applicable only to persons who did not sign the document, to persons who did indeed
sign but were blind or illiterate and thus reposed confidence in someone to advise
them.
[107] The English House of Lords case, Saunders v Anglia Building Society [1970]
3 All ER 961, pushed the boundary further to allow its applicability in the words of Lord
Reid, at page 963:
―...in favour of those who are permanently or temporarily
unable through no fault of their own to have without
explanation any real understanding of the purport of a
particular document, whether that be from defective
education, illness or innate incapacity.‖
[108] Though extended, the court will not lightly allow the plea to be invoked. As Lord
Reid plainly stated:
"But that does not excuse them from taking such
precautions as they reasonably can. The matter generally
arises where an innocent third party has relied on a signed
document in ignorance of the circumstances in which it was
signed, and where he will suffer loss if the maker of the
document is allowed to have it declared a nullity. So there
must be a heavy burden of proof on the person who seeks
to invoke this remedy. He must prove all the circumstances
necessary to justify its being granted to him, and that
necessarily involves his proving that he took all reasonable
precautions in the circumstances. I do not say that the
remedy can never be available to a man of full capacity. But
that could only be in very exceptional circumstances;
certainly not where his reason for not scrutinising the
document before signing it was that he was too busy or too
lazy. In general I do not think that he can be heard to say
that he signed in reliance on someone he trusted. But,
particularly when he was led to believe that the
document which he signed was not one which
affected his legal rights, there may be cases where
this plea can properly be applied in favour of a man
of full capacity." (Emphasis supplied)
[109] Without more, the existence of the promissory notes signed by the respondent is
prima facie evidence that he was the beneficiary of the sums stated on the said notes
which Mr Blades guaranteed. The respondent is not denying having signed the
promissory notes or lack of knowledge of its content. His case is that he signed so as to
facilitate a loan from Citibank to Musson who was in an embarrassing financial state
because of Highgate‘s indebtedness to it.
[110] Mr Blades with whom the respondent agreed that he would sign the promissory
notes has since died. Scrutiny of the evidence is therefore crucial in discovering the
parties‘ intention. In light of the manner in which the case was presented, a
determination as to whom the debt belonged, was crucial, as the pith of the
respondent‘s case was that he signed because Highgate‘s indebtedness to Musson had
placed Musson in an embarrassing position. Thus, in order to avert the consequences of
that situation, the respondent was asked to lend his signature.
[111] Musson's criticism of the learned judge‘s finding that Mr Blades and the
respondent ―would be aware of the difference between the entities of Highgate,
Candyman and the person [the respondent]", when in fact the allegation is one of
unjust enrichment, is, in my view, wholly unmeritorious. If the respondent‘s version
was credible and corroborated, the learned judge was therefore open to conclude that
the respondent was never a personal recipient of any sum from Citibank and thus could
not have unjustly enriched himself by refusing to pay Musson‘s claim for compensation.
[112] I cannot perceive the alleged conflict in the learned judge‘s statements regarding
(i) the arrangement between Messrs Moses and Blades for Citibank to pay Musson the
amount which Highgate owed in exchange for a promissory note signed by the
respondent and guaranteed by Musson; and (ii) Mr Blade‘s assertion that Citibank was
the only bank willing to give him a loan, but would only do so if the respondent was the
signatory on the note, because of the notoriety of Highgate's financial problems in the
financial circles.
[113] Indeed, as noted by the learned judge, there was no cogent evidence which was
supportive of Musson‘s contention that the loan was the respondent‘s or that he
benefitted from the sums advanced by Citibank, consequent on his affixing his signature
to the promissory notes. The learned judge noted the discrepancies and inconsistencies
in the evidence of Mr Hoo Fatt, Mr Walker and Mr Messado. In so doing, she accepted
that there was one debt of $7,900,000.00 which became due on 15 August 1998 and
that debt resulted from the 5 June 1998 agreement that Musson would take over the
distribution of Kraft and Highgate products.
[114] Although it was Mr Hoo Fatt‘s evidence that the respondent was not asked to
sign as a borrower in order to facilitate Musson obtaining funds from Citibank, he was
unable to substantiate his assertion. He provided no cogent evidence as to the purport
of the promissory notes. Indeed, in my view, the reliable aspects of his evidence were
more corroborative of the respondent‘s version.