Western Highland Creameries Limited and Another v Stanbic Bank Uganda Limited and Another (Civil Appeal 81 of 2014) [2023] UGCA 267 (13 October 2023)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

fCoram: Egonda-lt{tende, Kibeedi & Gashirabake, JJA)

Civil Appeal No. 8 | of 2014

(Arisingfrom High Court (Commercial Division) Civil Suit No. a62 of 2011)

### BETWEEN

| | Western Highland Creameries Ltd :::::::::::::::::::::::Appellant | No. I | |-----------|------------------------------------------------------------------|------------| | Lee Ngugi | | llant No.2 |

### AND

Stanb i C B ank U ganda Ltd ----:::::: :::-:::::::::::Re SpOndent NO. <sup>I</sup> MiChael MaWanda:::::::::::\_:::::::::::::::----ReSpOndent NO. <sup>2</sup>

(On appealfrom the Ruling of High Court of Uganda (Commercial Division), [Madrama, JJ @s then he was) delivered on 25't' October, 2012)

# JUGDMENT OF FREDRICK EGONDN. NTENDE. JA

### Introduction

- tl] The major question for consideration on this appeal is what period of limitation applies to the action filed by the appellants in the court below. - 12) It is the contention of the appellants that this was an action for recovery of land or its value and sections 5 and 18 of the Limitation Act applied to it.

Page 1 of 16

The applicable limitation period would be 12 years and the action was brought within time. [t was not barred by statute. The respondents contend to the contrary that this is not an action for recovery of land and that it is barred by statute.

### Brief Facts of the Case

- t3] The appellants filed an action against the 2 respondents and Alpha Diary Products (U) Ltd, defendant no.3, in the court below, for orders and declarations that the enforcement and crystallisation of the debenture and mortgage on the land and property comprised in LRV 2849 Folio 23, Plot 4- 8 Ntengye Road, Mbarara, was fraudulent and illegal; the appointment of the respondent no.2 by the respondent no.l as a receiver for the respondent no.l was fraudulent and illegal and the sale and transfer of the suit land by the respondent to the defendant no.3, was fraudulent and illegal. They sought recovery of physical and vacant possession of the suit land, plant and business comprised in LRV 2849 Folio 23, Plot 4-8 Ntengye Road Mbarara; reinstatement of the appellant no.1, as a registered proprietor; and cancellation of the defendant no. 3's name from the land register and ceftificate of title. Alternatively, the appellants sought restitution and restoration of the appellants' suit land, plant and business at its current market value; compensatory damages for economic, financial loss of profits and investment return from the date the suit land, plant and business was taken over by the respondent no. 2; aggravated, punitive and exemplary damages; interest at20Yo per annum and costs. - t4l The respondent No.l denied the allegations of breach of fiduciary duty, illegality, and loss. Respondent No. 1 contended that the suit was barred by law of limitation and disclosed no cause of action against it. The respondent No.2 contended that the suit against him was bad in law, frivolous, vexatious, barred by law and or does not disclose a cause of action against him. The respondents prayed for dismissal of the suit.

- t5] At the trial the parties agreed to address court on the preliminary issues of whether the appellants' action raised a cause of action against the respondents and whether the suit is barred by law of limitation. - t6] The leamed trial Judge in an extensive ruling held that the appellants' action was in substance not for recovery of land. Section 5 of the Limitation Act did not apply to this action. He determined that the action was for breach of contract as against the 2 respondents. He held that the limitation period was 6 years for such actions. The appointment of the respondent no.2 as receiver and the sale of the property in question to defendant no.3 was in 2001 and the actions were brought l0 years later. The learned judge held that the appellants' action had been filed out of time. He dismissed the same with costs. - 17) Dissatisfied with the decision of the leamed trial judge, the appellants have appealed on the following grounds:

'l. The learned trial judge erred in law and fact when he decided that declarations sought by the appellants in the suit (HCCS No. 462 of 201 l) were founded on contractual rights or obligations.

2. The learned trial judge erred in law and fact when he held that the appellants / plaintiffs' action was found on the rights and obligations expressly contained or implied in the contract between the parties and was barred by law of limitation having been brought more than 6 years from the date the cause of action arose.

3. The learned trialjudge erred in law and fact when he held that an action for compensation/market value of the land and damages is founded on the rights and obligation existing between the parties as spelt by the mortgage deed, debenture and further charge.

4. The learned trial judge erred in law and fact when he held that the appellants 'action was under Section 178 of the Registration of Titles Act, Cap 230 for compensation or damages and was thus barred by Section 187 of the Registration of Titles Act, Cap 230 which prescribed a period of 6 years from the date the cause of action arose.

Page 3 of 16

5. The learned trialjudge erred in law and fact when he dismissed the suit and upheld preliminary objection on time limitation.

6. The learned trial judge erred in law and fact when he held that the appellant's equity of redemption was extinguished by the transfer of the suit property to Alpha Diary Products (U) Ltd in August. 2001 .

7. The learned trial judge erred in law and fact when he held that Section 176(a) of the Registration of Titles Act was not available to the appellants as far as the equity of redemption was concerned.

8. The learned trial judge erred in law and fact when he held that the appellants cannot have a right of action fbr recovery of land against the I't and 2nd respondents in terms of Section 176 of the Registration of Titles Act, Cap 230.

9. The learned trial judge erred in law and fact when he misinterpreted and failed to give effect to the provisions of Order 2 Rule 9 of the Civil Procedure Rules.

10. The learned trialjudge erred in law and fact when he failed to find that the alternative prayer restitution of plaintiffs' land al a fair market value is an action for recovery of land issued when the land in question cannot be physically recovered.

ll. The learned trial judge erred in law and fact when he framed the narrower question of whether a substitute of the prayer for recovery fbr land by a prayer for compensation/damages or the fair value of the land sold is cause of action construed ejusdem generis as an action fbr the recovery of land which issue he did not determine.

12. The learned trialjudge erred in law and fact when he failed to find that the alternative remedy of restitution is recovery of land in monetary equivalent.

13. The learned trialjudge erred in law and fact when he failed to find that the appellants' cause of action against the l't and 2nd respondents was for recovery of land that was transferred through fraud by the respondents to the 3'd defendant.

14. The learned trialjudge erred in law and fact when he relied on the absence of the registered proprietor on the suit property viz Shumuk Properties Ltd party to extinguish the cause against the respondents.

15. The learned trialjudge erred in law and fact when he failed to give effect to order I rule 9 of the Civil Procedure Rules to cure the absence of Shumuk Properties Ltd i.e. the registered proprietor as a party to the suit.

16. The learned trial judge erred in law and fact when he determined the appellants' suit for recovery of land without hearing evidence in support and against the appellants' suit,

17. The learned trialjudge erred in law and fact when he held that an action for compensation of market value of the land sold way back in 200 I is not an action for recovery of land as far as the right of redemption is concerned.

18. The learned judge erred in law and fact when he held that the actions against the I't and 2''d defendants can only raise from the relationship of the lender/borrower governed by the security instruments and a cause of action founded in contract.

19. The learned trialjudge erred in law and fact when he held that there must exist a right to bring an action for declaratory judgment.

20. The learned trialjudge erred in law and fact when he held that the suit had been established as barred by the law of limitation whereas not.'

t8l The respondents opposed the appeal

### **Submissions of Counsel**

- At the hearing, the appellants were represented by the Mr. Muhammed $[9]$ Mbabazi. The respondent no.1 was represented by Mr. Pope Ahimbisibwe and the respondent no.2 was represented by Ms. Patience Niwagaba. - Relying on Sections 1, 3,5,6,8,11,13,16 and 19 of the Limitation Act, $[10]$ counsel for the appellants submitted that a suit for recovery of a mortgage debt is an action for the recovery of land with a limitation period of 12 years. He referred to Section 12 of the Mortgage Act for the submission that actions to enforce the mortgagee's right under a mortgage or the mortgagor's right of redemption or interest on the sale proceeds of the security are considered as actions for recovery of land subject to a 12 years' limitation period. - Counsel for the appellants contended that the trial judge did not consider the $[11]$ substance of the appellants' cause of action in the pleadings and annexures. He asserted that the trial judge found that an action for compensation /market value of land sold way back in 2001 as pleaded is not an action for the recovery of the land and an action for compensation /market value of the land and damages is founded on rights and obligations existing between the parties as spelt out by the mortgage deed, debenture, and further charge. - Counsel for the appellant argued that the alternate prayer for a fair value of $\lceil 12 \rceil$ land sold is an action for recovery of land. Counsel was of the view that an alternate order for recovery of fair value of land is granted where the relief of recovery of land is not granted. He referred to Fredrick J. K Zaabwe v Orient Bank & 5 Ors [20007] UGSC 21, Kyagulanyi Coffee Ltd v Francis Senabulya [2010] UGCA 36, Edward Musisi v Housing Finance Co(U) Ltd, Speedway Auctioneers [2010] UGCA 35 and John W. Katende v The Uganda Land Commission High Court Civil Suit No. 573 of $2015$ (unreported). - Counsel for the appellants submitted that the trial judge erred in law when he $[13]$ reduced the cause of action to ejectment under Section 176 of the

$\tau^{\frac{2\kappa}{\kappa}}$

Registration of Titles Act. He argued that the action for recovery of land is beyond ejectment as provided under Section of 176 of the Registration of Titles Act which syncs with interpretation of action for recovery of land under the Limitation Act Cap 80. Counsel for the appellants submitted that an action for recovery of land is equivalent to an order declaring that the plaintiff is entitled as against the other party to the land, property or its possession. He relied on Christopher Sebuliba v Attorney GeneraUlgg2l UGSC 6.

- [14] Counsel for the appellants argued that it is important for court to consider the substance of the action for recovery of land rather than the nomenclature of the cause of action. He relied on Hwan Sung Ltd v M and D Timber Merchants and Transporters Ltd Court Civil Appeal No. 02 2018 Justine E. M. N L and Stirl C Ltd v his submission that the plaint was not time barred. He contended that the certificate of title affached on the appellants pleading showed that the lease was for 20 years commencing in 2006 and it was the basis of their claim for ownership. - ll5l He relied on General Parts(U) Ltd & v Npart 120021 UGSC l0 and Section 5 and l8 (4) of the Limitation Act for his submission that actions founded on a mortgage which include recovery of the mortgage debt, foreclosure and redemption are not regarded as causes of action in contract but rather recovery of land subject to a l2-year limitation period. He contended that since the appellants asserted that that their rights had been violated by the respondents the substantive cause of action was recovery of land comprised in LRV 2849 Folio 23 which was illegally transferred. He further contended that the declaratory orders sought were for recovery of land. He submitted that the trial's judge findings and decision on whether to grant the declaratory order was misdirection and an error in law. He referred to Maurice Sebowa v DFCU Ltd [2014] UG Comm C 15. Gladys Nyangire Karumu & Ors v DFCU Leasing Company Ltd [2003] UG Comm C 89 and Uganda Broadcasting Corporation v Sinba (K) Ltd & Ors [2014] UGCA l2

- [16] He asserted that the appellants sought for a declaration that the sale of the suit properff by the respondent no. 2 to defendant no.3 was fraudulent and illegal. He submitted that the illegality committed by the respondents of disposing of the appellants' factory and plant overrides the preliminary objection and court ought to have investigated the allegation. He relied on Asuman Mueenyi v Buwule t20l91UGSC 220, and Agnes Bainomugisha v DFCU [20] ll UGCommC 206 . - |7) Counsel for the appellants argued that the failure to add Shumuk (the current registered proprietor) as a party to the suit did not extinguish the cause of action of fraudulent sale and transfer of the suit property which the appellants had against the respondents. He submitted that the trial judge ought to have given the appellants an opportunity to present their case in a full trial and thereafter determine issues arising rather than dismissing the same on preliminary objection. Relying on Fredrick J. K Zaabwe v Orient Bank & 5 Others f200071 UGSC 2l and Attorney General v The East African Law Societv East African Court of Justice [2015] EACJ 65 he submitted that the trialjudge ought have administered substantive justice by giving the appellant an opportunity to prove the allegations of illegality rather than dismissing the appellants case on a preliminary point of law. - [18] Relying on Ranchhobhai Shiv Abhai Patel Ltd & Anor v Henry Wambuea &Anor Supreme Civil Appeal No. 6 of 2017 (unreported) and Saul Kisiribombo Rumanda v Emmv Tuuwiae & 6 Others l-2020] UGSC 43, he submitted that the provisions of Section l9 of the Limitations Act applied to the cause of action which the appellants have against the respondents. He argued that the respondent no.l breached the fiduciary duty when he instructed the respondent no.2 to sell the suit properfy to the defendant no.3. - [19] Counsel forthe appellants argued that the trial judge got involved with the merits of the suit while dealing with a preliminary objection when he held that the equity of redemption had been extinguished upon sale of the suit property. He relied on Edward Musisi v Housinq Finance Co. (U) Ltd & Speedway Auctioneers l-2010-l UGCA 35 where it was held that the rule of equity is for protection of a mortgagor against unscrupulous or unfair

treatment by a mortgagee. He submitted that had the trial judge considered the position in the above judgment, he wouldn't have found that the appellant had lost the equity of redemption. He contended that the suit is an action for recovery of land which was filed on 7th December 2011 before expiry of 12 years from 27th August, 2001 when the respondent no.2 disposed of the suit properff. He prayed that the appeal be allowed.

- [20] In reply counsel for the respondent no.l set out the duty for the first appellate court as laid out in Kifamunte Henry Vs U n9981 UGSC 20 Counsel for the respondent no.l submitted that the annexures to the plaint namely; - the mortgage deed, debenture and transfer showing how the mortgaged property was transferred by the respondent no.2 in his capacity as a receiver / manager to the defendant no.3 leaves no doubt that the appellants' claim was an action for breach of contract. He submitted that the trial judge properly found that the appellants' action was an action premised on the rights and obligations of the parties arising from the mortgage deed, the debenture and further charge barred by law of limitation having been brought outside the period of six (6) years under Section 3 of the Limitation Act. - l2ll Counsel for the respondent no.l submitted that the appellants' claim was purely arising out of the alleged breaches of specific and implied terms of the mortgage deed, the debenture and further charge. He submitted that the trial judge properly found that the actions of the respondents can only arise from the relationship of the lender/borrower governed by the security instruments executed by the parties. He submitted that the alleged breach of wrongful appointment of the receiver, failure by the respondentno.2 to value the suit land, failure to sustain the appellant no.l as a defaulter and the breach of a fiduciary duty are founded in contracts in form of mortgage and debenture deeds. - l22l Counsel for the respondent no. 2 submitted that the trial judge found that where an action for recovery of land includes an action for redemption it was not available to the plaintiff since the mortgaged property had been sold and transferred by the respondent no.2 to a third party. He argued that the equity

Page 9 of 15 of redemption had been extinguished by transfer of the property to Alpha Diary Products (U) Ltd in August,200l who in turn sold and transferred the said land to Shumuk Properties Limited who was not a party to the suit.

- 123) He argued that Section 19 of the Limitation Act is inapplicable as it addresses actions by beneficiaries under a trust yet the relationship between the parties was contractual between lender and borrower. He submitted that if there was a trust relationship, it was between the appellants and the respondent no.2 as a receiver. Counsel for the respondent no.1 submitted that actions only lies against the respondent no.2 for breach of powers under the mortgage deed which are founded on contract or statutory provisions in the Mortgage Act which would be an action in tort. - 124) Counsel for the respondent no.l contended that the suit land was transferred and registered in the name of Shumuk Properties Limited. He argued that an action for recovery of land could only lie against the registered proprietor. He submitted that the trial judge rightly held that an action for recovery of land lies against the transferees in title. - 125) In reply, counsel for the respondent no.2 submitted that trial judge properly directed himself on the facts and law and came to a proper conclusion that the appellants' plaint discloses no cause of action against the respondents. She submitted that the case of L vM D Tim Merchan and Transporters Ltd (supra) is distinguishable from the instant case where the certificate of title was registered in the names of Shumuk Properties Limited which was a not parfy to the suit. - 126l She argued that the trial judge did not consider the nomenclature or form of the cause of action when he formed the question whether an alternate prayer for recovery of land by a prayer for compensation /damages or the fair value of the land sold is a cause of action construed ejusdem generis is an action for recovery of land. She contended that the submission that it is not true that where recovery of land is not granted an alternate order for recovery of the fair value of the land should be granted. She submitted that court considers

the circumstances of each case. She argued that the cases cited by counsel for the appellants are not applicable to the instant appeal.

- l27l Counsel for respondent no.2 submitted that the trial judge rightly found that an action for compensation /market value of the land sold way back in 2001 as pleaded is not an action for recovery of land as far as the right to redemption is concerned. She submiffed that the appellants' claim for recovery of land could not be sustained since the case related to a mortgage debt as the cause of action. - [28] Counsel for the respondent no.2 submitted that trial judge properly addressed the issue of declaratory relief. She argued that the trial judge rightly stated that it may be inequitable to maintain an action for declaratory judgment for the case of establishing whether the rights had been infringed in the past when the cause of action had been extinguished by law of limitation. Counsel further contended that the trial judge could not determine the allegations of fraud when the plaintiffs' suit was out of time. She submitted that the trial judge rightly stated that the time bar is substantive defence to any action. - l29l Counsel for respondent no.2 submitted that the law allows determination of cases on preliminary objections. She argued that the question as to whether the suit discloses a cause of action must be determined upon perusal of the plaint together with anything attached to it and upon the assumption that any express or implied allegations of fact in it are true. Counsel submitted that the trial judge rightly found that the cause of action in the plaint against the appellants was barred by limitation. She argued that a receiver is different from a trust and as such Section l9 of the Limitation Act cannot apply to the instant case. She contended that the trial judge rightly held that the suit against the respondent is barred by statute and prayed that we dismiss the appeal with costs.

### Analysis

- [30] As noted at the beginning of this judgment the essential question to be determined is whether this action is governed by sections 5 and I or 18 of the Limitation Act, or not, despite the prolix, numerous and repetitive grounds thrust on this court by the appellants. - [31] Section 5 of the Limitation Act provides a period of 12 years as the period within which an action for recovery of land may be brought, failing which such action is barred. Section l8 of the Limitation Act permits the bringing of an action for recovery of the principal sum of a mortgage or the proceeds of sale of mortgage properfy within 12 years after which it is barred. - 132) The properfy in question in this matter was transferred to defendant no. 3 on 27th August 2001. [t was again transferred to the current owner, Shumuk Properties Ltd of PO Box 6563 Kampala, on 7'h October 2010. This is evident from annexture F to the plaint which is a copy of the certificate of title to what was the mortgaged property. Shumuk Properties Ltd, the registered owner at the time the suit was filed, was not made a party to this action. - [33] No action was brought against the current registered owner and the person presumably in possession of the property that had initially been mortgaged by the appellant no.l to the respondent no.l. The question that arises is whether an action can be brought for recovery of land, cancellation of title and the re registration of the title to the suit land into the names of a plaintiff against persons who are neither the registered proprietors of the land in question or in possession of the same? - l34l In my view the answer would be clearly not. Such registered owner's title is unimpeachable, vide secti on 176 of the Registration of Titles Act, except on a limited number of grounds set out therein, which have not been raised in the case before us. It follows that if the registered owner of the property in

question was not made a party to this action, in substance, it cannot be an action for recovery of land.

$\cdot$

$\cdot$ .

- The appellants contended that it was still open to them to add the registered $[35]$ proprietor of the property as a party to the action in the court below and that therefore this should not have been taken against them. Of course, it is possible that they could have added the registered proprietor. But the point is that they had not added the registered proprietor by the time the matter came for consideration by the court. - $[36]$ The appellants contend that they prayed for the value of the property as well as damages that they suffered at the hands of the respondents, and this should be treated as equivalent to an action for recovery of land. Section 5 of the Limitation Act specifically refers to actions for 'recovery of land' and not recovery of the value of the land or damages. Recovery of land must be given its ordinary meaning without adding or subtracting therefrom. - I agree with the judge below that the appellants' action in the court below $[37]$ was not an action for recovery of land. It therefore does not benefit from the provisions of section 5 of the Limitation Act. Neither was it an action for recovery of the mortgage debt nor the proceeds of sale of land to be covered by section 18 of the Limitation Act. Needless to add this was not action for foreclosure or an exercise of the equity of redemption. As the trial judge held there was nothing any longer to redeem by way of equity of redemption. - [38] I again agree with the learned judge below that in substance this action can only be grounded in the agreements between the parties for which the appellants are alleging that the respondents breached. It would follow therefore that the period of limitation applicable is the one applicable to contracts pursuant to section 3 of the Limitation Act which is a period of 6 years.

- [39] The acts complained of against the respondents were committed in 2001, the last being the sale and transfer of the mortgaged property on 27th August 2001 to defendant no.3. The time would have started to run from 27th August 2001 with 6 years elapsing on 281h August 2007. This action was brought in 20ll,long after the period within which it should have been brought had expired. - [40] Inlightoftheforegoing, Iwoulddismissgrounds 1,2,3,4,5,6,7,8, 10, ll, 12, 13, 74,16,1 7, 18 and 20 for lack of merit.

### Ground 9 and 19

[41] The complaint under these grounds is that the learned judge did not give effect to Order 2 rule 9 of the Civil Procedure Rules. It states,

> 'No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought by the suit, and the court may make binding declarations of right whether any consequential relief is or could be claimed or not.

- 142) The learned judge held that this rule is inapplicable where the subject of the main suit is barred by the Limitation Act. I am unable to fault him in this regard. A court must first be seized with the jurisdiction to entertain a matter and be able to provide the relief permitted under the aforesaid rule. Where on the facts put forward in the plaint and the law a suit is barred from being entertained by court on account of limitation this rule would not be applicable. - l43l I would dismiss grounds 9 and l9 for lack of merit.

## Ground 15

144) The complaint under this ground is that the learned trial judge failed to apply Order 1 rule 9 of the Civil Procedure Rules to cure the absence of Shumuk Properties Ltd who was not a party to the suit. I will set out the said rule in full.

#### '9. Misjoinder and non-joinder.

No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.'

- [45] The learned trial Judge found that the absence of the registered proprietor of the suit land at the time the plaint was filed demonstrated that this was not an action for recovery of land. The person whom the land would be recovered from was not a party to the action. Conversely the respondents no.1 and no.2 and the defendant no.3 were neither in possession nor the registered proprietors of the suit land. The probable viable claim against the respondents would be a claim for damages were it not to be barred by the Limitation Act. - 146) The leamed trial judge was obliged to determine the preliminary point of law raised in this matter given that this preliminary point had the capacity to determine the whole action. The rights, interests, and obligations of the parties before the court were the subject of the preliminary point of law. The learned trial judge found that the appellants' suit was barred by law, rather than defeated by misjoinder or non-joinder of any party. I am not persuaded that he made any error in so doing. - 147) I would dismiss ground l5 for lack of merit

### Miscellaneous Application No.332 of 2019

[48] This was an application for further security for costs by the respondents against the appellants. It was called after the appeal had been heard. The court reserved its ruling on the matter.

149) I take the view that since the appeal has been heard and now determined this application was overtaken by events. I would dismiss it with no order as to costs.

### Decision

- [50] As Kibeedi and Gashirabake JJA, agree this appeal is dismissed with costs. - [51] So is the application for security of costs but with no order as to costs

## Other Remarks

152) I regret that the judgment of this court in this matter has taken such an inordinate length of time before it has been delivered. The Constitution imposes a much higher standard that we must obey. I apologise to the parties and their representatives for this breach. My hope and resolve is that this must not happen again.

Signed, dated, and delivered at Kampala tfri, kh, of <sup>2023</sup>

Ntende

Justice of Appeal

# THE REPUBLIC OF UGANDA

# tN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Egonda-Ntende, Kbeedi & Gashirabake, JJA)

Civil Appeal No. 81 of 2014

## BETWEEN

1. Western Highland Creameries Ltd <sup>l</sup> 2. Lee Ngugi l= ========AppellantS

AND

- 1. Stanbic Bank Uganda Ltd l - 2. Michael Mawanda Respondents

## JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI. JA

I have had the opportunity of reading in draft the judgment prepared by my brother, Egonda-Ntende, JA, I concur and I have nothing useful to add.

hory ot <sup>2023</sup> and dated at Kampala this I

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA

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

(Coram: *Egonda-Ntende, Kibeedi & Gashirabake, JJA)*

#### CIVIL APPEAL NO. 81 OF 2014

(Arising from High Court (Commercial Division) Civil Suit No. 462 of 2011)

<table>

Western Highland Creameries Ltd.:::::::::::::::::::::::::::::::::::: Lee Ngugi:::::::::::::::::::::::::::::::::::

#### **AND**

Stanbic Bank Uganda Ltd.:::::::::::::::::::::::::::::::::::: **Michael Mawanda::::::::::::::::::::::::::::::::::**

### **JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA.**

I have read in draft the judgment of Hon. Justice Fredrick Egonda-Ntende, JA.

I concur with the judgment and the orders proposed and I have nothing useful to add.

Dated at Kampala the $3^{th}$ day of $9^{th}$ $3^{th}$ ....................................

Christopher Gashirabake JUSTICE OF APPEAL.