MTN (Zambia) Limited and Anor v Ronbeat Investments Limited and Anor (CAZ Appeal No. 168/2021) [2023] ZMCA 436 (29 August 2023)

61N THE COURT OF APPEAL OF ZAMBIA 168/2021 HOLDEN AT NDOLA (Civil Jurisdiction) CAZ Appeal No. BETWEEN: MTN (ZAMBIA) LIMITED IHS (ZAMBIA) LIMITED AND APPELLANT APPELLANT RONBEAT INVESTMENTS LIMITED 1ST RESPONDENT NDOLA CITY COUNCIL 2ND RESPONDENT CORAM : Siavwapa, JP, Chishimba and Banda-Bobo JJA On 22nd August, 2023 and 29th August, 2023 For the 1st Appellant: Mr. M. J. Chitupila of Messrs. Gill & Seph Advocates For the 2 nd Appellant : Ms. D. Nalishuwa of Messrs. Musa Dudhia & Company For the 1 st Respondent: Mr. K. Tembo of Messrs. K. Tembo Advocates agents for Makebi Zulu Advocates For the 2 nd Respondent: No appearance. JUDGMENT Chishimba JA, delivered the Judgement of the Court. CASES REFERRED TO: 1) Attorney General v Marcus Achiume (1983) ZR 1 2) Savenda Management Services v Stanbic Bank Zambia Limited SCZ Appeal No. 37 of 2017 3) Mundia v Sen tor Motors Limited ( 1982) ZR 66 4) Kasote Singogo v Lafarge Cement Zambia PLC SCZ Appeal No. 33 of 5) Gibson Tembo v Alizwani ( 1996) ZR 135 6) Goodyear Tyre & Rubber Company (Great Britain) Limited v Lancashire Batteries Limited ( 1958) 3 All ER 7 J. 2 ... 7) Barclays Bank Zambia Plc v Patricia Leah Chatta Chipepa Selected Judgment No. 16 of 2017 8) Zambia National Commercial Bank Plc v Joseph Kangwa SCZ Appeal No. 54 of 2008 9) Kasote Singogo v Lafarge Zambia Plc SCZ Appeal No. 33 of 2012 10) Zambian Breweries Limited v Lameck Sakata SCZ Appeal No. 179 of 11) Anthony Charles Mervin Uys & Anthea Elizabeth Murray v Natalie Danene Cook & Leon Stoltzer CAZ Appeal No. 60 of 2021 LEGISLATION CITED: 1) The Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia 2) The High Court Act Chapter 27 of the Laws of Zambia. OTHER WORKS CITED: 1. Halsbury's Laws of England. Volume 27, 4tr. Edition 2. Cheshire's Modern Real Property (9 th Edition) 1.0 INTRODUCTION 1.1 This appeal emanates from the judgment of Justice E. L. Musona dated 25 th February, 2021 in which he awarded the 1 st respondent damages for trespass, aggravated damages and mesne profits with interest. 1.2 On 15th August, 2023, IHS Zambia Limited, which was the 2 nd appellant, and 1 st respondent entered into a settlement by way of consent judgment. This resulted in the withdrawal of the 2 nd appellant's appeal . Therefore, this appeal relates to MTN (Zambia) Limited only, herein after referred to as the appellant. J. 3 2.0 BACKGROUND 2.1 The appellant, MTN (Zambia) Limited, in an agreement entered into with Ndola City Council (the 2 nd respondent), built a communication tower on Stand No. 266, Ndola initially owned by the former. Subsequently, the parties entered into a lease agreement for ten years. In 2012, the 1st respondent purchased Subdivision No. 10 of Stand No. 266, Ndola in which the communication tower was located. 2.2 Thereafter, Ronbeat Investments Limited notified MTN Zambia Limited of the change in ownership and demanded rentals for the use of the said tower. MTN disregarded the demand and continued paying rentals to Ndola City Council until it sold its interest in the tower to IHS Zambia Limited in December 2014. 2.3 Arising from the above, the 1 st respondent commenced an action by way of writ of summons and statement of claim against the appellant, 2 nd respondent and IHS Zambia Limited, who appeared as an interested party. 2.4 The 1 st respondent sought damages for trespass, including aggravated damages, mesne profits for the use by the appellant of the signal tower erected on the 1 st respondent's land, an injunction restraining the appellant from entering, J. 4 using or erecting any further signal towers upon the 1 st respondent's land, interest at the current bank lending rate from the date of writ to the date of full settlement, and costs. 3.0 EVIDENCE ADDUCED IN THE COURT BELOW 3.1 At the hearing, Ronald Bwale Nsokoshi (PWl), a director in the 1st respondent, testified that he purchased the Ndola Swimming Pool situated on S/D No. 10 of Stand No. 266, N dola (herein after referred to as 'the property') from the 2nd respondent sometime 1n 2012. He had plans of constructing/building a shopping complex and improving the pool to international standards. However, there was a communication tower sitting on the land that belonged to the appellant. He made reference to letters written to the appellant demanding that it pays rent for the use of the tower on the property. 3.2 In cross-examination, he stated that he initially entered into a lease with Ndola City Council for the property. Further, that he was not allocated the entire Stand No. 266 but subdivision No. 10 upon which the tower sits. 3.3 Paul Phiri (PW2), a Land Surveyor from the Ministry of Lands, conducted a boundary verification of Stand No. 266, Ndola and rendered a report to the court. The findings of the J . 5 verification were that the tower, which is in a wall fence, was within the boundaries of S/D. No. 10 of Stand No. 266, Ndola. 3.4 Francis Musonda Mwila (PW3), an accountant in the employ of the 1 st respondent, testified that Ron beat Investments Limited could not carry out its plans because the appellants had encroached onto their land. The 2 nd respondent began the process to sell the property in issue in 2008. The application was first made in 2009. In May 2010 , Ndola City Council approved the application subject to Ministerial approval. The Minister approved the sale in March 2011. An offer was made in April 2011. Ron beat Investments in due course paid the purchase price. 3.5 PW3 testified that according to the certificate of title, the MTN tower sits on Plot No. 266/ 10, Ndola. Further, that the appellant ought to have been paying rentals from the date title was issued to Ronbeat Investments Limited . The company has been unable to increase its stream of income on the property and has lost revenue being claims with interest. 3.6 In cross-examination , PW3 stated that he was not aware of any lease agreement between the a p pellant and the 2 nd respondent allowing MTN to erect a tower on the land. J.6 3.7 Tom Nguni (DWl), a technologist with MTN, stated that the appellant and the 2nd respondent executed a 10 year lease agreement on 20 th December, 2011 effective 1 st January, 2011 to 31 st December, 2021 in respect of Stand No. 266 Kandabwe, Ndola measuring 225 m 2 • This was for purposes of setting up a base station (tower) to be operated on a nationwide basis. The 1 st respondent rented the land for Kl500 .00 per month. 3.8 The 2 nd respondent warranted in clause 14.1.2 of the lease, that MTN's use of the premises would not contravene the rights of any third party, title deeds, town planning schemes, conditions, law and by laws, or provisions of any Licence . He stated that at no time did the 2 nd respondent notify MTN that there was a change of ownership or transfer of interest. Thus, MTN continued paying rent to the 2 nd respondent as lessor. 3.9 Clause 12.5 and 16 of the lease indemnified the appellant against any claims by a purchaser in respect of rental charges paid to the 2 nd respondent and any claims or damages arising from its use of the premises . 3.10 DWl further stated that in December, 2014, the appellant sold the tower to the 2 nd appellant thereby bringing to an end its lease agreement with the 2 nd respondent. IHS Zambia J. 7 Limited then entered into a new lease agreement with the 2 nd respondent and started paying rent to the Council. 3.11 In cross-examination, he stated that the 2 nd respondent did not give them notice that the property had been purchased by the 1 st respondent. 3.12 Bernard Kaputo Mulenga (DW2), a Senior Site Acquisitions Coordinator for IHS Zambia Limited, testified that around 2014, the company entered into a purchase agreement for the appellant's tower sitting on Stand No. 266, Ndola. The purchase was part of the sale of all MTN towers in Zambia. The 2 nd respondent had confirmed to IHS Zambia Limited that it was the owner of the land in issue and that the appellant was granted permission to construct the tower. 3.13 Mulenga explained that IHS Zambia Limited took over the lease between the appellant and the 2 nd respondent and paid rent of K1800.00 per month. According to the witness the land on which the tower stands belongs to the 2 nd respondent and is not part of the 1 st respondent's property. Further, that the tower can in no way be said to have prevented the 1 st respondent from undertaking its extensive developmental projects. J. 8 3.14 In cross-examination, Mulenga confirmed that he was aware that the 1st respondent wrote to the appellant informing them that Ronbeat Investments Limited are the owners of the land and demanded the payment of rent. 3.15 The 2nd respondent did not lead any evidence. 4.0 DECISION OF THE COURT BELOW 4.1 The learned Judge found that the 1 st respondent acquired the property in issue after its application was approved by the 2nd respondent and payment was made. On 13th September, 2011, a certificate of title was issued to the 1 st respondent, which in terms of section 33 of the Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia, is conclusive proof of ownership. 4.2 Following a site visit conducted by the court and a survey report, the court below held that the tower sits inside S/D No. 10/266, Ndola, which land is the property of the 1st respondent. Further that, having acquired proprietary rights in the property on 17th May, 2011, the appellant was obliged to pay rentals to the 1st respondent, and not the 2nd respondent. 4.3 The court found that the failure of the appellant to regularize its stay on the property rendered MTN a trespasser, and J. 9 awarded damages for trespass, including aggravated damages to the 1st respondent against the appellant, to be assessed. 4.4 The lower court further awarded mesne profits to the 1st respondent against the 2nd respondent in form of rent paid by the appellant with interest at the short term bank deposit rate from the date of first payment to date of judgment, and thereafter, at the Bank of Zambia lending rate. · 4.5 The court found no liability against the 2nd appellant but ordered them to pay rentals at the rate of Kl0,000.00 per month to the 1st respondent effective 25th February, 2021 up to the time that a lease is executed between the parties. 5.0 GROUNDS OF APPEAL 5.1 Displeased with this decision, the appellant has appealed advancing six grounds as follows that: 1) The court below erred in law and in fact when it held that the appellant knew that the 1st respondent was in possession of the disputed land (and that the appellant's conduct was deliberate and intentional} notwithstanding the clear and express provisions of clause 12 of the lease agreement and the absence of any evidence on court record showing that the 2 nd respondent had informed the 1st appellant that the 1st respondent was in possession of the disputed land; 2} The court below erred in law and in fact when it held that the appellant was liable in damages for trespass on their J. 10 own and under the indemnity clause (clause 16.1) of the lease agreement dated 20th December, 2011 between the 1st appellant and the :zna respondent; The court below erred in law and in fact when it held that 3) the 1 st appellant is to indemnify the 2 nd respondent for any liability under the indemnity clause (clause 16.1) of the lease agreement dated 2Qth December, 2011 between the 1 st appellant and the 2 nd respondent contrary to the evidence on record (both witness testimony and documentary evidence) that clearly established that the 2 nd respondent was in fact the party that was to indemnify the 1st appellant for any liability arising out of the lease agreement; 4) The court below erred in law and in fact when it held that the appellant was a trespasser and awarded damages against it without taking into account the undisputed evidence that demonstrated the fact that the appellant's interest in S/D No. 10 of Stand 266, Ndola had come to an end in 2014 when the appellant sold the tower to HIS Zambia Limited pursuant to which the HIS Zambia Limited and the 2 nd respondent entered into a lease agreement on 22nd December, 2014 from which the :zna respondent then became responsible for any and all liability relating to the tower on S/D 10 of Stand 266, Ndola; 5) The·court below erred in law and in fact when it held that the appellant pays interest on the damages, including aggravated da'(l'lages, awarded to the 1 st respondent at short term bank deposit rate from the date the tower was erected on the property in issue to date ofjudgment contrary to the 1st respondent's pleadings; and 6) The court below erred both in law and in fact when it ordered that interest on the rentals due to the 1st respondent be paid by the appellant at short term bank deposit rate from the date of the first payment to date of judgment contrary to the 1st respondent's pleadings. J. 11 6.0 APPELLANT'S HEADS OF ARGUMENTS 6.1 The appellant filed heads of argument in support of the appeal dated 29th July, 2021. In ground one, the appellant submits that the lease agreement between the appellant and the 2nd respondent was binding and enforceable having been freely and voluntarily entered into. Therefore, clause 12 of the lease agreement was equally binding and enforceable on both the appellant and 2nd respondent. 6.2 The appellant, MTN referred the court to the said clause 12 and 12.4 of the lease agreement between the parties. It was submitted that the said clauses placed a mandatory legal obligation on the 2nd respondent to inform or notify the appellant of any change of ownership of the property by furnishing the details of the purchaser as evidenced by the use of the word 'shall'. Further that the appellant was to continue paying rent to the lessor until informed otherwise by the 2nd respondent. 6.3 It was argued that the evidence on record clearly shows that the 2nd respondent acted contrary to the provisions of clause 12. Neither did the 1st and 2nd respondents show through documentary and witness evidence, that the 2nd respondent complied with clause 12 of the lease agreement. This resulted J. 12 in the appellant continuing to pay rent to the 2nd respondent. That the appellant was not aware of any change of ownership of the property in issue, the 2nd respondent having warranted in clause 14.1.3 that it is the registered owner and lawful occupier of the property. 6.4 Citing the case of Attorney General v Marcus Achiume 111 as authority, the court was urged to set aside the findings of the lower court as it is unsupported by the evidence on record and is perverse. 6.5 ' In arguing grounds two and three, the appellant first drew the attention of the court to clauses 12 and 14.1.3. Counsel submitted that the net effect of the cited provisions was that the 2nd respondent warranted to the 1 st appellant that it is the registered owner and lawful occupier of the premises with all the necessary authority to grant rights to use the property. Secondly, that in the event of a sale of the property, the 2 nd respondent would inform the appellant of such a sale and furnish the details of the purchaser. 6.6 Pursuant to the said clauses, and 1n the absence of any notification by the 2nd respondent of a change of ownership, the appellant proceeded to use the property and therefore, never trespassed thereon. This view is further informed by J. 13 clause 14.1.2 of the lease where the lessor warrants that the .. exercise by the lessee of its rights in terms of the agreement and occupation of the premises as contemplated in the agreement, will not contravene the rights of any third party, title deed, town planning schemes, any by-law and statutory obligations. 6.7 In support of its contention that the appellant is and was a trespasser, reference was made to paragraphs 3, 7 and 9 of the 2nd respondent's defence, which absolve the appellant of any trespass. The 2nd respondent, having omitted to notify the appellant of the purchase and change of ownership of the property, all liability for trespass falls solely on the 2nd respondent in terms of clause 12.5 of the lease agreement. 6.8 With respect to whether it was the appellant to indemnify the 2nd respondent, it was submitted that clause 16.1 of the lease agreement required the 2nd respondent to indemnify the appellant. Therefore, the lower court was wrong to order the appellant to indemnify the 2nd respondent. That the lower court failed to analyse the provisions of clause 16.1 as well as the submissions made by the appellant. This was argued to be contrary to the guidance rendered in Savenda J. 14 Management Services v Stanbic Bank Zambia Limited 121 by the Supreme Court. 6. 9 It was further argued that the decision of the court below was made in the absence of any supporting evidence and without considering crucial matters, thus malting it liable to be set aside as held in the case of Attorney General v Marcus Achiume supra. 6.10 In ground four, the appellant continued to challenge the holding by the court below that it was a trespasser and the award of damages. It was submitted that the evidence of DW 1 and DW2 showed that in 2014, the tower was purchased by IHS Zambia Limited who in turn, entered into a lease agreement with the 2 nd respondent on 22nd December, 2014. Therefore, it is not in dispute that the interest of the appellant in the tower ceased in December 2014. 6.11 Therefore, the lower court erred to award damages against the appellant for a period that it no longer held an interest in the tower and was no longer leasing the property. We were urged to set aside the award made by the lower court. 6.12 Grounds five and six, which relate to the award of interest on damages and rentals due to the 1 st respondent, were argued together. With respect to interest on damages, the lower court J. 15 awarded interest at shdrt term bank deposit rate from the .. date the tower was erected to the date of judgment, while interest on rent was to be paid at short term bank deposit rate from the date of the first payment to date of judgment. 6.13 The appellant submits that the award of interest in both grounds was made contrary to the 1st respondent's pleadings which specifically claimed interest from the date of writ of summons and statement of claim, and nothing more. 6.14 The case of Mundia v Sen tor Motors Limited 13 1 was cited on the functions of pleadings, in particular, that the parties are bound by their pleadings and the court has to take them as such. That in making the awards of interest on terms not pleaded, the court below essentially strayed outside the pleadings to the disadvantage of the 1 st respondent. 6.15 It was further argued that the award of interest was contrary to established practice. That in the case of Kasote Singogo v Lafarge Cement Zambia PLC 141, the court guided that interest is pegged at the average short term deposit rate from the date when an action commenced up to the date of judgment, and thereafter interest on the judgment debt (principal sum and interest) shall be calculated at the current J. 16 lending rate as determined by the Bank of Zambia until full settlement of the judgment debt. 7.0 ARGUMENTS BY THE 1 sT RESPONDENT 7 .1 At the hearing of the matter, we expunged the 1 st respondent's heads of argument dated 30th December, 2021. This was on the basis that they were filed outside the requisite 30 days period from the date the 1 st appellants filed the record of appeal and heads of arguments on 28th July, 2021, without leave of court. Nor were they served on the appellant. 7.2 The 2nd respondent neither filed any arguments nor appeared at the hearing. 8.0 ANALYSIS AND DECISION OF THE COURT 8.1 We have considered the record of appeal, authorities cited and arguments by the Learned Counsel. The following facts are not in dispute: that Ndola City Council, the 2nd respondent herein, was the original owner of Stand No. 266, Ndola. The appellant, MTN (Zambia) Limited and the 2nd respondent entered into a contract allowing the former to build a communication tower on Stand No. 266 in 1998. In 2011, the two parties entered into a lease agreement for 10 years in respect of the erected tower. • 8.2 In 2012, the 2 nd respondent purchased S/D No. 10 of Stand J. 17 No. 266, Ndola. The communication tower was and is located inside the purchased subdivision. Upon purchase, the 1 st respondent notified the appellant demanding rentals for the use of the tower. 8.3 In December 2014, the appellant sold the tower to IHS Zambia Limited. Thereafter, the 2 nd respondent entered into a lease agreement with IHS Zambia Limited in respect of the tower. 8.4 The issues for determination are as follows: (i) Whether the appellant was aware that the 1st respondent was in possession of the property on which the tower is located upon purchase from Ndola City Council, the 2 nd respondent herein (ii) Whether the appellant is liable in damages for trespass in view of clause 16.1 of the lease agreement between it and the 2nd respondent? (iii) Whether the court erred in law and in fact by holding that the appellant was to indemnify the 2 nd respondent for any liability pursuant to clause 16.1 of the lease agreement of 20th November, 2011. Simply put, which J. 18 party was to indemnify the other in the event of ... breach? (iv) Whether the court exercised its discretion properly by awarding interest to the 1 st respondent against the appellant at short term deposit rate from date of judgment, and also, by awarding interest on the rentals due to the 1 st respondent against the appellant at the short term deposit rate from date of first payment to date of judgment. 8.5 In ground one, the appellant argues that it was not aware of the sale of the land on which the tower sits to the 1 st respondent by the 2nd respondent. The thrust of the contention being that clause 12.1 of the lease agreement between the 2nd respondent and the appellant, required the 2nd respondent as lessor, to notify the lessee (appellant) of any prospective purchaser of the property. Further, clause 12.2 obliged the lessor to furnish the lessee with the details of the purchaser in the event of a sale. The said clauses read as follows: 12.1 The Lessor shall notify any prospective purchaser of the property or premises of the existence of this agreement. J. 19 12.2 In the event of the sale of the property, of which the premises forms a part, the Lessor shall furnish the Lessee with the full name(s), address, telephone, cellular and fax number of the purchaser of the property. 8.6 The evidence on record shows that the 2nd respondent sold the property in issue on which the tower sits to the 1 st respondent. When the property was sold in 2011 to Ron beat Investments Limited, the 2nd respondent neglected to notify the appellant of the sale. However, there was also evidence adduced to the effect that the 1 st respondent wrote to and engaged the appellant of the need to enter into a new lease agreement for the land on which the tower stands in a letter dated 7 th November, 2011 at page 123 of the record of appeal. 8.7 While it is not in dispute that the 2nd respondent neglected to notify the appellant of the sale of the land as required by clause 12.1, it is also not in dispute that the appellant was made aware of the change of ownership when the 1 st respondent wrote to it in the letter of 7th November, 2011. 8.8 As a purchaser of the land in issue, the 1st respondent took notice of the fact that there was a tenant on the land and proceeded to engage the appellant. This was in line with the view of the learned authors of Cheshire's Modern Real J. 20 Property (9 th Edition), p. 65, cited by the Supreme Court in Gibson Tembo v Alizwani 151 , who stated that: "One object of investigating title is to discover whether the land is subject to rights vested in persons other than the vendor, and the equitable doctrine of notice orders that a purchaser is bound by any right which he would have discovered had he made the ordinary investigations as sketched above. Again, if he fails t o make inquiries of third persons who happen to be in possession of the land, he is affected with notice of all equitable interests held by them, as, for example, an option to purchase the fee simple that has been granted to a lessee already in possession. " 8. 9 Having discovered the interest of the appellant, the 1 st respondent engaged the appellant advising them to start paying rent to the 1 st respondent as the new lessor. 8.10 Can it be argued that the appellant had constructive notice of the sale or the change of ownership of the land from Ndola City Council to Ronbeat Investments Limited, and therefore be liable for payment of mesne profits from the date it was notified of the purchase of the property by the 1 st respondent to the date it sold its tower to IHS Zambia Limited? 8.11 The answer to the above question is found in Clauses 12, 12.4 and 16.1 of the lease agreement between the appellant and the 2 nd respondent. Pursuant to clause 12.1 and 12.2, the 2 nd respondent was under obligation to notify the prospective J. 21 purchaser of the existence of the lease agreement. The provisions further required the 2 nd respondent to furnish the appellant of the full details of the purchaser in the event of a sale of the property. The 2 nd respondent breached the lease agreement and defaulted in notifying the appellant that the property had been sold to a third party 8.12 The question that arises is whether the doctrine of constructive notice applies to the appellant. In Goodyear Tyre & Rubber Company (Great Britain) Limited v Lancashire Batteries Limited 161 at page 12 Romer LJ, held that: " ... as a general rule the equitable doctrines of constructive notice are not to be extended to purely commercial transactions. . .. " 8.13 While the lease agreement between the appellant and 2 nd respondent does not fall in the category of purely commercial transactions, we note that the agreement expressly provided for notice of any change of ownership. It was an express term of the agreement that the appellant would be notified of any change in the ownership of the property. Failure on the part of the 2 nd respondent to give the requisite notice amounts to breach of contract for which the appellant would be entitled to damages had that relief been pleaded. The appellant's J. 22 defence is indemnity for the alleged trespass. Before we determine liability on the basis of indemnity, we will address the claim for trespass awarded by the court below. 8.14 In ground two and three, the appellant denies any liability in damages for trespass contending that the 2 nd respondent is obliged to indemnify it against any claim of liability or loss arising from its occupation and use of the land under clause 16 of the lease agreement which provides as follows: 16.1 The Lessee shall indemnify and hold the Lessor harmless against any claim of liability or loss for personal injury or property damage, resulting from, arising out of the use and occupancy of the premises by the Lessee and/or its employees or agents, excepting, however, such claims or damages as may be due to or caused by the intentional misconduct or negligent acts or omissions of the Lessor or its employees and/or agents. (Emphasis added) 8.15 The exception to clause 16.1 shows that it is in fact the 2 nd respondent, as lessor, that must indemnify the appellant as lessee against " ... such claims of damages as may be due to or caused by the intentional misconduct or negligent acts or omissions of the lessor or its employees and/ or agents." 8.16 While it has been shown that the appellant was aware of the change of ownership, the 2 nd respondent cannot escape J. 23 liability under the exception to the indemnity clause as the ... evidence shows that it neglected to furnish the lessee/appellant of the " ... full names, address, telephone, cellular and fax number of the purchaser of the property." Had it done so, MTN would have proceeded to enter into a contract with Ronbeat Investments Limited. Therefore, the appellant, in respect of damages for trespass, cannot be held liable. It was in occupation of the premises with consent by virtue of the lease agreement with Ndola City Council, who failed to notify it of the changes in ownership. 8.17 We hold that no liability can attach to the appellant for trespass, the reason being that the 2nd respondent defaulted on notifying the appellant of a change of ownership and continued receiving rentals from the date of purchase to the date the tower was sold to IHS Zambia Limited. It is the 2nd respondent that must pay damages for mesne profits by way of indemnity. 8.18 Therefore, the lower court erred to the extent of holding that the appellant was to indemnify the 2 nd respondent for any liability under clause 16.1 of the lease agreement dated 20 th December, 2011. The appellant is not liable for the damages for trespass by virtue of the indemnity clause. The 2 nd J. 24 respondent is liable in indemnity. We find merit in grounds two and three. 8.19 In ground four, the appellant denies liability on the basis that its interest in S/D No. 10 of Stand No. 266, Ndola came to an end in 2014 when it sold the tower to IHS Zambia Limited who then entered into a new lease agreement with the 2 nd respondent. It is not in issue that the appellant sold the property to IHS Zambia Limited in 2014, and that IHS Zambia entered into a lease agreement with the 2 nd respondent for the tower. 8.20 Having sold the tower, liability move d onto IHS Zambia Limited to be paying rent for the tower situated on the property owned by the 1 st respondent from the date the tower was sold. We will not belabor this point, IHS Zambia Limited having entered into a consent judgment. 8.21 Therefore, the lower court erred to the extent of holding that the appellant was a trespasser throughout when the evidence on record shows that the tower was in December 2014 sold to IHS Zambia Limited. We find merit in ground four. 8.22 As regards grounds five and six on the interest awarded on damages, rentals and aggravated damages at short term deposit rate from the date the tower was erected to date of J. 25 • I judgment, though we hold the view that it is otiose and academic to determine this ground in view of the earlier holding that the appellant is not liable in damages for trespass (mesne profits), we will briefly address the practice of the courts in awards of interest. 8.23 Lately, we have been besieged by appeals arising from the interest awarded in the lower court. There are a plethora of Supreme Court decisions to the effect that interest is pegged at the average short term deposit rate from the date when an action is commenced up to the date of judgment, and thereafter, at the current lending rate as determined by the Bank of Zambia up to date of final payment. We refer to the cases of Barclays Bank Zambia Pie v Patricia Leah Chatta Chipepa (7), Zambia National Commercial Bank Pie v Joseph Kangwa 181, Kasote Singogo v Lafarge Zambia Pie 191 , Zambian Breweries Limited v Lameck Sakala '101 and our decision in Anthony Charles Mervin Uys & Anthea Elizabeth Murray v Natalie Danene Cook & Leon Stoltzer ' 111 . Let the lower courts be guided accordingly. 8.24 Interest ought and should be awarded from the date of writ to date of judgment at short term deposit rate, thereafter at current bank lending rate until complete payment. J.26 • 9.0 CONCLUSION 9.1 The appeal by the appellant having succeeded, we accordingly set aside the holding by the lower court that the appellant was a trespasser, the damages awarded therein, including aggravated damages. We substitute it with the holding that the 2 nd respondent is instead liable in damages for trespass including aggravated damages by virtue of the indemnity clause between the parties. 9.2 The said damages shall be assessed by the learned Registrar from the date of purchase of the property namely 13th September, 2011 to December 2014. The amount found to be due shall be subject to interest at the average short term deposit rate from the date of writ to date hereof, thereafter interest at the current lending rate as determined by the Bank of Zambia until complete paymen t Costs are awarded to the appellant against the 2 nd respondent. ····················,I ··················· M. J. Siavwapa JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE ·········~·········· A. M. Banda-Bobo COURT OF APPEAL JUDGE