Asam Products Uganda Limited and 2 Others v National Bank of Commerce Uganda Limited (Civil Appeal 51 of 2003) [2012] UGCA 54 (16 January 2012)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### **CIVIL APPEAL NO.51 OF 2003**

(Appeal from the decision of the High Court of Uganda (Commercial Court) at $\mathsf{S}$ Kampala by Her Lordship Hon. Justice Arach-Amoko dated the $2^{nd}$ day of April, 2003 in the High Court Civil Appeal No.463 of 1999).

### 1. ASAM PRODUCTS(U) LTD

| | | 2. SAM TUMWEBAZE | | |--|--|------------------|--| | | | | |

3. CHRIS MULENGA....................................

#### **VERSUS**

### NATIONAL BANK OF COMMERCE

(U) LTD.................................... 15

# HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, DCJ **CORAM** HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE A. NSHIMYE, JA

### JUDGMENT OF A. E. N. MPAGI-BAHIGEINE, DCJ

This appeal arises from the judgment and orders of the High Court (Commercial Division) dated 2nd April 2003.

$\mathbf{1}$

The learned judge made the following orders: 25

"... judgment is entered agoinst the Defenclonts severally and jointly for:

- I. Tlte sum oJ'shs62, 186,397/:. - 2. Interest on (l) ot I8%from date ofJiling suit till payment in full. - 3. Costs of the suit.

Judgment is also entered against the plaintiff on the countercluim as follows:

- I. Shs10.m. - 2. Interest thereon at 18% from date of Jiling till payment in full. - 3. Costs of the counter-claim."

The gcnesis of this matter is as follows.

The respondent a Limited Liability Company incorporated in Uganda instituted a suit against the appellants jointly and severally, for recovery of shs62, 186,3971-- at 290/o interest per annum; general damages and costs of thc suit. 15

-lhe respondcnt had cxtended a short term loan totaling shsll7m. in April 1997 to the l't appellant, Asam Products (tJ) Ltd.'l'hc loan was guaranteed by Sam 'l'umwebaze and Chris Mulenga, the ?"d and 3'd appellants herein respectively, as directors ofthc l" appcllant.

'fhe respondent claimed that the lst appellant paid only part of the loan; that shs62, 186,3971- remained due and outstanding as at the time of filing suit, despite repealed demands for thc same.

s Under the terms of the loan, the l" appellant was permitted to overdraw its bank account by a sum of up to shsl00m. over the coursc o1'four months. The interest agreed was 23Yo p.a with a penal 6oh rate if shsl00.m. was exceeded. 'l'he appellants denicd owing any money. Alternatively if any money remained due from them, it was the interest 10 rate which was harsh and unconscionable and which was never agreed upon by the appellants.

Irurther, the 2"d appellant counter-claimed fbr shs10,000,000/: which he alleged the respondent removed from his account No. 01925 at Kabale Branch in April 1999, without his knowledge, consistent of authority.

1.his money, he alleged, was paid to Bank of Baroda in Kampala by way of a Bank draft NO KCCA1873440378 and has never been refunded to him.

'fhe grounds o1-appeal are as follows.

l. The leurned trial jadge erred in law and in fact in her ev a I uatio n oJ' ev id e n c e

- 2. The learned trial judge erred in law and in fact in holding that the amount outstanding at the time of filing the suit was shs. 62, 686, 397/ $=$ - 3. The learned trial judge erred in law and in fact in not holding that a penalty of 6% added to the 23% interest per annum was *unconscionable and unenforceable* - At the hearing of the appeal, Mr. Kakuru Kenneth represented the 10 respondent while Mr. Enock Barata was for the appellants. Both counsel opted for written submissions.

## Appellants' submissions on ground 1( whether the learned judge evaluated the evidence) 15

The appellants do not dispute the fact that the following occurred;

- 1. That there was a loan granted. - 2. That it was a revolving loan for the sum of shs100m. - 3. That there were guarantees executed of the loans. - 4. That the loan contract was accepted by the appellants.

However, there is a disagreement about the following;

- 1. The amount of the money disbursed under the loan agreement. - 2. The repayment of the monies disbursed.

$\mathsf{S}$

In its plaint, thc rcspondent claimed that it had disbursed shs470 million to the l" appellant under the loan agreemenl whereas the appellants stated that they had only received shs397 million under the loan agreement.

The Evidence Act sets out the general rule o1' burden ol prool' of the existence of facts, under Section l0l as resting on the pcrson who desires court to give judgment as to any legal right or liability.

10 15 PWI stated in his evidence that at the opening balance, the bank account o1'the appellant was at shs143,500/:. That shs.llTm was disbursed and shsl, 170,000/- was debited from that account as commitmcnl f'ee. -fhese two lacts were not disputed by the appellants and wcre proved by documentary evidencc of thc bank statements (exhibit Pl2). PWI went on to say that the respondent had given roughly 470m to the appellant under this arrangement but did not provide evidence of this disbursement to the tune of shs.470, 000,000/:. No dates lbr the installments were provided by PWI that would put the amount to shs.470, 000,000/:. The respondent does admit that the appellant made dcposits of roughly shs430, 000,000/: and that no cheques had bounced on the appellants' account. 20

DWI stated in his evidcnce that the appcllant had indeed taken out a loan lrom the respondent and gave the following break down;

| | a. I't installment I l7m | | |---|--------------------------|--| | | b. 2"d installment l00m | | | | c. 3"1 installment l00m | | | 5 | d.4'r'installment 80m | | | | | |

Total 397m

10 These facts were supported by the same bank statements and this breakdown was never challenged by the respondent to indicate that there were other installments that were disbursed that would bring the total amount to shs470,000,000/:.

Section 60 of the []vidence Act requires that corrtents of documents be proved either by primary or by secondary evidence. Section 63 of the Evidence Act states that documents must be proved by primary evidence except in cases stated out in the Act.

'fhe documentary evidence that was adduced by the respondent indicated a disbursement of sums to the tune of 397m. The respondent's witness simply statcd by word of mouth that the bank had disbursed roughly shs.470m to the appellant. Section 58 of the Evidence Act statcs that all facts except contents of documents may be proved by oral evidence.

What the respondents offered in court was oral evidence to prove contents in a document that clearly showed a contrary amount to what was being claimed as the amount of money that had been disbursed to the appellant.

5 In her judgmcnt, the learned trialjudge noted that thcre was a difl'erence in the sums disbursed to the tune ol'shs53,000,000/:. Wc respectfully disagree, the difference would be shs73, 000,000/:. 'fhe trial judge also stated in her judgment that the entries of 30110197 indicated an outstanding balance of shs42, 258,5571: and came to the conclusion that this was the difference between the disbursements (as alleged by the respondent shs470m) and the payments as madc by the appellant 10

shs430m.

'lhe learned trial -iudge did not in herjudgmcnt give hcr reasons as to why she disregarded the documentary evidcnce of thc rcspondent that clearly showed an amount of shs397m and chose to believe the respondent's oral evidence that alleged a disbursement of shs470m yet the evidence of DWI as to the installments given was ncvcr challengcd by other documentary evidence to prove othcrwise. 15

In Pandva v. R (1957) EA 336 at 337-8 regarding tlrc duty ol'thc lirst appellate court, it rvas held as lbllows;

"...even where, as in this case, the appeal turns on a question of fact, the court of appeal has to bear in mind that its duty is to rehear the case, and the court must consider the materials before the judge with such material as it may have decided to admit. The court must then make up its mind, not disregarding the judgment appealed from, but carefully weighing and considering it, and not shrinking from overruling it if, on full consideration the court comes to the conclusion that the judge was wrong..."

The appellant is requesting this court to subject the evidence which was 10 before the lower court to a thorough scrutiny and relate it to the law and facts that were before the lower court in accordance with the duty of the first appellate court and determine for itself whether the decision of the trial judge should be upheld.

$\mathsf{S}$

# **Respondent's submissions on ground1**

The learned trial judge, in her judgment clearly highlighted the difference between the sums disbursed by the bank and the sum deposited. This was done in accordance with the evidence that was provided in court by PW1 and DW1. In doing so the learned judge was indeed evaluating the evidence.

F'urther still the learned judge carefully considered the entries of 30110197 which were indicated in Pl2 and Pl3 and using this evidence she came to a conclusion that there was a difference bctween the shs470,000,000/: as disbursements and shs428, 000,000/: stated by DWI as payments.

She also considercd the evidence by PWI and exhibits Pl3 which indicated that the interest agreed was 23o/o per annum and also relied on the evidence given by DWI where he admitted that the appellants lailed to pay all the money in four months.

15 F'urther, the learned judge considered the evidence oI the 2"d delendant (now the 2"d appellant) concerning the shs10,000,000/: on his Kabale Bank account which he claims was withdrawn by the respondcnt without his knowledge or consent. The learned trialjudge evaluated the cvidence presented to her in detail and concluded that the respondent was accordingly liable to the 2"d appellant fbr their unlawful and unauthorized actions alleged in the counterclaim. 'I'hc learned trialjudge therefore properly evaluated the evidence; the first ground ol'appcal should fail.

# Court findings on ground l: The appellants pointed out four transactions on their account that raise issues regarding their outstanding liability: rcmittances 1o Orient Bank on 8/8/1997,1110810997 and25l08ll997- shs2Om, shsl0m, shs23m and shs823, 200/: respectively, totaling shs53m. These sums, it is alleged were illegally remitted to Orient Bank without the appellants' authorisation and had this not been the case the loan would have been paid off in full.

On 2910911997 the last date that they made a payment, they had an outstanding balance ol' shs53, 027,,4981-- which would support this lactual claim. In addition, the amount owed would havc bcen less, as the principal amount accruing interest would be shs48,826,8941:, rather than shs I 0l, 826,894 I -- 10

- The learned .iudge did not address this issue in her judgment. Thc question of whether this shs53m had been remittcd with the consent and knowledge ol'the l" Appellant would determinc whcther the loan had been fully repaid. Her failure to address this issue of shs53m would be tantamount to lack of evaluation of the evidence as she was duty bound 15 - to do- Pandya VR 1957 EA 336; Ephraim Onqom and Anor v Francis Bcnasa S. C Civil Aprrcal No. l0 of 1987 at 337-8. 20

I find rnerit in ground l. It succecds.

#### Ground 2:

Was shs62, 686,3971= owed at the time of filing suit as thc learned judge held ?

# s For the Appellants.

Whether or not the appellants owed any money to the respondent rests on whether the remittances to the Orient Bank werc authoriscd or lcgal. DW I Sam 'Iumwebaze testified that:

"The Nationul Bunk oJ'Commerce did not ltuve uuthority to debit our accout t und pay our suppliers. Hot Loqf werc thc sttppliers. Hd ktttf'had an account with the Nutional Bunk ol. C0tnmerce..."

15 20 The respondent did not contradict the above assertion that they had no authority to pay Orient Bank. As of 05/08/1997 when the balance on the account was reading shs101,826,894/:, the Appellants made remittances amounting to shs53,000,000/: -Ex P12- This was immediately remitted to Orient Bank. This issue has been submitted on under ground l. Otherwise this sum would have reduced the balance to shs48, 826,8941: as of 25108/1997. The interest too would have applied to this figure till 0110911997 when the appellant made a further remittance of shs823, 200/: which was also paid over to Orient Bank without authorisation.

'Ihe appellants subscqucntly madc further paymcnts on:

10t09fi997 823,2001= s 2210911997 20,000,000/: 26t09n997 10,000,000/= 29t0911997 20,000,000/= 30t09n99 20,000,000/: Total 70,832,2001:

It is at this point that the Appellants ceased to make payments. The said payments are not disputed by the Respondent nor does it assert that any cheque bounced on this account. It only claims having lawfully debited the Appellants' account with shs53m, but he does not show how it comes up with a figure of shs62, 686,3971: being owed by the Appellants at the time of filing suit.

The learned trial judge does not, in her judgmcnt, address the concerns of the appellant that the money paid by them in settlement ol'the loan was sufficient to cover the loan and interest but for the unauthorized debits on the appellants' account in favour of Orient Ilank. l'he appellants proved that they had indeed made payments which the

respondents admit to receiving, however no reason is provided in the judgments as to why their account of events is disbelieved in favour of that of the respondents.

5 It is trite law that befbre evidence is given on a matter belbre court, the burden of proof is on the party who asserts the tact. IIowever, oncc evidence is given rcquiring a rebuttal of such a fact, the burdcn shifts to the party who would lose the case should no lurther evidcnce be adduced. See J. K Patel v. Snear Motors Ltd SCCA No.4 of 91.

ln the present case, once the appellants had given evidence to show that the respondent had acted without authority to debit their account in respect ofthe shs53,000,000/: the burden to prove the cxistence ofsuch authority lay on thc respondents and it is the submission of the appellants thal the burden was f-ully discharged. 10

Had the learned trial judge applied her mind to the explanations provided by the appellants and requested proofolauthorization from the appellants to pay out monies in favour of Orient Bank, she would have come to a different conclusion, to wit, that the respondent had illegally paid out monies from the appellant's account and that the appellanls had made full and complete payment of the monies owed to the respondents and that therelbre, there was no money owed by the appellant to the respondent at the date of filing the suit.

-fhe appellants pray that this couft re-examines the evidcncc that was before the trial court and finds that the appellant did not owe the respondents any money at the time of filing the suit.

### Resoondent's submissions on sround 2

The learnedjudge considered the evidence adduced in court that the loan amounting to shsl17,000,000/- was disbursed on 2914197. According to exhibit 12 issued on 31112198 the opening balancc on 2914197 was shs143,000/:. 'fhe shsllT, 000,000/: was disbursed on the same day. The appellants made several deposits on the account between 3014194 and 30/10 97. Several withdrawals were also made during that period. Interest was 23oh per annum compounded monthly. From l/09/97 the respondent starled charging the interest rate ol- 29o/o per annum and at that same time shs103,643,5541: was outstanding. On 3lll2l98 the outstanding balance was 57.,943,60 l. Payments were made betwecn 3014197 to 30/10197 to shs426,, 063,601/:.

Exhibit Pl2 and Pl3 indicate that the outstanding balance was shs42, 258,5571-.lnterest rate of 29Yo per annum was charged starting ll9l97 as per exhibit Pl at the time the outstanding amount was shs102,820,3341-- and by 3lll2l98 the outstanding amount was shs57, 943,6011-. This suit was filed on 515199 at the outstanding balance of

bhs62, 686,3971: as per exhibit 13. I'he learned trial judge therefore came to a correct conclusion that at the time of filing suit the amount owing was shs62,686,3971:. The second ground of appeal should fail.

# s Courts findines:

An examination of the ledger indicates that the four payments in question were an aberration, out of the ordinary. At no othcr time had the Respondent remitted payments to Orient Bank on dcposits being made by the appellants, other than the payments in question.

To my mind this would go to show that a standing arrangement between the Respondent and the l't Appellant to remit payments to the I'l Appellant's account did not exist. No documentary proof has been tendered in to suggest authority or request to remit these funds. Consequently, it can be determined that the Respondent was not authorised to transfer shs53m and the learned judge's finding that the I't Appellant was liable to the Respondent for shs62, 186.397/: was in 10 15 err0r.

I would thus allow this ground ol- appcal.

### 20 Ground 3:

Was the penalty of 6"h added to the 23'A interest p.a. unconscionable and un enforceable?

## **For the Appellants:**

The interest at the rate of 29% compounded monthly is excessive and harsh. The respondent submitted that the question of interest was one of $\mathsf{S}$ agreement. It is, however, the appellant's submission that the letter of offer imposed the penalty of 6% interest to be charged on amounts exceeding the limit [100,000,000]. The agreed rate of interest was 23% p.a. on a monthly basis.

The appellants do not deny having agreed to pay a penal interest on the 1st installment and that penalty was paid. The appellants did not, after the 1st installment obtain monies from the Respondent in excess of the sanctioned shs100, 000,000/ $=$ . There was no justification thereafter for the Respondents to apply the penalty interest rate on the Appellants' account after the monies owed had been repaid. The correct rate to apply was 23% and not 29%. See Photo Production Ltd v. Securicor **Transport Ltd [1980]1 ALL ER 556at 576** where *Lord Diplock* held:

"An agreement must not offend against the equitable rule against penalties, that is to say, that it must not impose on the breaker of a primary obligation, a general secondary obligation to pay to the other party a sum of money that is manifestly intended to be in excess of the amount which would fully

compensate tlre other psrty for the loss sustained hy him in consequence ot'breach of the primory obligotion"

'lhe letter ol'offer Ilx P3 provided that 'a penal interest of 6% will be cltarged on the omount exceeding over the limit', the respondcnt's account ol' facts was a deviation from rvhat thc lcttcr ol'ofl-er and the lending contract providcd fbr.

In their acceptance letter, the offer [Ex P2l they indicated "we would not mind to pay penal interest on suclt omount exceeding over the sanctioned limil oJ' I 00m..."

The respondent applied the interest to wrong principal. Interest was charged against a principalof shsl0l ,826,8941: fiom June 25tt'1997 yet the appellants had deposited a total of shs53, 000,000/: which was debited from their account and paid to Ilot Loaf by thc rcspondent without authority of the appellants. Had this amount bcen applied fbr the repayment of the loan, thc sum would havc been reduced to shs48, 826,8941-. That means that the interest would have been applied to this sum and not shsl0l, 826,8941- in which case the pcnal interest ol6Yo would not have arisen.

### For the Rcspondcnts:

Ihe penalty of 60/o added to the 23Yo was on agreement, the Appellants agreed to it. The learned judge was correct to hold that the interest and penalty was agreed upon by the Appellants and they are cstopped from turning against the terms of the agreement they entered into with the Respondent. The trialjudge was correct in holding that the Appellants at the trial did not adduce evidence to prove that the penalty of 6% addcd to 23Yo interest was harsh and therefore the court was unable to compare the Respondent's interest with other banks.

This ground should fail.

#### 10

-l

### Courts lindings on Grou!!d 3:

When the rate of interest is alleged to be harsh and unconscionable, the burden of prool lies on the party alleging it. 'l'he court has inherent equitable iurisdiction to reopen unconscionable bargains.'l'hc Appellants argue that the 6% additional interest is unconscionablc and unenforceable. 't'hey also statc that it was not agrecd upon, as the letter of offer only providcd for interest upon "amounts exceeding the limit" [-trx p3]. However, in his testimony, DWI staled "]re agreed to have a penulty of 6% if we failed to poy on tirne". Furthermore, documentary evidence supports thc presence olan agrecd upon 60/o intercst rate. 15 20

In addition, the terms and conditions of the loan- [Ex P3] state that'In the event of defuult in tlte repsyment Jbr uny reason whatsoever, a higher rate of interest and collection charges will be repayuble'.'l-hcre should be no doubt both parties agreed upon a 6oh penalty rate fbr exceeding the shs 100m. allocation and for default.

It rvoLrld not bc urrconscionable rvhcn applicd to thc corrcct principal.

5 'fhc learned judge's holding cannot bc faultcd.

Ground 3 would tail.

## Cross Anrrcal:

That the learned judge erred in law and in fact by upholding the counter-10 claim which had not been proved.

The learned judge based her conclusion upon the testimony of DW2., Mpirirwe Samson ledger keeper who testified that his bank manager verbally instructed him to prepare a voucher for shsl0m. from the 2nd Appellant and his wife's personal checking account. No 019250. A copy of this voucher is Ex P 10. There was a different account for Asam Products Ltd. The Respondent denied this, pointing out that DW2 is currently under suspension for fraud. Thus his crcdibility is suspect. However DW2's testimony is supported by documentary evidence. The Respondent argucs that because the bank account was a joint account and the 2nd Appellant's wife was a co-signatory on the account, the wife may have withdrawn the money from his account. However, the 15 20

Respondcnt ol'l'ers no evidcncc ol' this claim. It rcmains mere speculation. In Catlin v Cvnrus Finance Corn lLondonl Ltd ll983l I ALL E R 809,, it was ruled that when account holders arc able to sign cheques separately, the banker owes thcm a duty of carc .iointly and severally.'l'herelbre, a duty of care would be owcd to thc 2 Appellant.

Another limb to this argument was that since the counter-claim did not involve the bank account that was the subject of the suit, it should have been resolved in a separate suit.

However, Oder 8 rule 2 of the Civil Procedure Rules provides that a Defendant may set off as a counter-claim 'an7, vif1r, or clctim 'and that the court may upon application of thc plaintili-, cxcludc that counterclaim if it cannot be convcniently disposcd of.

Oder 8 rule l2 allows the Plaintiff to apply to the court for exclusion of the counter-claim, however, whether the counter-claim should be excluded is for the court to determine. 15

'l'his was nevcr done at thc trial.

20 Although involved this casc dcalt with dillercnt bank rverc thc sarlc. In Erukanan Kuwe v accounts, the . Vasrambhai partics l)am ii Vader SCCA No. 2 of 2002 OderJSC lRlPlstatcd:

"... a counter-claim is a claim presented by the Defendant in opposition to or deduction from the Plaintiff's claim. If established, it will defeat or diminish the Plaintiff's claim."

Most importantly also see Halsbury's Laws of England, 4th edn. Vol 37, Paragraph 248 & 249- where it is stated: $\mathsf{S}$

> "Subject to the powers of control by the court, a defendant who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in any action in respect of any matter, whenever and however arising, may make a counter-claim in respect of that matter instead of bringing a separate action.

> If, therefore, the defendant has a valid cause of action of any description against the plaintiff there is no necessity for him to bring a separate or cross-action, and the rules relating to joinder of cause of action apply in relation to a counter-claim as if the counter-claim were a separate action, and as if the person making the counter-claim was on a separate action, and as if the person making the counter-claim were the plaintiff and the person against whom it is made a defendant.

For all practicable purposes, a counter-claim, is a cross-action, and not merely a defence to the plaintiff's claim, although, of course it must be of such a nature that the court would have jurisdiction to entertain it as a separate action. It thus has an

independent life of its own, un attected by anything which relates solely to the Plaintiff's claim, and, once it has been made, a counter-claim, may be proceeded with notwithstanding that judgment is given in the action or that the action is stayed, dismissed... A counter-claim discontinued or *operates* substantially as a separate independent action, there is hardly any limit to the scope in which it may be made"

This is exhaustive enough to canvass the parameters of a counter-claim and to hold that the learned judge was correct to determine and resolve the counter-claim. $10$

In sum my finding would be as follows:

- 1. The holding of the learned judge would be overturned. The Appellants are not liable for $shs62,186,397/=$ - 2. The penalty interest of $6\%$ is neither harsh nor unconscionable. - 3. The Respondent is liable to the $2nd$ Appellant for the sum of shs10m.

Since my Lord A. Nshimye, JA is agreeable to the above findings, there will be judgment as indicated. This is a majority judgment.

The appeal thus succeeds in part with two thirds of the costs. 20

$\mathsf{S}$

**A. E. N. MPAGI-BAHIGRINE**

**DEPUTY CHIEF JUSTICE**

# 5 THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

Coram Hon Justice A. E. N Mpagi- Bahigeine, D. C. J Hon Justice Amos Twinomujuni, JA Hon Justice A. S. Nshimye, JA

## l-) CIVIL APPEAT NO. 51 OF 2OO3

## BETWEEN

1. ASAM PRODUCTS (U)rrD

2. SAM TUMWEBAZE 3. CHRIS MULENGA

: : : : : : : : : : : : :: : : : : : : : :: : : : : : : : : : : : : : :APPEttANTS

## AND

## NATTONAL BANK OF COMMERCE (U) LTD RESPONDENT

Appeal from the decision of the High Court oI Ugondo (Commerciol Court) at Kompolo by Her Lordship Hon Justice Aroch Amoko doted the 2nd doy of April 2003 in the High Court Civil Appeol N0. 463 ol 1999.

-10

## JUDGMENT OF A. S NSHIMYE, JA

I have had the advantage of reading in draft the lead judgment of Hon. A. E. N Mpagi Bahigeine, DCJ.

I agree with the reasoning and conclusions reached therein.

.+o A YE

JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 51 OF 2003

- 1. ASAM PRODUCTS (U) LTD - 2. SAM TWEBAZE - CHRIS MULENGA....................................

#### **VERSUS**

#### NATIONAL BANK OF COMMERCE (U) LTD ...................................

#### **TAXATION HEARING NOTICE**

#### $TO:$ NATIONAL BANK OF COMMERCE (U) LTD.

TAKE NOTICE that the Taxation of the above case has been taxed for the $315$ day of ... Janman.................................. or as soon as the case can be taxed in this court.

If no appearance is made by yourself or by your pleader on your behalf or by someone by law authorized to act for you, the case will be taxed and decided in your absence.

Given under my hand and seal of this court this ... $16^{th}$ day of $\sqrt{10^{2}$ 2012.

RC Cerved and undertake to Serve the Respondent 1/1/2012 **REGISTRAR Extracted & Filed by:** M/s Birungyi, Barata & Associates, Legal &Tax Consultants, 3 Portal Avenue, 3rd Floor, crusader House, P. O. Box 21086, Kampala-Uganda.