Mr. Desmond Blades and Mr. Moses to gain access to the money due to [Musson]
from Highgate/Candyman under the 1998 deal to take over the distribution‖.
[151] It was his submission that the learned judge accepted the respondent‘s evidence
that there was only one debt due, and that was the debt from Highgate/Candyman to
Musson which debt resulted from the agreement of June 1998 and became payable on
15 August 1998.
[152] Learned counsel submitted that, on the evidence which was before the learned
judge, Mr Blades met with Mr Moses at Citibank to devise a scheme whereby Musson
could be paid the debt. The respondent did not participate in the scheme. On that
evidence, he said the learned judge could arrive at no other conclusion. He relied on
the letter of 17
August 1998 from Citibank to Musson which, he submitted, provides
evidence beyond a reasonable doubt that Mr Blades, Mr Moses and Ms Dorothy Parkins
met and worked out the deal which is detailed in that letter.
[153] Learned counsel contended that the need ―to send the proposed promissory note
to [Musson] for delivery to and execution by the Respondent corroborates the
Respondent's evidence that he did not participate in the negotiations with Citibank but
that he simply signed whatever documents Mr Blades sent to him in accordance with his
arrangement to assist Mr Blades to gain access to the money‖. He further submitted
that if the respondent had been present at the meeting ―he would simply have signed
the note as prepared by Citibank‖.
[154] The learned judge, Mr Chen submitted, rightly accepted the respondent's
evidence that apart from signing the promissory notes as he was asked to do, he did
not participate in the arrangements between Mr Blades and Citibank and was ignorant
as to what they did. That evidence, he submitted, led the learned judge to conclude
that the respondent was not knowingly an accommodating party.
[155] Learned counsel submitted that, on the evidence of Musson's witnesses and its
pleadings, the promissory note of 17 November 2000 was in fact a rollover of the
original note of 18 August 1998 which Citibank paid Musson the price for purchasing.
The person who would have been able to explain what transpired between Mr Blades
and Mr Moses, when the arrangements were made with Citibank, would have been Mr
Moses himself. It was in the interest of the truth that he be called but he was not
called, he submitted.
[156] Learned counsel pointed out that the respondent had obtained an undertaking
on 30 April 2010 from Musson that it would call Mr Moses at the trial. That undertaking
was given in the face of a witness summons that the respondent's attorneys-at-law had
prepared for issue by the court. However, upon the undertaking being given by Musson,
the witness summons was never issued.
[157] The trial commenced 10 days after the undertaking was given by Musson for Mr
Moses to attend the trial but he did not attend. The explanation given was that he was
off the island. The respondent elected to proceed without insisting on the undertaking
being fulfilled and the matter commenced without the presence of Mr Moses.
[158] The learned judge, he said, has made it clear that her decision was based on the
evidence presented to the court. In the absence of evidence from Mr Moses, she had to
come to the conclusion that she did based on the documentation and the evidence of
the respondent. It was his submission that the evidence on the documents
corroborated what the respondent said in his witness statements, affidavits and cross-
examination. Learned counsel contended that the witnesses called by Musson and their
witness statements and affidavits either agreed with the respondent or were in disarray,
on this point (the arrangements for Mr Blades to gain access to the money owed to it
by Highgate/Candyman), when they did not.
[159] From the documentary evidence in respect of the arrangement between Citibank,
Musson and the respondent in August 1998 concerning the creation and sale of the
promissory note, it is clear that no money was paid by Citibank to the respondent,
learned counsel submitted. Musson, on the other hand, has admitted that it was paid by
Citibank for the purchase of the note.
[160] Learned counsel explained that the transaction was a loan to Musson in the form
of an accommodation note which the respondent issued to the Musson to enable it
(Musson) to obtain money from Citibank on the understanding that Musson would
repurchase the note if the drawer defaulted. That arrangement, he submitted, is known
in the world of commerce.
[161] Upon altering of the form of the transaction on the issue of the first promissory
note to Citibank as payee and the respondent as drawer, it was necessary for Musson
to have provided evidence to explain how and why this happened. The evidence that
was adduced on cross-examination from Musson‘s witnesses was that it was a rollover
of the note of August 1998. There was no explanation forthcoming, he submitted, as to
the reason the payee was changed from Musson to Citibank. Mr Moses‘ evidence might
have been helpful to the court in this regard, he argued. It was therefore necessary for
Musson to have provided an explanation.
[162] Learned counsel submitted that the transaction which resulted in Citibank
becoming the payee was unknown to normal commercial dealings. Consequent on that
transaction, no loan was made to the respondent (the drawer) by Citibank (the payee)
but the purchase price of the first note was paid to Musson (the guarantor) and all
rollover amounts on the issue of the promissory notes credited to Musson (the
guarantor). That transaction, he said, was unknown in ordinary commercial transactions
that the lender pays out the loan to the guarantor. Mr Moses was not available to the
court to explain this oddity.
[163] In those circumstances, learned counsel submitted, the conclusion of the learned
judge that no money or other benefit was conferred on the respondent is correct. The
respondent therefore had no legal liability to pay Citibank any money nor had any
liability to Musson. That being so he could not have been unjustly enriched.
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