statement of account from Musson in his name which stated that he was personally
indebted to Musson. Consequently, his accountant, on his instructions, wrote to Mr Hoo
Fatt concerning the matter. No response was however forthcoming from either Mr Hoo
Fatt or any representative of Musson.
[56] The respondent further asserted that whilst Musson and Highgate were
conducting a reconciliation of their accounts, it was discovered that a sum which was
due to Highgate from Musson was not reflected in the running account which Musson
had provided. Upon inquiries being made and the documents examined, it was
discovered that Musson had unilaterally applied the amount that was due and payable
to Highgate, into the account which related to the promissory notes.
[57] He was informed by Mr Paul Scott, Mr Blades‘ grandson and one of Musson‘s
executives, that he (Mr Scott) would not, contrary to agreement with Mr Blades, renew
its guarantee with Citibank. In December 2004, he was contacted by Citibank and
subsequently met with Ms Peta Gaye Williams of the bank concerning the loan. He
received a demand letter for the sum of $5,500,000.00 plus interest from Citibank. He
was however never sued by the bank nor has he received any further demand although
he has not paid it.
The appeal
[58] The learned judge entered judgment with costs in the respondent‘s favour.
Musson being wholly dissatisfied with the learned judge‘s decision filed the following
grounds of appeal:
"a.
The Judgment is against the weight of the evidence
and ought to be set aside.
b.
The learned Judge misunderstood the facts before
her and the law applicable thereto.
c
.
The learned Judge‘s [sic] erred in law in her
interpretation of section 88 of the Bills of Exchange
Act. Having concluded in paragraph 6 of the
judgment that:
‗There is no challenge to the legality or authenticity of
the promissory note…‘
The [respondent] having signed to say that he had
‗received value‘ issues such as the parties
disagreement as to the circumstances under which
the promissory notes arose and whether there was
‗evidence of consideration to cause [the respondent]
to have signed a promissory note in his personal
capacity‘ is [sic] irrelevant to the questions the
learned judge had to determine.
d.
The learned Judge erred in law in concluding that the
three tenets of the principle of ‗unjust enrichment‘
had not been fulfilled. The benefit gained by the
[respondent] was the discharge of the liability under
the promissory note.
e.
The learned judge‘s finding in paragraph 29 of the
decision that: ‗[The respondent] was a stranger to the
details of the arrangement between Citibank and
Musson‘ is inconsistent with the finding at paragraph
28 that: ‗Both parties appreciated that the debt….and
both parties co-operated to alleviate the problem by
obtaining money through Citibank, with Musson
guaranteeing the payment of the note which had
been signed by [the respondent]'.
f.
The learned judge misconstrued the ‗law on
guarantee‘. At paragraph 42 of the judgment the
learned judge quoted a passage from the judgment of
Scarman L.J. in
Owen v Tate [1976]1 QB 402 C.A.
The full passage reads as follows:
‘In my judgment the true principle of the
matter can be stated very shortly, without
reference to volunteers or to compulsions of
the law, and I state it as follows. If without
antecedent request a person assumes an
obligation or makes payment for the benefit of
another; the law will, as a general rule, refuse
him a right of indemnity. But if he can show
that in the particular circumstances of the case
there was some necessity for the obligation to
be assumed, then the law will grant him a right
of reimbursement if in all the circumstances it
is just and reasonable to do so.’
The learned judge was in error in omitting and failing
to consider the ‗just and reasonable‘ aspect of the
Scarman [sic] judgment.
g.
The learned Judge erred in reaching her conclusion
on the issue of subrogation. [Musson] had
waived its rights of subrogation only in respect of
Citibank.
h.
The learned Judge erred in reaching the conclusion
that the [respondent] did not benefit from the
payment by Musson to Citibank and that he was not
unjustly enriched.
i.
Generally, the findings by the learned Judge on the
issues are, at times, inconsistent, erroneous and
unsupportable.‖ (Emphasis as in original)
[59] Musson also challenges the learned judge‘s findings of fact as follows:
a.
"It is clear that the promissory notes arose as a result
of the Highgate/Candyman transaction.‖ (Paragraph
13)
b.
―I find on a balance of probabilities that the
agreement was between Musson, Candyman and
Highgate and that that was the intention of the
parties. Both the late Mr Blades and [the respondent]
held critical positions in their respective business [sic]
which they represented in the Highgate/Candyman
transaction. I find that each would be aware of the
difference between the entities Highgate, Candyman
and the person [the respondent] and that they put