On the 24^th March 2023, I saw many lawyers on various chat groups toasting to one decision from the court of appeal, and then tossing to another from the same court 10 days later. The issue was that the same court had delivered contrasting decisions in two separate cases, raising the same legal issue upon similar facts.

In the first case, CA 43 of 2023 URA Vs NSSF, Hon Mr. Justice Oscar John Kihika JA ruled that a single Justice of the court of appeal had jurisdiction to entertain a substantive interlocutory application. This was in respect of an application by URA to stay execution and stop enforcement of a judgement to pay UGX25Bn which it had initially obtained from NSSF. The court dismissed the application with costs.

The second case, CA 860 of 2022; MTN (U) Ltd Vs Occur Odwe Julius Peter, Hon lady Justice Eva K. Luswata ruled that a single justice of the court did not have jurisdiction to entertain an application for stay of execution which had been sought by MTN to try and stop enforcement of a judgement to pay more than UGX500M to the former Deputy Inspector General of Police. Court referred the application to a panel of three Justices which I believe, awaits hearing.

Although the said decisions are in conflict, a careful read indicates that they were all said to be justified by the law and the existing legal principles applied by the court. In Uganda, conflicting decisions do not only arise from the same court. Sometimes a conflicting decision will arise because a court lower in hierarchy will refuse to abide by a precedent set by a superior court. This happens a lot and it tends to debase many cases and leave lawyers and litigants alike, running on empty.

This article does not want to be derailed by a discussion of the merits of either decision. It is intended to explore the phenomenon of conflicting court decisions which pervades most jurisdictions and whose regularity is gaining speed in Uganda. This article asserts that we may all benefit or suffer from conflicting court decisions in one way or the other. However, the effects of this phenomenon, like anything new, comes with its share of pain and anxiety.

I can only imagine that even the judges involved in making conflicting decisions agonize about them and yearn for consensus with their colleagues, and most importantly, consensus which yields to the law. To my mind, conflicting decisions invariably hurt the conscience of the court and it does little to serve judicial economy as well. Additionally, this conflict feeds into the nightmare of Case backlog.

The judiciary in Uganda has reported an annual case backlog of about 50,000 cases. My take is that the absence of a policy on conflicting court decisions is keeping cases longer in the court system. This article therefore, calls for temperance and coherence in court decisions so that the logic and symmetry of the law can be maintained. This is not only possible but it is also absolutely necessary because citizens are entitled to order their affairs on the basis of a certain and consistent understanding of the Law.

We have delegated our understanding of the law to the courts which make enforceable interpretations of the same. We lawyers give advice to our clients on the basis of this enforceable interpretation of the law. However, the clarity of our legal advice is increasingly being blurred by the arbitrariness of some conflicting court decisions.

A uniform application and interpretation of the law by the Ugandan judiciary should answer one of its core values, which is to accord equal treatment to all persons who appear in court, irrespective of their gender, religion, socio-economic standing, etc. This core value is however being devalued by conflicting court decisions which seldom distinguish the precedent they are departing from, as they apparently appear to give preferential treatment to some litigants.

Both URA and MTN in the cases cited above must be feeling some discrimination in the circumstances. On the other hand, NSSF and Mr. Odwe feel that justice was served and I don’t think the apparent conflicting decisions can find space to register with them. Having said that, this article recognizes that a lot of the law, as we know it today, was shaped by the judicial creativity and innovation of some judges who were brave enough to make decisions which departed from the norm.

The foundations of the law of contract, remain in large measure, judge-made, thanks to the industry of eminent justices like Lord Mansfield, the 18th Century Chief Justice of the court of Kings bench in England. His Judgements on contracts, commercial law, Insurance, and unjust enrichment, continue to be cited in courts today.

Creative judges have also been responsible for determining the boundaries of the tort of negligence as we know it today, including, famously, a manufacturers liability to the ultimate consumer (Donghue Vs Stevenson 1932 AC 562). Similarly, damages paid in negligence are based on the judge-made rules on remoteness of damage (Overseas tankship (UK) Ltd Vs Miller steamship Co pty Ltd [1967], AC 617).

Despite the above contribution which often spurs conflicting court decisions, without the constraint of the doctrine of precedent, judge-made law can cause irreparable damage to the rule of law project. The problem is compounded by the fact that the boundary of judge-made law is not precise. This is because it serves an immutable purpose of keeping the law abreast with the socio-economic changes in society.

The consensus appears to be, that judge-made law will be here today, tomorrow and forever. To stave the problem, I recommend that the courts stick to exercising judicial power in conformity with established law, the values, norms and aspirations of the people. This will ensure that the principle of legal certainty and the legitimate expectations of the people are met when handing down court decisions which should have a distinction in promoting Justice. This however, does not mean that consistent court decisions which have been made contrary to the law and the constitution, and which have overstayed their welcome, should not be broken.

In such cases, breaking with the norm may be acceptable only if it is aligned with the expressed will of Parliament and that of the people. The Ugandan Judiciary should purpose to develop guidelines on how decisions which depart from legal precedent can be introduced in our jurisprudence. This proposed policy can borrow from the sentencing guidelines which the judiciary developed for criminal matters. This in my humble view, may hopefully militate against most of the uncoordinated and negative impact we appear to be receiving from conflicting court decisions.

KAMAPALA, Uganda: The Ugandan central bank has made its view known about the verdict which saw South African credit providers losing the thirty million United States dollars’ legal battle to businessman Patrick Bitature. The country`s regulator of financial institutions says people who borrow from foreign debt providers and default, dents the country’s foreign profile. The central bank states this in response to the ongoing legal conundrum between Vantage Mezzanine Fund 11 Paternership and Bitature.

The Genesis

Justice Musa Ssekaana set the conundrum into motion. This is when he declined a request by Vantage to transfer and sell off Bitature’s multi-billion real estates. Vantage had asked Ssekaana to review a ruling by the Uganda’s Registrar of businesses who had also declined a similar request. The judge said since Vantage hadn’t registered their 2014 loan dealings and Bitature with the registrar of businesses, as per the applicable law, the same invalidated those transactions. 

The ruling essentially meant that Bitature is under no legal obligation to clear the loans now in the region of thirty million United States dollars up from ten million United States dollars. Vantage via their lawyers, appealed the ruling. But, the lenders subsequent to the ruling, and against their own appeal, threatened, any way, to go ahead with the auction. The threats were in response to Bitature’s own threats to drag them to court together with their lawyers and the court bailiffs, for contempt of Ssekaana’s ruling which stopped any debt recovery measures.

Useful info

For the record, much as the central bank is fully entitled to it’s opinions regarding these matters, Uganda as a country, is one of the internationally renowned big loan defaulters on planet Earth. So much that the creditors have at several intervals gone ahead to write off those debts following the central bank’s own failure to settle them. Yet Kampala continues to borrow todate and default as well, with reckless abandon.

It should be emphasized and noted that these matters are still a subject of an appeal. This appeal was lodged by Vantage. The same matters are still being handled by an arbitration court in London. Bitature himself has gone on record to state that he isn’t about to escape from liability just that he wants things to be done as per the law. That is it with the central bank’s take on this matter. 

The story: Unmasking the Scapegoat in Muwema as True Culprits of MAKKS Whistle away… 

Let us now explore the crux of this conversation which is money laundering in relation to the law. We are also going to discuss the very risky role being undertaken by city lawyer, Fred Muwema in fighting money launderers and the banks. Muwema, over a fortnight ago pulled off the enviable court victory. And as everyone is expected to know by now, the triumph was in favor of  Bitature.

Bitature had been for years facing the terrible nightmare of losing very high value properties. It’s amid such intimidating uncertainty that Muwema fired off one silver bullet out of his legal gun. It’s that legal bullet which alerted Justice Ssekaana about the ‘invalidality’ of Vantage’s debt. The judge subsequently declared the loan transaction invalid.

As we have qouted Ssekaana at the beginning, the law required Vantage to reveal their dealings in Uganda to the relevant authorities. Since Vantage didn’t do so,  the judge ruled, whatsoever they did with Bitature was rendered inconsequential by that breach. But as Muwema and Bitature were gearing up to pop champagne, all hell broke loose. Social media users went into overdrive delivering own verdicts. The same were not only derogatory, but also sarcastic.

Bitature was labeled a crook. He was viciously attacked for ‘hiding’ under the law to ‘avoid’ liability. The Simba group chairman, was even advised to ignore the ruling and go ahead and pay the debts. Muwema was labeled a crook too. His blunder? Alerting court about the ‘illegalities’ inherent in the loan transactions.

The real troublecauser

For the record, Muwema didn’t participate in these loan transactions at the time of their negotiations abs sealing. The man with the grey patch in his fore hair, was only called upon to clean the legal mess which he hadn’t created in the first place. Another eminent law firm of Masembe, Makubuya, Adriko, Karugaba and Ssekatawa, abridged as MMAKS, are the ones responsible for creating the legal mess which has, unfortunately, sucked in everyone.

Let`s repeat for emphasis sake, when it comes to who failed to do their professional duties in regards to these transactions, the buck would start and stop at the chambers of MMAKS located at Diamond Trust facility. The highly regarded commercial lawyers failed, or neglected to advise their clients, at the time they were transacting this businesses, to strictly follow the applicable law.

This is how their clients ended up blindly, ignorantly and blissfully, riding off along with MMAKS, into the deepest blue sea waters! Yet, now that the clients are evidently caught up between the rock and hard surface, the captains of the ship (MMAKS) are, on the other hand, sitting there as silent as the tomb itself! They have left the precarious job of balancing what originally remains of their own ship wreckage, to Muwema and Robert Kirunda to fix. What a classic replay of `Betrayal at High Noon` and `Jesus and Iscariot’s` conundrum!

Not a one-off

Let us point out this fact because it’s very crucial inhere. This is not the first time for the lawyers of MMAKS to blunder nor cause huge problems to their clients. The same lawyers acted for Diamond Trust Bank in the precedent-setting Hamis Segawa Kiggundu and Diamond Trust Bank(DTB) case. Ham floored DTB. He did so merely because, DTB Uganda breached the loan agreement. It had secretly arranged with DTB Kenya to issue out the loans. This was done outside the clear terms of the contract.

Very true, Ham took the money. He even used the cash. He enjoyed it. Yes, thank you. But Ham had not a contract with DTB Kenya, to give him the debts. Two, DTB Kenya isn’t licensed to operate in Uganda, nor did it seek for permission from Bank of Uganda, to lend to Ham. So, Justice Henry Adonyo declared the transactions invalid. Just like that he did and, oh yes, rightly so by law.

As we write, there are at least to more foreign banks, we know of, waiting to lose huge sums of money. They did what DTB Uganda and DTB Kenya conspired to do in the case of Ham. So, we know, barring a miracle of Jesuit proportions, those banks are some day, going to meet the consequences of their illegal dealings.  

Muwema endangered

Muwema was involved in the case of Vantage and Bitature. He also, was actively engaged in the case of DTB and Ham. The same lawyer is involved in the other two cases where banks are slated to lose huge sums of cash. Moving money into the country outside the law, is certainly illegal. They call it money laundering.

Money laundering is a lucrative business. For starters, that money is rarely detected by regulators. The owners secretly smuggle such funds into the economy, trade with it and then, strategically take it out plus all the profitsgenerated and, the vicious cycle continues. The operators of this illegal business do their thing without remitting the necessary taxes to their chosen economy. This is why the business is very, very attractive and very, very lucrative. Such is the sophistication of this illegal trade that Africa being Africa, lack the means to efficiently rout this crime. 

So, banks, especially the foreign ones, get it easy dealing in this kind of tax-free business under such inefficient law enforcement environment. Yet here is Muwema busily ‘messing up’ with the lucrative but illegal trade. Those fat cats who live off money laundering aren’t amused at all. Muwema thinks it his legal duty to fight  the money launderers. So, he thinks, he must take them by the horns and throw them away. Yes, he might have made a `name` out of it but at a heavy price to his person.

Well, the beneficiaries of the illegal but very lucrative trade aren’t going to fold hands and look on as Muwema continues to mess up with them. They loathe being bothered with the dictates of the law. That Muwema wants them  to play by the rules of the game, these people are going to loathe him the more. For that matter, they are ready and willing to play hard ball. They have started already. The game is on already, but Muwema must stand up and be counted.

This is why in the wake of Justice Adonyo’s ruling in the DTB case, there was a lot of pandemonium, hulaballo and fuss. By ruling as he did, the bold judge was clearly ‘messing up’ with the lucrative job and it’s partakers. So, all sorts of social media arsenal had to be brought out to intimidate courts into backing off the illegal trade. Interesting, thanks to the mafia world tactics, even the social media campaign drivers against Muwema aren`t aware who is driving `their ideologies. `  

The financial institutions and their legal guardians, other than taking careful consideration of Adonyo’s ruling, and henceforth play safe, so as to sidestep what had befallen DTB, turned belligerent. They instead threw violent tantrums about how the courts of law were conspiring with borrowers to render their jobs and business too risky.

Big commercial law firms in town such as Shonubi, Musoke and company Advocates wrote articles alleging how, by doing their duties, the judges in Uganda had sent shockwaves into the banking sector. This, as if sending murderers to the gallows can also be equated to sending shockwaves into the murderers’ circles!Foreign media outlets on behalf of foreign banks of course, operating in Uganda and Africa, notably Reuterstoo, wrote extensively about the ruling, terming it as very bad news for the debt providers.

The central bank itself, instead of counseling the sector actors to play by the rules and regulations set by it, sadly, joined the mafia sponsored lamentation song of the financial institutions. The central bank, dancing to the Uganda Bankers Association’s tunes, said their members would be forced to avoid borrowers which would plunge businesses and the entire economy into the sewers. Talk of holding at ransom, courts, regulators and the country at large,!

But such a sorry posture from the regulator of financial institutions, moreover, as if following the rules and regulations of the game, has ever been a nasty thing to do in any setting! If we may ask, what are rules and regulations for? If the regulators and enforcers, can’t enforce them! Good-for-nothings? In case they are, then we do well laying them there in the pig styies for them to be trampled upon! That’s what good-for-nothing things are for… to be trampled upon to nothing.

Granted, banks and other debt providers, help to lend to businesses and, by extension, assist to grow the economy. But having said this, since when did lending by itself turned into a license of breaking the law! Lest we digress, permit us to revert to MMAKS law firm. They acted for Bank of Uganda in the case of Sudhir Ruparelia and Crane Bank. Years back, the same lawyers had been hired by Sudhir himself.

Sudhir retained them to carry out diligence on business entities before Crane Bank could lend to them huge sums of money. One among such entity was Infinity. The lawyers gave to this one a clean bill of health. Subsequent to that advice, Crane Bank parted with billions in loans for its benefit. Do you know what? Infinity was an absolute ghost! Private auditors hired by Bank of Uganda found this out. 

That wasn’t all. The auditors failed to find any of the collaterals which the ghost pledged to the ill-fated bank. That means the billions of debts were issued without any collateral to cover them in case of default. But this writer`s boy in the  P4 class keeps clarifying to him, “that was free money”. Yet MMAKS had carried out a search and confirmed Infinity’s existence and that of the collaterals! Ultimately, the mastermind of the foolery ended up looting Crane Bank of billions of cash in loans.

The auditors were retained by the central bank ahead of Crane Bank over insolvency issues. And yet, when Bank of Uganda sued Sudhir, the same lawyers crossed over and led the lawyers accusing Sudhir of what they had advised him on! In the end, Bank of Uganda lost the case. Plus the money paid to the conflicted lawyers. And the client is legally bound to spend more billions of taxpayer’s money to settle Sudhir’s legal costs. But we ere in court when Justice David Wangutusi advised the lawyers to settle these matters to save the country loss of huge sums of money. The lawyers refused and here the taxpayer is now, stuck with huge sums in legal costs.