[2020] UGCA 2180

# ⁵ THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CryIL APPEAL NO. LLZ OF 2013

FRANCIS MUCHUNGUZI APPELLANT

#### VERSUS

10 BARCLAYS BANK OF UGANDA LIMITED........... ... RESPONDENT (Appeal from the Judgment of Hon. Justice Eldad Mwangusha of the High Court of Uganda delivered on the 7't Februqry,201.3 in Civil Appeal No. 57 of 2010)

15 CORAM Hon. Mr. fustice Kenneth Kakuru, IA Hon. Mr. fustice Geoffrey Kiryabwire, IA Hon. Mr. |ustice Christopher Madrama, IA

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### JUDGMENT OF IUSTICE KENNETH KAKURU. IA

This is a second appeal, it emanates from a decision of the Chief Magistrate Court at Mengo in Civil Suit No.174 of 2009. An appeal was preferred from that decision to the High Court in High Court Civil Appeal No.57 of 2010 in which Eldad Mwangusya, f (as he then was) allowed the appeal on 1't February 20t3. 20

25 The brief background to this appeal as set out briefly by the learned appellate |udge is that, the appellant was an employed as a sales representative of the respondent. He was entitled to a net monthly retainer of Ug. shs 370,000/= and a commission of 2.5o/o on the amount of loan application initiated by him on any value above Ug. shs 160,000,000/=. In fanuary 2008, the appellant approached and convinced M/s. Sentoogo and partners to take up a loan of Ug, shs 300,000,000/= which they did and the amount drawn was Ug. shs 235,000,000/= million to which the appellant 30

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5 would be entitled to a commission of 2.5o/o, however it was not paid. The appellant claimed for it, it was not granted, this forced him to tender in his resignation from the bank citing frustration and failure by the bank to pay his commission on the said loan.

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10 He instituted an action in the trial and judgment was entered in his favour. The respondent being dissatisfied filed an appeal in the High Court on the following grounds;-

- 1.. The learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on the record and thus cqme to a wrong conclusion. - 2. The learned trial Magistrate erred in law and fact when she entertained the tendering in and admitted some documentary piece of evidence in a matter that contrqvenes the procedural law on admission of documents. - 3. The leqrned triql Magistrate erred in law and fact when she held that the respondent was entitled to a commission on a top up loan facility taken out by M/s. Sentoogo & partners, an existing corporqte customer of the appellant. - 20 4. The learned trial Magistrate erred in law and fact in finding thqt the respondent wqs entitled to special and general damages with interest thereon.

The learned appellate |udge allowed the appeal, entered judgment in favour of the respondent and set aside the judgment and decree of the trial Court. He ordered the appellant to pay costs of the appeal to the respondent.

- 25 The appellant being dissatisfied with the decision of the first appellate Court filed an appeal on the following grounds:- - 1. The learned Judge erred in law and fact when he found that the appellant was not entitled to a commission on e top up loan facility taken out by M/S Sentoogo and partners, en existing corporote customer of the respondent.

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- 2. The learned Judge erred in law when he found that the trial Magistrqte erred in law and fact when she entertained the tendering in and admitted q letter from M/s. Sentoogo in evidence. - 3. The learned Judge erred in law and fact when he failed to properly give the evidence on record an exhaustive scrutiny thereby by arriving at a wrong decision.

#### Renresentations

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At the hearing of this appeal the appellant represented himself while Mr. Jacob Kalali learned Counsel holding brief for Mr. Richard Obuyo appeared for the respondent. The parties sought and were granted leave to adopt their conferencing notes but were also permitted to make brief oral arguments. It is on the basis of the conferencing notes and the brief oral arguments that this appeal has been determined.

#### Resolution

20 I have read the submissions of both parties, I have not found it pertinent to reproduce them, however I will refer to them while resolving the grounds of the appeal. I have perused the grounds of appeal, it is apparent that, they raise questions of fact and to a lesser mixed extent facts and law.

This being a second appeal, the law precludes the appellant from doing so. In this regard Section 72 of the Civil Procedure Act (CAP 71) provides as follows;-

### "Second appeal,

(1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, on appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that-

> (a) the decision is contrary to law or to some usqge having the force of law;

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⁵ (b) the decision has failed to determine some material rssue of law or usage hoving the force of law;

> (c) a substantiql error or defect in the procedure provided by this Act or by ony other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits.

(2) An appeal may lie under this section from an appellate decree passed ex porte."

It is trite law that there is no such a thing as an inherent right of appeal. An appeal is a creature of statute . ln Attorney General vs Shah N 0.4 [1971] EA, the Court of Appeal for East Africa held per SPRY. As President that:

"Appellate jurisdiction springs only from statute. There is no such a thing as inhe r ent ap ^pellate j ur i sd i ctio n "

The Supreme Court in Baku Raphael Obudra and Obiga Kania vs The Attorney General, Supreme Court Constitutional Appeal No.1 of 2005, Hon. B.| Odoki C| noted thaU-

"lt is trite law that there is no such a thing qs qn inherent appellate jurisdiction. Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied"

It is apparent from the grounds of appeal that the appellant is seeking to appeal against issues of fact and or mixed law and fact. This he cannot do as the jurisdiction of this Court is restricted by law on a second appeal. 25

In view of the above, I find that grounds 1 and 3 offend the provisions of Section 72 of the Civil Procedure Act as they clearly raise questions of fact and or mixed law and fact on a second appeal although this is not expressly stated. The reading of those two grounds clearly reveals that they are both in respect of questions of fact.

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5 In respect of ground 3, the learned appellate fudge is faulted for having failed to reevaluate the evidence on record. It is apparent from the reading of the judgment that the appellate f udge was alive to the duty of the L't appellate Court to re-evaluate the evidence as set out in his |udgment. The instances in which a Znd appellate Court can re-evaluate the evidence were set out in Bogere Moses vs Uganda Supreme Court

10 Criminol Appeal No. L of 1997.

"ln our recent decision in Kifamunte Henry Ys Uganda (Cr. App. No. 10 of 1997 (unreported), we reiterated that it was the duly of the first appellate court to reheqr the case on appeal by reconsidering all the materials which were before the trial court, and make up its own mind. We there pointed out that, except in the clearest of cases. We, qs a second appellate court, are not required to reevaluate the evidence like a first appellate court. In our view, the instant case is one of such clearest of cqses which make it incumbent on this court to reevaluate the evidence. This is so because it is apparent from its judgment that the Court of Appeal did not evaluate the evidence as a whole, and in particular in respect of the said material issues; with the result that it cannot be ruled out that a dffirent result would have been arrived ot, if that evidence had been duly considered and evaluqted. Needless to say that failure by a first oppellate court to evaluote the material evidence as a whole constitutes qn error in law. {See. Pandya vs R (1957) EA 336; as explained in Ruwala Vs R (1957) 13A 570)'

25 30 ln Giuliano Graiggo vs Claudio Casadio, Supreme Court Civil Appeal No. 16 of 2004, the Court cited with approval its earlier decision in Goustar Enterprises Ltd vs Oumo [2006] EA 77 where it was held that the second appellate Court can only re-evaluate the evidence on record where it was clear that it had not been subjected to adequate scrutiny by either the trial Court or the first appellate Court. I shall proceed to determine this appeal bearing the above principles in mind.

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5 In this case, the learned appellate |udge proceeded to evaluate the evidence adduced by the both parties and resolved the grounds before him from pages 4-9 of his judgment at pages 4 and 5 he observed as follows;-

"l hqve looked at the provisions of the Evidence Act referred to in the appellent's Counsel's submissions but I don't see their relevance to this cqse. However, I qgree that the document admitted qs P. E IV was wrongly admitted. The document is a letter purportedly written by M/s. Sentoogo and Partners addressed to Messrs O. N Osinde and Co. Advocates confirming that Mr. Mucunguzi Frqncis had approached his ftrm concerning acquiring Bank facilities. The letter is undated. lt was solicited by M/S O. N Osinde and Co. Advocates whose letter was tendered and admitted qs P. E V. The contents of M/S O. N Osinde qnd Co. Advocates is reproduced hereunder...

The purported response from M/s Sentoogo and Partners was non committal. I will reproduce the letter because it is instructive on the point raised by counsel for the respondent that even without the letter there was proof thqt he approached M/s. Sentoogo and Partners..."

At pages 7, B and 9, he found as follows;-

"On ground 3 of the appeal, counsel contended that it wqs the evidence of the oppellant in the trial Court that he was not entitled to any commission from the top up loan of an already existing customer...

25 30 35 This ground has been partly covered by the Court's finding on the second ground. Without testimony of M/s. Sentoogo and Partners, on independent witness, Court is unable to establish as to what role the respondent played before M/s Sentoogo and Partners secured the top up of an already existing loan. To me it would be superJluous for the respondent to approach an existing client of the Bank and claim that he has convinced him to take a top up loan when the Bank had placed the client's loan portfolio in their Corporate Department which was administering the loan. The contract of employment was silent as to the nature of the customers the respondent was to approach but it cannot have envisaged a situation where the role of a Department in the Bank would duplicated by the respondent who would then claim commission for a job done by the Bank Department...

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*On ground 1, it was contended that the trial Magistrate failed to evaluate the* evidence before her especially when she deviated from the evidence of the *defence...*

The court's finding on the previous grounds disposes of this ground of appeal *and indeed the entire appeal..."*

The learned appellate Judge's decision was arrived at following an exhaustive re- $10$ evaluation of evidence. As a $2^nd$ appellate Court bearing in mind the authority of *Bogere (supra)* cannot re-evaluate that evidence. Ground three would on that account has failed. I would on that account dismiss ground 3. I am satisfied that the appellate Court re-evaluated the evidence before arriving at the decision that it made. I have found no illegality to compel us into interference with the findings. I 15 therefore uphold them

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Grounds 1 and 3 are hereby struck out as they offend Section 72 of the Civil *Procedure Act* and this Court lacks jurisdiction to determine them. I would still have dismissed ground 3, had I not struck it out for the reason I have set out above.

- In respect of ground 2, the learned appellate Judge is faulted for having found that $20$ the trial Magistrate erred when she admitted a letter from M/s Sentoogo in evidence. While resolving this issue, the learned appellate Judge re-evaluated the evidence at pages 4-6 of his judgment as reproduced above, and held at pages 6 and 7 as follows:- - "First of all when the admissibility of the above document was challenged, it $25$ was erroneous for the trial Magistrate to admit it without adducing the testimony of the person to whom it is addressed or copied. Secondly it is incumbent on the person who intends to rely on a document like in this case to *ensure that it is properly laid before Court before any reliance can be place on* it. It is not enough for a party to lay a document before Court and when the 30 circumstances under which it was admitted are challenged he turns around and states that there was enough evidence without it. This begs to question as to what purpose it was produced in the first place. Thirdly there were three parties

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involved in the loan transaction. These are the respondent himself, the appellant bank and M/s Sentoogo & Partners who took the loan. The respondent claims that M/S Sentoogo & Partners were already customers whose loan portfolio was being handled by the corporate Department of the Bank. It was necessary to call someone from M/S Sentoogo & Partners as an independent witness to explain the role of the respondent as far as negotiating the top up loan was concerned because as I have stated even if we were to rely on the letter in dispute, $M/S$ *Sentoogo & Partners were not unequivocal as to whether or not they had been convinced by the respondent to take a top up of the loan they already had from* the bank because as far as the Court is concerned if he needed a top up, the Corporate Department administering the loan would adequately handle it without any involvement of the respondent. The respondent should have adduced evidence of the document properly and this Court finds merit in this ground of appeal which is also allowed."

From the above excerpt and the judgment as a whole, I find that, the learned appellate Judge was alive at the provision of the law in respect of tendering in and 20 admitting of evidence in Court. He correctly stated the position of the law and properly applied it to the facts before him. I find no reason to fault the learned appellate Judge for arriving at that conclusion that he did. I therefore uphold his decision.

$25$ This appeal is dismissed with costs to the respondent here and the Courts below.

It is so ordered.

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

Kenneth Kakuru **Justice of Appeal**

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### THE REPUBLIC OF UGANDA,

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# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO LLz OF 2013

# (CORAM: KAKURU, KIRYABWIRE, MADRAMA JJA)

#### VERSUS

# BARCLAYS BANK OF UGANDA LTD} RESPONDENT

(Appeal from the judgment of the High Court of Uganda Hon. Mr. Justice Eldad Mwangusha dated l't February,20L3 in Civil Appeal No. 57 of 2010)

# JUDGMENT OF CHRISTOPHER MADRAMA, JA

15 I have had the benefit of reading in draft the judgment of my learned brother Hon. Justice Kenneth Kakuru, JA and I agree with his analysis of facts and principles for the resolution of second appeal set out in the judgment.

I only do not agree that this court lacks jurisdiction on the basis that this is ^a second appeal and the appeal seeks to determine controversies of fact which is barred by sectionT2 of the Civil Procedure Act though I agree that the appeal lacks merit.

I wish to add a few words to one aspect related to the question of whether the learned first appellate court exercised its duty to evaluate the evidence adduced in the trial court that the actual question in controversy is whether the Appellant was entitled to earn a commission on a top up loan granted to Ssentoogo and Partners amounting to Uganda shillings 300,000,000/=. The question of whether the Appellant was entitled to a commission on that loan is partly a question of interpretation of contract. Secondly, it is a question of fact related to whether the Appellant was the person who "convinced" or

- sold the loan to the borrower. The crucial paragraphs in the plaint filed before $\mathsf{S}$ the Chief Magistrates' Court are paragraphs 4 (d), (e) and (f) which are reproduced for ease of reference. - (d) sometime around 12^th of January 2008 the Plaintiff, in the performance of his duties as a sales representative approached Messieurs Ssentoogo & Partners 10 whom the Plaintiff convinced to take up a top up loan of 300,000,000/=. (Copies of letters confirming the same are attached and marked Annexure Group B) - (e) the loan was approved in May 2008 and the client accepted the offer and money was credited on the account on 3^rd December 2008 upon which the Defendant 15 advanced 235,000,000/= (two hundred and thirty-five million shillings) to Messieurs Ssentoogo & Partners, having deducted an earlier outstanding loan balance over $65,000,000/$ = (sixty-five million shillings). - (f) out of the amount advanced by the Defendant, the Plaintiff was entitled to 2.5%, 20 but despite various demands and reminders to pay his entitlements as per the contract, the Defendant has refused and or neglected to make good the said claim. (Copies of the complainant and demand notices are attached and marked Annexure Group C).

I have carefully considered the record and particularly the judgment of the learned trial magistrate on the issue of whether there was a contractual obligation in the circumstances to pay the Plaintiff a commission on the relevant loan amount. This is what the learned trial magistrate stated:

"as per exhibit PE1, the employment contract agreement section 1 paragraph 1.1, the Plaintiff was appointed as a direct sales representative. The Plaintiff's duties under 2.1 were to predominantly sale loan/asset products. Section 3 provides that, while your initial place of work will be at Barclays offices in Kampala, you will work at and/or travel to such places as Barclays Group may require from time to time. You will be based at your duty station but will be expected to travel to customer k, premises as and when required to conclude loan or other applications.

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t As for the above provision the Plaintiff was not restricted to sell only products to only new customers of the bank or retail customers, however what section 2. L required of him to predominantly sell loans without discriminating the clients whether new or already existing customers whether they belong to the retail or corporate department. On the issue of whether the Plaintiff was entitled to ^a commission, it is not in dispute that the Plaintiff approached and convinced Messieurs Ssentoogo & partners to take up a top-up loan"'.

> As per section L2.2 of the contract agreement, it provides that, "your remuneration shall consist of a fixed component and a variable commission component." Under section L2.3, it provides that if you qualify for a commission under the exceptional targets, you will also earn the commission under the standard targets. As per the provisions of the remuneration sheet attached to exhibit PE1 page 18 and page 15 of exhibit PE 2."

At page 101 of the record the learned trial magistrate held as follows

"As earlier pointed out that the employment contract agreement did not restrict the direct sales representatives to sell the bank's products to customers of the retail department but to all the customers of the bank, therefore by stating that the Plaintiff was only restricted to the retail department, contradicts the terms of the employment contract agreement entered between the Plaintiff and the bank. Employment contract agreements can only be varied when revised by the employer in writing.

The question of whether the Appellant was entitled to a commission revolved on the construction of the contract and is therefore a point of !aw.

The Respondent appealed to the High Court on 4 grounds of appeal namely:

- 1. The learned trial magistrate erred in law and fact when she failed to properly evaluate the evidence on the record and thus came to a wrong conclusion. - 35

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2. The learned trial magistrate erred in law and fact when she entertained the tendering in and admitted some documentary pieces of evidence in a manner that contravenes the procedural law on admission of documents.

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3. That the learned trial magistrate erred in law and fact when she held that the Respondent was entitled to a commission on a top up loan facility taken out by Messieurs Ssentoogo & Partners, an existing corporate customer of the Appellant.

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4. The learned trial magistrate erred in law and in fact in finding that the Respondent was entitled to special and general damages with interest thereon.

It is clear that the first ground of appeal is the general ground on the evaluation of the evidence on record and I do not find it pertinent to the issue of whether the Appellant was entitled to a commission on the top up $15$ loan in issue. Secondly, the second ground of appeal in the High Court relates to the tendering of a particular documentary evidence and for the moment does not concern the point that I would like to deal with.

The 3^rd ground of appeal is the sole ground of appeal that arises from the 20 ruling of the learned trial magistrate that the Appellant was entitled to a commission on the top up.

It is therefore my conclusion that the question of whether the Appellant was entitled to a commission on the top up in the circumstances is partly a $25$ question of law based on the construction of the contract which was admitted in evidence and partly a question of fact in relation to the question of whether he did sell a top up loan.

The trial magistrate evaluated the evidence on record showing that the 30 Appellant contacted Ssentoogo & Partners on phone and later on visited the premises of the prospective borrower. The case of the Respondent at the trial court was that the Appellant had a role as a Direct Sales Agent to bring in new customers to the bank. So the defence of the bank was that Ssentoogo & Partners was an existing customer of the bank. This is clearly brought out 35

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5 by paragraphs 10 (a) and (b) of the written statement of defence of the Defendant/Respondent in the trial court.

> l-0. In specific response to allegations in paragraphs 4 (b), (c), (d) and (0 of the plaint, the Defendant will contend that:

> (a) The Plaintiff was contracted as a Lead Generator (LG) under the retail Department of the Defendant. The Plaintiff's scope of duty was limited to selling loan and asset products to prospective/new retail customers of the Defendant, and the commission payable to him was accordingly based on sales made by the Plaintiff to new retail customers of the Defendant.

(b) M/s Ssentoogo & Partners was an existing corporate customer of the Defendant whose financial affairs were managed by a relationship manager in the corporate Department of the Defendant bank to which the Plaintiff was not part of, and the loan sum of shillings 300,000,000/= was taken by the corporate customer as top up in that capacity.

The ground of appeal relevant to the controversy is ground 3 in the High Court that the learned trial magistrate erred in law and fact when she held that the Respondent was entitled to a commission on a top up loan facility taken out by Messieurs Ssentoogo & Partners, an existing corporate customer of the Appellant.

30 35 It follows that the controversy for trial was partly on construction of the contract and this was a point of law and ground L of the memorandum of appeal in this court could have been handled as a question of construction of contract only as this is a question of law. Nonetheless, I have considered the finding of the learned first appellate Judge on ground 3 in the High Court. This is what the learned first appellate court Judge stated about ground 3 of the appeal:

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⁵ On ground 3 of the appeal, Counsel contended that it was the evidence of the Appellant in the trial court that he was not entitled to any commission from the top up loan of an already existing customer, and that the person who had a say on the commission was Balikudembe Joseph. That during cross examination (pages 24 and 25 of the record of proceedings, Muhame Julius, PW4 maintained that M/s Ssentoogo & Partners as a corporate customer was to be attended to by the relations manager, a fact the Appellant knew or ought to have known. He does maintain that the Respondent was not entitled to a commission on a loan top up facility taken out by an existing corporate customer. 10

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- In reply, Counsel for the Respondent maintained that the trial magistrate was right when she based her decision on the terms and conditions of the agreement of employment between the Respondent and Appellant to find that the Respondent was entitled to a commission. To base the evidence elsewhere would amount to varying the terms of the agreement, this would be contrary to... 15 - This ground has already been partially covered by this court's finding on the 2nd ground. Without testimony of M/s Ssentoogo & Partners, an independent witness, court is unable to establish as to what role the Respondent played before M/s Ssentoogo & Partners secured the top up of an already existing loan. To me it would be superfluous for the Respondent to approach an already existing client of the bank and claim that he has convinced him to take up a top-up loan when the bank had placed the client's loan portfolio in the corporate department which was administering the loan. The contract of employment was silent as to the nature of the customers the Respondent was to approach but it cannot have envisaged ^a situation where the role of a department in the bank would be duplicated by the Respondent who would then claim commission for a job done by the banks Department. The evidence of a person from M/s Ssentoogo & Partners would have most definitely defined the role of the Respondent without which the finding of the trial magistrate that the Respondent was entitled to commission was erroneous." 20 25 30

It is therefore clear that the first appellate court Judge did not consider the issue as a matter of law based on the construction of the contract as he found that the contract was silent about the kind of borrowers the Respondent/ who is the Appellant to this appeal, would sell loans to and whether it 35


5 10 included an existing client of the bank who was still servicing an existing loan. Finally, he found that it was necessary to define the role of the Appellant in selling the loan in question and this depended on the testimony of someone from the borrower's firm. Without that testimony the learned first appellate court Judge found that the finding of the trial magistrate that the Appellant was entitled to commission was erroneous.

The appeal in the High Court therefore was resolved on a question of fact and is a finding by the learned first appellate court Judge that there was no evidence to support the role of the Appellant in the transaction in question.

15 It must be emphasised that the learned trial magistrate based her decision on the construction of the contract and the learned first appellate court Judge found that the contract was silent on whether the Appellant could get a commission upon sale of a loan to an existing borrower/customer of the bank.

20 In the written submissions of the Appellant's Counsel on the 1't ground, the controversy is whether the learned L't appellate court Judge erred in law to base his decision on the evidence rather than on the contract terms. Specifically, the Appellant's Counsel submitted that to hold otherwise would vary the terms of the contract.

25 The question before this court is whether the learned first appellate court Judge erred in law to find that the contract was silent on whether the Appellant was entitled to a commission on the top up loan and not find that the matter revolved on interpretation of the contract.

The above is a point of law because it in revolves on interpretation of the contract as the question of fact is clearly defined by the pleadings as to whether the Appellant was entitled to a commission on a top up loan to an existing loan. I have already quoted paragraph L0 of the written statement of defence that clearly sets out the matter in controversy. The first question

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s is therefore whether under the terms of the contract, the Appellant was only entitled to sell loans to prospective or new customers. The second aspect of the defence of the Respondent was that the borrower as a matter of fact was an existing customer of the bank whose affairs were managed by ^a relationship manager implying that the Appellant could not purport to sell ^a

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L0 top up loan to an existing customer whose requirements ought to have been taken care of or are taken care of by the relationship manager of the bank.

In the circumstances, I would resolve the appeal on the above questions alone and not on the basis of failure to call a witness from Ssentoogo & Partners (the borrower) as it is clear from the pleadings that the issue was 1s not about the role of the Appellant in selling the top up loan but rather whether he was entitled to a commission on the basis that the loan that he sold was a top up loan to an existing customer of the bank whose affairs are managed by the relationship manager.

As a question of fact, the loan agreement with the borrower clearly indicated 20 that the total amount of the loan was Uganda shillings 300,000,0 OO/= before deduction of the existing outstanding facility. Upon deduction of the existing outstanding facility, there would be a balance of a new loan advanced to the borrower. Paragraph 2.1 of the contract of employment of the Appellant provides for the duties of the Appellant and states that:

25 2.1\_ predominantly sale loan/asset products;

In paragraph 3 the place of work of the Appellant is indicated as follows:

## PLACE OF WORK

While your initial place of work will be at Barclay's offices in Kampala, you will work at and/or travel to such places as the Barclays group may require from time to time. You will be based at your duty station but will be expected to travel to customer premises as and when required to conclude loan or other applications.

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5 10 I have carefully considered clause 7.5 that requires the Appellant to present loan agreements, assurance/insurance contracts, financial analysis, investment possibilities and any advice regarding these unambiguously and not promise privileges not available under a proposed product, policy or contract or conceal any fact. The question is whether in presenting loan agreements, the intention of the parties was to present new loan agreements with new or prospective customers.

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15 20 25 In my analysis, the Appellant was expected to present new loan agreements and not to modify existing loan agreements. A "top up" loan agreement modifies an existing loan agreement which is already under the management of the bank. The intention of the parties is to widen the customer base of the bank by soliciting for new customers and therefore getting new loan agreements in addition to selling other kinds of products. The Appellant could also sell to customers who wanted guarantees or assurance of the bank, source insurance contracts, financial analysis and investment possibilities. It would be absurd to argue that the Appellant could amend the terms of an existing guarantee with a customer of the bank and earn ^a commission thereon. Similarly, it is absurd to argue that a top-up loan is ^a new loan over and above the existing loan. The facts in this appeal are not sufficient to consider the ramifications of the characterisation of a top-up loan either as a new loan or a modification of an existing loan or relationship. The name "top-up loan" however suggests that it is part of an offer made

within an existing facility. There has to be a prior existing relationship between the borrower and the bank to be able to be offered a "top up" loan.

30 In the premises, my conclusion is that what is crucial in the relationship is the existing relationship of a banker/borrower and therefore a new offer to the borrower who has an existing loan is called a "top-up" facility. It is therefore not strictly speaking, business with a new customer but new business with an existing customer who has an outstanding loan obligation to the bank.

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⁵ The learned first appellate court Judge ought to have considered the intention of the parties but his failure to do so did not prejudice the Appellant because clearly the intention of the parties was to solicit for new customers and to get new businesses on the basis of the services rendered by the Appellant. This was the decision of the learned first Appellate Judge as welt.

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^Iwould therefore find that ground one of the appeal has no merit. Further, ^I agree with the rest of the judgment of my learned brother Hon Justice Kenneth Kakuru, JA and I have nothing useful to add. 10

Dated at Kampala the ]S h, of sa- ²⁰²⁰

¹⁵ Christopher Madrama

Justice of Appeal

### THE REPUBLIC OF UGANDA

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# IN THE COURT OF APPEAL OF UGANDA AT KAMPAIA

### CIVIL APPEAL NO. LLz OF 2OT3

FRANCIS MUCHUNGUZI ======================== APPELIANT

# VERSUS

BARCLAYS BANK OF UGANDA LlMlTf p=======================RESPONDENT

#### (CORAM : KAKU RU,KIRYABWI RE, MADRAMA)

#### JUDGMENT OF JUSTICE GEOFFREY KIRYABWIRE. JA

#### JUDGMENT

I have had the opportunity of reading the draft Judgment of my Brother Hon. Mr. Justice Kenneth Kakuru, JA in draft and I agree with the findings and final decisions and orders and have nothing more useful to add.

\st\*i. Dated at Ka m pa la th is day of h...2020.

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HON. MR. JU CE GEOFFREY KIRYABWIRE JUSTICE OF APPEAL