Courtyard Hotel Limited v Zambia National Commercial Bank & Others (Appeal 150 of 2016) [2017] ZMSC 21 (10 March 2017)

SCZ SELECTED JUDGMENT No. 11 of 2017 P. 328 IN THE SUPREME COURT OF ZAMBIA APPEAL No: 150/2016 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: COURTYARD HOTEL LIMITED (cid:9) APPELLANT AND ZAMBIA NATIONAL COMMERCIAL BANK (cid:9) 1ST RESPONDENT EDGAR HAMUWELE (Sued in his capacity as joint Receiver of Courtyard Hotel Limited) (cid:9) 2ND RESPONDENT CHRISTOPHER MULENGA (Sued in his capacity as joint Receiver of Courtyard Hotel Limited) (cid:9) 3RD RESPONDENT Coram: (cid:9) Wood, Malila and Mutuna, JJS on 7th March, 2017 and 10th March, 2017 For the Appellant: (cid:9) Mr. J. Madaika, Messrs J 86 M Advocates For the 1st Appellant: (cid:9) Mrs. A. Mwalule, in-house counsel For the 2nd and 3rd Respondents: (cid:9) Mr. K. Chenda of Messrs Simeza Sangwa 86 Associates JUDGMENT Malila, JS, delivered the Judgment of the Court. Cases referred to: Lloyds Bank Limited u. Bundy [1974]3 ALL ER 753 Intermarket Banking Corporation u. Kasonde, Appeal No. 139/2009 /2014] (cid:9) J. I J2 P. 329 Royal Bank of Scotland LI. Etridge (No.2) and Other Appeals (2001) 4 ALLER 457 National Westminister Bank v. Morgan [1985] 2 WLR 588 Allcard v. Skinner [1887] 36 Ch. D 145 A. Schroeder Publishing Company Limited v. Macaulay [1974] 1 WLR Attorney-General u. Marcus Kampumba Achiume [1983] ZR. 1 Communications Authority v. Vodacom Zambia Limited [SCZ No. 21 of 2009] Zambia National Commercial Bank Plc, Edgar Hamuwele, Christopher Mulenga and Courtyard Hotel, Appeal No. 141 of 2015 NFC African Mining Plc v. Lofoyi Enterprises Limited [SCZ No. 27 of 2006] 11., Trade Kings Limited v. Uniliver Plc and Cheesebrough Ponds (Z) 'Limited and Lever Brothers (Z) [2000] ZR. 16 12.' Holmes Limited v. Buildwell Construction Company Limited [1973] ZR 13. Attorney-General v. Kakoma [1975] ZR 216 14. Patrick Makumbi 8625 Others v. Greytown Breweries and 3 Others, Appeal No. 32/2012 15. Wilson Masauso Zulu v. Avondale Housing Project [1982] ZR. 172 Legislations and other works referred to: Order 30 rule 14 of the High Court Rules, Chapter 27 of the laws of Zambia Companies Act, Chapter 388 of the laws of Zambia Atkins Court Forms, 2nd Edition, 2002, Vol. 28 at page 23 Snell's Equity, 29th edition The appellant company was facing an enormous financial predicament. It had luminous plans to confect a new hotel along Great North Road to be called the Courtyard Express Hotel. It had borrowed money from lenders but still found itself without financial resources to complete the project. The shortfall was huge. In December, 2011, it approached the first respondent bank J3 for a loan facility in the order of fifteen million United States Dollars (US$15,000,000). It needed this money to refinance existing loans and to complete construction works on the hotel. P. 330 Typical of financial institutions, the first respondent only reverted to the appellant on its request several months later, presumably after a viability assessment of the project. Even then, the first respondent declined to grant the US$15,000,000 sought by the appellant. It instead expressed willingness to lend the appellant only eight million United States Dollars (US$8,000,000) against specified securities. The first respondent issued a credit facility letter for the said sum of US$8,000,000 on the 4th April, 2012, which was only signed by the parties on the 12th April, 2012. Disbursement of the US$8,000,000 did not commence until about June, 2012. The appellant company began to service the loan but claimed that owing to the long period that had elapsed between the request for the loan and the disbursement, the cost of construction had escalated. This prompted the appellant to revert to the first respondent bank in September, 2012 with a request that the first respondent bank provides a further amount of one million United .1 (cid:9) • J4 P. 331 States Dollars (US$1,000,000) to cover the shortfall that had resulted from the escalated cost of construction. The first respondent bank, according to the appellant, acceded to that request and issued a supplementary offer letter on the 8th October, 2012. In that letter the appellant was also requested to furnish further securities to secure the original loan amount of US$8,000,000, which securities the appellant claimed it duly furnished. In spite of all this, the first respondent, in December 2012, informed the appellant that the request for a further loan of US$1,000,000 had been declined. The appellant was naturally taken aback by this development, particularly given that it had in the meantime paid into the bank two hundred and forty thousand United States Dollars sums of (US$240,000) and seventy five thousand United States Dollars (US$75,000) in or about October, 2012 at the request, as it claims, of the first respondent, which deposits the appellant understood was a prerequisite for the disbursement of the additional US$1,000,000 requested for. The delayed communication of the rejection of the additional US$1,000,000 loan sought, according to the appellant, resulted in a J5 P. 332 further escalation of construction costs, and the original loan was already accruing interest and repayments had to be made by the appellant despite the first respondent's failure to honour their assurance to avail additional funds. Undeterred by all these developments, the appellant kept the faith and in January, 2013 once more approached the first respondent to reconsider its rejection of the appellant's application for an additional loan, bearing in mind the additional securities that had been furnished to the first respondent. In this regard, the appellant moderated its request downwards to five hundred thousand United States Dollars (US$500,000) in place of the US$1,000,000 it had originally sought. This request too, was denied. As if subliminally responding to the teaching of the Holy Book 'ask and it shall be given,' the appellant, in May 2013, was again knocking at the first respondent's door, asking that the loan be restructured up to October, 2013, and that as part of the restructuring, an additional disbursement of two hundred thousand United States Dollars (US$200,000) be made in favour of the appellant. According to the appellant, the first respondent appeared willing to restructure the loan, and as part of the J6 P. 333 condition for that restructuring, requested the appellant to execute a debenture to include, as security, additional assets of the appellant. According to the appellant, it reluctantly did as requested. In November, 2013, the appellant, with indomitable faith, once again pleaded with the first respondent to release the US$200,000 additional loan funding but to no avail. According to the appellant, as at the time of commencement of these proceedings against the respondents, that is to say, 21st February, 2014, the first respondent had not disbursed a single cent of the US$200,000 that it had undertaken to disburse on the strength of the debenture. Various efforts to get the matter resolved amicably were unsuccessful. The appellant found the refusal by the first respondent to live up to its commitment to advance a further US$200,000, especially after additional securities had been furnished, to amount to fraudulent misrepresentation which undermined the appellant's quest to complete construction of the hotel and in this sense clogged the efforts of the appellant to live up to its contractual commitment under the original loan J7 P. 334 agreement. The fraud alleged comprised the procurement by the first respondent of the signature of Ayubu Mulla, a director of the appellant, on the debenture by false pretences that US$200,000 would be disbursed following signature of the debenture. The appellant complained that the first respondent had illegally held on to securities for which it had not furnished any consideration in terms of monetary disbursement of additional funds. It accused the first respondent of colluding with the second and third respondents to dispose of the appellant's assets even before the appointment of the second and third respondents as receivers. In these circumstances, the appellant's loan repayments became delinquent. The first respondent consequently wrote a letter of demand and in February, 2014, sought to enforce the debenture and appointed the second and third respondents as joint receivers of the appellant company pursuant to the provisions of the debenture. The appellant maintained that the debenture had no legal efficacy as consideration for it had wholly failed. J8 P. 335 As no settlement would be reached amicably between the parties, frustration must have taken the better of the appellant who decided to commenced proceedings in the High Court, claiming a medley of relief, key among which were: a declaration that the failure by the first respondent to disburse the money pledged to be disbursed under the debenture amounted to a breach of the condition of the said debenture which thereby rendered the debenture null and void for want of consideration on the part of the 1st respondent; an order that any attempts by the respondents to enforce the said debenture are illegal, null and void; an order that the appointment of the second and third respondents as joint receivers was null and void; that the substantive agreement in place and enforceable between the appellant and the first respondent was a credit facility letter dated 4th April, 2012. an order that the first respondent's action of obtaining a further collateral from the appellant but failing to release funds amounted to fraudulent misrepresentation; J9 P. 336 damages for misrepresentation, for trespass, and special damages for costs incurred by the appellant on account of the first respondent's misrepresentation; and an injunction restraining the respondents or the agents from entering the appellant's premises. The first respondent opposed the appellant's action in the lower court, arguing in the main, that the delay in disbursement of the funds on the US$8,000,000 loan was occasioned by the appellant which delayed in meeting all the loan conditions, and that the first respondent had no obligation of providing for any escalation in costs - the same being the responsibility of the appellant. The first respondent also averred that the request for further security from the appellant was for the purpose of securing the original loan amount and not for purposes of disbursing the US$1,000,000 requested for. The first respondent further averred that it properly communicated its non-approval of the additional loan applied for by the appellant and, therefore, that there was no agreement in respect of theUS$1,000,000. J10 P. 337 The first respondent denied that there was any agreement for disbursement of additional funds or for extra securities and averred that the terms of the restructuring of the facility were contained in the facility letter dated 21st June, 2013. Equally, the first respondent denied most categorically that there was any agreement for disbursement of US$200,000 or that any undue influence was exerted on any of the appellant's officers to sign the floating debenture. Furthermore, that its appointment of the second and third respondents as joint receivers was perfectly in accordance with the first respondent's rights under the debenture which was, according to the first respondent, properly executed. The second and third respondent equally denied the claim, raising a technical argument that the appellant did not have the locus stanch to commence proceedings in its name given that the appellant was at the time under receivership. The commencement of the action, according to the second and third respondents, contravened the provisions of the Companies Act, Chapter 388 of the laws of Zambia. Consequently, the second and third J11 P. 338 respondents were of the view that the action was null and void ab initio. The learned High Court judge heard the matter and received evidence from the parties. In a very long judgment covered in 71 pages he came to the conclusion that there was no misdirection on the part of the first, second or third respondents, nor was there any misrepresentation or undue influence. He was of the view that all the securities which the first respondent held in respect of the loan agreement evinced by the letter of 4th April, 2012, inclusive of the debenture, are enforceable in accordance with their terms. He dismissed the appellant's action in its entirety, discharged the interlocutory injunction which he had granted and directed the first, second and third respondents to recover any damages which they may have incurred as a result of the injunction. It is against that judgment that the appellant has now appealed, raising five ground of appeal structured as follows: 1. The learned puisne judge erred in law and fact when he held that there, was no unconscionable conduct or fraudulent misrepresentation in the manner that the first respondent dealt with the appellant as its customer/client. J12 P. 339 The learned puisne judge misdirected himself when he held that there was no reference to a redeemable mortgage either in the pleadings or the evidence and that therefore the question of the appellant's equity of redemption has no place in this action. The learned puisne judge erred in law and fact when he found that the debenture deed was meant to secure the original loan of US$8,000,000 which finding was made against the weight of the evidence adduced before him and is therefore perverse. The learned puisne judge misdirected himself when he failed to consider the documentary evidence and the witness' testimony as a whole, but instead chose to highlight certain pieces of evidence in isolation and made findings of fact based entirely on the said isolated evidence without referring to or contrasting it with the other evidence on record. The learned puisne judge erred in law when he failed to make a definitive order for the return of the securities being held by the 1st respondent for which no funds have been furnished. On behalf of the appellant heads of argument were filed on the 4th of August, 2016. Supplementary heads of argument and list of authorities were also filed on the 20th February, 2017. On behalf of the first respondent, heads of argument were filed on the 23rd February, 2017 while those on behalf of the second and third respondent were filed on the 24th February, 2017. It is on these heads of argument that the learned counsel for the parties J13 principally relied. Oral arguments were also made to supplement P.340 these heads of argument. In relation to ground one, Mr. Madaika, learned counsel for the appellant contended that the trial court misdirected itself in not holding that there was some form of unconscionable conduct or fraudulent misrepresentation in the manner in which the first respondent treated the appellant. He argued that the first respondent used its position as a party having a higher bargaining power to exert some form of undue advantage over the appellant especially in regard to the debenture issued by the appellant in favour of the first respondent. We were referred to a passage in the judgment of the lower court which stated that: "...therefore, the letter in question merely required the plaintiff (appellant) to furnish further securities for the initial loan in the sum of US$8,000,000..." The appellant's learned counsel asked the question why the appellant would keep on furnishing other securities over an amount which had already been secured but which amount was not adequate. J14 P. 341 In an effort to demonstrate that there was unconscionable conduct on the part of the first respondent, counsel for the appellant claimed that from the cross examination of PW1, it was clear that the appellant had paid into the first respondent's account the sums of US$240,000 and US$70,000 as part of the precondition for the disbursement of the additional loan. The lower court should have found that indeed there was unconscionable conduct on the part of the first respondent. The argument of the appellant on this ground in a nutshell, was that the lower court did not meticulously consider the evidence before it which clearly suggested that there was unconscionable conduct on the part of the first respondent which used its influential position to the detriment of the appellant. The learned counsel ended his arguments on ground one by submitting that the evidence of PW1 was to the effect that the second and third respondents as receivers, working in collusion with the first respondent, had already connived with Red Sea Limited and Grand Palace Hotel to sell Courtyard Hotel along Thabo Mbeki Road, and that that evidence went unchallenged in cross-examination. J15 P. 342 In the supplementary heads of argument it was submitted that the appellant's officers had over the period developed a close relationship with the first respondent's officer to a point where a considerable level of informality was allowed to creep into the negotiations. Exchanges over the loan facilities became verbal despite the collosal amounts involved. The trust and confidence that ensued was inappropriately exploited by the first respondent, leading the appellant's officers to sign certain documents on the understanding that this would result in the release of further monies to the appellant. It was also argued that the debenture deed was not part of the loan facility of the 4th April, 2012, and that there was no mention in the deed itself or in the restructured loan facility letter of 21st June, 2013 of the debenture. The learned counsel made reference to the case of Lloyd Bank Limited v. Bundy(1) and the case of Intermarket Banking Corporation v. Kasonde(2), in both of which the courts frowned upon undue influence in a banker/customer relationship. J16 In responding to ground one of the appeal, Mrs. Mwalule, P. 343 learned counsel for the first respondent, submitted that the business relationship between the appellant and the first respondent as demonstrated in the evidence deployed in the court below, was a normal one and not one of trust and confidence in the manner suggested by the appellant. Relying on the case of Royal Bank of Scotland v. Etridge (No.2)(31, the first respondent's counsel submitted that the relationship of a banker and customer does not meet the criterion of trust and confidence unless the bank also has a dominating influence on the customer, or the transaction is so manifestly to the disadvantage of the customer. This position, according to counsel, is also supported by the House of Lords decision in National Westminister Bank Plc v. MorgaM4). The first respondent maintained that there was no pressure whatsoever exerted on the appellant to borrow and provide security, and that a presumption of trust and confidence alone cannot give rise to a claim for undue influence. For this submission reliance was also placed on the judgment of Lindley J, in Allcard v. Skinner(5) where undue influence was described as 'some unfair and improper conduct, some coercion from outside, J17 P. 344 some overreaching form of cheating and generally, though not always, some personal advantage gained.' It was the first respondent's case on this ground that the appellant entered into the borrowing transaction with the first respondent freely and without undue influence as understood in the law referred to. Furthermore, the appellant benefited from the borrowing. On behalf of the second and third respondent it was submitted by Mr. Chenda, learned counsel, in relation to ground one that the issue of unconscionable conduct on the part of the first respondent in regard to the appellant's execution of the debenture does not arise. Five reasons were enlisted for this submission as follows: (a) At inception of the facility the appellant was expressly advised in writing of its right to seek independent legal advice before signing any security document. We were referred to the facility letter of 4th April, 2012 which states in clause 7.13 that: J18 P. 345 "INDEPENDENT LEGAL ADVICE The Bank hereby advises you that nothing contained herein shall preclude your right to retain at your own cost an independent legal practitioner for purposes of the review on your behalf of all and any legal and security documentation pertaining to the facilities, prior to your execution of the same. The importance of doing so is for the safeguard of your own interest in this regard, notwithstanding the fact that the Bank shall remain the instructing party in respect of all security documentation pertaining hereto." the debenture of 10th June, 2013 was preceded by an additional security in a letter dated 31st May, 2013 whose terms were signed for and accepted by the appellant; the appellant was already familiar with banking practices and banking documentation having previously had facilities with other banks; the debenture was signed on behalf of the appellant by a middle aged and educated business executive whose credentials in the affidavit include the lofty title of Dr'; and the appellant has not demonstrated that the debenture contains anything other than the usual standard terms including the power to appoint a receiver. It was further contended that although in its amended pleadings the appellant gave some particulars of fraudulent J19 P. 346 misrepresentation, those particulars were at variance with the evidence adduced which did not reveal any representation by the first respondent that disbursement of US$200,000 would follow upon the execution of the debenture. It was also pointed out that the debenture does not make any reference to the US$200,000 additional loan as claimed; rather it categorically states in clause 24 that the security was for the US$8,000,000 which amount comprised the pre-existing facility. It was also contended on behalf of the second and third respondent that even the correspondence exchanged between the parties did not make reference to the US$200,000. More importantly, our attention was drawn to clause 8.11 of the facility letter of 21st June, 2013 which stated as follows: "The availability of these facilities is at all times subject to the Banks compliance in such a manner as it thinks fit with any and all restrictions, rules and regulations of the Bank of Zambia or any other applicable regulatory authority from time to time in force. The above facilities are subject to periodic review by the Bank at its discretion and it is expressly agreed that the facilities will at all times be available at the sole discretion of the Bank." We were also referred to the portion in the record of appeal recording the evidence of PW1 (Dr. Mu11a) who, in cross- J20 P. 347 examination, conceded that the disbursement of US$200,000 was subject to the fulfilment of the security requirements which the appellant failed to satisfy. We were urged to dismiss ground one of the appeal. We have carefully considered the arguments under this ground of appeal against the evidence on the record of appeal. The question that calls for determination is whether the transaction between the parties was unconscionable, that is to say, whether it was so one sided that it was unfair to one party and, therefore, unenforceable under law? In other words, was it a contract that left one party with no real, meaningful choice? A contract will be unconscionable if one of the three different factors are present, namely undue influence, duress or unequal bargaining power. The basic characteristic of most unconscionable contracts is that one party signed under situations involving pressure, lack of information, or by being misled. The increasing judicial willingness to intervene in contractual dealings involving any of these factors was perhaps most fully articulated by Lord Denning, MR in Lloyds Bank Limited v. Bundy(1) which was referred J21 P. 348 to by Mr. Madaika in his submissions, and by the House of Lords in A. Schroeder Publishing Company Limited v. Macaulay(6), a case involving a restraint of trade. Judicial intervention depends on the equitable doctrines of unconscionability and undue influence to justify the court's holding of contracting parties to standards of behaviour which the courts regard as acceptable. The claim that the basis of the equitable doctrines of unconscionability and undue influence lay in 'inequality of bargaining power' received the most forceful expression in the judgment of Lord Denning, MR in Lloyds Bank v. Bundy(1), which judgment, we must observe, was later specifically disapproved by a unanimous House of Lords in National Westminister Bank v. Morgan(4) to which Mrs. Mwalule referred. The majority in Lloyds Bank v. Bundy(1) (Cairns, IA and Sir Eric Sachs, with Lord Denning agreeing in the alternative), had reached a result, not on the basis of Lord Denning's principle of 'inequality of bargaining power,' but on the narrower ground that the appellant bank had breached a duty consequent upon its relationship of confidence with the respondent, and that the case could, therefore, be decided upon the doctrine of undue influence as defined in Allcard v. Skinner(5). This is the approach which was J22 P. 349 followed in the case of National Westminister Bank v. Morgan(4). We must add that this case resulted in a restatement of the principle governing undue influence which is now of fundamental importance in English law. The House of Lords was clear that There is no precisely defined law setting limits to the equitable jurisdiction of a court to relieve against undue influence' and that the court 'in the exercise of this equitable jurisdiction is a court of conscience' determining unconscionability of a transaction 'upon the particular facts of a case' (per Lord Scarman, at 602 B-D). The court also reaffirmed the position that before a transaction can be set aside on the basis of undue influence, it must be shown to be wrongful as of manifest and unfair disadvantage to the person seeking to avoid it. In the present case it is the appellant's case that it was led into furnishing the additional security in the form of a debenture by false representation that an additional loan would be availed as a consequence of the furnishing of such additional security. An examination of the evidence on record shows that the security required for the loan of US$8,000,000 was listed in J23 P. 350 clause/paragraph 6 of the credit facility letter of 4th April, 2012. It did not include a debenture. There was a supplementary offer letter dated 8th October, 2012, which equally referred to the security already held and that still required by the first respondent. There too, no debenture was mentioned. The loan facility was later restructured. In the letter from the respondent dated 21st June, 2013 the restructured term loan of US$9,000,000 consolidated the existing term loan of US$4,519,728.30, unauthorised overdraft balance of ZMW1,516,191 as at 31st May, 2013 and additional Term Loan of US$200,000. It is in this letter that a floating debenture over all company assets of the appellant was listed as security for the first time. That floating debenture was promptly executed and filed at the Patents and Companies Registration Agency on 11th June, 2013. It is on the basis of that debenture that the first respondent appointed the second and third respondent as receivers. The question is whether the debenture was required by the first respondent on the back of any promise that an additional loan amount would be disbursed. We have examined the letter of the 11th June, 2013 as well as other correspondence exchanged. We are inclined to accept the J24 P. 351 arguments that have been put forth by the learned counsel for the first respondent that this was a transaction in which the parties negotiated in good faith. The appellant may well have been labouring under some misapprehension that the first respondent would provide further funding facilities to the appellant. An examination of all the correspondence exchanged leaves us in no doubt that the first respondent did not make any definite commitment that upon signing a floating debenture, the appellant would be availed a further loan amount. We are particularly persuaded by the reasons listed by Mr. Chenda, in his heads of argument, that there was no unconscionable conduct on the part of the first respondent. The provisions of clause 7.13 of the facility letter of 4th April, 2012 make it plain that the first respondent did not intend to arrogate to itself exclusive knowledge and influence in determining the legal consequences arising from the securities given for the facility. The facility letter as quoted by Mr. Chenda plainly advised the appellant to seek independent legal advice. All the factors identified by Mr. Chenda regarding the peculiar circumstances of the appellant make untenable any claim that the J25 P. 352 debenture was procured under conditions that confirm unconscionability and undue influence in the way we have explained it. Of course, the bargaining power between the parties is necessarily unequal - the bank having the resources to lend on its own terms, and the appellant being in no position to dictate the terms on which it wanted to borrow. There could even have been a relationship of trust and confidence arising, but as Mrs. Mwalule correctly pointed out, this alone should not give rise to a claim premised on unconscionability and undue influence. The appellant, in our view failed to demonstrate unconscionability, undue influence or indeed duress exerted by the first respondent over it to sign the debenture, nor are we able to see any misrepresentation from the documents available. Ground one is bound to fail and we dismiss it accordingly. In respect of ground two, it was contended on behalf of the appellant that the lower court misdirected itself when it held that there was no reference to redeemable mortgages either in the pleadings or the evidence, and therefore, that the question of the appellant right of redemption had no place in this action. Counsel referred us to the case of Attorney-General v. Marcus Kampumba J26 P. 353 Achiume(7) as well as that of Communications Authority v. Vodacom Zambia Limited(8) to support the argument that an appeal court will not reverse findings of the trial judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts. In relation to the present case, it was contended that the findings by the lower court that there was no reference to the redeemable mortgage either in the pleadings or in the evidence is perverse in that the evidence on record shows that the parties had secured a debenture, and that the law governing debentures is the law of contract, and therefore, that a debenture like any other contracts is subject to the requirements of the same ingredients namely, offer, acceptance and consideration. In response to the second ground of appeal, the first appellant submitted that there was no misdirection on the part of the trial judge when he held that there was no reference to redeemable mortgage either in the pleadings or in the evidence and, therefore, that the appellant's equity of redemption had no place in this action. The argument on behalf of the first respondent was simply that the appellant's action in the court below was premised on the • I J27 P. 354 enforceability of the floating debenture between the appellant and the first respondent. In these circumstances the learned trial judge was on firm ground in his finding. The learned counsel for the second and third respondents effectively reinforced the submission of the first respondent, buttressing it with a quotation from Snell's Equity, 29th edition on the equity of redemption. The thrust of counsel's argument was that the concept of equity of redemption is one peculiar to mortgage actions. In the present case, the appellant's amended process clearly shows that the action was not a mortgage action under Order 30 rule 14 of the High Court Rules, Chapter 27 of the laws of Zambia, but an ordinary action seeking to challenge the validity of a legal instrument being a debenture. We have no hesitation in agreeing with the learned counsel for the respondents that to the extent that the present action was based on a floating debenture and not on a mortgage, the appellant's grievance is misconceived. What the first respondent sought to do by appointing the second and third respondent was to enforce the terms of the debenture, not the mortgages that were J28 P. 355 created over other properties. As with all securities, however, the lender is under an obligation to render an account after realising what is owed to it. Ground two of the appeal is without merit and must fail. In respect of ground three, the appellant attacked the lower court's finding that the debenture deed was meant to secure a loan of US$8,000,000. The learned counsel took us through the history of the application and disbursement before submitting that the additional debenture as security was deposited by the appellant with the first respondent for purposes of further disbursements and not for the purposes of securing the initial loan. Counsel repeated the authorities he had earlier cited in regard to the circumstances in which the court may reverse findings of fact, before concluding that the trial court failed to analyse the evidence before him and that this was a misdirection which this court ought to correct. After referring to the mortgage's primary covenant and referring us to a passage in Atkins Court Forms, 2nd Edition, 2002, Vol. 28 at page 23, counsel for the appellant submitted that the J29 P. 356 appellant was misled by the first respondent in that the first respondent led the appellant to believe that the execution of the debenture deed would be followed by the first respondent disbursing further funds. He added that the appellant would not have executed the debenture deed had there not been an assurance or promise from the first respondent that such a disbursement would be made. Counsel argued that the first respondent's failure to disburse the funds must negate the debenture for being without consideration. The first respondent's response to ground three of the appeal is simply that the lower court judge was right in holding that the debenture was intended to secure the original loan of US$8,000,000. Counsel for the first respondent pointed to clause 24 of the debenture deed which states that: "The total amount recoverable hereunder shall be United States Dollars Eight Million (US$8,000,000) and accordingly the security hereby constituted is to be available for such amounts as may be outstanding from time to time together with interest thereon." Having quoted that clause of the debenture, the learned counsel submitted that the floating debenture made no reference to disbursement of a further US$200,000 as claimed by the J30 P. 357 appellant. The alleged undertaking by the first respondent in their letter of 21st June, 2013 restructuring the facility was made way after the said debenture was executed. Logically, therefore, the debenture could not have been executed with a future possible event in mind. Mrs. Mwalule further submitted that the debenture makes no mention of a further US$200,000 and neither does the credit facility letter of 21st June, 2013. The lower court, according to the learned counsel, could not make a finding of fact contrary to the evidence before it. More purposefully perhaps, the learned counsel referred us to our judgment involving the same parties as here in Appeal No. 141 of 2015 between Zambia National Commercial Bank Plc, Edgar Hamuwele, Christopher Mulenga and Courtyard Hotel(9) where it was stated that the debenture was intended to secure the US$8,000,000. In that case, Kaoma JS, on behalf of the court, stated among other things that: "...there is no dispute that the Pt defendant granted a loan of US$8,000,000 to the plaintiff or that the plaintiff provided security for the loan facility in form of its properties and executed a mortgage deed. Additionally, the plaintiff provided further security in form of a floating debenture dated 10th June, 2013, relating to all its undertakings and all its property assets and rights J31 P. 358 whatsoever and wheresoever, including its uncalled capital and goodwill both present and future." Mr. Chenda for his part contended that ground three and ground four attacked findings of fact without satisfying the requirements for such an effort as we set them out in a number of cases including Communications Authority of Zambia v. Vodacom Zambia Limited(8). Counsel claimed that the trial judge made a holistic evaluation of the evidence before it prior to arriving at its findings. He reproduced portions of the lower court's judgment in this regard. We think, with respect to counsel for the appellant, that this ground is bereft of merit. Part of the reasons for the position we take have already been covered in regard to grounds one and two of this appeal. On the broader argument that additional security in the form of a debenture was requested for and furnished without consideration or reciprocity from the first respondent we do not think that the initial lending of US$8,000,000 can be separated from the later request from additional security. A bank as lender, J32 P. 359 does in our view have the right to call for collateral additional to collateral already furnished even if the monies intended to be secured was already disbursed, provided that there is a contractual term allowing it to do so. An examination of the facility letter of 4th April, 2012 reveals that the first respondent bank had invested in itself a power to amend or alter the conditions of the loan, in some cases with retrospective effect. The opening paragraph of that letter states in part that: "Zambia National Commercial Bank Plc ("the Bank") is pleased to offer Courtyard Hotel Limited ("the Borrower") credit facilities as outlined below, subject to conditions precedent and upon representations and warranties as set out herein as modified by the Bank from time to time and subject to the satisfactory completion of any security documentation." Clause 7 relates to breach by the borrower of the conditions of the loan, and the rights of the bank in those circumstances. Clause 7.2.5 specifically entitles the bank to: "modify the pricing of the facility and/or call upon the borrower to provide additional collateral/security in form and substance satisfactory to the Bank, under a restructured facility in its sole discretion." There is no argument that the appellant experienced remarkable difficulties in honouring its obligations under the loan as originally • J33 P. 360 given. This culminated in the restructuring as set out in the letter of 15th June, 2013 in terms of which additional security in the form of a floating debenture was requested for. All these circumstances taken together make the argument by the appellant that the first respondent provided nothing in return for the additional security, i.e. the debenture, fanciful in law. As to what amount of the loan the debenture sought to secure, the debenture deed, as Mrs. Mwalule pointed out, speaks for itself. There is no mention whatsoever that the floating debenture was intended to secure any additional funding beyond the US$8,000,000. Furthermore, this was a question of fact upon which, as Mr. Chenda pointed out, the learned trial judge made a finding. We do not think that the finding was perverse or made in the absence of evidence. We are above all satisfied that in our judgment in Appeal No. 141 of 2015, this issue was dealt with and the position of this court made clear. We do not intend to either reverse ourselves or contradict what we stated in that case. But more pertinently, the documents before us eloquently state what the debenture was intended to secure. Ground three is destitute of merit. It is dismissed accordingly. J34 P. 361 Under ground four, the appellant alleges that the learned trial judge did not consider the documentary evidence and witnesses' testimony in whole, but chose to highlight certain parts of the evidence adduced in isolation, and thereby making the findings of facts based entirely on the isolated evidence. This, according to the learned counsel, is a misdirection. He cited the case of NFC African Mining Plc v. Lofoyi Enterprises Limited(10) to support his submission. Mr. Madaika argued that the appellant produced sufficient evidence to support its case which the lower court failed to adequately take into account. We were referred to the case of Trade Kings Limited v. Uniliver Plc and Cheesebrough Ponds (Z) Limited and Lever Brothers (Z)("), where the necessity to adjudicate upon all issues actually presented was emphasised. Mrs. Mwalule impugned the arguments of the appellant under ground four of the appeal principally on the basis that the documentary evidence before the lower court outweighed the testimony of the appellant's witnesses which was, at any rate, at variance with the documents executed by the appellant. We were referred to the High Court decision in the case of Holmes Limited v. Buildwell Construction Company Limited('2) where Bruce Lyle J, J35 P. 362 restate the well-known position of the law that where a written document embodies the terms of a contract a party will not be allowed to introduce extrinsic evidence to add to, subtract or vary the written document. In his submission on this ground Mr. Chenda echoed the arguments of Mrs. Mwalule but went still further to refer to specific portions of the record of appeal to demonstrate the folly of the appellant's argument. More significantly, and as we have already pointed out, his general argument was that the ground of appeal sought to upset a finding of fact. We have carefully considered the arguments of counsel for the parties relative to ground four of the appeal. It seems to us that the grievance of the appellant relates mainly to the treatment by the trial court of the evidence before him. Our examination of the judgment of the trial court leaves us in no doubt whatsoever that the judge did meticulously consider the conflicting positions of the parties in terms of both the evidence and the submissions. At J53 of the judgment, the trial judge stated as follows: "I have perused the submissions by counsel though, from my vantage point, I find both sets of submissions to be barely helpful. „ J36 P. 363 The documents on record considered in light of the evidence adduced by the witnesses appear to be less convoluted than counsel made the case to appear in their submissions..." We do not think, therefore, that the criticism of the trial judge as set out in ground four of the appeal is correct. We have stated in numerous case authorities that as an appellate court it is not our role to assess evidence and make findings of fact. In Attorney- General v. Kakoma(13) we observed as follows: "[a] court is entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings on the evidence before it having seen and heard witnesses giving that evidence." We reiterated this position in Patrick Makumbi & 25 Others v. Greytown Breweries and 3 Others(14), where we stated that: "we are of the firm view that assessment of conflicting witnesses' evidence is in the province of the trial court: it does not belong here." Given the position of the law as we have given it, we do not think that the learned trial judge can be faulted for making his assessment of the evidence before him and reaching the conclusion that he did. Ground four has no merit. It is dismissed accordingly. • 40 • J37 P. 364 Ground five of the appeal challenged the lower court for failing to make what the appellant called a definitive order on the return of the securities that are being held by the first respondent for which no funds were disbursed. According to counsel for the appellant, this was a misdirection as it amounted to the lower court failing to adjudicate on all matters in dispute. The case of Wilson Masauso Zulu v. Avondale Housing Project115) was cited to buttress that submission. Counsel ended by urging us to uphold the appeal on all grounds. The response of the first respondent on the arguments in relation to ground five is that the first appellant is not illegally holding onto any security documents as the appellant claims. The certificates of title numbers 77630 and 77631 are still in the possession of the first respondent as the lower court found. The purpose for which they were collected, namely registration of assignments for rentals receivable had not yet been completed. Counsel for the first respondent contends that those title deeds were never collected for purposes of collateral but for registration of leases on them. J38 P. 365 Mr. Chenda also gave detailed submissions on this very aspect supported by authorities. It is unnecessary to reproduce those arguments here. We do not think that this ground of appeal merits any further consideration then it has been given. The certificates of title were given to the first respondent for the specific purpose of registration of receivables from leases. There should be no question of the first respondent using those title deeds for any other purpose than what was intended by the parties. As the purpose intended has not been achieved for whatever reason, the claim in ground five is clearly premature. It is misconceived. We accordingly find no merit in ground five of the appeal and dismiss it accordingly. The net result is that the whole appeal is without merit and is dismissed in its entirety. The respondents shall have their costs to be taxed in default of agreement. ........ A. M. o SUPREME COURT JUDGE tcf Malila SC SUPREME COURT JUDGE N K „ut na SUPRE COU T JeDGE