The Illegality and Burden of Enforcement of the 8th February 2023 Supreme Court Interim Order Suspending the Implementation of the Deadline of the Circulation of the Old Nigerian Currency Notes.
By Manfred Ekpe, Esq
Since Nigeria’s President Muhammadu Buhari decided to oversee the reformation of the electoral system for entrenchment of democracy in the country to ensure that credible and popular candidates emerge elected as against “selection electoral system” that has bedeviled our political system for over two decades with its attendant bad rule, there has been lots of fights by a powerful and institutionalized corruption syndicate to thwart the effort. It is multi- headed corruption fighting back.
THE BACKGROUND FACT:
Flowing from the above introductory background, the first fight was the heavy mobilization of the federal legislators elected on the platform of the ruling All Progressives Congress (APC) to kill in the bud the earliest step to a free and fair election, which was mobilization in the National Assembly against the enactment of the new Electoral Act that allows deployment of anti- rigging technology for elections Thanks to the legislators on the platform of the opposition Peoples Democratic Party (PDP) and other opposition political parties who mobilized against that sabotage and saw the 2022 Electoral Bill passed.
Secondly, upon the announcement of the Naira redesign, the migration from cash to cashless economy, and other strict monetary policies aimed against, inter alia, vote buying, the very powerful corruption syndicate tried to use the Senate and House of Representatives to kill the policy.
The Senate had issued a resolution on or about 16/12/2023 to stop the implementation of the deadline for the use old Naira Notes because the corruption syndicate have over the years stashed trillions of Naira in the old currency notes in preparation for vote buying to beat the Anti-Rigging technology deployed by the Independent Electoral Commission (INEC). Prior to the redesign of the Naira Notes and outlawing of the old currency notes to frustrate this syndicate, the CBN statistics haf revealed that more than 70% of the money in circulation in Nigeria were in private hands, most buried in the ground by corrupt politicians for heavy vote buying to compromise the reformed electoral system, hence the need, inter alia to frustrate the rogues by the strict monetary policy. Again at another instance, the National Assembly issued another resolution asking for the new naira notes to be allowed as legal tender till June 2023 or thereabouts
This resolution was seen by many Nigerians as inordinate, aimed at helping the corrupt politicians make use of their stolen and stashed old notes to buy votes in the February and March general elections, to buy Judgments in pre-election matters that ends in March and to buy Judgments for post election matters that ends in May.
However, the determined CBN Governor, Mr. Godwin Emefiele rightly defied the resolution since the National Assembly has no power to regulate monetary policy except the CBN. National Assembly resolutions too are not legally binding but advisory. The CBN chose not to be so advised.
Next, media blackmail was launched against the CBN Governor Godwin Emefiele especially on Brekete TV and other TV and Radio Houses owned by the corrupt politicians. This was apparently aimed at destroying his reputation and goodwill in preparation for the next phase of the plot that would soon be exposed.
That next phase was to give Emefiele the Ibrahim Maku treatment. The corruption syndicate used the secret police known as the SSS (State Security Service) to put up trumped up charges on the CBN Governor accusing him of “terrorism financing, fraudulent activities and economic crimes of national security dimension.”
The SSS, to justify the arrest of the CBN Governor smuggled into court by an Ex parte (secret) Application in suit no. FHC/ABJ/CS/2022 before Chief Justice John Tsoho of the Federal High Court Abuja for an arrest warrant to arrest the CBN Governor and detain him for two weeks.
The Hon. Chief judge declining the grant of the order said, among other things, that no sufficient probable cause was given to warrant an order to arrest such a national officer of economic importance like the CBN Governor with its attendant effect and the shock it would have on national economy etc. Courts of law as courts of public policy are expected to weigh the social, economic and other effects that a court order might have in juxtaposition with the real need to issue such order. The courts are duty bound to weigh the balance of convenience in issuing ex parte orders. In my view the Honourable Chief Justice John Tsoho had lifted the pride of the judiciary.
That having failed, another effort at thwarting the electoral reformation was for the SSS to, on or about 24 /12/2022, in ignominious defiance of a subsisting court order in suit no. FHC/ABJ/CS/2255/2022 between State Security Service (applicant) and Godwin Emefiele (respondent).barring the SSS and or any security agencies from arresting the CBN Governor, deployed its personnel everywhere in the country to arrest the CBN Governor on sight upon his expected return from vacation in the United States. It took only the intervention of HE President Buhari to call the SSS and other security agencies to order, the president knowing the game of the corruption syndicate.
Lastly the 36 State Governors acting through the instrumentality of three most shameless northern governors of Kogi, Zamfara and Kaduna States filed an ex parte motion at the Supreme Court on 30/02/2023 in suit no. SC/CV/162/2013, and on 8/2/2023 the supreme court in a unanimous decision issued a seven day interim order against the Federal Government against implementing the deadline for the old Naira Notes being legal tender on 11/2/2023.
But does the supreme court have power to give such order? If no, what is the legal effect of such order? Let us look at what the law says.
LEGAL ANALYSIS:
The Supreme Court of Nigeria is the first judicial son of the Nigerian Constitution 1999 (As Altered) (hereinafter, the Constitution), which confers on the apex court power or Jurisdiction to adjudicate on legally cognizable disputes.
Section 232(1) of the constitution confers on the Supreme Court what is termed ORIGINAL JURISDICTION in disputes between the Federation and a State or between States.
With the powers conferred on the National Assembly to make laws for additional Jurisdiction to the supreme court, the National Assembly enacted section 1(1)(a) of the Supreme Court (Additional Original Jurisdiction) Act 2002, which provides that in addition to the original jurisdiction conferred on the Supreme Court by Section 232(1) of the Constitution, the Supreme Court shall have original jurisdiction in any dispute between (a) the National Assembly and the President; (b) the National Assembly and any State House of Assembly; and (c) the National Assembly and the State, so long as that dispute involves any question of law or fact which the existence or extent of a legal right depends.
The above combined provisions of sections 232(1) of the constitution and section 1(1)(a) of the Supreme Court (Additional Original Jurisdiction) Act 2002, is to the effect that the only legal disputes upon which the supreme court can exercise original jurisdiction are those listed, and nothing more. The supreme court cannot arrogate power to itself not conferred on it by law.
On the other hand, section 251(1) of the constitution establishes the Federal High Court and vests on it power TO EXERCISE JURISDICTION TO THE EXCLUSION OF ANY OTHER COURT ON MATTERS CONCERNING THE POWERS OF THE CBN INCLUDING BUT NOT LIMITED TO MONETARY POLICY AND LEGAL TENDER.
For emphasis, I seek indulgence to quote in letters inter alia the provisions of section 251(1)(d) of the constitution, thus:—
251(1) “Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the *exclusion of any other Court in civil causes and matters…*”
(a)……
(b)……
(c)…….
(d) “connected with or pertaining to banking, banks, other financial institutions including any action between one bank and another, *any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender*, bills of exchange, letters of credit, promissory notes and other fiscal measures; Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;”
(Emphasis in bold and underlining, mine)
It is therefore my humble but firm submission that the learned Lords of the supreme court erred by accepting Jurisdiction to hear the matter in the first place.
It is trite that any legal findings, orders and decisions arising from proceedings of a court of law without Jurisdiction is a nullity ab initio and ex debito justitiea liable to be set aside. It is unenforceable.
On whether the CBN ought to have obeyed the order except and until set aside by the supreme court, the answer is yes but only to the extent that in the circumstances of this case where the CBN was not party to the suit, it was not legally bound by the order.
It is established principle of our common law jurisprudence that any findings, order or Judgment from an action in personam is not legally binding on a non-party to the action.
The dictum of the Court of Appeal per Muhammad Lawal Garba J.C.A, reading the leading Judgment in the case of THE VESSEL MT. SEA TIGER & ANOR v. ACCORD SHIP MANAGEMENT (HK) LIMITED & ORS (2020) LPELR-49498 (CA), comes into mind where the learned justices of appeal held inter alia thus:
“…an order made or decision taken by a Court against a person who is not a party to a case is not binding on such a person and so made in vain since it cannot be enforced against him.”
Consequences of defying court order is committal to prison of the contemnor (person in contempt). The three governors who are plaintiffs in the suit have the duty to cite the CBN Governor, Godwin Emefiele for contempt for purportedly disobeying that supreme court order. But why have they not done so?It is because they know that the order is not binding on the CBN as a non-party, and that such judicial expedition will fail thus exposing the politics in the whole drama.
ON WHETHER THE THREE PLAINTIFFS STATE GOVERNMENTS HAVE LEGALLY COGNIZABLE CAUSE OF ACTION ARISING FROM MONETARY POLICY AGAINST THE FEDERAL GOVT THUS VESTING THE ORIGINAL JURISDICTION ON THE SUPREME COURT?
On 9/2/2023, I watched the erudite learned silk, Chief Mike Ozekhome reason that since the State Govt has issues arising from the monetary policy with the FGN, therefore the supreme court seems to have original jurisdiction. And that it may require amicus curiae (legal luminaries as friends of the court) to be invited by the supreme court to help resolve the novel legal puzzle.
With respect to the learned silk I beg to differ from this reasoning. This case, to my mind is a straightforward case not novel, not a legal puzzle, and that does not require amicus curiae. It does not call for the creation of a juristic mountain out of a juristic anthill of what is afterall a simple question of construction of, and interpreting a clear and straightforward wordings of written law.
To answer the question, we must look at the constitutional and statutory duty of the FGN cum the duty of the president of Nigeria whether it includes regulation of monetary policy.
Sections 130 and 5 of the constitution creates the office, powers and duties of the President of Nigeria. None of the duties of the president therein established concerns power of regulation of monetary policy. The power to regulate monetary policy including legal tender is donated absolutely to the CBN under sections 17 of the Central Bank of Nigeria Act No.7 of 2007 (hereinafter, the CBN Act). The CBN is personified in the Governor of the CBN as corporate sole and juristic person who can sue and be sued in its name but not as an “agent” of the Federal Government as personified in the President.
Flowing from the forgoing, sections 1(3) and 17 of the CBN Act vests exclusive power on the CBN to, inter alia, issue currency notes and coins and regulate monetary policy “to the exclusion of the Federal Govt, State Govt and Local Govt, or any person or Authority.” Read also sections 18 and 19 of the CBN Act together with section 17 supra, which details the duties of the CBN.
Therefore, by the combined effect of sections 130 and 5 of the constitution, and sections 17, 18 and 19 of the CBN Act, the FGN has no power to regulate monetary policy but only the CBN “to the exclusion of the FGN, State Govts and Local Govts”. Pursuant to the foregoing, State Govts have no legal cognizable cause of action against the FGN as related to regulation of monetary policy. It is my humble but firm submission therefore that Suit No. SC/CV/165/2023 between the Governments or Governors of Kaduna, Kogi and Zamfara States and the Attorney General of the Federation (AGF) as representing the Federal Government is therefore incompetent since the cause of action thereof does not arise from the duty and obligation of the FGN under any known law. There is therefore no legally cognizable conflict between the States and the Federation that should donate original jurisdiction to the supreme court to adjudicate upon.
The plaintiffs only tried to conjure, like necromancers, legally cognizable cause of act between the State and the Federation by complaining how the CBN policy affects money circulation and the attendant riots and breakdown of law and order in parts of the country. This complaint does not vest original jurisdiction on the Supreme Court anyway. Assuming without conceding it does, of course it is judicially noticeable that the Governors themselves are the ones conniving with managers of deposit money banks to hoard the new currency notes thereby depriving the ordinary citizens access to the new currency notes. Banks have been shown in the media by security agencies to hoard the new currency notes for the purpose of exporting them out of the bank vaults for politicians including the governors to stockpile for vote being in an election that is just two weeks ahead. This causes the artificial scarcity. As reported in the news, the citizens are turning their anger on the banks for conniving with the politicians to deprive them of their money. Therefore the plaintiffs cannot hope to exploit that self induced situation to approach the court to help them benefit from their own wrong, which is against the established legal principle that the law does not allow one to benefit from his own wrong, expressed in the legal locution Nullus Commodum Capere Protect De Injuria Sua Propria.
If there is any triable dispute in the circumstances of this case, it should be between the concerned State Govts and the CBN, whereupon, under the combined effect of sections 17, 18 and 19 of the CBN Act, and section 251(1)(d) of the constitution, only the Federal High Court can exercise original jurisdiction.
Notwithstanding the immediate paragraph above, I venture to reason that it seems to appear that by the unified effect of sections 1(3), and 17 of the CBN Act which bars the FGN, State Govts, Local Govts or any person and Authority from interfering with the monetary regulatory powers of the CBN, the State Govts and any person and Authority lack the powers to interfere with the lawful duty of the CBN, and the Supreme Court being a person in the eyes of the law, is bereaved of any power to interfere with the strategy deployed by the CBN in regulating monetary policy except it is shown that such strategy is not in compliance with the extant laws. That is not the case. Even in such instance, the Supreme Court’s power would be only to the extent of ordering the CBN to abide by the extant laws in the performance of its function. I must say that it is my candid opinion that the interference with the exclusive duty of the CBN by the Supreme Court by issuing the February 8, 2023 restraining order against the CBN monetary policy is ultra vires, and in violation of the doctrine of Separation of Powers as mirrored through the Political Question Doctrine.
In further adumbration of the above, the Supreme Court is bereaved of jurisdiction to issue any order giving direction on how the regulation of the monetary policy of the CBN should follow by way of stopping, even if temporarily, deadline for circulation of old currency notes under the facts and circumstances it did when there was no prima facie evidence before the judex that the deadline was in violation of any law for the time being in force in Nigeria.
It is clear from the provisions of the CBN Act that it was not within the envisagement of the lawmakers that the court of law which is not financial expert should take over the duty of the CBN which is the expert on financial matters.
In my legal opinion, it would be a different kettle of fish had the governors supposedly as conscientious stakeholders of the nation complained of the violation of the provisions of the law by the CBN in the determination of the deadline for the old currency notes to cease being legal tender, and brought an action before a court of competent jurisdiction, namely, the Federal High Court for an order compelling the CBN to execute its duty within the confines of the law. But no, the Plaintiff Governors have not accused the CBN of violating any law in issuing the monetary policy. I submit with respect that their claim is frivolous, incompetent and unjusticiable.
EFFECT OF SECTION 20 OF THE CBN ACT.
Some legal minds argue that since section 20 of the CBN Act subjects the acts of the CBN Governor to the control of the president, then by suing the FGN through the AGF, the CBN is deemed sued and legally bound. Their argument seeks to conjure up the principle of agency where it applies not.
With respect this reasoning is foreign to our common law jurisprudence. Since 1896 it has been established in England from where we derive our Jurisprudence that juristic personae such as the CBN have a life of its own and can sue or be sued in their names. See the locus classicus case of Salomon v. Salomon (1896) UKHL1. In support of this jurisprudential reasoning is the provision of section 1(2) of the CBN Act which makes the CBN a legal person (juristic personae) which can be sued and sue in its name. Therefore the principle of Qui facit per alium facit per se, meaning “He who acts through another does the act himself” as alluded to by some of our brilliant legal minds, vis-à-vis the law of agency, does not apply in the relationship between the FGN and the CBN, and the one cannot be held responsible for the act or omission of the other.
An instance is the Nigeria Police Force (NPF) being an agency of the Executive Arm of Government, but the act or omission of the NPF cannot be inputted on the FGN. The NPF being a juristic personae under the Police Act, like the CBN is sued by its name through its officers.
Therefore, an attempt to reconstruct the purport of section 20 of the CBN Act in efforts to breath life into the dead supreme court injunctive order of 8/2/2023 against the CBN, which in any case, was not a party to the suit, is with respect, a mere academic exercise.
EFFECT OF THE CBN HAVING NOT BEEN A PARTY TO THE SUIT
I have read legal opinions of several respected senior jurists in the country who claim that the CBN must obey the supreme court order of 8/2/2023 citing nonbinding case laws in persuasive grandstanding and morality leapfrogging.
It is trite that the findings, order and decree of a court in an action in personam is not binding on a person who was not a party to the suit. The dictum of the Court of Appeal per Muhammad Lawal Garba J.C.A, reading the leading Judgment in THE VESSEL MT. SEA TIGER & ANOR v. ACCORD SHIP MANAGEMENT (HK) LIMITED & ORS (2020) LPELR-49498 (CA), comes into mind where the learned justices of appeal held inter alia thus, “…an order made or decision taken by a Court against a person who is not a party to a case is not binding on such a person and so made in vain since it cannot be enforced against him.”
In the reinforcement of the position of the law on the nonbinding effect of the said supreme court order on the CBN, it is established principle of law that where a necessary party to a suit was not joined in the suit, the entire proceedings and its outcome is a nullity ab initio as it violates the universal and nonderogable legal principle of audi altarem partem guaranteed and fortified in section 36(1) of the constitution. On any question of monetary policy in Nigeria, the CBN is a necessary party. See section 17 CBN Act. In the case of N.B.A. v. Kehinde (2017) 11 NWLR (Pt. 1576) 225 a necessary party was defined as a person who should be bound by the result and the question to be settled in the legal question in issue and in whose absence the issues cannot be completely settled. Therefore, there must be a question in the action which cannot be effectually and completely settled unless he is a party.
Flowing from the above legal principle, by virtue of the sole duty of the CBN as the only Authority authorized by law to issue and regulate currency and monetary policy in Nigeria to the exclusion of all others, there is no way the question of currency regulation complained of by plaintiffs could be properly and completely settled without hearing from the CBN. Therefore, for not joining the CBN in the suit the entire proceedings and injunctive relief is the said suit no. FHC/ABJ/CS/126/2022 ordering the CBN to suspend temporarily the deadline for the circulation of the new currency notes, is illegal, null and void and is ex debito justitiea liable to be set aside by the application of the CBN of the AGF or suo motu. For this reason the CBN was not legally bound by the order in question made against it, and so violated nothing in implementing the deadline. I so submit.
CONCLUSION
Given the checkered antecedent and tortuous journey of the Buhari Administration’s vow to reform perhaps the most corrupt electoral system in the world, and the use of national institutions by the corruption syndicate to try to thwart this patriotic effort, which is in the public domain as adumbrated in The introductory paragraphs supra, the supreme court as the holy of holies in the temple of justice, a court of justice, of equity and of public policy, to my mind, ought to have taken judicial notice of these facts which would guide it against issuing the most unfortunate injunction against the CBN by ex parte Motion.
The supreme court ought to have ordered the plaintiffs to put the FGN on notice, but should not have made an ex parte Order on such a delicate matter having to do with national security and national economy. Had the learned justices of the supreme court heard from the AGF as representing the FGN, they would not have issued the injunction without Jurisdiction to the do so, which causes lawyers and laypeople alike to seethe with anger and distrust of our legal system thereby reducing the sacred temple of justice to attack by the non-initiates occasioning what to my mind is an avoidable public opprobrium which seems to strip the judiciary bay of its majestic mystique and dignifying grandeur. I however defer to my Most Distinguished Lords of the Supreme Court to decide the position of the law.
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