UGANDA, Kampala | Real Muloodi News | In the latest showdown in the ongoing battle between City tycoon Hamis Kiggundi (known as Ham) and Diamond Trust Bank (DTB), Ham has filed a fresh application to the Supreme Court seeking for a judgement; Ham insists that Diamond Trust Bank (DTB) admitted to committing illegalities on appeal in a UGX 120 billion commercial dispute.
The matter stems from a lawsuit raised in 2020 when Ham, through his companies, sued DTB Uganda and DTB Kenya for alleged breach of contract.
Ham and DTB had a 10 year long banking relationship, where the bank extended Loan facilities to Ham’s companies. Ham Enterprises (U) says it would promptly pay off these loans until an outstanding balance of USD $10million remained, which the company alleges was not reducing despite having paid huge amounts of money towards loan clearance over time.
In contrast, DTB claims the businessman had fallen behind on his repayments, and attempted to collect their dues.
Ham Enterprises (U) then decided to carry out a figurative and legal Audit on all its accounts. The Audit report from the company’s accounts and Loan statements availed from the Bank records revealed that all loans were already paid to zero balance, and instead found the Bank had excessively unlawfully debited USh 34bn and USD 23m from the company’s accounts over that period of time.
Ham’s lawyers, claim that the legal audit furthermore revealed that DTB was carrying out illegal transactions in an bid to evade paying government taxes, contrary to the laws of Uganda as guided by the Financial Institution Act, and equally contrary to the Bank of Uganda customer consumer protection guidelines.
This prompted Ham, through his companies, to file a suit on Jan, 17 2020, at the commercial court for recovery of the excessive money unlawfully debited from its accounts.
In his suit, Ham also sought declarations that DTB-Kenya was not licenced to conduct financial institutions business in Uganda and that, therefore, the credit facilities it offered him were irregular.
On 7th October 2020, Commercial Court judge, Justice Henry Peter Adonyo, declared that since DTB Kenya was not licenced to conduct financial business in Uganda, as required by section 117 of the Financial Institution Act, the loans DTB extended to Ham Enterprises were irregular, null and void.
Justice Adonyo also held that by acting as a collecting agent for DTB Kenya, DTB Uganda had contravened the Financial Institutions Act and Agent Bank regulations.
There was also no counter claim by Diamond Trust Bank in regard to any outstanding unpaid loans by Ham Enterprises (U) Limited 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
October, 29, 2020, DTB appealed the court decision, saying it acted lawfully and that it was not acting as an agent for its Kenyan counterpart.
On May, 5 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 Bank, setting aside the High Court judgment without addressing the issue of illegality, despite it being the substantial ground of appeal as filed by Diamond Trust Bank.
On the 10th June 2021 Ham Enterprises (U) Limited 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.”
On 23rd November, Ham filed a fresh application asserting that the bank agreed with him that the Court of Appeal (COA) justices set aside the High Court judgment and did not address the issues of illegality in conducting financial institutions business in Uganda, contrary to the Financial Institutions Act.
Ham also contends that both he and the bank faulted the justices for abandoning the rounds raised at COA and regularly introducing new grounds of appeal that were implicitly set out in the memorandum of appeal to arrive to its decision, and at the justices erred in ut and law, in finding that B was never heard by the trial court before their joint written statement of defence as struck out and judgment entered in his favour.
The same admissions, according to Ham, are repeated in DTB’s supplementary submissions filed in the Supreme Court.
“On the whole, the thrust of DTB’s arguments and submissions in this appeal, amounts to a clear, unequivocal and positive admission to the grounds I raised,” Ham submits.
The businessman made the appeal before Chief Justice Alfonse-Owiny Dollo, Justices Rubby Opio Aweri, Faith Mwondha, Mike Chibita and Percy Tuhaise.
Ham submits that there is no dispute for the Supreme Court to determine in respect of the admitted grounds and the appeal ought to stand settled in his favour. However, the lawyers representing DTB received the application in protest, saying it has not been signed by the Supreme Court registrar.
DTB is being represented by Edwin Karugire and Usama Sebuufu, while Fred Muwema, Arnold Kimara and Mathew Kiwunda are representing Ham and his companies.
Ham now awaits judgement on the admissions by the Bank.
Hamis Kiggundu vs DTB; Ham’s Notice of Motion (Application) and Affidavit in Support of the Motion:
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