Adonyo: The judge who granted Ham Shs120b in bank case

Sunday October 18 2020

Justice Peter Adonyo faulted DTB Uganda for collecting and lending money for DTB Kenya without the approval of the Central Bank. PHOTO | FILE

By Derrick Kiyonga

In 2017, Justice Yorokamu Bamwine, the then Principal Judge, was faced with a puzzle: who will determine the tantalizing case in which lawyer Hassan Male Mabirizi sued Kabaka Ronald Muwenda, asking the High Court’s Civil Division to stop the king from collecting Shs600,000 from people living on Buganda’s official mailo land.
Justice Bamwine had run out of options after almost all judges at the civil division of the High Court had walked away from the case under pressure from Mabirizi.  Justice Henrietta Wolayo recused herself from the case once she told Mabirizi to make his case from the witness dock instead of the bar. Mabirizi interpreted this as bias and asked the judge to step down.
Next in line was Justice Lydia Mugambe. She didn’t even listen to any of the arguments from the parties as she dumped the case after Mr Mabirizi accused her of holding a closed-door  meeting with Barnabas Ndaula, the legal manager of Buganda Land Board (BLB). Justice Patricia Basaza Waswa partially heard the case but couldn’t arrive at its logical conclusion since she was transferred to the now-defunct Execution and Bailiff Division. 
The only remaining option at the civil division was Justice Stephen Musota, the head of the Court. Justice Musota didn’t bother touching this case since he had clashed with Mr Mabirizi earlier, albeit in a different case.
The Kabaka’s case languished in the court’s registry for a while, forcing the unrelenting Mr Mabirizi to ask the principal judge, himself, to hear the case. He reasoned that Justice Bamwine was at the level of the High Court judge. Justice Bamwine had refrained from hearing cases ever since he had become Principal Judge in 2010, focusing on Alternative Dispute Resolution (ADR), and that wasn’t not about to change despite Mabirizi’s instance.
Having run out of options, Justice Bamwine turned to Justice Henry Peter Adonyo, the pioneer Executive Director of Judicial Training institute (JT1). From 2016, Justice Adonyo had hibernated from handling cases as he was executing the role of superintending over the JTI, the Judiciary training arm.
But here he was being trusted by his bosses with a case that had proven difficult and had grave ramifications but he didn’t have to do much. The Court of Appeal, where Mr Mabirizi had dashed asking for costs arising from an application he had won before Justice Basaza, had dismissed the entire case on grounds that Mabirizi had no locus to sue the Kabaka.
Though in the end Justice Adonyo didn’t have much work to do on the case, it showed the level of faith the top leadership of the Judiciary had in him. It was apparent that big things were expected of him in the future.
It started in 2013 when Justice Adonyo, who was the Chief Registrar, was appointed High Court judge. One of his last acts as Chief Registrar was to write a letter indicating how Prof George Wilson Kanyeihamba, who had just hang up his wig as a Supreme Court judge, hadn’t renewed his practising certificate and thus couldn’t appear as an advocate before judges.
“The above-named advocate [Kanyeihamba] last renewed the practising certificate in 2012,” Adonyo wrote.
The letter somehow landed in the hands of NRM lawyers who were at the time in the Constitutional Court asking it to throw Prof Kanyeihamba’s clients Wilfred Niwagaba (Ndorwa East MP), Theodore Ssekikubo (Lwemiyaga MP) and Barnabas Tinkasiimire (Buyaga West MP) and Muhammad Nsereko (Kampala Central MP) out of Parliament on grounds that they had persistently rejected party positions in the house.
The lawyers led by John Mary Mugisha presented Mr Adonyo’s letter before Justices Steven Kavuma, Remmy Kasule and Augustine Nshimye, who had no option but to throw Prof Kanyeihamba out of court, giving him three days to renew his practice.
Once he was confirmed as a judge in early 2013, the hawk-eyed Bamwine, rather than assigning Mr Adonyo upcountry as the norm was when it came to newly sworn judges who have been in Kampala, posted him to the High Court‘s Commercial Division one of the busiest.
At the time, Mr Adonyo was pursuing a PhD but he had to balance it with work and soon cut a niche as a judge who dared tread where couldn’t dare;  writing sometimes verbose judgements. 
The multibillion property wrangle between businessman Shumuk Mukesh Shukla and the late Boney Katatumba had been at the Commercial Court for six years by the time Justice Adonyo gave his judgement.  The property in dispute included former Backlines House on Colville Street in Kampala, Hotel Diplomate (Muyenga) and Katatumba Resort Island Banda in Kalangala District.
It all started when Katatumba, who was apparently saddled with debts from banks and individuals, entered into an agreement in which he was to sell Blacklines House to Shukla at $5m.
Upon the signing the said agreement, court documents indicate that Shukla deposited $101,000 as a down payment to an account belonging to Katatumba and with the rest of the balance to be paid within 60 days; by October, 15, 2008. On the agreement was attached a schedule of Katatumba’s creditors who were among others to be paid directly by Mr Shukla out of the purchase of the property purchase price.
By October 15, 2008, to the dismay of Katatumba, court documents showed that neither the balance of the money nor the creditors had been paid as was agreed yet pressure continued to mount on Katatumba to pay off his debts.
On November 10, 2008, it is said that long after the deadline for payment had expired, Shukla to Katatumba indicating that he was withdrawing from the purchase of Blacklines House and was demanding immediate refund of the money which had thus been advanced to Katatumba. 
At the same time, however, Shukla intimated to Katatumba that he was still interested in buying the property and that there was a possibility that his company – Springs International Hotel Ltd – could step in and purchase the same but at a reduced amount $4m, and further that if this proposal was agreeable to Katatumba, then the purchase would still be based on terms similar to the previous contract. 
Well knowing his dire situation, Katatumba had no option but jump into this snare, and accepted the new arrangement and therefore on November 10, 2008, executed a new agreement with Shukla for Blacklines House for the reduced sum of $4m. 
After Mr Shukla paid the $4m, he took over Blacklines House and Mr Katatumba’s other properties, touching off a conflict that ended up in court.
“This was clearly a cleverly spun out ploy to take advantage of the first Plaintiff’s [Katatumba] vulnerabilities in order to put him in such a dire situation such that he would agree to anything considering the fact that he had his creditors breathing over his neck. 
The other maxim of equity is that delay defeats equity. A buyer cannot come up merely a month after the deadline by which he was to pay and claim that he now seeks to rescind a contract which he has barely fulfilled. He would be defeated by reason of lapse of time. Such a person cannot be said to come before equity with clean hands since he would be seen as untrustworthy and the court of law as the guarantor of equitable rights cannot and is not the playgrounds for illegal and fraudulent actions,” Justice Adonyo ruled and thereafter ordered Shukla to pay Katatumba Shs10b. He also ordered Mr Shukla to return the property, whose ownership had been illegally transferred, to Katatumba.
The following year, Justice Adonyo was charged with settling a legal dispute in which telecom giant MTN Uganda was accused of sabotaging the business of EzeeMoney Limited.  The drama started when EzeeMoney, whose specialty was e-money business, entered into a contract with MTN for the provision of digital transmission [E1] and 30 fixed telephone lines to carry out its mobile money business. Thereafter EzeeMoney signed up Yo! Uganda Limited (YUL) to implement the service after Uganda Communications Commission, the regulator, approved it on December 2012, to use the 7711 short code to enable its customers to subscribe for e-money services.
But in 2013, MTN annulled the contract, on grounds that EzeeMoney was a direct competitor to its mobile money business.  When EzeeMoney went to court, it classified MTN’s action as “restricted and distorted competition’ and Justice Adonyo, in his judgment, ordered MTN to pay a sum of Shs2.3b (about $662,000) in damages to EzeeMoney Limited for sabotaging its business. 
“I find that by virtue of the defendant [MTN] being in a dominant position in the business [mobile money], which the plaintiff [EzeeMoney] was involved in, [MTN] decided to act maliciously, highhandedly, egregiously, vindictively and oppressively towards the plaintiff for no valid legal reasons…,” Justice Adonyo ruled.

More responsibility
The Chief Justice Bart Katureebe, having founded the JTI based at Nakawa in Kampala, sought to tap into Justice Adonyo’s expertise and transferred him form the Commercial Court to become the institute’s first Executive Director. 
Justice Katureebe was to bestow more responsibilities on Justice Adonyo.  By December 2015 he had tasked him to head the taskforce that oversaw and conducted the first case population throughout the country.  Justice Adonyo delivered the census report by early 2016.  Still, Chief Justice Katureebe added Justice Adonyo more responsibilities when in 2017 he named him on the Judiciary’s case backlog monitoring committee, which was headed by Justice Richard Buteera, now the Deputy Chief Justice. Specifically, Justice Adonyo covered Masaka, Mbarara, Kabale and Rukungiri. 
After four years of presiding over the JTI, last year, Justice Bamwine transferred Justice Adonyo to the normally quiet High Court’s International Crimes Division (ICD).  Formed in 2011, the court is charged with handling serious international crimes such as genocide, crimes against humanity, war crimes, terrorism, human trafficking and piracy and the first big case Justice Adonyo handled there hogged headlines.
Though it was a little too late and it was more symbolic, in December 2019, Justice Adonyo ordered the arrest of Omar Al- Bashir, former president of Sudan, who had just been ousted from power following an uprising. In issuing the rather representational warrant of arrest, the judge blasted the Ugandan government for violating its national and international obligations when it failed to arrest Gen Bashir when he was in the country in 2016 and 2017 upon the invitation of President Museveni. 
States party to the International Criminal Court (ICC), such as Uganda, in accordance with the Rome Statute that set up the court, are obligated to arrest anybody who has been indicted by the ICC upon stepping on their soil.
The case itself had been filed in 2017 by Uganda Victims Foundation (UVF) but no judge bothered to handle it till Justice Adonyo showed up. 
“The Arrest Warrants issued by the International Criminal Court against Mr Omar Hassan Ahmad Al-Bashir must be implemented by the state of Uganda through the clear processes laid down in Rome Statue as domesticated by the ICC Act 11 of Laws of Uganda, 2010,” Justice Adonyo ruled. “For avoidance of any doubt, this Honourable court hereby issues its own warrant of arrest against Mr Omar Hassan Ahmad Al-Bashir whenever he sets foot within the territory of or under the control of the Republic of Uganda.”
He followed up the judgment by freeing government critic Dr Stella Nyanzi, who had been sentenced to 18 months by the Magistrate’s Court at Buganda Road in Kampala on allegations that she had derided President Museveni and his late mother via a post on Facebook. 
Dr Nyanzi’s appeal was supposed to be heard by High Court’s Criminal Division but one judge after another stepped out of the case, leaving Justice Bamwine no option but to call on Justice Adonyo once again.  In quashing Dr Nyanzi’s conviction and sentence, Justice Adonyo faulted the prosecution for failing to avail proof for the location of the device by which the accused allegedly committed the offence, wondering whether it was in Uganda or outside the country. He didn’t last long at the ICD.
Justice Bamwine, in one of his last acts as Principal Judge, transferred Justice Adonyo back to the Commercial Court, replacing Justice David Wangutusi as its head. 


Lawyer Fred Muwema (right) consults with businessman Hamis Kiggundu recently. PHOTO | COURTESY

The case between businessman Hamis Kiggundu and Diamond Trust Bank (DTB), which has since sparked controversy, had been previously assigned to Justice Duncan Gaswaga, the deputy head of the court. 
Mr Kiryowa Kiwanuka, DTB’s lawyer, wrote querying the circumstances under which Justice Gaswaga had come to handle the case. Not ready for a fight, Justice Gaswaga recused himself from the case and the case found its way to Justice Adonyo’s desk.  
Justice Adonyo was among the judges that Justice Zeija beat for the position of Principal Judge, late last year.  Justice Zeija, for the second time, invoked his powers as the administrative head of the High Court and recalled the file the moment Justice Adonyo penned a jaw-dropping ruling in which he ordered DTB to refund Shs34b and $23.2m (Shs86b), which the bank purportedly deducted from Mr Kiggundu’s accounts without his knowledge. 
Principal Judge Zeija consequently issued an injunction staying the implementation of Justice Adonyo’s order.  Usual judicial procedure would suggest that DTB lawyers don’t look to the Principal Judge for such an injunction but rather would make their case before the same Justice Adonyo or from the Court of Appeal, where they have already filed a notice of appeal challenging Justice Adonyo’s judgement.
Mr Kiggundu’s lawyers, Muwema and Company Advocates, have already asked the Chief Justice Alfonse Chigamoy Owiny-Dollo to intervene, accusing the Principal Judge of “hijacking judicial process”.