Samson Lee Chisulo SC v C and J Harvey Farms Limited (Appeal No. 219/2023) (14 May 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA._ ____- Appeal No. 219/2023 HOLDEN AT LUSAKA '7r- , ,r }C OF ZA1vta <1\?_.<,~' (Civil Jurisdiction) •·''l _____ __..' \. ~ ~~~.t ,---~ \:1 :, ~~ '; :\ \ .,A. 1 '\ .: BETWEEN: l \ (.... .,.RY 2 CiVli.. Rt.ul~ • SAMSON LEE CHISULO, S Po_B ox . LU'='i:-.~ AND C AND J HARVEY FARMS LIMITED RESPONDENT CORAM : Siavwapa JP, Chishimba, and Banda Bobo On 30th April, and 14th May, 2024 For the Appellant Mr. D. Musonda of Sam Chisulo & Company For the Respondents Mr. J. R. Muteni & Ms. C. Chisengalumbe of Messrs. Theotis Mutemi Legal Practitioners. JUDGMENT CHISHIMBA JA, delivered the judgment of the Court. CASES REFERRED TO: 1) Barclays Bank Plc v Zambia Union of Financial and Allied Workers (2007) ZR 106 2) Zambia National Commercial Bank Limited v K.M.P. Computer Services Limited SCZ/8/79/2009 3) Nida Properties Limited v Omnia Fertilisers Limited SCZ Appeal No. 164 of2013 4) JCN Holdings Limited, Post Newspapers Limited & Mutembo Nchinto v Development Bank of Zambia (2013) ZR 299 5) Savenda Management Services v Stanbic Bank Zambia Limited SCZ Appeal No. 10 of 2018 \..\C OF ZAAfa ~s(?~ 7. ---7 .~ ~ 'ii~f! i • , , . '; \ I ' b ~ i.t -- ___.J ~~L h_,,1STRY 2 P 0. BOX 5006 7. LU'=>I>--~ J.2 6) The Attorney General & The Movement For Multiparty Democracy v Akashambatwa Mbikusita Lewanika, Fabian Kasonde, John Mubanga Mulwila, Chilufya Chileshe Kapwepwe & Katongo Mulenga Maine (1994) ZR 7) Giles Yambayamba v Attorney General & the National Assembly of Zambia SCZ Judgment No. 36 of 2015 8) BP Zambia Plc v Expendito Chipasha & 253 Others SCZ Appeal No. 189 of 2016 9) Commonwealth Development Corporation v Central African Power Corporation (1968) Z.R 70 10) Zambia Telecommunications Company Limited v Aaron Mweene Mulwanda & Paul Ngandwe (2012) 1 ZR 404 LEGISLATION CITED: 1) The High Court Rules Chapter 27 of the Laws of Zambia. 2) The High Court Act Chapter 27 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 This appeal is against the ruling of Justice L. Mwale dat'ed 9th May, 2023 in which he set aside the writ of fi.eri facias dated 6th December, 2022 on the basis of irregularity. The court below further set aside the execution levied on 20th December, 2022 and ordered that the goods seized 1n execution be returned to the respondent, forthwith. 2.0 BACKGROUND 2.1 The respondent owed Inda Zambia Bank certain sums of money, which the appellant paid on its behalf. The said sums J.3 were to be refunded by the respondent to the appellant in due course. 2.2 Upon, failure to refund, the appellant commenced an action by writ of summons against the respondent seeking the following reliefs: (1) A refund of the sum ofUS$215,803.95, being the funds paid by the appellant on behalf of the respondent to Inda-Zambia Bank Limited, for the repayment of a dollar loan and overdraft which were obtained by the respondent; (2) A refund of the sum ofZMW19,071. 77 being the funds paid by the appellant on behalf of the respondent to Inda-Zambia Bank Limited, for the repayment of a Kwacha loan which were obtained by the respondent from the said Inda-Zambia Bank Limited; (3) A refund of the sum ofZMW60,000.00 being the funds paid by the I appellant on behalf of the respondent to the advocates qf IndaZambia Bank Limited being associated legal costs for the relative loan and overdraft process; and (4) An order for payment of contractual interest on all sums due as agreed between the appellant and the respondent from October 2017 together with judgment interest thereon. 2.3 The appellant, applied for entry of judgment on admission which the court below entered against the respondent on 30th June, 2022. This was on the basis that the respondent's defence made general statements of non-admission bereft of specificity required when traversing allegations 1n a commercial action. J.4 2.4 In its ruling, the court entered judgment on admission in the sum of US$215,803.95 with costs against the respondent. The Kwacha amounts had already been liquidated by the respondent. The judgment sum was to attract interest at London Inter Bank Offered Rate (LIBOR) from the date of writ to date of full payment. 2.5 Armed with the judgment on admission, the appellant proceeded to issue a writ off ifa appearing at page 102 to 103 of the record of appeal, with the following endorsement: "Levy the sums of US215,803.95, (contractual interest, judgment and legal costs in the sum of to be advised later), costs of execution, etc. the commission, officer's costs of levying and all other legal incidental expenses." 2.6 The last paragraph of the Praecipe of Fieri Facias at page 104 of the record of appeal, also read as follows: "Endorsed to Levy US$215,803.95 and costs of execution, and the contractual interest, judgment interest and legal costs are to be computed and advised later." 2.7 Following entry of the judgment on admission, the respondent paid the principal sum of $215,803.95. Interest remained outstanding. Subsequently, on 6th December, 2022, the appellant issued a second writ of fifa endorsed with J.5 the sum of $121,538.02 being interest on the principal sum broken down as $108,981.27, the sum of being contractual interest and $12,556.75 as interest at LIBOR. 2.8 On 20th December, 2022, execution was levied on the respondent. In an order dated 4th January, 2023, the court below stayed the execution pending hearing of the application to set aside the writ of fierifacias for irregularity. 3.0 APPLICATION TO SET ASIDE THE WRIT OF FIERI FACIAS 3.1 Shocked and horrified by the execution upon them, the respondent moved the court below by summons for an order to set aside writ of fieri facias issued on 6th December, 2022 for irregularity, and to set aside execution levied on 20th December, 2022. The grounds being that the said writ of fifa was endorsed with an amount that had not been assessed by the court. 3.2 The respondent stated that in a letter dated 17th November, 2022, the appellant's advocates wrote to the respondent's advocates advising their computation of interest on the judgment on admission sum. The letter marked "ML 1" at page 119 to 120 of the record of appeal broke down the interest as $108,981.27 being contractual interest and J.6 $12,556.75 as judgment interest at LIBOR to give a total of $121,538.02. 3.3 The appellant levied execution for interest in the absence of either an order of the court assessing interest, or an agreement between the parties on the quantum of interest. 3.4 The appellant opposed the application on the basis that a remedy for contractual interest was pleaded in the statement of claim. That the interest claimed by the appellant was arrived at following computations by the appellant's accountants upon obtaining advice from Stanbic Bank that the current lending interest rate of US Dollar currency was 12%. 3.5 It was argued that there was no need to assess the contractual rate of interest since the same had already been agreed to by the parties long before the action was commenced. 3.6 The appellant further objected to the respondent's affidavit in reply on the basis that it confirms hearsay, is an attempt to re-litigate the matter and that no leave was obtained from the court. That the court lacked jurisdiction to attend to an affidavit in reply in the absence of leave. J.7 3. 7 In reply, the respondent stated that paragraph 3 of the judgment on admission does not make any mention of contractual interest which the appellant seeks to recover by execution. That the proper way to settle the issue of interest was to move the court by way of assessment. 3.8 In respect of the objection to the affidavit in reply, the same was raised late in the day. The affidavit in issue and skeleton arguments had already been tendered into court for consideration. 4.0 DECISION OF THE COURT BELOW 4.1 The learned Judge considered the applications beforf him I and took the view that the main issues for determination were two, being: 1) Whether or not the court by its judgment on admission dated 30th June, 2022, awarded contractual interest to the appellant; and 2) Whether or not the writ of fifa issued on 6th December, 2022, is irregular. 4.2 The Judge stated that perusal of the judgment on admission entered in favour of the appellant shows that the court awarded interest on the judgment sum of $215,803.95 at J .8 London Inter Bank Offered Rate from the date of writ to date of full payment. Therefore, at no point in the judgment on admission did the court award contractual interest. 4.3 As regards irregularity, the Judge considered the letter dated 17th November, 2022, showing the breakdown of the amount endorsed on the writ of fifa as interest. The said letter clearly includes contractual interest in the sum of $108,981.07 and judgment interest at $12,556.75. The court was of the view that the appellant should not have included contractual interest in its computation of interest as the same was not awarded by the court in the judgment on admission because I there was no evidence availed before court for the co'urt to award contractual interest whose rate was even unknown. 4. 4 The court further noted that the parties did not agree on due interest. Relying on the case of Barclays Bank Plc v Zambia Union of Financial and Allied Workers 111 , the court held that a party cannot unilaterally compute the sums payable and levy execution on that amount. 4.5 On this basis, the court found that the writ of fifa should not have been issued in the first place as the amount due was neither agreed nor assessed. The court held that writ of fifa .' J.9 and execution levied on 20th December, 2022, was also irregular. And set aside both the writ of fifaand the execution. In addition, the court ordered that the goods seized 1n execution be returned to the respondent forthwith. 5.0 GROUNDS OF APPEAL 5.1 Dissatisfied with the ruling of the court below, the appellant appealed advancing five grounds of appeal as follows: 1) The Learned Judge in the court below erred in law and in fact when he admitted the defendant's affidavit in reply without leave of court contrary to the principles established in Nida Properties v Omnia Fertiliser Limited SCZ Appeal No. 164 of 2013; 2) The Learned Judge in the court below misdirected himself when he completely ignored the appellant's objection' to the admission of the respondent's affidavit in reply dated 24th day of January, 2023, argued on the basis that the respondent had filed the said affidavit without leave and as such, the court had no jurisdiction to accept or admit the same; 3) The Learned Judge in the court below misdirected himself when he held that the respondent's application is two-fold as the application and affidavit in support thereof were solely based on the fact that no assessment as to the quantum of interest had been made by the court before execution had been levied; 4) The Learned Judge in the court below erred in law and in fact when he held that: "I take the view that the plaintiff should not have included contractual interest in its computation of J.10 interest as the same was not awarded by this court in the judgment on admission. There was no material in terms of evidence" availed before court for this court to award contractual interest whose rate was not even known;" and SJ The Learned Judge in the court below erred in fact and in law when he made an unbalanced evaluation of evidence on the record and/or ignored most of that evidence which is in favour of the appellant. 6.0 APPELLANT'S HEADS OF ARGUMENTS 6.1 The appellant filed heads of argument on 14th July, 2023 arguing grounds one and two together which challenge the admission of the respondent's "affidavit in reply to affidavit in opposition to affidavit in support of summons to set aside a I writ of fieri facias for irregularity". The appellant argues that the said affidavit in reply was admitted without leave of court, and as such, the court below had no jurisdiction to admit the same. 6.2 The appellant cited the case of Zambia National Commercial Bank Limited v K.M.P. Computer Services Limited l2l where the Supreme Court guided that it was a misdirection for the lower court to have proceeded to reproduce the affidavit in reply filed without leave of court. We were also referred to the case of Nida Properties Limited v Omnia J.11 Fertilisers Limited 1 3 1 for the principle that leave of court must be obtained to enable a party file additional and further affidavits. 6.3 Citing the case of JCN Holdings Limited, Post Newspapers Limited & Mutembo Nchinto v Development Bank of Zambia 141 , it was argued that the objection of the appellant to the admission of the affidavit in reply questioned the court's jurisdiction, since without an application for leave, the court had no power and/ or jurisdiction to admit the said affidavit. 6.4 In ground three, the appellant contends that a perusal of the respondent's affidavit in support at page 115 to 126 'of the record of appeal, will show that the only issue in contention before the court below was that of assessment of quantum of the interest payable. That there was nothing about an award of contractual interest by the court below in its judgment on admission. Therefore, the respondent's application was not two-fold. 6.5 It was submitted that the court was only called upon to address the issue relating to the need for assessment of the quantum of interest but misdirected itself when it introduced .' J.12 its own remedy and proceeded to pronounce itself on contractual interest. That this was not one of the remedies sought by the respondent in the application to set aside the writ of Ji.fa. As authority the appellant cited the Savenda Management Services v Stanbic Bank Zambia Limited l5l case for the principle that a court should confine its decision to the questions raised in the pleadings; that litigation is for the parties and not the court; and that the court should not extend the boundaries of litigation beyond the scope defined by the parties in their pleadings. 6.6 In ground four, the appellant attacks the finding of the court below that the appellant should not have inciuded computation of contractual interest as it was neither awarded by the court nor was there evidence availed to support it. 6.7 It was submitted that in its judgment on admission, the court below held that in the entire defence, the respondent made statements of non-admission bereft of the specificity required when traversing allegations in a commercial action. That this means that the respondent admitted everything in the statement of claim that was pleaded by the appellant in terms of Order 53 rule 6(2), (3) and (4) of the High Court Rules J.13 Chapter 27 of the Laws of Zambia. Therefore, the contractual interest as pleaded in the appellant's statement of claim, was awarded by virtue of the rules of court. 6.8 The appellant further argued that having entered judgment on admission in favour of the appellant at the scheduling conference, the appellant cannot be faulted for not proving contractual interest in evidence. 6.9 In ground five, the appellant contends that the court below made an unbalanced evaluation of the evidence on record and ignored most of the evidence which favoured the appellant. In particular, it was submitted that exhibit "ML 4" in the respondent's affidavit in support of summons to set aside writ of fifa at page 126 of the record of appeal, line No. 30 - 35, brought out evidence in favour of the appellant in the form of an admission of the existence of contractual interest. The appellant lamented that this was completely ignored by the court below. 6.10 In the said exhibit, the only issue raised by the respondent's then advocates was that of a proposal to renegotiate the rate of interest to apply on both the judgment and contractual J.14 interest, and not whether or not there was an award of contractual interest by the court. 6.11 Other pieces of evidence said to have been ignored are: 1) paragraphs 6, 9 and 11 of the affidavit in opposition on the agreed rate of interest; 2) paragraph 8 of the said affidavit that only $185,803.95 out of the judgment sum of $215,803.95 due was paid contrary to the assertion that the whole judgment sum was paid; and 3) that on 3rd May, 2023, the respondent paid into court, as per the computation of the appellant, the sum of ZMW220,491.96 equivalent to $12,555.00. 6.12 The appellant cited the case of The Attorney General & The Movement For Multiparty Democracy v Akashambatwa Mbikusita Lewanika, Fabian Kasonde, John Mubanga Mulwila, Chilufya Chileshe Kapwepwe & Katongo Mulenga Maine 161 that it is a serious misdirection for the court to fail to give a balanced view of the evidence presented before it. 7.0 ARGUMENTS BY THE RESPONDENT 7.1 The respondent filed heads of argument on 16th August, 2023. In arguing grounds one and two, the respondent J.15 submits that the facts that led to the development of the principles set out in the Nida Properties case are distinguishable from the facts in the present case. That reliance on the said case is misplaced as in that case, the evidence was contained in an additional affidavit, a further additional affidavit and a supplementary affidavit in support of originating notice of motion that was filed by the plaintiff, which evidence the trial court disregarded. On appeal, it was held that there having been no application to adduce new evidence and no leave of court was obtained, the court below was at liberty to ignore the affidavits in issue. 7 .2 In the present case, the affidavit in reply did not intr1oduce any new evidence but was merely reacting to evidence contained in the affidavit in opposition. Further, the affidavit in issue was allowed to sit on the court's record on account of the exercise of discretion by the court, there being no objection presented to its being admitted into evidence. Reliance was placed on Order 5 rule 21 of the HCR. 7 .3 Counsel argued that a perusal of the proceedings in the court below will show that counsel for the appellant only raised the objection when responding to the matters raised in the J.16 respondent's affidavit in support and reply, which objection was raised too late in the day. 7.4 Counsel submitted that the respondent did in fact urge the court below to exercise its discretion on whether or not to consider the affidavit in reply, and that the court exercised its discretion in favour of the respondent. Therefore, the court, having heard the parties' arguments on the issue of jurisdiction, implies that the court was informed as it exercised its jurisdiction to allow the said affidavit in reply. On the court's inherent power to exercise its jurisdiction, the court was referred to the case of Giles Yambayamba v Attorney General & the National Assembly of Zambia (7 1_ 7.5 In ground three, the respondent submits that the summons and affidavit in support of the application will show that the ground for the application was that the writ of fifa had been unilaterally endorsed with an amount of interest of $121,598.02 which amount was not assessed by the court. The said sum of money was said to be inclusive of contractual interest and LIBOR interest. Therefore, in determining whether the same was assessed by the court, the court below was entitled to determine the components of the interest. J.17 7.6 Counsel contended that the issue of contractual interest being inseparable from the LIBOR interest because both constitute interest, is evident from paragraphs 6, 7 and 15 of the appellant's affidavit in opposition dated 20th January, 2023, at pages 144 to 145 of the record of appeal. The respondent addressed this issue in the affidavit in reply. Having been brought to the attention of the court by the appellant, the court needed to address it. That this is in accordance with section 13 of the High Court Act Chapter 27 of the Laws of Zambia. 7. 7 That the confirmation of what was held in the ex tempore judgment on admission regarding contractual interest, was thus clarified in the ruling. 7.8 In ground four, the respondent submits that it is an erroneous assumption on the part of the appellant that when the court below enteredjudgment on admission, it allowed all the appellant's claims against the respondent. Having been concluded by way of judgment on admission, the matter was never heard on its merits. 7.9 That a reading of the judgment on admission, shows that the court below did not award contractual interest having clearly J.18 stated that the judgment sum would " ... attract interest at London Inter Bank Offered Rate (LIBOR) from the date of writ to date of full payment ... " That if the appellant is aggrieved by the decision of the court below, he ought to have appealed against the judgment on admission and not to have slept on his rights. 7.10 In any event, that the appellant did not prove contractual interest as a reading of the affidavit in support of entry of judgment on admission does not speak to contractual interest. 7.11 Lastly, 1n ground five, it was submitted that a review of exhibit "ML 4" reveals that it is a letter wherein the respondent's advocates stated that they were yet to determine issues relating to interest. That the letter is a clear indication that there is no contractual interest that was ever agreed between the parties and that the parties were merely attempting to figure out how best to deal with the issue. 7 .12 That in assessing the evidence before it, the court below exercised its discretion to rule as it did on the basis of the material before it. J.19 As regards the payment into court of the sum of the ZMW220,491. 96 equivalent to $12,555.06, the respondent argued that the notice of payment into court at page 180 of the record of appeal clearly states that it is " ... without admission of liability." Therefore, the respondent did not make the payment as an admission of the existence of contractual interest. It was submitted that payment into court was meant to stop the money from accruing interest and to promote settlement of the matter. As authority the case of BP Zambia Plc v Expendito Chi pasha & 253 Others 181, was referred to. 8.0 ANALYSIS AND DECISION OF THE COURT 8.1 We have considered the appeal and the arguments advanced by Learned Counsel for the parties. It is not in issue that following entry of Judgment on Admission, the appellant levied execution on a writ of fieri facias for the principle sum of US$215,805.95 and interest in the sum of US$121,538.02. The issue in dispute is the interest sum levied. The issue in grounds one and two relates to whether the court below should have accepted into evidence and relied upon the J.20 respondent's affidavit in reply that was filed without leave of court. 8.2 The appellant contended that the affidavit in reply at pages 158 to 161 of the record of appeal, was filed without leave of court contrary to the principles set out in the Nida Properties Limited v Omnia Fertilizer Limited !3 1 case. A reading of that case will show that the affidavits in issue were an additional affidavit, a further additional affidavit and a supplementary affidavit in support of the originating Notice of Motion which were filed by the plaintiff on 12th October, 2011, 3rd April, 2012, and on 23rd July, 2012, respectively, which brought on the record of the trial court further evidence which was not earlier available. Clearly, what was in issue was not an affidavit in reply and so the case is not applicable to the present case. Therefore, the cited case is distinguishable and inapplicable. 8.3 It is trite that an affidavit in reply is a written sworn statement in which a deponent responds to another party's evidence, where that party's evidence was itself in response to evidence served by the party serving the affidavit in reply. It allows the moving party to get the last word by replying to the response J.21 to their initial document. The purpose of an affidavit in reply is simply to rebut or answer matters raised for the first time in the affidavits to which the replies are made. It rebuts/ answers new matters raised by the defendant which the plaintiff has not already addressed. 8.4 Does a party wishing to file an affidavit in reply require leave of court? We are of the view that a party wishing to file an affidavit in reply has the automatic right to do so. The procedure in applications requiring filling of affidavits is as follows; a party files an affidavit in support of the application, to be countered by an affidavit in opposition filed by the I defendant, which in turn is countered by an affidavit irl. reply if any by the applicant. The only affidavits that require leave of court are further affidavits or supplementary affidavits. In the case of Commonwealth Development Corporation vs Central African Power Corporation 191 a High Court decision, the principle which is sound to date is that only affidavits in excess of the number normally submitted under the High Court Rules and Practice may be admitted into evidence in the discretion of the Judge when neither side objects to their inclusion. ,. • J.22 8.5 In Casu, we are not dealing with affidavits in excess of the required number such as further affidavits or supplementary affidavits. The affidavit in reply filed by the respondent was properly allowed by the court below. The court below had the jurisdiction to admit the evidence in the said affidavit in reply because no leave of court was required to file it. We therefore find no merit in grounds one and two. The affidavit in reply was not filed contrary to the alleged principles established in Nida Properties case, which is inapplicable as earlier stated. 8.6 A perusal of the affidavit in reply shows that the respondent addressed issues that were raised by the appellant such as the omission to state that $30,000.00 had been paid into court under paragraph 11 and the electronic transfer of $185,803.95 to the appellant's advocates. The affidavit 1n reply did not introduce new evidence but merely responded to the evidence in the affidavit in opposition by way of rebutal. 8.7 Therefore, there was no requirement to obtain leave by the respondent to file the affidavit in reply. 8.8 In ground three, the appellant argues that the respondent's application was not twofold as the only issue in contention was that of assessment of the quantum of interest payable. .. J.23 8. 9 A reading of the ruling of the court below at page 7 of the record of appeal, shows that when reviewing the evidence of the respondent, the learned Judge noted that the " ... defendant's application is two-fold ... " When considering and analysing the application before him, the learned Judge took the view that the main issues for determination were two: first, whether or not in its judgment on admission the court had awarded contractual interest, and second, whether or not the writ of fifa is irregular. 8.10 The summons to set aside the writ of fifa for irregularity was issued on the ground that the writ had been endorsed with an amount that had not been assessed by the High Cm.ht. In the affidavit in support, exhibit "ML 1" makes it clear that in computing the interest due which was subsequently endorsed on the writ of fifa, the appellant included contractual interest and judgment interest. The inclusion of contractual interest, and also the fact that interest had not been the subject of assessment, is what led to the application to set aside writ. It is therefore, an issue that the court below had to address in order to determine whether the writ of Fieri facias was irregularly issued. Therefore determining whether J.24 contractual interest was awarded had to be alluded to or established. 8.11 In Zambia Telecommunications Company Limited v Aaron Mweene Mulwanda & Paul Ngandwe 1io1 it was held that: "A trial Court should completely and finally determine all matters in controversy properly brought before it, to avoid multiplicity of proceedings." This, in our view, is the import of section 13 of the High Court Act Chapter 27 of the Laws of Zambia which enjoins the High Court to ensure that " ... as far as possible, all matters in controversy between the said parties may be I completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters (are) avoided·" ' 8.12 Therefore, we cannot fault the statement by the court below that the application before it was two fold. While the respondent complained that the appellant was seeking payment of interest that was not assessed, it was incumbent upon the court to establish whether the appellant was entitled to the interest being claimed in the first place. .. J.25 Therefore, the court below cannot be faulted for doing so. We find no merit in ground three. 8.13 In addressing ground four, we note that in ground three, we found that the learned Judge had to first establish whether contractual interest had been awarded before deciding whether the interest claimed had been assessed. The court found that it made no such award of contractual interest. The appellant contends that the lower court, having stated in its ruling in respect of entry of judgment on admission, that the respondent had made statements of non-admission bereft of the specificity required when traversing allegations in a commercial action, was wrong to hold that it did not ~ward contractual interest. 8.14 It was argued that the finding of the court below was to the effect that the respondent's defence as a whole, did not traverse anything in the appellant's statement of claim, meaning that the respondent admitted everything that was pleaded in the statement of claim, including the claim for contractual interest. 8.15 The writ of summons issued by the appellant at pages 12 to 13 of the record of appeal, is endorsed inter alia, with a claim " J.26 for "4. An order ofp ayment of contractual interest on all sums due as agreed between the plaintiff and defendant from October 201 7 together with judgment interest thereon." 8.16 A reading of the judgment in admission, at page 97 of the record of appeal, shows that the court below ordered that "the judgment sum of US$215,803.95 shall attract interest at London Inter Bank Offered Rate (LIBOR) from date of writ to date of full payment." This means that the court below awarded interest at LIBOR as opposed to the pleaded contractual rate of interest. That being the case, the appellant could not issue a writ of fifa endorsed with contractual interest as that is not what the court awarded or ordeted in its judgment. 8.17 The appellant being not dissatisfied with the order of interest at LIBOR as opposed to contractual interest, the only avenue open to it was to appeal against the award or refusal to grant contractual interest. On this basis, we find no merit in ground four. We will not belabour, the principles on grant of interest on entry of judgment. 8.18 In ground five, the appellant has taken the view that the ruling of the court below was unbalanced in that the court J.27 ignored most of the evidence on record which favoured the appellant. Our view is that the court below did not award contractual interest but interest at LIBOR. What was in issue was for the appellant to show in opposition to setting aside the application, that the court below awarded contractual interest and not LIBOR. On this basis, we find no merit in ground five. This is on account that, the application subject of the appeal, arose from the setting aside of the write of fifa and, execution therein on the basis of irregularity. The issue for determining being whether writ of fieri facias was irregularly issued on account of non assessment or agreement on the interest acrued. And whether contrictual interest was awarded by the court below. 8.19 We are of the view that the writ of fierifacias was irregularly issued and we cannot fault the court below in holding as such. The court only awarded interest at LIBOR. Therefore, there was no basis to calculate interest at the alleged agreed contractual rate. A party cannot unilaterally impose interest not awarded or assessed by the court. J.28 9.0 CONCLUSION 9. 1 We come to the inescapable conclusion that the appeal has no merit. All the grounds of appeal having failed, the appeal is dismissed. We uphold the decision of the lower court. Costs to the respondent to be taxed in default of agreement. .....••.................................... M. J. Siavwapa JUDGE PRESIDENT ···-~ ·-············· F. M. Chishimba A.M. Banda -Bobo COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE ,..