Wakilii

Nakate v DFCU Bank Limited (Civil Appeal 1 of 2009)

Supreme Court · [2009] UGSC 32 · 2009 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal, which had reversed a High Court judgment for the appellant.
Decision
Appeal dismissed; the Court of Appeal's decision dismissing the appellant's claim and upholding the respondent's counterclaim affirmed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a second appeal the Supreme Court held that the appellant could not change her case from 'the loan was fully repaid' to 'the loan was never disbursed' without amending her pleadings, applying the rule in Interfreight Forwarders. A bank statement admitted by consent at the scheduling conference attracted no objection, so the appellant waived reliance on the Evidence (Bankers' Books) Act, and the statement was prima facie evidence under section 2. The recital in the mortgage deed acknowledging receipt of the secured monies raised a strong presumption of disbursement, unrebutted by cogent evidence. The Court of Appeal was right that the appellant failed to prove her case and the respondent proved its counterclaim. Appeal dismissed with costs.

Outcome

Appeal dismissed; the Court of Appeal's decision dismissing the appellant's claim and upholding the respondent's counterclaim affirmed.

Facts

In about September 1997 the appellant and a co-surety jointly executed a legal mortgage over their lands with Trust Bank (U) Ltd to secure facilities totalling Shs 100,000,000 (an Shs 80,000,000 letter of credit and an Shs 20,000,000 overdraft) advanced to M/s A.V. Enterprises Ltd. Trust Bank went into liquidation and the respondent bought its loan portfolio from Bank of Uganda. When A.V. Enterprises defaulted, the respondent advertised the mortgaged properties for sale. The appellant negotiated to redeem her property, agreeing to repurchase it for Shs 90,000,000 with a Shs 20,000,000 cash deposit and the balance by monthly instalments. She paid the deposit but then refused further payment and sued, claiming the secured debt had been fully repaid by the principal debtor. The co-surety paid her portion and redeemed her property. The respondent denied full repayment and counterclaimed a balance of Shs 35,000,000. The High Court entered judgment for the appellant; the Court of Appeal reversed it, finding the monies had been disbursed and the debt remained unpaid.

Issues

  1. Whether the Justices of Appeal erred by deciding ground 2 on the basis of the appellant's departure from her pleadings, a ground said to have been abandoned by the respondent.
  2. Whether the Evidence (Bankers' Books) Act was applicable to Exhibit D1, the statement of account admitted by consent at the scheduling conference.
  3. Whether there was sufficient evidence to prove the appellant's case that the secured loan had not been disbursed or was fully repaid, and whether the respondent proved its counterclaim.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent in the Supreme Court and in the two courts below.

Rules and key headnotes

Civil Procedure — Pleadings — Departure from Pleadings without Amendment
A party is bound to prove the case as alleged in his pleadings and covered by the issues framed, and may not change his case at trial or set up a case inconsistent with his pleadings except by way of amendment of the pleadings.
Evidence — Admission of Documents by Consent at Scheduling Conference — Waiver of Objection
A party who fails to object to the admissibility of a document at the scheduling conference, or within the time prescribed thereafter, waives the right to later invoke the statutory conditions precedent to admission under the Evidence (Bankers' Books) Act.
Evidence — Bankers' Books — Evidential Value of a Bank Statement
A bank statement admitted under section 2 of the Evidence (Bankers' Books) Act is prima facie evidence of the entries in the bankers' books and of the matters recorded in it.
Banking & Finance — Mortgage — Recital Acknowledging Receipt of Secured Monies
Although not conclusive evidence of disbursement, a recital in a mortgage deed acknowledging receipt of the secured monies raises a strong presumption that the monies were advanced, which can be displaced only by cogent evidence to the contrary.

Legislation cited (6)

Cases cited (3)

  • Hadija Nakibuuka v Attorney General (Supreme Court Civil Appeal No. 11 of 1993)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Supreme Court Civil Appeal No. 33 of 1992)
  • Masere v Republic (1989) KLR 483

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Nakate v DFCU Bank Limited (Civil Appeal 1 of 2009) [2009] UGSC 32 (20 October 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.