We can authoritatively report that Diamond Trust Bank Uganda and Kenya have been pushed to the wall in a landmark court ruling.
This is after a court order was granted with Diamond Bank conceding that in the interest of justice the 30% condition be vacated and that the matter should be left to court to determine the case on its merits.
The case emanates from a suit filed by tycoon Hamis Kigunddu after DTB threatened to attachhis assets, including his palatial residence at Kawuku, Wakiso district and commercial buildings in the city.
The banks argue that Kiggundu received a credit facility totalling over sh41b a few years ago and he still owes them about sh39b. In turn Kiggundu, who is better known as Ham, is accusing the banks of fraudulently siphoning over sh200b from his accounts without his knowledge and consent over the past 10 years.
The order means that Ham Enterprises has had its first SUCCESS against Diamond Trust Bank Uganda /Kenya and the company is looking forward to full recovery of all monies unlawfully debited from its accounts to a tune of approximately Ugandan Shillings 120 billion now.
We earlier reported In our previous article that Ham Enterprises Limited took Diamond Trust Bank Uganda and Diamond Trust Bank Kenya to court for fraudulently debiting approximately Ugandan Shillings One hundred billion from their accounts over a period of approximately ten years in a suit filled vide H.C.C.S. No- 43/2020 at the commercial court.
The Facts
Ham Enterprises Uganda Limited carried out a figurative and full legal audit on all its accounts in Diamond Trust Bank and it was established that the Bank had fraudulently, illegally and irregularly debited huge sums of money, of upgraded amounts which currently stand at Uganda Shillings 34,295,941,533 Billion from the company’s shillings accounts and United States Dollars 23,467,670.61 Million from the company’s dollar accounts.
Summarized overview of the Defrauded Amounts
Termination of all Banking Contracts with DTB and Demand for Refund
The company wrote a letter to Diamond Trust Bank bringing these facts to their attention and equally terminating all contractual relations with the Bank on the 16/11/2019, to which the company received no response. On the 10/01/2019 the company additionally wrote a demand notice to the Bank requesting the Bank to refund the unlawful debits or otherwise the company would seek remedies from the courts of law to which the Bank equally never responded.
Ham’s Demand Notice to the Bank and Dragging the Bank to Court
On the 17/01/2020 the company filed a suit, H.C.C.S No. 43/2020, for recovery of the same and equally applied for an injunction stopping the Bank from turning around to claim recovery of loans that had already been recovered from the company’s account as clearly stated in the audit findings and company Bank statements.
Ham’s Plaint of filed suit H.C.C.S No. 43/2020
On the 23/01/2020 the bank filed a Statement of Defense requesting that Regulation 13 of the Mortgage Act be imposed upon Ham Enterprises (U) Limited, which requires that if a person is to file proceedings against a Bank they should first deposit 30% of whichever amounts are involved, with the Mortgagee Bank. An injunction was granted to the Company stopping the Bank but with the 30% condition in place.
Ham’s Court Appeal
However, Ham Enterprises (U) Limited appealed against the order as this was contradictory to Article 28 of the Constitution that provides to every Ugandan a right to a fair hearing, claiming they were the victims from which the Bank had stolen money off their accounts and they had come to court seeking justice and recovery of the same. How could then court hold them bound to pay 30% to the same fraudulent Bank with full evidence of the fraud presented to court in the audit records provided, and the statements.
Banks have always used this law (Regulation 13) to push their clients to the wall denying them the right to a fair hearing which injustice may change and come to an end because of this case.
Challenging Mortgage Regulation 13 and its Constitutionality
Ham Enterprises Limited has additionally filled a Constitutional Petition challenging Regulation 13 and its Constitutionality on ground that it’s repugnant and inconsistent to Article 28 which provides for the right to a fair hearing and this Regulation has always been used by Banks as a clog against seeking justice by their clients.
Ham’s Petition Challenging the Constitutional Regulation 13 of the Mortgage regulations 2/2012
Ham Enterprises (U) Limited has had its first SUCCESS against Diamond Trust Bank Uganda /Kenya and the company is looking forward to full recovery of all monies unlawfully debited from its accounts to a tune of approximately Ugandan Shillings 120 billion now.
Case in point, the Mortgage Act was enacted in 2010 however it was not until 2012 that Regulation 13 under the Mortgage Regulation 2012 that requires payment of a 30% deposit was smuggled into the laws of Uganda as a photocopy to the income tax law which required a tax payer to pay URA a deposit of 30% on an assessment before they could challenge such assessment at courts of law.
However, it should be noted that this requirement has recently been successfully outlawed by the Constitutional Court in Constitutional Petition No. 3/2009 Fuelex (U) Limited Vs Uganda Revenue Authority.
This is the same court hearing the Constitutional Petition filed by Ham Enterprises (U) Limited against Diamond Trust Bank Constitutional Petition No. 11/2020 which quotes similar injustices but this time under the Mortgage Regulations. This kind of injustice in Uganda should stop since courts of laws are conduits of Justice as Ugandans go to courts of law seeking justice not rather to be turned into victims.
