Tuesday, 17 January 2017

WHEN AN ASSIGNMENT IS SAID TO BE ABSOLUTE.




 

 INTRODUCTION
What is an assignment?
According to the Black’s Law Dictionary[1] an assignment is the transfer of rights or property or the transfer or setting over of property, or of some right or interest therein, from one person to another.
It has also been defined as the act by which one person transfers
to another, or causes to vest in that other, the whole of the right, interest, or property which he has in any realty or personalty, in possession or in action, or any share, interest, or subsidiary estate therein.[2]
An online source known as Wikipedia defined assignment (Latin cessio) as a term used with similar meanings in the law of contracts and in the law of real estate. In both instances, it encompasses the transfer of rights held by one party—the assignor—to another party—the assignee.[1] It can also be a transfer of a benefit, including an equitable interest, according to established rules (at Common Law or in Equity)[3]
From the above the parties to an assignment include:
1.the assignor; A person, company or entity who transfers rights they hold to another entity. this means that the assignor transfers both the contractual obligations and the contractual benefits. In an assignment of rights, this means that the assignor transfers just the contractual benefits. In either situation, the assignor transfers to the assignee.
2.the assignee; is the party that receives the rights and obligations under the contract, but wasn't an original party to the contract. An assignee usually receives the contract rights and obligations directly from an original party to the contract. An assignee can be an individual, a group, or a business.
The types of an assignment include a. equitable assignment and b. absolute assignment.
For the purpose of this work we shall be focusing on absolute assignment and what makes it so.

What is an absolute assignment?
The Black’s Law Dictionary[4] defines an absolute assignment as an assignment that leaves the assignor no interest in the assigned property or right.
The learned author J.O.Fabunmi[5] in explaining absolute assignment  said that the assignment must be absolute not purporting to by way of charge only. this means that the entire chose must be assigned and for this purpose , an assignment is absolute even though it is a mortgage for the interest passes to the mortgagee and the fact that it is subject to a proviso for redemption does not prevent it from being absolute.
An absolute assignment does not include the assignment of part of a debt of thing in action whether or not the part assigned is ascertained or unascertained. It is total and complete. In Walter and Sullivan Ltd v J Murphy & Sons Ltd[6], WS were plastering sub-contractors who commenced legal proceedings against M for the sum of £1808 alleged to be due in respect of a sub-contract for plastering works. After the commencement of the proceedings, WS, who were indebted to a third party H & Co, notified M that M were 'to pay to H & Co the sum of £1558 17s 8d from monies owing by you to us.. the receipt of H & Co shall be good and sufficient discharge to you in respect of payment made hereunder'. By a second document H & Co agreed with WS that in consideration of the irrevocable authority given by them to M ‘we will pay over to you any monies which are paid to us by (the Defendants)... after your debt to us … has been fully repaid .’ The court held that the arrangement between WS and H & Co was an assignment of part of a debt and therefore did not satisfy the requirements of an absolute assignment. And so an assignment that purports to be by way of charge only is not an absolute assignment. Also a conditional assignment is not absolute in the sense that such assignment is to become operative at the happening  of an uncertain event thereby putting the debtor or the person to discharge the liability in difficulty of having to ascertain the happening of an uncertain event; for, if he pays the assignee after the happening of the uncertain event, he may be liable to repay the assignor. Thus in Durham Brothers v, Robertson[7] the document in question stated as follows “Re Building Contract. In consideration of money advanced from time to time we hereby charge the sum of £1,080: being the agreed price for the sale of £60 per annum ground rent which will become due to us from John Robertson of West Dulwich on the completion of the above buildings as security for advances, and we hereby assign our interest in the above mentioned sum until the money with the added interest to be repaid you”. Here the document first charged the chose assigned for the advances, and secondly it proceeded to make an assignment of the assignor’s interest in the chose, in terms not absolute, but until the happening of an event. I.e. The repayment of the advances with interest. It does mean that on the repayment of the advances and interest the assignment according to the substances of the documents, would cease to operate. Chitty L.J. rightly held that the assignment was not an absolute but a conditional assignment. Also in in the Nigerian case of western finance coy v. west coast builders[8] the assignment was not absolute as it did not take care of the entire right (in this case a debt) but was an assignment that covered part of the bedt owed. The plaintiff claimed from the defendant a sum of money due to it. In defence  the defendant claimed they had assigned 25% of the money due to them from the ministry of works to the plaintiff and as such the plaintiff should have sued the ministry for money due on the legal assignment. The court however held that the assignment was not a valid legal assignment since it was partial and not absolute. It was an assignment of part of the money due to the assignors and not a complete assignment.
Conclusively for an absolute assignment to take place the transfer of right properties etc must be complete and total and not in part or by way of charge and it must not be conditional waiting on the execution of some uncertain transaction and time for it to take effect. lastly for an assignment to be absolute the rights or properties to be assigned must not be encumbered.




REFRENCES

J.O.Fabunmi, Equity And Trusts in Nigeria 2nd edition.

Black’s Law Dictionary, Ninth Edition.

Law Dictionary: What is ASSIGNMENT? definition of ASSIGNMENT (Black's Law Dictionary)

Wikipedia, the free encyclopedia.








[1] Ninth edition,pg 137
[2] Law Dictionary: What is ASSIGNMENT? definition of ASSIGNMENT (Black's Law Dictionary)
[3] From Wikipedia, the free encyclopedia
[4] Supra
[5] Equity And Trusts in Nigeria 2nd edition, pg96
[6] [2016] EWHC 1148 (TCC)
[7] (1898)1 QB 765
[8] (1971)1 UILR 93

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