First National Bank Zambia Limited v Diana Sikazwe and Ors (APPEAL NO. 243/2022) [2024] ZMCA 222 (22 August 2024)

,. IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 243/2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FIRST NATIONAL BANK ZAMBIA LIMITED APPELLANT AND DIANA CHINTU MUY ANI SIKAZWE 1 S T RESPONDENT AMON CHIKUWA TOYOTA ZAMBIA LIMITED 2 ND RESPONDENT 3RD RESPONDENT MACFARLANES TRUCK AND CAR LIMITED 4TH RESPONDENT CORAM: KONDOLO SC, MAJULA AND BANDA-BOBO JJA On 20th June, 2024 and 22nd August, 2024. For the Appellant & 3 rd Respondent: Mr, P. Chomba of Mwessrs Mulenga Mundashi & Company For the 1s t Respondent: Not in attendance For the 2 nd Respondent: Not in attendance For the 4 th Respondent: Mr. Kaipambe of Messrs Hara & Company on brief for Messrs C. L. Mundia & Company JUDGMENT KONDOLO SC JA delivered th e J udgment of th e Court. CASES REFERRED TO: 1. Mazoka & Others v Mwanawasa & Others (2005) ZR 138 ::; J2 of 26 2. Mundia v Sentor Motors (1992) ZR 66 3. Mwale v Mtonga & Another SC/25/2015 4. Premesh Bhai Megam v Rephidim Institute Limited SCZ/3/2011 5. Majid v Pelekamoyo SCZ/29/2017 ZMCA 145 6. Agness Regina Mueri Aboum v Erastus Amondi Okul & 3 Others [2007] eKLR 7 . William Harrington v Dora Siliya. 8. The Attorney General v Clarke (2008) ZR Vol. 1 9. Kaluwa Kashiwa Mwansa & Mwenya Kalindo Mwansa (suing as Administrators of the Estate of the Late Tom Mpofu) v Kenneth Mpofu (sued as Administrator of the late Tom Mpofu & The Attorney General SCZ/34/2018 (J36-37) LEGISLATION REFERRED TO: 1. High Court Act Chapter 23s Laws of Zambia 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 3. Evidence Act Chapter 4 of the Laws of Zambia 1. INTRODUCTION 1. 1. Th is is an a ppeal against t h e Ruling of Justice Honourable Mr s. M. K. Makubalo d elivered on 3 rd J une, 202 1 under Cause No. 2016/HK/397 in wh ich she gran ted the Plaintiff's claims. J3 of 26 1.2. In the High Court Proceedings, the Appellant was the p t Defendant whilst the 2 nd , 3 rd and 4 th Respondents were the 2nd, 3rd and 4 th Defendants. The 1st Respondent was the Plaintiff. 1. 3. We shall refer to parties as designated in this appeal. 2. BACKGROUND 2 .1 . The 1st Respondent intended to borrow money to buy a motor vehicle and approached the Appellant for a Vehicle and Asset Facility (VAF) at its Kitwe branch. 2 . 2 . The Appellant's employee, Ms Kaluba Bwalya explained the requirements to qualify for the VAF. These included that the car must not be above 5 years old and had to be purchased from one of the bank's approved vendors, who included the 2 nd Respondent. 2.3. Ms Kaluba Bwalya informed the pt Respondent that the 2 nd Respondent was reliable, and she recommended that the 1st Respondent purchases her motor vehicle from him. 2.4. The Appellant's VAF guidelines included a requirement that its vendors take the vehicles they were selling for examination by an authorised garage, and provide the Appellant with an J4 of 26 examination report. The report was for the purpose of certifying the age of the vehicle and its mechanical integrity. 2.5. The Appellant also required the vendor to present th e vehicle to the 4 th Respondent, Macfarlanes Truck and Car Limited, who was required to ascertain the value of the vehicle. 2.6. Both reports were availed to the Appellant who proceeded to finance the purchase of the vehicle by the ist Respondent from the 2 nd Respondent for a total sum of K130,000 which included bank charges. 2. 7. Two years later, sometime in 2016, the l5t Respondent was trying to order some spare parts over the internet. When she entered the Chassis number of her vehicle she was taken to the website of a company called Be Forward, which sells second hand J a panese motor vehicles. A car similar to hers popped up on the screen and it was listed as sold. Upon further scrutiny, she realised that all the details matched with the vehicle that she h ad bought from the 2 nd Respondent except that the website indicated that the vehicle "had 2007 as year of make". 2.8 . She further noted that the 2 nd Respondent had misrepresented the vehicle as a 2010 model when it was in JS of 26 fact a 2007 model. She also found that the mileage of 98,400 km shown on the website was much higher than the mileage of 58,400 showing when the vehicle was sold to her. 2. 9. Aggrieved by the situation, the 1st Respondent decided to commence proceedings in the High Court. 3.0 PROCEEDINGS IN THE HIGH COURT 3.1. The 1st Respondent filed a writ of summons seeking the following relief; 1. Damages for breach of contract against the 1st and 2 nd Defendant on account of fraudulent misrepresentation. 2. A declaration that the Defendants acted fraudulently In the sale of vehicle asset finance by the 1st defendant relating to the motor vehicle Toyota Rav 4 Reg. no. 3262 Chasis no. ACA-36-5013826 3. An Order setting aside the sale of the motor vehicle Registration no. ALR 3236 and 3262 Chassis No. ACA-36-5013826 vehicle between the Plaintiff and the 2 nd Respondent 4. An order compelling the 1st Defendant to refund the Plaintiff all the payments made towards the vehicle J6 of 26 assets finance facility for the purchase of the motor vehicle Toyota Rav 4 Registration No. ALR 3262 together with interest thereon. 5. General damages against all the Defendants for inconvenience, mental torture and stress endured by the Plaintiff on account of the fraudulent activities of the Defendants complained of herein. 6. Any other the relief the Court may deem fit. 3.2 . Plaintiffs Case (1st Respondent) 3.3. The 1st Respondent's statement of claim and her testimony in Court are set out as presented in paragraphs 1 to 2.9 above. 3.4. The 1st Respondent stated that the 3 rd and 4 th Respondents handled all the paperwork relating to the vehicle and the two of them told her that the vehicle and reports from the 3 rd and 4 th Respondents met the Appellants criteria for asset financing. 3 .5. She was informed that the age of the vehicle was the fulcrum of all considerations before the Appellant could approve the facility. 3.6. That the details on the White Book issued for the car were based on wrong information provided by the 2 nd Respondent. J7 of 26 3.7. That a 2007 Rav 4 could only have cost K70,000 at that time but she instead paid K130 ,670 on the assurance that the vehicle was a 2010 model. 3.8. In cross examination the p t Respondent admitted that she did not inspect the vehicle as to details but only relied and acted upon the information given to her by the 2 nd Respondent. 3. 9. When pressed about which provision of the VAF contract was breached, the 1st Respondent said she could not point to any and also said that even though she was unable to explain how they colluded, the Appellant, 2 nd , 3 rd and 4 th Respondents had acted fraudulently . 3.10. She admitted that she was still using the said vehicle and it had not caused her any inconvenience. She further accepted that she had led no evidence showing that she had suffered mental torture. 3 . 11. 1st Defendants Case (Appellant) 3.12 . The Appellant's witnesses , DWl and DW2 confirmed that the 2 nd Respondent was one of its approved car dealers. That after a client decided on a vehicle the Appellant relied on the franchise dealer to authenticate that the vehicle is of the right age, correct mileage and that the information of the seller is JS of 26 correct. That thereafter, they relied on the 4 th Respondent, Macfarlanes Truck and Car Limited for verifying the age and confirming the sale value of the vehicle. 3.13 . That the 3 rd Respondent issued an engineer's report that the Rav 4 was a 2010 model and the 4 th Respondent stated that the vehicle was a Rav 4 with a sale value of K120,000. 3 .14. The two witnesses indicated that the age of the motor vehicle is very critical and the technical reports were for the purpose of securing the Appellant's interests who would remain with the vehicle in the event of default. That with regard to this particular financing, the furthest acceptable date of manufacture was 2009 and if they were aware that the vehicle was manufactured in 2007, they would not have financed it. That in the circumstances colluding with anyone to reduce the value of the car would actually be detrimental to the Appellant. 3.15. That according to section 3.4 and 3.5 of the VAF agreement ((the client ensures that all is well and if not satisfied the client has the right to reject it". That the Appellant had not breached any term of the VAF Agreement. 3.16. 3 rd Res pondent's Case 3.17 . DW3 , the 3 rd Respondent's Service Manager testified and J9 o f 26 denied that t h e vehicle was tested in their workshop and pointed out that the details in the vehicle's White Book were different from those in the 2 nd Respondent's Engineers Report which showed that the engine capacity was 2,000 whilst the White Book showed 4,000 and the engine numbers were also different. 3.18. DW3 stated that the 3 rd Respondent only had a contractual relationship with the 2 n d Respondent who took the car to them and not with the 1st Respondent. 3 . 19. 4 t h Respondent's Case 3.20. DW4 an employee of the 4 th Respondent testified that when the 2 n d Respondent took the car to them, DW4's job was to make sure that details in the White Book, insurance and other documents match those of the motor veh icle. He authenticated the year of the vehicle as 2010 using the said documents. When asked where the documents were, he stated that he had left them at his office. He said the engine number was 2AZ- 2630776 . J l O of 26 3. 21. He disagreed that the year of the vehicle can only be authenticated by checking the vehicle physically. 3.22. He stated that he could not respond to Be-foiward's claim that the vehicle was a 2007 mod el as it was not on e of the sites h e used to verify values of motor vehicles. 4. HIGH COURT DECISION 4.1. After considering the evidence, the learn ed t ria l Judge found the following points not to be in dispute; 1. The Appellant introduced the 1st Respondent to the 2nd Respondent. 2. The Appellant required the vehicle to be examined by the 3 rd and 4th Respondents who would issue reports for the Appellants use. That the 2 nd Respondent had the vehicles examined and obtained the necessary reports which were submitted to the Appellant who relied on them in financing the 1st Respondent's vehicle. 4 .2 . The learned trial Judge further found the following as facts; 1. The Appellant has strict rules and conditions for second hand motor vehicle asset financing. 2. The reports rendered by the 2 nd & 3 rd Respondents were defective. Jll of26 3. The 1st Respondent had been enjoying use of the vehicle in question and it had not suffered any mechanical failure or breakdown since. 4.3. The lower Court observed that the p t Respondent complained that the vehicle supplied to her did not meet the Appellant's strict minimum age of 5 years for financing second hand vehicles, yet the Appellant proceeded to finance it. That the 1st Respondent believed that could only be done with fraudulent collusion by the Appellant, 2 n d , 3 rd , and 4 th Respondents to her detriment. 4 .4. According to the lower Court, the only questions to be decided were; 1. Whether or not the vehicle in question is a 2010 make and was 5 years or below at the time of financing. 2. Whether or not there was any fraudulent collusion among the Defendants to the detriment of the Plaintiff 4.5. In addressing the first question the trial Judge found that the 2 nd Respondent tampered with the vital particulars of the vehicle. That he further misrepresented the age of the vehicle in order to induce the Appellant and the 1st Respondent to enter into a contract. J12 of 26 4.6. The learned trial Judge stated that the Appellant, the 3 rd and 4 th Respondents had been extremely careless by not counterchecking the age of the vehicle. She however found the 2 nd Appellant, liable to the 1st Respondent, for fraudulent misrepresentation. 4 . 7. The learned trial Judge further found that the 1st Respondent relied on the 2 nd Respondent's expertise and that the Appellant who handled all the documents relating to this vehicle thus owed her a duty of care to ensure that the vehicle was actually what the 2 nd Respondent said it would be. 4 .8. The lower Court noted that the 1st Respondent could have been entitled to rescind the contract and get a refund but for the fact that she did not surrender the vehicle and was still using it. The learned trial Judge therefore declined to set aside the contract and order that the Appellant and 2 nd Respondent refund her. 4.9. On this basis the trial Court found the Appellant and the 2 nd Respondent liable to t he 1st Respondent for breach of contract and liable to pay the 1st Respondent general damages. 4.10. The Court referred the matter to the Registrar for assessment of damages to be calculated on the basis that instead of being J13 of 26 supplied with a 2010 vehicle , the 1st Respondent was supplied with a 2007 vehicle which according to the 1st Respondent was valued at about K70,000 but she was instead charged K120,000. 4.11 . The Registrar was to assess the value of the 2007 vehicle and if the 1st Respondent had overpaid, that the overpayment be refunded. 4.12. The learned trial Judge declined to pay interest on the basis that the 1st Respondent had been using the car without any com plain ts. 5. APPEAL 5.1. Dissatisfied with the Judgment, the Appellant has appealed fronting 3 grounds as follows; 1. The learned trial Judge erred in law and in fact when she awarded the 1 st Respondent general damages for recklessness and damages for breach of contract which were not pleaded and without any evidence on record in support of such findings. 2. The learned trial Judge erred in law and in fact when she preceded to admit into evidence J14 of 26 documents extracted from an online website called Beforward (www.beforward.org) without any foundation as to the authenticity of such documents; and 3. The learned trial Judge erred in law and in fact when she awarded the 1 st Respondent damages for breach of contract, general damages for recklessness and refund of the overpaid amount thereby resulting in unjustly enriching the 1 st Respondent. 5. 2 . Appellant's Arguments 5.3. In ground 1, it was sub m itted th at the learn ed t rial J udge awarded d am ages for r ecklessn ess a nd breach of contr act which were n eith er plead ed nor p roved. 5.4. It was submitted t hat it is well s ettled in t his jurisdiction , t h a t Courts cannot grant reliefs that a r e n ot pleaded by the parties durin g proceedings . A number of cases were cited in support , including Mazoka & Others v Mwanawasa & Others (11; Mundia v Sentor Motors (21; Mwale v Mtonga & Another (3 l 5. 5 . It was pointed ou t that the 1st Responden t cla imed d amages for breach of cont ract ba s ed on fraudulen t misrepresen tation a nd JlS of 26 for general damages based on fraudulent misrepresentation. That there was no claim for recklessness against the Appellant, 2nct, 3rct and 4 th Respondents. 5.6. The Appellant raised issue with the lower Court's finding that there existed a contract of sale by sample as well as by description between the Appellant and the pt Respondent because the only con tract between the two parties was the V AF agreement under which the Appellant's obligation was to finance the purchase of the vehicle and which also provided that the 1st Respondent carried all the risk related to the vehicle risk as per clause 3 .5 which reads as follows; "All risk in and to the Goods will pass to you [1 st Respondent] and remain with you when you take delivery of the Goods or when the risk leaves the supplier of the Goods, whichever is the earlier." 5.7. That the p t Respondent inspected and accepted the vehicle and confirmed that she was not coerced into purchasing it. That selecting the vehicle was the 1st Respondent's responsibility and neither the 1st Respondent nor the lower Court pointed to any provision of the VAF agreement that the Appellant had breached. J16 of 26 5.8. It was argued that the Appellant was not pnvy to the sale agreement between the 1st and 2 n d Respondents and the lower Court was therefore wrong to find the Appellant liable for breach of contract. 5.9. We were urged to interfere with the lower Court's finding that there had been a breach of contract by the Appellant and it was su bmitted th at ground 1 be allowed. 5 . 10. In ground 2, it was argued that the trial Judge should not have placed reliance on the screen shot from the Be-Forward website because it did not meet the requirements of the Evidence Act Chapter 4, Laws of Zambia. 5.11. Because of the position we take in this matter, this ground is academic and thus otiose. Therefore, we shall not regurgitate the arguments advanced in this ground because our decision in ground 1 directly affects the outcome of ground 3 and renders it otiose. 6. 1 st Respondent's Arguments 6 . 1. In response to ground 1, it was submitted that the learned trial Judge did not award damages for recklessness, but at page J38 (page 51 of the record of appeal) awarded damages for breach of con tract and general dam ages. Jl7 of 26 6.2. That the trial Judge's finding of breach of contract was sound as it stemmed from what the lower Court determined was a breach of Section 34 of the Sale of Goods Act which entails that goods must match the description of the ones agreed to be sold. 6.3. That even though no specific term of contract was referred to as having been breached, there was an implied term in the VAF agreement that the vehicle to be financed had to be below 5 years' old which the Appellant breached. In support, the 1st Respondent relied on Halsbury's Laws of England and cited the case of Premesh Bhai Megam v Rephidim Institute Limited '41 • 6.4. That the Appellant owed the 1st Respondent a fiduciary duty of care to ensure that the 2 nd Respondent bought the correct vehicle as per implied term of contract and to ensure that the 3 rd and 4 th Respondents ensured that the vehicle met the required standard. That the breach of these fiduciary duties led to the breach of the implied term. The fact that the 1st Respondent inspected and accepted the vehicle did not absolve the Appellant of the fiduciary duty. 6.5. That the awards of damages and general damages were a J18 of 26 natural consequ ence of breach of contract. Reliance was placed on the case of Majid v Pelekamoyo l5l and that nothing prevented the lower Court from awarding other relevant reliefs as it was required to adjudicate on all matters presented to it. Reliance was placed on the cases of Agness Regina Mueri Aboum v Erastus Amondi Okul & 3 Others 16l and William Harrington v Dora Siliya l7 l. 6.6. With regard to grounds 2 and 3, our comments remain the same as our response to the Appellant's submissions on ground 1 of this appeal. 6.7. Appellant's Reply 6 .8 . The Appellant's reply was simply that the lower Court did not award damage on the basis of any implied contract but on the basis of an alleged breach of the Sale of Goods Act and on the basis of a breach of the VAF agreement. 6.9. That it is not the business of Courts to introduce new terms of con tract b etween parties. 7. HEARING 7 .1. At the hearing Mr. Chomba on behalf of the Appellant relied on J19 of 26 the record of appeal, heads of argument and heads of argument in reply filed by the Appellant. His oral arguments basically repeated the arguments in the filed process. He further informed the Court that he was instructed by the 3 rd Respondent to support the Appeal. 7.2. Mr. Chomba closed by requesting that we comment on the following two issues; 1. Where more than one Defendant has been sued and one of them opts to appeal; whether the Appellant ought to endorse the rest of the Defendants as Respondents on the notice of appeal; and 2. To comment on the question of conflict of interest where such as in this case, the same lawyers are representing the Appellant as well as one or more of the Respondents. 8. ANALYSIS AND DECISION 8 .1. We have considered the record of appeal and the arguments filed by the parties. 8.2. With regard to ground 1, the authorities cited by the Appellant on pleadings reflect the correct general position of the law that matters not pleaded cannot be raised during the J20 of 26 trial. There are however exceptions to the rule and one such exception is that where an issue is not pleaded but evidence is led and the other party raises no obj ection on account of it not having been pleaded, nothing stops a Court from considering such evidence. In the case of The Attorney General v Clarke 181 the Supreme Court guided as follows; "A party cannot rely on unpleaded matters except where evidence on the unpleaded matters has been adduced in evidence without objection from the opposing party. " 8.3. See also the case of Kaluwa Kashiwa Mwansa & Mwenya Kalindo Mwansa (suing as Administrators of the Estate of the Late Tom Mpofu) v Kenneth Mpofu (sued as Administrator of the late Tom Mpofu & the Attorney General 191• 8.4. Despite recklessness not having been pleaded, the facts upon which the trial Court found the Appellant, the 3 rd and the 4 th Respondents liable for being reckless, were tendered into evidence during the trial and not objected to. 8 .5 . The Appellant's bone of contention is that the trial Court made a finding of recklessness when the 1st Respondent had pleaded r J21 of 26 fraudulent misrepresentation. It is however, evident that the learned trial Judge felt that the evidence adduced by the 1st Respondent did not meet the threshold of fraud but on the same facts, the conduct of the Appellant, the 2 n d and the 3 rd Respondents amounted to recklessness and she found them liable in that regard. There was no objection to the evidence, therefore, nothing prevented the learned trial Judge from considering the evidence laid before her. 8.6. The pt Respondent had advanced the argument that the learned trial Judge only found the Appellant liable for breach of contract and not for being reckless. However, quite contrary to that assertion, the record quite clearly shows that the lower Court did indeed find the Appellant and the 3 rd and 4 th Respondents liable for recklessness. See page J35 (page 48 of the record of appeal) where the Court below stated as follows; "I have however Jailed to find a connection on how the 1st (Appellant) 3rd and 4th Defendants colluded among themselves to defraud the Plaintiff I find that there was recklessness in their conduct in this case. I find all of them liable in their actions but no collusion to defraud. J22 of 26 The 2 nd Defendant is the one liable for fraudulently misrepresenting the motor vehicle as 2010 model when inf act not." 8. 7. We note that even though ground 1 was couched in respect of the Court awarding reliefs which the Appellant believed were not pleaded, under this ground the Appellant also addressed issues related to breach of contract and the effects of such breach. Following on its findings of liability against the Appellant, the lower Court proceeded to award the 1st Respondent damages for breach of contract and general damages at page J38 (page 51 record of appeal). 8.8. In ground 1, the Appellant assailed the trial Judge 's finding that there existed a contract of sale by sample between the Appellant and the 1st Respondent. We have also considered the p t Respondent's argument that the Appellant owed the Respondent a fiduciary duty giving rise to implied terms in the VAF agreement and culminating in the contract by sample. 8.9 . We observe that the learned trial Judge did not explain how she arrived at the decision that there was a contract by sample between the parties when it was clear that the only agreement • ii J23 of 26 before Court vis-a-vis the Appellant and the 1st Respondent was the VAF agreement. 8.10. The trial Court had earlier stated that there were only two issues for determination; firstly, to determine the age of the car and secondly whether there had been fraudulent misrepresentation. For some unexplained reason the learned trial Judge veered off her pre-determined road map. 8.11. The only sale agreement was between the 1st Respondent and the 2 nd Respondent . Even though the Appellant suggested to the 1st Respondent that the 2 nd Respondent supplied good quality vehicles, the Appellant was not privy to the agreement between the two parties and therefore not bound by its express or implied terms and conditions . 8.12. The VAF agreement between the Appellant and the 1st Respondent was a financing agreement and the obligations of the parties are very clearly laid out. Clauses 3 .2 and 3.3 state that the 1st Respondent was responsible for selecting the vehicle and inspecting it to ensure it met her requirements and clause 3.5 states that all the risk in the goods was carried by the 1st Respondent. • J24 of 26 8.13. In our view, the measures put in place by the Appellant requiring the vehicle to be examined by the 3 rd and 4 th Respondent though beneficial to both parties, was a process primarily for the Appellant's own b enefit. As explained by DWl and DW2 the Appellant had to ensure the age and value of the vehicle to avoid the risk of remaining with an overvalued vehicle, in the event of default. 8.14. Therefore, any failure by Appellant's internal systems or by the 3 rd and 4 th Respondents does not pass liability to the Appellant. The 1st Respondent was obligated to conduct her own inspection, which she did, and she approved the car and took possession of it. 8.15. With regard to the alleged failure of a fiduciary duty we would say that issue was not pleaded and no evidence was led to that effect. 8.16. Having decided as we have , it follows that the Appellant was not reckless in any manner and we set aside the trial Court's finding that the Appellant was liable for recklessness. 8.17. Further, in view of our finding that there was no contract of sale between the Appellant and the 1st Respondent the trial Court's finding of breach of contract and payment of damages ., :: J25 of 26 and general damages by the Appellant to the 1st Respondent is set aside. 8.18. With regard to the issues that Mr. Chomba, Counsel for the Appellant and 3 rd Respondent asked us to comment on; our brief remark on the first issue is that in as much as an appeal is a continuation of the matter from the lower Court, an Appellant must endorse the correct parties as Respondents. Whilst endorsing parties against whom one has no claims may not result in an appeal being dismissed for irregularity it is however incorrect and unwise as it may result in unnecessary legal fees and costs against the Appellant. 8.19 . In relation to the second question on conflict of interest, all we can say is that it is a rarity for the same Advocate to represent both the Appellant and Respondent. Counsel cannot ethically represent opposing interests in the same case. 8.20. This matter is an example of where citing th e wrong parties may result in an undesirable situation. In casu the 3 rd Respondent who shared similar interests with the Appellant actually intended to appeal but was wrongly introduced onto t h e r ecord as the 3 rd Respondent by the Appellant. • 8.21. Further, the 3 rd Respondent did not apply to be joined to the J26 of 26 matter as a Co-Appellant but instead attempted to file an appeal disguised as a cross appeal which we declined to allow. The undesirable optics in this matter may mislead people without intimate knowledge of the case into believing that Counsel for the Applicant was conflicted when in fact not. This was however a situation which could have been avoided by the 3 rd Respondent timeously instructing Mr. Chomba to lodge an appeal and by Counsel not having proceeded to endorse the 3 rd Respondent as such without instructions. 8 .22. In the premises, this appeal succeeds with costs to the Appellant. ======-----. M. M. KONDOLO SC COURT OF APPEAL JUDGE B. M. ········~ ················ A. M. BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE