Delayed judgments in courts and their effect on investor confidence

Recently, the High Court of Uganda made a striking remark about the duty of the courts in fostering investor confidence in Uganda. This was in one of the many cases related to the long-standing dispute between Patrick Bitature of the Simba group and South African investors, Vantage Capital. As remarkable as the decision was, it seems to have been overshadowed by the various events that were happening in the country at the time. We have been through scandal after scandal lately, we can’t even keep track.

However, there is another angle to the role of the courts that I believe deserves even more careful attention. This is the long-standing backlog problem. While the problem has many angles to it, one particularly avoidable one is worth pointing out. Judges will sometimes take long to deliver rulings in matters that should be routine and elicit swift results. This is even more troubling when the matters are simple applications – interlocutory in nature, that should be decided based on affidavits and do not require long trials with many witnesses.

Two examples will suffice, sadly, both of them from the same long-standing Simba-Vantage dispute. On December 23, 2021, Vantage filed an application for an injunction at the Commercial Court. Such an application has an urgency to it since it seeks to stop actions that are likely to happen if the court does not intervene. The court delivered its decision one year and three months later. The transaction that Vantage had sought to stop had long taken place.

Much earlier, still in 2021, Simba filed an application to set aside a Statutory Demand that Vantage had issued against Patrick Bitature, requiring him to pay the personal debt that arose from the Guarantee he issued to Vantage. At the time, Bitature’s personal debt stood at USD 11 million. The matter remains pending. Although the parties filed and concluded submissions before Justice Sekaana within a month and a half of Bitature filing his application, the judge has never ruled on the application, all these three years later.

This particular case is troubling given that at the time, Justice Sekaana was famous for delivering many rulings every week. He has since handled tens of cases that were filed much later. He is also the one judge who has handled more applications of this nature than any other judge at the High Court. It is surprising, therefore, that the good judge has not found the time in his schedule to handle this matter.

This is the same kind of situation that Vantage has faced at the Court of Appeal where their matters remain pending despite over five letters from the lender’s lawyers reminding the court to fix these matters, while all Simba’s matters somehow seem to elicit expeditious hearings.

An even more troubling case is the one involving a similar dispute between Industrial Development Corporation of South Africa and Aya Investments Limited. Aya Investments borrowed funds from the South African lender for the construction of the famous Pearl of Africa Hotel. They defaulted and rather than pay, resorted to serial litigation. Twelve years later, the dispute seems to be coming to an end.

Justice Stephen Mubiru in one of his cases has referred to this state of affairs as our lived reality in Uganda. In his words, the “process in its current state is pervaded by delays.” But yet, in that same system, judges like him are able to handle interlocutory matters more expeditiously. It is this kind of system in which judges like Justice Sekaana take three years to render a decision in what should be a routine application, and the Court of Appeal takes years to favor a borrower over a lender by prioritizing the borrower’s frivolous applications over the lender’s more meritorious applications. It surely is not because these cases are terribly complex or that the judges are incredibly lazy.As Justice Comfort Kania put it earlier this year in a related case, the efficiency and effectiveness of a country’s judiciary is indispensable in enhancing the attractiveness of a country as an investment destination. The protracted battle over the payment of a loan which by all indications was taken voluntarily extended in 2014 in circumstances that were clearly voluntary, has undoubtedly dented Uganda’s image as an investment destination and impacted negatively on its investment climate ratings. Judges like Justice Sekaana would do well in remembering that justice delayed is justice denied.

Frankline Tumuhairwe, Concerned citizen