Brian Mataka v Prisca Kachinga and Anor (CAZ Appeal No. 155/2021) [2023] ZMCA 217 (29 August 2023)

J.l IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) CAZ Appeal No. 155/2021 CAZ/08/ 184/2021 BETWEEN: BRIAN MATAKA AND PRISCA KACHINGA JOEL CHITAMBALA CORAM : Siavwapa, JP, Chishimba and Banda-Bobo JJA On 22nd August, 2023 and 29th August, 2023 For the Appellant : Mr. L. Chaile of Messrs. & Co. Dzekedzeke For the Respondents : No appearance JUDGMENT the Judgement JA, delivered of the Court. Chishimba CASES REFERRED TO: 1) McCutcheon 2) Gallie 3) Indeni Petroleum Refinery 4) Emmanuel Mutale v Zambia Consolidated v David Mac Brayne Limited Another (1969) 1 All ER 1062 Company Limited v Lee and (1964) 1 ALL ER 430 v G. Limited (2007) ZR 197 Copper Mines Limited (1993 -1994) ZR 94 5) Union Bank Zambia Limited v Southern Province Co-Operative ( 1995 -1997) ZR 206 Union Limited General Marketing 6) The Attorney 7) Nkhata & Others v The Attorney 8) Communication Council 9) Examinations v Marcus Kapumpa Achiume(l 983) Z. R. 1 General ( 1966) ZR 124 Authority v Vodacom [2009j Z. R.196 SCZ Appeal No. of Zambia v Reliance Technology Zambia Limited 194 of 2010 10) Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 11) Rosemary Phiri Madaza v Awadh Keren Coleen (2008) 1 Z. R. 12 J.2 12) lntermarket Banking Corporation Zambia Limited v Pricilla Kasonde SCZ Judgment No. 44 of 2014 (Appeal Na. 135/2009) 1.0 INTRODUCTION 1.1 This appeal assails the judgment of Justice (as A. M. Sitali she then was) dated 27 June, 2018, in which she held that th of ownership the transfer/ assignment from of the property the 1•1 respondent to the appellant was irregular, null and the void. On the above basis, the court below ordered cancellation of the certificate of title issued to the appellant. nd In respect of the 2 respondent, the court found that he had fully settled the loan amount and accordingly dismissed the appellant's counterclaim. 2.0 BACKGROUND 2.1 The 1" and 2 respondents are wife and husband nd respectively. The husband obtained a loan from the appellant in the sum of K70,000.00 rebased. As collateral, the 2nd respondent pledged his wife's property without her consent. Upon default by the 2"d respondent, the appellant assigned the property to himself. When the 1st appellant became aware of the above, she confronted the appellant that who insisted the property was assigned to him upon default by the 2nd respondent. J.3 3.0 CLAIMS IN THE COURT BELOW 3.1 Arising from the above set of facts, the 1st and 21:<1 respondents commenced an action by way of writ of summons and statement of claim against the appellant seeking the following: 1) An order that the execution of the assignment by the appellant was illegal, unlawful, null and void ab initio and the consequent title should be reversed; 2) An order that the parties renegotiate interest on the period beyond the loan period; 3) An injunction restraining the appellant from interfering with the peaceful enjoyment of the premises Stand No. 30961, Chalala Lusaka; 4) Damages and costs; and 5) Any other relief the court may deemfit. 3.2 The appellant filed a defence and counterclaim as follows: 1) An account for all rentals received by the respondents from the date when title moved to the appellant; 2) Interest on the sums to be found due to the appellant from the account in (1) above or alternatively, should the court order that the title revert to the respondent, the sum of K70, 000. 00 rebased plus K20, 000. 00 rebased for each month from March 2010 till date of judgment; 3) Costs and any other relief the court may deem fit. 4.0 EVIDENCE ADDUCED IN THE COURT BELOW J.4 4.1 The matter proceeded to trial. Prisca Kachinga Chitambala (PWl) the wife of the 21m respondent that in testified November 2011, she was informed by her tenant who had received a letter from Messrs. Dzekedzeke and Company that the rented flats now belonged to Brian Mataka, the appellant. That the 1 •t respondent's husband had pledged her certificate of title as security failed for a loan obtained which he had to pay back. The 1 sc respondent denied having given her title deeds to the 2nd respondent. The 2nd respondent confirmed having used her property as security. 4.2 The 2nd respondent informed the 1 •t respondent that he had paid back the outstanding but that the loan to the appellant, appellant refused to hand back the title. PWl also denied having executed the deed of assignment to the in relation transferred property. In cross-examination, the 1st respondent stated that her husband notified her of the transaction after she met counsel for the appellant. 4.3 Joel Chitambala (PW2) testified that a Mr. Kapita introduced him to the appellant from whom he borrowed the sum of K70,000.00 using his \vife's certificate of title as collateral. After visiting the collateral premises, the appellant was shown an agreement p r e -signed by the appellant and Mr. Kapita .r.s bearing the names of the 1st respondent. The appellant further gave him a deed of assignment which the 2nd respondent signed as a witness. The 1st respondent did not sign the document as she was not present at the time. 4.4 PW2 was given the loan in the sum of sum ofK70,000.00. He agreed to pay back the total sum of K95,000.00 which included K20,000.00 interest within a period of 30 days. Owing to challenges encountered, the 2nd respondent failed to pay back the debt on the agreed date. Later he paid the sum of K40,000.00 having requested more time within which to discharge the debt. In February 2011, he was informed by the lawyers for the appellant that the whole amount had fallen due. He subsequently paid the sums of K20,000.00 by cash and the amount of K20,000.00 by cheque to Messrs. Douglas and Partners. In March 2011, the 2nd respondent paid a further sum of Kl0,000.00. 4.5 When PW2 requested for the release of title, of the certificate the appellant refused and demanded for the balance in the sum of KS,000.00 to be paid with interest in the sum of K300,000.00. The appellant, in due course, rejected the requested sum of KS,000.00. This prompted PW2 to pay it into court and to commence this action. 4.6 The 2nd respondent was never informed that by the appellant J.6 title to the property had changed into his name. When shown the executed deed of assignment, the 2nd respondent refuted that the sign atures appended to the document was the 1st respondent's. 4.7 Detective Chief Inspector Thomas Phiri (PW3) a Senior Forensic Handwriting Expert, examined the disputed assignment against specimen signatures of the 1st respondent. The findings being that the 1 •t respondent did not append her signature to the deed of assignment and that the signature on the document was a forgery. 4.8 Sylvester Mutale Kabwe (PW4), is a Senior Analyst in charge of licensing and enforcement with the Bank of Zambia. He produced a report comprising a list of non-financial banking services entities licensed to conduct the business of money lending by the Bank of Zambia as of 2012. The appellant's name did not appear on the list of names under the category of micro finance institutions. 4.9 The appellant, Brian Mataka Mambwe (DWl) testified that in March 2010, he met the 2nd respondent (PW2) at his office who wanted to borrow the sum of K70,000.00. The appellant requested for collateral which he could dispose of upon default. PW2 took him to view the property in issue in J,7 Chalala, Lusaka. Further that PW2 produced a certificate of title as collateral held in the names of his wife. In addition that the 2nd respondent stated his wife had agreed to the title being used as security for the loan. In the evening of the said date, PW2 went vvith a woman whom he presented as his wife \.\-ith a national registration card bearing the names of Prisca Kachinga. 4.10 Satisfied that the conditions had been met, DWl drew a contract for the sum ofK95,000.00 payable after thirty days. Interest was to be charged at K20,000.00 per month. In the event of default by the borrower, the appellant would assign or transfer the collateral property into his name. PW2 and his wife signed the contract and was paid the sum of K70,000.00. 4.11 The 2nd respondent failed to pay back the loan after thirty days. Two months later, the 2nd respondent only paid the sum of K40,000.00. Eight months later, between September and Ot.:tober 2010, the appellant prot.:eeded to effect change of ownership of the property in to his name. A letter was written to the respondents and t.:opied to the tenants them informing of the change of ownership. 4.12 It was then that another woman appeared claiming to be the J.8 real Prisca Kachinga and that she was not a party to the contract. In 2011, Messrs. Willa Mutofwe and Company informed him that PW2 had deposited the sum of K20,000.00 with them. The appellant refused to accept the payment, the respondents having defaulted. He was also informed of a further sum of K l0,000.00 deposit which the appellant equally rejected, having already transferred the property to himself. 4.13 Maurice Gwebente (DW2) testified that he was present when PW2 produced the certificate of title for the property. Later, P\V2 went with a woman who he said was his wife. D\Vl, PW2 and the said woman signed the contract witnessed by Mr. Gwebente on behalf of OWL PW2 and the said woman were given the sum of K70,000.00. Though Mr. Gwebente testified that he witnessed both the contract and deed of assign ment, in cross-examination, he stated that he only signed the deed of assignment. Further, that Prisca Kachinga was not present at the time. 5.0 DECISION OF THE COURT BELOW 5.1 The court below found that it was not in dispute that the 1st respondent was the initial registered owner of Stand No. 30961 Lusaka. That the said property was subsequently J.9 assigned to the appellant on 1011: August, 2010 when a of title certificate was issued in his name. It was also common cause that the 2"<1 respondent obtained a loan of K70,000.00 with interest of K20,000.00 and a facilitation fee of K5,000.00 to make a total of K95,000.00. The 2nd respondent defaulted by failure to pay back the loan \.vithin 30 days and only paid the sum of K40.000.00 on 13th May, 2010. Having defaulted, the appellant executed the deed of assignment \\'1th PWl and proceeded to have it registered in his name. Further that the 2nd respondent later paid K40,000.00 on 28th February, and Kl0,000.00 on 71h March, 2011. The total being K90,000.00 but the appellant refused to release the title. 5.2 The court, in view of the conflicting evidence by the plaintiffs and defendant, was of the view that the issue for determination was whether title to Stand No. 30961, Lusaka was properly assigned to the appellant by the 1st respondent by the deed of assignment dated 4th March, 2010. The court below held that the 1st appellant did not execute the deed of assignment with the appellant. Based on demeanour, the court accepted the evidence of the respondents than that of J.10 the appellant and DW2 whose evidence it found to have been - evasive, contradictory and untruthful. 5.3 The court found, as a fact that the 1•1 respondent was not present when her husband borrowed money from the appellant and pledged her certificate of title as security. The learned Judge further accepted the evidence of the 1 • t respondent that she neither executed the loan agreement nor the deed of assignment used to effect change of ov,rnership in view of the evidence of the forensic handwriting PW3. expert, 5.4 Consequently, the court found that the deed of assignment did not assign the property from the 1 • respondent to the t appellant as it was not executed by the pt respondent. That null and void. The court the said assignment was irregular, further ordered that the certificate of title issued to the appellant be cancelled and that the 1 •1 respondent's be title restored back to her. 5.5 In respect of the 211 d respondent, the court found that he had paid back the entire loan with interest albeit after the agreed period of 30 days from 4t" March, 2010. However, the court declined to grant the respondents damages and an injunction or an order to renegotiate the interest. 5.6 The court below proceeded to dismiss the appellant's ,J. 11 counterclaim for an account for all rentals received by the respondents. 6.0 GROUND OF APPEAL 6.1 Dissatisfied with the judgment of the lower court, the appellant appealed, raising one ground structured as follows: The court below misdirected itself in law and in fact in holding that the 2nd respondent paid back in full the debt of K95,000.00 owed to the appellant when there was an express tenn tn the loan agreement stipulating that interest will be charged at the rate of 10% compounded weekly charged upon default of repaying the principal within a month's period. 7.0 APPELLANT'S HEADS OF ARGUMENTS 7 .1 The appellant filed heads of argument dated 8"' April, 2019 in support of his appeal. Counsel submitted that on the basis of the misrepresentation by the 2nd respondent, an agreement was drawn and executed by the appellant of the one part, and the 2nd respondent with a woman purporting to be the 1st respondent. That the case of Mccutcheon v David Mac Brayne Limited 111, shows that when a party assents to a document forming the whole or part of his contract, he is bound by the terms of the document, whether read or unread. . J.12 7.2 Counsel argued that though the agreement was entered into through fraudulent the action of the misrepresentation, respondents to seek a relief to renegotiate shows interest, that they are aware of the agreement and intend to be bound by it. This was exemplified by the endorsement on the 'wTit of summons seeking the renegotiation of interest. Further, the lower court construed the facts as being purely a debt between nd the appellant and the 2 respondent. In addition, it found that the payment nd of K95,000.00 by the 2 respondent settled the debt and brought the matter to a close. 7.3 lt was argued that the agreement between the parties provided for the payment of interest at the rate of 10°/c, compounded weekly "in the event that the arnount is not paid within the period specified ... " Therefore, the court below erred when it failed to make a pronouncement on this term of the agreement which the parties freely agreed to. 7.4 Counsel placed reliance on the case of Gallie v Lee and Another 121 where Lord Denning MR held as follows: Aft.er all this long discussion, I would endeavour to state the principle. It seems to me to be this. Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature-by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences-then, does not take the trouble to read it but signs it as it is, if he J.13 relying on the word of another as to its character or he cannot be heard to say that it is not or effect, contents his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document; and once they act on it as being his document, he cannot go back on it, and say that nullity from the beginning. 1J his signature the kind, he may be fraud, or under the influence of of mistake, able to aooid it up to a point-but not when it has come into the hands of one who has in all it was a was obtained or something by innocence advanced money on tJe faith of its being his document, or otherwise has relied on it as being his document. 7.5 The contention by the appellant is that the lower court should have taken issue with the mala fides of the 2"0 respondent who led the appellant that to believe he was engaging with the 1st appellant when this was misrepresentation and a trick. Therefore, the lower court ought to have found that a valid and enforceable contract existed between the appellant and the 2nd respondent. Having defauJted in making payment within the period agreed, the court should have sent the matter for assessment to ascertain the amount of interest owed to the appellant. 7.6 There being a contract between the parties with an express term relating to interest, the court below ought to have awarded interest to the appellant whose monies the I 2nd J.14 respondent collected and benefited from the loan facility. We - were referred to the case of lndeni Petroleum Refinery Company Limited v G. Limited l3J for the principle that: (2} The underlying prl.nci.ple and the basis for an award of interest is that a defendant out of has kept a plaintiff hts money and the defendant had use of it him.self, so he ought to compensate the plaintiff accordingly. (3} It would be absurd to allow the appellant to escape from paying interest simply because, it had compromised the action and entered into an ex-curia settlement. 7. 7 The appellant further relied on the case of Emmanuel Mu tale v Zambia Consolidated Copper Mines Limited 141 which held that: That under the Law Reform (Miscellaneous Provisions) Act Cap 74 s.4 the plaintiff was entitled to recover interest on money withheld from him in the and that there was nothing Act to make it necessary to state in the pleadings that it was intended to ask for interest. 7.8 As regards compound interest, it was submitted that the rate payable is usually simple interest. where the However, lender and borrower have expressly agreed to charge compound interest from the nature of the dealing or the agreement itself, such interest is allowed. As authority, to the we were referred case of Union Bank Zambia Limited v Southern Province ,J. 15 Co-Operative Marketing Union Limited 151 where the - Supreme Court guided that: borrow from the language of Halsbury's Laws of ... • to England (Vol. 3, Fourth Edition, para l 60) • by the universal custom of bankers, a banker has the right to charge simple interest at a reasonable rate on all overdrafts or loans. However, when it comes to an unusual such rate of interest· as compound interest or in -express agreement is required, to such evidence of consent or acquiescence the alternative, a practice or custom. 7.9 In a nutshell, the appellant contends that the monthly interest of K20,000.00 rebased was agreed upon by the 2nd respondent and appellant. Therefore, the appellant is entitled to interest of K20,000.00 for each month that the 2nd respondent defaulted. 7.10 The respondents did not file heads of argument on the record. There was further no appearance at the hearing of the appeal. 8.0 DECISION OF THE COURT 8.1 We have considered the appeal, the heads of arguments and authorities cited by learned Counsel on record. It is not in dispute that the 1 "' and 2"'1 respondents are wife and husband respectively. The l•t respondent was the registered owner of Stand No. 30961, Chalala, Lusaka. The 2nd respondent obtained a loan from the appellant 011 4th March 2010 in the sum of K70,000.00 to be repaid with interest of J.16 K20,000.00. There was an additional sum of KS,000.00 charged as facilitation fee payable to DW2. This meant that the 2nd respondent was expected to pay back the sum of K95,000.00 within 30 days from date advanced. 8.2 It is common cause that as collateral, the 2nd respondent pledged his wife's property without her consent. Upon default by the 2nd respondent, the appellant assigned the property to himself by way of deed of assign ment dated 4th March, 2010. When the 1st appellant became aware of the above, she confronted the appellant who insisted that the property was assigned lo him upon default by the 2nd respondent. 8.3 It is also not in dispute that o"ll\-ing to challenges encountered by the 2nd respondent, he did not repay the loan within 30 days as contracted. Having requested for more time, he initially paid the sum of K40,000.00 on 13th May, 2010; another K40,000.00 on 281h February, 2011, and Kl0,000.00 on 7th March, 2011. 8.4 The issue raised in ground one is whether the 2nd respondent paid back the debt of K95, 000.00 owed to the appellant with interest at 10% compounded weekly. Whether the appellant is entitled to the said interest on the loan. In a nutshell, J.17 whether we should disturb the findings of fact made by the lower court. 8.5 The appellant does not assail the holding by the court below that the 1 "' respondent did not sign the loan agreement and deed of assignment in respect of the property, and that therefore, it is null and void, and the cancellation thereof. The appellant merely assails the findings of fact by the court below that the 2nd respondent had paid back the loan obtained. Further, the alleged omission by the court to enforce or award compound interest the as agreed between parties. 8.6 It is trite that findings of fact by a trial court can only be attacked or reversed in exceptional See the circumstances. cases of The Attorney General v Marcus Kapumpa Achiume and Nkhata & Others v The Attorney General 171 where it was stated that findings of fact by a trial court will only be reversed in the following circumstances: 1) Where the trial court erred in accepting evidence; 2) Where the judge erred in assessing and evaluating the evidence by taking into account some matter which he should not have considered; I J.18 3) Where the trial the judge did not take proper advantage of .... having seen and heard the witnesses; and 4) Where the external evidence reveals that the trial judge erred in assessing demeanour of ,,vitnesses. 8. 7 There are a plethora of Supreme Court decisions on reversal of findings of fact by a trial court where a party must demonstrate that the findings were perverse or made in the absence of relevant evidence or upon a misapprehension of facts, or that on a proper view of the evidence before the court, no trial court/judge properly directing his/her mind to it could make those findings. We refer to the cases of Communication Authority v Vodacom Zambia Limited 1s1 and Examinations Council of Zambia v Reliance Technology ' as authority. 8.8 The loan agreement dated 4,h March, 2010 between the appellant and the 1" respondent provided for the payment of interest at 10% compounded weekly. The appellant seeks the enforcement of this clause to be paid interest for the period he was allegedly kept out of his money by the 2nd respondent. 8.9 The 2nd respondent admits having obtained the loan and the 1•1 respondent denied ever executing the loan agreement and the deed of transfer. The lower court made a finding of fact J.l9 that the 1st respondent did not sign the loan agreement and deed of transfer. Further that the 2nd respondent paid back the loan with interest. 8.10 According to the appellant, the woman who executed the loan agreement was brought nd by the 2 whom he respondent presented nd the 2 as his wife. Whilst respondent told the court that the woman was brought she is by a Mr. Kapita and that neither his wife nor docs he know her. 8.11 In the case of Wilson Masauso Zulu v Avondale Housing Project Limited the Supreme Court held that an appellate 1io1 court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts. 8.12 Further, in Rosemary Phiri Madaza v Awadh Keren Coleen 1111, the court held that a defendant wishing to rely on the defence of fraud must ensure that it is clearly and distinctly alleged, and must, at trial, lead evidence to clearly and distinctly prove the allegation. 8.13 The evidence of forgery in respect of execution of the loan agreement and deed of assignment was adduced by the 1"' respondent supported by the evidence of PW3, a forensic • .... J.20 handwriting expert. The findings being that the 1 •1 respondent's signature on the loan agreement and deed of assignment was a forgery. This finding of fact was not challenged by the appellant neither can it be said to be either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts. In fact, the appellant concedes that the 2nd respondent came with a woman who he purported was his wife. That he came to learn that the l" respondent nd is the wife to the 2 respondent after the fact and that she did not sign the assign ment. 8.14 Therefore, the loan agreement and deed of transfer for the property was fraudulently effected by forgery, and are null and void. In other words, the deed of transfer and agreement allegedly executed by the 1"' respondent is unenforceable. Therefore, the appellant cannot rely on the deed and contract procured by fraud, the 1 •t respondent's signature having been forged. 8.15 We are fortified in so finding having considered the case of Intermarket Banking Corporation Zambia Limited v Pricilla Kasonde 1121 whose facts were that the appellant claimed for the repayment of K162,542,085.72 (unrebased) and US$155.00 plus interest advanced to TCM Enterprises - Limited and/or foreclosure on the respondent's used property J.21 as security for the monies advanced. 8.16 Unknown to the respondent, her husband who was the Managing Director of TCM Enterprises Limited and the appellant executed a bank facility letter affording the company a short-term loan facility of Kl00,000,000.00 (unrebased) with interest of 40% pe) annum. Clause 7 of the said facility letter provided that the security offered for the loan was Subdivision No. 77 of Sull>division A of Farm No. 378a Lusaka belonging to the respondent therein. 8.17 The respondent's her case was that she never offered certificate of title as security for the loan between the I appellant and the company; that th'e appellant the granted financial facility to the company on 18th February, while the purported Memorandum qf Deposit is dated 20th September, 2007 several months after the facility was granted; that whilst the appellant disclosed that the company deposited the certificate of title, it did not show when it was done and how it was done when the bertificate was not in the company's name; that the appellant accepted her certificate of title without verifying \\ith her, which was irregular as she was not a shareholder or director of the company; and that • .. she did not take part in the negotiation for the loan as she was not part of the company and she did not sign any J.22 document offering her title as security for the loan. 8.18 The Supreme Court considered an enforceable whether third party mortgage was created between the appellant and the respondent and held that: "· .. , the law requires that before accepting a third party's security, where there is a relationship of trust and confidence between the borrower and the surety, a creditor must take steps to eliminate undue influence or misrepresentation." 8.19 As the appellant bank had not engaged the respondent to ensure that she had given her consent for the title to be used· as security and that she understood the risk involved, the court found the third party mortgage or charge unenforceable and set it aside. 8.20 Therefore, that the lower court was on firm ground in finding the deed of assignment, on which the loan agreement is based, is null and void. 8.21 As regards the loan obtained, it is not in dispute d that the 2° respondent obtained the said loan and defaulted. The appellant seeks to enforce the clause on interest in the alleged • contract between him and the respondents providing for 10% J.23 compounded weekly interest. 8.22 The loan agreement in issue appears at page 58 of the record of appeal. It is made between the appellant, as lender, and the 1st respondent as borrower, wherein the lender agreed to lend the borrower the sum of K95,000.00 in addition to a facilitation fee of K5000.00. The said sum was payable within 30 days from date of the agreement. 8.23 The appellant relies on a loan agreement held that we earlier is null and void on the basis of forgery. The I st respondent proved that her signature was forged. There is no other contract between the appellant nd and the 2 respondent evidencing the loan advanced to him, providing for the alleged interest. We hold that the contract being null and void, it is unenforceable. 8.24 In our view, the loan agreement between the appellant and nd the 2 respondent for the sum of K70,000.00, the total sum to be repaid being K95,000.00, was verbal. This included the interest of K20,000.00. There was undisputed that evidence the 2nd respondent paid the loan back to the appellant as follows: (i) K40,000.00 paid on 13/05/ 10; (ii) K20,000.00 cash paid co the appellant; - J.24 (iii) K20,000.00 by cheque to Messrs. Douglas and PartneTS on 25/02/11; (iv) Kl0,000.00 paid to Messrs, Douglas and PaT\ners on 07 /03 / 11; and (v) KS,000.00 paid into paid to Messrs. Makebi Zulu subsequently court. 8.25 The loan having been repaid, the appellant is not entitled to the interest sought. Even assuming, for arguments sake, that there was a contract is not a appellant to that effect, the muney lender and it would We hold that be unconscionable. the lower court was on firm ground in dismissing the counter claim by the appellant. 9.0 CONCLUSION 9.1 Having found that the loan agreement and deed of assignment transferring the 1 st respondent's property was obtained by fraud, her signature having been forged, the appeal lacks merit. We uphold the judgment uf the court below. We make no order as to costs, the having respondents not appeared on appeal. M. J. Siavi.vapa JUDGE PRESIDENT F. M. Chishimba COURT OF APPEAL JUDGE A. M. Banda-Bobo COURT OF APPEAL JUDGE ......... � ........... .