The Supreme Court in Kampala has referred back to the Commercial Division of the High Court the shs120 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.
Genesis
Kiggundu, the proprietor of Ham Enterprises Limited and Kiggs International (U) limited dragged DTB -Uganda, and DTB-Kenya to Commercial Court for allegedly fraudulently siphoning over sh120billion from his accounts without his knowledge and consent which consequently directed that he is refunded the money taken from his account.
The Commercial Court ruled in the favour of Ham and ordered DTB to pay shs120 billion.
DTB appealed against the decision of the lower court and in its subsequent judgement, the Court of Appeal ordered for a retrial of the matter in the Commercial Court.
Dissatisfied with the Court of Appeal’s decision, Ham challenged the same before the Supreme Court.
On Tuesday, the justices of the Supreme Court reasoned with the Court of Appeal that there were glaring errors during the case at Commercial Court that needed to be rectified through a retrial.
“I am unable to fault the Court of Appeal for, in the exercise of its duty to re-evaluate the proceedings of the trial Court, noting glaring errors in the procedure adopted by the trial judge; the determination of which it deemed might have a bearing on the decisions of the trial Judge. In the circumstances, the Court of Appeal was right in raising, of its volition, issues which merited consideration; albeit that they had not arisen from any of the grounds of appeal.”
“The court identified such issues as the amendment of the plaint, the entering of judgment under O.6 rule 30 of the Civil Procedure Rules, and the legal basis for the orders granted by the trial judge; all done
without conducting any hearing to determine, inter alia, whether the parties were in “pari delicto”, and whether a cause of action can be founded on an illegality. In this, the Appellant suffered no injustice whatsoever. “
The court therefore directed that the case returns to High Court for retrial under a new judge but basing only on issues of fact arising from the pleadings.
The panel of five justices of the Supreme Court also awarded DTB Kenya and Uganda 50% of the costs in the court and in the Court of Appeal.
