Aaron Nyangu v Pulse Financial Services Limited (T/A Entrepreneurs Financial Centre "EFC") (Appeal No. 234 of 2022) [2023] ZMCA 329 (22 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 234 of 2022 HOLDEN AT NDOLA ( Civil Jurisdiction) BETWEEN: . AARON NYANGU AND ___ ,c_o~ 1 OF APP£~ 2 2 ~~ 2023 l ~ 'w~, 01- 1..,0U . J". L' , 1.,,:. ..... ~~""JY._...a,;:.~ PULSE FINANCIAL SERVICES LIMITED (T/A Entrepreneurs Financial Centre " EFC") Appellant Respondent Coram: Chashi, Ngulube and Patel, JJA on 15th and 22nd November 2023 For the Appellant : Mrs. Lillian Mushota Messrs Mushota & Associates For the Respondent: No Appearance JUDGMENT Patel, JA, delivered the Judgment of the Court JI Cases referred to: 1. Nkongolo Farms Limited v Zambia National Commercial Bank Limited and Others Z. R. (2005) 78 2. The Attorney General v Roger M . A. Chongwe -SCZ Appeal No. 122/2016 3. Printing and Numerical Registered Company v Simpson ((1875) LR 19 Eq 462) 4. National Drug Company Limited v Zambia Privatization Agency v Mary Katongo -SCZ Appeal No. 79 /2001 5. 6. Colgate Palmolive (z) Inc v Shemu & Others -SCZ Appeal No. 181/2005. Magic Carpet Travel and Tours v Zambia National Commercial Bank Limited (1999) Z. R. 61 7. Kasabi Industries Limited v lntermarket Banking Corporation -SCZ Appeal No. 168 of 2009 8. Wilson M Zulu v Avondale Housing Project Limited (1982) Z. R. 109 9. Examination Council of Zambia v Reliance Technology Limited -SCZ Appeal No. 46 of 2014 10. Dary v Garret (1987) 7 CH 473 11. Sablehand Zambia Limited v Zambia Revenue Authority (2005) Z. R. 109 12. Halyonda Costa Chimesa v Pulse Financial Services and Samuel Mwanza 2016/HP/0592. 13. Zambia Export And Import Bank Limited V Mukuyu Farms And Others 1993-1994 Z. R. 36. 14. Kelvin Cheela and Peter Kamanga v Pulse Financial Services Trading as Entrepreneurs Financial Centre- CAZ/08/279/2022. 15. Angel Musonda v Pulse Financial Services -CAZ Appeal No. 132/2017. J2 16. Savenda Management Services v Stanbic Bank Zambia Limited- SCZ Selected Judgment No. 12 of 2018 17. Kanjala Hills Lodge Limited and Jayetileke v Stanbic Zambia Limited - SCZ Appeal No. 46 of 2010 18. Anderson Kambela Mazoka & 2 others v Levy Patrick Mwanawasa & 2 others (2005) Z. R. 172 19. Mukumbwa v Musatwe and Northern Breweries Limited and Another SCZ Appeal No. 102/2007 [2014) ZMSC 106 20. Magic Carpet Travel and Tours v Zambia National Commercial Bank Limited (1999) Z. R. 61 21. Zambian Breweries Pie v Lameck Sakala -SCZ No. 19 of 2012 Legislation referred to: 1. 2. 3. The Rules of the Supreme Court of England (White Book) 1999 edition The High Court Act and Rules, Chapter 27 of the Laws of Zambia The Judgment Act, Chapter 81 of the Laws of Zambia Other Works referred to: 1. Chitty on Contracts 26th Edition, volume 1 paragraph 772 2. Halsbury's Laws of England vol 9 at paragraph 16 (2) Sweet & Maxwell 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of 8. C. Mbewe J of the High Court, delivered on 30th March 2022. J3 1.2 For context, we have noted that the Appellant, instituted an action against the Respondent, (the Plaintiff and Defendant respectively in the Court below), by Writ dated i h May 2020 arising out of an Individual Loan Agreement, (the loan) executed on 26th July 2019, entered into between the Parties. 1.3 As a condition of the said loan, the Appellant offered collateral of Plot No. 02/28 Garden, on occupancy license, valued at Kl, 760,000.00 and household goods estimated at Kl0,950.00. 1.4 The Appellant was to discharge the loan by way of monthly repayments in the sum of K17, 760.00, from 26th August 2019, to 26th July 2021. 1.5 Due to the Covid pandemic at the material time, the Appellant was unable to meet his monthly obligations as per the Individual Loan Agreement and received a demand to pay the sum of K35,520.04 by l ih April 2020. 1.6 The Appellant has alleged that the Respondent did not explain the terms of the loan, unilaterally changed the agreement and threatened to evict the Appellant and his tenants from the property, causing him financial loss, harm and mental and emotional distress. 2.0 BACKGROUND 2.1 By its Writ of Summons and Statement of Claim dated t h May 2020, the Appellant, (as Plaintiff), commenced an action against the Respondent, (as Defendant) claiming the following reliefs: J4 (1) An order for an injunction restraining the Defendant from seizing goods and personal effects from property No. Stand 02/28 Garden Lusaka on which there are eleven (11) tenants and from interfering with the Plaintiffs business associates and customers. (2) Damages for loss of business from tenants on the said premises some of whom have left because of harassment and threats from the Defendant. (3) An order that the repayment terms of the loan agreement entered into between the parties on 26th day of July 2019, be suspended during Covid-19 or varied and made flexible until Government health measures are reviewed and lifted. (4) An order that the Defendant whether by itself or its agents, howsoever, be restrained from repudiatory breach of the loan agreement by an sms (short message) of 9th April 2020 sent to the Plaintiff by the Defendant imposing unilaterally a 100% hike of loan repayment sum from K17,706.02 to K35,520.04 and without or at short notice . The Plaintiff did not accept this repudiatory breach and expressed his disagreement in person to the manager of the Defendant. (5) Damages for Defamation of Character. (6) Damages for mental torture, humiliation and embarrassment. (7) Further or other remedies the court may deem fit. (8) Interest on the money the court may award. (9) Costs. JS 2.2 On 29 th July 2020, the Respondent entered appearance and filed its defence and counterclaim and confirmed that the Parties entered into an Individual Loan Agreement wherein the Appellant obtained a loan in the sum of ZMW 251,000.00 with interest at 4.58% per month or 54.96% per annum. 2.3 The Respondent confirmed that following agreed deductions to the loan, amount, the Appellant received the sum of K209,271.90 against which loan amount, he offered collateral, namely property on Stand No. 02/28 Garden with Occupancy License No. 27233 and specific household goods. 2.4 The Respondent has alleged that following persistent failure by the Appellant to settle his obligations, he was indebted to the Respondent in the sum of K206, 659.75 and interest of K20,506.60 as at 19t h May 2020 and counterclaimed the sum of K227,165.35 with interest as agreed. In default, the Respondent sought an order for foreclosure, delivery and sale of Plot 02/28 Garden, Lusaka and an order for delivery, possession and sale of the named household goods, offered as security. 3.0 DECISION OF THE COURT BELOW 3.1 The trial Judge considered the issues in controversy and the claims by both Parties. In his considered opinion, the Appellant though having claimed misrepresentation, fraud and undue influence, failed to give details and did not specifically plead the claims as required by Order 18/8/16 of the Rules of the Supreme Court of England1 • The lower Court examined the reliefs set out in paragraph 2.1 above and was of the settled view that there being no particulars of misrepresentation, fraud or undue influence, the said claims failed. ]6 3.2 Th e lower Court relied on the case of Nkongolo Farms Limited v Zambia National Commercial Bank & Others1 wherein the Supreme Court reiterated the req uirements to plead fraud and misrepresentation with proper particularity. The lower Court also relied on th e decision of the Supreme Court in the case of The Attorney General v Roger M. A. Chongwe2 in support of the principle t hat a court has no jurisdiction to grant a relief which is not pleaded and does not flow from the cause of action . 3.3 The lower Court also found as a fact that claims 3 and 4, invalidate the allegations of misrepresentation, fraud and undue influence and to the contrary, demonstrate consensus of there being an existing contract between the Parties. 3.4 The lower Court, having examined all the documents and having considered the evidence of the Parties found that the business loan application, the consent form, and the individual loan agreement, to be valid, concom itant or related and depicted a reasonable, voluntary contractual relationship between the Parties. 3.5 In arriving at his finding, the lower Court was suitably guided by the principles governing loan contracts as articulated by the authors of Halsbury's Laws of England1 as well as the learned authors Chitty on Contracts2 . 3.6 The lower Court also stood firm in its view on the principle that Courts will seldom, if at all, interfere with the agreed terms of contract between Parties as espoused by the noted cases of Printing and Numerical Registered Company v Simpson3 , National Drug Company Limited v J7 Zambia Privatization Agency v Mary Katongo4 and Colgate Palmolive (z) Inc v Shemu & Others5 . 3. 7 The lower Court, having examined the evidence dismissed the allegations of defamation, harassment and threats and ultimately dismissed all the claims of the Appellant. 3.8 Having found that there existed a loan agreement between the Parties, the lower Court found that by deposit or delivery of title deeds by the Appellant to the Respondent, as security, created an equitable mortgage . He found support in the case of Magic Carpet Travel and Tours v Zambia National Commercial Bank Limited 6 . The lower Court found that to enforce the equitable mortgage, the Respondent applied to the Court for an order for foreclosure, delivery, possession an d sale under Order 88 rule 1 (10)1. He also relied on the case of Kasabi Industries Limited v lntermarket Banking Corporation7 in support of the above principle and entered Judgment in favour of the Respondent on its counterclaim. 3.9 The lower Court entered Judgment under paragraph 8.36, at page J54, dated 30th March 2022 as follows: (i) Payment of all monies which as of 19th May 2020, stood at a total sum of ZMW 277,166.35, being due in respect of a loan availed on 26th July 2019 to the Pla intiff by the Defendant at the Plaintiff's own request and instance together with other usual bank charges; (ii) Interest thereon at the agreed rate of 4.58% per month; (iii) Contractual interest on the Judgment sum at the Judgment Act3, rate from the date of the Originating Summons to the date of the J8 Judgment and thereafter at the short-term deposit rate as determined by the Bank of Zambia until full payment; (iv) In default of payment by the Plaintiff, the lower Court ordered: a. the foreclosure over Plot or House No. 02/28 Garden, Lusaka having occupancy license number 27233, being property offered as security for the loan . The Plaintiff shall convey the said property to the Defendant unconditionally as guided by the holding in Kasabi Industries Limited V lntermarket Banking Corporation Limited7 • If the Plaintiff failed to convey the mortgaged property to the Applicant, the provisions of Section 14 of the High Court Act2 to be invoked, whereby the Regi strar of the High Court would execute the transfer documents for the said mortgaged property and exercise its right of sale. (v) The delivery to the Defendant, possession and sale of household goods charged as security, namely: (a) White four plate cooker, (b) White and green kitchen unit, (c) White upright fridge, (d) ( e) (f) (g) Dining table, Black leather coffee table, Black leather sofas, Black music system, (h) Black DSTV decoder (i) (j) Black LG TV set; and Black TV stand. (vi) Costs of and incidental to this action to be taxed in default of agreement. 3.10 On 14th April 2022, the lower Court, suo moto, under Order 20 Rule 111 on its own motion, and in the exercise of its inherent jurisdiction, corrected its omission at paragraph 8.36 on page JSS, to grant the Appellant the right to exercise his equity of redemption . Under the cited slip rule, the lower Court granted to the Appellant a period of 90 days to pay the Judgment sum by its amended paragraph 8.36 (iv) by insertion of the following words before subparagraph a cited above: "The defendant shall pay the Judgment sum to the Plaintiff within 90 days. In default of payment by the Plaintiff, I order:' 4.0 THE APPEAL 4.1 Being dissatisfied with the Judgment of the lower Court, the Appellant filed its Notice of Appeal and Memorandum of Appeal on l ih August 2022 advancing four (4) grounds of appeal as follows: 1. The Court below erred in fact and law in disregarding the fact that the appellant, a lay person was not informed of the need to seek legal advice on the contents or implications of the terms of the loan in order to make an informed decision; and the fact that the contract presented in court was not fully executed. 2. The court erred in fact and law, in not taking judicial notice, and ignoring the appellant1s submission, that he sought a variation of the contract under a force majure in view of the adverse effects of the Covid-19 pandemic which affected cross-border trade, among others. JIO 3. The Court below erred in fact and law when it held that the appellant was low in evidence and failed to engage the respondent to arrive at an amicable solution, when the evidence was that there was harassment reported to management as recognized by the Judge at page JS0, and the Judge put fault on the appellant for the respondent's failure to make mention of the alleged incident of 1st May 2020. 4. The Learned High Court Judge erred in law and fact when he held that: (a) The Appellant should within 90 days from date of judgment, pay to the Respondent the judgment sum of ZMW277,166.35 failure to which the Learned Judge order foreclosure over plot or House No. 02/28 Garden, Lusaka and the appellant shall convey it unconditionally without ordering that the property be valued to ascertain the economic value from which the respondent should recover its money. (b) In default of payment of judgment sum referred to above, there shall be delivery to the Respondent, possession and sale of household goods charged as security, namely: white four plate cooker, white and green kitchen unit, white upright fridge, dining table, black leather coffee table, black leather sofas, black music system, black DSTV decoder, black LG TV set and black TV stand; when the value of the real property referred to above is more than sufficient to settle the judgment debt. (c) The respondent should recover interest at the agreed rate of 4.58% per month as well as "contractual interest per Judgment Act Chapter 81", which the respondent did not ask for. JI I 5.0 APPELLANT'S ARGUMENTS IN SUPPORT OF THE APPEAL 5.1 The Appellant's heads of argument were fi led on 10th October 2022 and have been duly considered and appreciated and will not be recast here save for emphasis as necessary. 6.0 THE RESPONDENT'S HEADS OF ARGUMENT 6.1 The Respondent's heads of argument filed on 4th November 2022 have equally been considered and will not be recast save for emphasis where necessary. 7.0 THE HEARING 7.1 At the hearing of the appeal, there was no appearance on behalf of the Respondent. Counsel for the Appellant placed reliance on the Appellants' Record of Appeal and Heads of Argument filed on 10th October 2022. She further expanded on the first ground of appeal and argued that the court below erred in disregarding the fact that the Appellant, a lay person, was not informed of the need to seek legal advice. It was Counsel's submission that the documents that the Appellant signed was an individual loan agreement termed 'Business Agreements' by the only witness, were documents w hich would have required independent legal advice. Counsel Mushota referred to part 4 of the document on page 123 of the Record of Appea l, being the power of attorney, which the Appe llant was made to sign appointing the Respondent as his attorney in the transaction. She argued that being the holder of a power of attorney, the Respondent could not insist that they advised the Appellant to seek legal advice. J 12 8.0 DECISION OF THIS COURT 8.1 We have considered the grounds of appeal above and are of the considered view that they all speak to challenging findings of fact made by the lower Court in its assessment of the evidence placed before the Court. From the onset, we are alive to the limited circumstances when we can interfere or reverse findings of fact, as guided by the cases of Wilson M Zulu v Avondale Housing Project Limited8 and more recently in the case of Examination Council of Zambia v Reliance Technology Limited.9 We shall accordingly address all the grounds of appeal as they are related and arise out of the assessment of the lower Court. 8.2 We have noted that the thrust of the Appellant's case in the lower Court lay in misrepresentation, fraud, undue influence, defamation of character, mental torture, humiliation, embarrassment, an order to suspend the payment terms and an order to restrain the Respondent from repudiatory breach of the loan agreement. On the claims of misrepresentation, fraud and undue influence, the lower Court found that the same claims had not been substantiated nor specifically pleaded. For this finding the lower Court relied on the provisions of Order 18/8/6 of the Rules of The Supreme Court1 . 8.3 The Respondent has argued with reference to the decision in the case of Dary v Garret10 that any charge of fraud or misrepresentation must be pleaded with outmost particularity and that fraudulent conduct must be distinctly alleged and distinctly proved and should not be left to be inferred from the facts . Our attention was also drawn to the decision of the Supreme Court in the case of Sablehand Zambia Limited v Zambia Revenue Authority11 which reiterated the principle above. Jl 3 8.4 We note that both the lower Court and the Appellant, in its arguments canvassed under Ground 1 of the appeal, referred to the decision of the Supreme Court in the case of Nkongolo Farms Limited v Zambia National Commercial Bank Limited and Others1 in support of the principle that a party relying on misrepresentation, fraud, breach of trust, willful default or undue influence by another party, must supply the particulars of the allegation in his pleading as provided by Order 18/8/61 . The lower Court further having interrogated the reliefs sought, was of the considered view that a Court has no jurisdiction to grant a relief which is not pleaded and does not flow from the cause of action. It is noted and the Appellant has conceded in its own argument that while it did not plead misrepresentation, or fraud, with particularity, in the Writ of Summons and Statement of Claim, he did in paragraphs 4,5,7,8,9,10 and 11 make the said allegation. The Appellant has urged the Court, relying on the Nkongolo Farms1 case, to infer fraud, misrepresentation and undue influence from the case. 8.5 We have interrogated the reliefs sought by the Appellant, including the particulars of paragraphs 4,5,7,8,9,10 and 11 of the Statement of Claim as canvassed by the Appellant, and remain of the considered view that even a reading of those paragraphs, do not bring out details of fraud and misrepresentation. From our scrutiny of the Record, the Appellant has failed to prove that the Respondent uttered any false statements to show that he was induced in any way to apply for the loan nor was he able to show that he was forced to sign the loan agreement. There is no evidence before us to warrant us to set aside the finding of fact by the lower Court on these claims. 8.6 We have equally analyzed the submissions of Counsel for the Appellant, as it relates to the issue that the Appellant was not given an opportunity to seek independent legal advice. We have applied our mind to the case of Halyonda Costa Chimesa v Pulse Financial Services and Samuel Mwanza12 cited by the Appellants at paragraph 1.10 of their Heads of Argument, which decision, though a decision of the High Court, speaks to the requirement that a guarantor, (not borrower), must be afforded legal counsel, and the documents explained to him. In analyzing the said case, we distinguish it from the facts in casu on the basis that a reading of the judgment at pages J4-JS shows that the Plaintiff in Halyonda12 , similarly did not dispute having signed the guarantee agreement. At page 110 of the judgment, it was the Defendant's testimony that the said guarantor's role was explained before the loan was signed. The difference being that the guarantor (the Plaintiff) was verbally informed to obtain independent legal advice before executing documents. There was a note on the record to the effect of seeking independent legal advice which the Plaintiff signed . 8.7 In Halyonda12 , it was the decision of the court, relying on Nkongolo Farms 1 that the rationale for giving independent legal advice, is that the creditor has the obligation to inform itself as to whether or not there is a relationship of trust and confidence between the borrower and guarantor, and the attendant risk to abuse in that relationship. 8.8 In our considered view, the facts in the two cases are separate and distinct and rest on findings of fact made by the trial Court. There is no similar obligation for independent legal advice to be obtained for the borrower. In the Halyonda 12 case, the Court found a clear requirement to Jl 5 obtain independent legal advice, for the guarantor and misrepresentation was also proven . That has not been the finding in casu. We refer to the decision in the case of Zambia Export And Import Bank Limited V Mukuyu Farms And Others13 which held that "an agreement is signed freely if it is signed in the course of business practice and the respondent had a choice not to sign". 8.9 We have examined the Record and have noted the contents of the Witness Statement of the Appellant. He admitted having applied for a loan, he admitted having signed and executed the Individual Loan Agreement, and in his own evidence confirmed that he had applied for loans from other financial institutions such as the Respondent, on a previous occasion, and from Madison Finance in 2019. He also confirmed being a businessman involved in cross-border trade. The reliefs claimed under numbers 3 & 4 quoted at paragraph 2.1 above, clearly show consensus of there being an existing contract between the Parties. Can all of this evidence still liken him to the elderly couple in the Nkongolo Farms1 case? We think not. In the circumstances, and the Appellant not having discharged the burden of proof, we decline the invitation to set aside the findings of fact made by the lower Court on the issues of fraud , misrepresentation and or undue influence. Ground 1 therefore has no merit. 8.10 We now turn to address our minds to Ground 2, on the alleged failure of the lower Court to take judicial notice of the effects on business due to the Covid pandemic. The Respondent has referred to our decision, rendered in an extempore Ruling, in the case of Kelvin Cheela and Peter J 16 Kamanga v Pulse Financial Services Trading as Entrepreneurs Financial Centre , wherein we recognized that the Covid-19 pandemic did not transfer risk from debtors to creditors and that this remained an issue for negotiation between parties. We are of the considered view that the lower Court correctly found that the option open to the Appellant was to have recourse to the Respondent to re-negotiate the terms of the contract by consent. There is no evidence of any engagement by the Appellant seeking a relaxation on the payment terms and the reference to any verbal discussion that he claimed to have taken place was successfully rebutted by the Respondent, as noted by the lower Court. 8.11 It is trite, and the law is well settled on the principles governing contracts entered into between Parties. On this principle, the learned authors Chitty on Contracts2 have stated as follows : "Where the agreement of the parties has been reduced into writing and the document containing the agreement has been signed by one or both of them, it is well established that the parties signing will be bound by the terms of the written agreement whether or not he has read them or whether or not he is ignorant of their precise legal meaning." 8.12 We have also had occasion to visit our decision in the case of Angel Musonda v Pulse Financial Services15 where we stated as follows: .. when parties enter into legally binding contracts, it is for the Courts to respect the terms and conditions of those contracts and not to interfere with the terms agreed upon by the parties. That the J 17 parties who signed the agreements are bound by them and the Court's role is to enforce the terms of the agreement. 11 In the same case, we cited with approval the often cited holding of the Supreme Court in the case of Colgate Palmolive (Z) Inc v Shemu and Others 5 which equally applies in casu: "If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting and their contract when entered into freely and voluntarily shall be enforced by courts. 11 It is also trite that the defaulting borrowers should not be allowed to make use of court process to advance its own interest as guided by the Supreme Court in the case of Savenda Management Services v Stanbic Bank Zambia Limited16 . 8.13 In casu, and applying the above authorities, we are duty bound to follow the terms of the written agreement between the Parties and we note that the reliefs sought in the lower Court and at appeal, are simply an attempt by the Appellant to re-w rite the terms of the contract, using the Court to do so. It is also trite law that a defaulting party is not entitled to protection from the Court on mere whims and unsubstantiated allegations. In the case of Kanjala Hills Lodge Limited and Jayetileke v Stanbic Zambia Limited17 the Supreme Court, in dismissing an appeal against the appellant stated that: "the Court cannot assist the Appellant who appears to be bent on avoiding honoring their obligation of paying back the money they Jl8 borrowed from the Respondent...and they did not come to Court with clean hands and cannot expect to be protected by the Court." Ground 2 must equally fail. 8.14 We note again that Ground 3, which appears to compliment the arguments in Ground 2, continues to attack findings of fact by the lower Court. Notwithstanding that we have dismissed ground 2, we note that the Appellant continues in its trajectory of 'he said-she said' statements. The Respondent has countered that the Appellant has failed to discharge the burden of proof that rests on him and has also called in aid the decisi on of the Supreme Court in the case of Anderson Kambela Mazoka & 2 others v Levy Patrick Mwanawasa & 2 others18 . The Appellant, under this ground of appeal, reiterates his experience in dealing with financial institutions, and it is thus immaterial who visited who, and how many times, what is in issue, is the undisputed fact of there being a loan agreement and contract entered into between the parties in casu. For the reasons above, this is not a ground that we can entertain, nor can we upset the findings made by the lower Court, as these are not shown to be perverse or against the weight of evidence. Ground 3 is equally dismissed. 8.15 We have interrogated the arguments in ground 4 which appear to challenge the order of the lower Court to convey the property to the Respondent. We have noted that the lower Court in considering the counterclaim of the Respondent, did find that an equitable mortgage was constituted by the mere deposit of title deeds as security as guided by the Supreme Court in its decisions rendered in the case of Musaku Mukumbwa v Rody Musatwe, Northern Breweries Limited & Kailande Trading Limited19 and the case of Magic Carpet Travel and Tours v JI 9 Zambia National Commercial Bank limited20 . The lower Court found at page JS3 that the act of voluntarily delivering or depositing his Occupancy License for House No. 02/28 Garden created security for the loan in the form of an equitable mortgage between the parties. 8.16 The lower Court reasoned that the remedies available to an equitable mortgagee, required him to obtain an order for foreclosure, delivery possession and sale under Order 88 RSC and was guided by the case of Kasabi Industries limited v lntermarket Banking Corporation7 where the Supreme Court guided that: "it is clear that an equitable mortgagee does not have power to sell the mortgaged property as a way of enforcing the mortgage. He however, has the right to obtain an Order of Court for foreclosure and once the property is foreclosed, the Mortgagor's right of redemption is completely extinguished and property must be conveyed to the mortgagee by the mortgagor unconditionally." 8.17 We have examined the Orders of the Court as revised on 14t h April 2022. We do not have any reason to disagree with the Judgment of the lower Court and any issue the Appellant may have with the value of the property, the subject of the Order of foreclosure, being more than the Appellant's obligations are misplaced in context. It is trite that after execution, the Party must account to the mortgagor of the proceeds of sale. With respect to ground 4b of the appeal, the Respondent has argued that other than making a general statement that the lower Court erred, the same has not been substantiated in any way. We however note that the Respondent had specifically pleaded the relief, and which was granted by the lower Court. We do not find any merit in this argument. J20 8.18 With respect to ground 4c of the grounds of appeal, our attention has been drawn to the guidance by the Supreme Court on the principle of interest in the case of Zambian Breweries Pie v Lameck Sakala 21 where the Court stated as follows: " ... As to the rate of interest, and the effective date, the standard practice on debts, is to award interest on the sum owing, at the short-term deposit-rate, from the date of issue of the Writ of Summons to the date of judgment. This is pursuant to Order 36 rule 8 of the High Court Rules. Thereafter, up to the date of settlement, interest is awarded at the current lending rate as determined by the Bank of Zambia. This is pursuant to section 2 of the Judgment Act, chapter 81 of the laws of Zambia. 11 We are therefore of the settled view that the lower Court was on firm ground in the award of interest as provided by Order 36 rule 8 of the High Court Rules2 . This ground is equally devoi of merit and is dismissed. 8.19 The net result is that the appe with costs to the Respondent, to be taxed in def J. Cl;f HI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE A. N. PAT£rs.c. COURT OF APPEAL JUDGE J2 I