The Assistant Registrar to the Supreme Court has dismissed an application by businessman Hamis Kiggundu’s camp, that sought to delay an imminent ruling in the UGX120 billion case that could make or break his business empire.
Supreme Court’s Didas Muhumuza in a 1st December 2021 letter to Ham’s lawyers―M/S Muwema & Co Advocates and Solicitors declined to grant an application for Judgment on admission by Ham’s lawyers saying there was nothing materially new in Ham’s application and that all matters raised therein would be addressed in the imminent main appeal lodged by the businessman.
“The above Civil Miscellaneous Application No. 51 of 2021 seeks an order for Judgment on admission of the grounds of appeal by the respondent, pending the final Judgment in Civil Appeal No. 13 of 2021, to be delivered on notice. The Supreme Court reserved the Judgment after hearing all pleadings/ submissions as scheduled and closed,” the Supreme Court Registrar Wrote.
“In my view, your instant application does not raise any new issue to necessitate any further/ new filings, which would, in any case, require leave of court to do so. What you are seeking in your application will most likely be taken care of in the final Judgment since the grounds of Appeal by the Respondent to be relied on are already on Court Record. You are, therefore, advised to wait for the final decision of the Court which will hopefully address our concerns,” the Assistant Registrar concluded.
On November 26th 2021, vide letter MC/27/21/FM Muwema & Co Advocates, together with M/s Kimara Advocates & Consultants wrote to the Supreme Court seeking an order for judgement alleging that DTB Uganda and DTB Kenya had made an admission on some of the grounds on which Ham is appealing, which effectively would mean the appeal would be decided in his favour.
Judgment on admissions is made at any stage of the court process where parties in the case make admissions of fact either by pleading or otherwise, and court Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question make a judgement based on the admission.
“It is evident that the above application if successful can dispose of the whole appeal. Since the judgement in the appeal was reserved on notice, it is necessary that this Application be heard earlier so that any further steps in the appeal are guided by the outcome of the application,” Muwema wrote.
“In the premise, we humbly request that the said application be fixed for hearing on a date convenient to the honourable court. We shall oblige your action in the matter,” the further wrote.
DTB however contests having made any admission on anything.
Background of the case
The entire case originates from a loan taken by Hamis Kiggundu through his two businesses, Ham Enterprises Ltd and Kiggs International borrowed money from DTB Uganda & DTB Kenya, altogether, a total of USD10 million and failed to pay back. When in November 2019, the banks commenced recovery proceedings against him, in response, the businessman, in January 2020 dragged them to court.
In Civil Suit No 43 of 2020, the businessman sued the banks for among others, a breach of loan agreements. In a twist of events event, Ham also alleged that the banks had irregularly debited monies from his accounts to the tune of UGX34,295,951,553/= and USD. 23,467,670.61, altogether equivalent to UGX120 billion, from the company’s accounts over ten years which money he now wanted.
As expected, the banks vehemently denied the allegations. In another shocking turn of events, Hamis Kiggundu would decline
Irene Mwoyogwona: Beyond the Numbers – How Pride Bank's Award-Winning CFO Combines Profitability and Social ImpactTo prove the alleged unlawfully debits, the Commercial Court’s Justice Henry Peter Adonyo (as he then was) on 31st of August 2020 directed that the Institute of Certified Public Accountants of Uganda (ICPAU) appoint an independent auditor to determine if indeed Ham’s money had been siphoned off as he alleged. Surprisingly, on 15th September 2020 Ham through his lawyers asked the court to strike down the independent audit and to both the chagrin of the two banks but shock as well, on 30th September 2020, Justice Adonyo agreed to rescind his orders for an independent audit.
Just as the banks were digesting the shock, on 7th October 2020, Justice Adonyo, went ahead and agreed with Ham’s lawyers, and struck out the banks’ defence against Ham’s allegations. This paved way for him to declare that the two loans, obtained by Ham, had been settled at law and that the banks should give back the businessman his land titles, pledged as collateral.
The banks were also ordered to repay the businessman- the allegedly stolen UGX120 billion, even though he was never put under any obligation to prove the same. You could say the court assisted him to avoid having to prove that money had been stolen from him.
And just like that, the businessman, by a stroke of Justice Adonyo’s pen, was absolved of debt of USD 10,989,044, was allowed to pick his property titles and in addition, was given a UGX120 billion pat on the back!
As expected, the banks in Civil Appeal N0.242 of 2020 (DTB Uganda and DTB Kenya vs Ham Enterprises Ltd & 2 Others) appealed Justice Adonyo’s decision, contending among others that the learned trial judge erred in law and fact in striking out the written statement of defence and finding that the sums UGX34,295,951,553/= and USD 23,467,670.61 were unlawfully taken from Ham’s loan accounts without evidence.
The Court of Appeal on 5th May 2021, ruled that the procedure under which High Court’s Justice Adonyo disposed of the matter and entered Judgment in Ham’s favour was strange, erroneous and severally contravened the Civil Procedure Rules. The Court also found that the trial Judge was wrong in ordering the Banks to pay the claimed sums without hearing the evidence.
The Court of Appeal also proceeded to order that Justice Adonyo’s judgment and orders of the High Court be set aside and that Ham should bear the costs of the appeal. They also ordered that Ham’s original case against DTB Uganda and DTB Kenya (Civil Suit No 43 of ―2020) be remitted back to the Commercial Division of the High Court to be expeditiously fixed and heard by another Judge.
But more importantly, the High Court proceedings were to commence based on Ham’s original pleadings, whose crux was the unlawful deduction of money from his accounts. All other pleadings and statements made by both parties after that were struck from the record.
Simply interpreted, the Court of Appeal said that Ham can proceed with his claim for money against the banks based on the original claims. But here is the catch, to do that, he would have to prove beyond reasonable doubt that indeed money was debited off his account irregularly or wrongfully.
It is then that Ham went to the Supreme Court, asking them to strike out the Court of Appeal ruling. The Supreme Court will now give a ruling on notice— a make or break ruling that if Kiggundu loses, the banks will begin foreclosing in on his properties.
The properties, comprised in Kyadondo Block 248, Plot 328; Land at Kawuku, FRV 1533 Folio 3 Plot 36-38 Victoria Crescent II Kyadiondo where his palatial home is located as well as LRV 3176 Folio 10 Plot 923 Block 9 Land at Makerere Hill Road – the famous Ham Towers.
