Businessman Hamis Kiggundu commonly referred to as Ham has filed an application to the Supreme Court asking for a judgment on what he contends Diamond Trust Bank (DTB) admitted on appeal in the 120b case. Ham, it can be recalled, sued DTB on account that the bank had siphoned more than sh120b from his accounts without his knowledge and consent.
Ham filed his application on Tuesday stating that DTB had concurred with him that the Court of Appeal (COA) justices; Richard Buteera, Christopher Madrama and Keneth Kakuma, did not address the issues of illegalilty in conducting financial institutions business in Uganda contrary the provisions of the financial act.
Ham also wrote in his application that the justices “abandoned the grounds of appeal and irregularly introducing new grounds of appeal that were not implicitly set out in the memorandum of appeal. He says the Justice of Appeal erred in law and fact in finding that DTB was not heard on the question of illegality in their joint statement of defense that was struck out to make judgment in his favor.
The businessman emphasizes in his application that DTB conceded to the same issues raised in their submissions filed to the Supreme Court on November 5.
Ham filed his application before five Supreme Court Justices, including the Chief Justice, Alfonse-Owiny Dollo, Rubby Opio Aweri, Faith Mwondh, Percy Tuhaise and Mike Chibita.
Lawyers representing DTB; Edwin Karugire and Usama Sebuffu, protested the application arguing that it had not been signed the supreme court registrar.
History
Last year, the Commercial court ruled that DTB Uganda through DTB Kenya had extended credit to Ham and his two companies Ham Enterprise Limited and Kiggs International (U) Limited without license to transact in Uganda.
In his case, Ham said that between February 2011 and August 2018, he was offered credit facilities by the banks to develop commercial properties in Uganda. But as he continued servicing them, he learnt that the banks were taking out money from his accounts.
The high court then stopped DTB from taking out money from Ham’s accounts, refund about 120 billion Shillings that DTB had already taken out, and release all the businessman’s securities. DTB successfully secured a stay of execution of the judgement orders in November, and also appealed the judgement.
Timeline of events
On 17th Jan 2020, Ham Enterprises (U) Limited hence filed a suit at the commercial court for recovery of the excessive money unlawfully debited from its accounts.
On 7 th October 2020 judgment was made against the Bank based on pretext that the bank on court record admitted to carrying out financial institution business in Uganda without a license as required by section 117 of the Financial Institution Act, and DTB Uganda acting as DTB Kenya Agent without approval in contravention of Regulation 5 Of The Financial Institutions (Agent Banking) Regulations 2017 and Section 126 (3) of the Financial Institutions Act as well as the relevant laws of Kenya making the bank to become a principal offender as provided for under section 19 of the Financial Institutions Act having taken part in and facilitated the commission of an offence. 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
On 20th October 2020, The bank appealed against the judgement of the commercial court on
grounds that there was no illegality committed contrary to the Financial Institution Act
On the 5 th May 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 Diamond Trust Bank, setting aside the High Court judgment without addressing the issue of illegality. The Court of Appeal concluded by ordering a retrial at the high court.
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” and on 23 November 2021, Ham applied and awaits judgement on the admissions by the Bank.
