Description
Pleadings – written final submissions – validity of an overdraft draft facility issued without following procedures – failure of a defendant to give evidence on an allegation against him – failure to call a material witness – failure to clear a contradiction – director’s guarantee – personal guarantee – bank guarantee – liability of a guarantor – interest at commercial rate – sale of mortgaged property.
- It is trite law of the land that parties in litigation are bound by their pleadings.
- A matter which was not in controversy between the parties in the pleadings cannot be challenged by way of final submissions.
- Written final submissions do not constitute evidence. They are simply summary of the case from the perspective of the party who is submitting. It should contain the summary of pleadings and evidence as adduced by either side.
- Submissions which are contrary to own pleadings and evidence cannot stand.
- An overdraft facility issued without a formal application and without following procedures is valid if accepted by the borrower.
- Upon failure to call a material witness, Court will draw a negative inference.
- Failure to clear a contradiction.
- Director’s guarantee.
- Personal guarantee.
- Where a defendant chooses not to give any defence against an allegation against him an adverse inference should be drawn against him.
- Defendants opted to keep quiet on allegations that they signed guarantee documents – The only inference that could be drawn is that they actually signed them.
- Proof of existence of a debenture.
- Proof of existence of a bank guarantee.
- Guarantors are liable to the extent which they agreed.
- An award of interest on principal sum at commercial rate of 21% per annum from the date of filling the suit to the date of judgment.
- Mortgagee’s prayer to sell mortgaged properties granted as an alternative, to be resorted to only if the defendants are unable to pay the monies due and payable as ordered.
