Money

• Pages: 239-264

Action for an account Paras. 601-603

MONEY

(1) ACTION FOR AN ACCOUNT

601. Action for account.

(1) “My view is that whether the plaintiffs contributed 80% or more of the levies,

once the money contributed is designated community money, no part of the commu-

nity is entitled to the community property. An account must be rendered to the com-

munity and if any refund is to be made such refund is to be made to the community.”

- Per Kolawole, J.C.A. in Iwuaba v. Nwaosigwelem Suit No. CA/E/400/86; (1989)

5 N.W.L.R. (Pt. 123) 623 at 632.

(2) “True, the amount involved in this case is enormous, but having regard to the

finding of the learned trial Judge that from the facts available, the five defendants are

to be held personally accountable to the Okwudor Community, he should not have

given judgment in favour of the plaintiffs who did not represent the Okwudor Com-

munity.” - Per Kolawole, J.C.A. in Iwuaba v. Nwaosigwelem Suit No. CA/E/400/

86; (1989) 5 N.W.L.R. (Pt. 123) 623 at 632.

602. Action for an account in respect of an unascertained sum.

“The relief sought was in essence a claim for an account which was unascertained:

In the case of Messrs. MISR (Nig.) Ltd. v. Mallam Yusufu Ibrahim (1974) 5 S.C.

55 Coker, J.S.C. at page 61 of the report said: - “An action for account lies in respect

of a claim which may be unascertained at the time of the institution of the proceed-

ings and indeed can only be ascertained after the filing of such an account.” – Per

Jacks, J.C.A. in Eme v. Wamuoh Suit No. CA/E/94/83; (1991) 7 N.W.L.R. (Pt. 203)

375 at 389.

(2) BILL OF SALE

603. A bill is in accordance with the statutory form if it is substantially like it.

“Chief Williams submitted that the transaction was void as the bill of sale did not

follow the proper form, and the application should therefore be dismissed. It is true

that S. 9 of the Bills of Sale Act (1878) Amendment Act, 1882 provides that a bill of

sale by way of security for the payment of money is void if it is not made in accor-

dance with the form in the schedule to the Act. In the present case, the form of the

bill of sale between the parties is not in conformity with the form in the schedule and

would be wholly void even against the grantor. But in re Barber, Ex. P. Stanford (17

Q.B.D. at 271; 54 L.T. at 896) the rule is stated to be that:- “whatever form the bill

of sale takes, the form adopted by it in order to be valid must produce, not merely the

like effect, but the same effect that is to say, the legal effect, the whole legal effect,

and nothing but the legal effect which it would produce if cast in the exact mould of

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Paras. 603,604 Vol. 16: MONEY 240

the schedule.” I have, therefore, to ask myself whether the bill of sale between the

parties in the present application comes within the rule in the above cited case? My

answer to that question, after a careful reading of the document, is in the affirmative.

It follows from this that, despite the draftsman’s aberrations in not following

the form in the schedule to the Bills of Sale Act (1878) Amendment Act, 1882, the bill

is valid. I had said before that the bill was registered as a bill of sale on August 28th,

1971 by the Registrar of Bills of Sale. To that extent, therefore, the maxim omnia

praesumuntur rite esse acta must apply.” – Per Lambo, J. in Salzgilter Stahl v.

Companies Reg. (1973) N.C.L.R. 413 at 415 – 416.

604. Where a bill of sale is submitted to the registrar of bills of sale and the

registration fee is paid, the bill will not be void for late registration notwith-

standing that the office delayed its actual registration.

“The time limit was set at seven clear days after the execution. This is to my mind all

that the law imposes on the grantee of the bill of sale regarding registration. In the

context of our case it would seem to me that the mode of registration in this country

is to file all the relevant documents with the registrar of bills of sale. This would

involve submitting to him all documents together with the bill of sale duly signed and

the registrar’s assessed fee paid. If this is done within the prescribed time the grantee

of bill of sale has done all that is required of him to secure registration, in my opinion,

and he will not be accountable for late registration resulting from the execution out of

the registry, such as if after receipt of the relevant papers and collection of fees the

registrar chooses to lay them aside for a period beyond seven days before making the

necessary entries in his register.

It cannot be the intention of the legislature that the grantee who has fulfilled

the duty imposed on him by law to suffer by the default of a public officer whose duty

is to make the necessary entries. There is no default on the part of the grantee in this

case and it will be gross injustice if the fault of the registrar is transplanted on to the

grantee, and I disfavour the argument that the bill of sale is void for late registration.

In my judgment I hold that when a bill of sale is submitted to the registrar of

bills of sale and the registration fee paid, all within time, the bill should be taken as

being registered within time not withstanding that the office delayed its actual regis-

tration. For this Court to make the grantee responsible for the brazen dereliction of

duty on the part of the registrar will be a travesty of justice, which it is the duty of the

law Courts to prevent. The plaintiffs are therefore entitled to succeed on the bill of

sale.” – Per Ikpeazu, J. in International Bank for West Africa Limited v. Agubike

(1972) N.C.L.R. 371 at 382 - 383.