KAARO KARUNGI | KAMPALA – There was a temperament of exclusive requirement yesterday when we amassed at the Court of Appeal (COA) to get its judgment in the Appeal recorded together by Diamond Trust Bank Uganda and Diamond Trust Bank Kenya against Ham Enterprises and 2 others.
DTB Kenya had rushed to the COA looking to topple the choice of Hon. Equity Dr. Henry P. Adonyo, the then Head of the Commercial Court who had properly tracked down that the credit exchange which the Bank had closed with Ham was unlawful for being in repudiation of S.117 of the Financial Institutions Act 2004 (as changed).
Then again, DTB Uganda had whined that the learned preliminary Judge had failed in law and actuality in finding that it had gone about as a specialist of DTB Kenya without the endorsement of the Bank of Uganda. This was held to be in contradiction of Regulation 5 of the Financial Institutions (Agent Banking) Regulations 2017.
We need to bring up that the above wrongdoings added up to crimes deserving of a term of 3 years detainment of the culpable Bank authorities. Little miracle subsequently that the DT Banks took the undertaking of purging themselves of this guiltiness through the Appeal cycle as a genuine however urgent matter.
They raised 12 grounds of Appeal to the COA and a stunning 8 grounds of them were looking for a re-appraising proclamation that they had not submitted any wrongdoing.
So as we held our breath along with a segment of the Banking business which was hoping to absolve themselves of any declared illicit acts, the COA chose not to appear. The COA neglected to show up when it fail to consider the immeasurably significant inquiry in regards to the illicit acts submitted by DTB. It is prosaic that when an illicitness is brought to the consideration of a courtroom, it has no caution in remaining with the lawlessness as it supplants all inquiries of pleadings, confirmations e.t.c. See Makula International Ltd Vs His Eminence Cardinal Wamala SCCA No 4 1981.
In any case, in the DTB Vs Ham case, the COA didn’t simply decline to articulate itself on the lawless acts submitted by DTB, in a demonstration discrediting it’s investigative order, it additionally deserted the grounds of lawlessness introduced in the Appeal. The COA all things being equal, and unfortunately in this way, went on to decide the allure on grounds obscure to
the Appeal or upon the pardon of supposed procedural anomalies which were given excessive respect over considerable law inquiries of wrongdoing.
The COA decided the Appeal on the premise interalia that the change of the Plaint was sporadic, that Ham’s case for cash was certifiably not a sold interest in light of the fact that there was a review and record request though there wasn’t any such request after it had been saved, lastly that DTB was rarely heard.
Nothing from what was just mentioned issues were outlined as grounds of Appeal by DTB but then the COA went on to outline them, contend them and settle on them. By managing the Appeal thusly, the COA conflicted with its own principles vide; Rule 102 of the Judicature (Court of Appeal Rules) Directions S.I 13-10 which restricts the court from permitting an allure on any ground not put forward or understood in the Memorandum of Appeal.
The Hon Chief Justice Bart Katureebe JSC (as he at that point was), while scolding the above training, was cited with endorsement in Civil Appeal No. 6/2013; Ms Fang Min Vs Belex Tours and Travel Int and Crane Bank Ltd SCCA No. 6/2013 for the limiting suggestion that;
”It is a cardinal head in our legal cycle that in arbitrating a suit, the preliminary court should put together its choice and orders with respect to the pleadings and issues challenged before it. Establishing a court choice or help on unpleaded matter or issue not appropriately before it for assurance is a blunder of law” accentuation provided.
We in this way take the view that by deserting DTB with its stuff of lawlessness at the sanctuary of Justice, the COA left DTB with permanent messes of illicitness all over. While DTB needed the Court of Appeal to clear the illicitness off its face, the COA wouldn’t do as such.
We accept the COA had effectively settled that DTB had submitted a wrongdoing on current realities of the case, that it why it wouldn’t demonstrate it’s innocence. DTB has no choice except for to stroll around with this wrongdoing wherever it goes. It doesn’t make any difference whether the case goes to retrial, allure or whether DTB leaves Uganda.
DTB will consistently bear an engravement of wrongdoing in it’s hereditary make up until a court of skillful locale explicitly upsets the High Court finding of illicitness against it.
Having said that, we have consistently realized the COA to be a court that has speedily managed the subject of wrongdoing at whatever point it has popped up. One model is the new instance of Crane Bank (in Receivership) Vs Sudhir Ruparelia and Anothr Civil Appeal No. 252 of 2019. Around there, the High Court excused the suit on a state of law after it had tracked down that the Bank was submitting a wrongdoing by endeavoring to take freehold titles yet it was an outsider denied from holding such land revenue.
Around there, the COA speedily excused the allure and maintained the lawlessness found by the High Court. The COA didn’t organization a retrial of the case to demonstrate the wrongdoing since it found that it was adequate to build up the lawlessness without calling additional proof past the Pleadings documented. We can just hypothesize that the lawlessness in the DTB Vs Ham case was too poisonous to even consider dealing with. That is presumably the solitary non-legitimate explanation with regards to why the COA stayed away from it inside and out.
So however much we deficiency the COA for requesting a retrial of the case, we cheer it for not tragically interfering with the High Court finding that S. 177 FIA required an unfamiliar Bank loaning in Uganda to get earlier endorsement from Bank of Uganda. This ought to clarify why the Hon Justice Richard Buteera Deputy Chief Justice( DCJ) appropriately expressed at Page 6 of his Judgment that a credit arrangement spoiled with propagation of an offense would not be upheld by the Ugandan Courts.
It isn’t by a slip that the DCJ offers the above expression bearing irrefutable certainties in an allure where DTB is blamed for barefaced lawless acts and offenses. In any case, that assertion connects to the High Court tracking down that the joint DTB Defense was a propagation of wrongdoings since it was spoiled with illicit acts under the Financial Institutions Act 2004 (as changed).
Theodore Roosevelt the 26th President of the USA once said that ‘at whatever snapshot of choice, everything thing you can manage is the proper thing, the following best thing you can do is some unacceptable thing and the most exceedingly terrible thing you can do isn’t anything.’ Fortunately, in DTB Vs Ham we have something for example a finding of illicitness by the High Court which was neither considered nor controlled upon by the COA.
That being the situation, the COA couldn’t and it didn’t save what it had not thought of. The COA choice coordinating a retrial of the case isn’t a choice fretting about the wrongdoings with no guarantees. In our view, DTB will do well to begin early dealings to reimburse Ham the now over UGX.140Bn that was guided from its different Bank accounts held with them.
