Assignment-Equitable assignment of chose in action-Validity in the Sudan

Courts-Equitable jurisdiction-Generally
Equity-Status in Sudan-General powers of civil courts

Statute-Alternative to statutory provisions=-Statute not exhaustive-Equity

Although section 8 of the Civil Justice Ordinance 1929 provides the
requisites for a valid legal assignment of a debt or chose in action in the
Sudan, it was Dot intended to make a legal assignment the only valid form
of assignment in this country. The section does not preclude the making
of valid equitable assignments which may be enforced in any of the civil
courts.

William Brandt's Sons & Co. v. Dunlop Rubber Co. [1905] A.C. 454 relied
upon.

Civil Justice Ordinance 1929, s. 8.
English Judicature Act 1873, s. 25 (6).

Appeal

July 19, 1938. Flaxman J.: The facts of. this case appear to be
that the plaintiff, EI Tayeb Babiker EI Hag, a Zeidab merchant, sold
to Babiker El Ajab, the first defendant, 1000 sacks of colocynth pulp,

,which by agreement was delivered at premises at Zeidab utilised by
the second defendants, Abdel Latif Abu Regeila & Co., a firm of
Khartoum merchants, who were locally represented by an agent named
Samaan Mikhail. The agreed sale price was £E.70, which had admit-
tedly not been received by the plaintiff, who now claims that sum from
the first defendant as the purchaser and from the second defendants

•. Court: Creed C.l., Evans R.G.L. and Flaxman J.

 of an assignment of a debt due by second defendants to the
first defendant, agreed upon between the plaintiff and first defendant
in the presence of second defendants' agent at Zeidab.

It was held by the learned judge that the assignment was an
equitable assignment and enforceable by the plaintiff against the sec-
ond defendants. In addition he held the first defendant to be jointly
and severally liable with the second defendants for payment of the
sum claimed and costs and fees of the action.

From his decision there is now an appeal by the defendants,
who deny that there has been any valid assignment of the debt due
by them to the first defendant. It has been argued that by reason
of the provisions of section 8 of the Civil Justice Ordinance, the only
valid and enforceable form of assignment in the Sudan is tbe "legal
assignment", with the requirements of wbich this assignment admit-
tedly did not comply-the first defendant as assignor not baving signed
tbe notice of assignment, and DO express notice in writing having
been given to the debtors, the second defendants.

The first defendant has also submitted a memorandum of appeal,
claiming that by reason of the agreement between himself and plaintiff
be is now discharged from any liability to pay. He did not pursue
his application and did not appear at the hearing before this court.

The point with , .. hich we are now concerned in dealing with
the present appeal would seem to be the following: Was there a
valid assignment to (he plaintiff by the first defendant, in settlement
of the plaintiff's cl- l1Il against first defendant for £E.70, of a debt
due to the first def. .idant by the second defendants?

There was ell arly no legal assignment of the debt. It is necessary
to consider whether the agreement between the parties as to payment
of this debt amo mted to an equitable assignment; and if so, whether
such an assignm: .it is valid and enforceable in the Sudan .

. The requisites for the creation of an equitable assignment of a
chose in action are simple. No particular form is required and a
simple agreement by a debtor with a creditor that a debt owing to
the debtor by a third person shall be paid to his creditor operates as
an equitable assignment of the debt. Formal notice of the assignment
need not be given to the debtor, although obviously the debtor should
be given to understand that the debt has been made over by his

creditor to some third person in order to prevent payment being made
to the wrong person.

From the evidence in this case it is clear that there was an agreement
between the plaintiff and the first defendant that part of "a debt due
by the second defendants to the first defendant should be paid to
the plaintiff in satisfaction of his claim for the price of the colocynth
pulp sold by him to the first defendant, and it is on the evidence
indisputable that notice of the agreement was given to the second
defendants' Zeidab agent, who in fact himeslf signed a letter ad-
dressed to his principals requesting them to pay a sum of £E.70
'owed by them to the first defendant to the agent of the plaintiff at
Khartoum. It is clearly proved that that letter was received by the
second defendants, who pretend inability to produce it. A demand
for payment was made by the plaintiff's agent at the second defend-
ants' principal place of business but the request was not complied

with and no payment was made for the plaintiff's account.                                 

The evidence leaves me in no doubt that the agreement between
the plaintiff and first defendant amounted to an equitable assignment,
and it remains to be considered whether such a form of assignment
may be given effect to by the Sudan courts. It has been argued for
the appellants that where the Civil Justice Ordinance declares the
law, it is exhaustive, and thus, the statutory requisites must be
complied with to make an assignment enforceable or valid in this
country, and an assignment which does not comply with the statutory
requirements is ineffectual.

It is undeniable that where there is a specific enactment, this
court will not, and cannot vary that enactment by p rporting to act

in equity. If the intention of section 8 is to make the "legal assign-
ment" the only: form of assignment valid in this country, this court
will not hold that any other form of assignment not complying with
the provisions of the section is valid. t_It is my opinion that no such _
intention is shown by the section. The section certainly forms part
of a chapter dealing with the law to be administered. It defines
what is necessary-to be valid to pass and transfer a legal right to a
debt, and gives an assignee the legal assignee's right of suing in his
own name without joining the assignor. I cannot agree that its
effect is to preclude the making of a good equitable assignment in
this country. This court, and every other court constituted under the
Civil Justice Ordinance, is a court of equity as well as a court of
law. There is nothing new in this assumption. It has been stated