Introduction

In an assignment, a party (an assignor) may transfer its contractual rights to a third party (the assignee). Such an assignment is often given in favour to a bank before the grant of a credit facility. The bank may then seek to enforce the contractual rights of the assignor against its commercial partner.

However, if the bank (as assignee) is to successfully enforce the contractual rights of the assignor, the bank must prove that there is a valid assignment. Failing this, the assignee risks losing the benefits of the assigned contractual rights. This issue arose in the recent High Court case of CIMB Bank Berhad v World Fuel Services (Singapore) Pte Ltd [2020] SGHC 117 where CIMB Bank Berhad (“CIMB”) sought to exercise contractual rights, allegedly assigned to it by Panoil Petroleum Pte Ltd (“Panoil”), against World Fuel Services (Singapore) Pte Ltd (“WFS”).

Brief facts

Sometime in mid-August 2017, CIMB discovered that Panoil was in dire financial straits. Concerned that Panoil would not be able to repay its debts to CIMB under a facility letter dated 29 June 2016, CIMB issued a notice of assignment to WFS on 29 August 2017, informing WFS that Panoil had assigned certain rights to it pursuant to a Debenture purportedly executed by Panoil, on 15 July 2016 (the “Debenture”).

CIMB alleged that pursuant to the terms of the Debenture, Panoil had assigned (among other things) receivables due under 11 Panoil invoices (the “Subject Invoices”) which had previously been issued by Panoil to WFS.

WFS denied any liability under the Subject Invoices and CIMB proceeded to commence an action against it.

The Debenture contained 2 signatures purportedly belonging to Panoil’s Mr Yong Chee Ming (“Yong”) and Mr Lim Shi Zheng (“Lim”). In its Defence, WFS did not admit the Debenture. WFS also challenged the authenticity of the Debenture by filing Notices of Non-Admission as required by Order 27 r 4(2) of the Rules of Court.

Hence, one of the main issues that arose during the trial was whether CIMB had proven the authenticity of the Debenture.

Holding of the High Court

The original Debenture

The Honourable Judicial Commissioner (“JC”) Dedar Singh Gill (as His Honour then was) made two observations in respect of CIMB’s treatment of the original Debenture.

First, although CIMB had disclosed copies of the  Debenture to  WFS,  CIMB  only produced the original Debenture one day before the trial. Given that the authenticity of the Debenture was put in issue early in the proceedings, the learned JC found it “troubling” that CIMB had produced the original Debenture so late in the day. Further, the learned JC observed that no reason was put forward by CIMB for the late disclosure.

Second, although a copy of the Debenture was exhibited in the affidavit of evidence in chief of one of CIMB’s witnesses, the original Debenture was not admitted through any of CIMB’s witnesses. Instead, it was introduced at trial during the cross-examination of a WFS witness. It was in this context that the learned JC went on to determine whether CIMB had proven the authenticity of the signatures on the Debenture.

Proving the signatures on the Debenture

It must be recalled that the only signatories to the Debenture were Panoil’s Yong and Lim. As WFS had filed the Notices of Non-Admission, CIMB was required to prove that the Debenture was “printed, written, signed or executed” as it purports to have been.

However, CIMB did not call either Yong or Lim as a witness to testify to the authenticity of the signatures appearing on the original Debenture. CIMB claimed that it did not do so as Yong and Lim were under investigation by the Commercial Affairs Department and could not be trusted to give credible evidence.

CIMB argued that in any case, it did not need to call Yong and Lim as witnesses, as it could prove the authenticity of Yong and Lim’s signatures by relying on section 75(1) of the Evidence Act (Cap. 97) (the “Act”). The said section provides that:

“Comparison of signature, writing or seal with others admitted or proved

75.—(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, maybe compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.”

The learned JC however rejected CIMB’s argument. At [29], the learned JC stated that even where “primary evidence of a document is produced, its authenticity may be in issue”. The learned JC opined that “a party may still insist on the other party proving that the signature belongs to the person who is alleged to have signed it, despite that party having produced the original document”. The mere production of an original document is thus not enough.

The learned JC referred to (among other things) section 69(1) of the Act before concluding that the burden fell on CIMB to prove the authenticity of Yong and Lim’s signatures on the Debenture. The said section reads as follows:

“Proof of signature and handwriting of person alleged to have signed or written document produced

69.–(1) If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

The learned JC then set out at [34] and [35] the various ways in which a party could prove the authenticity of a signature on a document:

(a) a party seeking to prove a signature may call the following as witness:

(i) the person who signed the document;

(ii) the person who witnessed the document being signed;

(iii) a person who is acquainted with the handwriting of the person who signed the document (see s 49 of the Act); and

(iv) a handwriting expert (see s 47 of the Act).

(b) the disputed signature can be compared by a witness or by the court with a signature already admitted or proved (see section 75(1) of the Act). The learned JC, however, observed that such comparisons should, as a matter of extreme caution, not normally be done by the Court.

Given the above, the learned JC concluded that CIMB ought to have called Yong and Lim as witnesses or, at the very least, called an expert witness to compare the signatures of Yong and Lim against other documents signed by them. The learned JC also did not find it appropriate for CIMB to prove the signatures by asking the Court or WFS’ witnesses to compare the signatures on the Debenture with signatures on other documents.

Further, the learned JC observed that CIMB had disclosed documents showing recent communications with Yong. However, CIMB failed to show that it had even approached Yong to testify as a witness.

Having concluded that CIMB failed to prove the authenticity of the signatures on the Debenture, the learned JC held that the Debenture was not admissible. As CIMB’s claims were entirely dependent on the Debenture being authentic, the learned JC dismissed all of CIMB’s claims.

Another look at authenticity

Shortly after the above judgment, the High Court once again considered another claim brought by CIMB wherein the bank sought to rely on the same Debenture to mount a claim against another one of Panoil’s commercial partners, Italmatic Tyre & Retreading Equipment Asia Pte Ltd (“Italmatic”).

Much like the claim against WFS, CIMB claimed in CIMB Bank Bhd v Italmatic Tyre & Retreading Equipment Asia Pte Ltd [2020] SGHC 160 that pursuant to the Debenture, it was entitled to payment under 7 invoices previously issued by Panoil to Italmatic.

In defending the claim against CIMB, Italmatic stated (among other things) that it entered into a setoff agreement with Panoil on 1 July 2015 with Panoil (the “Setoff Agreement”) and in any case, Panoil had issued a letter on 18 August 2017 cancelling all 7 invoices (the “Cancellation Letter”).

The issue of the authenticity and admissibility of documents also featured in this case. This time, however, it was CIMB which questioned the authenticity of (among other things) the Setoff Agreement and the Cancellation Letter by filing a Notice of Non-admission as well. Notably, Italmatic did not challenge the authenticity of the Debenture executed by Panoil.

At [69] of His Honour’s judgment, the Honourable Justice Vinodh Coomaraswamy stated that a document “cannot be admitted in evidence until its authenticity has been established”, and that “even after authenticity has been established, it is still necessary to prove the truth of the contents of the document by admissible evidence”.

The learned Judge went on to state at [70] that “for all practical purposes [the] witness who proves a document must either be the maker of the document or someone who was present when the maker created the document”. It must be pointed out that an original of the Setoff Agreement was disclosed by Italmatic, and Panoil’s Yong gave evidence at the trial of this matter.

Having considered the evidence before the Honourable Court, the learned Judge held at [83] that the Setoff Agreement was authentic and admissible. His Honour was satisfied that the Setoff Agreement “was in fact created and signed by or on behalf of the parties to the agreement on or about the date that it bears”. As for the Cancellation Letter, the learned Judge held at [148] that the said document was inadmissible as Italmatic “failed to call the maker” of the Cancellation Letter.

Although the Setoff Agreement was held to be admissible, the learned Judge nonetheless held at [124] that Italmatic did not effect a set-off under the said agreement. As the Cancellation Letter was inadmissible, Italmatic also failed to prove that Panoil cancelled its 7 invoices. Having failed to establish any defence, the learned Judge found that CIMB was entitled to judgment against Italmatic.

Key takeaways

The provisions of the Act and the Rules of Court are clear but they can present many pitfalls to a litigant who is not mindful of the evidence it needs to adduce in order to prove the authenticity of the documents it intends to rely on at trial. Given that the burden lies on an assignee to prove the basis of its claim, it would be risky for an assignee to pursue a litigation strategy without the assistance or evidence of the assignor.

*At the time of writing, CIMB’s appeal against the judgment in CIMB Bank Berhad v World Fuel Services (Singapore) Pte Ltd [2020] SGHC 117 is pending.

Please feel free to contact Suresh Nair, Bryan Tan or Chantik Bhatt if you require more information.