Standard Chartered Bank Uganda Limited v Kanakulya & Another (Civil Suit 23 of 2018) [2023] UGCommC 290 (12 May 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION]

### **CIVIL SUIT NO. 023 OF 2018**

# **STANDARD CHARTERED BANK UGANDA LIMITED::PLAINTIFF VERSUS**

#### 1. ROBERT KANAKULYA

2. ALICE NAMUBIRU:::::::::::::::::::::::::::::::::::

## **BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI JUDGMENT**

The Plaintiff filed this suit under Order 36 Rules 2 and 3 of the Civil Procedure Rules against the Defendants for recovery of UGX 332,543,219/ as at September 2017 on account of personal guarantees executed by the 1st and 2nd Defendants in relation to facilities that included a term loan and short term loan plus interest accrued granted by the Plaintiff to Kimuka General Hardware Limited (Debtor/Borrower), and for costs of the suit.

The brief facts constituting the Plaintiff's case are that Kimuka General Hardware hereinafter referred to as the borrower/debtor, obtained two loan facilities from the Plaintiff in May 2014 each of UGX 150,000,000/. In February 2016, the Plaintiff later consolidated the two loans after several demands and a facility letter was executed by the debtor. The facility was secured by a legal mortgage over Buddu Block 323 Plot 628 land at Kairikiti and FRV 997 Folio 17 Plot 19 Nsoowe Loop

$\mathbf{1}$

land at KimanyaKyabakuza Masaka, and property comprised in Buddu Block 323 Plot 628, Land at Kairikiti all in the name of Robert Kanakulya.

In addition, the Defendants issued personal guarantees in their personal capacity as Directors of the borrower, pledging to repay the loan outstanding amounts to a tune of UGX 450,000,000/. on 29'r'April 2016, upon default on repayment obligations, the Plaintiff issued a default notice requiring the debtor to rectiff the loan of UGX 461,472,367/. That the Plaintiff then made a call to the Defendants in accordance with the Guarantee Agreements after the plaintiff had defaulted in rectiffing the loan, demanding them to pay UGX 332,543,219/. That despite the demands, the Defendants have refused or neglected and or ignored the same, and failed to honour their obligations, hence this suit.

The I't and 2nd Defendants filed a joint written Statement of Defence in which they contend that on 12th February 2016,the debtor was indebted to the plaintiff to a tune of ucx 125,041 ,87 r1 and, on 29th February 2016, it was UGX 126,36g,5ggl . They deny negotiating and executing personal guarantees of a consolidated facility of UGX 450,000,000/ in February 2016; and, add that ir was a means to defraud the debtor and the Defendants, as none of them requested for it, and no money was disbursed on the debtor's account. That the personal Guarantee in respect of the 2nd Defendant (Annexure c to the plaint) was a forgery as the amount of uGX 75,000,000/ was changed to UGX 450,000,000/, because even the spousal consent was for UGX 75,000,000/.

They further contend that the personal guarantees are void in law as they were procured through fiaudulent misrepresentation and therefore that the plaintiff has no cause of action against them. Further that the said misrepresentation by the Plaintiff manifesred by the plaintiff telling the Defendants that the said documents

t" 1. N\* \l

were needed on the debtor's file and that they were in respect of UGX 75,000,000/; and also by filling in the names of Nathan Okwakol who was purporting to give powers of attomey to the I't Defendant yet he was unknown to them and making deductions on money which was not disbursed.

The Defendants also filed a Counterclaim for breach of fiduciary duty by the Plaintiff/Counter defendant by illegally and fraudulently selling off the mortgaged properties, declarations that the Counterclaimants or the borrower did not apply for a facility of UGX 450,000,000/ or consolidation of the facilities and that they were made to sign the offer letter through misrepresentation and fraud, a declaration that the Defendants did not mortgage their property for UGX 450,000,000/ and a declaration that they did not sign personal guarantees for the same amount. That the borrower was servicing the facility it applied for in May 2014.

The facts constituting the Counterclaim are that the Counter Defendant fraudulently induced the Defendants to execute a second further charge in the sum ofUGX 75,000,000/ and the 2nd Defendant to execute spousal assent in the sum of UGX 450,000,000/. That the Plaintiff also refused to issue bank statements and claimed that the debtor owed UGX 445,765,500/ contrary to the bank statement. That they also increased costs by instructing lawyers to advertise the property in July 2016, and causing fresh valuation of the properties without informing the Counterclaimants. That they also colluded with the buyer of the property and refused to account for the proceeds of sale by saying the indebtedness was at UGX 332,543,1921 in January 2018 causing loss of money and business opportunities to the Counterclaimant, hence this suit.

In reply to the Written Statement of Defence and Counterclaim, the Plaintiff avers that the borrower had overdrawn its account No. 0102960289500 by UGX

s. N'

129,041,871/and also defaulted on the loan facilities. That the debtor requested for a loan facility through the Defendants, and the loan was granted on l2th February 2016, and' that the offer letter included three facilities. The Plaintiff further replies that the facility agreement was duly executed by the Defendants as Directors of the borrower Company. That the ucx 75,000,000/ advanced as a top up to the borrower was disbursed to the account which was already owing UGX 125,041,8711, and that as at 20th June 2016, the outstanding loan stood at ucx 472,224,116/.

The Plaintifflcounter Defendant contends that the mortgaged property was sold through public auction after following the procedures for sale, and that the UGX 225,000,0001 out of the proceeds was applied to reduce the indebtedness whereas ucx 15,000,000/ was used to pay legal fees for the foreclosure of the mortgage. That the counter Defendants were requested to seek independent legal advice, which they did therefore they are barred from claiming misrepresentation and fraud. That the I't Defendant was required to seek spousal consent, which he did. They concluded that the written Statement of Defence be struck off and judgment entered for the Plaintiff.

During the hearing, the Plaintiff presented one witness, Julius Butuffu (pwl) while the I't Defendant was DWl and the 2nd Defendant was DW2.

counsel for the parties agreed to file written submissions which have been considered in this Judgment.

## REPRESENTATION

The Plaintiff was represented by M/S Kampala Associated Advocates while the Defendants were represented by Iv{/S Law Associates Advocates.

s.^g

#### JUDGMENT

During the scheduling conference the parties agreed on the following Issues for determination by this Court:

- 1. Whether the personal guarantees are valid? - 2. Whether the Defendants are liable to pay the sum of UGX 332,543,,219/? - 3. whether the Plaintiff legally sold off the mortgaged properties and whether the Plaintiff properly accounted for the proceeds from the sale? - 4. What remedies are available to the parties?

#### Issue One:

## Whether the personal guarantees are valid?

counsel for the Plaintiff cited section 68 of the contracts Act on contract of guarantee and submitted that the Defendant signed the respective personal guarantees PE 10 and PE ll, which they admitted to signing, except for a lesser sum of UGX 75,000,000/ and not ucx 450,000,000/. He added that in addition to existing facilities, the Plaintiff advanced to the debtor a loan under facility letter dated l2th February 2016, to which the personal guarantees were given after the issuance ofadvice letters (PE 8 and pE 9). He concluded that since the Defendants admit to signing and executing the guarantee agreements as well as the facility agreement as security for the loan repayment, the guarantees are valid.

In reply, counsel for the Defendants submitted that whereas the Defendants do not deny executing the personal guarantees, the circumstances under which the guarantees were made should be considered because the guarantees they signed for UGX 75,000,000/ was changed to UGX 450,000,000/ after they had signed. He

u (y/

referred to the evidence of pwl in cross examination who admitted that the same was changed in the presence of the Defendants by Mr. Sekimpi yet the Senior Govemment analyst in his report DE 2l on page 67 concluded that the alterations were not made by the said Sekimpi. That pwr contradicted himself by saying he made the alterations as the custodian of the documents.

Counsel further submitted that the alterations are material because it multiplied the Defendants' liability six times, and that the Defendants did not consent to the alterations. He cited authorities to the effect that alterations made by one party without the consent of the other makes the instrument void; and that the alteration affects the nature and character of the instrument and is potentially prejudicial to the obligations of the guarantors. counsel prayed that court finds that the guarantees are invalid and void.

In the altemative, counsel prayed that court finds the guarantees invalid based on the whole circumstances of the case right from drawing of pE 6 without any documents from the Defendants to justifu it, extreme steps taken by Sekimpi to have the Defendants sign the documents from wherever they were, and the claimed default within l7 days of execution before disbursing any money. That pwl had said there was a procedure for obtaining loans including submission of documents, and therefore that it was impossible for the borrower to be granted more credit facilities without documents which points to the fact that the transaction was not in good faith.

He added that the Plaintiff did not come with clean hands therefore the court cannot endorse its schemes to defraud the Defendants. That until during cross examination, the Plaintiff s case was that the Defendants had executed two sets of

tN\*\$ \\\ ,

guarantees which is not true, and that admission by pwl is a total departure from their pleadings.

The Defendants in this case were sued on account of personal guarantees they allegedly signed in favour of the borrower, therefore the cause of action is premised on a contract of guarantee which was defined under section 6g of the Contracts Act No, 7 of 2010 to mean:

"......a contract to perform a promise or to discharge the liability of a third party in case of default of that third party, which may be oral or written.,,

In this case, the Defendants do not deny executing guarantee agreements in respect of the loan given to the bonower/debtor, however, there is contention on the extent of liability' whereas the praintiff claims that they are liable for ucx 450,000,000/, the Defendants contend that they are liable for UGX 75,000,000/. As it is, the Defendants do not deny executing pE l0 and pE l l, except that their contention is that the figure was changed, which is apparent on the face of the document, and was admitted by PWr in cross examination when he stated that Sekimpi, who had filled in the document, altered the same in the presence of the Defendants. The Defendants deny knowledge of the alteration. stilr under cross examination, pwl admitted that in the bank, documents with altered figures which countersigned are rejected, but he maintained that it was an error. are not

As pointed out by counser for the plaintiff under clause 1.3 of the offer letter (pE 6) dated 12'h February 20r6 on page 106 of the plaintiffs Triar Bundle (prB), duly executed personal guarantees for UGX 450,000,000/ was required from the Defendants. This facility letter was signed by the Defendants on behalf of the debtor on page 140 and as guarantors on pages r42 and 143 respectively. The Defendants signed on each page of pE 6, including page 106 of the pTB which

clearly spelt out the requirement of a duly executed personal guarantee of UGX 450,000,000/ from each Defendant.

In addition, even the advice letters pE 8 and pE 9 which both Defendants admitted to having received, and bear their signatures, clearly spells out ucx 450,000,000/ as the amount of personal guarantee. It is trite law that a documents must be read and construed as a whole. PE l0 and PE I I form part of the bigger document pE 6, and page 106 of the PTB is clear on the amount of personal guarantee. Still on page 106, there were existing personal guarantees of UGX 390,670,1371 for the previous loan, which DW2 admits to have executed, therefore it would not make logical sense for the Plaintiff to advance more money and yet reduce the extent of personal guarantee.

The extent of guarantee in the previous agreement is relevant because it forms part of their usual course of business, which becomes relevant to this case pursuant to Section 14 of the Evidence Act Cap 6 that provides:

"lvhen there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. "

Therefore, it only follows that the intended amount of personal guarantee for the loan in issue was ucx 450,000,000/, which appears on the advice letters and on page 106 which was equally signed by both Defendants. In addition, accoiding to section 71 (1) of the contracts Act 2010, a guarantor is liable to the same extent as the principal debtor unless the contract provides otherwise. In this case, whereas there is contention on the alteration on the extent of guarantee, all circumstantial evidence point to the fact that the Defendants are liable to the same extent as the principal debtor, being the company. Therefore, coupled with the faci that the

N^\$

Defendants do not deny signing PE 10 and PE 11, I find that the personal guarantees executed by the Defendants are valid. Also, considering that thc burden of proof in civil matters is on a balance of probabilities, I find that the Plaintiff has fulfilled his obligation because, despite the alterations in PE 8 and PE'9 wlrich is not even denied by the Plaintiff, circumstantial evidence shows that the intention was to have the Defendants execute personal guarantees of UGX 450,00U,000/ each, hence the alteration.

The first issue is answered in the affirmative.

#### Issue Two: Whether the Defendants are liable to pay the sunr 332,543,2191? of UGX

Counsel for the Plaintiff submitted that the Defendants are liable by virLuelof the guarantee contracts that they entered into with the Plaintiff and that the liability of a guarantor arises only upon default of the principal debtor. He addecl that.i?Wl proved that the three credit facilities were advanced to the Borrowcr, and. that although the lstDefendant attempted to deny that the said funds were clisbnr.sed, PWI pointed out the specific dates on which the money was disbursed as shown in PE 2, and that DWl later admitted during cross examination. That, DWl also admitted to signing the cheques (PE 30) and withdrawing the moncy which confirms that the money was given.

That PWI testified that the Company's current account was overdrawn by UGX 243,844,9501 , therefore there was default that is why the notice of dc.faL,1t,was issued on 29th February 2016. Thatthe Company was offered new facilitics in pE 6 to extend the payment period and relieve the borrower. Thereafter, DWl.wrote pE 7 requesting for a drawdown, and that the said money was deposited on 3,,LMarch 2016, and the entry appears on page 75 of the PTB in PE 2. That the bonowcr

s.s continued in default until 29th April 2016 when they were issued with a notice ol default (PE 16), and later a notice of sale dated l2th July 2016 (I,E l7).. LIe fuirher testified that the mortgaged properties were sold by public auction after. loliowing the procedure and a total of UGX 240,000,000/ was realised, oLrt of which UGX 15,000,000/ was legal fees. That after applying that money to reduce rhc loan, a sum of UGX 332,543,219/remains outstanding.

counsel argued that since the Defendants signed the facility letter as guarantors and directors, they are liable to pay the outstanding sum. I-le aclded that the guarantee agreements PE 10 and PE I I cannot be construed in isolation of PE 7, PE 8 and PE 9. He also cited the case of Standard Chartered Bank t Neocorp International Limited [20051 SGHC y'-l on the admissibility of evidenie of prior contracts in determining circumstances surrounding a later contract. '

In reply, Counsel for the Defendants submitted that there is no evidencc r,n iho\* that the Defendants applied for the facility in PE 6, and that it is Ivan:Ssrikimpi who could confirm if any verbal negotiations went on but that the Plaintitl digl not produce him in Court therefore the inference is that maybe his evidencc would not be in the Plaintiff s interest after altering the figures in DE 1 and DE 2. FIe added that PE 6 doesn't not mention that the facility was to settle prevrous debts, therefore it is a fraudulent misrepresentation by the Plaintiff. Lie added that the outstanding sum is not a true representation ofthe company's indebtedness.

Counsel added that the company was never availed any documents r:elating to the operations of its bank account. That PE 2,PE 24 and PE 22 were inadrnissible lor failure to comply with Sections 3 and 4 of the Evidence (Banker's Books) Act Cap 7 and that PWl's testimony in respect to those documents should be ignbred. tn the altemative, Counsel submitted that if the documents are admissible, pD 2 cloes not

reflect the true indebtedness of the company because PWl clain-red that there existed different loan accounts which one must consider, and yet PE 2 also reflected the loans on pages 66 to 68 and 72 to 74. He concluded rhat the company's balance was not an arithmetic conclusion but a manipulation.

Counsel also submitted that the Defendants signed Pll 6, rHrder the misrepresentation that Ivan Ssekimpi told them that he was only assisting them to get loan facilities when the company would need them in his absence. l'hat PE 6 and all its off springs are therefore void under Section l7 (3) ol'the Contracts Act, and that a void contract is unenforceable. He also cited the case of B.roadytays Construction Co. V Kasule & Others [1972] EA 76 (CA) to the eftbct that no action is maintained on contracts prohibited by statute, and that the Coul'ts cannot enforce such contracts. That since the Plaintiff cannot ground its claim without relying on PE 6, DE I and DE 2, the claim is illegal and cannot be sanctioncd.

I have considered the evidence on record and submissions on the liability of the Defendants and hold as follows. I will first deal with the Defendarrt's assertion that the contract is void and therefore unenforceable due to alleged rnisreplcsentation by Ivan Ssekimpi, an employee of the Plaintiff. I have looked at the authorities cited for the Defendants and I concur with them; however, the :Defendant is estopped from pleading misrepresentation saying that they knew the loan was for a future time considering that DWI wrote PE 7 requesting for a drawdorvn of the same loan which now they purport to claim that they did not apply for. 'l'his can only show that they knew the loan was for that particular time and not fbr the future. Therefore, that defence cannot stand to save them frotn liability because they even went on to withdraw the said money.

11 \$"u

As it has already been determined that the personal guarantees executed by the Defendants are valid, it would follow that they are therefore liabte to the exteht of their guarantee in the agreements, in this case being UGX 450,000,000/. Now, the issue would be to determine if the Company is still indebted to the Ptaintiff in the sum claimed. whereas the Defendant argues that the outstanding siurl is not the true reflection of the company's indebtedness, during cross examination, pW I explained that when loans are granted by the bank, a loan account, which is separate from the customer's current account is opened, and that the loan balance does not reflect on the customer's current account but does reflect qn the loan account. Therefore, in this case, as explained by PW l, the Company,s bank statement PE 2, only reflects the overdrawn amounts on the o',,crdraft lacility.'l'hc total amount of the outstanding balance is the sum of the over.clrawn ailount plus the outstanding balances on the different loan accounts which he pointecl out. '

In paragraphs 7 to l0 of his witness statement, PW I outlines the diffcrent loar.rs facilities that were issued out to the Company, the loan numbcrs and the ciates on which they were given, starting with the first facility of 2ol4 up ro the one of 2016 which is now in issue. During re-examination, PWI said that by the'fin:e wl..en pE 6 was granted, the Company was already in debt and that is why the l.tDefendant requested for a draw down in PE 7. He added that the UGX 200,000,000/ talkcd about in the draw down request was indicated in PE 2 on page 75 olthe pTll. That the company did not deposit money therefore the current accoLrnt'wa,s overdtawn, and that before the restructuring of the loan, the company was in airear.s of UGX 443,903,950/ broken as follows; UGX 126,368,568/ overdrawn by 29tr, February 2016 on page 74 of the PTB, a short term loan of UGX 5l,l14,5g3/ reflecteci in p[,l 12 onpage 155, a short term loan with balance of UGX 5l,|25,OOO/ on pE 14 on

12 \$.b

page 158, short term loan of ucx 102,250,000/ on pE 15 page 159 and the old loan reflected on the entry of 3d March 2016 on pageTS of the p.l'B.

PWI said that the company defaulted on depositing money on the account therefore they were issued with a notice of default dated 29th April 2016 demanding for payment. According to section 7l of rhe conrructs Act, the guarantor becomes liable upon the default of the principal clebtor. when the company defaulted in honouring the notice of default, the bon.ower was issued with a notice of sale dated l2th luly 2016 (pE l7), and uGX 240,000,000/ was realised from the sale and applied to the loan, leaving an outstanding stirl otUGX 332,543,219/. Therefore, since the Defendants executed personal. guarantees in favour of the company, they are liable to pay the outstanding surn as the company had clearly defaulted on repaying the loan.

This Issue is also resolved in the affirmative.

## Issue three: whether the Plaintiff legally sold off the mortgaged prope.rtics and whether the Plaintiffproperly accounted for the proceeds frorn thc sale?

As to whether the Plaintiff legally sold the mortgaged property ancl properly accounted for the sale proceeds, I would like to handle the objeotion r4ised by thc Plaintiff on competence of the counterclaim before I consicler the evidence. Counsel for the Plaintiff/Counter Defendant submitted that the Defendants/Cotrnter Defendants do not have locus standi to bring the suit on behall. of the bor.rciwer, and that fiom paragraphs l, 2, and 3 of the counterclaim, it is clear. that thc Defendants do not have locus standi to seek the prayers sought. He addcd that during scheduling the issue raised was 'whether the plaintiff sold and accounted for the sale' and not 'whether the plaintiff legally sold the morr.gaged property and

13 N--

properly accounted for the sale proceeds'. He prayed that Court considers the one set at scheduling.

The term locus standi was defined by Osborn's Concise Luw Dictionury tlth Edition, Sweel and Maxwell to mean'a place of standing.' Further., in the case o[ Dima Domnic Poro v Inyani & Another Civil Appeal 17 of 2016 Justice Stephen Mubiru elaborated on the issue and held that:

"The term locus standi literally means a place of standing. tt means 'a right to appear in court, and, conversely, to say that a person has no locus:standi means that he has no right to appear or be heard in a specified proceeding... .....7o say that a person has no locus standi means the person cannot be heard, even on whether or not he has a case worth listening to. "

He added that Court must look at the pleadings and other relevant malter in the records to determine a preliminary point of law on locus stancli. It is not disputed from the pleadings and evidence on record that the borrowcr in this case is a Company, and that the Defendants are Directors of the borrower.. it is trite law that a company is a body corporate capable of suing and being sued in its own right (See Salomon V. Salomon & Co, (1897) A. C, 22 and Salim Jomal and Ors v Uganda Oxygen Ltd and Ors Civil Appeal 64 of 1995). It is rrue that the prayers sought for in paragraphs 1,2 and 3 ofthe Counterclaim directly atfCct the company and ought to have been brought by the Company. In addition, this suit against thc Defendants was only brought against them basing on the persopal guarantee agreements they signed, and not as Directors of the Company ot .evett the Company. Therefore, their counterclaim can only be restricted to. issues of the personal guarantees, and not the company.

t4 i\$^'b

Specifically, they can only restrict themselves to whether or not the cornpany is in debt because their liability arises from default of the principal borrowcr', which is the company in this case. Therefore, from the ruling in lhe Dimo bomnic Poro 6upra), ifthe party does not have locus standi, it does not matter whether or not the case is worth listening to, they cannot simply be heard. I find that the preliminary objection has merit and is sustained. Therefore, I will resiiict myself to whether the sale proceeds were accounted for, issues of whether or not the saie was properly carried out can only be raised by the Company.

## Application of the sale proceeds

The Plaintiff elaborated how the proceeds were applied on page 10 of the Plaintiff s Supplementary Trial Bundle (PSTB) whereby as at 31\*t leceilber 2016, the total outstanding sum was UGX 529,875,7251 and it was reduced by UGX 225,000,000/ from the sale after the money for the legal fees had ah'eady been deducted. This left a balance of UGX 304,875,7251, which attraotcd more interest before the loan was called off, therefore leaving a balance of UGX 332,543,2191 on the demand to recall personal guarantee.

The Defendants' contention is that the Plaintiff delayed to apply the sale proceeds to the loan which attracted more interest. However, the money was eventually applied. PE 22 shows the land was sold on 24th July 2017 and PE 23 shows that the Nsowe property must have been sold on or about 17s December 2016. It is therefore understandable that the proceeds from one property were not immediately applied because the properties were sold at different times, but was applied within a reasonable time. PE 22is dated2T'h July 2017 so that is the date when that property was sold off, page 7 of the PTB shows that the facility was

15 \\*S

written off on 28,h tuly 20lT, the same month within which thc property wers sold off, hence no substantial delay.

The Defendants made four deposits on one of the loan accounts which is reflected in PE 24 on page 194 of the PTB in 3 equal instalments ot UGX 7,951,9651 deposited on 2610412017, 1710512017 and 27105/2017 respcctively. 'l'hey also deposited UGX 1,144,105/ on 2710512017. All these make a sum.of UGX 25,000,000/. Further, the last entry on page 198 of the PTB shows a deposit oF IJGX 46,964,181/ made on o5lo4l20l7. Therefore, from the Plaintiffs surninary on page 10 of the PTB does not take into account the total sum ol UGX 7l,964,18ll deposited by the Defendants. There is also a sum of UGX 2,300,000/ debited on 26th October 2016'tagged as 'eviction costs' on page 84 oi rt. ptg which was not accounted for, this brings unaccounted funds to a total of UGX 74,264,18v.

Counsel for the Defendants also contended that the money deducted lor legal f'ees was excessive in contravention of the Fifth Schedule of thb Advobates (Remuneration and Taxation of Costs) (Amendment) Regulations 2018. It is'true that going by that schedule, UGX 15,000,000/ woutd be excessive but as thc Plaintiff Counsel stated, that money covered other things including the bailiff fecs and advertisements costs therefore, it means not the entire amount was for legal fees only. Therefore, I find that the proceeds were properly applied to the loan however :JGX74,264,18l/ in deposits was not applied. Whereas the Plaintifihad sued for recovery of UGX 332,543,2191, having found that thc sum of UGX 74,264,181/made in deposits and a deduction for eviction costs were not deducted, it is only just that the said amount be deducted, thereby leaving the sum of UGX 258,279,038/.

16 St^b

## Issue Four: What remedies are available to the parties?

It follows therefore that the Counterclaim fails except for the deposits which were not accounted for, and the suit succeeds, with the following orders:

- l. The personal guarantees signed by the l't and 2nd Defcndants are valid. - 2. The Defendants are liable to pay UG){ 258,279,038/ which is the outstanding sum. - 3. The Plaintiff sold off the mortgaged properties and propcrly accounted for the sale proceeds. - 4. Costs of the suit are awarded to the Plaintiff.

fr.l, 1\* I

HON. LADY JUSTICE ANNA B. MUGENYI DATED L.1.r...1..