Zambia Industrial Commercial Bank Limited v Coster Mwaba and Anor [2023] ZMCA 427 (15 February 2023)

' r t IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) Appeal No. 88 of 2022 CAZ/ 08 / 91/2022 BETWEEN: ZAMBIA INDUSTRIAL COMMERCIAL BANK LIMITED Appellant AND - J 1st Respondent ct Respondent ---- ~ '"/:{ ~, COSTER MWABA (MALE) HEARMES MINING AND TRADE LIMITED (In Receivership) CORAM: Makungu, Ngulube and Sharpe-Phiri, JJA on 17th January 2023 and 15th February 2023 ~ \ For the Appellant: Mr. M. Sitali of KB Martin, and Mr. P. Kalonge of Ellis & Company For the 1st Respondent: Mr. K. Bota of William Nyirenda & Company JUDGMENT SHARPE-PHIRI, JA, delivered the Judgment of the Court Legislation referred to: 1. The Rules of Supreme Court Practice (White Book) 1999 Edition 2. The High Court Rules, Chapter 27 of the Laws of Zambia 3. The Lands and D eeds Registry Act, Chapter 185 of the Laws of Zambia Cases referred to: 1. Marcus Kampumba Achiume v The Attorney General (1985) ZR. 1 2. Wilson Masauso Zulu v Avondale Housing Project Limited (1 982) ZR 172 3 . Abrath v North Eastern Railway Company (1883) AC 221 4. Ndongo v Moses Mulyango and Roostico Banda (2011) Vol. 1 Z. R. 187 J1 Other works cited: 1. Murphy on Evidence, 5th Edition (as cited by counsel for the Appellant) 2 . Steven H. Gifts, Barron Legal Guides, Law Dictionary, 6th Edition, Barron's Educational Series, Inc. 2010 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of Patel, J of the Commercial Division at Kitwe High Court delivered on 24 January 2022. 1.2 By that decision, the Court found that the Appellant (Plaintiff in the Court below) had not proved its case against the Respondents (Defendants therein) on a balance of probabilities and therefore declined to grant any of the reliefs it sought. 2.0 BACKGROUND OF THE CASE 2.1 The Appellant commenced an action in the High Court on 23 April 2021 by originating summons pursuant to the provisions of Order 88 Rule 1 of the Rules of the Supreme Court of England and Order 30 Rule 14 of the High Court Rules. 2.2 By that action, the Appellant sought the following reliefs against the 1st and 2 nd Respondents: J2 i. Payment of all the money due by the 1st and 2 nd Defendants to the Plaintiff under the respective covenants in the mortgage between the Plaintiff and the 1st and 2nd Defendants dated the 14 July 2011 relating to the leasehold dwelling house known as Stand Number 7270, Kitwe in the Copperbelt Province of Zambia and registered with good title in the Lands Registry under Certificate of Title number 54281 dated 23 August 2001 in favour of the 1st Defendant. ii. Payment of all the money due by the 1 st and 2nd Defendants to the Plaintiff under and by virtue of overdraft facilities extended by the Plaintiff to the 1st and 2 nd Defendants dated 18th September 2015 and 12th August respectively, upon the security of the 1st Defendant's property at and known as Stand number 7270, Kitwe, otherwise referred to and described in subparagraph 1 hereof. iii. An account of what is due to the Plaintiff by the 1st and 2 nd Defendants under and by virtue of the said Mortgage and overdraft facilities for principal, interest and costs and otherwise making, due allowance for any money paid pursuant to a judgment under paragraph 1 and 2 hereof. iv. An inquiry whether anything and if so, what is due to the Plaintiff for any and what costs, charges and expenses in respect of the said mortgage beyond the costs of this action. v . An order that the said Mortgage and or security may be enforced by the foreclosure or sale. J3 vi. Delivery by the 1st and 2 nd Defendants to the Plaintiff of possession of the said mortgaged property. vii. Further or other relief. viii. Costs. 2 .3 The gist of the Appellant's evidence in the lower Court, shown in the affidavit in support of 23 April 2021 sworn by one Martha Lungu Sichone, a Manager in the Collections and Recoveries Department of the Appellant, was that a Mortgage Deed was executed between the Appellant and the 1st and 2nd Respondents in relation to a facility of K450,000 availed to the said Respondents. A copy of the Mortgage Deed dated 14 May 2011 was exhibited to the affidavit and marked as 'MLS l '. 2.4 The further evidence was that by that agreement made between the parties, a leasehold dwelling house known as Stand number 7270, Kitwe (the property) was pledged as security for repayment of the facility and a Mortgage was registered over the property. A copy of the Certificate of Title number 54281 issued in respect of the said property showing the registered mortgage was exhibited and marked as 'MLS2'. 2.5 It was further contended that additional facilities of K250,000 and US$60,000 were granted, at the request of the 1st and 2nd Respondents, on 8 September 2015 and 12 August 2016 J4 respectively. That these facilities were availed against the security of the said property mortgaged by the Respondents. Copies of the additional facilities were exhibited in the affidavit in support and collectively marked as 'MLS3'. 2 .6 The further contention of the Appellant was that three statements of accounts held by the 2nd Respondent with the Appellant show that the 1st and 2 nd Respondents remained indebted to the Appellant in the sum of Kl,504,214.77 as of November 2016. Copies of their statements of account were also exhibited in the affidavit in support and collectively marked as 'MLS4'. 2.7 The Appellant's further evidence revealed that it had not received monies from the Respondents towards satisfaction of their outstanding debt and the breakdown of the said sum claimed is as shown below: (i) Principal amount under the Kl ,291 ,552. 93 facilities (ii) Interest as at 1 October 2018 K212,66 l.84 (iii) Total due as at 1 October 2018 Kl,504,214. 77 JS 3.0 OPPOSITION IN THE COURT BELOW 3.1 The evidence of the 1st Respondent in the affidavit in opposition of 4 June 2021 states that the purported registration of the Mortgage referred to by the Appellant appears fraudulent as the search printout exhibited as 'CM l' suggests that the registration of the Mortgage was only effected in 2019. 3.2 The further evidence suggests that there is an over-writing on the Mortgage entry of receipt number 3480628 and the date, and that this prompted a report being made to the police. 3.3 The further evidence was that the Mortgage of 14 May 2011 was statute-barred and that the sum of K450,000 secured under this facility was fully amortized by the 2 nd Respondent by 10 June 2014. The 1st Respondent contended that these payments were revealed on the statements availed by the Appellant and marked as 'MLS4'. 3.4 In relation to the claim for the sum of K250,000 and US$60,000 under paragraph 6 of the affidavit in support, the 1st Respondent averred that he had never made any commitment to such sums of money with the Appellant or at all. He also alleged that he was not aware of the disbursements of these sums of money by the Appellant to the 2 nd Respondent. He further averred that the sum of K250,000 was never disbursed JG to account number 12102004703 on 18 September 2015 or at all. 3.5 With respect to account number 12102004703, the 1st Respondent contended that exhibit 'MLS3' which purports to be a charge on the property was not registered, which made the agreement null and void. With respect to statement of account number 12122004192 of 12 August 2016, the 1st Respondent contended that there is no indication of how the sum of US$60,000 was disbursed and that neither he nor the 2n d Respondent had accessed the funds. He also averred that no documentation was registered over the property in relation to this sum. The 1st Respondent concluded by contending that there was no proof at all before the Court relating to the disbursement of the sum of Kl,504,214.77 and that these figures do not match any figure on the statements availed to the Court. 3.6 In response, the Appellant filed an affidavit in reply of 20 June 2021 sworn by one Lazarus Matawali, the Relationship Manager SME's in the Appellant company. He deposed that the Mortgage over the property in Kitwe was not registered when the parties executed the Deed in 2011 as the Intermarket Banking Corporation (Zambia) Limited was closed. That when the Appellant took over its operations, it realized that the Mortgage J7 was not registered over the property, and it endeavoured to register it to protect its own interests. 3.7 The Appellant further contended that the loan statement from the Appellant on account number 11400000752 indicated that the loan was not paid in full. The Appellant further averred that the facility letters of 18 September 2015 and 12 August 2016 were evidence of the Respondents' borrowing of K250,000 and US$60,000 . That the facilities were running as overdrafts on the 2nd Respondent's account and, therefore, the amounts were not specifically reflected on the account. 3.8 The Appellant further contended that it was only the loan of the sum of K450,000 on account number 11400000752 that was transferred to the current account number 12102004 703 on 20 December 2011 as indicated below. Account Number Account Name Interest As At Principal Outstanding November 20 16 Balance 12 122004192 Hearmes M&T 194,296.87 500,655.45 694,952.33 Limited ($ converted to Kw) 12102004703 Hearmes Miming & 18 ,342.20 639,177.79 657,519.99 Trading Limited 11400000752 Hearmes Miming & 151 ,7 18.69 22.77 151 ,741.46 Trading Limited Total Kl,504,214.77 J8 3.9 The Appellant further contended that the Respondents had multiple facilities with the Appellant as indicated in the facility letter of 15 May 2015 marked as 'LM5' for a temporary facility of K208,610.00 . 3.10 The Appellant went on to aver that the Respondents' accounts were overdrawn for the most part and they kept issuing payments even at the time Intermarket Bank was closing in November 2016. 3.11 The further contention of the Appellant was that the transactions relating to the US$60,000 loan are reflected in the Dollar and Kwacha statements marked as 'LM6' and 'LM7'. For example, the transaction dated 11 November 2016 shows a transfer of US$11,234.86 at 9.7565 from Dollar account number to Kwacha account number 12102004703 dated 11 November 2016 equivalent to K109,612.91. 3.12 The Appellant also contended that the Respondents ' Dollar account remained overdrawn, and all payments were done by the 1st Respondent as indicated on the statements as at 11 November 2016 and that even after the last transaction, the account remained overdrawn. J9 4.0 DECISION OF THE COURT BELOW 4.1 After considering the matter, the learned Judge held that the Appellant had not adduced sufficient evidence to show that there was an existing charge on Stand number 7270, Kitwe for K450,000, K250,000 and US$60,000 at the time the facility was obtained. 4 . 2 She further indicated in relation to the mortgage over Stand number 7270, Kitwe, that it had already been noted that the Mortgage was not registered as at 19 June 2018, and if at all, it was registered after and in 2019 as alleged by the 1st Respondent, that the purported registration was out of time and without leave of Court, rendering it null and void. 4.3 The Judge also observed that no evidence was offered by the Appellant to prove that the 1st Respondent surrendered the Title Deeds to them, as alleged, to secure the initial facility and or to support any finding of the creation of an equitable charge. 4.4 In conclusion, the learned Judge held that the Appellant had not proved its case against the 1st and 2 nd Respondents, or its entitlement to the reliefs of foreclosure on the property and for an account of any monies owed to it by the 1st and 2n d Respondents . JlO • 5.0 THE APPEAL 5 . 1 Dissatisfied with the judgment of the lower Court delivered on 24 January 2022, the Appellant (Plaintiff in the Court below), filed its Notice of Appeal and Memorandum of Appeal herein on 11 March 2022. 5.2 In the Memorandum of Appeal, the Appellant advanced 3 grounds of appeal, namely that: i) The learned Judge erred in law and fact when she held that "the Plaintiff had not adduced sufficient evidence to show that there was an existing charge on Stand number 7270, Kitwe, for K450,000, K250,000 and US$60,000 at the time the facility was obtained." ii) The learned Judge erred in law and fact when she held that "the Mortgage was not registered as at 19th June 2018 and if at all, it was registered after and in 2019, as alleged by the 1st Defendant, that purported registration was out of time and without leave of Court, rendering it null and void." iii) The learned Judge erred in law and fact when she held that "despite the 1st Defendant not bringing any evidence to show that the K450,000 was indeed amortized, that did not work against him." J11 • 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 The Appellant filed its heads of argument on 6 May 2022. It also sought to rely on the submissions filed in the lower Court and appearing at pages 82 - 85 of the Record of Appeal (ROA). 6.2 In relation to ground 1, counsel contended that the finding of the lower Court that, "the Plaintiff had not adduced sufficient evidence to show that there was an existing charge on the property for K450,000, K250,000 and US$60,000 at the time the facility was obtained'' was erroneous. 6.3 Counsel stated that the evidence before the lower Court at paragraph 4 of the affidavit in support of the originating summons, shown at page 32 of the Record of Appeal, revealed that the Respondents applied for an overdraft facility in the sum of K450,000, which was secured by a mortgage of 14 May 2011 (see page 36 of the ROA) . 6.4 The Court's attention was drawn to the judgment of the lower Court, more particularly at page 25, lines 7 to 8 of the ROA, where the learned Judge correctly noted that the Mortgage Deed of 14 May 2011, marked as 'MLS 1' (appearing at pages 36 to 44 of the ROA) was the security for the loan in the sum of K450,000. J12 6.5 The Court's attention was further drawn to pages 54 and 59 of the Record of Appeal which, according to the Appellant's counsel, confirmed that upon availing the Respondents with further overdraft facilities in the sums of K250,000 and US$60,000, the said overdrafts were secured by the Mortgage of 14 May 2011. 6.6 Counsel argued that the finding of the Judge in the lower Court that the Appellant had not adduced sufficient evidence to prove that there was a charge over the property was perverse. Counsel urged this Court to interfere with this finding in line with the cases of Marcus Kampumba Achiume v The Attorney General1 and Wilson Masauso Zulu v Avondale Housing Project Limited2 . 6.7 The Court's attention was drawn to the overdraft facilities relating to K250,000 and US$60,000 shown at page 55 and 56 of the Record of Appeal, confirming that the overdrafts were secured by the mortgage on the property. 6.8 Counsel also contended that a perusal of the facility letter of 18 September 2015, particularly page 58 of the Record of Appeal, reveals that the 1st and 2 nd Respondents accepted the overdraft facility by signing on the acceptance form. Also, a perusal of the facility letter of 12 August 2016, particularly at page 64 of the J13 Record of Appeal, reveals that both the 1st and 2 nd Respondents accepted the facility. 6 .9 The further argument was that the 2n d Respondent's account statements appearing at page 78 and 80 of the Record of Appeal disclose that the said accounts have been overdrawn by a sum of K639, 177 .79 and US$50,724.97 respectively, bringing the accumulative sum owed on all 3 overdrafts to Kl,504 ,214.27. 6 .10 In relation to the second ground of appeal, counsel contended that the finding of the Judge that "the mortgage was not registered as at 19th June 2018 and if at all it was registered after and in 2019 as alleged by the 1st Defendant, that purported registration was out of time and without leave of the Court, rendering it null and void" was also perverse and a misapprehension of the facts and evidence before her. 6.11 Counsel highlighted that the evidence before the learned trial Judge at page 4 7 of the Record of Appeal discloses that the said Mortgage of 14 May 2011 was duly registered at the Lands and Deeds Registry on 14 July 2011. This is evidenced by the stamp from the office of the Registrar of Lands and Deeds appearing at page 37 of the Record of Appeal. 6.12 Further, Section 5(2) of the Lands and Deeds Registry Act3 provides that: J14 "5(2) All other documents except probation of a will required to be registered as aforesaid shall be registered - (b) in the case of a document executed elsewhere in Zambia within ninety (90) days from its date." 6.13 Counsel submitted that in terms of Section 5 of the Lands and Deeds Registry Act, a document that is executed outside Lusaka but within Zambia which requires registration, shall be registered within ninety (90) days of its execution. 6.14 Therefore, that the Mortgage Deed executed in Kitwe should have been registered within ninety (90) days , that was no later than 14 August 20 11 , meaning that the Mortgage was registered as required by law. 6 .1 5 The Court's attention was further drawn to the finding of the learned Judge in the Court below, shown at page 27, lines 19 to 23 of the Record of Appeal. 6. 16 Counsel further argued that the findings of the learned Judge complained of in the second ground of a ppeal are perverse, as the Mortgage Deed was registered on 14 July 20 11 and not in 2019 as the Court found . He stated therefore th at the issue of registration out of time was raised by the parties in th e lower Court. JlS . • 6.17 The third ground of appeal was to the effect that the Judge erred when she h eld that "despite the 1st Respondent not bringing any evidence to show that K 450,000 was indeed amortized, that did not work against him', counsel argued that t he holding of the learned Judge that it was the duty of the Appellant to disprove the 1st Respondent's allegation of h aving paid the loan of K4 50,000 despite the failure by the 1st Respondent to addu ce evidence in support of his allegation was wrong and not supported by law. Counsel argued that the evidence adduced by the Appellant clearly established the Respondents' indebtedness to it. 6.18 According to Counsel, the 1st Respondent h aving alleged that the said debts were settled, the burden of proof had shifted to him to establish that indeed the said sum of K450,000 had been paid as alleged. In support of this submission, counsel cited the case of Abrath v North Eastern Railways Company3 where it was stated as follows: " .... the test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this, to ask oneself which party will be successful if no evidence is given already at a particular point of the case, for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach a point at which the onus of proof shifts... It is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is J16 .. answered, rebuts the evidence against which he is contending, the balance descends on the other side ... " 6.20 Cou nsel cited Murphy on Evidence, 5 th Edition at page 89, where it is stated as follows: "The legal burden of proof as to any fact in issue in a civil case lies upon that party who affirmatively asserts that fact in issue and to whichever claim or defence proof of the fact in issue is essential." 7.0 HEARING OF THE APPEAL 7.1 The appeal was heard before us on 17 January 2023. The Appellant and the 1st Respondent were represented by counsel. The 2 nd Respondent was unrepresented. The Court was informed that the 2 nd Respondent was notified of the hearing date but had elected not to attend the proceedings even in the Court below. The Court ordered that it would proceed to hear the Appeal. 7 .2 Counsel for the 1s t Respondent made an oral application to file Heads of Argument into Court. The Appellant's counsel vehemently opposed this application. We considered the application and dismissed it for incompetence on the basis that it was brought out of time and informally without leave of the Court contrary to Order 13 of the Court of Appeal Rules. Further, that the Rules of this Court require an application for J17 an extension of time to be brought formally before a single Judge of the Court. 8.0 OUR DECISION 8.1 We have carefully considered the evidence on record, the impugned judgment as well as the argument of the Appellant. There are 3 grounds of appeal which have been cited in the memorandum of appeal, with the first two grounds being based on findings of fact in the Court below. 8.2 We have restated time and again, that it is hardly the business of this Court, as an Appellate Court to interfere with findings of fact as determined by a trial Court, unless such findings are perverse or made in the absence of evidence or upon a misapprehension of facts or that they were findings on a proper view of the evidence, no trial Court acting correctly an reasonably make. This is in line with the direction of the Supreme Court in a plethora of cases including Ndongo v Moses Mulyango and Roostico Banda4 • In the Ndongo case, their Lordships echoed their guidance to Appellate Courts regarding the principles that govern the reversal of findings of fact of trial Courts. 8.3 Having said that, we turn to address the appeal before us. We reiterate that the action in the Court below was commenced as J18 ' I ,o a typical Mortgage action on the Appellant's claim for, among other reliefs, payment of all monies due to it under a Mortgage arrangement with the Respondents of 14 May 2011. The Respondents were said to have pledged Stand No. 7270 Kitwe, under Certificate of Title No. 54281 as security for a loan sum of K450,000.00. The further claims were for all payments due by the Respondents in respect of overdraft facilities extended by the Appellant on 15 September 2015 and 12 August 2016 for the sums of K250,000.00 and US$60,000.00 respectively. 8.4 By the Appellant's affidavit in support of action in the Court below, it was deposed that the said facilities were all secured by the pledge of the property known as Stand 7270, Kitwe and the Respondent's cumulative debt as of 1 October 2018 stood at Kl ,504,214. 17. 8 .5 The gist of the evidence of the 1s t Respondent in the Court below was that the initial facility of K450,000 was fully paid as at 15th June 2014; the debt was statute-barred and the registration of the Mortgage over the property was dubious. The 1st Respondent denied having taken out the subsequent overdraft facilities of K250,000 and US$60,000 or ever receiving disbursements of the funds or affording security for the said two overdraft facilities. J19 . A 8 .6 After considerin g the matter and in dismissing the Appellant's action, the learned trial Judge held at page J 13 of her judgment, shown at page 27 of the ROA as follows: "For the above reasons, I am of the view that the Plai ntiff has not adduced sufficient evidence to show that there was an existing charge on Stand 7270 K itwe for K450, 000.00, K250, 000.00 and US$60, 000 at the t i me the facility was obtai ned. It has already been noted that the mortgage was not registered as at 19th June 2018 and if at all, it was registered after and in 2019, as alleged by the 1st respondent, that the purported registration was out of time and without leave of Court, rendering it null and void. " 8. 7 It is the above holding which has given rise to the first two grounds of appeal h erein. By the said grounds of appeal, the Appellant contends that the trial Judge erred in finding that there was insufficient evidence proving that charges in respect of the mortgage amount and th e overdraft facility against Stand No. 7270, Kitwe existed, and secondly, that the trial Judge also erred in finding that the p u rp orted mortgage was not registered as at 19th June 2018, and that if at all it was registered in 2019, such registration was done ou t of time without leave of Court, thereby rendering it n u ll and void. 8.8 Given the afore stated, we find it conven ient to address grounds 1 and 2 of the appeal jointly and thereafter ground 3. J20 ' .. 8.9 The first ground requires consideration of whether there was sufficient evidence before the lower Court proving that charges existed over the property as security for the facilities availed to the Respondents. 8. 10 A careful review has been made of the evidence in the Court below as contained in the affidavit in support of originating summons as shown from pages 32 to 81 of the ROA. Regarding the initial loan facility of K450,000, the evidence at pages 36-44 clearly reveals that the 1st and 2 nd Respondent executed a Mortgage Deed with Intermarket Banking Corporation (Zambia) Limited on 14 May 2011. According to the evidence of Mr. Matawali in the affidavit in reply of 20th June 2021, which is not in contention, the Appellant has taken over the operations of the said Bank after it closed in 2016. It is on this basis that the Appellant has assumed interest of the Mortgage in the said facilities so executed. 8.11 The said Mortgage clearly contains a charge over the property to secure the sum of K450,000 with interest. Clause 1 thereof (page 38 of the ROA) reflects the 1st and 2 n d Respondents' covenants, as Mortgagor and Customer respectively to pay and discharge all monies and liabilities then or thereafter which may be incurred by the Customer. A close review of the memorials on the Certificate of Title number 54281 issued for the property J21 ' A (shown at page 47 of the ROA) reveals that the said Mortgage was endorsed on the said title as registration number 7270 /7 . 8.12 The 1st Respondent did not dispute this Mortgage Deed although he argued that the facility was repaid by the 2n d Respondent. This issue will be addressed under the third ground of appeal. The fact that the Mortgage was security for the facility of K450,000 was acknowledged by the learned trial Judge at page 25, line 7-8 of her judgment. This Mortgage remains undischarged as no evidence was adduced to the contrary. Therefore, there was sufficient evidence before the Court below proving a charge over the property for K450,000. 8.13 In relation to the claims of K250,000 and $60,000, a close review of the evidence on the ROA, particularly pages 54 to 64 of the ROA, illustrates that the Bank extended overdraft facilities to the 2 nd Respondent on 18th September 2015 and 12 August 2016 in the sums of K250,000.00 and US$60,000.00 respectively. 8.14 It is unmistakable from pages 54 and 64 of the ROA that the 1st and 2 nd Respondents accepted the two overdraft facilities of 18 September 2015 and 12 August 2016 and signed the acceptance of the facility.. There was no denial by the Respondents that they had executed these facility documents . Page 64 of the ROA clearly shows the 1st Respondent's name as J22 having accep ted the third facility of 12 August 2016 together with th e 2n d Respon den t's represen tative. Therefore, the 1st Respon dent's argumen t that he was not aware of the th ird amoun ts claimed and that t h ese sums were not disbursed is inaccurate . 8 .15 Fu rther, althou gh the 1st Respondent claimed that there were no charges registered over the property in relation to the amounts under th e facilities, a close review of the documentation relating to the facility for K250,000 appearing at page 55 of the ROA, states th e following at lines 4 to 6: "PERFECTION OF SECURITY It is a condition of approval of this overdraft facility that all security is perfected before the facility was granted. 6 .0 SECURITY 6 .1 Property on Plot 7270, Lantana street, Nkana East, Kitwe, with OMV 650, 000 FSU 450, 000" 8.16 The facility letter relating to the overdraft of US$60,0 00 appears at page 59 lines 22 - 27 of the ROA and reads as follows : "PERFECTION OF SECURITY It is a condition of approval of this overdraft facility that all security is perfected before the facility is granted. 6 .0 SECURITY 6 .1 Property on plot 7270, Lantana Street, Nkana East, Kitwe with OMV ZMWl , 700, 000." J23 ) .. 8 .17 According to the terms of these facilities, the property secured by the Mortgage was to be a continuing security in respect of both overdraft facilities. This is in line with clause 12 of the Mortgage Deed (page 42 of the ROA) which also states that, 'this security shall be a continuing security to the Bank notwithstanding any settlement of account or other matter or thing whatsoever and shall not prejudice or affect any security which may have been created by any deposit of title deeds or other documents which may have been made with the Bank prior to the execution hereof relating to the Mortgaged property or to any other hereditaments and premises or any other security which the Bank may now or any time hereafter hold in respect of the moneys hereby secured or any of them or any part thereof respectively. 8.18 Therefore, the contention that there were no charges created over the property for the second and third facility was incorrect. We therefore hold that the parties agreed that the Mortgage would be a continuing security over the property for all future amounts owing. This would explain why the Mortgage remains undischarged. 8.19 It is also evident from the 2nd Respondent's account statements appearing at pages 65-81 of the ROA that the Respondents continued to draw funds from the bank accounts on J24 insufficiently funded accounts on account of the said overdraft facilities availed to them. 8.20 The 2 n d Respondent's statements of account numbers 01- 12102004703 and 01-12122004192 shown at pages 78 and 80 of the ROA reveal the accounts overdrawn by K639, 1 77. 79 and US$50,724.97 respectively. As Counsel for the Appellant pointed out, this brings the total sum owed on all 3 overdrafts to Kl,504,214.27. 8 .21 In light of the foregoing evidence on record, we are at pains to come to terms with the fact that the Judge made the findings of fact as she did. More particularly, her finding that there was no evidence of any charges existing to secure the facilities . 8.22 The second ground of appeal relates to the issue of the registration of the Mortgage. The Appellant argued that the Court erroneously found that the Mortgage was registered out of time in 2019 without leave of Court, thereby rendering the same null and void. As earlier highlighted, the evidence on record is unmistakable and confirms that the Mortgage in relation to Stand No. 7270, Kitwe was registered at the Lands and Deeds Registry at Lusaka on 14 July 2011, two months after the Mortgage Deed was executed. A corresponding entry was also made on the same date in the memorials of the J25 ,, . ,,,.' Certificate of Title No. 54281 in respect of the property. There is no evidence that this entry has been discharged. 8 .23 In the affidavit in reply of 20 June 2021, Mr. Lazarus Matawali, the Relationship Manager SME's of the Appellant, stated that the Mortgage over the property in Kitwe was not registered when the parties executed the Deed in 2011 . This was an incorrect statement, which possibly misled the learned Judge. 8.24 Despite the learned Judge finding at page 25 lines 7 -8 of her judgment that the Mortgage Deed was the security for the initial facility of K450,000, she proceeded to find that there was no evidence before her to prove that the 1st Respondent surrendered his Certificate of Title to secure the initial facility. We are of the view that the finding of the lower Court in relation to the Mortgage was incorrect. For the foregoing reasons, grounds 1 and 2 of the appeal are successful. 8.25 We now turn to ground 3 of the appeal in which the Appellant contends that the trial Judge erred when she held that "despite the 1st Respondent not bringing any evidence to show that the K450,000.00 was indeed amortized, that did not work against it." The Appellant argued that although the 1s t Respondent had contended in the Court below that the facility of K450,000 was fully paid by the 2n d Respondent by 10 June 2014, he had the burden to prove this allegation, which he had failed to do. The J26 1st Respondent intimated that this showed on the statement of his accounts, but evidence of repayment of this debt was not availed to the lower Court. 8.26 The issue for consideration under this ground is whether the Respondents bore the burden of proving th at they had repaid the loan. The learned author Steven H. Gifis in Barron Legal Guides, Law Dictionary, 6 th Edition defin es burden of proof at page 66 as: 'The duty of a party to substantiate an allegation or issue either to avoid the dismissal of that issue early in the trial or in order to convince the trier of facts as to the truth of that claim and hence to prevail in a civil or criminal suit.' 8.27 The learned author clearly elucidates on the burden of proof. It is a party alleging that has the duty to substantiate that allegation. We do agree with the arguments of Counsel for the Appellant in this regard and particularly in his reference to the case of Abrath v Northeastern Railway Co, in which the English Court of Appeal held that: "... the test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this, to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given already at a particular point of the case,for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach a point at which the onus of proof J27 shifts ... It is not a burden that goes on forever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side." 8.28 From the foregoing authorities, we are equally persuaded to hold the view that the burden to prove amortization of the K450,000.00 loan had shifted to the Respondents given that they claimed or alleged that the debt had been repaid. This is in view of the overwhelming evidence of a Mortgage facility having been executed and registered at the Lands and Deeds Registry as we have found above. 8 .29 Given our findings and determination in the foregoing paragraphs, we reiterate that the trial Judge should not have concluded as she did, given the overwhelming evidence of the Respondents' indebtedness to the Appellant. We are of the view that the Appellant had established a prima facie case of the 2 nd Respondent's indebtedness to it , and the onus was therefore on the Respondents to prove that said facility had been paid. Therefore, we are of the view that the trial Judge erred when she found that it did not work against the Respondents that they failed to adduce evid en ce to substantiate their allegation that they had repaid the loan. In view of the foregoing, Ground 3 of the appeal succeeds. J28 8.30 Given the above findings and holdings, we are of the firm view that this is a proper case in which we can interfere with the findings of fact made by the trial Court. We find that on a proper examination of evidence before it, the trial Judge acting correctly, would not have arrived at the conclusion she made aforesaid. 9.0 CONCLUSION 9.1 Having found as we have, we are of the view that there was sufficient evidence before the Court to prove that the 1st and 2 nd Respondents were indeed indebted to the Appellant. This appeal therefore succeeds. 9.2 Given that the appeal is successful, we accordingly set a side the judgment of the lower Court of 24 January 2022. In the interest of bringing finality to this matter, we make the following Orders in favour of the Appellant: i) Judgment is entered in favour of the Appellant for the sum of Kl,504,214.77 being the balance of monies due and owing by the Respondents as at 11 November 2016 pursuant to the terms of the facilities of K450,000, K250,000 and US$60,000 respectively. J29 ii) The judgment debt shall attract contractual interest upto the date of full payment. iii) An order for possession and sale of the mortgaged property known as Stand 7270, Kitwe if the amounts due and owing are not settled within 90 d ays from the date hereof. iv) Costs of the action in the lower Cou rt and here to be taxed in default of agreement. C. K. Makungu COURT OF APPEAL JUDGE P. C. M. Ngulube COURT OF APPEAL JUDGE . A. Sharpe-Phi i COURT OF APPEAL JUDGE e___ J30