[23]
The critical issue of fact for resolution by the learned trial judge was whether Mr
Clarke had a personal liability to Musson or Citibank which was independent of
Highgate/Candyman‘s debt.
[24]
The issues of law, concerning unjust enrichment, the liability for the promissory
notes and other matters, all flow from the resolution of that critical issue of fact. It is
also of critical importance to note that Musson‘s claim is not for payment of the
promissory note, which Musson paid, or for an indemnity for having paid that note. The
claim is for unjust enrichment.
The findings of fact
[25]
The learned trial judge, having heard the witnesses and examined the
documentation, found that, on a balance of probabilities, it was Mr Clarke‘s account
which was to be believed. She found that there was no evidence that Mr Clarke had any
liability to Musson ―under the Highgate/Candyman transaction or indeed any
transaction, whether discharged or not‖ (paragraph 37 of the written judgment).
[26]
The learned trial judge found ―on a balance of probabilities that Mr. Clarke
speaks truthfully when he says that he signed [the promissory notes] on the
instructions of the late Mr. Blades to prevent Musson‘s embarrassment, and not for any
value for himself‖ (paragraph 47 of the judgment). She found that Mr Clarke had not
―benefitted from Musson‘s payment to Citibank, of the value of the promissory note, by
virtue of its guarantee‖ (paragraph 48 of the judgment). She therefore concluded that
the claim for unjust enrichment could not succeed. On the learned trial judge‘s finding,
Musson was repaying money that it owed to Citibank and Highgate/Candyman‘s debt
was dealt with by the agreement made between them and Musson on 29 November
2005.
Analysis
[27]
The learned trial judge was entitled, on the evidence presented, to make the
findings, which she did. Musson‘s witnesses had no first-hand knowledge of the
transactions that led to the issue of the promissory notes. One of those witnesses, Mr
Hoo Fatt, was instrumental in having Mr Clarke sign each of the promissory notes, but
he merely did so on the instructions of Mr Blades. Mr Walker and Mr Messado, the other
witnesses, could only speak to the accounting records that Musson managed, and their
respective testimonies did not provide a full or reliable explanation of Musson‘s accounts
of the transactions with Highgate, Candyman or Mr Clarke. The learned trial judge
noted, at paragraph 33 of her judgment, that Mr Messado had deposed in an affidavit
that there was no record that Mr Clarke owed any personal debt to Musson.
Having seen and heard the witnesses she was entitled to find that Mr Clarke‘s account
was credible. An appellate court should not disturb a finding of fact where there is
evidence to support such a finding (see Industrial Chemical Co (Jamaica) Ltd v
Ellis (1986) 35 WIR 303). Musson‘s complaints that the learned trial judge ought not to
have made the findings that she did, cannot succeed.
[28]
The findings of fact in this case dictate the resolution of the issues of law raised
in the claim. If, as the learned trial judge has found, Mr Clarke secured no benefit from
the transactions between the parties and had no separate liability from that owed by
Highgate/Candyman to Musson, then the payment by Musson to settle a debt created
by the Highgate/Candyman transaction, could not result in a benefit to Mr Clarke. The
separate legal identity of Mr Clarke, as opposed to that of his companies, is beyond
dispute. Such separate identity was recognised by the House of Lords from as far back
as 1897, in Salomon v Salomon and Company Limited [1897] AC 22.
[29]
The law in respect of unjust enrichment also demonstrates that Musson‘s claim
must falter, as a result of the finding of fact made by the learned trial judge. The
learned authors of The Law of Restitution, in their Fifth Edition of that work, at page
15, addressed the requirements for imposing an order for restitution:
―…a close study of the English decisions, and those of other
common law jurisdictions, reveals a reasonably developed
and systematic complex of rules. It shows that the principle
of unjust enrichment is capable of elaboration and
refinement. It presupposes three things. First, the defendant
must have been enriched by the receipt of a
benefit.
Secondly, that benefit must have been gained
at the
plaintiff‘s expense. Thirdly, it would be unjust to allow the
defendant to retain that benefit. These three subordinate
principles are closely interrelated, and cannot be analysed in
complete isolation from each other. Examination of each of
them throws much light on the nature of restitutionary
claims and the principle of unjust enrichment….‖ (Italics as
in original)
[30]
In applying those three requirements to the circumstances of this case, Musson‘s
claim falls at the first hurdle; based on the finding of fact, Mr Clarke has not benefitted
from Musson‘s payment to Citibank. The debt to Musson was not his, but that of
Highgate/Candyman. He did not benefit from the arrangement whereby Musson