Opinion: Do Courts Of Law Hold The Discretion To Shield Illegality? Ugandan Judiciary On Public Trial

Opinion: Can A Party Win A Judgment After Admitting Illegalities, A Case Of Ham Vs DTB?

By David Serumaga

Since 2020, I have been keenly following the case of Uganda’s investor and businessman, Hajji Hamis Kiggundu (Ham) of Ham Enterprises (U) Ltd against Diamond Trust Bank (Uganda) and Diamond Trust Bank (Kenya) of unlawfully debiting sh120b from his accounts.

What seemed to be an easy case for our courts to complete within a few months has now been revivified in the mainstream media after four years of endless court battles. According to a story published by the New Vision of Wednesday, May 10, 2023, Ham Kiggundu argues that Court of Appeal created its own grounds on whose basis it determined the appeal.

In his submission, Ham indicates that he provided security/mortgage at Plot No.923, Block 9 located at Makerere Hill Road to support the credit facilities he had got from DTB (Uganda).

After carrying out an audit and reconciliation of the loan accounts, he found out that DTB Kenya excessively, deceptively unlawfully debited 120b from Ham’s accounts on top of the fact that they had transacted without a license contrary to Section 4 and 117 of the Financial Institutions Act (2004) an illegality they committed and admitted on High Court record upon which facts judgement was rightly entered
in Ham’s favor for recovery of his money from DTB.

However, the High Court ruling was challenged in the Court of Appeal by DTB lawyers, a judgement which came out in their favor on 5th November 2021.

This prompted Ham’s lawyers Muwema and Kimara on 11th November 2021, basing on DTB lawyer’s submissions made an application to Supreme Court for judgement on admission which is pending hearing before Supreme Court.

Ham says that his lawyers appealed at supreme Court on that very ground and error of the judges at Court of Appeal where DTB lawyer Kiryowa Kiwanuka made additional supplementary submissions stating that though the judges at court of appeal had failed to substantially address the issue of illegality maintaining the judgement at High Court in favor of Ham would have a far-reaching reputation on the economy at large especially foreign investment.

According to the Financial Institutions Act; 4. (1) A person shall not transact any deposit-taking or fancial institution business in Uganda without a valid license granted for the purpose under this Act. (b)
effect any major changes or additions to its licensed business or principal activities without the approval of the Central Bank.

This explains why Hajji Hamis Kiggundu had a point which Ugandans should get interested in because it is unlawful for any financial institution to do business in Uganda without a valid license.

Basing on the fact that our Constitution condemns any form of illegality, our courts should use this case to protect our Constitution by remaining independent because this case has put them on a weighing scale and it should not be influenced by any political or managerial pressure.

In the case of Crane Bank Limited (in receivership) Vs Sudhir Ruparelia and Another, the former Principal Judge advised authorities at Bank of Uganda to drop its lawyers MMAKS Advocates and AF
Mpanga Advocates due to the complaints from tycoon Sudhir Ruparelia saying that those two were his principal witnesses and this could lead to a conflict of interest because they were his lawyers before.

The above-mentioned case where Bank of Uganda dropped its lawyers can also apply in the same case of Ham and DTB. Hon Kiryowa Kiwanuka, being Uganda’s current Attorney General and at the same time one of the lead lawyers of DTB is a total breach of trust because in any way being one of the to government official and in a judiciary sector, he can influence the ruling since is already privy to
information that can prejudice the trial.

It would have been better for Uganda’s judicial system to remain independent if the Attorney general pulled out of this case as DTB lawyer to avoid conflict of interest and also promote reasonable justice.

By David Serumaga

Ugandan Concerned Citizen

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