[139] Learned counsel further contended that there was no evidence that the payment
made by Musson discharged the respondent‘s liability under the promissory note. The
learned judge correctly pointed out that there was no evidence that Musson was
compelled or compellable in law to pay the money, nor of any request, authorization or
ratification by the respondent for any payment. Nor was there any evidence of the
respondent being aware of either Musson‘s decision to pay or of the actual payment.
[140] The reason for Musson‘s inability to provide the court with any evidence, he said,
was simply that Musson had agreed in its letter of 18 August 1998 which was addressed
to Citibank, that in consideration of Citibank purchasing the promissory notes, it would,
upon being called upon by Citibank, repurchase the promissory note at the stated price.
That agreement was between Citibank and Musson. The respondent had nothing to do
with that agreement or with any guarantee.
[141] Musson's arguments in respect of the nature of the relationship between Musson
and the respondent and the nature of Musson‘s payment to Citibank are misconceived,
he argued, as the real transaction was a loan by Citibank to Musson.
Grounds d and h
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.
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.
Musson's submissions
[142] It was Dr Barnett's submission that the three tenets of the principle of unjust
enrichment as set out by Goff and Jones in the text The Law of Restitution, Fifth
Edition, at pages 15-16, are:
(i)
the defendant must have been enriched by the
receipt of a benefit, which included expense saved;
(ii)
that benefit must have been gained at the plaintiff's
expense; and
(iii)
it would be unjust to allow the defendant to retain
that benefit.
[143] He stated that the learned authors went on to explain that a defendant gains a
benefit if money is paid to a third party to his use, "but at common law he will only
benefit if the plaintiff's payment discharges a debt which he owes to a third party". The
discharge of a debt is dependent on whether the debtor (the respondent) authorised or
subsequently ratified the payment. However, an exception to that rule, he submitted, is
where the payer (Musson) is compelled or compellable by law to make the payment
and has so paid.
[144] Learned counsel complained that the learned judge erred, in her reasons, by
stating that recoupment can only be ordered if the debtor had authorised or ratified the
payment and that "no such authorization or ratification occurred here". He submitted
that she failed to (i) consider that the respondent authorised Musson to guarantee the
indebtedness and in the event of default, to pay the outstanding amount, with recourse
against the promissory note; and (ii) embark upon an examination of the exception that
Musson was compelled or compellable by law to pay and so should be reimbursed.
[145] Relying on Halsbury's Laws of England, Fourth Edition Reissue, Volume 40(2),
paragraph 1364, learned counsel submitted that the general rule on a compulsory
discharge of another's debt is where a payer (Musson) has been compelled by law to
pay, or being compellable by law, has paid money a debtor (the respondent) was liable
to pay, so that the debtor (the respondent) obtains a benefit of the payment by the
discharge of his liability, the debtor (the respondent) is held indebted to the payer
(Musson) in the amount of the payment provided certain requirements are satisfied.
[146] He referred the court to paragraph 1366 of the said text, at which he said that
the learned author identified an example of compulsory payment for the benefit of
another to occur "where a surety...is called upon to pay a sum of money on the default
of the principal debtor".
[147] Consequently, learned counsel submitted the learned judge erred when she
stated that "it is not enough that the payer was bound by contract to make the
payment", but that the compulsion to pay must have been by law. It is clear, he
argued, that where a surety (Musson) is called upon to pay in the event of default by
the principal debtor (the respondent), the surety (Musson) is entitled to reimbursement.
[148] He submitted further that the learned judge erred when she stated , that "it was
not clear which liability would have been discharged" and questioned whether it was
"the liability of outstanding monies under the 1998 transaction owed to Musson or
whether it was the liability to Citibank under the promissory notes". He posited that the
question to be resolved was never in relation to the 1998 transaction but rather the
promissory notes issued by the respondent to either Musson and/ or to Citibank. Thus,
the liability that would have been discharged was that to Citibank on the promissory
notes, he submitted.
[149] Dr Barnett also relied on Scarman LJ's statement, at page 412, in Owen v Tate
and Another [1976] 1 QB 402. He submitted that Musson was compelled by law, as
guarantor of the loan to the respondent by Citibank, to pay Citibank on the
respondent's liability, when the respondent failed to do so upon demand; Musson did
not "officiously intervene". Accordingly, the respondent would have received a benefit
at the expense of Musson, was unjustly enriched and ought therefore to make
restitution.
The respondent's submissions
[150] Mr Chen however submitted that the learned judge correctly stated the law of
restitution and correctly applied it to the facts proven before her. He argued that there
was no debt due from the respondent to anyone. The evidence which the learned judge
accepted was that the issuance of the promissory note on which Musson relied was a
―contrivance created in a series of contrivances to give effect to the scheme devised by
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