Stanbic Bank Zambia Limited v Prosper Investments Limited (APPEAL NO. 259/2023) (19 November 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 259/2023 HOLDEN AT NDOLA (Civil Jurisdiction) . - _____ .,.. BETWEEN :>..,\ 19 NO'J 2 ,.. . _. .:,r.,oor~,. ......... , .- - .~1STANBIC BANK ZAMBIA LI ELLANT AND PROSPER INVESTMENTS LIMITED RESPONDENT CORAM: Chashi, Makungu and Sichinga, JJA ON: 12TH AND 19TH NOVEMBER 2024 For the Appellant: S. Mambwe, Messrs Mambwe Siwila & Lisimba Advocates and W. Chinyemba, Messrs Eric Silwamba, Jalasi & Linyama Practitioners For the Respondent: M. Nzonzo, Messrs Marcus Nzonzo and Associates JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Chainama Hotels Limited, Sonny Paul Mulenga and Vismer Mulenga (both practicing as SP Mulenga & Associates), Armstrong Enterprises Limited and Elephant's Head Hotel Limited v lnvestrust Merchant (Z) Ltd - SCZ Appeal No. 105 of 2009 2. BP Zambia Plc v Expendito Chipasha and 235 Others - SCZ Judgment No. 57 of 2018 3. Barclays Bank Zambia Plc v ZUFIAW (2007) ZR, 106 4. Anderson Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) ZR, 138 5. Wilson Masauso Zulu v Avondale Housing Project Limited (1 982) ZR, 172 6. Sentor Motors Limited & 3 Other Companies - SCZ Judgment No. 9 of 1996 7. Times Newspaper Zambia Limited v Kapwepwe (1 9 73) ZR,292 8. Ackson Tembo v Wang Jin Cheng - CAZ Appeal No. 195 of 2021 9. Diego Casilli v Access Bank (Zambia) Limited and Others - CAZ Appeal No. 259 of 2022 10. National Milling Corporation Limited v Joseph Nkaka - SCZ Appeal No. 55 of 2018 11. Attorney-General v Marcus Kampumba Achiume (1983) ZR,l (S.C.) Rules referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Court of Appeal Rules, S.I No. 65 of 2016 Other works referred to: .1. Atkins' Encyclopaedia of Court Forms in Civil Proceedings 1.0 INTRODUCTION 1.1 This is an appeal against the decision of Justice T.I Katanekwa, delivered on 13th June 2023. 1.2 In the Judgment, the learned Judge found the Appellant liable to the Respondent for losses on unaccounted assets amounting to US$2,783,553.89, less the outstanding balance of K14,524,366. 70 as of 30th May 2017. 2.0 BACKGROUND 2.1 The brief facts of this appeal are that the Respondent obtained credit facilities from the Appellant amounting to US$ 2,500,000.00 and Kl, 350,000.00. To secure this debt, the Respondent mortgaged two farms, namely; the remaining extent of Farm Number 3546 Lusaka and Subdivision Number 36 of Farm No. 40 la Lusaka. Additionally, the Respondent pledged agricultural assets under an Agricultural Charge to secure an additional sum of US$ 5,000,000.00. 2.2 After the Respondent defaulted on the loan, the Appellant commenced legal action under Cause No. 2014/HPC/005, resulting in a Consent Judgment. The Respondent subsequently breached the Consent Judgment, leading the Appellant to take possession of the Respondent's farms. The Appellant also invoked Clause 5.1 of the Agricultural Charge, thereby exercising all powers conferred upon the receiver and manager concerning the assets under the Charge. 2.3 The Respondent then commenced an action under Cause No. 2016/HP/ 1705, seeking among other things, an Order to account for the sale proceeds from the assets under the Agricultural Charge; an order appointing a receiver and manager to assume custody, exercise sale powers, and provide an account of the proceeds to the Court and both parties; and damages for breach of the Agricultural Charge. 2.4 The Appellant, in its defence, admitted to selling some of the agricultural assets and equipment but claimed that, based on its valuation, the assets were of lesser value. It asserted that the sales were conducted according to the provisions of the Agricultural Charge and that it had not failed to account for the proceeds as the same had been applied to reduce the Respondent's debt. 2.5 The Appellant also stated that the Respondent had acknowledged breaching repayment obligations, and that the sale of the properties had not fully settled the debt. Therefore, the Appellant counterclaimed an order allowing it to continue selling assets under the Agricultural Charge until the debt was fully repaid. 3.0 DECISION OF THE TRIAL COURT 3.1 Upon examining the evidence, Wanjelani J, as the trial Judge, found that the Appellant had failed to provide the Respondent with a proper account of the sale proceeds. The Judge relied on the case of Chainama Hotels Limited, Sonny Paul Mulenga and Vismer Mulenga (both practicing as SP Mulenga & Associates), Armstrong Enterprises Limited and Elephant's Head Hotel Limited v Investrust Merchant (Z) Ltd1 where the Supreme Court held as follows: "the form of account is more detailed than merely making the Appellant aware that after the sale, they were still owing - There being no satisfactory evidence that the Respondent had rendered a formal detailed account, the Court below ought to have granted Judgment and ordered that an account be rendered." 3.2 Based on the foregoing authority, the trial Judge directed that the Appellant must account for the sale proceeds secured under the Agricultural Charge. This accounting was to include all relevant supporting documentation and vouchers, to be submitted before the learned Deputy Registrar. 3.3 On the matter of appointing a receiver and manager to oversee the agricultural assets, and report proceeds to the court and parties involved, the Judge referred to Clause 5 of the Agricultural Charge. She found that this clause explicitly authorized the Appellant to exercise the powers of a receiver and manager over the charged assets. The Judge thus determined that there was no basis for appointing an additional receiver, as the Appellant was acting within the provisions of the Agricultural Charge and remained accountable for the proceeds. Consequently, the claim for an external receiver was dismissed. 3.4 Regarding the Respondent's claim for damages due to an alleged breach of the Agricultural Charge, the Judge noted that the Respondent had not specified which provisions were breached. Additionally, the Judge observed that compliance with the accounting order would clarify whether the Appellant had breached the Agricultural Charge in terms of accounting. Therefore, without concrete evidence of a breach, the court could not make a determination on awarding damages in an indeterminate context. 3.5 As for the Respondent's allegations of mismanagement, which included claims that the Appellant did not take an inventory upon taking possession, sold the assets at an undervalued pnce, and unilaterally converted a USD-denominated loan into a Kwacha loan, the Judge noted that these issues had not been raised as specific claims in the proceedings. Since no specific relief had been sought for these allegations, the court was unable to address them substantively. 3.6 In considering the counterclaim, the Judge observed that the Appellant had not provided any supporting evidence. She concluded that only after the accounting process is complete will it be possible to ascertain whether any balance remains owed to the Appellant. If a debt remains outstanding, the Appellant may continue, under Clause 5.1 of the Agricultural Charge, to dispose of the assets to settle the debt and provide a proper account of proceeds to the Respondent. 4.0 DECISION OF THE DEPUTY REGISTRAR 4.1 Following the Judgment dated 27th November 2017, the Appellant filed a Notice of Account on 7th March 2018, accompanied by an Affidavit in support. 4.2 In her Judgment dated 31st March 2020, the Deputy Registrar (DR) identified the key issue as whether the Appellant had adequately accounted for the proceeds from the sale of agricultural assets. 4.3 The DR noted that the Appellant submitted exhibit "RMMl" which contained a summary of the sales made and the expenses incurred. This exhibit explicitly detailed all amounts received from the sale of the land on which the agricultural assets were located. Additionally, the Appellant also provided oral testimony and exhibits regarding the sale of live cattle and milk. 4.4 However, the DR observed that the Appellant admitted to the absence of certain items, specifically items 18 to 27, from the valuation report, which included significant assets such as center pivots. The DR further remarked that it would have been prudent for the Appellant to have included a valuation of the maize crops that were still in the ground at the time of repossession, as such a valuation could have potentially mitigated the Respondent's indebtedness to the Appellant. 4.5 Consequently, the DR concluded that the Appellant failed to account for the items listed as 18 to 27 in the valuation report, as well as for the maize in the ground. The DR found that the Appellant had not reasonably accounted for the assets under the Agricultural Charge, as mandated by the trial Judge. Therefore, she directed that a proper valuation of items 18 to 27 should be conducted and that these valuations should be applied to reduce the outstanding indebtedness. 4.6 On 3rd April 2020, the Respondent appealed to the Judge in Chambers raising two grounds of appeal as follows: 1. That the learned Deputy Registrar erred in law when she rightly found as a fact that the Appellant Bank did not reasonably account for the assets for the Agricultural Charge as ordered by the Honourable Judge but yet failed to make an appropriate order for the Appellant to make good the loss occasioned. 2. That the learned Deputy Registrar erred in law when on the facts of the case she did not make an order as to costs in favour of the Respondent. 4.7 Meanwhile, on 3rd December 2020, the Appellant, in compliance with the Judgment on assessment, filed a Notice of Valuation of agricultural equipment and an estimate of the maize yield. However, on 17th February 2021, by consent of the parties, the Appellant's application was stayed pending the determination of the appeal before the Judge in Chambers. 5.0 DECISION OF THE COURT BELOW 5.1 At the outset, Katanekwa J noted that, while the DR's decision was titled "Judgment on Assessment," it was in fact a judgment on account, thereby justifying the appeal before him. 5.2 After reviewing the same evidence presented before the DR, the Judge found no dispute that the Respondent had executed an Agricultural Charge on assets listed therein, in favour of the Appellant. He observed that the Appellant had failed to take stock or prepare an inventory of the items on the premises covered by the Agricultural Charge. In his view, the duty to real~ze a debt upon execution necessarily includes taking a proper inventory upon entry to the premises. This obligation can only be disregarded if the creditor 1s either uninformed or acting in bad faith. 5.3 The Judge acknowledged that both parties accepted the Agricultural Charge as being separate from the land mortgages, and thus the Charge should have been treated as a distinct security. 5.4 The learned Judge was convinced by the Respondent's arguments that the valuation report prepared by Shambeni Engineering Limited on behalf of the Appellant was deficient. The Judge emphasized that the Appellant should have scrutinized the report, especially since it omitted readily identifiable assets, such as the center pivots. Furthermore, he highlighted that, as a prudent lender, the Appellant was obligated to ensure that all items covered by the Charge were accurately documented, with supporting receipts and proper records. 5.5 Consequently, the Judge held the Appellant liable to the Respondent for losses on unaccounted assets in the sum of US$ 2,783,553.89, based on the Respondent's calculations, minus the outstanding balance reflected in the bank statements as at 30th May 2017, amounting to K14,524,366.70. The Judge also awarded interest at 5% per annum on the dollar amount, along with costs of the action. 6.0 THE APPEAL 6.1 Dissatisfied with the decision of the lower court, the Appellant has appealed to this Court advancing seven (7) grounds of appeal couched as follows: 1. The Court below erred in law and fact by ordering the payment by the Appellant of US$ 2,783,553.89 when no such claim was ordered to be paid in the substantive Judgment, and when the claim for damages was specifically denied in the said substantive judgment. Even assuming damages had been ordered, the same would have needed to be assessed. 2. The court below erred in law and fact by failing to consider the evidence of accounting offered by the Appellant before the Deputy Registrar. 3. The court below erred in law and fact when it ignored to consider the question of whether or not the Appellant had accounted for the sale proceedings with supporting documents and vouchers as ordered in the substantive judgment. 4. The court below erred in law and fact when it held that the Appellant had failed to account for each of the items covered by the agricultural charge individually with proper documentation. 5. The findings of the court below that the Bank mismanaged the execution of treatment of the agricultural assets were specifically dismissed in the substantive judgment for not having been pleaded. 6. The Judgment does not meet the minimum standard of a judgment as it does not examine each of the separate accounts made by the Appellant and state the reasons why each account was not acceptable, resulting in the denial of justice. 7. The court below had no jurisdiction to hear the appeal, having earlier delegated the jurisdiction to account to the Deputy Registrar. 7.0 ARGUMENTS IN SUPPORT OF THE APPEAL 7.1 Mr. Mambwe, Counsel for the Appellant, relied on the filed heads of argument dated 11th August 2023 and briefly augmented the same with brief oral submissions. 7.2 Counsel addressed grounds one and five together, arguing that a review of the reliefs sought by the Respondent in the lower court did not include a claim for the sum of US$2,783,553.89. The closest monetary relief sought pertained to damages for breach of the Agricultural Charge. The trial Judge held that such damages would only be applicable if there was a failure to account and, in that event, the damages would require a formal assessment rather than a unilateral determination by either party. 7.3 It was submitted that the sum of US$2,783,553.89 originated from submissions by Counsel for the Respondent. It was neither pleaded nor awarded in the substantive Judgment. In that regard, reliance was placed on the case of BP Zambia Pie v Expendito Chipasha and 235 others2 submitting that the , substantive Judgment did not award the Respondent any specific amount. The Judgment only ordered an accounting and therefore did not provide a legal basis for the award of US$2,783,553.89 without documentation or assessment. 7.4 Counsel also cited Barclays Bank Zambia Pie v ZUFIAW3 where the Supreme Court held that execution , can only apply to amounts specifically awarded by a judgment or agreed to by the parties and included in a consent judgment. 7.5 Additionally, Counsel argued that the Judge's reliance on the alleged failure of the Appellant to take an inventory was erroneous, as it had previously been determined in the substantive Judgment that this issue was not pleaded. Citing Anderson Mazoka and Others v Levy Patrick Mwanawasa and Others4, Counsel emphasized the importance of pleadings, noting that once pleadings are closed, parties are bound by them. Thus, it was erroneous for the judge to consider a matter excluded due to lack of pleading. 7.6 Counsel argued grounds two, three, four, and six together, citing Wilson Masauso Zulu v Avondale Housing Project Limited5 and asserting that an appellate court may overturn findings of fact if they are perverse, unsupported by relevant evidence or based on a misapprehension of facts. 7. 7 According to Counsel, the learned Judge ignored exhibit "RMMl," which included key sources of revenue: (1) sale of Farm 3546 Lusaka and vanous agricultural equipment, (2) cow sales, (3) milk sales, and (4) rentals from Kafue Sugar. It was contended that disregarding this evidence was both perverse and contrary to the weight of available evidence. 7 .8 Counsel further argued that the Judge overlooked exhibits "RMM2" to "RMM18,'' which detailed various accounting items that were disregarded in his analysis. It was contended that the Judge failed to consider the accounting evidence provided, which included supporting do cum en ts and vouchers as directed in the substantive Judgment, to verify whether the Appellant had accounted for the sale proceeds. 7.9 Therefore, Counsel argued that it was incorrect to conclude that the Appellant failed to provide proper documentation for each item covered by the Agricultural Charge. If the submitted documentation was deemed insufficient, the Judge should have provided reasons. Counsel relied on the Wilson Masauso Zulu case and Sentor Motors Limited & 3 Other Companies6 , underscoring a trial court's duty to adjudicate every aspect of a case and that failure to do so constitutes a denial of justice. 7 .10 In support of ground seven, it was argued that the trial Judge, in the substantive Judgment, referred the issue of accounting to the DR, who then issued what she termed a "Judgment on Assessment." The Appellant contended that, following Times Newspaper Zambia v Kapwepwe7, appeals on assessments by the DR go directly to the Court of Appeal, as a Judgment on Assessment is considered a final judgment of the trial court. 7.11 Accordingly, the Appellant argued that the trial Judge lacked jurisdiction to hear the appeal, as it properly belonged to the Court of Appeal. Despite the parties' agreement that the DR's judgment was not a judgment on assessment, Counsel contended that jurisdiction cannot be conferred by agreement where it does not exist. The Appellant urged that the Judgment of the lower court be set aside. 8.0 ARGUMENTS OPPOSING THE APPEAL 8.1 Mr. Nzonzo, Counsel for the Respondent, equally relied on the heads of argument filed into court on 9th April 2024. In response to grounds one and five, Counsel argued that in proceedings where a party is sued for an account, it is not necessary at the outset for the pleadings to specify a particular amount. This is because the exact amount can only be determined once a party has been found liable to provide an account and subsequently fails to do so. 8.2 Counsel cited Atkins' Encyclopaedia of Court Forms in Civil Proceedings1, which outlines the practice and procedure for account proceedings. The Respondent noted that the primary objective of suing for an account is first to establish if one party is liable to render an account, which then enables the determination of that party's liability. At this early stage, it is impractical to expect the plaintiff to specify an amount, as the relevant information is peculiar to the defendant, who has custody of the documents and assets in question. Only after the defendant has rendered an account can any amount due be accurately ascertained. Accordingly, a party's recourse is to sue for an account, with liability arising if the sued party fails to account, as the lower court found in this case regarding the Appellant's account of the sale of the agricultural assets. 8.3 The Respondent contended that even though the amount of US$ 2,783,553.89 was not pleaded, the pleadings, which were conveniently omitted by the Appellant from the record of appeal, contained a paragraph specifically speaking to the m1n1mum amount the assets in question were intended to secure being US$ 2, 600,000.00 and this is the sum that was used as a basis for the calculation in the Respondent's computation of the amount found due. 8.4 Therefore, the Appellant had notice of the potential liability it faced on failure to account as the assets had been valued and ascertained at the time the Agricultural Charge was executed to secure between US$ 2,600,000.00 and US$ 5,000,000.00. That 1n addition, it was undisputed that that the Appellant failed to account for the maize crop that was grown on 120 hectares of the farm land whose valuation amount was exhibited by the Respondent as US$ 326,000.00 which was undisputed and was used by the Respondent to arrive at the US$ 2, 783,553.89. 8.5 According to Counsel, the argument by the Appellant that the Judgment sum was not assessed or ascertainable is far from correct. Reliance was placed on the case of Ackson Tembo v Wang Jin Cheng8 We • were urged to uphold the lower court's finding of the sum due as it was ascertainable from the facts of the case and the Appellant had due notice of the potential liability for failure to account. -J228.6 Additionally, it was argued that the lower court's finding of the Appellant liable was not substantially based on the Appellant not having taken inventory of the assets but it was arrived at purely based on reviewing the ascertainable amounts on the record. It was argued that with or without the inventory, the assets in the Agricultural Charge were known and the value given at the time of execution equally known. 8.7 In response to grounds two, three, four and six, Counsel argued that these grounds merely challenged the findings of fact to the effect that the Appellant failed to account for assets under the Agricultural charge. Counsel relied on the Wilson Masauso Zulu case on when an Appellate court may interfere with the findings of fact made by a trial court. It was contended that the present case does not warrant such interference, as the finding that the A pellan t did not provide a reasonable account was upheld in both the substantive Judgment and the DR's Judgment, neither of which the Appellant appealed. • 8.8 Counsel argued that the majority of the assets the Appellant claims to have accounted for in the exhibits pertain solely to the sale and expenses of the real estate properties, not to the assets covered by the Agricultural charge. This was confirmed by the Appellant's witness before the DR (pages 402-406 of the record). It was argued that there is no question that the Appellant failed to reasonably account for the sale of assets and maize, except for the livestock, which was separately sold. 8. 9 In response to ground 7, Counsel argued that the Appellant misinterpreted the DR's reference to her decision as a 'judgment on assessmenf'. It was argued that the proceedings involved an account of proceeds for sale rather than an assessment of damages. 8.10 Furthermore, it was argued that Order 30 / 10 of The High Court Rules1 directs appeals from the Registrar's decisions to a High Court Judge, except in cases involving the assessment of damages. In this instance, the DR mistakenly noted "judgment on assessment," as it was not related to an assessment, but rather to proceedings for an account, which is appealable to a Judge in Chambers. We were urged to dismiss the appeal in its entirety. 9.0 ARGUMENTS IN REPLY 9.1 At the hearing of this appeal, the Respondent raised a preliminary objection regarding the Appellant's arguments in reply. The Respondent contended that the Appellant's arguments introduced issues beyond the scope of both the Appellant's and the Respondent's heads of argument. 9.2 Upon reviewing the Appellant's reply, we find merit in the Respondent's objection. It is clear that certain points raised by the Appellant introduce matters not addressed in the Respondent's arguments or the Appellant's original arguments. The primary purpose of a reply is to address specific points raised by the Respondent in response to the Appellant's initial arguments. Instead, the Appellant has extended the scope of the discussion, deviating from the intended purpose of a reply. 9.3 Furthermore, we note that the Appellant failed to adhere to our guidance in Diego Casilli v Access Bank (Zambia) Limited and Others9 regarding the submission of voluminous heads of argument. In that case, we emphasized that such extensive arguments contravene the spirit of heads of argument as outlined in Order 10/9(9) of the Court of Appeal Rules. This conduct amounts to an abuse of the court process, warranting the expunction or striking out of such arguments. 9.4 Nevertheless, in the interest of justice, we have decided not to expunge these arguments. However, we will not reproduce them here, as they merely reiterate points already addressed in the Appellant's heads of argument under ground seven. 10.0 ANALYSIS AND DECISION OF THE COURT 10.1 We have carefully considered the evidence on the record of appeal, the heads of argument filed by Counsel and the Judgment appealed against. 10.2 We will begin with ground seven which addresses the issue of jurisdiction of the lower court to hear the appeal from the DR. The Appellant argues that the lower court lacked the necessary jurisdiction to entertain an appeal from the DR. To support this argument, the Appellant cited the Times Newspaper Zambia Limited case, contending that appeals from a DR's decision on assessment should be directed to this Court. The Appellant argued that a judgment on assessment, by its final nature, falls exclusively within the jurisdiction of this Court, which has the authority to review such matters. 10.3 We find the Appellant's position compelling, as it aligns with the current position of the law as espoused in a myriad of cases including the case of National Milling Corporation Limited v Joseph Nkaka10 However, it is • essential to note that these cases differ in context from the present matter. In the cases cited, the appeals were specifically related to assessments of damages. In contrast, the current case does not involve an assessment of damages but rather addresses a duty to account. This distinction was explicitly acknowledged by the learned Judge. 10.4 This position is further reinforced by Order 30 Rule 10 (1) HCR, which states that "Any person affected by any decision, order, or direction of the Registrar may appeal therefrom to a Judge at chambers ... " This provision clearly accommodates appeals of non-assessment matters to a Judge in chambers. Furthermore, Rule 4(1) clarifies that appeals regarding decisions or orders of the Registrar specifically on the "assessment of damages" are to be directed to the Supreme Court. However, with the establishment of the Court of Appeal, such appeals are now to be made to the Court of Appeal. This rule highlights the distinction between appeals that address assessments, which are final and appealable to the higher court, and those involving other matters that can be reviewed by a Judge in chambers. 10.5 It follows that appeals from the Registrar should only be elevated to the Court of Appeal if they pertain to a judgment on assessment. However, in this particular case, despite the Deputy Registrar labelling the decision as a "Judgment on Assessment," the nature of the proceedings did not amount to an assessment. The DR's decision did not involve quantifying or determining damages but was rather focused on the duty to account, which falls outside the parameters of a final Judgement on assessment. 10.6 Additionally, even if this matter were to be considered an assessment, the DR's Judgment does not represent a complete and final judgment that would warrant an appeal to this Court. The judgment left several items unresolved, with the DR directing further accounting. Consequently, there was no procedural error in the Appellant's decision to appeal to the Judge in chambers, where the necessary guidance or further orders could be issued. The nature of the decision is therefore interlocutory, allowing for further consideration rather than requiring immediate appeal to the higher court. We find no merit in ground 7. 10.7 Grounds one and five are 1n our view interrelated as they are essentially challenging the learned Judge's decision holding the Appellant liable to the Respondent for a sum of US$2,783,553.89, an amount, which in our view was determined based on the Respondent's calculations and this was clearly stated in the impugned Judgment. In our view, the Judge's approach exhibited a bias by relying exclusively on the unilateral calculations presented by the Respondent. 10.8 The evidence on record shows that, in response to the DR's directive to value items numbered 18 to 27 in the valuation report and estimate the maize yield in the ground, the Appellant complied by submitting a notice of valuation for the agricultural equipment and an estimate of the maize, granted, this was done after the Respondents had already lodged their appeal. Rather than accepting the Respondent's figures as final, the Judge should have exercised discretion by remitting the matter back to the DR with clear and specific instructions on how the accounting should proceed, ensuring that all relevant documents, including those filed by the Appellants, were duly considered. 10.9 In the case of Attorney-General v Marcus Kampumba Achiume11 the Court held that: , ((An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial Court should reasonably make and entitles the appeal Court to interfere.)) 10.10 Similarly, in the present case, there was an unbalanced evaluation of the evidence, where only the Respondent's evidence was given weight, while the Appellant's evidence was overlooked. Given the imbalance in the assessment of evidence and the failure to consider all relevant documentation, the lower court's Judgment is hereby set aside and we order that the matter be referred back to the High Court before a different DR for a thorough and balanced accounting of all the facts including the notice of valuation for the agricultural equipment and an estimate of the maize crop filed by the Appellant. To the extent highlighted above, we do find merit in grounds one and five. 10.11 Regarding grounds two, three, four and six, which concern the lower court's failure to adequately consider the accounting evidence on record, we believe these issues will be addressed by our directive in the preceding paragraph. This directive requires the DR to conduct a thorough and balanced evaluation of all the evidence available on the record. 11.0 CONCLUSION 11.1 The appeal having substantially succeeded, it is accordingly allowed. The Matter is remitted back to a 1 are to the Appellant. agreement. COUR OF APPEAL JUDGE -~ ~ C.K. MAKUNG\o COURT OF APPEAL JUDGE