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HomeNationalUganda Supreme Court Judge Issues Disclaimer Over Defective Judgment in Ham Vs...

Uganda Supreme Court Judge Issues Disclaimer Over Defective Judgment in Ham Vs DTB Case

In the HAM vs DTB saga, 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-conference hearing 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 whereafter 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  judgment.” 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.  

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