Kabenge v Barclays Bank (U) Limited & Another (Civil Appeal 17 of 2015) [2019] UGSC 91 (28 November 2019)

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

## CIVIL APPEAL NO 17 OF 2015

# (Arising from Civil Appeal No. 167 of 2012)

(Appeal from the judgment of the Court of Appeal before Mwondha, Buteera and Kiryabwire, JJA)

SIMON TENDO KABENGE ...................................

#### **VERSUS**

# 1. BARCLAYS BANK (U) LTD 2. PHILLIP DANDEE ...................................

#### CORAM: TUMWESIGYE; KISAAKYE; ARACH AMOKO; 16 MWANGUSYA; OPIO AWERI; JJSC.

# JUDGMENT OF JUSTICE OPIO-AWERI, JSC

## Introduction

This is an appeal against the judgment of the Court of Appeal upholding the ruling of the High Court. The two Courts ruled that the appellant could not be granted a default judgment because the defendants had filed a defence within the prescribed 15 days although the same had not been served on the plaintiff.

#### Background:-

The appellant filed a suit against the respondents and served on them the plaint and summons on 1<sup>st</sup> December 2010. The suit was for various declarations and orders. The respondents filed their written statement of defence and counterclaim on 15<sup>th</sup> December 2010.

Two days later, on 17<sup>th</sup> December 2010, the respondents served a copy of their Written Statement of Defence (WSD) on the appellant through his lawyers M/S Akampulira & Co. Advocates who received the same under protest having filed Misc. Application No. 623 of

2010 under Order 9 Rule 10 of the Civil Procedure Rules on the same day seeking inter-alia, a default judgment to be entered against the respondent in the main suit. The main reason for the application was that the respondent had deliberately neglected to file and serve their written statement of defence (WSD) within 15 days from the date of receipt of the summons and the plaint.

Further, that the respondents had failed to apply for extension of time, which put them out of the jurisdiction of the Court. The learned trial Judge however found no merit in the application, dismissed it with no order as to costs, and ordered that the hearing of the suit proceeds inter-parties.

The appellant being dissatisfied with that ruling appealed to the Court of Appeal. The Court of Appeal allowed the appeal in part to the extent that there is 15 days time limit to file and serve defence. The appeal however was dismissed in part when court held that if a defence is filed on court record, though not served on the opposite side, before an application is made for a default judgment, then that in itself prevents a default judgment from being entered as there is a defence on record. The Court of Appeal accordingly directed that the main suit proceeds inter parte and be disposed on merits.

The appellant was dissatisfied with the Court of Appeal judgment, hence the appeal.

The appeal before this court was premised on 10 grounds, namely:-

- 1. The Learned Justices of Appeal erred in law and fact when they found that there is a limited time of 15 days within which the defendant must file and serve a defence onto the plaintiff, but held that the Appellant is not entitled to a default judgment in default by the defendant. - 2. The Learned Justices of Appeal erred in law and in fact when having found that filing of a defence is complete in two steps of delivery upon the court record and delivery of

$\overline{2}$

a duplicate at the address for service on the opposite party proceeded to hold that the delivery of a defence upon court record without serving it, in itself bars a default judgment from being entered.

- 3. The Learned Justices of Appeal erred in law and in fact when having found that the onus of serving a WSD lies with the defendant and that there is no obligation placed on the plaintiff by the Civil procedure Rules to pick a copy of the defence from the record, later on shifted the onus to hold that the plaintiff could have diligently gotten a copy either from the court itself or the Defendant's lawyers. - 4. The Learned Justices of Appeal erred in law and fact when they failed to consider and make a finding on the respondent's failure to serve a counter claim which has not been served to date. - 5. The Learned Justices of Appeal erred in law and fact when they upheld the affidavit of a deponent who has failed to comply with a court order for cross examination on it. - 6. The Learned Justices erred in law and fact when having found that there are conflicting judgments of the High Court on serving of a WSD but failed to resolve them for certainty, predictability, record and guidance of the lower court's Advocates on precedent. - 7. The Learned Justices of Appeal wrongly evaluated the evidence on record thereby came to wrong conclusions. - 8. The Learned Justices of Appeal erred in law and in fact when they made a finding that created inequality between litigants that on one hand a plaintiff shall have their pleading struck out if it is not served within 21 days but

the defendant's offending defence shall not similarly be struck out for non-service.

- 9. The Learned Justices of Appeal erred in law and in fact when having found that the appeal partially succeeded and resolved novel important points of law in legal practice, but declined to award the Appellant costs of the Appeal and in the High Court - 10. The Learned Justices of Appeal erred in law and in fact when having found that Order 8 Rule 19 is clear and unequivocal and in the absence of a cross-Appeal referred the matter to the Rules Committee to make specific provisions on timelines.

The appellant prayed court that the appeal be allowed, part of the orders of the lower court be set aside and substituted with orders of this court and that the costs of the appeal and of the lower courts be granted to the appellant both here and in the lower courts.

At the hearing, the appellant was represented by Mr. Fox Odoi 24 **Oywelowo** while the respondents were represented by Mr. Idoot Augustine Obilil.

Both counsel filed written submissions.

The appellant's submissions.

### Grounds 1, 2, 3 and 4.

Counsel submitted that the justices of appeal erred having held that it was the responsibility of the respondent to serve the WSD on the appellant, irregularly shifted that burden by tasking him with an added duty of diligently being on the look out to find out whether the defence had been filed in obedience to the summons. He submitted that this demonstrated prejudice suffered on the part of the appellant in that, he lost the protection of the law and that this depicted inequality before the law hence contravening Article 21 of the Constitution.

Counsel submitted that the appeal was of great public importance as its resolution would guide lower courts on an issue where two clearly inconsistent interpretations of the law have emerged.

Counsel submitted further that the contents of the summons directed the respondents to file the WSD within 15 days to which the respondents by their own affidavit in reply admitted that they never served the appellant, meaning that the WSD and Counterclaim were not duly filed as required by law.

Counsel invited court to rely on the cases of **Utex Industries V AG** Misc Application NO 52 of 1995(SC) where court held that rules of procedure should be followed and URA Vs Uganda Consolidated properties Services Ltd Civil Appeal No.31 of 2000 where court stated that time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with."

Counsel argued that it was a contradiction by the Justices of Appeal when they upheld the Appellant's appeal that the respondent had 15 days within which to file a defence mandatorily required by law and later endorsing the existing High Court decision that found that the unambiguous provisions of the CPR under Order 8 rule 8 and 19 of the CPR, placing a WSD and counter-claim on court record and serving on the plaintiff were acts that had to be done within 15 days.

He stated that the Rules do not give the respondent the liberty to defy the Court's command that they file their WSD within 15 days.

Counsel contended further that O8 r. 11(2) of the CPR unambiguously provides for a clear timeframe within which the plaintiff must file a reply to the counter-claim. That therefore this meant that a counterclaim is equivalent to a plaint and has to be served on the opposite party in order for the opposite party to reply within time. Further, counsel stated that the holding of the justices of Appeal ignored the express command of a fair hearing and speedy trial in adjudication of disputes dictated by Article 28(1) of the Constitution. Counsel invited court to allow the above grounds

$\overline{5}$

of appeal and find that the learned Justices of Appeal erred in law having upheld the appellant's appeal that there is a limited time of 15 days within which the defendant must file and serve a defence on the plaintiff, contradicted themselves by holding that the appellant was not entitled to a default judgment.

#### Response;

Counsel argued that the Justices of Appeal rightly held that there was a time limit of 15 days within which the defendant must file and serve a defence as provided for in O8 r 19 of the CPR. However, counsel submitted that court also rightly held that the appellant was still not entitled to a default judgment. He argued that the appellant was aware of the presence of the WSD on court record since it was the practice at the bar for the plaintiff to keep checking at the registry to see if a defence has been filed.

Counsel also submitted that it was on record that the counsel for the appellant was served with the WSD 2 days later, the same day that counsel for the appellant filed its application for a default judgment. Counsel stated that this appeal was a ploy on the part of the appellant to delay the progress of the main suit. Counsel urged court not to read the rules in isolation but as a whole.

Counsel relied on the case of Cropper vs Smith [1884] 26 Ch. D.700 ta 710 argued that the main object of the courts is to decide the rights of the parties and not punish them for mistakes in the conduct of their cases and therefore in the interest of prevailing justice, this court should bar against the grant of a default judgment against the defendant even if there was default of service with in the 15 day period.

Counsel submitted that the provisions of O.9R 5 of the CPR are the most relevant rule in relation to the instant application. That once it became apparent that there was a defence filed on court record, it was not open for court to exercise its powers under O.9 as the pre conditions on O.9 R. 5 of the CPR would not be satisfied. Counsel prayed court to dismiss the grounds. Counsel argued that the

interpretation of the provision is that the pre-condition for the grant of such a default judgment is the proof of failure to file the defence and not necessarily the service upon the opposite party.

Counsel further submitted that court should take cognizance of the fact that under O.9 rule 1(1) of the CPR, there is a mandatory requirement for the endorsement by the registrar / magistrate certifying the date it was sealed. He stated that this requirement may take hours, days or weeks depending on the efficiency of the registrar/ magistrate. He averred that a court holding that the appellant was entitled to a default judgment would expose litigants to injustice on account of numerous actions /inactions beyond their control. Counsel argued that court should take judicial notice of the fact such an endorsement, is an exercise of power outside the control of litigants. Counsel argued that in practice, endorsement is not immediate and sometimes takes hours, days and weeks depending on the particular registry and efficiency of the Registrar. He stated that it would therefore make sense that once a defendant has filed a defence with the court registry, such an act, should by and of itself, bar the grant of a default judgment or leave to allow the plaintiff to proceed exparte under the provisions of O.9

## Ground two;

Whether the trial judge erred in law and fact when he granted an order to the appellant to proceed ex parte and later allowed the respondents on record when the order was still in place.

Counsel stated that it was not true that to date the appellant had never been served with the WSD.

Counsle argued that the court of Appeal rightly held that indeed 32 under O.8r 19, a WSD must be filed and served within 15 days of receipt of summons to file a defence, however that if the WSD is on court record within the requisite 15 days, then that in its self would prevent a default judgment from being entered. That the court held so as an exception to the general rule.

Counsel prayed court to hold that costs shall abide in the result of the main suit.

Counsel prayed court to dismiss these grounds. 8

Resolution.

This is a second appeal and the duty of this court on a second appeal was laid down in Kakooza Godfrey versus Uganda SCCA No 3 of 2008 where it was observed as follows:-

" As a second appellate court, we are aware that the two lower courts reached concurrent findings of fact.....we can only interfere in those concurrent findings if we are satisfied that

#### the courts were wrong or applied the wrong principles of 16 law"(emphasis added)

Before I discuss the merits of the appeal, I would like to express my disquiet about the manner in which the appellant drafted the grounds of appeal. Like they did before the Court of Appeal, the grounds of appeal were too many and repetitive and lacked concentration.

$24$

Grounds of appeal should ordinarily be simple and focus on the appeal and should not meander around the dispute. Lord Templeman made an outstanding guide on this point in Ashmore v Corporation of Lloyd's [1992] 2 Aller 486 at page 488:-

"It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points, the judge will be capable of *fashioning a winner...................................*

To add my voice on the point, pleadings are generally very serious documents that ought to be drafted with skill and care in order to achieve the ends of justice.

I shall now proceed to resolve the grounds raised in the appeal. The gist of this appeal is the interpretation of the law regarding filing of a defence and counter claim as enunciated by the Civil Procedure

Rules. As already raised, I shall not handle ground per ground as

set out in the memorandum because of their repetitiveness but I shall raise the core issues that are embedded in the various grounds of appeal as follows:

The issue that is raised from the grounds 1, 2, 3,6,7,8 is **whether** the respondents duly filed a defence (WSD) and whether the appellants were entitled to a default judgment?

Ground 4 raised an issue of what is the effect of not serving a counter claim?

Ground 9 raised an issue of whether the appellants are entitled to costs since they partially succeeded in the Court of Appeal?

### Issue one;

Whether the respondents duly filed a defence (WSD) and whether the appellants were entitled to a default judgment?

The steps of filing a defence in the Civil Procedure Rules begin with the provisions of $0.8 \times 1(2)$ and it reads as follows;

"Where a defendant has been served with a summons in the form provided by rule 1(1)a of Order 5 of these rules, he or she shall, unless some other or further order is made by the court, file his or her defence within fifteen days after service of the summons.

The above provision stipulates the time lines within which to file a defence. The process of what entails filing of a defence is provided for under **0.8 R 19** as follows;

"Subject to Rule 8 of this Order, a defendant shall file his or her defence and either shall file any pleading subsequent to the filing of the defence by delivering the defence or other pleading to the court for placing upon the record and by delivering a duplicate of the defence or other pleading at the address for service of the opposite party."

The mode of filing a defence is provided for in $0.9 \times 1(1)$ ;

"A defendant on or before the day fixed in the summons for him or her to file a defence shall file the defence by delivering to the proper officer a defence in writing dated on the day of its 8 filing and containing the name of the defendant's advocate, or stating that the defendant defends in person and also the defendant's address for service. In such case he or she shall at the time deliver to the officer a copy of the defence, which officer shall seal with the official seal, showing the date on which it is sealed, and then return it to the person filing the defence, and the copy of the defence so sealed shall be a certificate that the defence has filed on the day indicated by the seal"

From the foregoing, the law requires that a defendant files his/her defence within fifteen days form the date of receipt of summons by delivering copies of the WSD to a proper officer of court who shall then sign and affix an official seal on the documents. After the seal is fixed, a copy of the WSD shall be served onto the opposite party. It therefore follows that filing involves two steps which are placing the WSD on court record and further serving the same to the

opposite party.

While dealing with this issue, the Court of Appeal observed as follows;

"..................................... defence is complete in two steps, that is, delivery upon the court record and delivery of a duplicate for service on the opposite party. It *would therefore appear that the interpretation of service by Justice*

Madrama is correct. The defence must be filed and served within 15 32 days. Indeed it is also the practice at the bar for the plaintiff to keep checking at the registry to see if the defence has been filed and if it is a day late then the plaintiff applies for a default judgment. What happens then, when the defence is on record but has not been served upon the plaintiff on the $15<sup>th</sup>$ day? This in practice actually happens a lot. The practice in the United Kingdom according to the authors of the book, Odgers on Civil Court Actions 24th Ed. Sweet and Maxwell (*Para 6.08 and P.142*) is; 40 "....... If the time expires and no defence is served, the plaintiff may enter judgment by default under Order 19 or CCR Order 9 rr. 4A and 6. But, if he delays in doing this, the defendant may put in a defence to pay any costs incurred through his delay..."

It would therefore appear to us that the practice is that if the 15 days have crystallized or have expired but the defence has none the less been filed on court record although not yet served on the opposite party, then that in itself would prevent a default judgment being entered. In this case, the appellants were aware that the defence *was on court record but ignored it on the understanding that it had to* be formally served on them. We agree with the learned trial judge since the defence was on the court record then the appellant could have diligently got a copy of it either from the court record itself or from the defendant. In such a situation the suit then would progress inter parties.

- We therefore partially uphold the grounds of appeal to the extent that 24 there is a 15 day time limit to file and serve a defence. However, if a defence is filed on court record though not served on the opposite party, before an application is made for a default judgment, then that in itself would prevent a default judgment from being entered as there is a defence on court record. The trial judge was therefore correct to allow the suit to proceed inter parties." - I do not agree with the submissions of the appellant that the above judgment is contradictory in as far as what amounts to filing of the 32 defence. In the above holdings, the Court of Appeal rightly observed that filing of a defence is complete in two steps which are putting the defence on court record and serving on the opposite party. I further agree with the conclusion of the court that this appeal should be dismissed. Be that as it may, I do not agree with how court arrived to that conclusion. With greatest respect, it was erroneous for the justices of Appeal to observe that it is the duty of counsel for the plaintiff by virtue of good practice to access a copy 40 of the same on his own since he always checks the registry every

now and then. This holding reads into and contravenes the O. 8 R 19 by shifting the burden of service of the WSD from the defence counsel to the on to the plaintiff counsel. The law is clear on how the plaintiff is to receive the WSD and not even the so called "practice" can override what the law dictates.

In instances where the WSD has not been filed as required by the law, the plaintiff may apply to court for a judgment in default seeking for court to allow the suit to proceed as if a defence was filed. That remedy is founded under O.9 R 10 which provides as follows:

"In all suits not by the rules of this Order otherwise specifically 16 provided for, in case the party does not file a defence on or before the day fixed therein and upon compliance with rule 5 of this Order, the suit any proceed as if that party had filed defence."

The question that arises now is whether the appellant would be entitled to a default judgment in an instance where a copy of the WSD has been put on court record within the fifteen days but has not been served onto the opposite party?

The steps that complete the filing of a defence requires a two men job in the sense that the first step of putting the defence on record is counsel's duty strictly however when the defence is received at the registry, the same has to be signed and sealed by a proper officer of the court. The proper officer is usually the registrar or a magistrate and the law dictates that only then can defence counsel complete his/ her task of service of the WSD on the opposite party. In the instant case, the summons to file a WSD were received by the 32 defence counsel on the 1<sup>st</sup> day of December, 2010. The WSD was received by the registry on the 15<sup>th</sup> day of December, 2010 but was however served on the opposite party on the 17<sup>th</sup> day of December, 2010. Counsel for the respondents submitted that court must take cognizance of the fact that some times the courts occasion delay, a matter which counsel has no control over. The submission was not rebutted by the appellant's counsel on rejoinder. I agree with the above submission. The part of the filing process which requires a

registrar or magistrate to first sign and seal is completely beyond defence counsel yet it is only after that process is done that he may be able to file and serve the WSD on the opposite party. It therefore follows that the WSD as of the 15 days could not be served on the opposite party not because counsel deliberately failed to do so but because of the delays on part of the court. It should be noted that this case is a peculiar one and is distinguishable from cases where even on the 15<sup>th</sup> day mark, defence counsel has not initiated the process of filing.

In the Court of Appeal, the learned justices expressed a need for the 16 rules regarding filing of a defence to be referred to the Rules committee to reconcile them and also cater for instance such as the present one. I respectfully disagree with that opinion. The Rules regarding filing of a defence is exhaustive and courts should endeavor to apply them to the peculiar facts of each case without tampering or reading into them.

From the fore going therefore, instances where by the 15th day, a 24 defence is on court record but for unexplainable delays on part of the court, the WSD is not signed and sealed to enable service on the opposite party, then court may not allow a default judgment against the defendant. The unexplainable delays must however be subject to proof and the burden is on the defence counsel. Grounds 1, 2, $3,6,7,8$ hereby fail.

#### Issue two; 32

## What is the effect of not serving a counter claim?

It was the appellant's contention that the WSD in the instant case contained a counter claim therefore it being a fresh pliant requires that it should be served to the opposite party. Counsel added that non service of the WSD infringes the appellant's right to a fair hearing and a speedy trial.

The law regarding filing of a defence with a counterclaim is provide for under $O8. R11(1)$ which states as follows: 40

"Any person named in a defence as a party to a counter claim thereby made may, unless some other or further order is made by the court, deliver a reply within fifteen days after service upon him or her of the counterclaim."

I agree with the submission that a countersuit is a fresh suit and therefore should be served unto the opposite party as the law above dictates. As already stated in the discussion in issue one, the defence in the instant case was put on court record but could only be served 2 days later than the fifteen day mark. A counter claim when served on the opposite party must be replied to within fifteen days of receipt. It follows that the fifteen days start running from the day the opposite party is served. I do not see how all this can infringe the appellant's right to a fair hearing since the days run only upon receipt.

Whether the appellants are entitled to costs since they partially succeeded in the Court of Appeal?

The appellant's contention was that it was erroneous for the justices of Appeal not to award costs to the appellants having partially succeeded in the Court of Appeal. On the other hand, the 24 respondent prayed court to make an order that costs shall abide the result of the main suit.

It is trite that costs follow the event however discretion is left to court to decide whether to grant or not. In the case of Butagira vs Debora Namukasa (1992-1993) HCB 98, court observed that;

"The general rule is that costs shall follow the event and a successful party should not be deprived of them except for a good cause. This means that the successful party is entitled to costs unless he is guilty of misconduct or there is some other good cause for not awarding costs to him. The court may not consider the conduct of the party in the actual litigation but matters which led up to the litigation."

In the instant, it should be noted that the Court of Appeal Judgment is no longer on record therefore I shall determine the

issue of costs based on this judgment. The application has been dismissed therefore the respondents are the successful party. Ordinarily this court would grant them costs however, the respondent's prayers were that this court orders that the costs abide the results of the main suit. I hereby grant that and order that each party bear their costs in this suit and that costs shall abide the results of the main suit.

For the above reasons, I find that the Court of Appeal was right to uphold the decision of the trial Judge in declining or refusing to enter default judgment in order to allow the matter to proceed on merit based on the defence, which was on court record.

In the result, the above grounds would dispose of the entire appeal with no order as to costs.

With no order as to costs.<br>Dated at Kampala this....................................

Justice Opio-Aweri. JSC.

# THE REPURLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: Tumwesigye, Kisaakye, Arach-Amoko, Mwangusya, Opio-Aweri, JJSC.)

# CIVIL APPEAL NO. 17 OF 2015.

#### **BETWEEN**

# 1. SIMON TENDO KABENGE:::::::::::::::::::::::::::::::::::

#### AND

### <table> 1. BARCLAYS BANK LIMITED <table> :::::::::::::::::::::::::::::::::::: 2. PHILLIP DANDEE

{Appeal arising from the judgment and orders of the Court of Appeal at Kampala (Mwondha, Buteera, Kiryabwire, JJA), in Civil Appeal No. 167 of 2012 dated 10<sup>th</sup> September, 2015).

# **JUDGMENT OF M. S. ARACH-AMOKO, JSC**

I have had the benefit of reading in draft the Judgment of my learned brother, Hon. Justice. Opio-Aweri, JSC, and I agree with his findings and decision that this Appeal should be dismissed for the reasons he has given in his Judgment. I also concur with the orders as to costs.

28th Dovember 2019 Dated at Kampala this

M. S. ARACH-AMOKO JUSTICE OF THE SUPREME COURT

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

#### AT KAMPALA

## (CORAM: TUMWESIGYE, KISAAKYE, ARACH-AMOKO, MWANGUSYA, OPIO-AWERI, JJSC.)

#### CIVIL APPEAL NO: 17 OF 2015

#### **BETWEEN**

### SIMON TENDO KABENGE ::::::::::::::::::::::::::::::::::: AND

1. BARCLAYS BANK LIMITED 2. PHILLIP DANDEE

**RESPONDENTS**

[Appeal arising from the judgment and orders of the Court of Appeal at Kampala [Mwondha, Buteera, Kiryabwire, JJA, in Civil Appeal No. 167 of 2012 dated 10<sup>th</sup> September 2015]

#### **JUDGMENT OF TUMWESIGYE, ISC**

I have had the benefit of reading in draft the judgment prepared by my learned brother, Hon. Justice Opio-Aweri, JSC and I agree with his reasoning and his conclusions that this appeal should be dismissed. I also agree with the orders he has proposed.

As all other members of the court agree, this appeal is dismissed with the orders as proposed by the Hon. Justice Opio-Aweri in his judgment.

28th day of November 2019 Dated at Kampala this... Hon. Tustice Jothan Tumwesigye JUSTICE OF THE SUPREME COURT

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA

#### AT KAMPALA

(Coram: Tumwesigye, Kisaakye, Arach-Amoko, Mwangusya, Opio-Aweri, JJSC.

### CIVIL APPEAL, NO. 17 OF 2015

#### BETWEEN

## SIMON TENDO KAGENGE::::::::::::::::::::::::::::::::::

#### AND

# 1- BARCLAYS BANK LIMITED

2- PHILLIP DANDEE::::::::::::::::::::::::::::::::::

#### JUDGMENT OF MWANGUSYA

(Appeal arising from the judgment and orders of the Court of Appeal at Kampala (Mwondha, Buteera, Kiryyabwire, JJA), in Civil Appeal No. 167 of 2012 dated 10<sup>th</sup> September, 2015.

I have had the benefit of reading in draft the Judgment of my learned brother, Hon. Justice Opio-Aweri, JSC, and I agree with his findings and decision that this appeal should be dismissed for the reasons he has given in his judgment. I also concur with the orders as to costs.

28th<br>Dovember 2019 Dated at Kampala this.

JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

# [CORAM: JUSTICES TUMWESIGYE; KISAAKYE; ARACH AMOKO; MWANGUSYA & **OPIO-AWERI**

#### CIVIL APPEAL NO 17 OF 2015

# SIMON TENDO KABENGE :::::::::::::::::::::::::::::::::::

**VERSUS**

**BARCLAYS BANK (U) LTD** 1.

10 $2.$ PHILLIP DANDEE :::::::::::::::::::::::::::::::::::

[Appeal from the Judgment of the Court of Appeal (Mwondha, Buteera & Kiryabwire JJA) in Civil Appeal No. 167 of 2012]

#### **JUDGMENT OF DR. KISAAKYE, JSC**

I have had the benefit of reading in draft the Judgment of my brother, 15 Opio-Aweri, JSC.

I agree with him that this appeal should be dismissed. I also agree with the orders he has proposed with respect to costs.

$28t$ t ovember 2019. Dated at Kampala this. day of

$\mathsf{S}$

JUSTICE DR. ESTHER KISAAKYE JUSTICE OF THE SUPREME COURT