By Daniel Hasabubwenje
“This case will make people to lose confidence in the judicial system where they will now resort to jungle law to resolve disputes. This will increase socio-economic insecurity due to the absence of the rule of law. The Bankers actions will frustrate Uganda’s efforts to attain Middle income status which must be supported by a robust commercial justice system which we now lack”.
Ham Enterprise (the company) had banked with Diamond Trust Bank for close to 15 years, they carried out an audit in 2019 on their accounts where it was revealed that the Bank had unlawfully without their knowledge or consent within a period of 10 years excessively withdrawn their accounts to a tune of 34 billion shillings and 23 million USD.
On the 16th November 2019 they wrote to Diamond Trust Bank requesting for an explanation on the above, an account audit and reconciliation to address the issues though they received no response.
On the 10th January 2020 they issued Diamond Trust Bank a demand notice for the refund of funds the bank had unlawfully, extortionately, fraudulently, deceptively through breach of its contractual, fiducial and statutory duties using its superior bargaining position as a Bank debited from their accounts. The Bank failed to refund or give an explanation on the above as requested which left them no choice but to file a suit for recovery.
They proceeded and filed a plaint on the 17th January 2020 against Diamond trust Bank Kenya/Uganda for claim of the monies they had fraudulently taken from their accounts and to bring all the illegality mentioned above to light through a proper court procedure.
However, they were warned that Diamond Trust Bank had hired a political lawyer Kiryowa Kiwanuka with political influence from the upmost political structure where regardless of how much evidence they lawfully held, they stood no chance of receiving justice from courts of law.
They disregarded that and proceeded with filling a claim at the high court commercial division.
Ham Enterprises had equally filed an application in the interim for an injunction stopping Diamond Trust Bank from doing anything funny in regard to their accounts and loan books since the audit had revealed that all loans had been fully cleared but rather unlawful excessive debits had been withdrawn from our accounts by Diamond Trust Bank. Secondly, given the fact that they issued a termination notice of all contractual obligations with the Bank for having carried out illegalities on their accounts in total breach of the bank’s contractual obligation.
To their surprise the court registry then Her worship Hon. Dr. Nkonge Agnes gave them an injunction conditionally asking them to pay 30% of whatever disputed amounts they had with the Bank regardless of the fact that they had come seeking justice for recovery before court would hear their case. Ham Enterprises found this completely repugnant and inconsistent with article 28 of the Ugandan constitution that provides for a right to a fair hearing, seeing court asking them to pay the Bank despite the fact that the company went to court as victims seeking justice against illegalities committed against them by this same respondent Diamond Trust Bank before justice would be administered.
The company later found out that Kiryowa Kiwanuka had contacted the Principal Judge Hon. Dr. Justice Flavian Zeija who had summoned the case file and Hon. Dr. Nkonge Agnes directed her to subject them to a condition of payment of 30% before they could be heard by court and she had acted on his instructions.
They were told that Kiryowa Kiwanuka facilitated the appointment of the Principal Judge Hon. Dr. Justice Flavian Zeija thus owes Kiryowa Kiwanuka a debt to comprise any court case filed where Kiryowa Kiwanuka holds interest and so many Ugandans have fallen victims to these unprofessional acts of the principal Judge, Ham Enterprises inclusive.
They formerly filed an application against the 30% condition imposed on them as being unjust, to be fixed before a judge. The file was fixed to be heard by Hon. Justice Duncan Gaswaga who was equally summoned by the Principal Judge Hon. Dr. Justice Flavian Zeija only to be given a direction forward in regard to the file.
Hon. Justice Duncan Gaswaga received too much political pressure on this file including physical threats from ISO operatives organized by Kiryowa Kiwanuka and the Principal Judge Hon. Dr. Justice Flavian Zeija that on the 09th July 2020 he was forced to step down from passing his ruling on this case. He had fully heard submission of both parties with the ruling ready but in his own words on courts record he stated “It’s really painful that on baseless allegation and lies in proceedings by counsel for the defendants at the 11th hour of passing my ruling I have to recuse myself from handling the matter in the interest of protecting myself as a person, secondly as a professional and as well as my family members”.
If the Principal Judge Hon. Dr. Justice Flavian Zeija, Kiryowa Kiwanuka and their operatives got the Honorable senior Judges this scared, how about the ordinary Ugandans that run to courts of law hoping to receive justice. This act got all the judges at commercial court afraid of handling their file.
The Principal Judge Hon. Dr. Justice Flavian Zeija further summoned her worship deputy registry Hon. Dr. Nkonge Agnes during miscellaneous application 34 of 2020 giving her directions on reallocation of the file to which she failed to comply but followed lawful court procedure, it’s said to be one of the reasons she was given a transfer from the Kampala commercial court to Masaka outside Kampala by the principal judge on direct instruction of Kiryowa Kiwanuka.
At this rate and point Hon. Justice Dr. Henry Peter Adonyo being the head of commercial court and senior Judge decided to handle the case file himself to reserve sanity and rule of law in court thus not rendering the entire commercial court incompetent.
The 30% issue was dropped by both parties and Hon. Justice Henry Peter Adonyo proceeded to hear the case, where it was established that Diamond Trust Bank had not only excessively debited monies from Ham Enterprises’ accounts but also carried out illegalities against the financial institution Act that prohibits carrying out of financial institution business in Uganda without a license from the financial regulatory body Bank of Uganda
By admission in court, Diamond Trust Bank submitted that they had carried out financial institution business in Uganda without a license as they didn’t need one and neither did they file any counterclaims against their claims. Where submissions were filed by both parties.
On the 7th October 2020, judgment was entered against Diamond Trust Bank, they were ordered to pay 120billion they had unlawfully debited from Ham Enterprises accounts, ordered to return their securities and Bank of Uganda was cautioned on improper supervision of its financial monitory mandate to protect Uganda’s Bank industry and the interest of Ugandans from such exploitative financial institutions as provided under the law.
All foreign exploitative commercial Banks under their umbrella of Uganda Bankers’ Association (UBA) were frustrated by the judgment publicly addressing it as reckless judgement. This would set a precedent thus running to the Principal Judge Hon. Dr. Justice Flavian Zeija on a way forward.
The Principal Judge being a former Banker was equally frustrated by the judgment passed by Hon. Justice Henry Peter Adonyo. Under the instruction of Kiryowa Kiwanuka the Principal Judge Hon. Dr. Justice Flavian Zeija in a few months thereafter demoted and transferred Hon. Justice Henry Peter Adonyo from head of Kampala Commercial division court to upcountry courts as a punishment for noncompliance with the interests of these foreign commercial Banks. The senior Judge fell victim for fronting the law and protecting the interests of Ugandans through administering fair hearing as a right of all Ugandans provided by the constitution.
The Principal Judge Hon. Dr. Justice Flavian Zeija has indeed betrayed his sworn oath to uphold the constitution, promote rule of law, uphold democratic principle and safeguard human rights of all Ugandans thus equally undermining the achievements of this regime and independence of the Judiciary.
Before Ham Enterprises could execute the judgement and orders of the high court the Principal Judge Hon. Dr. Justice Flavian Zeija hijacked the entire file from the commercial division and illegally, irregularly outside normal Judicial proceedings, he himself entered and issued an order of stay of execution of the judgement.
NOTE: K&K Advocates handling this matter has two managing partners Mr. Edwin Karugire the humble partner that never invokes political power when handling court issues. However, his partner Kiryowa Kiwanuka has misused his proximity to the government to undermine the independence of the judiciary, mainly blackmailing the entire judicial structure through the Principal Judge Hon. Dr. Justice Flavian Zeija, they have hijacked the Ugandan courts of law mainly financially to protect the interest of these exploitative Foreign Commercial Banks and act as a legal shield for all other exploitative foreign companies interests at the cost of compromising legal rights of ordinary Ugandans.
COURT OF APPEAL: Diamond Trust Bank through Kiryowa Kiwanuka filed an appeal in court of appeal giving grounds against the judgement of the high court mainly arguing that no illegality was committed by Diamond Trust Bank Kenya/Uganda claiming that they didn’t require a license to do financial institution business in Uganda.
A panel was selected of three senior Judges, Hon. Justice Richard Butera the Deputy Chief Justice (DCJ), Hon. Justice Kenneth Kakuru and Hon. Justice Christopher Izama Madrama. The company submitted all its arguments and so did Diamond Trust Bank as required by the law and awaited judgement.
Ham Enterprises was legally so sure that the judgement from the high court would be maintained since the illegalities committed were so clear as provided on court record by the law. Diamond Trust Bank had on record admitted to having committed an illegality of doing business in Uganda without a license as required by law, lastly no court or judgement in history of Uganda’s legal system has ever shielded or stood for an illegality as that would create a bad precedent compromising the entire legal court structure.
A few days before judgement was passed, rumors circulated in public that the Uganda Bank’s Association and Diamond Trust Bank were certain that the case would be determined in their favor and the file would be returned to the high court for retrial, rumors said that the judges had been compromised and they were to rule in favor of the Diamond Trust Bank. They bragged that this was a political issue beyond a legal remedy that would affect the entire Ugandan economy if the Judges dare to rule otherwise regardless of what the law provides for.
They bragged that they fund most government projects and equally the government holds so many outstanding loans with them, with so many other loans to government in the pipeline that would be immediately cancelled should the courts rule otherwise.
There was a claim that the Ugandan government and courts can’t uphold the legal structure/interest in Uganda simply to compromise their financial interest as Uganda does not hold a strong financial backbone to enforce its laws against these interests.
There was a claim that they have a strong political lawyer Kiryowa Kiwanuka and the head of court the Principal Judge Hon. Justice Flavian Zeija who is responsible for facilitating the process of appointment of Judges, promotion of Judicial officers evident from the fact that when the Bank appealed the registrar Her worship Hon. Suzan Kanyange was immediately transferred to the court of appeal to specifically handle the matter.
There was also a claim that the handling judges would be promoted to the supreme courts which offers better benefits for Judicial officers and to our surprise applications for promotion of registrars to Judges and promotion of Judges commenced in a few weeks and days prior to this judgement though we are not sure if the Judges on this file applied for promotions.
There was an additional claim that Banks run the Ugandan economy and the government lacks the financial capacity, economic independence and judicial independence for Ugandan courts to pronounce themselves on this illegality and yet at the same time they hold the financial capacity to compromise any judicial officers.
Despite all the above, the company patiently waited for the court of appeal to pass judgement with their full pronouncement on the illegality since it was too evident for courts to shield it or simply stay silent about it. There are so many present judgements passed against such illegalities like money laundering with so many Ugandans in prisons prosecuted for minor offences. Ham Enterprises stood firm and sure that the law would prevail as they didn’t seek any favors from courts, but for the law to prevail, Despite political frustrations by powerful political power brokers.
On the 5th May 2021 the court of appeal delivered its judgement, court was blessed with attendance of so many Ugandans that have always keenly followed the case thus they came at court of appeal in large numbers to witness justice being delivered in the interest of preserving the rule of law, upholding democratic principles, protection of constitutional human rights of fair hearing and maintaining the independence of the judicial against these political commercial interests that seemed to undermine the rule of law.
However, to all our surprise all 3 judges delivered similar judgements to have the case returned to the high court for retrial and the following was compromised within their judgements:
1. The Judges remained completely silent about the illegality committed by Diamond Trust Bank despite the fact that there was an admission by the Diamond Trust Bank on court record.
2. They moved outside the scope of the grounds of appeal raised by the Diamond Trust Bank against their common legal procedure at courts of appeal, formulated new grounds in the interest of defending the illegality committed, argued the grounds and passed judgement giving orders of striking out the company’s amended pleadings that amplified the point of law on the illegality forgetting the fact that the same issue had equally been raised in the first Plaint.
3. They gave orders that the case file should be put before another judge of the high court but the pleadings on the illegality should not be entered or determined by the high court but rather the court should focus on the first plaint filed.
4. They Deferred and passed judgement in regard to the first plaint filed which Diamond Trust Bank had not even submitted to the court of appeal as part of the records of proceeding. Diamond Trust Bank’s grounds on appeal were limited and specific only challenging the illegality raised as a point of law from the amendment plaint which the judgement remained silent about.
5. They ordered for the striking out of the amended plaint that amplified the point of law of the illegality committed with no due regards to the record that the amendment was lawfully filed with admission by both parties at the high court where it was filled after seeking leave of court as it is required by law.
6. They awarded costs to Diamond Trust Bank which left us wondering how a party that had committed an illegality with admissions on court record Be awarded costs.
This left Ham Enterprises very dissatisfied with the whole judgement and the company commenced with the appeal process at the supreme court and they already filed the notice of appeal, application for stay of execution and yet to file the main appeal with the supreme court. In light of all the above, this raises a number of questions to all Ugandans:
1. Does Uganda as a country fully hold real independence of the economy or independence of the Judiciary against foreign financial interests?
2. Does Uganda hold the financial backbone to enforce our legal interests/frustrations against exploitative systems, structures and policies that have left Ugandans in absolute poverty?
3. Do courts of law legally hold the discretion to stand, protect, shield or basically reserve the right to stay silent about an illegality once brought before them with proof of admission on court records?
4. In light of checks and balances with separation of powers of the Judiciary, legislature, and the executive when does a Political Financial decision compromise or override the rule of law?
5. Do courts of law under the current legal framework and parameters of reason and reality hold the legal right to victimize a party that has run to courts of law to seek justice and equally award costs to parties that have committed and admitted on court records to have committed an illegality?
6. Bank of Uganda having publicly come out and issued a notice supporting Diamond Trust Bank on carrying out financial institutions business in Uganda without a license thus openly promoting money laundering, Bank of Uganda equally having formerly applied to become friends of court with intention of supporting the illegal actions of Diamond Trust Bank (which was defeated on court records for they stood compromised evident from the public notice they had earlier issued supporting these illegal Acts of money laundering) despite the fact that we have seen Bank of Uganda close so many local Banks for far less offenses committed. Is Bank of Uganda by structure, Policy and operational system for or against the Financial Interests of Ugandans in light of the above?
7. What are the limitations of the powers of the Principal Judge on Judicial officers when handling a case filed by ordinary Ugandans in courts of law? It is evident from facts in this case that the Principal Judge Hon. Dr. Justice Flavian Zeija and Kiryowa Kiwanuka as facilitators of Judicial appointments, promotions and transfers hold unlimited powers on Judicial officers to influence any judgment in their interest regardless of what the law provides.
8. The company even raised a complaint with the Judicial Service commission on the 15th October 2020 but no legal proceedings or enquiries have been commenced against his actions by the commission. What should be the next procedure, step as a legal remedy under such circumstances?
9. Where does an ordinary Ugandan run to if the courts of law that are meant to protect them have turned into the very weapon of their destruction?
10. Where too much power and influence has been used and illustrated from all the above facts what gives Ham Enterprises assurance that the same won’t happen at the supreme court?
11. Do the Ugandan laws operate selectively, for we have seen so many ordinary Ugandans prosecuted and sentenced for minor offences yet Diamond Trust Bank having even admitted to committing an illegality we see Bank of Uganda standing by their side and courts of law shielding these illegalities?
12. Regulation 13 of the mortgage act provides that any person who requires to have legal proceedings filed against any financial institution is required by law to pay 30% of whatever disputed amounts to such financial institution which stands contrary, repugnant and inconsistent to article 28 of the Ugandan constitution that provides for the right to fair hearing. This puts a cost to justice before one can be heard by courts of law and it is a barrier to fair hearing only to protect the interests of these exploitative foreign Banks. Why is this unjust law still being administered in the legal court procedures for an unjust law can’t be law?
13. What are the implications of such a political judgement on the rule of law, on questions of illegalities and acts of money laundering, does it imply that money laundering is now legalized by such judgement or should all those sentenced to prison on counts of such illegalities be discharged as its evident that Bank officials that have committed the same are being shielded from prosecution by the legal arm. Does the law operate selectively?
14. In regard to legal practice doesn’t this create unfairness and imbalances where we have some lawyers pushing so hard within our legal framework and others invoking political power and intimidating judicial officers only to frustrate the entire legal process.
This case will make people to lose confidence in the judicial system where they will now resort to jungle law to resolve disputes. This will increase socio-economic insecurity due to the absence of the rule of law. The Bankers actions will frustrate Uganda’s efforts to attain Middle income status which must be supported by a robust commercial justice system which we now lack.
These are the kind of issues that can get a person killed. It should be remembered that around December 2020, media widely reported tycoon Hamis Kiggundu fearing for his life, however as Ugandans we have to stand strong for Uganda as we currently have a strong government in power and trust that will have these issues fully investigated and the culprits will be brought to justice for this is not a legal battle limited to financial benefits as many Ugandans presume but rather one for preservation of the rule of law, upholding democratic principles, safeguarding human rights and protection of our constitution as a country. Patriotism and nationalism should always come fast in all things we do as Ugandans.
The Author is an Economist and Financial Consultant at Elite Consult. He can be reached at: [email protected]
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