The multi-billion legal battle between businessman Hamis Kiggundu and Diamond Trust bank has had so many twists and turns that its conclusion remains uncertain.
The only certainty so far is Kiggundu, popularly known as Ham, floored Diamond Trust Bank-Uganda and Diamond Trust Bank-Kenya at the Commercial division of the High court on October 7 when justice Henry Adonyo declared the bank's loan to Kiggundu a perpetuation of illegalities and struck it out.
He also ordered Kiggundu to recover Shs 34 billion and $23m, being monies that were unlawfully taken by DTB from his loan accounts. However, the banks appealed and the two sides are set to resume the battle in the Court of Appeal.
But even before even that showdown could kick-off, the case has sucked in Flavian Zeija, the principal judge, whose conduct in the case has rubbed Kiggundu the wrong way.
Zeija is accused of undue influence, being conflicted and biased in the case on top of usurping the powers of the Court of Appeal to stay the execution of the Commercial court ruling.
GENESIS
On October 26, Kiggundu wrote to the Judicial Service Commission (JSC) asking it to investigate Zeija.
"We request for your intervention in regards to the judicial misconduct of justice Flavian Zeija in handling our file. To our dismay, we have been turned into victims in this temple of justice through the unfair biased actions of Zeija," reads part of the petition, which is copied to the principal private secretary to the president, chief justice Alphonse Owiny-Dollo, as well as the speaker Rebecca Kadaga, among others.
"Since he is a former banker, having served at Finca Uganda and Tropical Bank of Africa, his loyalty is inclined towards supporting banks against clients in courts of law taking advantage of his superior high-ranking position in the judiciary. This is evident from his misconduct with our file right from the start when we filed the plaint where on various occasions, to mention but a few very significant ones."
Kiggundu further alleges that without notice, Zeija summoned the file in the early stages when it was before the deputy registrar, Dr Agnes Nkonge, and gave it direction in regard to Kiggundu's application for an injunction against the banks.
UNDER-PRESSURE GASWAGA RECUSES SELF
Kiggundu was challenging the bank's condition of paying 30 per cent of the loan he received before the case could be heard. Kiggundu further questions why Zeija summoned Dr Nkonge yet again during the handling of his application against the banks with knowledge of the banks yet him and his lawyers were not notified.
"He [Zeija] further called for the file after receiving a letter from K&K advocates [the banks' legal representatives] after they unreasonably, unjustifiably complained about the allocation process of the file to justice Duncan Gaswaga, which letter we were not notified about as the plaintiffs or our Lawyers," says Kiggundu.
"Due to the pressure from Dr Zeija, justice Duncan Gaswaga recused himself from the hearing of the case before determination of the appeal against the bank for a condition of payment of 30% that stands currently unconstitutional contrary to article 28 of the constitution that provides for a right to fair hearing thus the ruling would have affected banks and their unfair practices against their clients in the recovery process which subjects them to payments before they can be heard by courts of law."
The file was later allocated to justice Adonyo, who delivered his ruling on October 7 in our favour of Kiggundu.
ZEIJA STEPS IN
He acclaims that when the banks filed for an interim injunction with main order for stay of execution of Adonyo's ruling, the hearing never took place because Zeija had called for the file again.
"We were left with no clear direction and very uncertain due to the level of judicial misconduct and favouritism that the principal judge had demonstrated at this point in time as we would have expected effective timely notifications on each and every step on our file in line with the rules of administration of justice by judicial officers with transparency in regard to handling of case files," he says.
"It is really sad that we stood stranded at the Commercial court where we had been instructed to come and have the file heard. We received information in court corridors that the principal judge had proceeded and gave an ex-parte order against us at his chambers only in the presence of counsel for the defendants. The actions of the principal judge not only have compromised the independence of the judiciary but have equally seen him betray his oath to uphold justice, promote democratic principles, uphold the rule of law and safeguard the constitution through protection of human rights for all citizens of Uganda."
On November 2, Zeija permanently stayed the implementation of Commercial court orders and in doing so; he claimed that one of the parties tried to bribe him through agents with financial proposals in order to influence his decision. However, he did not mention the party.
But Kiggundu's lawyers led by Fred Muwema say they are going to appeal against this decision because the principal judge's conduct in this file was wanting.
For now, Kiggundu wants the JSC to intervene to this regard and in the interim; Zeija should recuse himself from any legal proceedings in regard to his file.
"The law on interim stay of execution does not grant the principal judge jurisdiction at all to handle such applications where he has not handled the matter. He neither is the appellate court in the circumstances," he contends.
"In addition, his actions undermine the independence of the judiciary as enshrined in the Constitution when he purports to interfere with other judicial officers' decisions without recourse to the law. His actions also violate the right to fair hearing when he takes decisions solely on the motion of the defendants/applicants but to the total exclusion of us who are also parties.
The principal judge's actions also put the judiciary in very bad light since it tends to portray his colleagues as incompetent. In essence, the principal judge is setting a very dangerous precedent where litigants can cherry-pick judicial officers to their convenience whenever a decision is not in their favour without following the well-established appellate judicial processes. He [Zeija] stands compromised and we are not comfortable with him handling our file."
WAY FORWARD
On November 9, justice Benjamin Kabiito, the JSC chairperson, acknowledged receipt of the complaint.
"The complaint has been forwarded to the registrar planning, research and inspectorate, Julius Mwebembezi for evaluation," reads part of his reply.
It remains to be seen how the whole matter will pan out but one aspect that stands out is that this legal fight is far from over and could expose the underhand dealings within the judiciary leaking the same in the banking sector.
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