[1998] UGCA 37

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 24 OF 1996

#### HON. S. T. MANYINDO, D. C. J., HON. J. P. BERKO, J. A. CORAM: & HON. A. TWINOMUJUNI, J. A.

GENERAL INDUSTRIES (U) LTD....................................

#### **VERSUS**

## NON-PERFORMING ASSETS RESCOVERY TRUST...................................

#### Appeal from the Judgment of The None – Performing Assets Recovery Tribunal of 13^th August, 1996.

#### Judgment of J. P. Berko, J. A.:

The appellant sued the respondent in The Non – Performing Assets Recovery Tribunal (hereinafter called simply as The Tribunal) for declaration that the appellant is not indebted to the respondent in the sum of Shs 700 million or any part thereof, an order canceling the said mortgage, an order canceling the sale, if any has taken place, general damages and costs. The Tribunal found that the appellant has failed to establish its claim and dismissed the suit with costs in favour of the respondent.

The material plea in the plaint is the $6^th$ which alleges that there never was any consideration for the mortgage executed on or about the 12^th August 1991 in which the appellant and Haji Haruna Semakula (PW 1) purported to acknowledge that a sum of Shs. 700 million had been lent by the Uganda Commercial Bank to the appellant when in fact no such sum or any part thereof had been so lent to the appellants.

The material facts bearing on this question may be briefly stated. The appellant, General Industries Ltd, is a limited Company. The respondent is a statutory body created by the Non $-$ Performing Assets Recovery Trust Statute, 1994 which object was to provide expeditious machinery for the recovery of certain loans and investments made by The

$\mathbf{1}$

Uganda Commercial Bank whose recovery is over due. I shall henceforth refer to the Statute as Statute No. 11 of 1994.

On 27^th November 1986, Haji Haruna (PW 1) together with Mariam Asiimwe Semakula and Osman Semakula incorporated a Company called General Parts (U) Ltd. Haji Haruna Semakula is the Managing Director and the brain behind the Company. General Parts (U) Ltd. opened an account with the Uganda Commercial Bank (U. C. B.) some time in 1988. U. C. B. granted an overdraft facility of Shs. 87 million to General Parts (U) Ltd. on 3.3.89 under certain arrangement to enable General Parts to clear their goods, pay local supplies and clear their overdraft with the Standard Chartered Bank. The facility was said to be a "fluctuating overdraft". General Parts operated the overdraft till 1990 when they had problems. General Parts opened Letters of Credit (LCS) to acquire goods under a programme known as Special Import Programme (SIP) 1 and 2. The goods were expected to arrive in Uganda within one month, but they do not. Consequently, General Parts had financial problems. They could not meet their financial obligations. U. C. B allowed General Parts to overdraw their account further by issuing cheques. This had the effect of swelling the overdraft of Shs. 87 million already granted. General Parts and PW 1 charged some of properties as security for the UCB loan.

At the time when General Parts were in financial crisis, Haji Haruna Semakula (PW 1), General Parts as a legal entity, Mariam Asiimwe, Janat Semakula, Omar Semakula, Asha Semakula and Osman Semakula incorporated the appellant Company for the purpose of assembling and manufacturing bicycles. This task was to be undertaken in association with the Bicycle Corporation of India and Pakistan Engineering Corporation. For the enterprise, the appellant needed a lot of money. So it sought a loan of USD 2.65 million from the Uganda Development Bank (UDB) and USD 3.1 million from The Islamic Development Bank. The appellant paid in all Shs 31 million as commitment fees towards the project. However, it needed the cooperation of UCB before UDB could grant the loan of USD 2.65 million.

Because the General Parts' loan/overdraft had become huge (Ug. Shs. 1,759,577,365) by 1991, there were negotiations between UCB on one side and General Parts and the appellant on the other side, to reschedule the repayment of the loan. PW 1 was the principal negotiator for both the General Parts and the appellant. In the end it was agreed that the debt be split into two parts of Uganda Shs. 1,059,577,365/= and Shs. 700 million - so that General Part would remain liable for Shs.

$\overline{2}$

$1,059,577,365$ while Shs. 700 million was inherited by the appellant. General Parts will continue to pay the monthly installment of 38 million Shs. plus interest on the Shs. $1,059,577,365/$ together with monthly interest of Shs 22.5 million on the Shs.700 million. This arrangement was subject to General Parts furnishing additional securities.

A mortgage, Exh P 4, was on 12.8.91 executed between UCB as the Lender and General Parts, the appellant and PW 1 as mortgagors charging certain six properties as securities for the re-payment of the Shs. 700 million In addition PW 1 executed two powers of attorney on $12/7/91$ (Exh D 10) and on 7.8.91 (Exh D 11) authorising the appellant to borrow money on the security of certain properties mentioned in those Again on 16.7.91 PW 1 and Mariam Asiimwe executed powers. guarantees (Exh D 12 and D 13 respectively) in which they undertook to repay any loan given to the appellant by U. C. B.

The repayment by the appellant of the Shs. 700 million with interest was to begin on 1.1.93. There was default. By operations of the provisions of Statute 11 of 1994, U. C. B. assigned the loan of Shs 700 million to the respondent who eventually demanded for repayment. When the appellant failed to pay the respondent advertised the appellant's secured properties for auction on 20.6.96 to realise the Shs. 700 million.

This was apparently in exercise of the power of sale contained in Exh $P$ 4. The appellant instituted an action in the Tribunal to prevent the sale of the properties and to declare that the appellant is not indebted to the respondent in the sum of Shs. 700 million or any part thereof and for an order canceling the mortgage.

The Tribunal, in dismissing the appellant claim, proceed on the basis that UCB provided consideration for the Shs.700 million loan arrangement and that the appellant received consideration from UCB. This was the subject of the first ground of appeal.

Before us, it was argued that there were two aspects of consideration that ought to have moved from UCB to the appellant. The first was that the Shs.700 million was to be transferred from the Account of General Parts (U) Ltd to the account of the appellant to offer relief to General Parts (U) Ltd. This relief would mean that General Parts (U) Ltd. would continue to pay only the interest on the Shs.700 million. It was said that the respondent did not furnish that part of the consideration as the respondent never gave the General Parts (U) Ltd. any relief.

$\overline{3}$

I think this is a distortion of facts on record. In cross-examination PW 1 made some pertinent admissions on this issue. The first admission can be found at page 98 of the record where PW 1 said:

"General Industries assumed the loan of Shs. 700 million into a long term liability which would be paid late. Repayment was to start in December 1993 because the bicycle project would have started operating". Then at page 99 PW 1 said "By Exh P 3, the outstanding" loan was split into two parts for General Parts and General Industries. Uganda Commercial Bank was interested in repayment of Shs. 700 million by General Industries which was by then operating an account with the Uganda Commercial Bank. The account was not operating well.

In short term, General Parts would benefit because part of the loan would be off-loaded to General Industries. General Industries assumed liability for Shs 700 million because it would receive assistance from Uganda Commercial Bank. Further General Parts would benefit because there would be new terms of repayment of General Parts Loan. General Industries assumed Shs 700 million liability so as to commit Uganda Commercial Bank. Mortgage was executed partly to secure Shs 700 million and partly other things to come."

The above evidence left me in no doubt that the General Parts' Account had in fact been treated in the way alleged and that the Shs. 1, 759, 577, 365/ $=$ owing on it were divided as stated with the account of General Parts Ltd. being debited with only Shs.1,059,577,365/ $=$ and the remaining Shs.700 million debited to the account of General Industries. This much was admitted by PW 1.

In re-examination he was asked about the benefit the appellant got from the arrangement. His reply was: "New terms of repayment meant transferring Shs. 700 million from General Parts' account to General **Industries accounts".**

His claim that this was not done cannot be true. The evidence of PW 2, the former Accountant of General Parts shows that the split was done in July 1991. So that Shs. 700 million was transferred to General Industries Ltd, thus leaving only Shs. 1,059,577,365/ $=$ on the Account of General Parts. The continued charging interest on the Shs. 700 million to the Account of General Parts was one of the conditions of the rescheduling arrangement. This is clear from Exh P 2 and P3.

$\overline{4}$

I am satisfied that the Shs.700 million was in fact transferred from the Account of General Parts to the Account of the appellant to offer relief to General Parts. Consequently I do not find any merit in that aspect of the appellant's complaint.

t

The other aspect of the consideration was that UCB was to cooperate with UDB in the loan facility for the bicycle project of the appellant. That co-operation would involve UDB sharing the Securities held by U. C. B. The complaint of the appellant is that UCB refused to share the securities with UDB and so the bicycle project failed. The tribunal was attacked for accepting the respondent's contention that the Bicycle project was never part ofthe bargain.

The appellant's argument that the bicycle project was part of the bargain was based on Exh P 2 and D8. Exh P 2 was a letter {iom the General Manager of U. C. B. to IWs. Sebalu & Lule Advocates who were advocates ofGeneral Parts, advising them that the Board ofDirectors of the Bank had approved the restructuring and rescheduling of General Parts facilities. Paragraph 5 of the letter contains the following statement

"The Company must keep the Bank informed of Drogress of the bicycle proiect". The above statement cannot mean that the bicycle project was part ofthe bargain for the restructing and rescheduling ofthe debit burden of General Parts. The evidence from PW I was that UDB was supposed to finance the bicycle project. The funds from UDB came to General Parts through UCB. That was why UCB wanted to know how the project was progressing. PW I admitted in cross-examination that he could not see any portion of the original proposal which refers to the bicycle project.

It is not true that UCB agreed to share with UDB the securities it held from General Parts. It was rather UDB that inquired frorn UCB whether UCB would participate in the bicycle project by financing at least the initial working capital and also whether UCB could share on pari-passu basis, the securities already mortgaged to them. This is plain from Exh D 15 which was a reply to Exh D8. The relevant part is as follows:

"Re: Bi cle Pro ect for NI/s. General Industries Lrd

We would also like to know whether UCB will narticinate in the proiect by financine at least its initial

# working capital requirements estimated at USD 800,000, and whether UDB can share, on pari-passu basis, the securities already mortgaged to you".

There is no evidence on record that UCB replied to Exh D 15 and agreed to share the securities with UDB. The combined effect of Exh D8 and 15 clearly show that UCB never undertook to share securities with UDB.

It was therefore wrong for the appellant to contend that refusal of UCB to share the securities with UDB resulted in the failures of consideration.

Looking at the documentary evidence and the history of the restructuring and rescheduling arrangement, I cannot invent any rational theory by which to account for appellants agreeing to accept part of the debt of General Parts except that it was for the purpose of benefiting General Parts by procuring for it time to pay the debt. To say otherwise appears to me inconsistent with human nature and the whole character of the transaction. It may be that there was no evidence that the appellants actually used words indicating that it would be liable if UCB would give But, except on the theory that such was the General Parts time. understanding between the parties, the appellants conduct in signing Exh P 4 is inexplicable. I think that there is evidence of forbearance by UCB at the request of the appellant.

Then the question arises whether that would constitute sufficient consideration. In my view the question resolves itself into that of deciding how far it was open to the Tribunal to supply by inference from facts proved or admitted a material fact that was not so proved. In effect, did the circumstances known to the Tribunal justify the inference that when the appellant gave the respondent (UCB) its undertaking to be responsible for part of the debts of General Parts, it obtained consideration from them in return in the form of something that it wanted them to do or obstain from or to promise? There is no doubt that it is open to a court to find a fact by inference in this way without having direct proof before it and the giving of consideration is sometimes so found. See Crears v Hunter (1887) 19 Q B D 34. The giving of time is only one of the many kinds of what the law calls consideration. **Currie** and others v Misa $(1873 - 75)$ 9 – 10 Exh 153.

In this case the period for the repayment of the loan of Shs.700 million which was due immediately, was postponed to the $1/1/93$ . It was because of the appellant's agreement to have the Shs.700 million

transferred to its account that U. C. B. agreed to defer the repayment. The forbearance was sufficient consideration.

In my view UCB provided consideration for the Shs. 700 million loan arrangement and the Tribunal was right in so holding. I do not find any merit in grounds 1 and 6.

In Ground 2 it was alleged that the Tribunal erred in law in holding that the contested mortgage was a legal mortgage envisaged under S. 9 of the Mortgage Decree No. 17 of 1974. The reason for saying so was that the mortgage Deed Exh P 4 did not reflect the intention of the parties. According to the appellant Exh $P$ 2 and $P$ 3 read together with other documents show clearly what kind of relationship the parties wanted to enter into in their original negotiation. It was said that the parties were interested in:-

(a) Transfer of liability,

(b) Rescheduling of liability.

But none of the above matters was incorporated in $Exh P 4$ .

To appreciate the force in the argument, perhaps, it would be necessary to set out the contents of Exh p 2 and P3 in full. As I have said elsewhere in this judgment, Exh P2 was from UCB to M/s. Sebalu & Lule Advocates who were the advocates of General Parts (U) Ltd. and is as follows:

## "Dear Sirs, **General Parts (U) Ltd – Corporate Branch Debit Balance** Shs 1,606,908,346/= as at 18.4.91

We refer to your letter of 22^nd April 1991 and the audience your clients had with the Board of Directors of the Bank on 22^nd May 1991 on the state of their account and are pleased to advise that subject to the terms and conditions stipulated here in bellow, the Board has approved the restructuring and rescheduling of their facility of Shs. $1,606,908,346/=$ as follows:

- Shs. 906,908,346/= shall be rescheduled such that $(a)$ monthly instalments of a minimum of Shs. 38 million plus interest of Shs. 28 million shall be paid with effect from $1^{st}$ July 1991 until the amount is paid in full. - $700,000,000/$ = shall be paid The balance of Shs. $(b)$ immediately after settlement of the amounts stated in paragraph (a) except that the monthly interest of Shs. 22.5 million accruing on that amount shall be paid simultaneously with the instalments in paragraph (b) above **Terms and Conditions:-**

- $(1)$ in addition to the Debentures and mortgages already executed by your clients, The Company must lodge additional securities, properly valued to cover the entire facility. This should be done immediately. - The Company must submit monthly stock statements to $(2)$ the Bank with effect from 1^st July 1991. - The Company should insure all its stocks and have the $(3)$ **Bank's interest noted.** - The Company shall ensure that all Company Directors $(4)$ execute unlimited guarantees in favour of the Bank as additional security. - The Company must keep the Bank informed of progress $(5)$ on the bicycle project.

Your clients should be advised that if they fail to fulfil any of the above terms and conditions, the Bank will have no option but to auction their property without any further notice.

If these terms and conditions are acceptable to your clients please ask them to call on the General Manager Corporate **Banking for final arrangement".**

The relevant part of Exh P3 is as follows:

"Re: Rescheduling of the loan on the Account of General Parts (U) Ltd.

Following your request to the Board regarding rescheduling of the facility and a number of correspondences from us, we wish to confirm that the request has been accepted and the facility is to be rescheduled along the following lines:-

- Shs. $1,057,577,365/=$ has been rescheduled such $(a)$ that monthly instalments of a minimum of Shs. 38 million plus interest shall be paid with effect from 1^st July, 1991. The above amount will remain on the loan Account of General Parts (U) Ltd. - The balance of Shs. $700,000,000/$ = shall be repaid $\text{(b)}$ immediately after settlement of the amounts stated in paragraph (a) except that the monthly interest of Shs. 22.5 million accruing on this amount shall be paid simultaneously with the instalments in paragraph (a) above and the whole amounts of Shs. 700 million will be on the loan Account of General Industries (U) Ltd.

#### **Collateral Securities are as detailed in our letter of** $(c)$ 14^th June 1991."

It is clear from Exh P 2 and P3 that one of the conditions General Parts (U) Ltd had to satisfy in order to obtain the restructuring and rescheduling of their huge loan was the provision of additional securities. The additional securities were $Exh$ P 4 and the personal guarantees given by the directors of the company. Exh $P$ 4 was only intended to be a mortgage, pure and simple. There is nothing in Exh P 2 and P 3 which indicates that Exh P 4 was to contain all the terms and conditions of the restructuring and rescheduling arrangements.

Clauses (1) in Exh P 2 and (c) in Exh P 3 envisages a legal mortgage that could be used as collateral security in the restructuring arrangement. That is the natural meaning of these clauses.

When interpreting a clause in a document the court is concerned with the joint intention of the parties, as expressed in the document; what one party may have had in mind is irrelevant. See Damodar Jinabhai and Co Ltd. and Anor v Eustance Sisal Estates Ltd. (1967) E. A. 153 at 161.

I am of the view that Exh P 4 is a legal mortgage and that the Tribunal was right to rely on it. I see no merit in ground 2.

What I have said above is enough to dispose of ground 12. If Exh P4 is regarded as the final document evidencing the final result of the negotiations leading to the restructuring, then $Exh P 3$ could not be relied upon to interpret it. In that case Exh P 3 would be evidence of prior negotiations and would be inadmissible on the authority of Damodar Jinabhai & Co Ltd. Vrs. Eustance Sisal Estates Ltd (Supra). But as I have said earlier on, the provision of additional security was but one of the conditions General Parts (U) Ltd had to satisfy in order to get the restructuring exercise implemented. Exh $P$ 2 and $P$ 3 contain that stipulation. The Tribunal therefore did not err when it relied on them. I find no merit in ground 12.

Grounds 3 and 4 were argued together. The first complaint was that the Tribunal erred when it failed to consider and evaluate the evidence of PW 2 and gave no reason why his evidence was ignored.

PW 2 was a former accountant of General Parts (U) Ltd. He said that he was aware that as at March 1993, the indebtedness of General Parts to UCB stood at Shs 3.4 billion and that in 1991 the debt was about Shs 1.75 billion. He testified that from July 1991, UCB sent advices showing interest being charged on General Industries (U) Ltd being transferred to the account of General Parts (U) Ltd. The evidence of PW 2 did not add anything to what is already in Exh P 2 and P 3. The contents of the two documents show that General Parts would continue to be responsible for the interest on the Shs. 700 million transferred to the Account of the appellant.

I see no merit in the first complaint.

The second argument was that the Tribunal wrongly exercised their discretion when they disallowed the appellants application to call for and rely on High Court Civil Suit No. 1386/93 (Uganda Commercial Bank Vrs. General Parts) to prove that the respondent had never supplied consideration to the appellant despite the execution of the contested mortgage. It was contended on behalf of the appellant that the Tribunal would have arrived at a fair decision that there was no forbearance on the part of UCB if the application had been allowed. On behalf of the respondent, it was submitted that that argument had no merit.

The application was made orally during the hearing of the case, supposedly under Order 12 r 6 of CPR, which provides: $\frac{12 \text{ r}}{6}$

"O.12.6(1) The Court may on its own nation, and may in its discretion upon the application of any of the parties to the suit, send for, either from its own records, or from other court, or the record of any other suit or proceeding and inspect same.

Every application made under this rule shall, $(2)$ unless the court other wise directs, be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires or that the production of the original is necessary for the purposes of justice.

$(3)$ ....................................... . . . . . . . . . . . . . . . . . . . .

## Applications under rule 16 of this order shall be by **Summons in chambers."**

Plainly an application under the rule must be by chamber summons, unless the court directs otherwise. The order also gives the court discretion to grant or not grant an application under it.

In its ruling the Tribunal observed that the matter which counsel wanted the Tribunal to peruse (HCCS 386/93) with regard to lack of consideration had been testified about by PW 1. Further, at the inception of the proceedings the appellant's counsel was aware of the existence of the High Court Suit. Therefore it was not a matter that had arisen ex-improviso, yet the matter was not pleaded in the plaint. It was for the above reasons that the application was disallowed.

Nothing has been said before us to show that the Tribunal exercised their discretion wrongly. I find no merit in both the grounds. Ground 5 was abandoned. In view of my earlier decision with regard to consideration, it would be mere repetition to deal with ground 9. The ground is adequately covered already.

The Appellant's Complaint in grounds $10(a)$ and (b) is that the Tribunal was not properly constituted because one of the members of that tribunal, namely Mr. G. S. Lule, had acted for the appellant and therefore he had advance knowledge of some facts which would affect him when arriving at a decision. I find this ground remarkable in that it is taken by a client against its own advocate. If anything, Mr. Lule would have been prejudiced in favour of the appellant. I also find it surprising that this important point is not borne out by the record. The respondents' claim that PW 1, Haji Haruna Semakula (Managing Director of the appellant Company) had no objection to Mr. Lule sitting on the Tribunal may well All the same this matter should have been recorded for be true. avoidance of doubt.

$7.$ $$

As it turned out, the tribunal found for the respondent and therefore against Mr. Lule's former client. It follows therefore that Mr. Lule's presence on the Tribunal did not influence the outcome of the case as his former client lost. If there was any prejudice it would have gone on the side of the appellant. In fact the person who would have had cause to complain would have been the respondent.

However, it would have been right for Mr. Lule to have disqualified himself. In this regard I wish to repeat the wise counsel of Lord Hewart former Chief Justice of England in **Rex v Sussex Justices** Exparte McCarthy [1924] 1 KB 256 at 259, that "It is of fundamental importance that Justice should not only be done, but should manifestly and undoubtedly be seen to be done". But I am satisfied that his failure to do so did not occasion a miscarriage of justice. Accordingly I see no merits in that ground.

The complaint in ground 11 seems to me to be that in its proceedings the Tribunal must follow the Evidence Act strictly. On the other hand, the Tribunal's position was that in view of clear provisions of S. 16 and 18 of Statute 11/94 the Tribunal is not bound to follow the Evidence Act strictly, but to observe the rules of natural justice.

As can be seen from the preamble of the Statute the purpose of establishing the Non-Performing Assets Recovery Trust (NPAART) was to provide machinery for expeditious recovery of certain loans and investments made by UCB that were overdue. It was in furtherance of that objective that the Tribunal was set up. It seems clear therefore to me that in its proceedings the Tribunal should not be unduly tied down by rules of Evidence and procedure.

In the instant case, the admission of $Exh P 4$ did not breach any provisions of the Evidence Act. In fact it was put in evidence by consent. It is therefore too late for appellant to question its admissibility.

The principles of Natural Justice was also observed by the Tribunal throughout the proceedings. The decision of the Tribunal was based both upon the evidence actually given at the trial and documents admitted in evidence. Accordingly I see no merit in the ground.

In the end I would dismiss the appeal with costs to Respondent here and in the court below.

Dated at Kampala this ....................................

J. P. BERKO JUSTICE OF APPEAL.

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

(CORAM: S. T. MANYINDO - DCJ, J. P. BERKO - JA, A. TWINOMUJUNI - JA)

#### CIVIL APPEAL NO. 24 OF 1996

#### **BETWEEN**

| GENERAL INDUSTRIES (U) LTD: | $\cdots\cdots$<br>$\cdots\cdots$ | $\ldots\ldots$<br>$\cdots\cdots$ | $\cdots\cdots$<br>$\cdots\cdots$ | APPELLANT | |-----------------------------|----------------------------------|----------------------------------------------|----------------------------------|------------| | | VERSUS | | | | | NON-PERFORMING ASSETS | | | | | | RESCOVERY TRUST: | $\cdots\cdots$<br>$\cdots\cdots$ | $\cdots\cdots\cdots$<br>$\cdots\cdots\cdots$ | $\cdots\cdots$<br>$\cdots\cdots$ | RESPONDENT |

#### **JUDGMENT OF MANYINDO - DCJ:**

I agree with the judgement of Berko, JA, and the order made by him, and I would dismiss this appeal. As Twinomuju, JA, also agrees, the appeal is dismissed with costs to the respondent.

DATED at Kampala this: - - - - - day of: - - - - - - $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A}$ $\mathcal{A$

ayrida

S. T. MANYINDO DEPUTY CHIEF JUSTICE

#### THE REPUBLIC OF UGANDA

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

#### CIVIL APPEAL NO. 24 OF 1996

#### HON S. T. MANYINDO, DCJ; HON. J. P. BERKO, JA; CORAM: & HON. A. TWINOMUJUNI, JA.

GENERAL INDUSTRIES (U) LTD ::::::::::::::: APPELLANT VS.

NON-PERFORMING ASSETS RECOVERY **TRUST** <pre>:::::::::::::::::::::: RESPONDENT</pre>

#### JUDGMENT OF A. TWINOMUJUNI JA;

I have had the advantage of reading the judgment of My Lord Berko, JA; in draft. I entirely agree with the judgment and I have nothing to add. I would dismiss this appeal with costs here and the High Court to the respondent.

Dated at Kampala this $28^{\rm th}$ of April, 1998.

A. TWINOMUJUNI JUSTICE OF APPEAL

I hereby certify that this the true copy of the original.

J. Murangira Registrad Court of Appeal