Topic 4 - Assignment Of choses In action Flashcards
Performing Right Society Ltd. v London Theatre of Varieties Ltd., (1924) AC
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights.
Held:
His absence was critical. PRS failed to obtain a perpetual injunction against music hall proprietors to prevent unlicensed public performances of the Devonshire Wedding and Love in Lilac Time because they did not own the legal right to the copyright and had not joined the legal owners.
Laibru Ltd. v. B. & C.E. Contractors,28
one Michael Ibru formed the plaintifi company for the purpose of taking over and running a business formerly run by him personally. He assigned all his assets in the business to the plaintiff company, including a debt owed to him by X & Co. for goods sold by him to X & Co. earlier in the year. Notice of the assignment of the debt to the plaintiff company had not been given by Ibru to X & Co. It was held that
(i) where a debt is assigned and the assignor fails to notify the debtor of the assignment, it amounts to an equitable assignment of the debt to the assignee (an equitable assignment of a legal chose in action), and that (ii) where an action is brought against a debtor for a debt which has been the subject of an equitable assignment, thi assignor must be a party, either as co-plaintiff or as co-defendant.
Western Nigeria Finance Corp. v. West Coast Builders
the plaintiffs sued the defendants for the balance of loans amounting to N44,000. The defendants pleaded that, under the loan agreement, they had assigned to the plaintif: 25 per cent. of monies due to them (the defendants) from the Ministry of Works; that this was a legal assignment; and that the plaintiffs should have sued the Ministry for the amount assigned. It was held that even though-the assignment was of a definite part of the monies due from the Ministry, this did not amount to an absolute assignment within the meaning of section 150 of the Property and Conveyancing Law. 1º It was an assignment of only part of a debt, and was therefore not a valid legal assignment. At best, it might take effect as an equitable assignment.
Jones v Humphreys
the assignment must not be by way of a charge from which a payment is to be made from the amount owed
Re Steel Wing Co.
A by deed assigned to B an equal half part of the sum of 4,682 pounds which was owed to him by the company, and gave the company a written notice. The judge held that this was not a valid statutory assignment, for if the assignees of various parts of a debt each acquired a legal right to sue in their name this might result in conflicting decisions being arrived at concerning the debt.
Accra Perfumery Co Ltd. v Thomas, (1947) 12 WACA 160
Case Summary
The plaintiff, Mr. Thomas, sued the defendants, Accra Perfumery Co. Ltd., for money alleged to be due to him. The defendants counter claimed for a sum of £800 which was said to have been the part assigned to them for a debt of £1,662 owed by the plaintiff to one James College (Cocoa) Ltd., which the latter company had assigned to the defendants. No notice of this assignment was given to the plaintiff until the making of the counter claim. The plaintiff contended that as no notice of the assignment was given to him, it rendered the assignment under the counter claim ineffective.
Held:
Rejecting this contention, it was held that the pleading constituted enough notice of the assignments for, as it was an assignment of a part of debt, it rendered the assignment equitable. The court however found for the plaintiff and held that since it was an equitable assignment the defendant company could not counter claim on this alone without being joined by the James College (Cocoa) Ltd., the assignor, and therefore, the counter claim against the plaintiff failed.
Tancred v. Delagoa Bay and East Africa Railway Company27
Drew a distinction between an absolute assignment and an assignment by way of a charge only and held that “a charge is not one which absolutely transfers the property… but… only gives a right to payment out of a particular fund or particular property”
If, in a legal mortgage agreement, there’s a provision for reconveyance (that is, reassignment) from the assignee to the creditor, this doesn’t mean that it can’t still be a statutory assignment (cos after all, the property is being reconveyed, cos it was transferred absolutely in the first place - whereas if it was merely a charge, it wouldn’t have been transferred to the assignee in the first place)
Onashile v Idowu
Case Summary
The appellant mortgaged certain properties to the third respondent who later purported to sell the property to the first and second respondents under the power of sale conferred by the Conveyancing Act 1881. It was argued that the mortgage was void on the ground that it was not registered in accordance with section 5 of the Registration of Titles Ordinance and that the subsequent sale was void. The trial judge gave judgment for the plaintiff because S. 5 of the Ordinance did not apply to a mortgage since it was an absolute conveyance of the fee simple. The defendant appealed. It was submitted on his behalf that a mortgage deed of the kind in dispute created a fee simple absolute and was therefore registerable under S. 5 of the Ordinance. The respondents contended that the section, applied only to an unqualified conveyance and that it would be inconsistent with the other provisions of the Ordinance to construe that section as including a conveyance by way of mortgage. Held: Unsworth, F.J., allowing the appeal, said that mortgage came within S. 5 of the Ordinance since it was a conveyance of the fee simple absolute. He rejected the argument that the registration of a mortgage could not have been intended because this would have the effect of destroying the equity of redemption and went further to suggest that S. 82 of the Ordinance preserved the equity of redemption which was an estate by virtue of S. 3 of the Ordinance
Udakason Enterprises Lid. v. Olisa.”
In this case, a partnership was owed NS320 by the defendant for goods sold to him. Subsequently the partners entered into an agreement dissolving the partnership and converting themselves into a limited liability company. By the same agreement, all the assets and liabilities of the partnership were assigned to the company. The former partners then wrote a letter to the defendant informing him of the change and requesting him thenceforth to deal with the company. On the company’s suing the defendant for the debt of NS320, the defendant pleaded (i) that the dissolution agreement was not a sufficient assignment of the debt; (ii) that even if the assignment were valid, the letter written to the defendant informing him of the change was not a valid notice of that assign-ment. Umezinwa J, rejected both contentions. He said,’” “The defence contends that (the dissolution agreement) is no assignment but a mere agreement between the shareholders of the dissolved partnership. (The agreement) undoubtedly was inelegantly drafted but, that notwithstanding, the contents show clearly that all the assets and liabilities of the dissolved partnership have been transferred to the plaintiff (company).” Further, as regards notice: “The law does not require any particular form of notice of assignment.
In order that the assignee may obtain the benefit of the Act, 13 all that is required as to notice is express notice in writing of the assign-ment. (There was) a letter to the defendant by the plaintifis informing him that (the partnership) has been registered as a limited liability company, and henceforth to deal with the plaintiff company.
I hold that (the letter) constitutes sufficient notice to the defendant that the assets (which include the defendant’s debt) of the dissolved partnership have been assigned to the plaintiff.” It was further held that this being a valid legal assignment, the assignee could sue in his own name without having to join the assignor.
Thomas v. Harris
A father handed to his son certain assurance policies on his (the father’s) life requesting the son to erect a tombstone in his memory out of the policy monies. No notice was given to the insurance company.
It was held that the father had effectively assigned the policies to his son by way of charge for the cost of the tombstone. It was a valid equitable assignment.
Brice v Bannister
The request to pay “out of money due from you to me…” has been held to be valid identification of a chose.
Holt v Heartherfields
P. owed money to the defendants, who obtained a garnishee order nisi against funds owed to P. by the C. Co. on June 17th. P. had already assigned this same debt to the plaintiff on June 14th as repayment for loans. Both P. and the plaintiff notified C. Co. of the assignment on June 17th, but C. Co. received the notices on June 18th.
The defendants argued the assignment was fraudulent and incomplete, giving them priority due to the garnishee order. The court held:
The assignment was not fraudulent.
Legal assignment requires notice to the debtor (C. Co.) receipt, not just sending, meaning the legal assignment was completed on June 18th.
Consideration is not required for an equitable assignment to be valid. A garnishee order only attaches to what the debtor can rightfully assign. Therefore, even though the legal assignment wasn’t complete until June 18th, the prior equitable assignment to the plaintiff on June 14th was valid and took priority over the defendants’ garnishee order served on June 17th.
Stocks v Dobson
Where a notice of assignment is not given to the debtor, the debtor is not liable to the assignee until he receives notice and thus, he may pay the assignor the money without being liable to the assignee.
Roxburghe v. Cox.39
X, an army officer, assigned to the plaintiff the money that would come to him from the sale of his commission. That money, N6000, was paid on December 6 into X’s account at the defendant bank, who were also army agents for X’s regiment. On that date, X’s account was overdrawn to the tune of N1294. On December 9 the plaintifl gave notice of the assignment to the bank. It was held that the bank could set off the debt of NI294 against the right of the plaintiff to the N6000.
Another
Re knapman
an assignee from a beneficiary will take subject to the paramount lien on the trust property which the trustce has in respect of all costs and expenses properly incurred by him in carrying out the trust.”
Dear v Hall
One Peter Brown made a will and directed his executors to sell the residue of his personal and real estate and to invest the proceeds and to pay the interest there out to Zachariah Brown, Zachariah Brown then assigned his interest first to Dearle in 1808, then to Sherring in 1809 and in 1812 sold it to Hall. Before the purchase, Hall instructed his Solicitor to investigate Brown’s title. The investigation did not reveal that there had been earlier dealings with Brown’s interest; Hall served a written notice of his assignment to the executors. Subsequently, the executors received notice of the two earlier assignments. The question for determination was who was entitled to priority in deciding in favour of hall, sir Plumer, M.R …….., had thus to say “where a contract respecting property in the hands of other persons who have a legal rights to the possession is made behind the back of those in whom the legal interest is thus vested, it is necessary, if the security is intended to attach on the thing itself to lay hold of that thing in the manner in which its nature permits it is to be laid hold of, that is giving notice of the contract to those in which the legal interest is, by such notice the legal owners are converted into trustees for the new purchaser and are charged with responsibility towards him.” Priority here will depend upon the order in which notice of the dealings was received by the person entitled to receive it, if notice is received substantially simultaneously; priority will depend upon the order in which the interest were created.
Lloyd vs. Bank (1868) 3 ch.mp. 488
Notice received through newspaper had been held to be adequate
Ukatta v Emembo
The defendant had earlier in writing to assign to the plaintiff the lease of a plot of land at Aba as soon as he himself obtained an assignment from the Crown lessee. The plaintiff paid N2000, the full purchase price, to the defendant. It was held (inter alia) that this agreement was a valid assignment of an expectancy which, since the plaintiff had given value, was in Equity treated as a contract to assign of which specific performance would be granted. As soon as the defendant acquired the expectancy (in October 1954) he became a trustee of the lease for the plaintiff. The court therefore ordered specific performance of the agreement of January 1954.
It may be noted that, since the legal interest
Peters v General Assurance
Since the relationship between insurer and assured is a personal one, a motor insurance policy cannot be assigned to a buyer to whom the car is sold, for that would be to “thrust a new assured upon a company against its will.””
Stevens v Benning
benefit of an agreement by which an author undertakes to write a book for a publisher cannot be assighed by the later without consent of the author.”
Tolhurst v Ass Portland Cement
Thus a contractor who had agreed to supply a company for fifty years with chalk from his quarry for the company’s cement works was held bound to supply, on the same terms, another company which had taken over the first company. It was found from the nature of the contract that no special personal considerations were involved, so that it made no difference to the contractor whether he performed his obligations to the original company or to an assignee of that company. 1º
