written Statement of Defense was struck out and judgment entered for the Appellants.
iv. The learned Justices of Appeal erred in law and in fact in failing to evaluate evidence which was before the trial court and setting aside the judgment entered in favour of the Appellant under Order 6 Rule 30 of the Civil Procedure Rules S.’ 71-1.
v. The learned Justices of Appeal erred in law and fact in ordering for a retrial of the suit in which the overriding question of illegality had been fully heard and determined inter parties by the trial court.
vi. The learned Justices of Appeal erred in law and fact in condemning the Appellants to costs in an Appeal where the Respondents had not been purged of the illegality adjudged against them by the trial court.
vii. The learned Justices of Appeal erred in law and in fact in rewarding the Respondents with costs for committing an illegality.
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The Appeal was heard on the 11th day of November 2021 and the parties were directed to file written submissions and judgment was reserved on notice.
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On realizing that the Respondents had admitted the grounds of appeal, the Applicants filed Civil Application No 051/2021 Ham Enterprises Ltd & 2 Ors vs Diamond Trust Bank (U) Ltd & Diamond Trust Bank (K) Ltd on the 23rd of November 2021 seeking orders for Judgment on admission.
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Despite numerous requests to be heard, this Honourable Court did not list the application for hearing until the 28th of April 2023 when the Court invited the Applicants to attend a session for re-constitution of the panel on the 5th of May 2023.
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Upon receipt of the above invitation, the Applicant through it’s lawyers wrote a letter on the 2nd of May 2023 requesting for the fixing and hearing of the Civil Application No 051/2021 but the court advised that the hearing of the said Civil Application will be communicated at a later date.
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The Court went ahead to introduce a new panel to sit in the judgement of Civil Appeal No 13/2021 after the demise of Hon. Justice Apio Aweri JSC (RIP) and it’s now constituted as follows; Hon. Alfonse C Owiny Dollo CJ-(Head of panel), Hon. Lady Faith Mwondha JSC, Hon. Lady Percy Tuhaise JSC, Hon. John Mike Chibita JSC, and Hon. Stephen Musota JSC.
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That on the 29th of May 2023, the court invited the Applicant for a pre-hearing conference of Civil Application No 051 /2021 to be held on the 8th of June 2023 at 9:30 a.m.
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That on the 8th June 2023, the Applicants together with the Respondents attended the scheduled pre-hearing conference which was presided over by Hon. Lady Justice Elizabeth Musoke JSC who declined to conduct the pre-hearing session which had been called.
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The Hon. Lady Justice Elizabeth Musoke JSC informed the parties that she had been directed by the head of the panel to inform them that Judgement in Civil Appeal No 13/2021 was ready and that it would be delivered on the 13th of June 2023.
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That by reason of the above developments, Civil Application No 051 /2021 was not heard by the above-mentioned re-constituted panel with the result that the said Civil Application neither stands heard, allowed or dismissed.
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That consequently, the Applicants have been denied access to the Supreme Court to seek adjudication of the dispute upon the aforesaid Civil Application which has occasioned a gross violation of the Applicants’ non-derogable right to be heard as protected under Article 28 of the Constitution.
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That it is a grave injustice for the Supreme Court which is the highest court in Uganda to permanently lock the Applicants out of an opportunity to be heard on such a novel and complex commercial dispute well knowing that it’s decisions are final, binding and not appealable.
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That in the meantime, the Applicants recently discovered through Edwin Lubanga, that the Central Bank of Kenya did not grant the requisite approval under the law to the 2nd Respondent to enter into the disputed credit transaction which is the subject of this appeal.
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That the above information or evidence was not known or available to the Applicants by the time of the filing and hearing of Civil Appeal No 13/2021.
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That the above information/evidence is very relevant to the substantial question of the illegal conduct of cross-border financial institution business by the Respondents which is the subject of this appeal.
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That the said information/evidence is not only credible but it is also capable of having an influence on the decision or result of the Appeal.
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That it is, therefore, crucial that this Honourable Court be pleased to admit the abovementioned additional information or evidence as it may deem fit.
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That there is no inordinate delay in filing this application which is very urgent in light of the impending judgment to be delivered in Civil Appeal No 13/2021.
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That it is in the interests of substantive justice, fairness and equity that this application be granted as sought.
