Kimz Commodity Services Limited v Western Seed Company Zambia Limited (Appeal No. 48 of 2024) [2025] ZMCA 15 (24 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 48 of 2024 HOLDEN AT NDOLA (Civil Jurisd ictio n) BETWEEN: X ,~ ~ couRTOFAPp~l. 801 ' 'I. 4 FEB 2025 REGISTRY 2 50067 , l(IMZ COMMODITY SERVICES LIMITED APPELLANT AND WESTERN SEED COMPANY ZAMBIA LIMITED RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 18th & 24t h February 2025 For the Appellant: Mr. J. Mulongo For the Respondent: Mr. I. Shikapwasha Messrs. MSK Advocates Messrs . H owa rd Marietta & Peterson L. P. JUDGMENT Patel, JA, delivered the Judgment of the Court J1 Cases referred to: 1. Wilson Masauso Zulu v Avonda le Housing Project Lim ited (SCZ) Judgment No. 31 of 1982 2. Mwanambulo v Hikakonko (Appeal 151 of 2020) 2021 ZMCA 168 ( 16 December 2021) 3. Zambia Railway Limited v Pauline S. Mundia, Brian Simumba (2008) ZR 4. In re H (Minors) [1996] AC 563 5. Credit Africa Bank Limited (In Liquidation) v John Dingani Mudenda - SCZ Judgment No.1 0 of 2003 6. Union Bank Zambia Limited v Southern Province Co-operative Ma rketing Union (1995-1997) ZR 207 7. National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo - SCZ Appeal No 79 of 2001 8. Zambia Telecommunications Company Limited v Aaron Mweenge Mulwanda & Another - SCZ Appeal No. 63 of 2009 Other works referred to: 1. Halsbury's Laws of England, Volume 17, 4th Edition , Paragraph 18 2. Chitty on Contracts, Volume 1, General Principles 28 t h Edition, Sweet & Maxwell, 1999. J2 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Hon. Madam Justice Mwenda Zimba, delivered on 16th August 2023 in an action filed by the Respondent on 27 th February 2023, the Plaintiff in the lower Court, in which Judgment was entered in the Respondent's favou r as embod ied in the said Judgment, now the subject of this appeal. 2.0 BACKGROUND 2.1 For clarity, the Parties will be referred to as they appear in this Court. 2.2 The Respondent (Plaintiff in the Court below), commenced these proceedings against the Appellant (Defendant below), by way of Writ of Summons and Statement of Claim seeking the following reliefs: ,. An order for payment of the sum of ZMW 210, 977.50 being the outstanding balance due and owing for hybrid maize seed supplied to the Defendant. 11. Damages for breach of contract. 111. Interest at 1.5% per month, compounded, as contractually agreed. 1v. Costs incidental to this action. v. Any other relief the Court may deem fit. 2.3 The Respondent pleaded that the Parties entered into a Retail Agreement for Agro-Dealers (" Ret ail Agreements") on 6th Sept embe r 2021 w here it was agreed that the Respondent would supply the Appellant with hybrid J3 maize seed to be sold at the Appellant's retail outlet in Choma , Southern Provi nce of Zambia. 2.4 According to the Statement of Claim, between September 2021 and November 2021, the Respondent supplied the Appellant w ith 7500 kilograms of hybrid maize seed valued at ZMW 2, 390, 625.00 for resa le at the retail outlet in Choma . 2.5 It was a condition of the Retail Agreement that payment for hybrid ma ize seed would be due and payable upon delivery of the seed at the Appellant's ret ail outlet, failure to which compound interest at the rate of 1.5% per month, wou ld apply on all unpaid invo ices. 2.6 It was a further condition that any hybrid maize seed that remained unpaid and in the Appellant's custody or possession would be returned to the Respondent's premises at the Appellant's cost. 2. 7 The Respond ent pleaded that in or about November 2021, following floods in the Macha area, in Choma District of Zambia , wh ich resu lted in damage to crops in that area, the Respond ent donated 1, 250 kilograms of hybrid maize seed valued at ZMW 42, 500.00. 2.8 Th ereafter, the Respondent donated a further 240 kilograms and 30 kilograms of hybrid maize seed in the possession of the Appe llant to Chief Chikanta and Chief Choma both of Southern Province at the co mbined value of ZMW 8, 415.00. J4 2.9 Further, in December 2021, the Respondent earmarked 11 O kilograms of hybrid maize seed valued at ZMW 3, 485.00 in the Appellant's custody and possession for promotional marketing purposes. 2.10 The Respondent pleaded that the fotlowing year In January 2022 , following heavy floods and damage to crops in Namwala District in Southern Province, the Respondent made a donation through the Disaster Management and Mitigation Unit (DMMU) of 60,000 kilograms of hybrid maize seed valued at ZMW2,076,422.50 that was in the Respondent's possession and custody. 2.11 Following non-payment of the hybrid seed sold by the Appellant, the Respondent proceeded to institute proceedings against the Appellant for the balance of ZMW 210,977.50 being the outstanding balance due and owing for hybrid maize seed supplied to the Appellant. 2.12 On 22nd March 2023 the Appellant filed its Defence disputing the claims as well as its counter-claim in which the Appellant sought the fo llowing: i. The sums of ZMW 379, 682.50 being the total of all figures cast in their Defence and Counter-Claim; ii. Interest on the sum at the Bank of Zamb ia lending payment; and iii. Costs of and incidental to these proceedings. 2.13 On 16th August 2023, the High Court delivered Judgment in favour of the Respondent, which is now the subject of this appeal. JS 3. 0 DECISION OF THE LOWER COURT 3. 1 The Judgment of the lower Court is noted from page 7 to page 42 of the Record of Appeal. 3.2 The dispute revolves around a retail agreement signed by the parties. The learned Judge referred to articles 2.2, 2.3, 2.5, 2.8 and 2.9 and noted that it was clear that the parties agreed that payment for the seed supplied, would be upon delivery and that the Respondent, in its sole discretion, would accept payment by post-dated cheques. 3.3 Pursuant to this agreement, the Respond ent supplied th e Appellant with 75,000 kgs of seed. The learned Judge noted that the Appellant did not dispute receiving the said quantity of seed. Sh e noted that the Respo ndent sought an order for the payment of ZMW 210, 997.50 being the outstanding balance due and owi ng for hybrid maize seed to th e Appellant. She observed that the Appellant contended that in its pleadings, the Respondent had stated that after all donations and allocations, there was 12, 370 kgs of seed remaining. Howeve r, she noted that there was no evidence adduced pointing to the said 12, 370 kgs and that from the 75,000 kgs delive red, 67,500 was donated, used as a promotional package or returned to th e Respondent leavi ng 7,500 kgs with the Appellant. 3.4 The learned Judge found that of the 7,500 kgs, ZMW 17,000 was paid by the Appellant. She noted it was not clear what ZMW 17,000 represented in kgs and referred to Annex 1 of the Retai l Agreement. It was observed that there was no evidence to show what the 7,500 kgs represents in J6 terms of the type of product and observed that she was unable to determine the quantity that the ZMW 17,000 paid represents. 3. 5 The learned Judge noted that what was clear was that the Respondent was entitled to payment for 7,500 kgs less the ZMW 17,000 paid. 3.6 The learned Judge considered the counter-claim, in which she noted that the Appellant relied on credit notes issued by the Respondent when donations were made, to argue that it was entitled to a 15% discount. 3. 7 The learned Judge considered the argument by the Appellant that there was no evidence of any agreement on whether there would be any entitlement for handling the donations. It was her finding that there was no agreement for the 15% discount claimed. 3.8 The learned Judge also found that a review of the credit notes issued after the donations did not state that 15% was a credit to the Appellant. It was also the learned Judge's observation that the Appellant did not produce any evidence to support its claim to 15% commission. She ultimately found that there was no agreement that the donations would attract 15% commission and found that the Appellant was not entitled to its cla im of 15%. 3.9 In addressing the counterclaim of the Appellant, in the sum of ZMW 9,450 in respect of accommodation and upkeep for Mr. Francis Mulenga, she observed the evidence of the witnesses and noted that there was no proof that the hire claim was paid and to whom. It was her view that the Appellant failed to prove this claim. J7 3.1 0 In addressing the claim for ZMW 9,590 for transportation packs from Lusaka, to the Ministry of Agriculture in Choma, the learned Judge referred to the case of Masauso Zulu v Avondale Housing Initiative 1 , and found that there was no evidence by the Appe llant to prove its assertions that the Respondent asked it to collect the demonstration packs. It was on this basis that the learned Judge found the Respondents account more probable than that of the Appellant. She ultimately found that the Appellant failed to prove its claim of ZMW 9,590 for transportation of demonstration packs. 3.11 On the Appellant's last claim for ZMW 9,080 for collecting a letter from the Respondent and delivering it to the PS Ministry of Agricu ltu re in Lusaka, she noted that there was no evidence on record that the Respondent requested for the delivery of the letter, neither was there evidence that the Respondent would cover the cost of delivery. 3.12 Ultimately, the learned Judge found that the Appellant failed to prove its counter-claim and was of the considered view that there was nothing from the counter-claim that affected her findings on the main claim. 3.13 The learned Judge accordingly found that the Respondent had proved its case on a balance of probabilities. She ordered that the Respondent was entitled to recover the cost of 7,500 kgs of seed, less the sum of ZMW 17,000 which had been paid. However, in the absence of eviden ce specifying the type of seed comprising 7,500 kgs , which was necessary to determine the price of the seed, the ~earned Judge ordered that this be done through assessment before the Honourable Registrar of the Court. J8 3. 14 On the assessed amount, t he lea rned Judge awarded interest at the contractua lly agreed ra te of 1.5% per month compou nded from the date of the Writ of Summons to date of Judgment and thereafter at the ban k lending rate as determ ined by the Bank of Zambia until full payment. 4.0 THE APPEAL 4.1 Being dissatisfied with the Judgment of the lower Court, the Appellant f iled a Notice of Appeal and Memorandum of Appeal on 7t h September 2023, advancing five (5) grou nds of appeal: 1. The Court below erre d in both law and fact when it applied the Masauso Zulu v Avondale Housing Project case only to the Defendant's Counter-Claim (but not to Plaintiff's claim) stating that "the burden of proof of a Counter-Claim is on the person alleging, in this case, the defendant", and yet the said case authority applies to any claim. 2. The Court below erred in law and fact when it held that "a review of the credit notes issued after the donations do not state that the 15% is a credit to the defendant:" and yet by its very definition and essence in commercia l transactions a credit note is issued by a seller of goods to give credit to the buyer. 3. Th e Court below erred in law and fact when it held that the Plaintiff had proved its claim and yet found that "there has been no evidence to show what the 7500 kilograms represents in terms of the type of product" and that to "ascertain the price of the seed ... less the J9 K17,000 paid I order that this ascertainment be done through assessment before the Honorable Registrar of this Court. " 4. The Court below misdirected itself when it ordered that "the amount found due shall carry interest at the contractually agreed rate of 1.5% per month .. . " and yet the compounded interest was agreed to be on outstanding invoices. 5. Th e Court below erred in law an d fact when it substituted t he Defen dant's evidence with its own assumptions as basis for its findings of fact on the Defendan t's claims for refunds. 5 .. 0 THE APPELLANT'S HEADS OF ARGUMENT 5 .1 We have duly co nsid ered and appreciated t he Appellant's Heads of Argu m ent filed on 4t h Ma rch 2 024. 5 .2 Th e gist of th e Ap pe lla nt's argu ment w ith respect to ground 1 is that the lower Co u rt erred by selectively app lying t he burde n established by t he case of Masauso Zulu v Avondale Housing Project Limited1 • 5.3 In support of ground two, t he Ap pellant's argu m ent is that t h e credit not es gave 15% disco unt, th e same perce ntage t hat the Appe lla nt was entitled t o had t he seed not been do nated, gifted or retu rned. 5.4 In sup po rt of grou nd 3, th e Appella nt acknowledged that thi s ground of appeal is close ly relat ed t o groun d 1 and adopted th e same argu m ents. 5.5 In su pp ort of grou nd 4, t he gist of th e App ellant's argu ment is that t he order of compou nd interest to th e j udgm ent su m on assessment would JlO amount to the Court below amending the Retail Agreement after the fact and in favour of one party to the agreem ent. 6. 0 THE RESPONDENT'S HEADS OF ARGUMENT 5.1 We have equally considered and appreciated the Respondent's Heads of Argument filed on 15th April 2024. 6.2 In response to ground 1, it is the Respondent's submission that the principle of the Masauso Zulu 1 case is not confined to the type of clai m but extends universally across the spectrum of civil litigation. It is th eir argument that the lower Court scrutinized the evidence perta ining to the Respondent's claim of ZMW 21, 099.50 as owed by the Appellant, using the same stringent standards it applied to the Appellant's counte r-c laim. It was further submitted that the evidence on record suffic iently supports the conclusion that the Appellant was in itially supplied with 75 ,000 kgs of hybrid maize seed out of which 67,500 kgs were donated, returned or used for marketing purposes. 6.3 It was further submitted that the lowe r Cou rt considered the subject matter in this case and app li ed the necessary degree of proof and was on firm ground to find that the Respondent had proved its case on a balance of probabilities . 6.4 In response to ground 2, the Respondent argued that lower Co urt was on firm ground to have found that 15% commission could not apply to the seed that was donated by the Respondent on the basis that the Retai l Jll Agreement specified that the Respondent would sell hybrid maize seed to the Appellant with a 15% discount on s,ales-not donations. 6.5 In response to ground 3, it is the Respondent's argument that contrary to the Appellant's assertion, the lower Court did not lack specific evidence but rather made a calculated decision based on the aggregate data presented. 6.6 In response to ground 4, it is the Respondent's subm ission th at the Appellant's argument reflects a misunderstand ing of th e contractua l terms governing the application of interest. It is thei r argument that in commercial terms, an outstanding invoice becomes an overdue amount once it passes its due date without payment. Further, that the interpretation aligns with common commercial practice, wh ich typ ically penalizes non-payme nt past due dates to inc entives timely settlement of debts. 6. 7 In response to ground 5, it is the Respondent's argument that lower Court did not replace nor substitute the Appellant's evidence with its own assumptions, instead questioned th e gaps of the Appellant's second witness. 7 .0 THE HEARING 7.1 At the heari ng, Counsel Mulongo applied to make some corrections to its head s of argument. Th ere being no objection, we allowed the corrections. Counsel thereafter placed re liance on their respective head s of argument. J12 8 .0 ANALYSIS & DECISION OF THE COURT 8 .1 We have carefu lly considered the grounds of appeal reproduced in paragraph 4 above, the impugned Judgment and the arguments of the Parties. 8.2 We recognize that the primary issue before th is Court is whether this is an appropriate case in which this Court should interfere with the findin gs of the lower Court. In dealing with the appeal, we shall address the grounds of appeal in the same man ner adopted by the Appellant. 8.3 In addressing ground 1, we are alive t o findings of fact made by a trial Court and the limit ed c ircumstances in w hich those can be set aside. The cited case of Wilson Masauso Zulu v Avondale Housing Project Limited 1 refers. In that decision, the Supreme Court guided as follows: "Before this Court can reverse findings of fact made by a trial Judge, we would have to be satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or up on a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make." 8.4 In support of ground 1, it is the Appellant's submission that the Court below erred in both law and fact whe n it applied t he Masauso Zulu 1 case only to the Appellant's countercla im w hen the said authority applies to any claim. Th e Appellant's main contention is with regards to paragraph 15 of the Respondent's Statement of Claim which is seen at page 46 of the Record of Appeal (RoA). The essence of its argument is that the Jl3 Respondent claimed ZMW 227, 977 .50 fro m the Appe llant alleging that each of the donations and allocations referred to under paragraphs 8 and 13 were not supported by credit notes which left the Appellant with 12, 370 kilograms (kgs) of hybrid maize seed to the value of ZMW 222,977.50. It is the Appellant's argument that t he Responden t failed to prove it s allegatio n that th e Appellant owed the aforementioned sum for 12, 370 kgs. It is the Appellant's argume nt th at had the lower Court app lied the Masauso Zulu 1 case to the Respondent's allegation, it would have found that the allegation that 12, 370 kgs of seed remained w ith the Appellant was unsubstantiated. 8.5 In response to th e above, th e Re spondent has argued that the lower Court applie d the same standa rd of proof to t he Re spondent's claim as well as th e Appellant's claim save for the fact that the Appellant fai led to prove its counter claim to the same standa rd of proof. 8.6 We have had occasion to peruse th e record and arguments of both parti es. We have had the opportunity to analyse the lower Court's dec ision as regards the Appellant's counter claim, details of which can be seen from paragrap hs 9.11 to 9.30 of the Judgme nt. We refer to our decision of Mwanambulo v Hikakonko2 in wh ich we stated at paragraph 26 as follows: " In civil matters, the plaintiff bears the burden of proving his case on a balance of probabilities as was stated by the Supreme Court in the case of Zambia Railway limited v Pauline S. Mundia, Brian Simumba 3 that J14 "The old adage is true, that he who asserts a claim in a civil trial must prove on a balance of probability tha t the oth er party is liable." 8.7 We are of the considered view that t he lower Court did not misapply the case of Masauso Zulu 1 in th ese circumstances . The lower Court merely reminded itself of the principle and standard of proof applicable to the case . It is in acc urat e to assert that the lower Court did not apply t he aforementioned case to the main cla im w ith out spec ific submissions on the point. 8.8 We are alive to Paragraph 18 of Halsbury's Laws of England 1 which elucidates that the party bearing the legal burden must establish their case to the requisite st andard of proof, wh ic h in civil matters, hinges on the balance of probabilities. In the English case In re H (Minors)4, Lord Nicholls expla in ed as fo llows: "The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of th e event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious allegation the less like ly it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on th e balance of probab ility .. . " 8.9 We have had occasion to peruse the R.ecord of Appeal and have noted the evidence of DW1 (Appellant's w itness in th e lower court) who confirmed in the proceedings seen at page 192, t hat pursuant to th e JlS agreement, 75,000 kgs of seed was delivered to the Appellant by the Respondent. This is re leva nt in the circumstances as this evidence was undisputed at t ria l. 8.10 Additionally, we acknowledge the breakdown of description of seed and weight in terms of kilograms given by th e Respondent at page 157. Evidence of DW1 at trial confirmed that the Appellant has in its possession the amount of 64,870 kgs and that the balance of 4870 kgs was sent back to the Resp ondent bringing the total remaining seed to 7500 kgs. There is evidence on record seen from the invoices, credit notes and statements that reflect how the initial supply of 75,000 kgs seeds, were either donated, returned or used for marketing purposes. 8.11 In view of the above, we hold the view that the evidence on record is suffici ently persuasive to indicate that the lea rn ed Judge carefully considered several issues in casu. We are left to question why th e Appellant's argument was not specifica ly raised at trial, and we consider it to be, in our view, an afterthought. 8.12 What can be inferred from the evidence, or lack thereof, is t hat the Appellant's subm ission that th e Masauso Zulu 1 case was se lectively appli ed is misguided. We note th at the learned Judge acknowledged th e absence of evidence pointing to 12, 370 kilograms . Upon analyzing paragraph 14 of th e Respondent' s Statement of Claim, we observe that the Respondent refers to 12, 370 kgs, but there is no evidence of thi s on record. J16 8.13 We are of the considered view that, even in the absence of the aforementioned evidence, the learned Judge properly considered the critic al fact that there is no record indi cati ng what th e rem aining 7,500 kgs represents . It is evident that the Appellant made a payment of K17, 000 towards seed supplied by the Respondent, receipts of which are seen at pages 104,106 and 107 of the record. Upon reviewing "Annex 1" on page 77, we share the view that it remains unclear what the 7,500 kgs or the K17, 000 payment corresponds to . Without this clarity, it is challenging to determine the total amount owed. We, therefore, concur w ith the learned Judge's decision that the issue should be resolved throu gh an assessment before the Honourable Registrar. In light of th e foregoing, we find no merit in ground 1 of the appeal and dismiss it accordingly. We believe that by our re aso ning above, we have adequate ly addressed ground 3, which is equally dismissed. 8. 14 In arguing ground 2, the Appellant has canvassed th e position that the court below erred in law and fact when it held that a review of the credit notes issued after the donations do no t state that th e 15% is a credit to the defendant. 8.15 We have had occasion to analyze th e lea rn ed Judge's view on the aforementioned issue at page J30 of the Judgment. It is th e Appellant's cont ention th at the Retail Agreement did not provide for donations and that the Respondent's act of donating seed was a breach of con t ract for which damages would ensue, but in apparent re medying of th e sa id Jl7 breach, the Respondent issued credit notes "for all seed, donated, gifted and returned. " 8.1 6 It is the Appellant's argume nt that the credit notes gave 15% discount, the same percentage that the Appellant was entitled to have for the seed not donated, gifted or returned. 8.17 In addressi ng our minds to this issue, our attention was drawn to all articles and Annexes of the Retail Agreement which make no reference to donations of product. Annex 1 provides for who lesale price for product at 15% discount. 8.18 We have observed th at while donations fall outside the scope of the Retail Agreement, the Respondent, in presenting its case before the lower Court led specific evidence. Notably, this is reflected in the table found on page 177 of the record, where the sum of ZMW 21 0, 977 .50 is detailed, along w ith a breakdown that in cludes discounted amounts from the credit notes on record at pages 98, 99, 100 and 102. These amounts are as follows: ZMW 8,415, ZMW 42, 500, ZMW 31, 025 and ZMW 3, 485, respectively. Th e only exception is a credit note on page 101 , which indicates a 0.00%. 8. 19 It is the Respo nd ent's argument th at it was agreed that the Respondent would sell the hybrid maize seed t o the Appellant in accordance with the product and price list at Annex 1 on page 77 of the record . It was argued that for each product of hybrid seed sold by the Appellant, th e Respondent would apply a 15% discount offering the Appellant a discounted wholesa le price as opposed to the normal retail price . J18 Further, the Retail Agreement between the parties specifi es that the Respondent wou ld sell hybrid maize to the Appellant with a 15% discount on sales and not on donations. 8.20 In view of the above, we have thoroughly reviewed the enti re re cord. From the submissions, we note discrepancies rega rdin g whether the 15% discount or 15% commission is applicab le from the Retail Agreement. However, upon our review of the record, it is clea r that the Appellant has consiste ntly maintained the term "discount". The question before us is whether the 15% discount reflected in Annex 1, applies to the Credit Notes on record issued by the Respondent. 8.21 Having perused the credit notes, we agree with th e Appellant's position that the credit notes on record reduced th e monetary value by 15% and indeed this clearly reflected as a discount on the seed donated. 8.22 We respectfully differ with the learned Judge's conclusion and base our position on the following: Upon review of the credit notes, with the exception of one indicating ZMW 800 , aH others reflect a 15% discount, the reduced amounts of which the Resp ondent relied upon in su pport of their cla im before the lower Court. Additionally, we observe that the terms "d iscount" and "commission" carry di stinct implications in this context. A comprehensive review of the record indicates that the Appellant has cons istently referred to th e 15% discount in question. Given this, it is diffic ult to disregard the Appellant's arguments regarding the discounted amounts reflected in the credit notes. J19 8.23 Furthermore, while the Ret ail Agreement does not expressly provide for handling fee for don ations, one must questio n why the Respondent relied on the disco unted amounts in its claim. Had all the cred it notes indicated a 0.00% discount, the matter wou ld have been c leare r. Based on the above considerations, we determine that the tota l amou nt payable to the Respo nd ent should be det ermined by the learn ed Registrar, w ith due regard t o the discounts reflected on the credit notes. Accordingly, we find merit in ground 2. 8.24 In arguing ground 4, th e Appellant has argued that the Court be low m isd irect ed itself when it orde red that "the amount found due shall carry interest at the contractually agreed rate of 1.5% per month ... " and yet t he compounded interest was agreed to be on outstanding invo ices. 8.25 The Appellant has further canvassed its position t hat the agreed compound interest was not on any outstand ing amount but expressly limited to "all outstanding invoices". Th e Appe llant argued t hat t he Court below misdirected itself when it ordered compound interest to be app lied on the amount t o be found due after assessment, firstly by the Respondent's failure to produce any invo ice and secondly, by ordering compound interest on an amount t o be found by further assessment. 8.26 We have co nsidered the case of Credit Africa Bank Lim ited (In Liquidation) v John Dingani Mudenda 5 w hich case referred to Union Bank Zambia Limited v Southern Province Co-operative Marketing Union 6 in which it was held : J20 "The charging of compound interest can only be sustained if there is express agreement between the parties for the charging of the compound interest or there is evidence of consent or acquiesce to the same." 8.27 From the outset, we are of the view that the starting point is the Retai l Agreement between the Parties. Article 2- Purchase, Payment, Delivery and Guarantee, Clause 2.9 which provides as follows: "2. 9 The Retailer agrees that the Company shall charge a compounded interest rate of 1.5% per month on all outstanding invoices and rebate per annex 2 shall not apply." 8.28 We are of the view that, in the present circumstances, there is a clear agreement between the parties regarding the charging of compound interest. This is evident from Article 2.9 of the Retail Agreement and further supported by the application for the opening of a bank account, signed by the Appellant, at page 81. Paragraph 14 of that application outlines the credit conditions, which reiterate Article 2.9 of the Retai l Agreement and states as follows : "(c) We hereby agree to pay you on demand interest at the rate of 1.5% per month on all overdue amounts and you are entitled to appropriate all payments made by us firstly towards interest and thereafter to the overdue amounts. " J21 8.29 We hold th e view t hat th e intention of th e pa rties is expressly st ated in t hese conditi ons. We are remi nd ed of th e Lea rn ed Auth ors of Chitty on Contracts 2 , w ho state t he gene ral rule, relat ing to t he performance of a bindi ng co ntract at paragra ph 22-001 as follows : " The general rule is that a party to a contrac t must perform exactly what he undertook to do." 8.30 We have had occa si on to analyze th e Credit Africa Bank Limiteds case in which t he Supreme Cou rt st at ed as follows: " ... At page 619, paragraph 36-227, this is what the learned authors of Chitty on Contracts have stated:- "Comp ound interest is payable either by agreement or c ustom but not otherwise." 8.31 While we not e th at in t he Credit Africa Banks case, the Apex Court may not have pro no un ced itself on Clause 1 of t he mo rtgage deed as an express agreement, under w hi ch th e Respondent co uld be said to have agreed to pay compound interest , th e situati on in thi s case is diffe rent. It is clea r t hat th e payment of com pou nd int erest was agreed upon by th e pa rties. We are reminded by t he case of National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo 7 , that when parties volunt ari ly and willingly enter into contract s, th ey are bound by t he t erm s of t hose co ntract s. 8.32 Fu rther, it is appa rent th at the Appellant is t ryi ng t o draw a distinction between an outst anding invoice and or "any out sta nding amount" . We are of t he opinion th at the Appellant's actions reflect an effo rt to J22 misinterpret the term in question, with the intent of evading its contractual obligations. Our understanding of an outstanding invoice is an unpaid bill that has been issued but has not yet been paid. In view of the above, we find ourselves in agreement with the Respondent's submission, that the Appella nt's assertion lacks merit and misinterprets the contractual terms. It is also clear from the credit conditions seen at page 82 that it specifically refers to all ove rdue amounts. In view of the foregoing, we find no merit in ground 4 and dismiss it accordingly. 8.33 With respect to ground 5, it is the Appellant's submission that the lower Court erred when it substituted the Appellant's evidence with its own assumption as a basis for its findings of fact on the Appellant's claim for refunds . The Appellant's grievance hinged on the findings of the lower Court at paragraphs 5.39, 9.15, 9.21 and 9.24 of the Judgment. 8.34 We have perused the receipts, payment vouchers and letters exhibited on record by the Appellant from pages 121 to 153. We refer to the case of Zambia Telecommunications Company Limited v Aaron Mweenge Mulwanda & Another 8 in which the apex Court stated: " ... Section 13 of the High Court Act which states that as far as possible, a trial Court should completely and finally determine all matters in controversy, properly brought before it, to avoid multiplicity of proceedings concerning such matters." J23 8.35 We hold the view that the learned trial Judge adequately identified the missing pieces of evidence on record, in arriving at her conclusion. We have identified some of these gaps with regard to the Appellant's cla im for refunds in which we note for instance, insufficient evidence to substantiate the claims for transportation, lodging and delivery of letter from the Respondent to the Ministry of Agriculture. Specific evidence of the Appellant's witness statement indeed reveals no evid ence to account for the trips made. 8.36 We are of the view that the learned Judge appropriately identified the gaps in the evidence on record, as outlined above, in reaching her conclusion. Evidence of DW2, upon closer examination, reveals notable questions, particularly on the absence of evidence regarding the said trips taken. In view of the above, we find no merit in ground 5 and dismiss it accordingly. 9.0 CONCLUSION 9.1 The Appellant having only succeeded on one ground of appeal (ground 2), the appeal substantially fails, save for the order of assessment in favour of the Appellant as noted in paragraph 8.23 above. 9.2 Having determined the appeal as we have above, we now turn to pronounce ourselves on the issue of costs . We note that the App ellant had raised five grounds of appeal, and there being only parti al success in one ground, as stated in paragraph 8.23 above, we are of the considered J24 ... view that the interest of justice will be best served by an order that Parties bear their own costs in this Court. J M. J. SIAVWAPA JUDGE PRESIDENT F. M CHISHIMBA A. N. PATEL S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J25