CIVIL CASE NO. 234 OF 2002
AZANIA BANCORP LTD	PLAINTIFF
VERSUS
FREDRICK OLDENBURG	 DEFENDANT

For Plaintiff:   Mr. Chipeta For Defendant: Abs. CC. Masebo.

JUDGEMENT

" A contract of guarantee must be evidenced by a note or memorandum signed by the guarantor or some other person authorised by him. A guarantor undertakes a secondary liability to pay a debt if the principal debtor fails to pay."

In this case, the memorandum was duly signed by the said F. A. Oldensurg, as such he took the liability to pay the debt on failure of the principal to do so. Further the Law recognises that, a contract of guarantee is a promise to answer for the debt default or miscarriage of another person and the guarantor's liability arises only upon the failure of the debtor to pay. This is the position in the case in hand. In conclusion I state that, I have given good consideration to the plaintiffs pleadings and .witnesses evidence, I am therefore satisfied that the evidence adduced I together with the supporting documents have proved the case on a balance of probabilities. The Company is in breach of the contract and the Defendants on F. A. Oldensurg is held liable for the Outstanding debt as a Guarantor.

The court therefore orders that:-

(v)    Costs to the suit.
(vi)   An Interest rate of 12% to the outstanding amount as to the Bank statement. 95,733,253.97 No order as to the general damages as no evidence has been adduced which could assist this court in assessing it, more over to me the same is recoverable by the Penal Interest which is provided in the agreement. It is so ordered.

S.S.H. Kaganda
JUDGE
14/7/2003

Right of appeal explained.

15/7/2003

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