Does the Supreme Court Have Original Jurisdiction Over Naira Deadline Case?
The epic battle over the retention or ban of old Naira currency notes in the 200, 500 and 1,000 denominations shifted to the Supreme Court last week, when the Attorneys-General of three States, Kaduna, Kogi and Zamfara approached the Apex Court on the issue of the deadline set by the Central Bank of Nigeria (CBN) for them to cease to be legal tender, by virtue of the directive of the President for same. The Attorney-General of the Federation promptly joined the fray, by challenging the jurisdiction of the Apex Court to entertain the case. Although, the Supreme Court in a considered ruling, issued an interim order restraining the Federal Government either by itself or acting through the CBN, Commercial Banks and others from banning the use of the old Naira notes on February 10, 2023 pending the hearing of the motion on notice adjourned till tomorrow, Femi Falana, SAN, Sylvester Udemezue, Sam Kargbo, SAN and Inibehe Effiong in this Special Edition, share their different views on the exercise of the original jurisdiction of the Supreme Court in this matter. This is Crossfire!
Currency Redesign Case: Apex Court Has Original Jurisdiction
–Femi Falana, SAN
In 1984, the Buhari military junta changed the colour of the Naira. Although the population of the country at the material time was 81 million, bank customers and other citizens were given only two weeks to deposit old notes and replace them with new ones. The maximum amount that was allowed to be withdrawn at the material time, was N5,000. The poor implementation of the policy destroyed businesses and caused untold hardships, including loss of lives in many parts of the country. The policy was not challenged in any court of law, because the country was under a neo-fascist military junta.
Having not studied the shoddy implementation of the reckless 1984 currency policy, the CBN Governor, Mr Godwin Emefiele, had on October 26, 2022, announced the decision of the Central Bank to redesign, produce and circulate new series of the N200, N500, and N1,000 denominations. Mr Emefiele had said that the move would help to manage money supply, tackle currency counterfeiting and terrorism, among others. The CBN gave a period of about 100 days for bank customers in a country of 223 million people to deposit the old Naira notes, and collect the redesigned notes.
However, the failure of the banks to replace the old Naira notes with new ones, has unleashed untold hardship on the masses. The escapist explanation is that some fifth columnists are responsible for the unprecedented scarcity of the Naira, fuel scarcity and skyrocketing rise in fuel prices on the eve of the 2023 general elections. Sporadic peaceful protests have erupted throughout the country, as the fuel and currency scarcity is inexplicable and unacceptable.
Thus, the Federal Government has shirked its obligation to guarantee the security and welfare of the Nigerian people, as provided under Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
President Buhari has personally witnessed the anger of the people in Katsina and Kano State, where many youths stoned the Presidential convoy. In the midst of the mass anger, the President gave assurance that the Federal Government would ensure that citizens were unharmed in their businesses, and no disruption is caused to the entire supply chain arising from the currency swap due to end shortly. But, contrary to the assurance, citizens have been harmed already, while their businesses have been disrupted. To prevent physical attack on management staff and employees by aggrieved customers, some Banks have suspended operations until further notice.
Presidential Approval for Redesigned Currency Notes
When the Minister of Finance, Mrs Zainab Ahmed claimed that she was not consulted before the announcement of the policy, Mr Emefiele said that the Board of the Central Bank had sought and obtained the approval of the President in line, with Section 20 of the Central Bank Act. The approval was confirmed by President Buhari, who stated that the policy was designed to stop the monetisation of the 2023 elections. The people of Nigeria hailed the policy, but demanded for adequate time to replace the old currency notes with new ones.
Even though the CBN knew that enough new currency notes have not been printed, it
directed millions of customers to deposit their old notes in the Banks and collect the new notes from the Automatic Teller Machine (ATM). But, the ATMs have no new notes to dispense to customers. Hence, the long queues in the banks. The situation is worse in the rural areas, where majority of people have no bank accounts. The crisis has engendered mass anger in all the States of the Federation, and Federal Capital Territory. Consequently, some bank employees have been attacked, as Bank buildings have been damaged by angry customers.
The deadline for currency swap, was January 31. It was later extended to February 10. And, during his meeting with APC Governors last week, the President gave a 7-day extension within which to resolve the twin crises of currency and fuel scarcity. The intervention of the President is in line with Section 20(3) of the Central Bank Act which provides that “Notwithstanding Sub-sections (1) and (2) of this section, the Bank shall have power, if directed to do so by the President and after giving reasonable notice in that behalf, to call in any of its notes or coins on payment of the face value thereof and any note or coin with respect to which a notice has been given under this Sub-section, shall, on the expiration of the notice, cease to be legal tender, but, subject to section 22 of this Act, shall be redeemed by the Bank upon demand.”
Furthermore, in exercise of his power under the Constitution, the President summoned a meeting of the Council of State for advice on the resolution of the currency scarcity crisis. The Council advised the President to direct the CBN to print more money, and if it is unable to do so, to allow the use of the old and new notes to reduce the suffering of citizens. The Governors of the 36 States of the Federation are members of the Council of State. The President has equally held a meeting with the heads of the anti-graft agencies and two Governors, that is, Governor Aminu Tambuwal, the Chairman of the Nigeria Governors Forum and Governor Abubakar Bagudu the chairman of the APC Governors Forum.
Dispute Between States and Federal Government
Completely dissatisfied with the denial of access to accounts of public institutions, corporate bodies and individual citizens the Governments of Kaduna, Kogi and Zamfara States dragged the Federal Government over the constitutional validity of the Naira redesign policy. Not a few Lawyers have questioned the jurisdiction of the Supreme Court to hear and determine the case of the Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation, on the ground that there is no dispute between the Federal Government and the Plaintiffs. As far as they are concerned, the dispute is between the Plaintiffs and the Central Bank of Nigeria.
The Lawyers have referred to the case of Attorney-General of Lagos State v Attorney-General of the Federation (2014) 9 NWLR (Pt. 1412) 217 which pertained to the operation of the Federal Inland Revenue Service (FIRS) against an agency of Lagos State Government, which the Federal Government contended accrued to it. With respect, the case of the Attorney-General of Lagos State v Attorney-General of the Federation (Supra), is completely irrelevant to the facts of this case. In that case, the President was not involved in the operations of the statutory functions of the FIRS. But, in this case, the President approved the issuance of the redesigned Naira notes. He also approved the deadline for depositing the old currency notes, as well as the restriction of cash withdrawal to facilitate the demonetisation of the 2023 general elections.
It is curious to note that Lawyers have not cited the case of Attorney-General of Lagos State v Attorney-General of the Federation (2005) 2 WRN 1 which pertained to the directive of President Olusegun Obasanjo to the Minister of Finance to seize the statutory allocations of the Lagos State Local Government Councils over the creation of 57 additional local governments. Even though it was found that the establishment of Local Government Councils was inchoate, the Supreme Court declared the seizure of the funds belonging to the Local Government Councils illegal and unconstitutional.
It is pertinent to draw attention to Section 39 of the CBN Act, which provides that the CBN may act as banker to States and Local Governments and to funds, institutions or corporations established by Federal, State and Local Governments, while Section 40 thereof stipulates that the Bank may act generally as agent for the Federal Government, State Governments or Local Governments. It is the case of the Plaintiffs that new currency policy of the Defendant, has had deleterious effect on the operations of their accounts in the CBN and other commercial banks in the country.
It is therefore submitted that, the main dispute between the Federal Government and the affected State Governments, is that the issuance of redesigned Naira notes by the Central Bank with the approval of the President, and the deadline approved by the President for the currency swap, as well as insufficiency of the new currency notes have created economic crisis in Kaduna, Kogi and Zamfara State. Furthermore, the restriction of the amount of cash withdrawals from the bank accounts of the State Governments approved by the President, has also constituted a dispute between the Federal Government and the Plaintiffs.
In view of the foregoing, it is grossly misleading to contend that the Supreme Court lacks the jurisdictional competence to hear and determine the case of Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation. In other words, to the extent that the President gave approval for the issuance of the new currency notes and approval for the extension of the deadline for the deadline of February 10, 2023 for the currency swap, as well as approval for the restriction of cash withdrawals, it is indisputable that the dispute is completely outside the jurisdiction of the Federal High Court.
Printing of Redesigned Naira Notes Without Appropriation
It was recently reported that Mrs Aisha Ahmad, Deputy Governor, of the Financial System Stability Directorate of the Apex Bank, who represented the CBN Governor before a House of Representatives Committee, disclosed that N500 million worth of new currency notes had been ordered from the mint. She however, failed to answer questions on how much was expended to produce the same. The National Assembly members ought to have drawn her attention to Section 59 of the Constitution, which requires the President to submit a money bill for appropriation of the fund for printing the redesigned currency notes.
In Dr Uzor Ikebudu v Central Bank of Nigeria (Suit No FHC/L/CS/343/2013), the Federal High Court declared that the refusal to submit its budget for appropriation by the National Assembly, was illegal and unconstitutional. The court proceeded to grant a perpetual injunction, restraining the Central Bank from failing or refusing to submit its budget to the National Assembly for appropriation on a yearly basis. But, in defiance of the judgement of the Federal High Court and in utter breach of the Constitution, the CBN has been spending trillions of Naira to print currency notes without appropriation by the National Assembly.
Ex Parte Order Granted by the Supreme Court
By virtue of Section 22 of the CBNAct which provides that the CBN shall redeem old currency notes, I had said that the deadline of February 10 given by the CBN for the currency swap was not sacrosanct. When Mr Emefiele appeared before the House of Representatives ad hoc Committee looking into the implementation of the policy on January 31, he said commercial banks must accept the old Naira notes even after the expiration of the 10 February deadline. He has since turned round to state that, only the CBN could redeem the old currency notes after the deadline.
The Supreme Court was therefore, on a strong legal wicket when it granted the ex parte order to halt the deadline of February 10 and fixed the hearing of the substantive suit to February 15. In other words, having been seized of the matter, the Apex Court acted under its Rules in intervening by granting the ex parte order to preserve the res. The judicial intervention is justified by the decision of the Apex Court to hear the case with dispatch, in spite of the several time bound appeals which are currently being attended to by their Lordships.
Why CBN Must Comply With the Ex Parte Order Granted by the Supreme Court
Apparently, with the support of some Lawyers, the Authorities of the CBN said that they would not comply with the ex parte order issued by the Supreme Court, on the ground that the CBN is not a party to the case of Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation (Suit No: SC/CV/162/2023). It is pertinent to remind the Management of the CBN of the case of Nkwo Augustine Eddiego v Board of Central Bank of Nigeria (Suit No: HCIK/38/2022), where the Delta State High Court granted an ex parte order, which restrained the Defendants from preventing the Governor of the CBN from seeking political office pending the hearing and determination of the motion on notice in the case.
Even though Mr Emefiele was not a party to the suit, he took advantage of the ex parte order to join the APC to contest the presidential primary of the APC before he was stopped by President Buhari. Similarly, in the case of Incorporated Trustees of the Forum for Accountability and Good Leadership v Attorney-General of the Federation & Ors. (Suit No: FCT/HC/GAR/CV/41/2022) the High Court of the Federal Capital Territory granted an injunction, restraining the State Security Services from arresting, investigating and prosecuting Mr Emefiele for terrorism financing. Although, he was not a party to the suit Mr Emefiele has not been arrested by the State Security Services on the basis of the court order.
Therefore, it is height of arrogance of power for Mr Emefiele to treat the ex parte of the Supreme Court with provocative contempt. In view of the looming anarchy in the country, we are compelled to draw the attention of the Central Bank Management of the rule of law to the case of Attorney-General of Lagos State v Attorney-General of the Federation (2005) 2 WRN 1 at 109 where Tobi JSC of blessed memory cautioned all authorities and persons in Nigeria thus:
“In a society where the rule of law prevails, self-help is not available to the executive or any arm of government. In view of the fact that such a conduct could breed anarchy and totalitarianism, and since anarchy and totalitarianism are antitheses to democracy, courts operating the rule of law, the life-blood of democracy, are under a constitutional duty to stand against such action.
“The courts are available to accommodate all sorts of grievances that are justiciable in law, and Section 6 of the Constitution gives the courts power to adjudicate on matters between two or more competing parties. In our democracy all the governments of this country, as well as organisations and individuals must kowtow to the due process of the law, and this they can vindicate by resorting to the courts for redress in the event of any grievance.”
It is public knowledge that the Federal Government has filed a preliminary objection challenging the jurisdiction of the Supreme Court, to hear and determine the case of the Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation (Supra). In the interim, the Federal Government of Nigeria and its agencies, including the CBN, are bound by the valid and subsisting ex parte order of the Supreme Court of Nigeria until it is set aside by the same court. The alternative is to compound the ongoing anarchy and chaos in the land.
The currency and fuel crises constitute unprecedented challenge to the economic survival of ordinary people, that may threaten the 2023 elections which provide an opportunity for the people to choose a party considered to be representative of their aspirations. The officials of the CBN and other banks involved in hoarding fuel and selling the new currency notes, should be prosecuted to serve as a deterrent to other economic saboteurs. However, since it is now clear that enough Naira notes have not been printed, the CBN should allow the old and new Naira notes to be legal tender in Nigeria. This suggestion is in line with Section 22 of the CBN Act, which permits the replacement of old currency notes with new ones after the deadline fixed by the CBN has expired.
Happily, the Supreme Court has decided to hear the case of the Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation (Supra). It is hoped that the Apex Court will clarify the issues raised by the Plaintiffs, and the preliminary objection of the Defendant. Whatever may be the outcome of the judgement of the court, the members of the ruling class should not be allowed to truncate the fragile democratic process. Therefore, all hands must be on deck to prevent the desperate enemies of democracy from unleashing anarchy and chaos on the people of Nigeria.
Finally, because of the poor implementation of the Naira design policy, the forthcoming elections may witness the worst case of vote-buying in the history of the country. Having completely starved people of their legitimate fund in the banks, the politicians who are alleged to have cornered the bulk of the money collected by the banks from the CBN, will buy votes with as little as N500 or less. And, that will be a tragic consequence of a good policy that has been poorly executed.
Femi Falana, SAN, Human Rights Lawyer; Recipient of the Bernard Simmons Award of the International Bar Association