Barclays Bank Limited v Balyejjusa and others (Civil Suit No. 266 of 2009; Civil Suit No. 272 of 2008) [2014] UGCommC 233 (24 February 2014)


## BEFORE: HON. MR. JUSTICE W. M. MUSENE

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## **JUDGEMENT**

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ETATS Limited's action against the Barclays Bank Ltd is for an order that the Defendant Bank makes an account of the disposal of the securities in issue under the supervision of this Honourable Court, An order that the Defendant Bank pays to the ETATS Limited UGX. 585,000,000 beingthe difference between the sale price and actual value of the property, $-20$ General damages, Costs of the suit, interest on (b) above at 24% p.a. from 2007 till payment in full, and any other remedy that this Honourable court deems fit.

The facts disclosed in the plaint are that in May and November 2005, ETATS Limited acquire Ta loan and an overdraft facility from the $-25$

defendant Bank. And prior to the loan application, the Defendant Bank engaged the services of Bageine & Co. a firm of valuers to establish the value of the properties namely LRV 1674, Folio 11, plots 30-34, Eden Road Jinja. It was valued at UGX 865,000,000/ $=$ as the current market value in 2004 and UGX. 605,000,000 as the forced sale value in 2004. A copy of the said valuation Reports are attached hereto and marked "A".

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ETATS Limited delayed on the payments that were required to fully service the loan. And the Defendant then suggested that the ETATS Limited sells some of its mortgaged property to clear the outstanding debt, which suggestion was accepted, and it went ahead to advertise its $-10$ property and began to receive offers from intending buyers.

However, the Defendant Bank stopped the ETATS Limited almost immediately from selling the properties for unclear reasons and instructed its lawyers to collect the sums outstanding.

The Defendant's lawyers then wrote a letter to the ETATS Limited $-15$ threatening to place the company under receivership, to which the plaintiff replied through its lawyers pointing out that placing the company under receivership was extreme considering that selling just one of the mortgaged properties even at forced value, could settle the $20$ entire balance due to the Defendant Bank.

Upon default by the Plaintiff to pay the sums due and owing to the Defendant, the Defendant exercised its rights of sale over the mortgaged property, and sold it for UGX 265,000,000 in abid to recover the monies outstanding but the amount was not sufficient to satisfy $-25$ the arrears.

The Plaintiff (ETATS Limited), contends that the sale of the security herein granted was in bad faith in so far as it was sold at a ridiculously low price of UGX 220,000,000 given its current market value of UGX 865,000,000 in 2004 and $\frac{1}{2}$ x 605,000,000 as the forced value in 2004.

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low price of UGX 220,000,000 given its current market value of UGX 865,000,000 in 2004 and UGX 605,000,000 as the forced value in 2004.

ETATS Limited further contends that the sale was conducted illegally and /or without any transparency, and after the sale, the Defendant refused to declare the sale price and the balance that remained due.

The Defendant then filed a suit for recovery of arrears against personal quarantors of the loan. The Plaintiffs Company opposed this action and subsequently instituted a suit claiming that the suit was unlawful disposed. Both suits were consolidated.

At scheduling the parties agreed upon the following issues.

- 1. Whether the Bank was negligent, fraudulent and reckless in the sale of plot 30-34 Eden Road Jinja. - 2. Whether the Directors of Etats Limited are liable to pay the outstanding balance on the loan. - 3. Whether the parties are entitled to the reliefs sought.

The Defendant in its WSD admitted having sold the property but denied any negligent, fraudulent and recklessness in the sale.

On all issues, both M/S. Tumusiime, Kabega & Co. Advocates for the Plaintiff and M/S Sebalu & Lule Advocates for the Defendant filed $\mathfrak{O}^{\bullet}$ detailed written submissions.

I have had the opportunity of reading through the written submissions on both sides and the cases quoted and for purposes of this judgment I shall summarize or deal with the pertinent points raised by either side.

Plaintiff called three witnesses and the Defendant called two witnesses in addition to the documents that were admitted at scheduling for $\sim 25$ each side without objection by the other side. I address the principle



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upon which these documents are admitted and their evidential value later on this Judgment.

PW1 was James Balyejjusa and PW2 was Martin Kakambo, Directors of the Plaintiff. Both testified that the Plaintiff obtained a loan of $\ensuremath{\textsc{UGX}}$ 360,000,000, an overdraft of UGX 120,000,000 and a certificate discounting facility of UGX 179,000,000 from Nile Bank limited prior to the lending of which the Bank instructed a valuer M/S BAgeine $\&$ Co. to value the properties that Etats limited (plaintiff) had proposed to secure the above facilities and were valued as follows: - Plot 3 Masese Rise, UGX 85, 000,000, Plot 5 Masese Rise 95,000,000, and Plots30-34 Eden Road Jinja 865,000,000. And that the same property had earlier been valued as shown in the copies of the said valuation reports which were tendered in and marked P3 (a), P3 (b), P3(c), P3 (d), and P3 (e) respectively. They further testified that three Directors of Etats limited signed personal guarantees in favour of the Bank to secure the Plaintiff debts. But in 2006, the Plaintiff suffered financial constraints and as a result, the Plaintiff was unable to meet its obligation to the Defendant. And the Defendant proposed that the Plaintiff advertises and sells its mortgaged properties in order to pay the outstanding sums. The mortgaged land was advertised for sale but on the 28th day of December 2006, a few – 20 days after the advert was placed, the Defendant stopped the Plaintiff proceedings with the selling of the property to pay the loan.

PW1and PW2 further testified that in February 2008, the Plaintiff requested for and received its Bank statement from the Bank and noticed deposits which had not been made by the Company and that in March 2008, PW1 and PW2 learnt through rumours that Plot 30-34 Eden Road Jinja had been sold for UGX 220,000,000 Million Shillings only.

In cross examination, PW1and PW2, confirmed that the Plaintiff had borrowed from the Nile Bank which is now Barclays Bank, had signed



$-10$

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personal guarantees and that the Company had defaulted on its debt obligations.

PW3 Mr. Mugerwa Musisi Lawrence, a Quantity Surveyor working with Bageine & Co. He has been a valuer since 1997. He confirmed that he valued the land comprised in Plot 30-34 Eden Road Jinja in December $-5$ 2004, on the instructions of the Bank and authored the report. He personally assed its value in 2006 at UGX 865,000,000 and UGX 605,000,000 forced sale value. He testified that he considered the depreciated replacement cost method of valuation to be the most suitable of valuing this property being an industrial property. He further testified $-10$ that the general trend in the industry is that property values have been going up in Uganda for the last 20years. He added that even if one considered the average annual inflation rate of 6.5%-7% in Uganda, properties would be expected to increase in values accordingly. He wrote a report on the property, P3 (e). $15$

In cross examination, he explained that in arriving at his valuation, he in the area. He also considered the prices of similar properties explained that the property had along running lease of 79 years at the time and Jinja is still an industrial town.

DW1 Esther Masawi Birungi was Recoveries Manager of the Defendant - 20 Bank. She testified that she knew the Plaintiff in this suit at the same time Defendant in Civil Suit No. 272 of 2008 as the Directors of the Plaintiff.. She further testified that they held several credit facilities with Nile Bank which was taken over by Barclays Bank in 2007. She further testified that, the Directors of the Plaintiff signed personal $-25$ guarantees in favour of the Bank and that before lending the Plaintiff, the Defendant commissioned Bageine & Co. a firm of valuers to ascertain the value of the pledged properties and the valuers placed the value of Plot 30-34 Eden Road-Jinja at UGX. 865,000,000, AND ugx and the further testified that the Plaintiff 605,000,000 as foreer Field

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defaulted and the $\mbox{matter}$ was referred to the Defendants lawyer to recover who in turn wrote a demand note to the Plaintiff. And that in June 2007, Oscar Associates advertised the security for sale. Annexture $04$

DW1's further testimony was that for almost a year, there were no $-5$ offers close to the forced /market value of the property and the Plaintiff had also failed to secure buyers for the property. The Defendant then subjected the property to a second valuation by M/S Knight Frank to determine its value at the time in line with its recovery policy. The valuation returned a market value of UGX 300,000,000 and $-10$ Plot 30-34 Eden Road Jinja was subsequently sold at UGX 265,000,000. She further testified that after the sale, the Bank sent out demand notices to the Directors demanding payment of the outstanding liabilities and that was UGX 504,998,901.

In cross examination, DW1 testified that she was an employee of Nile $-15$ Bank from 2001-2007 and transferred to Barclays Bank after 2007. She further testified that she did not handle the processing of the Plaintiffs loan facility while she was still at Nile Bank but she was conversant with the security given. She further testified that the Defendant allowed that Plaintiff to find buyers and were also allowed to advertise the $-20$ mortgaged property, the permission to sell was not withdrawn and that according to the Knight Frank Report, Plot 30-34 Eden Road Jinja is 2.97 acres of land.

DW2 Stephen M. Semaganda a valuation Surveyor working with Knight Frank, testified that in September 2007, he received verbal instructions $-25$ from one Vicent Kawunde to carry out valuations on Plot 30-34 Eden Road Jinja, Plot 3 and 5 Masese Rise Jinja. He further testified that, he visited the properties and prepared a report which was tendered in as Annexture D1D2. He testified the valued Plot 30-34 Eden Road Jinja $\mathcal{O}^{\mathcal{P}}_{\mathcal{P}}$ at UCX 300,000, POER TIFIER 13 MAY 2014

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In cross examination, he confirmed that he had valued the land as a 2.97 acres plot yet it was in fact a 5.3 acres plot but added that the difference was of no consequence to the value. He explained that he relied on a copy of the Title Deed which did not have Deed Plans. He further agreed that contrary to his report, there are several industrial $-5$ developments both in the neighborhood of the property and he admitted that there was no special circumstance explaining the significant difference between his valuation and previous valuations. He also testified that in his experience, property prices have been increasing in this country. $-10$

! now turn to consideration of evidence and issues in this case and issue No\_1 is whether the Bank was negligent, fraudulent and reckless in the sale of plot 30-34 Eden Road Jinja. Firstly Counsel for the Plaintiff submitted that it is the duty of the Mortgagee when realizing the Mortgaged property by sale to behave in conducting such $-15$ realization as a reasonable man would behave in realization of his own property so that the mortgagor may receive credit for the fair value of the property sold. He further submitted that the mortgagee in exercising the power of sale, is under the duty to act in good faith . Counsel for the plaintiff referred Court to the case of **Cuckmere Brick** $-2\Box$ Co. Ltd vs. Mutual finance Ltd (1971)2 ALLER 633 where it was held that although a mortgagee is not a trustee of the power of sale, the mortgagee was not merely under the duty to act in good faith that is honestly and without reckless disregard for the mortgagor's interest but also to take reasonable care to obtain whatever was the true $-2.5$ market value of the mortgaged property at the moment he chose to sell it.

Counsel for the plaintiff further contended that, not only must the mortgagee take reasonable precautions so as to obtain the true market value from the property. The mortgagee must also account for the - 3

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proceeds of the sale, to the mortgagor who takes the excess over the balance on the mortgage and makes good the difference if the sale falls short. In Megarry & Wade, The law of real property, 7<sup>th</sup> edition on page 1113 the learned author stresses the mortgagees' liability to account strictly. It states "He is liable to account strictly" on $-5$ the footing of willful default" this means that he must account not only for that he receives but also for all that he ought to have received had he managed the property with due diligence. Indeed he must take reasonable care to maximize his return from property. However, this does not mean that he is bound or $-1$ allowed to enter into speculation and adventure but merely that he will be liable for Negligence amounting to willful default".

Counsel for the Plaintiff further submitted that, the sale of the mortgaged property by the Defendant was conducted in a negligent. reckless manner and was tainted with fraud and illegality. DW1 testified $-1.5$ that the Defendant sold the mortgaged property comprised in Plot 30-34 Eden Road Jinja at UGX 265,000,000. It followed the valuation of the property at UGX 300,000,000 by Knight Frank (D1D2). PWI and PW2 testified that before lending, the Defendant had, through its valuers, Bageine & Co. valued the same property at UGX 865,000,000 = four years $-2$ prior and further, Dw2, the valuer who conducted the UGX 300,000,000 Knight Frank valuation admitted to court that;

- When he visited the property, he relied on a copy of the Title $(i)$ Deed for the property without the deed plans yet he himself confirmed to court that a certificate of Title is not complete $-25$ without Deed Plans. - He did not ascertain the size of the land by opening $(ii)$ boundaries.

He consequently erroneously valued the land as a 2.97 acre $(iii)$ piece of land instead of 5.3 acres. 13 MAY 2014 SIGN COMMERCIAL COURT

- He depicted the neighborhood of the property as having $(iv)$ dilapidated properties in his report whereas in fact not. - He depicted Jinja town as having little economic activity $(\vee)$ whereas in fact not. - He erroneously claimed in his report that there were no new $\leq$ $(vi)$ investments beyond Namanve whereas in fact there were several. - The general trend of property value in Uganda is that they $(vii)$ increase and that there were no special circumstances explaining the significant difference between his valuation and $\tau^{\text{G}}$ previous valuations of the same property. - (viii) He placed the forced sale value at 40% of the market price instead of the conventional 60% and had absolutely no. explanation for his departure from the convention. - $(ix)$ . Whereas he was instructed to value plot 3, Masese Rise Jinja, 15 plot 5 Masese Rise Jinja and plot 30-34 Eden Road Jinja, he only valued plot 30-34 Eden Road Jinja.

It is therefore Counsel for the Plaintiff's submission that the valuer's negligent and reckless conducts is glaring and cannot $\infty$ be over emphasized.

PW1 and PW2 testified that the Defendant failed to inform the Plaintiff of a second valuation and its results which was not only unlawful but also an act of gross negligence and during the seven months November 2007 to May 2008, the Defendant continued to charge interest on the Plaintiff. Therefore the Defendant exercised its power of sale $25$ negligently and recklessly.

PW1 and PW2 further testified that, when the Plaintiff suffered financial constraints, they requested the Defendant to allow them to advertise and sell their properties in order to settle their indebtness which was granted but it was with drawn four days after the Defendant stopped 3


 until the Plaintiff learnt through <sup>a</sup> sen sold and the Plaintiff complained the Plaintiff from persuing the sale third party that its property had <sup>b</sup> to Bank of Uganda.

in e ms ant case, the Plaintiff did not deny the loan; his complaint was that his security was soid at <sup>a</sup> cheap price. According to an earner £ valuation the Plaintiff commissioned before he got the loan the property was valued at UCX 865,000,000 in 2006 and at UGX 605,000,000 forced sale value. That the property was sold when the Plaintiff had financial constraints and was not given an opportunity to sell it himself. And that if he had been given an opportunity, he would have sold it at <sup>a</sup> id higher price than the price it was sold at.

It is the duty of the Plaintiff to prove negligence, Fraud and reckless in the sale of Plot 30-34 Eden Road Jinja. The Plaintiff Counsel in his written submissions put six grounds to prove fraud, negligence and reckless. Firstly, strange withdraw of consent to sell was the beginning of <sup>a</sup> scheme to defraud the Plaintiff.

Secondly, silence and secrecy in the sale, the testified that he pleaded with the Defendant to allow him sell its properties, the Defendant did not reply. That the silence and secrecy was further aggravated by the fact that <sup>a</sup> midst complaints of difficulty in finding buyers, The 2a Defendant did not attempt to sell the property by public auction which would have been more transparent and from which the sale would gain the benefit of competitive bidding.

in **Yosina Sajabi vs Musa Umar Amreliwalla & Matia wamala Civil Appeal No.72 of 1955,** court noted that <sup>a</sup> sale by private treaty is not unlawful but extremely un usual and will if conducted in secret, attract suspicion.

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Furthermore the Defendant's failure to call Vicent Kawunde the Auctioneer to give evidence indicated a fraudulent sale. It denied both the Court and plaintiff from discovering the mode and amount realized from the sale of property.

Counsel for the plaintiff further submitted that, the defendant has S never officially disclosed to the Plaintiff whether plot 30-34 Eden Road $\ensuremath{\text{was}}$ sold , how much it was sold for, to what purpose the proceeds of the sale were appropriated and what became of Plots 3 and 5 Masese Rise Jinja. Counsel further cited the case of Epoinet Mubiru Vs Uganda Credit and saving Bank (1978) HCB 109, where it was held that $1\,\mathrm{O}$ "upon concluding the sale, the mortgagee must account for the proceeds to the mortgagor. It is the mortgagor who takes the excess over the balance on the mortgage and makes good the difference if the sale falls short"

And even at the time of hearing, or for the 5 years this suit has been in $15$ court, the bank had all the opportunity to account for the monies collected from the sale of the 2.97 acres of plot 30-34 Eden Road but miserably failed to account. And failure to account for the proceeds of the sale to the Plaintiff not only amounts to an illegality in as far as it contravened the duty of the mortgagee to account but is also $\mathfrak{Q}_{\mathfrak{S}}$ fraudulent.

I have reviewed the submissions of both Counsel and looked at the evidence adduced. It is quite clear that there was a loan agreement between the Plaintiff and the Defendant. And I am satisfied by the testimony of DW2 where in cross examination, confirmed that he had $\mathfrak{D}_{\mathcal{S}}$ valued the land as a 2.97 acres plot yet it was in fact a 5.3 acres plot but added that the difference was of no consequence to the value. He explained that he relied on a copy of the Title Deed which did not have Deed Plans. He further agreed that contrary to his report, there are several industriat reveropments doth in the neighborhood of the $3$

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property and he admitted that there was no special circumstance explaining the significant difference between his valuation and previous valuations. He also testified that in his experience, property prices have been increasing in this country.

The facts in this matter are clear the property was sold at a low price $\mathcal S$ compared to the value of Land in Uganda and the way it was sold, nobody can tell apart from the Defendant. In answer o this issue, I find that the Defendant was negligent, fraudulent and reckless in the sale of plot 30-34 Eden Road Jinja.

Issue No 2: whether the Directors of Etats Limited are liable to pay $\lfloor \text{O} \rfloor$ the outstanding balance on the loan.

In resolution of this issue, Counsel for the plaintiff submitted that, the liability of the directors to pay the balance due and outstanding would arise it Etats limited was liable to the Bank. And that any liability arising out of the personal Guarantees was negated by the fraud, negligence, $\varsigma$ and illegality that characterized the Banks exercise of its power of sale. And as a result the Bank recovered far less than what it ought to have recovered from the mortgaged properties.

Counsel for the plaintiff cited the case of Kisame Samson Vs Ali Kiyiniki and Budallah Baidye MISC. APP. No. 0018 of 2008 where $\mathcal{O}\!\!\!\!\mathcal{O}$ court stated that fraud is an illegal and a court of law cannot sanction that which is illegal.

Further in the case of Makula international Vs Cardinal Emmanuel Nsubuga Civil Appeal No.4 of 1981, it was held that illegality once brought to the attention of court overrides all questions of pleading, $2\mathcal{S}$ including any admissions made thereon. In this regard, the Defendant



$\mbox{cannot hide under the distinct and separate nature of the individual}$ Guarantee contracts to take benefit of its fraud and illegal conduct.

From the foregoing, it was clear that there was fraud in this matter and the Defendant cannot benefit from its own illegality fraud and negligent conduct to the detriment of the Plaintiff. $\mathcal{L}^{\text{max}}$

In this the circumstances, and without accounting to the Plaintiff, the Defendant cannot with certainty enforce the personal guarantees for any balance outstanding.

In the circumstances, this issue is answered in the negative.

**Issue No 3** whether the parties are entitled to the Remedies sought. 10

The Defendant seeks to recover from the Directors of the Plaintiff jointly and severally, a sum of *UCX 504,998,901* and the Directors of the Plaintiff seeks the dismissal of the Defendant's suit with costs. In the plaint the Plaintiff sought an order that the Defendant makes an account, an order that the Defendant pays the balance between the actual value of the property and the sale price, General damages, costs of the suit, interest thereupon and any other remedy.

However, during the course of trial, evidence emerged that revealed serious fraud and illegality on the side of the Defendant Bank thus finding it necessary to seek additional remedies in addition to those $\mathcal{V}_\mathcal{O}$ pleaded in the plaint. Counsel for the plaintiff referred court to the case of Makula International Vs Cardinal Emmanuel Nsubuga Civil Appeal No.4 of 1981 where it was held that fraud and illegality once brought to the attention of the court, overrides all questions of 55 pleading including any admissions made thereon.

Counsel for the plaintiff submitted that both in the Plaintiff's plaint and the evidence of its witnesses, it is clear that the Plaintiff had no information about how the perendant had exercised its power of sale

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as a mortgagee and most of the information emerged during the trial $% \left\vert \mathcal{A}\right\vert$ and it is upon that background that the Plaintiff invokes Section ${\tt 98}$ of Civil Procedure Act to seek the following reliefs from court.

(a) An account of the sale. This Court will rely on the case of Cpainet Mubiru Vs Uganda Credit and savings Bank (1978) $\mathcal{S}% _{0}$ HCB 109, where it was held that the mortgagee must account for the proceeds to the Mortgagor. In this instant case, I do likewise find and hold that in the circumstances, the Defendant Bank is liable to account for the sale.

## (b) Recovery of Plots 3 and 5 Masese Rise Jinja

Counsel for the plaintiff prayed for cancelation of any transfers of $10\,$ Plots 3 and 5 Masese Rise Jinja and Rectification of the register to reflect Etats Limited as the registered properties as nothing was ever said of them by the Bank before and after the trial.

In this matter DW2 testified that he was instructed to value plot 3, Masese Rise Jinja, plot 5 Masese Rise Jinja and plot 30-34 Eden IS Road Jinja, but he only valued plot 30-34 Eden Road Jinja. This indicates that plot 3, Masese Rise Jinja, plot 5 Masese Rise Jinja was never sold and therefore should be given back to the Plaintiff and be registered in the Plaintiffs name. And it is hereby so 20 ordered.

(c) Payment of the balance between the sale price of 2.97 acres of plot 30-34 Eden Road Jinja and its correct current market value as valued by a valuer appointed by court.

Counsel for the plaintiff cited the case of Wasswa Birigwa Vs Green land Bank (U) limited (in liquidation) high court (Commercial $2S$ Division) Civil Suit No. 26 of 2004, where justice F. M. S Egonda Ntende held that "where a sale is been complied by carried out, $\mathcal{W}^{\mathcal{O}}$

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the mortgagor is entitled to recover the difference between the true **market vaiue** of the property and the sale price **reaiized** from Z"

And in view of what <sup>I</sup> have outiined **herein** above <sup>i</sup> do **hereby** order **that** the mortgagor, the plaintiff is entitled to the difference.

In the instant case, <sup>l</sup> do order the same

(d) **Recovery of 2.33 Acres of the land comprised in plot 30-34 Eden Road Jinja.**

Counsel for the plaintiff prayed that an order to parcel off'and revert the above 2.33 acres to the names of Etats Limited be made.

According to the evidence of DWI, the Bank valued 2.97 Acres at plot 30- 34 Eden Road Jinja. The Bank also sold 2.97 Acres at plot 30.34 Acres Road and it is evidenced that it is 2.97 acres of land that was sold.

Counsel for the plaintiff further submitted that DW2 the valuer, /S' confirmed that he valued only 2.97 acres of land instead of 5.3 acres of land. Moreso, the sale agreement also shows that the purchaser, Kaliro commodities limited purchased 2.97 acres of land at plot 30-34 Eden Road Jinja.

In the circumstances of this case, since all the acres of land wereJ20 not sold, and it was the Defendant's duty to sale and recover its money from the plaintiff, <sup>I</sup> order the Defendant to exercise Its duty of sale of the remaining acres so as to recover the balance outstanding.

## (e) **General damages**

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Laws (■ Counsel for the plaintj^fj counsel for the plaintiff prayed for general damages of **1 POO 000,000** (One Billion shillings) In support of this claim. Emitted that according to harlsbury'S ^h\*ll202, damages are the pecuniary . **4** *Q* **20\***


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recompose given by the process of law to a person for the actionable wrong that another has done him. And that in certain cases the court may award more than the normal measure of damages by taking into account the defendant's' motives or conduct.

Counsel for the Defendant on the other hand prayed that the claim for general damages be disallowed as there was no evidence led at the trial to that effect. With due respect to Counsel for the Defendant's submissions, I find and hold that the actions of the Defendant Bank not only embarrassed the Plaintiff Company, but $\delta$ greatly inconvenienced the plaintiff. In such circumstances, the Plaintiff is entitled to General damages. However, the amount of one billion claimed by Counsel for the Plaintiff is on a very high scale.

In my view, a sum of Shs. 75,000,000/= (Seventy five million LS shillings only) would be adequate compensation to the plaintiff for the inconveniences and hardships they were subjected to by the Defendant Bank.

## (f) Punitive damages:

Counsel for the Plaintiff prayed for punitive damages. He 2G submitted that punitive or exemplary damages are awarded to purnish, deter, express outrage of Court at the defendants' high handed, malicious and/or vindictive conduct. And that they are in nature a fine to warn Society to desist from similar conduct.

Without going into the detailed submissions as to how much $2\!\leq\!$ plaintiff's Counsel was claiming under punitive damages, I have Therefore and Bank was negligent and reckless.



$\varsigma$

However, the award of General damages is sufficient against them. So <sup>I</sup> decline to order punitive damages.

**(g) Costs:**

The general principle is that costs should follow the event, in the instant case, <sup>I</sup> order that the Bank pay costs to etats Limited in\$ Civil Suit No. 266 of 2009. However, having dismissed the Bank's claims against the directors of etats Limited, notably James Balyejusa, Margaret Balyejusa and Martin Kakembo, and in view of the consolidation of suits, <sup>I</sup> decline to award costs against the Defendant Bank in Civil Suit No. 272 of 2008. Each party shall 10 meet their costs in that suit.

<sup>I</sup> so order **Z K u** SignedlUggajZVv wilson/masalu musene

JUDGE

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