Legal Opinion on the Jurisdiction of Court on Naira Redesign: Supreme Court or Federal High Court of Nigeria.
By Kehinde Emmanuel Oladele
The Central Bank of Nigeria announced to the public on October 2022 on the purported “Naira Redesign and Daily Cash Withdrawal Limit policies”, and vehemently disclosed the 31th of January as the final day for the use of N1,000, N500, and N200 notes. Unpremeditatedly, CBN extended the deadline to 10 February 2023 because of issues pertaining the new notes circulation through Banks and States of the federation. Three of the Northern States instituted an action directly at the Supreme Court questioning the Attorney-General of the Federation on the polices and sequentially prayed the Supreme Court to restrain the federal government from enforcing the stated 10th February 2023 deadline on Naira swap which was uncontestably granted ex parte order by the court directing that old and new naira notes should coexist as Legal Tender till 15 February 2023 when the Motion on Notice in the case would be justifiably heard. Undoubtedly, witty submissions cum analyses have been made pertaining to the jurisdiction and supreme court order, and this opinion shall respectfully stands as contribution to the existing ones, particularly, shinning light on the darkness beclouding the Jurisdiction Of the Court to entertain the matter.
Keywords: Constitution, Jurisdiction, Necessary Party, Interim Order, Agency And Principal.
Judicial Interpretation Of The Term “Jurisdiction”
Absolutely, it is clear that this concept has no universal nor definite meaning but meanings attached to it attracts no contestation across the Legal world. This is not to the exclusion of Nigeria Courts.
Imperatively and succinctly, I reiterate from lines of authority and adumbrated thereon for the purpose of this Opinion that- Jurisdiction is a term of comprehensive import embracing every kind of judicial action. Yes, it has different meanings in different contexts, It is the limit imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of it’s process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought. [A. G Lagos state v Dosunmu (1989) 3 NWLR (PT. 111)552; N. E. P. A. V. Edegbero (2002) 18 NWLR (Pt. 798) 79. It is conferred by the constitution or statue on Courts and it is the threshold issue, a heartbeat of a case till the extent that Once a court lacks jurisdiction to hear a matter and it proceeds to hear a matter, no matter how well handled, the entire proceedings would be a nullity. This explains why it could be raised at the supreme court, Court of Appeal and High court at any time. See; [Dangana v. Usman (2013)6 NWLR (PT. 302)692; Barclays Bank of Nigeria v. Central Bank of Nigeria (1976)6 SC 175.
The Governors of the three states commencing the action at the supreme directly were supposed to have critically through their legal representative examined whether the matter could be entertained by the supreme court, it has been the unusual practice of the Apex court to have jurisdiction on such matter, the combine reading of section 232 and 233 of the constitution is crystal clear in the jurisdiction of the supreme court.
What constitutes jurisdiction of court
Our courts have helped in outlining the ingredients of jurisdiction, In ISAH v. INEC (2016) 18 NWLR (PT. 1544) 175 S. C. The same are provided below:
- When it is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or the other; and
- The subject matter of the case is within it’s jurisdiction, and there is no feature in the case which prevents the court from exercising it’s jurisdiction; and
- The case comes before the court initiated by due process of law upon fulfilment of any condition precedent to the exercise of jurisdiction.
Obviously, the afore listed requirements must co exist conjunctively before jurisdiction can be exercised by the court. Therefore,it means that that where a court has no jurisdiction to hear and determine a Case but goes ahead to do so, it engages in an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings were conducted. See;[Mbadinuju v. Ezuka (1994)8 NWLR (PT 364)535. Duke v. Akpabuyo L. G (2005). 19 NWLR (Pt. 959) 130.
The constitutional provisions on supreme court justices constitution is not disputed in this matter, which inarguably satisfies that there’s no disqualification. However, For the subject matter, the section 251 (1) (a) to (r) of the constitution only saddled the federal High courts with jurisdiction in such matter as to federal government and it’s agencies. Of course, this from the commencement of the action is subjected to stringent scrutiny, although seemingly clear but not absolute.
In the event that the Supreme Court reached a decision in the matter where it obviously has no jurisdiction,
It is a common knowledge that “A court cannot entertain a cause which it has no jurisdiction to adjudicate upon. Where a court takes upon itself it to exercise a jurisdiction which it does possess, it’s decision amounts to nothing. See [Madukolo v. Nkemdilim (1962)scnlr 341; ibeanu v. Ogbeide (1994)7 NWLR (PT. 359) 697; Peenok Invest. Ltd. V. Hotel presidential Ltd. (1982)13 NSCC 477.
Supreme court Prima facie has no jurisdiction by virtue of the constitution at section 232(1) to 233 in the instant case, however, being the ultimate court, discretionarily but unconstitutionally for public policy and substantial justice, such novo practice is introduced as done in this matter. Against the backdrop, Only the federation and the State or states and States, Questions of law and facts could be resolved by the supreme court of Nigeria. In the circumstance of this case, supreme court could be said to exercise in futility which has no precedent in Nigeria.
whether a party can impose jurisdiction on court and options Open to court and litigant where court lacks jurisdiction:
It should be emphasized that when a court lacks jurisdiction, a party cannot use any statutory provisions or common law principle to impose it because absence of jurisdiction is irreparable in law. The matter must end there. The only procedural duty of the court in the circumstances is to strike out the suit. And, available valid steps to take by a litigant is to file an action in a court of competent jurisdiction. [Umanah v. Attach (2006) 17 NWLR (PT. 1009) 503;KLM AIRLINES V. KUMZHI (2004)8 NWLR (PT. 875) 231.
Now, would it suffice to say that the action instituted by the three Governors through Attorney Generals’ be said to invoke jurisdiction on the supreme court, even when it’s obviously lacks such? If it is, the court will be left without options than to strike the matter out immediately, hence, supreme court has something to reveal when the matter is heard on Notice as it’s expected. And, in the event that it elevate itself to having jurisdiction, the decision shall be final and binding on parties.
Exclusive jurisdiction of the federal high Court over matters involving the federal government and or its agencies –
Agencies and Federation matters is within the boundary of the Federal High Court, to the exclusion of others. It is plain that the provisions of section 2301(q),( r) and ( s) of the 1979 constitution as amended by the constitution (suspension and Modification) Decree, No. 107 of the 1993 is in pari materia with section 251(1)(p)(q)and (r ) of the 1999 constitution. The provision vests absolutely an exclusive jurisdiction in the federal High Court on civil causes and matters arising from the administration, managers and control of the Federal Government and it’s agencies, the operation and interpretation of the constitution as it affects the federal government and its agencies as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the federal government and it’s agencies.
Flowing from this, it’s the contention to analyze whether the central Bank Of Nigeria is an Agent of the federal Government, and, if this positively answered, then, federal government colossally loses the jurisdiction. However, the principle underlying principal and agency could still be x-ray on this, in light with how argument could be canvassed in favor of the plaintiff,then,the supreme court might sustain the jurisdiction which would still be wrong under the guise that whatsoever that is done by the agency as directed by the principal shall have effect over the principal.
Interim injunction and ex parte order of injunction purpose:
In ABATOLA V ALADEJANA (2001) 6 SC 124, It is crystal clear, that an order of court would be binding on the parties to a suit,not contrary. Now, an interim injunction is not an open ended restriction order but one for a short period of time, preservatory in nature at the early stage in the proceedings. In this light, an ex parte order of injunction is not intended to be a temporary victory to be used against the adverse party indefinitely rather an interim order of injunction is to last for a short period pending the determination of motion on notice and not to jang on the opposing party or to overstay. See[Alhaji Aminu Ahmed & co. (Nig.) Ltd v. A. C. B Ltd (2001) 10 NWLR (Pt. 721) 391; General Oil Ltd v. Oduntan (1990) 7 NWLR (PT. 163) at 423.
It is argued without Legal bases that the Supreme court exercised its power for justice sake, it’s obvious that the money policy is creating substantial problems in Nigeria, therefore to maintain stability and reduce cost of Living, the interim order could satisfy the demands of the masses by their representative who commenced the action for extension. However, ordinarily,the order be bindinshouldn’t be binding on a party that wasn’t joined as a necessary party of whose right would be affected, the CBN should have been joined in issues on the matter. The locus classicus case of A.G. Kano State v A.G. Federation (2007) 3 SC (PT 1) 59 is sacrosanct, where His Lordship, Per Mohammed Lawal Garba,JCA highlighted that ”The clear principle laid down in the above authorities is that the original jurisdiction of the apex Court under Section 232(1) cannot be invoked over a dispute in respect of the acts or performance of the duties of the Federal government through or by its agencies, which are legal entities that can sue or be sued, since they are not the Federation or a State in the Federation.” Per MOHAMMED LAWAL GARBA, JCA (Pp 27 – 30 Paras B – D).
To justify this, let examine what necessary party entails, the federation and Agencies:
- The Central Bank Of Nigeria Act No. 7 2007 at section (1) subsection (2) established that the Central Bank shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. This speaks loud that, the CBN could have been joined as a Legal person with full capacity as a necessary party d which interest would be affected. In the recent case Uchechukwu v. Okpalake & Ors.(2010) LPELR-CA/E/EPT/50/2008, Per Sanusi, J. C. A explained the meaning of necessary party inter alia:“A necessary party is defined as one who is not only interested in the subject matter of the proceedings but also who in his or her absence, the proceedings could not be fairly dealt with.” Chief Abusi David Green vs Chief Dr E.T Green (1987) 3 NWLR (Pt. 611) 480 or (2001) 48 WRN 90. Not joining a necessary party to a matter would be construed as lack of jurisdiction, because the justice couldn’t be manifestly dispensed in the circumstance. Therefore, for safe Landing, the Attorney Generals of the Three states knew of the impediment and waived it, despite the waive, the Court still is not the right court for the matter. On the whole, accordingly,our laws haven’t thought of making a non party to be binded by the order of the court,this might be an advent of such.
- Additionally, the Sheriffs and civil process act cap. 407 lfn 1990 act cap. S6 l.f.n. 2004 at section 84 on Consent of appropriate officer or court necessary if money is held by public officer or the court, by the dint of this provision,the CBN could stands in as a public officer in a garnishee proceeding,so,it’s an agencies of the federal Government of Nigeria.
Even, the SUPREME COURT ACT CAP. 424 LFN 1990 L.F.N. 1990 ACT CAP. S15 L.F.N. 2004 provides in section pertaining to the Jurisdiction of the supreme court in section 20 which is congruent with section 231 and 232 of the constitution and it’s reproduced below for emphasis inter alia:
Any proceedings before the Supreme Court arising out of a dispute referred to in section 232 (1) of the Constitution and brought by or against the Federation or a State shall—
(a) in the case of the Federation be brought in the name of the Attorney-General of the Federation;
(b) in the case of a State be brought in the name of the Attorney-General of the State
NOTE: There is high tendency of arguing with respect to the Central Bank Of Nigeria being inseparable from the Federation, and still incorporating same under the disputes that could arise from the decisions and measures of the federal government and the States, since the spirits and Letters of our constitution specifically at section 5 vested upon the president, now, in the exercise of it’s power, the agencies shall not be secluded for they are the handmaiden tied to it apron string, although not absolutely, now, at the section 5 subsection (3)(a) (b) and (c) it could be submitted that the federal government through it’s agencies has commenced effortlessly a journey contrarily to and endangering the asset or investment of the government of the federation and endangering the continuance of a federation of Nigeria government. If this is justified, then a dispute on the policy might have exuded and qualified to be in favor of section 231 and 232 of the constitution, and the supreme court could proceed. Unless and until this is satisfied, its nullity and sequentially voidable. Section (2) on the principal object of the CBN specifically subsection (e ) on providing economic and financial advise to the federal government, an advise that might be grossly in contradiction to the rightful ones is tantamount to dispute nursing, section 39 and 40 on the bank acting solely and generally as the agent for the federal government, state or local government made it an agent within the purview of section 251 and when it’s exercise of the function is qualified as disputes between states and federation, then the Supreme Court could decides on it.
Federal High Court Jurisdiction: What is imperative of consideration in determining jurisdiction of court to entertaining an action:
As earlier submitted, Jurisdiction of the court to entertain an action is determined by examining the law conferring jurisdiction at the time the suit is instituted and trial commences. See;[ Osakue v. FCE (Technical) Asaba and 2 Ors (2010)2-3 SC (pt 111) p. 158;(2010) NWLR (PT. 1201)1 ;O. H. M. B. V. Garba and 2 Ors. (2002) 14 NWLR (PT. 788)538. Now, the examination of the extant laws brings the conclusion of the federal High Court having jurisdiction. Nevertheless, it should be divulge that, substantive and procedural jurisdictional Matter could emerge for treatment. And as of necessity, Substantive jurisdiction renders the proceeding a nullity ab initio while procedural defect, or procedural jurisdiction, on the other hand renders the proceedings or the decision voidable at the instance of the aggrieved. My Lord, per Eko, JCA in R. T. A. G. M. N V. TORT (2006) 4 (PT. 1501) 101 CA expatiated this from a decision availed below:
“the lack of substantive jurisdiction appears to be the fulcrum of the decision in UKWU V. BUNGE (1999) 8 NWLR (PT. 518) 527 where at pages 541-542.significantly, for the federal high court to have jurisdiction under section 251 of the 1999 constitution the following must co exist:
- The parties, or a party must be the federal government or its agencies
- Subject matter of the litigation
Application of these requirements to this instant analysis invariably implies that the jurisdiction is the combination of the parties and subject matter. The words used in this piece of legislation are plain as day, and have been severally interpreted in lines of authorities. See; N. E. P. A V. EDEGBERO (2002) 18 NWLR (PT. 798) P. 79; OLORUNTOBA- OJU V. ABDUL-RAHEEM & 3 ORS. (2009). 5-6 SC (PT. 11) p. 57; (2009) 13 NWLR (PT. 1157)83.
It is however not in dispute that the Central Bank Of Nigeria is an agency of the Federation, Any lingering doubt has in fact been put to rest by the provisions of section 39 of the CBN ACT, CAP. 47,LFN 1990 which states that the Central Bank may act generally as agent for the federal government or of a State government. Perhaps the subject matter arises from the administration, management and control of the federal government or any of it’s agencies, from the operation and interrogation of the constitution and from any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the federal give, or any of it’s agencies. See: section 251(1)( r) of the constitution of the federal Republic Of Nigeria.
Should the supreme court have jurisdiction over the matter?
I will say that our courts are the creatures of statutes and it is the statute that creates a particular court that will also confer on it, it’s jurisdiction. Jurisdiction may be extended not by the courts but by the legislature. See[Afribank(Nig.) PLC v. Akwara (2006) 5 NWLR (PT. 974) 619; Okulate v. Awosanya (2000) 2 NWLR (PT. 646) 530; ONUORAH V. K. R. P. Ltd. (2005) 6 NWLR (PT. 921) 393. Therefore, the Supreme Court could never invoke jurisdictional competence on itself when the grundnorm is silent on same. Except this is put thorough Legislative examination and in sequence passed into Law, there’s never a competence of the supreme court to entertain the matter.
Conclusively, it is submitted that Supreme Court has set a seal on this grey and nagging area of law on jurisdiction in the case of Obiuweubi v. CBN (2011) 7 NWLR (Pt.1247) 465 is incontrovertible where the court says:
The rationale behind this cardinal principle of law is underpinned by the fact that one of the triumvirate ingredients of jurisdiction is that the subject-matter of a case must come within the jurisdiction of the adjudicating Court and there is no feature therein which will prevent it, the Court, from exercising its jurisdiction, see Madukolu vs. Nkemdilim (1991) 2 NSCC 374; Agbiti vs. Nigerian Navy (2011) 4NWLR (Pt.146) 175; SLB Consortium Ltd. Vs. N.N.P.C. (2011) 9NWLR (Pt. 1252) 317. Therefore, the subject matter of the case is that which could be adjudicated by the federal High Court. In finality, the CBN and the Federation when it is settled could then be made a Necessary Party at the Trial Court.
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