the words in the agreement reflecting their intention
to bind Highgate. Candyman and Musson only, not
[the respondent] in his personal capacity.‖ (Paragraph
26)
c.
―Both Mr. Blades and [the respondent] were aware
that the Highgate/Candyman [sic] transaction was
between Musson and Highgate, yet both agreed that
[the respondent] would sign the promissory notes
concerning the agreement." (Paragraph 27)
d.
"Both parties appreciated that the debt was
Highgate/Candyman‘s [sic] 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] ." (Paragraph 28)
e.
"[The respondent] unchallenged evidence is that on
each occasion Musson‘s representatives handed him
the promissory note to sign and he signed, not
noticing that there had been a change in the payee.
[The respondent] was a stranger to the details of the
arrangement with Citibank and Musson." (Paragraph
29)
f.
―It is unchallenged that [the respondent] owed no
money to Citibank and that Citibank paid him no
money. The only parol [sic] evidence concerning
Citibank‘s [sic] involvement is from [the respondent]
who testified that it was Mr Blades who proposed and
executed the Citibank arrangement to solve a
problem. (Paragraph 30)
g.
―It is not clear as to which liability would have been
discharged. Is it the liability of outstanding monies
under the 1998 transaction owed to Musson or is it
the liability to Citibank under the promissory notes?
(Paragraph 36)
h.
―However, there is no evidence of [the respondent]
himself having a liability to Musson under the
Highgate/Candyman transaction or indeed any
transaction, whether discharged or not.‖ (Paragraph
37)
i.
―The other liability of which there is evidence, arises
under the promissory notes. [The respondent] had
promised to pay a specified amount to Musson on
some notes and to Citibank on others. The liability
was either [sic] Musson or Citibank.‖ (Paragraph 40)
j.
―I find on a balance of probability [sic] that [the
respondent] speaks truthfully when he says that he
signed on the instructions of the late Mr. Blades to
prevent Musson‘s embarrassment, and not for any
value for himself.‖ (Paragraph 47)
k.
―The effect of the transfer of the promissory notes by
Musson to Citibank with the accompanying guarantee
was to allow Musson to utilise that amount which was
receivable by it from Highgate/Candyman and which
they had failed to pay. The benefit was to Musson
which, by that process, averted what could have been
an embarrassing cash flow problem.‖ (Paragraph 48)
[60] Musson also challenged the following findings of law by the learned judge:
" a. ...that the agreement was between Musson,
Candyman and Highgate and that was the intention.‖
(Paragraph 26)
b.
"There is no evidence that [the respondent] obtained
any benefit from the payment by Musson to Citibank
of the amount under the guarantee.‖ (Paragraph 33)
c.
―Recoupment can only be ordered if the claimant had
authorised the payment made or ratified it...Here, in
the instant case, any debt which may have arisen
would have arisen by contract.
...It is not clear as to which liability would have been
discharged. Is it the liability of outstanding monies
under the 1998 transaction owed to Musson or is it
the liability to Citibank under the promissory notes?
Not to be overlooked is the requirement that before
[the respondent] is ordered to make restitution he
must have obtained a discharge of his liability by
virtue of the payment.‖ (Paragraph 36)
d.
―There is no evidence of any consideration to cause
[the respondent] to have signed a promissory note in
a personal capacity.‖ (Paragraph 47)
e.
―...[the respondent] has not benefitted from Musson‘s
payment to Citibank, of the value of the promissory
note, by virtue of its guarantee...‖ (Paragraph 48)
f.
―...No one was unjustly enriched in the process. The
remedy of subrogation may have been available to
Musson to recover its money against [the respondent]
but it had agreed with Citibank not to pursue that
remedy.‖ (Paragraph 48)
[61] On the other hand, the respondent, by way of counter-notice, filed on 4 August
2011, has asked us to affirm the learned judge‘s decision on the following additional
grounds:
―(a) The promissory notes signed by the Respondent were
accommodation notes only;
(b)
That neither Citibank N.A nor [Musson] was entitle
[sic] to enforce any of the promissory notes against
the Respondent as neither was a holder in due
course; and
(c)
No liability on the part of the Respondent arose under
any of the promissory notes.‖
Ground a
The judgment is against the weight of the evidence and ought to be set
aside.
Musson's submissions
[62] The following are the learned judge‘s statements which Musson has sought to
impugn: