KAMPALA | Uganda is yet again witnessing another series of a legal battle between HAM vs DTB as Hamis Kiggundu alias Ham petitioned the constitutional court challenging the outcome of the judgement of Supreme Court for being Unconstitutional and in contravention of several provisions of the constitution of the Republic of Uganda as well as challenging the manner in which the judgement was fixed and delivered as he lays down several provisions of the law that were not only undermined but also deliberately faulted in a bid to see that DTB was let off the hook. It should be noted that not long ago the country witnessed drama at the Supreme Court when Ham and his lawyers protested the scheduled date for delivery of judgement in their Appeal which they termed as a move to deny him (Ham) his constitutional rights of being heard.
Ham decried the manner in which the pre-conference hearing was handled and the manner in which Justice Elizabeth Musoke bulldozed Counsel Muwema while massaging Counsel Karugire who was freely given audience as and when he desired. Ham went ahead and complained about the unprofessionalism, impartiality and biasness exhibited while handling his Appeal. This however did not in any way affect the justices of the Supreme Court who were determined to deliver the said judgment as they went ahead and did the same even when Ham had filed an application to arrest/halt the delivery of the said Judgement.
It ought to be remembered that Hon Lady justice Percy Night Tuhaise went ahead and delivered the said judgement amidst protest from learned counsel Kagolo who represented Ham as Counsel Muwema was unavailable. Counsel Kagolo went ahead and gave several reasons including but not limited to the fact that they had been invited for a pre- hearing conference which didn’t take effect but rather a date for delivery of judgement was given, the failure of the Registrar of the
Supreme Court fixing their application despite having been filed in 2021 and further that they had filed an application to arrest the judgement at hand pending the hearing of their application. These arguments were rebutted by Counsel Karugire as he stated that the said application was a waste of time as some of the questions therein would be handled in the said judgement and the matter had taken long and secondly that the application to arrest the judgment had been fixed nor heard. Hon Lady justice Percy Night Tuhaise went ahead and delivered the judgement where after she gave a disclaimer for her decision to proceed with delivering the said controversial judgment which she stated that would have in any way been delivered by any other judicial officer or the registrar of the Supreme Court.
Hon Justice Percy Night Tuhaise made the said disclaimer (explanation for why she delivered the controversial judgement) on the 29th June. 2023 claiming she had only been instructed to deliver the judgement by the chief justice Owiny Dollo amidst unsettled applications on file. The disclaimer was titled “Reasons why I declined to half delivery of judgement” which was signed and delivered by Hon Lady Justice Percy Night Tuhaise on the 29th June 2023 and has been termed by many within the legal spheres as a disclaimer of responsibility casting aspersions on the integrity of the whole judgement making process in civil appeal No 13/2021, rendering the said process a nullity and in contravention of Articles 2, 28, 44, 126 and 128 of the Constitution as was stated by Ham’s lawyers in the petition that is before the constitutional court of Uganda.
Hon justice Percy Night Tuhaise noted in her said disclaimer that; “When the above matter was called for delivery of judgment, learned Counsel Friday Roberts Kagoro, assisted by learned Counsel Anthony Tomusange, representing the Appellants, requested me to halt the delivery of the judgment, giving reasons that the Appellants filed Civil Application No. 51 of 2021 seeking judgment on admission, pending hearing before this Court; and that, subsequently, the Appellants
received further evidence that would be instrumental in making this Court arrive at a just decision, which prompted them to file Civil Application No. 15 of 2023, also pending before this Court, seeking this Court to arrest delivering the judgment. further noted in the same disclaimer that “The gist of the Appellants’ Counsel’s prayers was that I halt the delivery of the judgment and fix Miscellaneous Application No. 15 of 2023 for hearing, after which they would be ready to receive the judgment. At some stage in their submissions, learned Counsel for the Appellants even suggested that I hear the application, allow it or dismiss it”. Hon Justice Percy further noted that the Judgement was received under protest by learned Counsel Friday Roberts Kagoro of the appellants, which she accordingly recorded, after informing him that it was his right to do so.
Hon justice also stated that; “I listened to Counsels’ submissions from each side and appreciated that Miscellaneous Application Nos. 51 of 2021 and 15 of 2023 were pending hearing in this Court. Counsel for both sides even went to the extent of highlighting some aspects of the merits of each application.” She concluded by stating that “My simple role in court that day was to deliver/read a judgment, as mandated by the head of the panel, which role, which could even be performed by a Registrar of this Court, did not confer upon me competence to fix any applications for hearing, let alone hear or determine such applications, or delve into the merits of such applications. I was not sitting in Court as a panel, not even as a Single Justice, in the sense of presiding over a hearing and determining it. My simple role was to deliver/read a judgment, as opposed to fixing or hearing an application, whether such application was to arrest a judgment, or to adduce further evidence. This is the reason I have refrained from addressing those aspects of the submissions from both sides which would make me delve in the merits of the two applications as if I constituted the Coram competent to hear and determine the two applications. As I sat to deliver/read the judgment, there was no order from any panel to the effect that judgment be arrested, nor was there
anything from the Registrar of the Court, or on the face of the record, giving me reason, or hampering me from proceeding to deliver/read the judgment. This is the reason why I proceeded to read/deliver the judgement.” One then would wonder why the humble justice of the Supreme Court of Uganda Labored to issue a disclaimer/ statement explaining the reasons why she went ahead and delivered a judgment she knew was controversial or if she did not know the same was controversial and she was simply fulfilling her role as a delegate for which she was mandated or obliged to do then it all honesty there was no need for such disclaimer explaining her reasons for delivering a judgement she not only “agreed/concurred with, participated in but also she knew was flawless and was arrived at and was being delivered constitutionally”. There is a notion that says, an injustice is better than pretended justice” no wonder Ham was not only dissatisfied but also disappointed and hence his move to petition the constitutional court to resolve the several questions of law and legal dilemma and vacuum that was caused by the infamous “controversial judgement” that was welcomed by the banking sector, but strongly condemned by the legal brains as well as the wanainchi and business community, as the same set a bad precedent that was unsupported by the Uganda legal jurisprudence. We therefore await for the outcome of the constitutional petition as what we thought was a big blow to Ugandans by the highest court of the land could yet again be turned around by the constitutional court which whereas is the second highest court in the hierarchy of courts in Uganda but has the mandate to interpret and reverse a decision of the Supreme Court when it is sitting as the constitutional court as it is the only court mandated to sit in the matters that require legal interpretation as a court of first instance. Therefore Ugandans once again have a ray of hope in the constitutional court to put right what had been wrongly done.
