Samuel Mwansa Sabi v Finance Building Society (Appeal No. 61/2017; CAZ/08/007/2017) [2018] ZMCA 637 (1 February 2018)

) IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/007/2017 Appeal No. 61/2017 BETWEEN: SAMUEL MW ANSA SABI I/ ( AND \ ' APPELLANT FINANCE BUILDING SOCIETY RESPONDENT Coram: Mchenga, DJP, Mulongoti and Sichinga, JJA On the ]st day of February, 2018 For the Appellant: In Person For the Respondent: Mr. A. Roberts of Messrs. Alfred Roberts & Co. JUDGMENT SI CHIN GA, JA, delivered the Judgment of the Court Cases referred to: 1. Stanbic Bank Zambia Limited v Crispin Kaona SCZ Appeal No. 61 of 1994 2. Communications Authority v Vodacom Zambia Limited SCZ Judgment No. 21 of 2009 3. Reeves Malambo v Patcon Agro Industries Limited (2007) ZR 177 4. Samuel Mwape Sabi v Finance Building Society SCZ Appeal No. 67 of 2014 5. Indeni Petroleum Refinery Company Limited v G Limited (200 7) ZR 197 6. Premesh Bhai Megan Patel v Rephidim Institute Limited (S. C. Z. Judgment No. 3 of 2011) -Jl- 'I 7. Attorney General v Marcus Kampumba Achiume (1983) ZR I Legislation Referred to: I . Judgments (Amendment) Act, Cap 81 Llaws a/Zambia 2. Law Reform (Miscellaneous Provisions) Act Cap 74 of the Laws of Zambia This is an appeal by the appellant, Samuel Mwape Sabi, against the decision of the learned High Court Judge which held that the appellant was indebted to the respondent, Finance Building Society, in the sum of K523,932.79 together with contractual interest. The respondent had sought by way of Originating Summons, under cause number 2008/HPC/0583, payment of the sum of K244,498.64 (rebased) with interest, the same being monies owed and due by the appellant arising from a loan facility advanced by the respondent. The loan facility was secured by the property known as Subdivision No. 138 of Subdivision A of Farm 3 78a, Lusaka. The respondent also sought an order to sell, assign, transfer or otherwise dispose of the said property. The facts of the case were that in 2007, the respondent availed the appellant a loan facility in the amount of K207,487,826=00 (unrebased), to be repaid within one hundred and twenty four (124) months. A loan agreement was executed to this effect, which provided that interest was to accrue at the rate of 28% per annum from the date of the agreement until the date of full and final payment. The parties -J2- further entered into a legal mortgage to secure the said loan, which was duly registered in the Registry of Lands and Deeds. After the appellant defaulted, the respondent sought a court order to compel the appellant to pay the principal sum of K244, 498, 646=24 (unrebased) with interest at the rate of 28% per annum. The respondent also sought an order for delivery of the property known as Subdivision No. 138 of Subdivision A of Farm No. 378a Lusaka with power to sell, assign, transfer or otherwise dispose of the said property. The appellant's position in the court below was that the loan facility was for the amount of K200,000=00 (rebased) and not K207,487.82=00, (re based) and that the interest rate was reduced to 23% after one month of the facility coming into operation. The appellant also stated that he had paid Kl 96,085=45 against the loan facility, which was still in operation as the period of 124 months had not yet lapsed as at April 2009. In December 2009, the parties entered into a Consent Settlement Order to the effect that the appellant was considered to have liquidated the principal loan facility and allowed to revert to the payment of equal monthly installments in terms of liquidating the interest as agreed in the loan agreement, taking into account the amount paid. -J3- The respondent then commenced an action under cause number 2013/HPC/0048 to set aside the said Consent Settlement Order in 2013 on the ground that it was entered into by the respondent's previous advocates by mistake and without the authority or consent of the respondent. The Court below accordingly granted the application in a Judgment in Default of Defence dated 11 th July, 2013. The appellant then made an application to stay execution of the judgment in default on grounds that there were triable issues and that the matter should have been determined on the merits. The Court below dismissed the application to stay execution of the Judgment in default on the grounds that the appellant had failed to comply with the rules of the court as he had failed to file a defence within the stipulated period. The court found that the defence he had filed after the Judgment in default was delivered was irregular and inadmissible. The appellant appealed this decision to the Supreme Court. In its Judgment, the Supreme Court upheld the lower court's decision setting aside the Consent Settlement Order. Following the Judgment by the Supreme Court, the parties were reverted to their positions under cause number 2008/HPC/0583. In that cause the respondent's position, was that the principal loan availed to the appellant in February 2007 was K200,000=00 (rebased) as well as the sum of K7,487.83 (rebased) towards a -J4- Mortgage Protection Policy, bringing the total amount disbursed to K207,487=83. The respondent stated further that according to the facility letter, it had the contractual right to vary the interest rate upwards or downwards. That as at 31 st May 2016, the appellant owed the respondent the sum of K523,932=79. As at 30th May 2016, the total amount paid by the appellant was K231,932=59, of which K30,000 (re based) went towards repayment of the principal sum in April 2009, and that the appellant, having failed to pay the equated monthly instalments, fell into arrears and was therefore in default of his contractual obligations under the mortgage facility, notwithstanding that the duration of the loan was for 124 months. The trial Court found, on the basis of the statement of account produced by the respondent, that he owed K523,932=79 as at 31 st May 2016. It also found that the appellant was only charged simple interest. The trial court further found that the respondent had the contractual right to vary the interest rate as per the facility letter and mortgage deed. Furthermore, on the basis of a newspaper advertisement produced by the respondent as proof that it placed similar advertisements to customers notifying them about the revision of interest rates, the trial court found that there was no basis for the appellant's claim that interest should be limited to 23% per annum. Consequently, the trial court entered judgment in favour of the -JS- respondent in the sum of K523,932=79 together with contractual interest to be settled within ninety (90) days from the date of judgment and in default, the appellant was to deliver vacant possession of the mortgaged property to the respondent, who shall have the liberty to foreclose, take possession and exercise its right of sale. Dissatisfied with the judgment of the Court below, the appellant appealed to this Court on the following grounds: GROUND ONE The learned trial judge erred in law and in fact when she glossed over the totalities of the evidence relating to the actual amount borrowed, thereby arriving at a wrong judgment sum. GROUND TWO The learned trial judge erred in law and in fact when she failed to address the mode of application of the total amount paid by the respondent in view of the evidence by the respondent on the court record thereby arriving at the wrong judgment sum. -J6- GROUND THREE The learned trial judge erred in law and in fact when she failed to recognize the actual legal effects of setting aside the consent settlement order dated 19th December 2009 in the adjudication of the case herein, thereby falling into error in arriving at the judgment. GROUND FOUR The learned trial judge erred in law and in fact when she failed to recognize the illegality of the application of interest for the period running from 19th December 2009 to 14th August 2015. GROUND FIVE The learned trial judge erred in law and in fact by failing to consider the respondent's application to have the matter referred to assessment. GROUND SIX The learned trial judge erred in law and in fact when she glossed over the total of the evidence of the respondent in preference to the evidence of the application unjustifiably. The appellant filed into court heads of argument dated I ih June, 2017. -J7- Under the first ground, our attention was drawn to the endorsement on the Certificate of Title relating to the mortgaged property, which shows the amount borrowed as K200,000=00. The appellant, who appeared in person, argued that although the issue of the actual amount of money he borrowed from the respondent, was a contentious issue from inception, the trial court did not seriously address the issue. He submitted, that on the basis of the Certificate of Title, relating to the mortgaged property, which 1s endorsed with the amount of K200,000,000=00 (unrebased) as the amount borrowed, we should find that that was the amount he borrowed. Under ground two, the appellant relied mainly, on his further affidavit in opposition to Originating Summons, which states that as at 3rd April 2009, the agreed outstanding balance was the sum of Kl 72,472=00 against which he paid the sum of Kl 50,000=00 with the respondent's agreement. He submitted that this was supported by exhibits that were never given any consideration by the court below in its judgment. Mr. Sabi drew our attention to exhibits "SMS 2A" and "SMS 2B", and contended that exhibit "SMS 2B" clearly showed the discussion that was held between the respondent's representative and himself. The exhibit further showed receipt of payment of Kl 50,000=00 by the respondent's representative against the -J8- C agreed balance of K 172,472=00 thereby reducing the outstanding balance to K22,472=00. The appellant also relied on the assertions by the respondent's advocate in the court below, as indicated in the court proceedings, wherein Mr. Mutofwe stated as follows: "The respondent has made a payment of Kl 50million for the debt. The proceedings were commenced. We are yet to sit down and agree on the interest component to come up with a final figure of what balance is due and proceed to file consent should there be agreement. Should we fail to agree then we will come back to Court to have the interest determined. In the premises therefore, I pray that the Court grants an adjournment to allow the parties pursue an ex-curia settlement. " Accordingly, that the finding of the trial court that there was no evidence of any agreement between the parties that the principal sum had been paid and what remained was interest only should be reversed. -J9- Under ground three, the appellant argued that when the Consent Settlement Order dated 19th December 2009 was set aside by the Court below in a judgment dated 14th August 2015, it was not declared null and void ab initio. That the order ceased to have legal effect from the date of the judgment. Consequently, the appellant argued, the setting aside of the order does not take away the fact that the parties engaged in some negotiations and there was written correspondence to this effect, which the trial judge did not consider due to her failure to recognize the effect of setting aside of the Consent Settlement Order which caused it to fall in error in arriving at the judgment sum. Mr. Sabi urged us to consider the evidence of the said correspondence in ascertaining the marriage of mind between the appellant and the respondent in their genuine effort to resolve the dispute between them. Under the fourth ground, the appellant argued that for the period running from 19th December 2009 to 14th August 2015 during which the Consent Settlement Order was set aside, interest should not be charged by the respondent because both parties were under an honest belief that the principal sum had been paid by the appellant. The consent order was set aside on grounds of the alleged mistake solely attributed to the respondent, who must not be allowed to benefit from its own mistake. There is no evidence on record to the effect that between 19th December 2009 and 14th August 2015, the appellant had defaulted on the payment of the -JlO- principal sum. He urged us to find that the period running from 19th December 2009 to 14th August 2015 should not attract any interest, as the parties had a 'marriage of mind' that the principal sum had been paid and further that the only amount to attract interest must be the sum of K22,472=00 at 23% per annum as from 14th August 2015 . Under ground five , the appellant makes reference to his further affidavit in opposition in which he requested the court below to refer the matter to assessment, which application he contends the trial court did not consider and also did not address in its judgment. Thus, the court fell into error by not considering his application to refer the matter to assessment. Under ground six, it is argued that the court below agreed with the averments of the respondent as opposed to those of the appellant without giving justification. Furthermore, that the documentary evidence contained in the appellant' s further affidavit in opposition was not considered by the court, as compared to the averments of the respondent which were considered and yet had no supporting documentary evidence. The respondent also filed into court heads of argument dated 29th August, 2017. In response to ground one, the respondent submitted that only matters of fact and not -Jll- matters of law had been raised in this ground. Mr Roberts, learned counsel for the respondent submitted that an appeal cannot lie purely on a matter of fact which in itself is not fatal to the outcome of the case. He amplified that there was no dispute per se, that the principal sum borrowed was K.200,000=00 (rebased) plus a mortgage protection policy of K7,487.82 (rebased). He relied on the case of Stanbic Bank Zambia Limited v Crispin Kaona 1 wherein the Supreme Court held that: "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 upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could make. 11 The case of Communications Authority v Vodacom Zambia Limited2 was also cited in this regard to re-affirm the same principle. In response to ground two, the respondent argued that the allegation that the agreed outstanding balance as at 3rd April, 2009 was the sum of Kl 72,472=00 (rebased) against which the appellant paid KlS0,000=00 (rebased) with the respondent's agreement is totally untrue and baseless. Our attention was drawn to paragraph 6 of -J12- the affidavit in reply to the respondent's further affidavit which states that the balance due as at 3rd April, 2009 was in fact K275,871 =04, as evidenced by the exhibited interim statement of account, which statement was not in dispute. Learned counsel argued that there was no agreement as to the outstanding balance between the parties, as none of the exhibits referred to by the appellant show any document from the respondent signifying any purported agreement. In response to the appellant's contention that he owed a balance of Kl 72,472=00 as at April, 2009 out of which he paid Kl 50,000=00 and that he only owed the respondent K22,472=00, the respondent contended that this position was erroneous as it did not consider interest accruing on the debt. Counsel relied on the statement of account on record, which showed that the appellant owes K549, 120=79 as at 31 st May, 2016. He placed reliance on the case of Reeves Malambo v Patcon Agro Industries Limited3 , wherein the Supreme Court held that: "The mortgagee is at liberty to exercise his right to foreclosure and sell the property in the event of default and failure by the mortgagor to redeem the mortgaged property." The respondent contended further that the appellant defaulted and continues to default on his loan repayments for over eight years. We are urged to dismiss this appeal as the appellant appears to continuously engage in litigation, thereby -J13- worsenmg the state of his account due to interest which continues to run. Respondent is also being denied the fruits of its judgment. Under ground three, the respondent argued that the court below was bound by the judgment of the Supreme Court in this same case which set aside the consent settlement order dated 19th December, 2009. According to counsel this entails that there was never any consent by the respondent as contained in the purported Consent Settlement Order. Thus the case had to be heard de nova. In response to ground four, the respondent argued that the alleged 'marriage of mind' alluded to by the appellant was devoid of legal merit, as the right of the respondent to charge contractual interest stems from the mortgage deed executed by the parties, as well as the mortgage facility letter dated 9th February, 2007. In addition, the respondent contends that the appellant elected to engage in protracted litigation for over nine years and he should not be absolved from paying interest on the mortgage facility. Counsel submitted that interest accrued up to the date of judgment and thereafter, statutory interest applied under the Judgment (Amendment) Act 1 until full settlement. In this regard, counsel placed reliance on the case of Indeni Petroleum Refinery Company Limited v G Limited 5 wherein the Supreme Court considered section 4 of the Law Reform (Miscellaneous Provisions) Act2 which provides as follows: -J14- "In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: " The Supreme Court held further as follows: "The underlying principle and the basis for an award of interest is that the defendant has kept a plaintiff out of his money and the defendant had use of it himself, so he ought to compensate the plaintiff accordingly. It would be absurd to allow the appellant to escape from paying interest simply because it had compromised the action and entered into an ex curia settlement. " Under ground five, the respondent submitted that it lacked merit as there was no formal application by summons, supported by an affidavit, applying for the matter to be referred for assessment. Mr. Roberts also pointed out that the respondent's statement of account was not challenged in any way by the appellant. -JlS- As regards ground six, the respondent submitted that the same is baseless and without merit, as the appellant had not demonstrated what he meant by alleging that there was preference to the evidence of the respondent. It is argued further that the respondent's affidavits filed in the court below were factual, truthful and supported by documents and statements of account, which ultimately countered the various defences of the appellant. In conclusion the respondent urged us to dismiss all the grounds of appeal. We have considered the appeal, Judgment of the court below, as well as the heads of argument of both parties. The issues raised in this appeal revolve around the actual amount borrowed by the appellant and the applicable interest. As regards the first ground of appeal, from the evidence on record, it is evident that the learned trial Judge was on firm ground when she found and concluded that the respondent did advance the sum of K207,487=83(rebased) to the appellant, under a loan facility executed in February, 2007. The documentary evidence on which the appellant mainly relies in support of the assertion that he borrowed only a total amount of K200,000=00 from the respondent is the certificate of title relating to the property that is subject to the -J16- mortgage, which is endorsed with the words; "mortgage to Finance Building Society to secure K200,000,000 and interest." The loan facility letter dated 9th February, 2007, under clause 2, spells out the amount of the loan borrowed as K207,487,826 (unrebased) being the total loan. Further, clause 6.3 of the said facility letter states as follows: "You are required to subscribe to the Provident Mortgage Protection Policy that will cover death and permanent disability. The single premium for this cover for the entire period of the loan will be borne by yourself, that is K7,487,826. Disbursement of the loan is subject to your satisfactorily completing the required legal documentation. " We note that the mortgage deed, in its schedule indicates that the principal sum is K200,000=00 (rebased) and provides for a Mortgage Protection Policy of K7,487.82=00 (rebased). The said facility letter and mortgage deed were signed by the appellant in acceptance of the terms and conditions specified therein. It is trite law that where parties have embodied the terms of their agreement in a written document, extrinsic evidence is not generally admissible to add to, vary, subtract from or -Jl 7- contradict the terms of the written contract. The exception to this rule is to the effect, as held by the Supreme Court in the case of Premesh Bhai Megan Patel v Rephidim Institute Limited,6 that extrinsic evidence can be admitted to prove any terms which were expressly or impliedly agreed by the parties before or after execution of the contract, where it is shown that the agreement was not intended to incorporate all the terms and conditions of the contract. From the record herein, the documents stipulating the conditions of the loan are the loan facility letter and the mortgage deed. The Certificate of Title merely indicates the amount of money that is secured by the mortgage on the property relating to the title. We note that both of the documents that set out the terms of the mortgage do provide for a mortgage protection policy in the amount ofK7,487,82=00 (rebased). The appellant has not shown that the mortgage deed and/or facility letter was not intended to express the whole agreement between the parties, as is the requirement for the exception to the extrinsic rule of evidence to be successfully applied. We are therefore unable to allow ground one, that the trial court glossed over the totalities of the evidence relating to the actual amount borrowed. The documents stipulating the terms of the loan, signed by the parties herein, do make reference to the mortgage protection policy in the amount of K7,487=82 (rebased). The appellant entirely relied on the Certificate of Title endorsed with the amount of -J18- K200,000=00 in persuading us to find that the amount he borrowed from the respondent was K200,000=00. As argued by Mr. Roberts, the K200, 000.00 is the principal sum while the K7, 487.82 is the mortgage protection policy as stipulated in the schedule to the mortgage deed. Thus, the total borrowed was K207, 487.82. We note that the trial court arrived at the judgment sum of K523,932 under the premise that the total sum borrowed was K207,487,826. In this regard, having found that the documents on record, pursuant to which the parties entered into a loan agreement, did provide for a mandatory mortgage protection policy, we are guided by the holding of the Supreme Court in the case of Stanbic Bank Zambia Limited v Crispin Kaona supra. We have no reason to fault the trial court as argued by the appellant that she made findings in the absence of evidence or upon a misapprehension of the facts. In our view, this is not a proper case in which, as an appellate Court, we should reverse the findings of fact made by the trial Judge because the findings in question are supported by the evidence on record and are not a misapprehension of facts. The case of Attorney General v Marcus Kampumba Achiume 7 refers. The first ground of appeal therefore fails. The appellant's assertions in ground two herein are based on an alleged agreement between the parties. For this ground to succeed, we must be satisfied that it was indeed agreed between the parties that the balance on the principal sum as at 3rd -J19- April, 2009 was Kl 72,472=00 and subsequently that the principal sum had been paid and what remains is the interest. The exhibit 'SMS2' on which the appellant sought to rely in advancing his argument that the agreed balance at the time he paid Kl 50,000=00 was Kl 72,472=00 is the cover letter with which he served two cheques amounting to Kl50,000=00 on the respondent's previous advocates, who acknowledged receipt. We note that there is indeed no dispute that the appellant paid Kl50,000=00 in April 2009 towards his outstanding balance. However, contrary to the appellant's contention, there is nothing contained in the said cover letter or indeed any document or documents exhibited in his further affidavit to suggest that a discussion was held between a representative of the respondent and himself in furtherance of which the parties came to the agreement that the outstanding balance on the appellant's account as at 3rd April 2009 was Kl 72,472=00, or that the principal sum had been paid and all that remained was interest. There is, however, undisputed evidence by the respondent, as per interim statement of account, that the balance due as at 3rd April 2009 was K275,871=04. In the absence of any concrete evidence to the contrary, and indeed due to the appellant's failure to produce convincing evidence of any agreement to the effect that as at 3rd April 2009 the outstanding balance on the respondent's account was Kl 72,472=00, -J20- we find no reason to fault the lower court for arriving at the judgment sum based on the premise that the appellant was owing K275,871=04 at the time he made the payment ofK150,000=00 and not Kl 72,472=00. This ground of appeal lacks merit and we accordingly dismiss it. As regards ground three, what we decipher from the appellant's heads of argument is that the setting aside of the Consent Settlement Order by the Supreme Court did not set aside the evidence of the agreement between the parties for the appellant to pay the sum of Kl50,000=00 to offset the balance of the debt, which the appellant allegedly did. Having already determined under the preceding ground that there was no agreement between the parties other than the mortgage deed and the facility letter which set out the terms of the mortgage, we hold that there is no evidence on record of an agreement between the parties for the payment of Kl50,000=00 to offset the balance of the debt, and that the appellant indeed paid this amount. In any event, having examined all the exhibits on which the appellant sought to rely, it appears that the same refer to correspondence between the parties relating to the payment of the amounts due under the Consent Settlement Order which was subsequently set aside by the Supreme Court. Suffice to say that such correspondence has no bearing in the matter now before us. -J21- Furthermore, the record shows that a separate action was commenced by the respondent to set aside the Consent Settlement Order on the basis that its then lawyers that executed the consent order were not acting on its instructions and that it was therefore entered into by mistake or without authority. After the Consent Settlement Order was set aside, the fallback position insofar as this matter is concerned, was that there was no agreement between the parties and this matter had to be determined in the court below as per the respondent's claims. Ground three also fails for want of merit. Under ground four, we restate our position that the effect of setting aside the Consent Settlement Order was that the matter was to proceed as commenced by way of the Originating Summons, as there was effectively, never an agreement between the parties. It therefore, follows that interest was still applicable notwithstanding that there was a Consent Settlement Order in place because in effect, the respondent never agreed to its terms. We note from the record that the learned trial Judge in her Judgment at page J9, stated that the appellant was to pay contractual interest from 31 st December 2008 to the date of judgment and thereafter at short term bank deposit rate as determined by Bank of Zambia until full payment. Applying section 4 of the Law Reform (Miscellaneous Provisions) Act2 to which the appellant referred us, the cause of action herein arose the first -J22- time when the respondent defaulted in payment of the principal sum, which would be before 31 st December 2008 as this is the date on which the appellant commenced this action in the lower court. In this regard, the trial Court was in fact magnanimous in its judgment by ordering the appellant to pay interest from the date on which the appellant commenced the action, instead of the date on which he first defaulted on his obligation towards the loan agreement. However, there is no cross appeal on this issue and interest to be paid as ordered by the trial court. We accordingly dismiss ground four. Under ground five, the appellant contended that the trial court fell into error by not considering his application to refer this matter to assessment. We have perused the record in search of the appellant's said application for referral of this matter for assessment in the lower court and we have found none. Indeed, what the appellant relies on in advancing this ground is merely a paragraph in his further affidavit in opposition of the Originating Summons. We further note from the record that this matter was heard on 15 th June 2016 after the trial court had previously adjourned two hearings on 25 th February 2016 and 2nd June 2016 and on all the occasions, the appellant was not present for one reason or another. He further sought to arrest the judgment ex-parte on lih July 2016 and in his affidavit, he did not ask the court to refer the matter for assessment but for an opportunity to be heard. -J23- .... Contrary to the appellant's submission that what is in dispute between the parties can best be resolved by referring this matter to assessment to establish exactly what in the interest of justice is payable to the respondent, we note from the record and from the determination of issues by the trial court in its judgment that there is nothing obscure in this matter to warrant assessment. In any event, based on our analysis of issues raised in the other grounds of appeal, we find that no prejudice was occasioned to the appellant by the trial court's omission to address itself to the issue of assessment. On this premise, we find no merit in ground five and we accordingly dismiss it. In ground six, the appellant submits that the trial court unjustifiably glossed over his evidence in preference to that of the respondent thereby arriving at a judgment that it could not have arrived at, if it had equally considered the evidence of the appellant. A perusal of the judgment shows that the trial court referred to the undisputed evidence of the interim statement of account produced by the respondent. The court below also considered the lack of evidence to prove the appellant's allegation of an agreement on the outstanding balance and settlement of the principal sum as well as the mortgage deed and facility letter setting out the terms of the mortgage vis the amount borrowed and the contractual interest. We do not see any evidence by the appellant that contradicted the respondent's -J24- documentary evidence in this regard. The extent of the relevance of the appellant's evidence with which he attempted to contradict the respondent's evidence has already been dealt with in the preceding grounds. We therefore dismiss ground six for want of merit. In conclusion, all the grounds of appeal herein fail for the reasons set out above. We uphold the judgment of the Court below. Consequently, this appeal is dismissed in its entirety for lack of merit, with costs to the respondent to be taxed in default of agreement. ( J. Z. MULONG I COURT OF APPEAL JUDGE GA LJUDGE -J25-