Accra Perfumery Company Limited & Anor V. Alan Radlay Thomas & Anor & Anor (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Consolidated suits—Chose in action—Assignment of part of a debt—Notice of
Assignment—Sufficiency of notice by averment as to assignment in pleadings—Character of assignment of part of a debt—Rules of the Supreme Court of
Judicature (England) Order XVII, rule 3—Protection afforded by and effects
of consolidation vis-a-vis joinder of parties—Necessity for joinder of assignor—Necessity for express notice of assignment before action brought.
Facts
The respondent, as plaintiff, sought to recover from (inter cilia) the Accra Perfumery Company moneys alleged to be due to him from the Company, who counter claimed, on a contra account, for a sum of £800 said to have been the part assigned to them of a debt due to James Colledge (Cocoa) Ltd. from the respondent. Judgment was entered for the plaintiff in his action against the Accra Perfumery Company, the trial Judge holding that, as no notice of the assignment had been given to the respondent, for this reason the assignee was unable to recover.
The Accra Perfumery Company appealed.
The facts are fully set out in the judgment.
The only notice of an equitable assignment was disclosure thereof in the pleadings.
Held
That Order XVII, rule 3 of the Rules of the Supreme Court of Judicature (England) was not relevant to the present case because there was no assignment pendente lite.
The assignment being of only part of a debt, the assignment was equitable in character (Williams v. Atlantic Assurance Co. (1) followed), and therefore the Accra Perfumery Company (the assignees) were precluded from suing in their own name without joining the original creditor (the assignor).
It being submitted that, by virtue of the consolidation of the suits which included counter-claims by both appellants, the assignor as well as the assignee, the assignor was in effect a party to the action.
Held: That consolidation of two actions is not the same as the joinder of parties in one action and does not of necessity have the like effect, and that the object of the joinder of parties, more particularly the joinder of assignor with assignee, is to secure the defendant from the necessity of defending any further action by the assignor or any other person claiming under him. Held further, that mere consolidation does not afford the debtor any such protection.
Circumstances may arise in which the object of the joinder of the assignor is attained without such formal joinder.
(Brandt’s Sons 6- Co. v. Dunlop *Rubber Co. (4) and Re Steel Wing Co. (5) referred to.)
Held: That in the present case, the consolidation of the two suits had not effected a joinder of the assignor in the assignee’s counter-claim against the
respondent, but, inasmuch as the assignor, on his counter-claim, had sought to recover and had recovered no more than the unassigned part of the total debt, he was so bound that neither he nor any third party c aiming through him could recover from the respondent any further sum, and therefore the assignee could sue without joining the assignor.
On the question whether notice must be given before action brought in a case where the joinder of the assignor is not to be required.
Held: That this was not necessary and that no further notice than that appearing in the pleadings was necessary to perfect the assignment.
Appeal allowed and judgement of Supreme court varied.
