Nakate v DFCU Bank Limited (Civil Appeal 1 of 2009) [2009] UGSC 32 (20 October 2009)

# Nakate v DFCU Bank Limited (Civil Appeal 1 of 2009) [2009] UGSC 32 (20 October 2009) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Nakate+v+DFCU+Bank+Limited+%28Civil+Appeal+1+of+2009%29+%5B2009%5D+UGSC+32+%2820+October+2009%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2009%2F32%2Feng%402009-10-20) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Nakate+v+DFCU+Bank+Limited+%28Civil+Appeal+1+of+2009%29+%5B2009%5D+UGSC+32+%2820+October+2009%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2009%2F32%2Feng%402009-10-20) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2009/32/eng@2009-10-20) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2009/32/eng@2009-10-20) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Nakate%20v%20DFCU%20Bank%20Limited%20\(Civil%20Appeal%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2009/32/eng@2009-10-20) [ Download DOC (66.0 KB) ](/en/akn/ug/judgment/ugsc/2009/32/eng@2009-10-20/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2009/32/eng@2009-10-20/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download DOC (66.0 KB) ](/en/akn/ug/judgment/ugsc/2009/32/eng@2009-10-20/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2009/32/eng@2009-10-20/source.pdf) * * * * * Report a problem __ ##### Nakate v DFCU Bank Limited (Civil Appeal 1 of 2009) [2009] UGSC 32 (20 October 2009) Copy citation * __Document detail * __Related documents * __Citations \- / 1 Citation Nakate v DFCU Bank Limited (Civil Appeal 1 of 2009) [2009] UGSC 32 (20 October 2009) Copy Media Neutral Citation [2009] UGSC 32 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Civil Appeal 1 of 2009 Judges [Odoki, CJ](/en/judgments/all/?judges=Odoki%2C%20CJ), [Tsekooko, JSC](/en/judgments/all/?judges=Tsekooko%2C%20JSC), [Kanyeihamba, JSC](/en/judgments/all/?judges=Kanyeihamba%2C%20JSC), [Katureebe, JSC](/en/judgments/all/?judges=Katureebe%2C%20JSC), [Okello, JSC](/en/judgments/all/?judges=Okello%2C%20JSC) Judgment date 20 October 2009 Language English Summary Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content _**THE REPUBLIC OF UGANDA**_ _**IN THE SUPREME COURT OF UGANDA**_ _**AT MENGO**_ _**(CORAM: ODOKI, CJ, TSEKOOKO, KANYEIHAMBA,**_ _**KATUREEBE AND OKELLO, JJSC.)**_ _**CIVIL APPEAL NO. 01 OF 2009**_ _**B E T W E E N**_ _**DR. ANN PERSIS NAKATE LUSEJJERE :::::: :::::: APPELLANT**_ _**A N D**_ _**DFCU BANK LTD: :::::: :::::: RESPONDENT**_ _**[Appeal from the decision of the Court of Appeal at Kampala (Kitumba, Byamugisha and Kavuma, JJA) dated 23**_ _**rd**_ _**January 2008, in Civil Appeal No. 21 of 2004].**_ _**JUDGMENT OF OKELLO, JSC:**_ This is an appeal against the decision of the Court of Appeal which reversed a decision of the High Court. The background to the appeal is briefly that in or about September 1997, the appellant and one Justine Winnie Nantume Mukwaya jointly executed a legal mortgage with Trust Bank (U) Ltd. in respect of their lands comprised in LVR 684 Folio 12 Plot No. 58/60 - Mutesa II Road - Nakawa and LVR 1996 Folio 6 Plot No. 846 - Bukoto respectively, to secure repayment of financial facilities totaling shillings one hundred million in favour of M/s. A. V. Enterprises Ltd. The facilities comprised a letter of credit worth Shs. 80,000,000/= and an overdraft amounting to Shs. 20,000,000/=. Later Trust Bank (U) Ltd. went into liquidation and the respondent subsequently bought from Bank of Uganda the loan portfolio of the said Trust Bank (U) Ltd. By other arrangements, M/s. A. V. Enterprises obtained further financial facilities from Gold Trust Bank Ltd. repayment of which was secured by another mortgage involving properties of other people. Gold Trust Bank Ltd. also went into liquidation and the respondent bought its loan portfolio. When M/s. A.V. Enterprises defaulted on the repayment of the loan, the respondent instructed its Auctioneers to advertise the mortgaged properties for sale to recover the loan. The appellant who saw the advertisement sought to redeem her property. After negotiations with the respondent, it was agreed that the appellant could redeem her property on certain conditions. One of the conditions was that she rebuys the property at Shs. 90,000,000/= paying a cash deposit of Shs. 20,000,000/= and the balance was to be paid by monthly installments for an agreed period of time. The appellant paid the initial deposit of Shs. 20,000,000/= and later reneged on the agreement. She refused to make any further repayment and instituted in the High Court Civil suit No. 242 of 2002. In her plaint, the appellant asserted that the amount of money secured by her property had been fully paid by the principal debtor. Ms. Justine Winnie Nantume Mukwaya, however, paid all the agreed portion of the debt to redeem her property and her property was redeemed. The respondent filed its defence in which it denied that the loan that was secured by the appellant’s property was fully paid by the principal debtor. It averred that there is still owing a balance of Shs. 35,000,000/= which it claimed in its counter-claim. All the annextures to the pleadings of each party were admitted by the opposite side at the scheduling conference and were received in evidence marked as exhibits. At the trial, the appellant gave oral evidence as PW1 and called no other witnesses. The respondent also called only one witness, its legal Manager, as DW1. The High Court (Okumu Wengi, J as he then was), heard the case and entered judgment for the appellant but the Court of Appeal reversed that decision on appeal hence this second appeal to this Court on four grounds. Counsel for both parties filed written submissions in which they argued grounds 1 and 2 separately and grounds 3 and 4 together. I propose to consider these grounds in the same order. Ground 1 is framed as follows: “ _**The learned Justices of Appeal erred in law when they relied on the appellant’s alleged departure from pleadings, a ground which the respondent had abandoned.”**_ The appellant’s complaint in this ground is that the learned Justices of Appeal decided ground 2 on the basis of the appellant’s departure from her pleadings when that ground had been abandoned. It was the appellant’s contention that despite the averments and concessions that had been made in the plaint and annextures thereto, one of the issues framed for trial was _**“whether the title deed is held as security for an advance to M/s. A. V. Enterprises Ltd. and if so how much.”**_ It was contended for the appellant that that issue had put in issue the advance of money to the principal debtor though that fact was not mentioned in the appellant’s pleadings. Learned counsel relied on _**[Hadija Nakibuuka - vs - The Attorney General of Uganda, SCCA No. 11 of 1993](/akn/ug/judgment/ugsc/1995/6)**_. This is a case where this Court while commenting on framing of issues stated to the effect that a court cannot refuse to decide a point on which an issue has been framed and evidence led by the parties even if that point is not mentioned in the pleadings and the finding on the issue cannot be disturbed merely because of the absence of a plea. Learned counsel for the appellant submitted that the appellant was therefore justified to contend at the trial that there was no evidence to prove that a letter of credit for Shs. 80,000,000/= had been opened nor that the overdraft facility for Shs. 20,000,000/= had been extended to the principal debtor. Mr. Adriko, learned counsel for the respondent, contended that counsel for the appellant does not deny that the appellant’s pleadings and evidence were riddled with inconsistencies and contradictions. It was thus misleading for the appellant to state that the issue _**“whether the title deed to the appellant’s property was held as security for advance to M/s. A. V. Enterprises Ltd. and if so how much”**_ was determined solely on the basis of the appellant’s departure from her pleadings. Learned counsel submitted that the record shows that in resolving the issue, Byamugisha, JA, who wrote the lead judgment with which the other two Justices of Appeal agreed, had regard to the pleadings and other documentary evidence particularly Exh. P2. It was after carefully analysing the evidence that she concluded that the appellant did not prove her case to the required standard. There was sufficient material on which the Court ought to have made a finding that the appellant’s title was being held by the respondent because the loan advanced to the principal debtor was not fully paid. Ground 2 which the learned Justices of Appeal were accused for deciding solely on the basis of the appellant’s departure from her pleadings was framed as follows: “ _**The learned trial judge erred in law and in fact in holding that the plaintiff had proved her case on the balance of probabilities whereas not.”**_ To determine that ground, two questions namely, what was the appellant’s case and whether there was sufficient evidence on record to prove that case, had to be answered first. To answer these two questions entails identification of the appellant’s case and re-evaluation of the evidence on record. The record shows that the appellant had, without amending her pleadings, changed her case before the commencement of the hearing from that _“the loan was fully paid_ __ _to that the financial facilities whose repayment was secured by the appellant’s property were not advanced to the principal debtor, if so how much.”_ This change led to the framing of the issue _“whether the title deed is held as security for an advance to M/s. A. V. Enterprises and if so how much.”_ Subsequently, the appellant led evidence at the hearing to prove that case. To begin with, I should observe in passing that the appellant’s change of her case without amending her pleadings is contrary to the established rule of practice. In _**[Interfreight Forwarders (U) Ltd. - vs - East African Development Bank, Supreme Court Civil Appeal No. 33 of 1992](/akn/ug/judgment/ugsc/1993/52),**_ Wambuzi, CJ as he then was, quoted with approval the following statement from _**Bullen & Leake and Jacob’s Precedents of Pleadings **_12th Edition __ page 3: “ _**Thus issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings.”**_ The appellant’s change of her case without amending her pleadings is against the principle laid down in the above case which on the doctrine of _stare decisis,_ is binding on courts in this Country. Surprisingly, the learned trial judge did not question the change, when he should have. Be that as it may Byamugisha, JA, who wrote the lead judgment with which the other two Justices of Appeal agreed, despite commenting on the inconsistency between the appellant’s pleadings and evidence, nevertheless considered and analysed the evidence on record before she concluded that the appellant did not prove her case to the required standard. That there was sufficient material on which court ought to have made a finding that the appellant’s title was being held by the respondent because the loan advanced to the principal debtor was not fully paid. In my opinion, the criticism made against the learned Justices of Appeal is without basis. The learned Justices of Appeal did not rely on the appellant’s departure from her pleadings to decide that ground 2. They decided that ground on the basis of the evidence on record which they re-evaluated and analysed as it is their duty to do so as Justices of the first appellate court. Ground 1 has no merit and ought to fail.__ I now turn to ground 2 which is coached as follows: “ _**The learned Justices of Appeal erred in law and in fact when they held that the evidence (Bankers’ Books) Act is applicable to Exh. D1, statement of account adduced by the respondent.”**_ The appellant’s complaint in this ground is that the learned Justices of Appeal erred when they held that the Evidence (Bankers’ Books) Act was applicable to Exh. D1, a statement from DFCU Bank in respect of M/s. A. V. Enterprises Ltd.’s account as shown in the ledger from Trust Bank. It was admitted in evidence by consent. Learned counsel contended that the Evidence (Bankers’ Books) Act was not applicable to Exh. D1 because firstly, there was no application to admit that document under section 2 of the Act and secondly, there was __ no proof of compliance with the conditions set out in sections 3 and 4 of the Act. He submitted that Exh. D1 was admitted in evidence as an ordinary exhibit whose admission in evidence does not constitute admission of its contents. He relied on _**Masere - vs - The Republic (1989) KLR 483**_ where the High Court of Kenya held that the certified copies of Bank statement produced to prove the case against the appellant could not be relied on for failure to comply with the conditions similar to those set out in sections 3 and 4 of our Evidence (Bankers’ Books) Act. Mr. Adriko, learned counsel for the respondent, however, contended that the purpose of the amendment of the Civil Procedure Rules that introduced scheduling conference under OXII, was to expedite trial of suits without unnecessary objections to non contentious documents. By failure to object to the admissibility of the document at the scheduling conference or within 15 days of the completion of the scheduling conference, the appellant had waived her right to invoke the provisions of Evidence (Bankers’ Books) Act. Under O 14 r 3(1) of the Civil Procedure Rules every document or a copy of it, where a copy has been substituted for the original under rule 3 of the same order, shall form part of the record. Exh. D1 is already part of the record and that counsel for the appellant had cross-examined DW1 on its contents at length. He cannot raise the objection to the admissibility of the document at this late hour. The issue that emerges from the above arguments of counsel is _“whether the learned Justices of Appeal were right to hold that the provisions of the Evidence (Bankers’ Books) Act were applicable to Exh. D1.”_ To begin with, I accept that the amendment that introduced scheduling conference under OXII into the Civil Procedure Rules was intended to expedite the trials of civil cases and promote quick disposal of such cases in order to reduce backlog of cases. Admission of documentary evidence by consent at a scheduling conference is one of the ways of expediting trials of civil cases. It cuts out the preliminary requirements that had to be met before admission of such documents. In the instant case, the record shows that Exh. D1, a statement of account of A. V. Enterprises Ltd., the principal debtor, with the respondent bank in respect of the principal debtor’s mortgage with Trust Bank (U) Ltd., was admitted by consent at the scheduling conference. Though it was not stated, and the learned trial judge did not care to find under which law (Evidence Act or Evidence (Bankers’ Books) Act the document was admitted, when he should have, it became apparent from the written submissions of counsel for the respondent, that Exh. D1 was admitted under the Evidence (Bankers’ Books) Act. Reference was made to section 2 thereof indicating that it was admitted under that section. Had the learned trial judge cared to find out at the scheduling conference under which law the document was being admitted, this apparent uncertainty would have been avoided. In his written submissions that were filed before that of counsel for the respondent, the learned counsel for the appellant treated Exh. D1 as having been admitted under the Evidence Act, possibly under section 64(g) thereof. On receipt of a copy of the submissions of counsel for the respondent indicating as it did, that Exh. D1 was admitted under the Evidence (Bankers’ Books) Act by consent, learned counsel for the appellant had an opportunity to file a rejoinder countering that assertion if he had not intended to consent to admitting Exh. D1 under the Evidence (Bankers’ Books) Act, but he did not. He cannot do so at this eleventh hour. The learned trial Judge also did not refer, in his judgment, to counsel for the respondent’s reference to section 2 of the Evidence (Bankers’ Books) Act. As a result, the learned judge missed two important points, namely, that Exh. D1 was admitted under the Evidence (Bankers’ Books) Act by consent and the effect of that admission. The learned Justices of Appeal who found from the record no objection to the assertion that Exh. D1 was admitted under the Evidence (Banker’s Book) Act had no reason to find otherwise but that the provisions of that Act apply to Exh. D1. The learned Justices of Appeal cannot be blamed for that finding. As regards _**Masere - vs - Republic**_(supra), on which counsel for the appellant heavily relied, I accept that that case is distinguishable from the instant case on their facts. In that case, the prosecution had sought to adduce in evidence copies of bank statement under section 176 of the Kenyan Evidence Act to prove the case against the appellant. Objection was raised to the admissibility of the documents on the ground of non compliance with the conditions set out in section 177 of the Kenyan Evidence Act. Sections 176 and 177 of the Kenyan Evidence Act are in _pari materia_ with sections 2, 3 and 4 of our Evidence (Bankers’ Books) Act. The trial Magistrate overruled the objection, admitted the documents in evidence and convicted the appellant. On appeal, the Kenyan High Court held that the admission of the document was illegal as it did not comply with the mandatory statutory conditions precedent, set by section 177. In the instant case, admission of Exh. D1 was by consent. There was no objection to its admissibility. Therefore, the principle laid down in _**Masere’s**_ case (supra) is not applicable to the facts of the instant case. I thus find no merit in this ground 2 which ought to fail. Finally, I turn to grounds 3 and 4 which are framed as follows: “ _**3\. The learned Justices of Appeal erred in law and fact when they held that the appellant had not proved her claim.**_ 4. _**The learned Justices of Appeal erred in law and fact when they held that the respondent had proved its counter claim.”**_ The appellant’s case is that there is no evidence to prove that the respondent had advanced the monies under the mortgage to the principal debtor in accordance with the mortgage. Further that the respondent, as the counter claimant, did not adduce evidence to prove that Shs. 35,000,000/= is still owing from the principal debtor. Learned counsel adopted his arguments before the two courts below (pp 135 – 139 of the record). Essentially, the arguments are that the burden of proving that the monies under the mortgage were advanced to the principal debtor was on the respondent because the appellant’s case is in the negative. He cannot prove a negative. It was the appellant’s case that Exh. D1 cannot prove that the monies were advanced to the principal debtor because it is latently untruthful. It was the appellant’s further case that Exh. D1 is a statement not from Trust Bank (U) Ltd but from DFCU, and that the debit therein have not been shown to be from advances to the principal debtor. Learned counsel contended that though Exh. D1 was admitted by consent, its admission cannot amount to admission of its contents. The figures in Exh. D1 are based on guess work which cannot even prove the counter claim. Mr. Adriko’s response is that there is overwhelming direct and circumstantial evidence of disbursement of the monies under the mortgage to the principal debtor as recited in the mortgage deed (Exh. P1). He invited court to consider the following facts: 1. _**The mortgage deed (Exh. P1) which raises a strong presumption of payment of the monies.**_ 2. _**Part repayment of the facilities by the principal debtor who does not deny the debt.**_ 3. _**\- Appellant’s acquiesced to the respondent keeping her title for three years without complaint about non - disbursement of the facilities as recited in the mortgage.**_ 4. _**Appellant’s failure to adduce evidence to prove non disbursement.**_ 5. _**Appellant’s co-surety paid off her portion of the debt.**_ 6. _**Appellant paid part of the outstanding loan in the sum of Shs. 20,000,000/=.**_ On the counter-claim, counsel submitted that there is Exh. D1 which shows the appellant’s indebtedness. DW1 was cross-examined at length on the contents of Exh. D1 but that her evidence remained uncontroversial. The issue that emerges from the above arguments is _“whether there is on record enough evidence to prove the appellant’s case.:_ To answer this issue, one needs to evaluate the evidence on record to determine whether there is evidence to support the findings of the learned Justices of Appeal and to apply the relevant law. The learned trial judge found that the appellant had proved her case on the balance of probabilities but that the respondent had not proved its counter-claim. He came to that conclusion after finding that the mortgage deed, Exh. P1, was not conclusive evidence of disbursement and that there was no other pieces of evidence to support the mortgage deed. The learned Justices of Appeal, however, after re-evaluating the evidence on record, concluded that the appellant did not prove her case to the required standard. That there was sufficient material on record from which court ought to have found that the monies under the mortgage had been advanced to the principal debtor and that the debt has not been fully repaid. My perusal of the record revealed Exh. P1, the mortgage deed, which puts the financial facilities secured by the appellant’s property and the property of the appellant’s co-surety at a total of shillings one hundred million comprising of Shs. 80,000,000/= for credit facility and Shs. 20,000,000/= for overdraft facility. The recital on page 3 of the mortgage deed, shows an acknowledgement by the principal debtor and sureties receipt of the monies under the mortgage. Though not conclusive evidence of disbursement, the recital in the mortgage deed raises a strong presumption that the monies were advanced to the recipient. That presumption requires cogent evidence to the contrary to rebut it. There is not such cogent evidence to the contrary. Yet, there are other pieces of circumstantial evidence which lend credence to the finding of the learned Justices of Appeal that the monies under the mortgage were advanced to and received by the principal debtor. One such a piece of evidence is Exh. P2, a letter dated 19th of April 2002, from counsel for the appellant to the respondent where in paragraph 2 thereof the learned counsel stated that the principal debtor had made substantial repayment of the loan before Trust Bank (U) Ltd. went into liquidation. That acknowledgement of repayment of the loan, coming as it did, from none other than counsel for the appellant lends a strong support to recital in Exh. P1, and the finding of the learned Justices of Appeal that the monies were advanced to the recipient. Indeed no such a substantial repayment could have been made if the monies had not been advanced as agreed. Secondly, the respondent has kept the appellant’s title for three long years without any complaint from the appellant for non disbursement of the monies to the principal debtor in accordance with the mortgage. This could only mean that disbursement had been made as agreed. Thirdly, Exh. D1 which by reason of section 2 of the Evidence (Bankers’ Books) Act is itself prima facie evidence of the entries in the bankers’ books and of the matters recorded therein, shows that by 27-11-2000, when the loan portfolio of Trust Bank (U) Ltd. was transferred to the respondent after the purchase thereof from Bank of Uganda, there was a debt of Shs. 85,181,044/= by A. V. Enterprises Ltd., the principal debtor. On the counter – claim, I should state that the effect of admitting Exh. D1 under section 2 of the Evidence (Bankers’ Books) Act, is that it is prima facie evidence of the matters recorded in it. As stated above, Exh. D1 shows that the debt transferred to the respondent on 27-11-2000, after the purchase of the loan portfolio of Trust Bank (U) Ltd. from Bank of Uganda, was Shs. 85,181,041/=. Following repayments that were made since then there is an outstanding balance of Shs. 32,137,000/= without recovery costs. With recovery costs inclusive, the outstanding costs stands at Shs. 35,000,000/= which is the subject of the counter - claim. On the evidence, I cannot fault the learned Justices of Appeal on their finding that the appellant has not proved her case to the required standard but that the respondent has proved its counter-claim on the balance of probabilities. I find no merit in these grounds which must also fail. In the result, I would dismiss the appeal with costs here and in the two courts below. _**Dated at Mengo this 20**_ _**th**_ _**day of: October 2009.**_ _**G. M. OKELLO**_ _**JUSTICE OF THE SUPREME COURT**_ **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA** **AT MENGO** **(CORAM: ODOKI, CJ, TSEKOOKO, KANYEIHAMBA,** **KATUREEBE AND OKELLO, JJSC.)** **CIVIL APPEAL NO. 01 OF 2009** **B E T W E E N** **DR. ANN PERSIS NAKATE LUSEJJERE ::::::::::::::::::::::: APPELLANT** **A N D** **DFCU BANK LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** _**{**__**Appeal from the decision of the Court of Appeal at Kampala (Kitumba, Byamugisha and Kavuma, JJA) dated 23**_ _**rd**_ _**January 2008, in Civil Appeal No. 21 of 2004}.**_ **JUDGMENT OF ODOKI, JSC** I have had the advantage of reading in draft the judgment of learned brother, Okello JSC, and I agree with him that the appeal should be dismissed. I concur in the order he has proposed as to costs. As the other members of the Court also agree, this appeal is dismissed with costs here and in the Court of Appeal. Dated at Mengo this **20****th** day of **October, 2009** B J Odoki **CHIEF JUSTICE** **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA** **AT MENGO** **(CORAM: ODOKI, CJ., TSEKOOKO, KANYEIHAMBA,** **KATUREEBE AND OKELLO, JJ.SC.)** **CIVIL APPEAL NO. 01 OF 2009** **B E T W E E N** **DR. ANN PERSIS NAKATE LUSEJJERE ::::::::::::::::::::::: APPELLANT** **A N D** **DFCU BANK LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** _**(**__**Appeal from the decision of the Court of Appeal at Kampala (Kitumba, Byamugisha and Kavuma, JJ.A) dated 23**_ _**rd**_ _**day of January 2008, in Civil Appeal No. 21 of 2004)**_ _**JUDGMENT OF J.W.N TSEKOOKO, J.S.C**_ I have read in draft the judgment of my learned brother, the Hon. Mr. Justice G. M. Okello, JSC, which he has just delivered. I agree with him that this appeal has no merit and should be dismissed. I note that in its counterclaim the respondent did not state why it claimed interest at the high rate of 24%. Neither is explanation offered any where in the evidence nor submissions. But because no ground of appeal nor arguments were made against the award of high interest by the Court of Appeal, I will leave the matter as it is. The appellant is to pay the respondents costs here and in the Court of Appeal. Delivered at Mengo this **20****th** day of **October, 2009** **J.W.N TSEKOOKO** **JUSTICE OF THE SUPREME COURT** **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA** **AT MENGO** **(CORAM: ODOKI, CJ., TSEKOOKO, KANYEIHAMBA,** **KATUREEBE AND OKELLO, J.J.SC.)** **CIVIL APPEAL NO. 01 OF 2009** **B E T W E E N** **DR. ANN PERSIS NAKATE LUSEJJERE ::::::::::::::::::::::: APPELLANT** **A N D** **DFCU BANK LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** _**(**__**Appeal arising from the Judgment and orders of the Court of Appeal at Kampala [Kitumba, Byamugisha and Kavuma, J.J.A] dated 23**_ _**rd**_ _**day of January 2008, in Civil Appeal No. 21 of 2004)**_ **JUDGMENT OF KANYEIHAMBA J.S.C** I have had the benefit of reading the judgment of my learned brother Okello, J.S.C and I agree with him that this appeal ought to be dismissed with costs in this court and the Court of Appeal to the respondent. Dated at Mengo this **20****th** day of **October, 2009** **G.W. KANYEIHAMBA** **JUSTICE OF THE SUPREME COURT** **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA** _**AT MENGO**_ **(CORAM: ODOKI, CJ, TSEKOOKO, KANYEIHAMBA,** **KATUREEBE AND OKELLO, JJ.SC.)** **CIVIL APPEAL NO. 01 OF 2009** **B E T W E E N** **DR. ANN PERSIS NAKATE LUSEJJERE ::::::::::::::::::::::: APPELLANT** **A N D** **DFCU BANK LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** _**[Appeal from the decision of the Court of Appeal at Kampala [Kitumba, Byamugisha and Kavuma, J.J.A] dated 23**_ _**rd**_ _**January 2008, in Civil Appeal No. 21 of 2004]**_ _**JUDMENT OF BART M. KATUREEBE, JSC.**_ I have had the benefit of reading, in draft, the judgment of my brother Okello, JSC, and I agree with him that this appeal is without merit and should be dismissed with costs in this court and in the Courts below. Dated at Mengo this **20****th** day of **October, 2009**. **Bart M. Katureebe** **Justice of the Supreme Court** 20 #### __Related documents #### More documents like this one ▲ To the top >