counsel pointed out, that a guarantor does not receive any money from the lender of
money. He submitted that the evidence was that Musson received money from Citibank
and the respondent did not. He pointed out that it is unknown in law that a guarantor
receives the proceeds of the loan guaranteed as such is paid to the borrower. He relied
on the case. The Liquidators of Overend Gurney & Co (Limited) v The
Liquidators of the Oriental Financial Corporation (Limited) (1874) LR 7 HL 348.
Ground e
The learned judge's finding at paragraph 14 of her judgment that Mr Clarke
was a stranger to the details of the arrangement between Citibank and
Musson is inconsistent with her finding at paragraph 29 that both parties co-
operated to alleviate the problem.
Musson's submissions
[97] Dr Barnett submitted that paragraphs 14 and 29 of the learned judge‘s decision
are inconsistent for the following reasons:
(i)
At paragraph 14 of her reasons for judgement, she
accepted the respondent‘s evidence that he co-
operated with Mr Blades, by signing the promissory
notes so as to enable Citibank to pay Musson thereby
averting embarrassment to Mr Blades as a result of
Highgate‘s failure to pay Musson.
(ii)
At paragraph 29 of her reasons, she said, ―[the
respondent] was a stranger to the details of the
arrangement between Citibank and Musson".
[98] Learned counsel argued that it was difficult to appreciate that the respondent,
having signed the document to allow Musson to obtain funds, could claim to be
ignorant of the arrangement. He argued that the respondent is a businessman, a
company director and literate. It is to be presumed that he would have read a
document before signing it.
[99] Learned counsel submitted that the respondent‘s signature precludes him from
denying the contents of the document, which he freely signed. Moreover, learned
counsel argued, the respondent has clearly stated that he signed the promissory notes
as a part of an arrangement by which financial assistance would be obtained for his
company from Citibank. That evidence, he said, was inconsistent with the learned
judge‘s finding that the respondent ought to be completely absolved of any liability
which arose as a result of the promissory notes.
The respondent’s submissions
[100] Mr Chen submitted that the learned judge‘s finding was inevitable in the light of
the statements in Ms Dorothy Parkins‘ letter of 17 August 1998 to Mr Blades in which it
was made plain the respondent was not a party to the discussions between Messrs
Blades and Moses. He submitted that the subsequent dealings with the promissory
notes confirmed that the promissory notes were presented to the respondent for his
signature. Also, the evidence from Musson's own witnesses was that there was no
discussion with the respondent, he simply signed the notes.
[100] According to Mr Chen, the fact that the respondent co-operated with Mr Blades
to enable him to get money from Citibank does not mean that he had knowledge of the
details. The transaction which was evidenced by the first promissory note of 18 August
1998 was created by Mr Moses after he met with Mr Blades. The details were contained
in the letter of 17 August 1998 and Musson's letter in response.
[101] Learned counsel argued that the transaction in reality was a loan from Citibank
to Musson which was documented by way of a promissory note from the respondent to
Musson which was being sold to Citibank. As a banker, Mr Moses would have known the
true nature of the transaction yet was not called to explain it.
[102] Learned counsel submitted that there was no inconsistency between paragraphs
14 and 29 of the judgment. At paragraph 14, the learned judge recorded Musson's
position as stated by its witness, Mr Hoo Fatt, and the respondent‗s evidence. The
learned judge accepted that the respondent did not participate in the discussions with
Citibank and did not know the arrangements but was however willing to assist by doing
whatever was required by Musson to that end.
[103] At paragraph 29, the learned judge confirmed that the parties were carrying out
the scheme devised by Messrs Blades and Moses. Learned counsel submitted that her
view was reinforced by the fact that:
(a) between 18 August 1998 to 16 November 2001 the
promissory notes were payable to Musson and
subsequently became payable to Citibank without any
explanation from Musson; and
(b) the respondent's unchallenged evidence that he
signed without noticing the change.
He submitted that paragraphs 14 and 29 are in harmony and they confirm the
conclusion that the respondent did not know the details of the arrangement but signed
what he was given.
Law/Analysis
Grounds a, c and e
[104] The learned judge, in my view, was correct in concluding that an issue for her
determination was whether the respondent was treated as one and the same as
Highgate/Candyman by Musson, as the existence of a debt due from him personally is
fundamental to the question of unjust enrichment.
Who was indebted to Musson?
[105] Section 88 of the Bills of Exchange Act states:
"The maker of a promissory note by making it—
(a)
engages that he will pay it according to its tenor;
(b)
is precluded from denying to a holder in due course
the existence of the payee and his then capacity to
indorse."
[106] It is settled law that a man of full capacity cannot lightly disown a document
which he signs. Over the years, the plea of
non est factum has evolved from being
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