Supreme Court has referred back to the Commercial Division of the High Court the shs 120 billion loan case between businessman Hamis Kiggundu and Diamond Trust Bank(DTB) Uganda and Kenya.
A panel of five justices of the court including the Chief Justice Alphonse Owiny Dollo, Lady Justice Faith Mwondha, Lady Justice Percy Tuhaise, Justice Stephen Musota and Justice Mike Chibita ruled that it is only prudent that the case is returned to the lower court for fresh hearing.
“The issue of illegality having been resolved in this appeal, between the parties hereto, which was the genesis of the appeal to the Court of Appeal, and ultimately to this court, is remitted back to the High Court for trial before another judge; basing only on issues of fact arising from the pleadings,” Dollo said in a lead judgement read for him by Lady Justice Percy Tuhaise on Tuesday.
Mr Kiggundu had earlier petitioned the Supreme Court in Kampala not to deliver the judgement as planned.
BACKGROUND
The application by Kiggundu which is dated June 9th 2023, sought to arrest (stop) the Judgement that had been fixed for delivery today Morning, such that Kiggundu and his two companies be granted leave to adduce additional evidence from the central bank of Kenya to elucidate and substantiate the illegality committed by the DTB Kenya in respect of the disputed credit transactions between the two parties , which is the main issue of appeal.
The case originated from a syndicated banking agreement between Ham Enterprises Limited and Kiggs International Limited, and the two banks.
In October 2020, Commercial Court Judge Henry Peter Adonyo ruled in favor of Kiggundu, ordering DTB Uganda to refund all funds deducted from his accounts. It was alleged that these deductions were made without Kiggundu’s consent.
Records before Court show that Kiggundu had obtained loans totalling over Shillings 120 billion from DTB Uganda and DTB Kenya between 2011 and 2016 to finance his real estate business.
The dispute arose when the banks claimed that Kiggundu had failed to fulfill his loan obligations, amounting to Shillings 39 billion, as per the agreed terms. They threatened to seize the mortgaged properties. Kiggundu petitioned the commercial court, arguing that the withdrawn funds exceeded the outstanding loan amount, as he had already made full repayment.
Represented by Fred Muwema, the businessman sought to strike out the banks’ defenses and obtain an order for the refund of unlawfully obtained funds. Justice Adonyo dismissed the banks’ defense and directed them to refund the money, along with an 8% interest rate and the costs of the suit.
Displeased with the decision, the banks sought relief from the Principal Judge, Dr. Flavian Zeija, who granted an order to stay the execution of Adonyo’s orders. This prevented Kiggundu from recovering the funds. Subsequently, the banks appealed to the Court of Appeal.
In a subsequent ruling, the Court of Appeal overturned Judge Adonyo’s order and ordered a retrial before a different judge.
Dissatisfied with this decision, Kiggundu lodged an appeal with the Supreme Court which he now doesn’t want it to be delivered on June 13th 2023 as earlier scheduled .
Kiggundu wants the judgement not delivered as planned because, he filed an appeal raising seven grounds including the fact that the Court of Appeal Justices erred in law and fact when they avoided to adjudicate the substantial question of illegality which was the basis of the matter before them.
And that his appeal was heard on November 11 2021 and the parties were directed to file written submissions and judgement was reserved on notice. But along the way, the Kiggundu argues that they realized the banks had admitted the grounds of appeal and he filed an application seeking Judgement based on this admission.
Despite numerous letters to the Supreme Court, requesting to be heard, they were never heard only to attend a pre-hearing session on Thursday and were informed by Lady Justice Elizabeth Musoke that judgement is for June 13th 2023.
“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 applicant’s non derogable right to be heard as protected under article 28 of the constitution, ” reads the application.
It adds that it’s grave injustice for the Supreme Court which is the Highest Court in Uganda to permanently lock Kiggundu 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.
“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 second respondent (DTB Kenya) to enter info the disputed credit transaction which is the subject of this appeal,” adds the application.
According to Kiggundu, the said information or evidence was not known to him by the time of the hearing of their appeal .
Kiggundu now believes that this information is very relevant, crucial and credible enough to the substantial question of cross border financial institution business of the banks which is the gist of the pending appeal , and therefore this application has been filed without delay and it should resultantly be allowed.
The pending judgment in the Supreme Court will ultimately determine the outcome of Kiggundu’s appeal and the resolution of the ongoing legal battle between Kiggundu and DTB Uganda and DTB Kenya.
Last week Kiggundu stormed outside the Supreme Court after DTB lawyers led by Edwin Karugire had asked Court to dismiss his application on grounds that it was irrelevant and intended to waste court’s time, as Justice Musoke insisted that judgement was to be delivered next week on Tuesday.
