Case: CIMB Bank Bhd v World Fuel Services (Singapore) Pte Ltd [2020] SGHC 117 – Claim failed for inability to prove document was authentic

Significance: The Singapore High Court dismissed the bank’s claim to enforce a Deed of Debenture as the bank failed to prove that the debenture was authentic. The bank failed to call as witnesses the persons who signed the debenture, choosing instead to rely on other factual witnesses (not expert witnesses) to give evidence on the signatories’ signatures.

The bank disclosed the alleged original debenture for the defendant’s inspection late in the proceedings a few days before trial. The defendant then filed a Notice of Non-Admission as required by O 27 r 4(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed).

The bank chose not to call the signatories as witnesses because their credibility was questionable; they were being investigated by the Commercial Affairs Department (CAD).

The bank sought to prove the authenticity of the signatures by relying on s 75(1) of the Evidence Act (Cap 97, 1997 Rev Ed) (“the EA”), which states:

“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, may be 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 Judge (Dedar Singh Gill JC) relied on the Court of Appeal decision in Jet Holding at [26]: “… in Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals [2006] 3 SLR(R) 769 (“Jet Holding (CA)”) established the following principles relating to the proof of documents:

(a) A party is legally entitled to object to the authenticity of documents. It is entitled to insist that the documents be admitted in accordance with the proper rules of evidence (Jet Holding (CA) at [36]).

(b) The general principle is that the party wishing to admit documents into evidence must comply with the provisions of the EA (Jet Holding (CA) at [48]).

(c) The relevant provisions on the admission of documents include ss 63 to 67 of the EA (Jet Holding (CA) at [37]).

(d) A party is generally deemed to admit authenticity unless he can bring himself within O 27 r 4(2) of the ROC by showing that he had issued a notice of non admission within the requisite window of time (Jet Holding (CA) at [73]).”

However, Jet Holding has to be read in the light of EA amendments in 2012.

“The EA was amended in 2012. One amendment was the addition of s 67A. Section 67A of the EA provides that where a document is admissible under s 32(1), it may be proved by the “production of a copy of that document, or of the material part of it, authenticated in a manner approved by the court”. In other words, where a party satisfies one of the exceptions in s 32(1) of the EA, it may rely on a “copy” of that document. Section 66 must now therefore be read subject to s 67A. Notwithstanding the introduction of s 67A of the EA, the general principles expressed by the court in Jet Holding (CA), in my view, continue to be applicable.”

“29 Even where primary evidence of a document is produced, its authenticity may be in issue. In other words, 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…”

At [34]-[35]: There are various ways to prove that a document is authentic and was signed by the person who is alleged to have signed it. The following may be called as a witness:
(a) the person who signed the document;
(b) the person who witnessed the document being signed;
(c) a person who is acquainted with the handwriting of the person who signed the document (see s 49 of the EA); and
(d) a handwriting expert (see s 47 of the EA).

In addition, under s 75(1) of the EA, the disputed signature can be compared by a witness or by the court with a signature already admitted or proved.

[39]: ”

In Chua Kim Eng Carol v The Great Eastern Life Assurance [1998] SGHC 403 (“Chua Kim Eng Carol”), the plaintiff claimed for wrongful termination. The defendant had terminated an agency agreement with the plaintiff on the basis that signatures on certain policy documents had been forged by the plaintiff. Despite the defendant calling an expert witness to prove that the signatures had been forged, and the plaintiff calling her own expert witness to prove that the signatures were not forged, Tay Yong Kwang JC (as he then was) found that the plaintiff had not breached the agency agreement by forging the policyholders’ signatures. In doing so, the court made the following observations:

(a) There is no requirement in law that the evidence of a handwriting expert must be corroborated. However, it would not be safe, even on a balance of probabilities, to conclude that the documents had been forged, especially where more direct evidence was available (Chua Kim Eng Carol at [90]).

(b) The court should not compare signatures under s 75(1) of the EA especially when more direct evidence is available (Chua Kim Eng Carol at [90]).

(c) It was crucial to call the policyholders to testify as to their signatures, which was a matter so clearly within their knowledge (Chua Kim Eng Carol at [91]).

(d) The defendant knew its burden at trial. However, the defendant had not shown that it had approached the policyholders or that they had refused to testify (Chua Kim Eng Carol at [91]).

(e) If the policyholders turned hostile, they could be impeached. If the impeachment failed, then the defendant’s allegations would not be borne out by the evidence (Chua Kim Eng Carol at [91]).

(f) An adverse inference ought to be drawn against the defendant under s 116(g) of the EA (Chua Kim Eng Carol at [91]).”

In this case, the Court found that the bank cannot prove the authenticity of the debenture jus tby producing the original debenture. It must adduce evidence to prove that the signatures belonged to the signatories: [40].

The Court also declined to exercise discretion under s 75 of the EA to compare the signatories’ signature on the debenture with their signatures on other documents. The Court said that such comparison ordinarily requires expert evidence, and not factual or lay witnesses unless they are especially acquainted with the signatures in dispute. The bank’s counsel cross-examined a factual / lay witness on the signatures when there was no evidence that the witness was especially aquainted with the signatories’ signatures: [41].

Even expert evidence may be insufficient where more direct evidence is available (Chua Kim Eng Carol): [42].

The Court found that the bank’s failure to call the signatories as witnesses despite being in communication with at least one of them was significant. The bank failed to show that it had approached the signatory to testify as a witness: [43].

The court also noted from the wording on the face of the debenture document that it might even appear to be a draft: [44]-[46].

The bank could not rely on s 32(1)(b)(iv) of the EA because that concerns admissibility not authenticity. A party must prove a document authentic before its admission can be considered: [47]-[53].

Accordingly, on this basis alone, the Court held that the bank’s claim must fail: [55].

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