Nkonde v Konidaris (Appeal 59 of 2011) [2017] ZMSC 266 (26 April 2017)

J1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO.59/2011 SCZ/8/76/2011 BETWEEN: DAVID KANGWA NKONDE APPELLANT AND SPIRODON KONIDARIS RESPONDENT Coram: Chibomba, Hamaundu and Kaoma, JJS on 8th May, 2014 and 26th April, 2017 For the Appellant : Mr. P. G. Katupisha, Messrs Milner Katolo & Associates For the Respondent: Mr. S. M. Dzekedzeke, Messrs Dzekedzeke & Company and Mr. M. Zulu, Messrs Makebi Zulu Advocates JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Jane Mwenya and Jason Randee v Paul Kapinga [1998] ZR 17 2. Majory Mambwe Masiye v Cosmas Phiri [2000] 2 ZR 56 3. Chamber Colliery Limited v Twyerould (1893) 1 Ch 268 4. Morris v Baron Company [1918] A. C. 1 I J 2 Other authorities referred to: 1. Law Association of Zambia General Conditions of Sale 1997 2. Rules of the Supreme Court (White Book) 1999 Edition Works referred to: Chitty on Contracts, thirtieth edition (London, Sweet & Maxwell) This appeal is in two parts: First, it is against the main judgment of the High Court which granted to the respondent an order for vacant possession of Plot No. 3/Z/A/737, Vubu Road, Emmasdale, as well as mesne profits. Secondly, it is against a subsequent ruling of the court below which ordered the appellant to pay into court a sum of US$ 50,000 as a condition for the grant of an order staying execution of the judgment, pending appeal. The brief facts leading to this appeal are these: In 2005, the respondent decided to sell its property Plot No. 3/Z/A/737 to the respondent at the price of US$250,000. To that end, the two parties executed a contract of sale on the 13th December, 2005. The salient terms of that contract which are the subject of this appeal were as follows: Clause 1 provided that the property was being sold subject to the Law Association of Zambia General Conditions of Sale so far ‘ * J 3 as the same are not inconsistent with or varied by the special conditions in the contract. Clause 9 provided that the appellant as purchaser was to pay the sum of US$40,000 towards the purchase price upon exchange of contract, whereupon he would take vacant possession of the shop premises only. Clause 10 provided that the appellant would pay a further W sum of US$40,000 towards the purchase price on or before the 31st December, 2005. Clause 11 provided that the appellant would pay the balance of US$170,000 within 18 months from 1st January, 2006, in three six monthly instalments. Clause 16 provided that the respondent, being the vendor, would vacate the remainder of the property, leaving the appellant to " take vacant possession thereof within 90 days from 1st January, 2006. Clause 17 provided for charging of interest in the event of default on the two sums of US$40,000 in clause 9 and 10 respectively. However, for default on the instalments, the clause provided that default on the last instalment would attract interest J 4 only for a period of 90 days, whereupon, if the instalment remained outstanding, the contract would be deemed to have been cancelled and the money paid by the appellant towards the purchase price would be converted into rent at US$2,500 per month from the date the contract was deemed cancelled. Clause 18 provided that, in the event that the contract was cancelled under the circumstances in Clause 1 7 then the appellant would remain in occupation of the property as tenant until the money converted into rent had been fully off-set. It was not in dispute that the appellant paid a total sum of US$110,000 towards the purchase price, leaving a balance of US$140,000. On 19th September, 2007, the respondent’s advocates wrote to the appellant’s advocates, stating that as far as they were concerned, the last instalment had been due on 30th June, 2007 and that the appellant had defaulted. They went on to state that the appellant had instructed them to invoke Clause 17 of the contract and deem the contract cancelled. They further said that the appellant would now remain in occupation of the property as tenant with effect from 1st January, 2006. On 20th August, 2008, however, the respondent served on the appellant a notice to complete J 5 proposing that completion takes place on 27th August, 2008. The sale was not completed. Sometime in 2009, the respondent served on the appellant notice stating that the deposit money that had been converted into rent would be exhausted by the 31st August, 2009 and that the respondent would terminate the tenancy on 22nd October, 2009. Come that date, the appellant did not yield vacant possession of the property. Seeking to repossess the property by court process, the respondent filed an originating notice of motion on the 7th December, 2009, seeking vacant possession of the property and mesne profits. In the affidavit in support of the motion, the respondent recounted how the parties had entered into the contract and that the appellant breached it. It stated that the tenancy that had been created by operation of the default clauses in the contract had come to an end on 22nd October, 2009, and that the respondent had served on the appellant a notice to terminate, or not to renew, the contract; which notice the appellant had failed to challenge, insisting instead that the sale proceeds. Seven months later, the respondent filed a supplementaiy affidavit in which it stated the following: That after the action was commenced, the appellant pleaded with the respondent to be given J 6 a last chance to remedy its default on the contract. To that end, the parties agreed to amend the contract by way of an addendum; as well as a further agreement. The effect of the two new agreements was that the appellant would now pay a sum of US$70,000 over and above the original purchase price of US$250,000. The payment of the amount outstanding was now broken down as follows: (a) a sum of US$150,000 was to be paid by the appellant within 14 days of exchange of the amended contract; and (b)a sum of US$60,000 was to be paid in eight equal monthly instalments of US$7,500. The parties were then to execute a consent judgment in this matter, incorporating the new terms. According to the respondent in that affidavit, the appellant failed to make any of the payments agreed to, prompting the respondent to terminate the contract on 6th May, 2010. The appellant did protest against the termination, charging that it had failed to make payments because the respondent had not provided its bank details. The respondent provided the details on 7th June, 2010 but the appellant still failed to make the payment. Consequently the respondent, again, terminated the contract on 28th June, 2010. In the circumstances, J 7 the respondent now wished to revert to its action as premised on the original terms of the contract. The appellant opposed the two affidavits. The appellant’s position in his affidavit was thus: To start with, the notice of non­ renewal of the tenancy was null and void because no tenancy existed between the parties; their relationship being that of vendor and purchaser, and the respondent, as vendor, had up until then not yielded vacant possession of the remainder of the property. The appellant agreed that the parties did subsequently enter into two further agreements but contended that this time it was within the knowledge of both parties that the payment of the sum of US$150,000 would be financed by the bank. He charged that, notwithstanding the said knowledge, the respondent refused to release the certificate of title relating to the property to the bank in order to provide the bank some security. Consequently, averred the appellant, it became difficult for the bank to grant a loan to him. It was the appellant’s further contention that when the parties executed the two new agreements, Clauses 1 7 and 18 of the original contract ceased to exist and have effect. The appellant insisted that the sale should proceed and that, to that end, the respondent J 8 should release the title deeds to the property so that the bank would release the sum of US$150,000 and he would start paying the monthly instalments. In the alternative, the appellant averred that, in the belief that he had bought the property, he had embarked on carrying out extensive renovations to it. Consequently, he demanded that the value of the improvements be taken into account. Notwithstanding that this matter was brought by way of motion, the court below heard it entirely on affidavit evidence. The court below held the view that when the appellant defaulted on the original terms in the contract, Clause 1 7 thereof came into force and, therefore, the relationship between the parties became that of Landlord and Tenant. The court held further that the sum of US$110,000 paid as deposit having been converted to rent and became exhausted on 22nd October, 2009; therefore, the respondent became entitled to possession of the property as of that date and to mesne profits for any period that the appellant held over the property from that date. The court rejected the appellant’s plea that the sale should proceed, stating that specific performance being an equitable J 9 remedy, the appellant could not avail himself of it since it was by his conduct that the contract was repudiated. Coming to the appellant’s alternative plea that the value of the improvements that he made to the property be taken into account, the court observed that the agreement authorized the appellant to occupy the property comprising the shop premises only and not to undertake any developments on it. However, the court did hold, in the interest of justice, that the improvements be valued by surveyors agreed upon by the parties or by a Government Surveyor and the value thereof be refunded by the respondent. Disatisfied with the judgment, the appellant filed a notice of appeal in this court. He then went back to the court below to apply for a stay of execution of its judgment. In opposing that application, the respondent submitted that, if the court was inclined to grant it, then the appellant should pay into court a sum of US$47,500, representing the outstanding rent due; and, thereafter, a monthly sum of US$2,500, being the monthly rent until the appeal was determined. In its reserved ruling, the court below was of the view that the respondent was entitled to some interim payment for the use and J 10 occupation of the property. Consequently, it granted the order staying execution of judgment on condition that the appellant paid to the respondent an interim sum of US$50,000. The appellant appealed against that order as well. In the appeal against the main judgment, the appellant advanced six grounds of appeal. These are as follows: “1. The learned trial judge misdirected herself in fact when she held that Clause 17 under the contract of sale dated 2005 provided that the conditions of sale were subject to the Law Association of Zambia General Conditions of sale of 1997 so far as the same are not inconsistent with or varied by the special conditions when infact not as reproduced in Judgment at J6 Clause 2. 2. The learned trial judge erred in Law and in fact when she held that the relationship between the parties is that of Landlord and Tenant following the default and not as licensee without stating when that relationship began in light of the contract of sale of 13th December, 2005 having been amended by an addendum dated 28th January, 2010 that referred to the appellant as purchaser and in light of an additional Agreement dated the 29th January, 2010 (which increased) the price by Sixty Thousand United States of America Dollars. 3. The learned trial judge misdirected herself in law and in fact when she held that the appellant (respondent herein) was entitled to possession of the property and entitled to the claim for mesne profits from 22nd J11 October, 2009 which is the date when the sum of US$110,000 paid by the respondent was liquidated or applied as rentals of US$2,500 per month under the terms and conditions of the 2005 contract of sale till date of the judgment with interest at the Bank of Zambia lending rates in total disregard of the intention of the parties to waive the contents of Clause 17 of the 13th December, 2005 contract of sale by amending it through an addendum and additional Agreement in January, 2010. (SIC) 4. The learned trial judge misdirected herself in Law and in fact by holding that it was unjust of the Respondent (Appellant) to use the property without any payment being made without considering how the Respondent (Appellant) took possession before completion under the terms and conditions of the 13th December, 2005, which gave rise to the addendum and further Agreement. 5. The learned trial judge misdirected herself in fact when she held that the contract of sale and the Addendum Agreements only authorized the respondent (Appellant) to be in occupation of the property comprising the shop premises only until completion without considering Clause 16 of the December, 2005 contract in addition to Clause 9 therein. 6. The learned trial judge erred in law when she failed to take into account the addendum and further Agreement when determining the whole matter” The appellant’s sole ground of appeal against the order of interim payment is that the court below erred in law when it made J 12 the order under Order 29 Rule 12 of the Rules of the Supreme Court (White Book) because no application had been made under that Rule. We will dispose of the first ground right way. We find the ground to have no impact or relevance to the substance of the judgment. Indeed, in its judgment, the court below said that the special conditions of sale in the contract of sale between the parties stipulated that the contract was subject to the Law Association of Zambia General conditions of Sale of 1997 so far as the same were not inconsistent with or varied by the contract’s special conditions. According to the court below, this was contained in Clause 1 7. In actual fact the correct clause was Clause 1. Other than that minor slip, there is nothing in the court’s judgment, or on record, that suggests that the resolution of the dispute herein revolved around that particular provision; or that an erroneous reference to the clause in which the provision was to be found tilted the decision in one way or the other. Therefore, we think that this ground of appeal is moot; accordingly we dismiss it. The grounds that form the real substance of this appeal are grounds 2, 3 and 6. We will deal with them first before we turn to grounds 4 and 5 which, in our view, raise peripheral issues. J 13 The position of the appellant as raised in grounds 2, 3 and 6 can be summed up as follows: Although, by the original contract, the appellant’s default had initiated the operation of Clause 17, whereby the parties became landlord and tenant on or about 30th June, 2007, the addendum agreement of 2010 waived the operation of Clause 1 7 and revived their relationship of vendor and purchaser. The net result was that upon the appellant’s second default in 2010, the operation of Clause 17 should have taken effect as from a date in 2010. In turn, this meant that the conversion of the deposit f US$110,000 into rent should now have been with effect from a date in 2010. That is the appellant’s contention in those three grounds of appeal. This appeal was entirely argued on written heads of argument filed by the parties. In the second ground of appeal, it was argued on behalf of the appellant that the addendum of 28th January, 2010 and the additional agreement of 29th January, 2010, amended the initial contract; with the effect that the date of completion stipulated in Clause 17 was changed, the Notice to complete and J 14 the Notice to terminate tenancy issued by the respondent in 2008 and 2009 respectively were waived, and, the status of the sum of US$110,000 was restored to that of a deposit. The appellant went on to advance further arguments over which we would like to comment. It was argued that since the two agreements of January, 2010 did not set the date of completion, then time was not of the essence. The appellant argued that when the respondent purported to terminate the contract on 6th May, 2010, there had been a delay of only about four months, which, in his view, was not an unreasonable delay. We were, accordingly, referred to the case of Jane Mwenya and Jason Randee v Paul Kapinga<x>. It was further argued that the respondent did not send a fresh notice to complete and that, therefore, the letter terminating the contract in 2010 was invalid. We were informed that the reason why the two agreements did not set a completion date was because the bank required the appellant to surrender the certificate of title for it to release the money; and that the appellant refused to surrender the certificate of title. We were, again, informed that after the judgment of the court below the appellant had since paid the J 15 balance of the revised purchase price into court. Consequently, we were urged to order the respondent to complete the sale. We must state that these further arguments raise the issue as to who between the two parties was in breach of the contract. This issue was before the court below and a decision was rendered thereon, denying the appellant specific performance of the contract. However, neither this particular ground of appeal nor any other ground has raised this issue on appeal. We do not know whether it was the appellant’s desire not to appeal on that issue or whether it was not raised due to inadvertence or want of care in drafting the grounds of appeal. The point that we wish to drive home, however, is that parties are bound to argue their appeal within the confines of the issues raised by the grounds. Where they have inadvertently omitted to raise a particular issue in the grounds, it is their duty to amend them. In this case, the issue as to who should be liable for breach of the contract is not before us and, therefore, we shall not entertain arguments on it. In the third ground of appeal it was argued on behalf of the appellant that the effect of the two agreements of 2010 was to waive the completion date set in Clause 17 of the contract. According to J 16 the appellant, the agreements of 2010 extended the life of the contract to 2010. In the circumstances, it was argued, the deposit of US$110,000 that had been paid could not be said to have been converted to rent and exhausted by 22nd October, 2009. In the course of those arguments, we were referred to the case of Majory Mambwe Masiye v Cosmas Phiri<2) whose facts and issues raised are totally different from those in this case. As can be seen from the grounds of appeal that we have set out above, the sixth ground is couched in Omnibus fashion and encompasses the second and third grounds. Inevitably, therefore, the arguments advanced in this ground of appeal were a repetition of those in grounds 2 and 3. The respondent’s arguments, in so far as they address those of the appellant’s arguments that are properly before us, were these: In ground 2 it was argued that both agreements of 2010 did not contain any express provision ousting Clause 17 of the contract. It was pointed out that the recitals in the addendum stipulated that, due to the appellant’s failure to complete, the parties had agreed to a new special condition which provided that the appellant would pay a sum of US$150,000.00 through a direct bank transfer J 17 to an account to be advised by the respondent. The appellant pointed out, further, that the additional agreement, similarly, did not contain any provision that ousted Clause 17 of the contract. We were referred to the case of Chamber Colliery Limited v Twyerould<3) which cautions against reading into a document words which the parties at the time of drafting it did not include. With those arguments, the appellant submitted that the court below did not err when it held that the deposit of US$ 110,000.00 had been applied as rent of US$2,500.00 per month under Clause 17. In response to the appellant's arguments in ground 3, it was submitted on behalf of the respondent that he did not waive the completion date in Clause 17 of the contract; and that when the appellant failed to complete the sale the second time around, the parties were restored to their former positions of Landlord and Tenant in accordance with Clause 17 of the contract. Hence, all the attendant implications and consequences of default on the part of the appellant came into force. The rest of the arguments in this ground addressed the issue as to who breached the contract in 2010. Hence, we were J 18 addressed on issues such as whether or not the notice to complete was valid and what constitutes repudiation of a contract. We have already stated that that issue has not been raised by any of the grounds of appeal. We hasten to say that the respondent was forced to address those issues in order to respond to the appellant's submissions. As was the case with the appellant, we will not consider the arguments on that issue. The respondent’s submissions in ground 6 were similarly a repetition of arguments that have already been traversed. Again, this was not the fault of the respondent. As we have said earlier, we shall dispose of these three grounds right away before we deal with the last two. The question raised by the grounds is simple, and is this: in view of the two further agreements of 2010, should the appellant's deposit of US$110,000.00 have remained converted to rent as from 30th June, 2007 up to 22nd October, 2009, or should the conversion date have been brought forward to a date in 2010, after the appellant defaulted again? J 19 The answer, in our view, lies in determining what the effect of the two agreements was on the contract. In other words, did they rescind the contract or did they merely vary it? On the subject of rescission, the learned authors of Chitty on Contracts, thirtieth edition, provide: “Substituted Contract. A rescission of the contract will also be implied where the parties have effected such an alteration of its terms as to substitute a new contract in place. The question whether a rescission has been effected is frequently one of considerable difficulty for it is necessary to distinguish a rescission of the contract from a variation, which merely qualifies the existing rights and obligations. If a rescission is effected the contract is extinguished; if only a variation, it continues to exist in an altered form. The decision on this point will depend on the intention of the parties to be gathered from an examination of the terms of the subsequent agreement and from all the surrounding circumstances. Rescission will be presumed when the parties enter into a new agreement which is entirely inconsistent with the old, or, if not entirely inconsistent with it, inconsistent with it to the extent that goes to the very root of it. The change must be fundamental and: ‘.....the question is whether the common intention of the parties was to abrogate, rescind, supersede or extinguish the old contract by a substitution of a completely new or self subsisting agreement' ” (paragraph 22-028) J 20 The learned authors go on to quote a passage from Lord Dunedin's opinion in the case of Morris v Baron Company!4! where he says: "the difference between variation and rescission is a real one, and is tested, to my thinking, by this: in the first case there are no such executory clauses in the second arrangement as would enable you to sue upon that alone if the first did not exist; in the second you could sue on the second arrangement alone, and the first contract is got rid of either by express words to that effect, or because, the second dealing with the same subject matter as the first but in a different way, it is impossible that the two should both be performed." (paragraph 22- 029) On variation, the authors state: " Variation. The parties to a contract my effect a variation of the contract by modifying or altering its terms by mutual agreement ..." (paragraph 22 - 032) They go on to provide: " Variation or rescission? Where the formal requirements apply to a variation but not to a rescission, it is obviously important to determine whether there has been a mere variation of the terms or a rescission and this question may not be an easy one to answer. The effect of a subsequent agreement - whether it constitutes a variation or a rescission - will depend upon the extent to which it alters the terms of the original contract. The test suggested by Lord Dunedin in Morris v Baron Co has J 21 already been referred to, and in the same case Lord Haldane said that for a rescission: 'there should have been made manifest the intention in any event of a complete extinction of the first and formal contract, and not merely the desire of an alteration, however sweeping, in terms which leave it still subsisting' If the changes do not go to the very root of the contract there is merely a variation." (paragraph 22 - 034). In this case, the test is whether when the parties executed the two agreements of 2010, it became impossible to carry out the terms of the original contract. The salient terms of the addendum agreement dated 28th January, 2010 provided: "WHEREAS the Vendor and the Purchaser on the 13th day of December, 2005 did execute a contract of sale in respect of Stand No.3/2/A/737, Vubu Road Emmasdale, Lusaka in the Lusaka Province of the Republic of Zambia. WHEREAS it was agreed that the purchase price shall be US$250,000.00 (United States Dollars Two Hundred Fifty Thousand only) WHEREAS the purchaser only paid the Vendor the sum of US$110,000.00 (United States Dollars One Hundred Ten Thousand only) leaving a balance of US$140,000.00 as at 27th August, 2008, under Notice to Complete dated 20th August, J 22 2009 was given when the purchaser failed to complete the transaction (SIC) WHEREAS following the purchaser's failure to complete the parties have agreed to the special conditions as set out hereunder: (i ) That the sum of US$150,000.00 shall be paid by the Purchaser to the Vendor through a direct transfer from the Bank to the account which will be advised by the Vendor. (ii ) ... o NOW THEREFORE the Vendor and the Purchaser do hereby agree to amend and validate the contract of sale dated 13th August, 2005 in the terms and conditions as per Law Association of Zambia 1997 condition of sale (SIC)” The relevant terms of the additional agreement dated the 29th January 2010 stated: "1. The Purchaser will pay the Vendor the sum of United States of America Dollars (US$60,000.00) in equal eight (8) monthly instalments of United States of America Dollars Seven Thousand and Five Hundred Dollars (US$7,500.00). 2. The Purchaser reserves the liberty to accelerate the payment. 3. The sum under clause 1 herein is additional to the purchase price agreed by the Vendor and Purchaser dated 13th December, 2005. J 23 4......... 5. The Vendor shall terminate the contract if the Purchaser defaults in paying any installment under Clause 1 herein." To test whether these agreements made it impossible to implement Clauses 1 7 and 18 of the contract with effect from the date of the first default, we have considered a hypothetical situation. Supposing after the agreements of 2010, the appellant had paid some further sums of money but still failed to pay the full purchase price as amended by the 2010 agreements would it have been impossible to implement Clause 1 7 and 18 with effect from the date of the first default? We do not think so. It must be borne in mind that Clause 17 had attached a rental value of US$2,500.00 per month to the property in the event of default. The initial deposit of US$110,000.00 had been converted to rent from about 30th June, 2007 and was deemed to have been exhausted by 22th October, 2009. In the hypothetical situation, therefore, any further money that the appellant would have paid towards the revised purchase price would have had the effect of merely extending the period during which the appellant was entitled to possession of the J 24 property as tenant. In such a case, the period would have been extended from 22nd October, 2009 to some future date; and if, at the time that this matter was determined in the court below, it was found that the additional money had not been exhausted as rent, then the respondent's action would have failed on the ground that the appellant was still a bona fide tenant. From that hypothetical situation we have given, it becomes clear that the two agreements of 2010 merely varied the original contract; and only with regard to the date of completion. In this case, the appellant did not pay any further sum in addition to the US$110,000.00 that he had paid before the first default. Therefore, that sum remained converted to rent from about 30th June 2007 and became exhausted on or about 22nd October, 2009. The court below was, therefore, on firm ground when it held that the respondent became entitled to repossession of the property as of the 22nd October, 2009. The court was also on firm ground when it awarded the respondent mesne profits for the period after 22nd October, 2009. In our view, therefore, grounds 2, 3 and 6 are without merit. J 25 In the fourth ground of appeal, the appellant raised issue with the lower court’s statement in the Judgment that it was unjust for the appellant to use the property without any payment being made. This ground has no bearing on the substance of the Judgment appealed against. The statement was a mere expression of the lower court's view and did not form part of the ratio decidendi in the Judgment. Indeed, as we have shown in our discussion of the issues in grounds 2, 3 and 6, the issue was whether the contract was rescinded or merely varied. In our view, this ground is moot and no purpose will be gained by delving into it. We dismiss it. In the fifth ground of appeal, the appellant is dissatisfied with the finding or holding by the court below that the contract of sale and the addendum agreements merely authorized the appellant to be in occupation of the property comprising the shop premises only, until completion. The appellant contends that the finding is in conflict with Clause 7 6 of the contract. We shall dispose of this ground summarily. First, we agree with the appellant that the contract allowed him to take possession of the remainder of the property even before completion. This is > * ' ' * J 26 because, while Clause 11 allowed him to pay the balance of US$170,000.00 within 18 months from the 1st January, 2006, Clause 16 required the respondent to vacate the remainder of the property and give the appellant vacant possession thereof within 90 days. However, as valid as the appellant's contention may be, the ground of appeal itself is moot. This is because the court below " made that finding in the context of the appellant's alternative claim that the improvements that he had made to the property should be taken into account. Notwithstanding the finding above, the court below still went ahead and granted that alternative claim to the appellant, in the interest of Justice. That part of the decision has not been appealed against by the respondent and, consequently, the improvements are pending valuation in the court below. Therefore, this ground of appeal served no meaningful purpose to the appellant's appeal. All in all, the main appeal has no merits and is dismissed. As regards the appeal against the grant of stay of execution upon a conditional payment of US$50,000.00, we observe that, with > * * * '• V J 27 the disposal of the main appeal, this particular one has became moot. Therefore, we will deal with this ground summarily as well. The appellant's contention is that the court below was wrong to have made the order for interim payment on the strength of Order 29 Rule 12 of the Rules of the Supreme Court (White Book) when no formal application was before it, as required by the Rule. We agree with the appellant's observation for two reasons; first, for the court to exercise its power to make an order for interim payment, there must be a formal application made under Rule 10 of Order 29. Secondly, interim orders made under that Rule are made before trial, after the writ has been issued. In this case, the court below was hearing an application for stay of execution of its Judgment. Order 59/13/7 of the Rules of the Supreme Court (White Book) gave the court discretion to impose terms on the grant of a stay. Such terms include orders for some money to be paid either into court or the successful plaintiff upon the latter giving security for repayment if the appeal is successful. Therefore, although the court below justified its order under a wrong rule, it had power elsewhere within the Rules to make the J 28 order that it made. The appeal being moot, we will not dwell on it any further. We dismiss it. Overall, the appellant's appeals have been dismissed. We award costs of the appeals to the respondent, to be taxed in default of agreement. H. Chibomba SUPREME COURT JUDGE E. M. Hamaundu SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE