Description
An offer for an overdraft was not dated – date of signing not indicated – no date of attestation – whether the acceptance was within the stipulated period of time – contra proferentem rule – acceptance after expiry of the stipulated period – guarantor’s right to question the legality of the overdraft – manner of acceptance – continuous guarantee – future transactions – Fraudulent misrepresentation – particulars of fraud – specifically pleaded and strictly proved – an assumption of fact – contract signed on different dates – date of operation of the contract – Unilateral mistake.
- (i). An offer for an overdraft was not dated, neither of the parties indicated the date of signing, the attesting witness also did not indicate date of attestation – it was held that there cannot be factual materials on which the Court can ascertain whether the acceptance was within the stipulated period of time (p. 10). The Court applied the contra proferentem rule and held that the acceptance was done after expiry of the stipulated period (pp. 10 – 11).
- A guarantor, though not privy to an overdraft facility, can question the legality of the overdraft (p. 11).
- An omission to date an overdraft facility does not vitiate the transaction (p. 12).
- An overdraft being an agreed line of credit operating directly through the current account, does not necessarily require a formal written agreement. It is implied where a customer operating a current account in a bank overdraws in his account (p. 12).
- (v). If the acceptance is not accepted in the manner proposed, the proposer is entitled as of law, to insist that the proposal should be accepted as such and if he does not, he is deemed to have accepted the acceptance despite being not made in the proposed manner (p. 14).
- An overdraft does not become operational as against the borrower upon signing of the same. Instead, it speaks after first disbursal (p. 16).
- A continuous guarantee, unless revoked by notice to the creditor, is relevant to the future transactions (p. 18).
- The amount secured in a continuing guarantee consists of the general balance of the customer’s account existing at the time the guarantee comes to an end (p. 18).
- Fraudulent misrepresentation is proved if it is established that a false representation has been made (i) knowingly, or (ii) without belief in its truth or (iii) recklessly whether it is true or false (p. 19).
- (x). For a person to claim an action for fraud, the particulars of fraud must be specifically pleaded and strictly proved. In this case, the particulars of fraud were neither pleaded nor proved (p. 19).
- An assumption of fact is not in evidence (p. 19).
- Unless otherwise expressly provided for, a contract becomes operational upon being signed by both parties (p. 20).
- Parties signed a contract on different dates – Where a contract is signed on different dates, the last signature principle would apply in that the date of the last signature shall be deemed to be the date of operation of the contract (p. 20).
- An agreement does not become unauthentic because parties thereto signed it on different dates (p. 20).
- Unilateral mistake does not vitiate a contract (p. 20).
- Allegations of misrepresentation – the plaintiff failed to prove the allegations (p. 21).
