By Ivan Mwine
City tycoon Sudhir Ruparelia and Equity Bank have suffered a setback after the High Court dismissed their preliminary objection against an application for discovery in the Simbamanyo property case.
This appears to be another win in a row for Simbamanyo and its proprietor Arc. Peter Kamya, after a previous case where his appeal against the decision of the Registrar, His Worship Elias Kisawuzi, who had awarded excessive taxation costs worth UGX5bn to Meera Investments Ltd, and Ms Luwaluwa Investments was upheld.
Justice Stephen Mubiru, the Head of the Commercial Court on Wednesday overruled a preliminary objection raised by Prof. Fredrick Sempeebwa on behalf of Sempeebwa and Co. Advocates, over an application for document discovery filed by Simbamanyo lawyers, M/s Byenkya Kihika and Co. Advocates.
Court Documents show that Simbamanyo filed an application for discovery of the following documents:
Certified copies of dollar account statement 1036200727349 operated by Katende Sempeebwa and Co. Advocates with Equity bank, for the period 01. 08. 2020 to 30. 10. 2020.
The Applicants Simbamanyo be at liberty to inspect and take certified copies of dollar account statement 1002201586895 operated by Luwa Luwa with Equity bank, for the period 25. 09. 2020 to 10. 10. 2020.
The Managing Director of Equity Bank, Samuel Kirubi be directed to make discovery on oath of certified copies of email exchanges addressed to his email address Samuel.Kirubi@equitybank.co.ug, on the subject entitled Performance Based Guarantee which related to the sale of the Simbamanyo properties as follows;
Email from Sim Katende (email@example.com) sent on Friday, September 25, 2020 at 2:09 pm sent/copied to Sim Katende (firstname.lastname@example.org), email@example.com, firstname.lastname@example.org, and Samuel Kirubi (Samuel.Kirubi@equitybank.co.ug).
Email from Walusimbi Nelson (email@example.com) sent/copied on Friday, September 25, 2020 at 2:57pm to Sim Katende, firstname.lastname@example.org, Samuel Kirubi and Gunn.
The Managing Director of Equity Bank Mr. Samuel Kirubi, makes discovery on oath of executed copy of the Performance Based Guarantee referred to in (3) above between Equity Bank, Meera Investments and Katende Sempeebwa and Co. Advocates.
In support of their P.O, Katende Sempeebwa and Co Advocates argued inter alia that the said documents were hearsay.
But in over-ruling their preliminary objection, Justice Mubiru stated that the said documents could not be hearsay because the applicants had furnished the court with photocopies and they, the respondents, in their response did not deny their existence.
Accordingly, in the interest of justice the court declined to strike out the application and allowed it to proceed. Both parties were directed to file their submissions within ten (10) days.
The Simbamanyo lawyers argued that the contents of the documents are relevant to proceedings in the main suit in the following ways;
That in the main suit, Simbamanyo averred that as proof that the impugned sale was premeditated, Equity Bank and Meera Investments through their respective lawyers, M/s Katende Ssempebwa & Co. Advocates and Walusimbi & Co. Advocates, executed a Performance Based Guarantee which concluded the sale in advance to the Simbamanyo properties. Copies of the email correspondences and the Performance Based Guarantee were attached.
The contents of the emails and the guarantee documents all allude to purchase of real estate property which was to take place between 01. 10. 2020 and 15. 10. 2020 from Equity Bank. Equity Bank was to guarantee that Meera Investments purchases that property, failure of which the bank was to refund the USD 1,000,000 deposited.
The email correspondences and Performance Based Guarantee document and the earlier account statement of the Katende Sempeebwa account number 1036200727349 all collaborate that USD 1,000,000 was made available to secure the purchase of the Applicant’s properties.
It was without doubt that M/s Meera Investments and M/s Luwa Luwa were ultimately successful bidders of the Simbamanyo properties on a public auction that never was.
These documents are relevant at trial to prove fraud and dishonest conduct before the impugned public auction which contravened section 29 of the Mortgage Act.