Chief J.J. Enwezor V. Central Bank Of Nigeria (1976)

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MADARIKAN, JSC.

 The appellant was the plaintiff, and the respondent the defendant, in an action (Suit No. LD/836/1971) in which the writ was endorsed as follows:- “The plaintiff’s claim against the defendant is for the sum of £26,659 being money paid by the plaintiff to the defendant in old Nigerian currency notes to be exchanged by the defendant into new Nigerian currency notes and which the defendant has failed to exchange for the plaintiff. In the alternative, the plaintiff claims the said sum as money had and received by the defendant to the use of the plaintiff.”

Pleadings were ordered; and they were duly filed and delivered. In view of the observations we propose to make later in this judgment, it is convenient to set out the pleadings in full now. In his statement of claim, the plaintiff averred as follows:-   “STATEMENT OF CLAIM

1. The plaintiff is a Nigerian citizen ordinarily resident at Onitsha in the East Central State of Nigeria and the defendants are a bank established and incorporated by and under the Central Bank of Nigeria Act.

2. The defendants were at all times material to this action duly charged inter alia with the duty of exchanging in the East-Central State old Nigerian currency notes for new notes circulating at the present time in all parts of the country.

3. On or about 7th April, 1970 the plaintiff deposited with the defendants the sum of £26,659 old Nigerian currency notes for purposes of exchange and obtained receipt No. ES005055 dated 7/4/70.   WHEREUPON the plaintiff claims as per the writ of summons”.

In answer to these averments, the defendant pleaded as follows:

“STATEMENT OF DEFENCE

1. The defendant admits that it is a bank statutorily incorporated by and under the provisions of the Central Bank of Nigeria Act but otherwise does not admit any other part of paragraph 1 of the statement of claim.

2. The defendant admits it was charged with the duty of exchanging in the East-Central State old Nigerian currency notes into new ones circulating in the Federation of Nigeria but states that such exchanges were and are carried out only in accordance with the laws governing them whenever such exchange is operative.

3. The said sum of £26,659 old Nigerian currency notes allegedly deposited by the plaintiff on or about 7/4/70 had ceased to be legal tender in the Federation of Nigeria and had no value in Nigeria.

4. The said old Nigerian currency notes or each of them, have nil value as currency within the Federation of Nigeria and in consequence the plaintiff is not entitled to receive from the defendant any sum of money whatsoever as claimed in his writ of summons.

5. The defendant will contend that the plaintiff’s action should be dismissed”

AT the trial, the plaintiff testified on his own behalf and called no other witness. He stated that after the civil war, the defendant asked those who had not exchanged their old currency notes for new ones to come forward and exchange them. It appears that it was in response to this call that the plaintiff deposited £26,659 old currency notes with the defendant on the 7th of April, 1970 and obtained a receipt – Exhibit A. The plaintiff tendered in evidence a letter dated the 8th of October, 1971 addressed by his solicitor to the defendant. The letter (Exhibit B) reads:-

“The Governor, Central Bank of Nigeria, Tinubu Square, Lagos.   Dear Sir,   I act for Chief J.J. Enwezor of Onitsha. My client states that on the 7th April 1970 he paid to your bank the sum of £26,659 (twenty-six thousand six hundred and fifty-nine pounds) as per Receipt No. ES005055 of 7/4/70 in old Nigerian currency notes.

2. Up till this date, my client has not been paid the equivalent sum in the present current.

3. I shall be glad if you will kindly let me know the reasons for the delay in making payment.   Yours faithfully,   _____________   F.R.A. Williams”

He also tendered as Exhibit C the defendant’s reply to Exhibit B. We now reproduce Exhibit C:-

“20 OCT 1971 CENTRAL BANK OF NIGERIA Tinubu Square Lagos.   PRIVATE MAIL BAG 12194: CABLES: CENTRAL BANK: TELEPHONE ……………………………  18th October, 1971. Chief F.R.A. Williams,   26, Moloney Street, P.O. Box 3426, Lagos.   Dear Sir,   I write with reference to your letter (Ref. FRAW/AO/CB/117/71 of 8th October, 1971 to inform you that your client’s entitlement as a depositor was £20 ex-gratia award authorised by the Federal Government.   Authority to pay the award to him has been given to the East-Central State Government whom he had earlier been advised to contact for payment.   Yours faithfully,    (Sgd.) E.N. Isong Governor”

The only witness called by the defence was Sule Okponubi, an Assistant Chief of Banking Operations. He testified that:

“The Federal Government requested the people from the East-Central State to exchange their currencies, both Biafran and Nigerian. We sent out teams to accept the deposits. This was in 1969/1970. After all the deposits have been accepted, the Government directed that the defendant should make an ex-gratia payment of £20 each to all of them. As a result of this direction, the defendant was not able to exchange the deposited amounts, whether Biafran or Nigerian.    The Government has so far not given any direction to the contrary. CROSS-EXAMINED BY CHIEF WILLIAMS: The direction from the Government was in writing.   RE-EXAMINED BY DR. WILLIAMS: No questions”. In a reserved judgment, the learned trial Judge (Savage, J.) considered the Decrees and subsidiary legislation governing exchange or conversion of old currency notes to new ones, and came to the conclusion that the action was misconceived because the Governor of the Central Bank had not exercised certain discretionary powers vested in him under the law. The action was accordingly dismissed.    The plaintiff has appealed against the decision of the High Court on the following grounds:

“1. The learned trial Judge erred in law and on the facts in failing to give judgment in favour of the plaintiff when the material facts alleged in the statement of claim have been established and there is no valid defence or answer to the said claim.

2. The learned trial Judge misdirected himself in law in holding that by the letter Exhibit C the Governor of the defendant bank has exercised some statutory discretionary power to decide how much of the plaintiff’s £26,659 in old Nigerian currency is payable to him in the (then) now Nigerian currency.

PARTICULARS OF MISDIRECTION

(i) There was no plea in the defence that the Governor of the defendant made any determination as alleged or at all.

(ii) The Governor of the defendant bank has not the statutory power which the learned trial Judge assumed that he has.

(iii) The learned trial Judge erred in law in holding that the provisions of the Decrees and Regulations to which he referred in his judgment precluded him from giving judgment in favour of the plaintiff when there is absolutely nothing in the said Decrees and Regulations capable of depriving the plaintiff of his remedy”.    Before us on appeal, learned counsel for the appellant, Chief F.R.A. Williams, argued the grounds of appeal together. At the forefront of his argument, it was Chief Williams’ contention that the plaintiff was entitled to succeed as the allegations in the statement of claim were either admitted in the statement of defence or not expressly denied. Counsel further contended that, in those circumstances, the plaintiff was relieved of the burden of establishing any facts.    Chief Williams next referred to the evidence adduced by the defence to the effect that the Government had directed that each depositor of old currency notes should be given £20 (N40) as ex-gratia payment and submitted that inasmuch as the direction was not pleaded, the evidence pertaining to it did not go to any issue raised in the pleadings.    The pith of Chief Williams’ argument was that as there has been no dispute that the plaintiff deposited old currency notes with the defendant and as the defendant has failed to exchange them for new notes, there was, in Chief Williams’ submission, no defence to the action.

Put in a nutshell, Mr. Odofin’s reply was that paragraph 2 of the statement of defence which contained the kernel of the defence to the action was worded in such a manner that the defendant could, in establishing its defence, pray in aid any laws governing exchange of currency. Counsel referred to the Central Bank (Currency Conversion) Decree, 1967 (hereinafter referred to as Decree No.51 of 1967) and contended that though it charged the defendant with the duty of exchanging old currency notes for new ones, the conversion exercise under that Decree had ceased long before the transaction giving rise to the present action. Counsel further contended that the Currency Conversion (South-Eastern and other States) Decree%

Other Citation: (1976) LCN/2355(SC)