By Andrew Irumba
Kampala: City businessman Hamis Kiggundu aka Ham and Diamond Trust Bank (DTB) have finally agreed to resolve the pending legal battle out of court rooms after over eight years of a standing financial dispute between the two parties.
According to sources, decision followed a closed door meeting between Ham who is the CEO of Ham Group of Companies and Mr Nasim Devji, the C.E.O of Diamond Trust Bank Group and the two gentle men reasoned and realistically resolved their financial differences that have been in court for the past 8 years.
Genesis Of The Saga
Ham Enterprises (U) Limited (The company) and Diamond Trust Bank (The Bank) had a 10 Year long term Banking relationship where Ham Enterprises (U) Limited as the client made huge transactions on its accounts with the bank equally extending Loan facilities to the company and the company would promptly pay off these loans until an outstanding balance of USD 10,000,000 (United States Dollar – Ten Million only) which the company claims was not reducing despite having paid huge amounts of money towards loan clearance over time.
The company, therefore, decided to carry out a figurative and legal Audit on all its accounts through which 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 the Bank had excessively unlawfully debited Ugx – 34bn and USD 23m from the company’s accounts over that spread period of time.
The legal audit furthermore revealed that Diamond Trust Bank was carrying out illegal transactions in a bid to avoid paying government taxes contrary to the laws of Uganda specifically as guided by the Financial Institution Act and equally contrary to the Bank of Uganda customer consumer protection guidelines.
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, equally bringing these acts of illegalities committed by the Diamond Trust Bank to the court’s attention.
On 7th October 2020, a judgment was entered against the Bank based on the fact that the Bank on court record admitted to committing illegalities by 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.
As a result of the above, Commercial Court Judge Henry Peter Adonyo ordered DTB Uganda to refund all funds deducted from his accounts amounting to Ugx120 billion. It was alleged that these deductions were made without Kiggundu’s consent.
On the 5th 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 despite it being the substantial ground of appeal as filed by Diamond Trust Bank.
The Court of Appeal concluded by ordering a retrial while excluding the amended plaint that had raised the point of law of illegality committed by Diamond Trust Bank thereby promoting and shielding the illegalities as committed by the bank contrary to the Financial Institutions Act.
However, on 8th June 2023, Kiggundu was summoned by Supreme Court and informed by Lady Justice Elizabeth Musoke that the whole saga had been concluded and he should come back on June 13th, 2023 for the judgment.
The above left Ham and his lawyers led by Fred Muwema in shock and demanded judgment on the admission that DTB operated without a required license, resulting in the fraudulent withdrawal of funds from their client’s bank accounts but all this fell on deaf ears of the Lady Justice Musoke who said the tycoon had no any other option but to wait for whatever kind of judgment that will be delivered.
The above compelled Ham through his lawyers to instantly file an application for the ‘arrest’ of the scheduled judgment as it arose out of bias and perhaps the honorable 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.
”The learned Justices of Appeal erred in law when they avoided adjudicating the substantial question of illegality which was the basis of the Respondent’s Appeal before them,” Ham said in his application seeking to ‘arrest’ the judgment but it was all in vain when the judgement was delivered on 13th June this year.
Following the judgment, Ham through his lawyers petitioned the Constitutional Court to challenge the same noting that it was defective and unconstitutional as it contravened articles 2, 20, 21, 28, 44, 126, and 128 of the Ugandan Constitution.
Ham further contended that the judgment was dated and signed by the Chief Justice on June 6, 2023, but later signed by other panel justices on June 13, 2023, and delivered on the same date, despite the Chief Justice stating that other Coram members were in full agreement with it seven days before their actual signing. They referred the case to the High Court for retrial under a new Judge after not hearing two pending applications and disallowing the substantial issue of illegality.
But now that two gentlemen have resolved their matters amicably, the rest is now history