[2016] JMCA Civ 44
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT CIVIL APPEAL NO 90/2011
BEFORE:
THE HON MR JUSTICE BROOKS JA
THE HON MRS JUSTICE SINCLAR-HAYNES JA
THE HON MISS JUSTICE P WILLIAMS JA (AG)
BETWEEN
MUSSON (JAMAICA) LIMITED
APPELLANT
AND
CLAUDE CLARKE
RESPONDENT
Dr Lloyd Barnett and Courtney Williams instructed by DunnCox for the
appellant
Vincent Chen and Miss Sylvan Edwards instructed by Chen Green & Co for the
respondent
20, 30 November 2015 and 23 September 2016
BROOKS JA
[1]
Musson (Jamaica) Limited failed in its claim against Mr Claude Clarke from whom
it sought certain monies on the basis of his having been unjustly enriched by a
payment, it said, that it had made on his behalf. On 13 June 2011, Lawrence-Beswick J
ruled that Mr Clarke had not been enriched by the payment. She gave judgment in his
favour and ordered Musson to pay his costs of the claim.
[2]
Musson has appealed from that judgment. It complains that the learned trial
judge made errors in her findings in law and of fact, and as a consequence, arrived at
the wrong decision. Its numerous grounds of appeal have been fully set out by my
learned sister Sinclair-Haynes JA, whose judgment, in draft, I have had the privilege of
reading. These are my reasons for agreeing with her decision to dismiss Musson‘s
appeal.
[3]
Although Sinclair-Haynes JA has set out fully the background to the claim, it is
necessary for the essential aspects to be set out in this judgment for the purposes of
context.
Background
[4]
Apart from Musson and Mr Clarke, there are three other relevant parties involved
in the background to the claim. They are:
(i)
Highgate Food Products Limited (Highgate), for which
Mr Clarke was the principal shareholder and
managing director. Highgate was a manufacturer of
chocolate products and confectionaries.
(ii)
Candyman Jamaica Limited (Candyman), for which Mr
Clarke was the principal shareholder and a director.
Candyman was contracted as the exclusive distributor
of Highgate products. It also distributed other goods,
including those produced by Kraft Foods International
(Kraft).
(iii)
Mr Desmond Blades, who was the executive chairman
of Musson at the time of the transactions which are
relevant to Musson‘s claim herein. He, apparently,
died prior to Musson‘s claim being filed.
[5]
Musson, Candyman and Highgate had an agreement in June 1998. By that
agreement, Musson took over the distribution of Highgate‘s products and agreed to pay
to Candyman a share of the profit of the sale. Candyman assigned, with Highgate‘s
consent, the distribution rights which it held in respect of those products. It also turned
over to Musson, the Kraft and Highgate products which it had, as well as the right to
collect amounts due from its customers, to whom it had sold goods.
[6]
It was a term of the agreement that on 15 August 1998 Musson would return to
Candyman all unsold products and that Candyman would refund to Musson the cost of
those products. Candyman, by that agreement, would also refund to Musson the face
value of any uncollected receivables.
[7]
When the August date arrived, the operation of the relevant clauses just
mentioned, resulted in Candyman owing Musson for unsold products and uncollected
receivables. The evidence of Mr Noel Hoo Fatt, a former director of Musson, is that the
―value of goods unsold and [uncollectible] debts was over $7.9 million" (page 19 of the
record of appeal – volume 2).
[8]
Here the distinction between Highgate and Candyman becomes somewhat
blurred, as Musson‘s position was that the debt was due by either or both Highgate and
Candyman. Neither one paid that debt. It is not clear if Highgate had any separate
indebtedness to Musson at that time. Musson‘s accounts recorded that Highgate was
one of its debtors. It does not appear that it regarded Candyman as a separate debtor.
Accordingly, there will be, below, a reference to Highgate/Candyman as a single entity
where the context requires it.
[9]
On 18 August 1998, Mr Clarke executed a promissory note, in which he
undertook to pay Musson the sum of $9,937,524.21. That very day, Musson endorsed
the note over to Citibank NA (Jamaica Branch). The endorsement stipulated that
Citibank would have ―full recourse‖ to Musson. Musson sent a letter along with the
note. The letter explained that in consideration of Citibank purchasing the promissory
note from Musson, Citibank would have the option to call upon Musson at any time to
repurchase the note for its face value. Citibank paid the proceeds of the note to
Musson. The transaction did not require anything to be paid to Mr Clarke and nothing
was paid to him thereunder.
[10]
That note had a maturity date of 16 November 1998. The procedure upon
maturity was that a new promissory note was prepared and presented to Mr Clarke for
execution. He did so and Musson endorsed it over to Citibank. In a similar fashion, Mr
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