Wakilii

Ambalal and Company Limited v Boury and Others (Civil Appeal No. 61 of 1955)

East African Court of Appeal · [1950] EACA 68 · 1950 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal by leave against an interlocutory ruling of the High Court of Uganda on a preliminary issue regarding joinder of parties
Decision
Interlocutory ruling of the High Court set aside; assignee may proceed without joining assignors as parties

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An absolute assignment of a chose in action is effective at law in Uganda under section 15 of the Uganda Order in Council 1902, which either imports the Judicature Act 1873 section 25(b) (re-enacted as Law of Property Act 1925 section 136(1)) or establishes a fused system of common law and equity. An assignee can therefore sue on an assigned debt without joining the assignors as parties. A court cannot treat an assignment that is absolute in form as a mere charge or mortgage without evidence to support such characterisation.

Outcome

Interlocutory ruling of the High Court set aside; assignee may proceed without joining assignors as parties

Facts

The Director of Public Works contracted with Boury Bros for construction of 40 Asian bungalows. Boury Bros sub-contracted with Chanan Singh and Udham Singh for eight of the bungalows at Sh. 31,000 each. On 7 December 1951, before completion, the assignors executed an absolute assignment in favour of Ambalal and Company Limited of all benefit under the sub-contract for Sh. 11,739/10, estimating the balance due at Sh. 35,000 to Sh. 40,000. The appellant gave notice of assignment and sued Boury Bros for the balance allegedly due. On interlocutory application, the High Court held that the assignors were necessary parties and stayed the suit pending their joinder. The High Court also characterised the assignment as merely a charge for security.

Issues

  1. Whether an assignee of a chose in action can sue without joining the assignors as parties to the action.
  2. Whether section 15 of the Uganda Order in Council 1902 imports the provisions of the Judicature Act 1873 section 25(b) or establishes a fused system of common law and equity in Uganda.
  3. Whether an assignment in form absolute could be treated as a mere charge or mortgage without evidence to that effect.

Orders

  • Appeal allowed.
  • Respondents to pay the appellant's costs of the appeal.
  • Respondents to pay the appellant's costs of the preliminary issues.

Rules and key headnotes

Assignment of Choses in Action — Effect of Absolute Assignment at Law
An absolute assignment of a chose in action in writing, with notice to the debtor, is effective at law in Uganda and enables the assignee to sue in its own name without joining the assignor as a party.
Uganda Order in Council 1902 s.15 — Fused System of Law and Equity
Section 15 of the Uganda Order in Council 1902 either imports the Judicature Act 1873 section 25(b) as a statute of general application or establishes that the jurisdiction of courts in Uganda is based on a fused system of common law and equity such as existed in England after the Judicature Act 1873.
Assignment — Form vs Substance — Characterisation as Charge
A court is not entitled to treat an assignment that is absolute in form as a mere charge or mortgage without evidence showing that it was intended to operate only as security, and it is doubtful whether such evidence would be admissible to contradict the express terms of the deed.
Assignment — Assignment of Contract vs Assignment of Debt
An assignment expressed as assigning 'the agreement and the benefit thereof together with all moneys' may operate only as an assignment of the debt without imposing on the assignee any duty to perform the contracted works, depending on the construction of the deed as a whole.
Parties — Joinder of Assignors — Absolute Assignment at Law
Where an absolute assignment of a debt is effective at law, the assignors are not necessary parties to an action by the assignee to recover the assigned debt.

Legislation cited (3)

Cases cited (1)

  • Balkishen Das v Legge (1899) I.L.R. 22 A. 149

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ambalal and Company Limited v Boury and Others (Civil Appeal No. 61 of 1955) [1950] EACA 68 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.