IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 19TH DAY OF MARCH 1976
CHIEF J.J. ENWEZOR ................................................ APPELLANTS
CENTRAL BANK OF NIGERIA ................................................. RESPONDENTS
BEFORE: Alexander, C.J.N., Madarikan and Idigbe, JJ.S.C
The action arose out of a transaction between the parties which, according to the plaintiff, was for exchange of old Nigerian currency notes for new ones. The defence was that the notes deposited with the defendant by the plaintiff had ceased to be legal tender and had no value.
The trial Judge dismissed the action on the ground that it was misconceived. On appeal to the Supreme Court-
Where a plaintiff basis his claim on currency conversion or exchange, the onus is on him to establish that the conversion or exchange is authorised by law; and as there was no proof that the relevant law, Decree No. 11 of 1968, had been applied to the former East-Central State where the purported exchange or conversion transaction took place, the action was rightly dismissed.
Chief F.R.A. Williams (Miss Okwesa with him) for the Appellant.
A. Odofin for the Respondent.
Madarikan, J.S.C. (delivering the judgment of the Court)-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 suit 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 incorporate 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 (sic) 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.
I act for Chief J.J. Enwezor of Onitsha. My client states that on the 7th of 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 currency.
(3) I shall be glad if you will kindly let me know the reason 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
Private Mail Bag 12194: Cables: Cenbank:
18th October, 1971.
Chief F.R.A. Williams, 26, Moloney Street, P.O. Box 3426, Lagos.
I write with reference to your letter (Ref. FRAW/AO/CB/11/71 of 8th October, 1971 to 20 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 [had] 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. WILLIAM: No questions."
In a reserved judgment, the learned judge (Savage, J.) considered the Decree 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) new Nigerian currency.
PARTICULARS OF MISDIRECTION:
(1) 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.
(3) 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, 1968 (hereinafter referred to as Decree No. 11 of 1968) did not alter the position as the application of that Decree had not been extended to the former East-Central State by the direction of the Head of the Federal Military Government as required by section 2 of the Decree. Summing up his submission, counsel stressed that the transaction on which the action was based was not a currency conversion or exchange under the law; that the sum of £20(
N40) which the Federal Government promised to pay each depositor was in the nature of an ex-gratia award; and finally submitted that, in the circumstances, the action was rightly dismissed.
Chief Williams then sought and was granted an adjournment to enable him to find out whether there had been publication in the Gazette of any direction under section 2 of Decree No. 11 of 1968 which, as we have earlier indicated, was referred to and relied upon by Mr Odofin in his reply.
When hearing was resumed, Chief Williams indicated that he was unable to find such publication. He however argued that as the law permits the Head of the Federal Military Government to give a direction under section 2 of Decree No. 11 of 1968 "in such manner as he may think fit", the direction need not be in writing. Further, it was his submission that where such discretion has in fact been given, the law confers a discretion on the Governor of the Central Bank to publish it in the Gazette at the time the direction was given or at any time thereafter. Whilst still dwelling on this point, Chief Williams stressed that it was within the discretion of the Governor of the Central Bank to decide whether to publish the direction in the Gazette or not; and what was more, the time of publication was also within his discretion. Regarding onus of proof of the existence or non-existence of a direction under section 2, Chief Williams argued that:-
(1) the fact that it was the defendant/bank that invited the plaintiff to deposit old currency notes was sufficient to raise a presumption that a direction had been given under section 2;
(2) as it was within the peculiar knowledge of the defendant whether the Head of the Federal Military Government had given a direction under section 2 or not; and
(3) having regard to the state of the pleadings at the close of pleadings; the onus was on the defendant to establish that no direction was given under section 2 to extend the application of Decree No. 11 of 1968 to the former East-Central State.
Firstly, we propose to make some observations about the pleadings in this case. Paragraph.1 of the statement of claim (already reproduced in this judgment) is introductory in that it alleges that the plaintiff is a Nigerian citizen ordinarily resident at Onitsha in the former East-Central State; and that the defendant/bank is established and incorporated by and under the Central Bank of Nigeria Act. The allegations in paragraphs 2 and 3 are:-
(1) that the defendant/bank was charged with the duty of exchanging in the former East-Central State old Nigerian currency notes for new ones; and
(2) that the plaintiff deposited £26,659 (sic) old Nigerian currency notes with the defendant on or about the 7th of April, 1970 for purposes of exchange.
The statement of defence was just as brief as the statement of claim. Paragraph 1 admits that the defendant/bank is incorporated by and under the Central Bank of Nigeria Act but otherwise makes no further admission. Paragraphs 3 to 5 contain averments that the sum of £26,659 old Nigerian currency notes allegedly deposited by the plaintiff with the defendant had ceased to be legal tender; that they had no value; and the defendant contended therein that the plaintiff's action should be dismissed as he was not entitled to succeed. The bedrock of the defence appears to be the averments in paragraph 2 which, even at the risk of repetition, we shall reproduce again:-
"The defendant admits it was charged with the duty of exchanging in the East-Central State of 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."
Due to the paucity of facts alleged by each party in the pleadings, it does not appear to us that, at the close of pleadings, the issues between the parties were clearly and precisely defined. In settling pleadings, it is essential for counsel to always bear in mind that pleadings:-
"are not to be considered as constituting a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the court in its investigation of the truth between the litigants".
(Per Phillimore, J. in The Why Not (1868) L.R. 2A. & E. 265).
We shall now proceed to consider the extensive arguments skilfully canvassed before us in this appeal by counsel on both sides from whom we have derived considerable assistance. Our consideration of the appeal, in so far as the pleadings are concerned, must necessarily be on the basis that each party is assumed to have put forward the best case he has in the best way he can in his pleading.
Where a plaintiff bases his claim on currency conversion or exchange, the onus is on him to establish that the conversion or exchange is authorised by law; and in this particular case, the onus is on the plaintiff to prove that the conversion or exchange is authorised by Decree No. 11 of 1968 on which he relies.
The Central Bank (Currency Conversion) Decree 1967 (hereinafter referred to as Decree No. 51 of 1967) came into operation on the 30th of December, 1967. It provides that when an existing currency is altered, the conversion date shall be fixed and all currency affected shall cease to be legal tender but shall be replaced by new currency to the equivalent value if presented within the dates specified in section 1(1)(a) and (b). Upon the alteration of the currency which was then in circulation, the 30th of December, 1967 was duly fixed as the conversion date (see the Currency Conversion Date Notice 1967).
The currency conversion under Decree No. 51 of 1967 had long ceased before the transaction which formed the basis of the present action. We are therefore not surprised that the parties are not relying on Decree No. 51 of 1967.
It is clear from the arguments of counsel on both sides that the relevant law applicable to the facts of this case is contained in the Currency Conversion (South-Eastern and Other States) Decree 1968 (hereinafter referred to as Decree No. 11 of 1968). We propose to start off our consideration of the arguments by examining whether, at all times material to this case, Decree No. 11 of 1968 was applicable to the former East-Central State. Section 2 of the Decree provides that the Decree:-
"shall supply to all States of the Federation, so however that nothing in this Decree shall extend its application to .................... East-Central State .......................... until a direction of the Head of the Federal Military Government given in such manner as he may think fit, and in the discretion of the Governor of the Central Bank of Nigeria published in the Gazette at any time any such direction is given, or at any time thereafter."
There was no evidence that a direction had either been given under section 2 or that it had been given and published in the Gazette. We must therefore conclude that it has not been established by evidence that Decree No. 11 of 1968 was applicable to the former East-Central State. We have carefully considered the nature of the claim before the court, and the pleadings. We are in no doubt that the onus was on the plaintiff, who was seeking to rely on Decree No. 11 of 1968 as authority for exchange of old currency at Onitsha, to prove that the Decree was applicable to the former East-Central State. This he has failed to do. His claim was therefore rightly dismissed by the lower court.
Although it is not necessary for us to base our decision on other points raised in this appeal, we feel that it is necessary to point out that the mischief aimed at by the stringent provisions of Decree No. 11 of 1968-as amended by Decree No. 49 of 1968-and the object of the Decree which was the surrender of all former currency notes which had ceased to be legal tender in exchange (but only where so authorised by law) for new currency notes, are brought out clearly under section 1B which creates the following offences:-
(a) It shall be an offence for any person--to have in his possession in Nigeria or under his apparent control, any note issued which, immediately before the conversion date was in circulation in Nigeria as legitimate currency of Nigeria (in this section hereafter referred to as "former currency"), after the time or extended time, as the case may be, fixed under this Decree for its conversion in the area where the offender at the time is, elapsed; or
(b) by any means to bring into or take out of Nigeria any former currency or any new currency issued pursuant to the Central Bank (Currency Conversion) Decree 1967; or
(c) by any means or to move or cause to be moved from a part of Nigeria where currency conversion under this Decree has not been commenced or as the case may be, completed, any former currency with intent to procure its conversion under this Decree in a part of Nigeria where the time or extended time, as the case may be, for such conversion has elapsed; or
(d) by any means to move or cause to be moved from a part of Nigeria where the time or extended time for conversion of former currency under this Decree has elapsed, into any part of Nigeria where former currency has not been converted, or as the case may be, action to convert has not commenced, or if commenced, has not been completed, under this Decree; or
(e) in any other case in circumstances calculated or likely to prejudice the economic stability or welfare of Nigeria, to tender for conversion or convert or attempt to convert any former currency:"
For the foregoing reasons, this appeal must fail and it is hereby dismissed with
N168 costs to the respondent.