Mrs Margaret Ifop V. Central Bank Of Nigeria (1974)

LawGlobal-Hub Lead Judgment Report

ELIAS, C.J.N.

This appeal against the judgment of the Ikeja High Court delivered on September 27, 1971 raises an important question of pleading. Therein, Dosunmu J. nonsuited the plaintiff who claimed to have made a series of payments totaling 16,350 Pounds in 1968 to the defendant in old Nigerian currency notes for exchange into new Nigerian currency notes and which the defendant had failed to exchange for the plaintiff.

The matter arose in the following manner. The plaintiff’s writ of summons reads as follows:

“The Plaintiff’s claim against the Defendant is for the sum of 16,350 Pounds being money paid in 1968 by the Plaintiff to the Defendant in old Nigerian Currency notes to be exchanged by the defendants 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.”

In her Statement of Claim, the plaintiff averred, so far as relevant, as follows:

1. The Plaintiff is a Nigerian Citizen ordinarily resident in Ogoja Province of the South Eastern 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 duly charged inter alia with the following duties in 1968:

(a) To issue Currency notes in the Ogoja Province of the South Eastern State of Nigeria; and

(b) To exchange old Nigerian Currency notes presented at places designated by the Governor of the defendant Bank for new Nigerian currency notes circulating at the present time in all parts of the country.

3. The plaintiff made eleven payments to the proper officers or representatives of the defendant Bank at the appropriate place and within the time prescribed of sums of money totaling 16,355 Pounds in old Nigerian currency notes for the purpose of receiving the equivalent amount in new Nigerian currency notes.
4. Soon after the payments pleaded in paragraph 3 hereof the defendant Bank withheld payment to the Plaintiff of the equivalent amount in new Nigerian currency pending police investigation into a report that one Mr. Esuabana had demanded and was given 1,000 Pounds as bribe by the Plaintiff.
5. At the end of their investigation the Police could not find enough evidence to prosecute Mr. Esuabana for receiving bribe.
6. Notwithstanding the conclusion of Police investigation the defendants refused to pay the sum of 16,355 Pounds to the plaintiff.
7. The defendants have purported to confiscate the said sum.

In its Statement of Defence, the defendant, so far as relevant, averred as follows:

3. The plaintiff had stated to the defendant’s servants and agents, that she gave 1,000 Pounds as bribe to one Mr. Esuabana, defendant’s servant, on demand by him to effect the change of money into the new Nigerian Currency Notes.
4. Further the plaintiff had stated that the 1,000 aforementioned was part of the total money given her to exchange into new Nigerian Currency notes.
5. The plaintiff also stated to the defendant’s servants and agents that the sum of money claimed by her in this action was owned in separate aliquot portions by different persons, each not being herself, and an aliquot part owned by herself.
6. The various part owners of the money in dispute in this action are not parties to this action as laid before the Court in particular the sum claimed being a summation in gross of the separate portions presented for exchange for persons not the plaintiff.
7. In addition a number of other deposits each of 100 Pounds and above made contemporaneously with the Federal Exchange Teams of the Defendants in the same area in dispute in this action were selected for investigation involving an additional 3,271 depositors which investigation must be carried out pari passu with the plaintiff’s case.
8. The magnitudinous and detailed exercise involved as aforementioned includes the subject of the plaintiff’s claim and has not been finalised.
9. Consequently until the conclusion of the exchange exercise the defendant cannot decide whether the money claimed by the plaintiff or any part thereof should be duly and rightly paid to the plaintiff by the defendant.

At the close of pleadings, Counsel for the plaintiff, on April 24, 1971, moved the Court for an order striking out the Statement of Defence on the ground that it disclosed no defence to the action and entering judgment for the plaintiff as per her writ. On April 27, 1971, the defendant prayed the Court for an order enabling the defendant to amend the Statement of Defence by adding thereto:

“In the alternative the defendant denies that the sum of money claimed by the plaintiff as owned by the plaintiff nor is it due and payable by the defendant to the plaintiff. And the defendant puts the plaintiff to the strictest proof thereof.”

In a considered ruling delivered on June 7, 1971, Dosunmu J. granted leave to the defendant to amend its Statement of Defence so as to include the new paragraph sought to be added. With regard to the plaintiff’s motion that the Statement of Defence be struck out, in that it disclosed no defence to the action, Counsel for the plaintiff argued that, apart from the admissions contained in paragraphs 1 and 2 of the Statement of Defence, there is nowhere else where the specific allegations made in paragraphs 3 and 5 of the Statement of Claim were specifically denied or refused to be admitted. The objection of Counsel for the plaintiff to the new paragraph 12 of the amended Statement of Defence was that it was a general traverse, but the learned trial judge observed as follows:

“In my view the new paragraph 12 of the amended defence is not a general traverse as we know it in practice. I do not think that it is even a general denial as i read it over again it seems to me to deal solely with the question of title or right to the money in question as raised in paragraph 5 of the statement of defence. It does not purport to traverse all the allegations in the statement of claim as if they were set out seratim and specifically traversed. In my opinion it only reinforces the plea that not only is the plaintiff owner of certain part of the money in question, but in the alternative she is not the owner of the money at all.”

The learned trial judge then concluded:

“Reading the defence as a whole I cannot say it is an admission of the plaintiff’s claim especially with regards to paragraphs 5 and 12 of the statement of defence vis-a-vis paragraph 3 of the claim. But I have no doubt in my mind that the defence as a whole is only a plausibly good one, and the Court ought not to strike it out in that event.”

Thus the learned trial judge rejected the submission of the learned Counsel for the plaintiff that the Statement of Defence is an implied admission of the plaintiff’s claim under Order 18 rule 13 of the English Supreme Court Rules for which he cited Symonds v. Jenkins 34 L.T. 277. Having thus disposed of the two motions before him, the learned trial judge called upon the parties to commence proceedings in the case itself. Chief Williams for the plaintiffs said he did not wish to call any evidence, while Chief Okorodudu for the defendant called evidence. In his address Chief Okorodudu said inter alia as follows:

“The Plaintiff gave no evidence therefore nothing to resolve the facts in Statement of Claim and Statement of Defence where conflicting Defence proved that the plaintiff admitted that she brought eleven fictitious names and claim that they are owners of the money she is claiming. This has not been denied in evidence in Court. Evidence led to show that only 5,000 Pounds can be exchanged for only one person. It becomes a part of the plaintiff’s case to show that she was entitled to a receipt of more than 500 Pounds.”

Refers to paragraph 49 Statement of Claim to show the falsity of the plaintiff’s claim. She admitted some element of corruption in the exchange transaction. (See paragraph 9 of Statement of Claim again). In the light of the evidence, the plaintiff can only get for himself the sum of 500 Pounds.

“No evidence that the Plaintiff deposited 16,350 Pounds.”

The learned trial judge, after reviewing the pleadings on both sides and the evidence adduced by the defendant, found as follows:

“I pause here to observe that it is, indeed, correct that this averment was now here denied specifically in the statement of defence; and I am prepared to accept the submission that it is deemed to be admitted. But what I think the paragraph means is no more than what it says that the plaintiff made eleven payments.

This is far from saying that the defendant admitted that the plaintiff made eleven payments all of her own money.”

Accordingly, the learned trial judge came to the following conclusions:

“It seems to me, therefore, that the plea that the various part-owners of the money in dispute are not parties to this action is a good one. There was no evidence to show that the plaintiff had any authority to demand the money back on behalf of all of them. She did not affect to do so.”

Thereafter, the learned counsel for the plaintiff urged the court to reconsider its previous ruling that, on the pleadings, the matter should not be regarded as concluded in favour of the plaintiff since “all the allegations of substance in the statement of claim is deemed to be admitted.” The learned trial judge then examined very closely a number of decisions and came to the following further conclusion:

“As I said earlier there is no averment meeting this point in the defence. In my humble opinion the effect of paragraph 6 of the statement of defence is to say that it is true you made eleven payments but they are not all your money that you paid to us but the money of other persons. And since the payment of money by the plaintiff to the defendant will not entitle her to its return whether it is her money or money jointly owned with others, the matter is not concluded by admission of the payments only”

The present appeal has been brought by the appellant against this decision on the following four grounds:

1. The learned trial judge erred in law in failing to enter judgment for the Plaintiff when the material facts in the Statement of Claim have not been denied in the Statement of Defence..
2. The learned trial judge erred in Law in failing to observe that on the pleadings the Plaintiff is entitled to get Judgment.
3. The learned trial judge erred in Law in holding that the Plaintiff cannot succeed in this action without joining other persons who are not party to the action.
4. The learned trial judge erred in Law in failing to observe that at all material times the Plaintiff was the owner of the money and that owner ship of money is inseparable from possession thereof.

In arguing the appeal, Chief Williams, learned counsel for the appellants, submitted that there were really the following two main points for argument: (1) On the pleadings the learned judge should have entered judgment for the plaintiffs: (this would cover grounds 1 and 2); and (2) In any case, on the evidence and the issues raised on the pleadings (on the merits), the plaintiff ought to have succeeded. It was his contention that, according to the established rules of pleadings, the defendant must specifically deny any averment that he does not admit. As a corollary to this, the learned counsel submitted that a person in possession of money which he has collected from different people is entitled to the money against the whole world except those who gave him the money and; also that, if a person on behalf of others takes money to a third person and delivers it to such third person in his own name, he is entitled to have the money back.

It was his view that, since the averment of the plaintiff in paragraph 3 of his Statement of Claim has not be specifically denied by the defendant in paragraph 5 and of his Statement of Defence, the plaintiff’s averment must be taken as admitted he contended, therefore, that the learned trial judge was wrong in putting the onus on the defence to prove paragraphs 5 and 6 of the Statement of Defence. Learned counsel cited the following passage from Bullen Leake’s “Precedents of Pleadings”, 11th Edition, page 664, in support of his contention:

“The primary object of the Defence is, as we have seen, to inform the plaintiff precisely how much of the Statement of Claim the defendant admits and how much he denies. To secure this end, it is provided by rule 13 of Ord. 19 that: “Every allegation of fact in any pleading, not being a petition or a summons, if not denied specifically, or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, by inquisition.”

We think that this passage shows that, even if it were necessary to deny paragraph 3 of the Statement of Claim, paragraphs 5, 6 and 12 of the Statement of Defence might be taken as a denial by “necessary implication”, if not expressly. Learned counsel also referred us to the White Book (1973) at page 290, paragraphs 18/13/3 concerning the issue of implied admissions, contending that the defendant’s failure specifically to deny the averment in paragraph 3 of the Statement of Claim must be deemed to be an implied admission of that averment. We do not agree with these submissions for the reasons, which we shall be stating anon. On the second issue suggested by him, namely the argument on the merits, learned counsel submitted that, whatever the rules are as regards other chattels or goods, in the case of money, possession and ownership are inseparable he cited Sinclair v. Brougham (1914) A.C. 398, at page 418 and Wookey v. Pole & Ors. 106 English Reports 839, at page 841, as authority for the proposition that the person who is found to be in possession of a bill of exchange is deemed to be the owner of the money or money’s worth.

That this second submission of appellant’s counsel should not apply in the present case was well brought out in the submission of Mr. Egbe, learned counsel for the respondent, who contended that Wookey v. Pole & Ors. (1814-1823) All E.R. 553 at page 555 rather supports the view that possession may be inseparable from ownership only in the case of an innocent possessor, and not in the case of a possessor in respect of whom fraud had been established. He cited, in particular, the following passage of the same case, at page 555:

“We also know that bills of exchange are as frequently sold as they are delivered in payment. It is the business of bill-brokers to negotiate these sales. The great point is that they are not like goods taken on the credit of the person from whom you receive them, but on that of government. The receiver never inquires from whom they come further than to satisfy himself that they are genuine bills. Indeed, when they are in blank, he has no means of ascertaining from which they come. How could the defendants in this case find out that this bill has ever belonged to the plaintiff”

As regards the first submission by learned counsel for the appellant, Mr. Egbe pointed out that the rule of practice also requires that the plaintiff should either have produced a letter giving her authority to reclaim the value of the money in the new currency or at least the receipts which she stated she had obtained from the eight persons whom she produced before the defendant’s official investigators as the owners of the moneys she had paid in eleven installments.

We think that the contention of the learned counsel for the appellant that the failure of the defendant specifically to deny the averment in paragraph 3 of the Statement of Claim amounts to an implied admission on the pan of the defendant is only a “plausibly good one”.

Thus in Grocott v. Lovatt & A nor. (1916) W.N.317 where, in an action for libel, paragraph 3 of Statement of Claim alleged that “on or about May 25, 1915, the defendants falsely and maliciously wrote, printed and published” of the plaintiff a handbill containing the words complained of, while paragraph 1 of the Statement of Defence was that “the defendants deny the facts alleged in paragraph 3 of the Statement of Claim”, the learned trial Judge (Avery 1.) held that paragraph 1 of the defence was not a denial of the publication of the, handbill. On appeal, the Court of Appeal ordered a new trial, holding that, although the defence was pleaded in a loose and irregular form, Avery J. was wrong in treating the case as one in which the defendants had admitted publication.

The rule of pleading only requires the defendant to deny specifically what is clearly stated by the plaintiff in the Statement of Claim. Now, what does paragraph 3 of the Statement of Claim really aver The paragraph, which it may be useful to repeat here, reads as follows:

“The plaintiff made eleven payments to the proper officers or representatives of the defendant Bank at the appropriate place and within the time prescribed of sums of money totaling 16,350 Pounds in old Nigerian currency notes for the purpose of receiving the equivalent amount in new Nigerian currency notes.”

A close look at the paragraph will show clearly that it contains only an averment on the pan of the plaintiff that she paid a total of 16,350 Pounds on different dates for the exchange of old for new Nigerian currency notes. It does not assert, and cannot be read as asserting, that the plaintiff was the owner of any of the several moneys paid. At most, the paragraph only claims that the plaintiff was the payer of the moneys, not that she was their owner. So that, when the defendant tried to deal with this point in its Statement of Defence in paragraphs 5 and 6, it is unnecessary for the defendant specifically to deny that the plaintiff was owner, even when the defendant must be taken to have impliedly admitted, in accordance with the rules of pleading, that the several payments were made to it by the plaintiff.

It is, therefore, absolutely unnecessary for the defendant to make a specific denial in respect of ownership of moneys, which was never averred by the plaintiff in her Statement of Claim. What the defendant admitted was the fact of payment, not any implied suggestion that plaintiff was owner, a point nowhere made by the plaintiff herself in her pleadings. Only in the course of her counsel’s address did the plaintiff make the claim of ownership for the first time and, as there was nothing in the pleading on this point, such an assertion goes to no issue; this is all the more so because the plaintiff did not give any evidence at all.

We are, accordingly, of the opinion that the defendant has admitted having received the several payments averred in paragraph 3 of the Statement of Claim, but that the defendant has not admitted, either expressly or by necessary implication, that the plaintiff was the owner of any of the payments. We are also of the view that, in the absence of authority from the eight persons she alleged to have handed for the several moneys, which she later paid to the defendant, the defendant was right to have refused to return any part of the 16,350 Pounds to the plaintiff. It is clear that the payer of money into a bank is not necessarily the owner.

A person in possession of money such as currency notes may be either its owner or a bailee of it. Where, as in this case, he or she is a bailee of it, although she has the legal right to possess it, she has only the right to protect such possession as against third parties but is not the true owner. The true owner is the bailor of the currency notes, who has parted with them only for the limited purpose of exchange through the defendant’s bank.

Even if it is granted that, as in the present case, the plaintiff pays into the bank several old currency notes, the money in the hands of the defendant is impressed with an implied trust in favour of the eight persons on whose behalf the plaintiff alleged she had paid them in; and nothing short of clear authority from these several persons should entitle the defendant to repay not only the old currency notes handed in but also the currency notes for which they were intended for the purpose of exchange. It may be of some importance to note that what the plaintiff was really reclaiming was not the old currency notes in specie, but new currency notes the property of the Central Bank of Nigeria which should be given absolute discretion in deciding whether or not and to whom a repayment should be made. It seems to us that the transaction is not a simple, straightforward case of paying money and attempting to reclaim it in whole or in part without any exchange element.

We would also like to point out that paragraph 12 of the Statement of Defence makes it abundantly clear that the defendant at no time intended to accept the plaintiff as owner of the several currency notes paid to it, and that there has never been any implied admission on the part of the defendant that the plaintiff was entitled to reclaim the money.

It does not seem to us right to omit to mention a matter of some importance in this case. There can be no doubt that the pleadings of the defendant were inexpertly drafted, thus leaving room for reasonable doubt as to whether or not there has been a specific denial of important averments in the statement of claim, especially in respect of the question whether or not ownership in the money was also admitted along with the fact of payment, by the plaintiff.

We think that, even though the statement of claim does not contain any specific averment as to ownership of the moneys paid to the defendants so that the latter should have been hard put to it to make equally specific denial, the drafting of paragraphs 5, 6 10 and 12 could have been clearer and more exactly worded so as to bring out the principal issue in controversy, namely, the ownership of the old Nigerian currency notes paid into the bank in exchange for new Nigerian currency notes. It was only because the plaintiff could not establish his personal ownership of the money that the defendant, rightly in our view, refused to pay her unless and until she produced the authority of the eight persons on whose behalf she said she had paid in the several moneys. It is our view that such an important point should have been made specifically part of the Statement of Defence. Such an omission, however, is, as we hold, not fatal to the defendant’s case, though it would certainly have strengthened it.

Another point of even less importance, however, is that, instead of making a great play with the fact that there was a definite regulation limiting acceptable deposits into the bank to 5, 000 Pounds per person, counsel for the defendant only made a passing reference to it in the course of his final address before the trial court. It is little wonder that the learned trial Judge made only an equally casual reference to this point in his judgment. To counter the argument that was canvassed at one stage during the proceedings that the plaintiff was at least entitled to an aliquot pan of the eleven installments, which might be deemed to belong to her personally, a submission on the part of counsel for the defence that such an aliquot part would in any case have been greater in amount that the maximum of 5,000 Pounds allowed to each person would have served as an effective answer to defeat any claim by the plaintiff on that score.

We have, however, held that there was no specific averment as to the ownership of the moneys in question in the Statement of Claim, to which the Statement of Defence is required to make a specific denial in accordance with the rules of pleading. In the result, for the various reasons we have given, we uphold the judgment of Dosunmu J. in suit No. LD/679/70 delivered at the Ikeja High Court on September 27, 1971, including the order as to costs. We award to the appellant costs assessed at N72 in this court.

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Other Citation: (1974) LCN/1792(SC)