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Nigeria: Attorney-General Malami Studying Supreme Court Ruling Halting Enforcement of Naira Swap Deadline

APC presidential candidate Bola Tinubu and Rivers State Governor Nyesom Wike were among those that hailed the ruling.

Nigeria’s federal government, on Wednesday, said it was studying Wednesday’s ruling by the Supreme Court that halted temporarily the move by the federal government and Central Bank of Nigeria (CBN) to phase out the old N200, N500 and N1, 000 notes from February 10.

In a response to enquiries from THISDAY, Dr. Jibrin Umar Gwandu, who is Special Adviser to the Attorney General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami, SAN, stated, “The federal government is studying the ruling and will take necessary steps within the context of the rule of law before the 15th day of February, 2023, when the matter is adjourned for hearing.”

The comment came as Governor of CBN, Mr. Godwin Emefiele, again met with President Muhammadu Buhari, yesterday, at the State House, Abuja, on the currency issue. It was the second of such meetings in two days. Buhari had on Tuesday met with Emefiele, alongside Chairman of Nigeria Governors Forum (NGF), Aminu Tambuwal; Governor of Kebbi State and Chairman of Progressive Governors Forum, Atiku Bagudu; and Chairman of Economic and Financial Crimes Commission (EFCC), Abdulrasheed Bawa.

The CBN governor was sighted around the office of the president few hours after the Supreme Court gave a temporary injunction restraining the federal government from banning the use of the old naira notes from tomorrow. It was not clear what Emefiele’s mission was at the seat of government, as he refused to speak with reporters during the visit.

However, mixed reactions continued to trail Wednesday’s decision of the Supreme Court to temporarily halt the move to phase out the use of old N200, N500 and N1,000 banknotes from circulation from February 10. While some senior lawyers backed the decision of the apex court, some civil society organisations (CSOs) faulted the verdict of the court.

Following the ruling, the presidential candidate of the All Progressives Congress (APC), Bola Tinubu, and Governor of Rivers State Nyesom Wike hailed the state governors for standing on the side of the Nigerian people over the cash swap policy. They expressed satisfaction with the court ruling.

On its part, the Peoples Democratic Party (PDP) alleged fresh moves by the presidential campaign council (PCC) of APC to derail the 2023 general election and put the country’s democracy in jeopardy. It also alleged that the ruling party had been intercepting and storing the new naira notes for the purpose of vote-buying.

But the Labour Party called on Nigerians to resist any attempt by the APC governors to arm-twist the CBN governor into backpedalling on the deadline for cash swap.

However, the International Monetary Fund (IMF) and the World Bank urged the CBN and the federal government to further extend the deadline.

The Supreme Court Ruling

A seven-member panel led by Justice John Okoro halted the move by the federal government to ban the old banknotes, in a ruling on an ex parte application brought by three northern states of Kaduna, Kogi and Zamfara.

The three states had specifically applied for an order of interim injunction restraining “the federal government through the CBN or the commercial banks from suspending or determining or ending on February 10, 2023, the time frame with which the now older version of the 200, 500 and 1,000 denomination of the naira may no longer be legal tender pending the hearing and determination of their motion on notice for interlocutory injunction.”

Moving the application Wednesday, counsel to the applicants, Mr. A. I. Mustapha, urged the apex court to grant the application in the interest of justice and the well-being of Nigerians. He stated that the policy of the government had led to an “excruciating situation that is almost leading to anarchy in the land.”

While he referred to a CBN statistics that put the number of people without bank accounts at over 60 per cent, Mustapha lamented that the few Nigerians with bank accounts could not even access their money from the banks as a result of the policy.

The senior lawyer further argued that unless the Supreme Court intervened, the situation might lead to anarchy because most banks were already closing operations.

Mustapha further argued that the Supreme Court was not only the highest court in the land, but the final court and as such had the jurisdiction to entertain any issue, including that which affects the well-being of Nigerians. He urged the court to grant the application and restrain the federal government from ending the use of the old naira notes from February 10, 2023, pending the hearing and determination of the main suit.

Ruling on the motion, Okoro held that after a careful consideration of the motion ex parte, “This application is granted as prayed. An order of Interim Injunction restraining the federal government through the CBN or the commercial banks from suspending or determining or ending on February 10, 2023, the time frame with which the now older version of the N200, N500 and N1,000 denomination of the naira may no longer be legal tender pending the hearing and determination of their motion on notice for interlocutory injunction.”

The court adjourned to February 15 for hearing of the main suit.

Although, Mr. Mahmood Magaji had announced appearance for the AGF, who was the sole respondent in the suit, the panel did not hear him in the ex parte application.

The Attorneys-General and Commissioners for Justice of the three states had dragged the federal government to court challenging the demonetisation policy of the federal government, which they said had brought untold hardship on the people of their states. In the suit marked: SC/CV/162/2023 and filed on February 3, the plaintiffs sought a declaration that the Demonetisation Policy of the federation being currently carried out by the CBN under the directive of the president was not in compliance with the extant provisions of the constitution and CBN Act, 2007 and actual laws on the subject.

Besides, plaintiffs wanted a declaration that the three-month notice given by the federal government through the CBN under the directive of the president, the expiration of which would render the old banknotes inadmissible as legal tender, was in gross violation of the provisions of Section 20(3) of the CBN Act 2007, which specifies that Reasonable Notice must be given before such a policy.

Similarly, the plaintiffs urged the court to declare that given the express provisions of Section 20(3) of the CBN Act 2007, the federal government, through the CBN, had no powers to issue a timeline for the acceptance and redeeming of banknotes issued by the bank, except as limited by Section 22(1) of the CBN Act 2007.

The plaintiffs claimed that since the announcement of the new naira note policy, there had been an acute shortage in the supply of the new naira notes in Kaduna, Kogi and Zamfara states and that citizens who had dutifully deposited their old naira notes had increasingly found it difficult and sometimes next to impossible to access new naira notes to go about their daily activities.

Plaintiffs, in addition, cited the inadequacy of the notice coupled with the haphazard manner in which the exercise was carried out and the attendant hardship same was wrecking on Nigerians, which had been well acknowledged even by the government itself.

Legal Minds React

Lawyers, who spoke on the restraining order issued by the apex court against the federal government, were unanimous that the Supreme Court’s action was ultra vires.

In their various submissions, the senior lawyers stressed that the Supreme Court, being the final court in the land, had powers to look into and resolve dispute. They, however, pointed out that the apex court had not decided on the issue, but only took a step in a matter of extreme urgency to preserve the res (subject matter, which is the change of currency).

Leading constitutional lawyer, Professor Mike Ozekhome, SAN, said the Supreme Court ruling was that “everything should be in same position. We call it status quo ante bellum. That is the state of affairs before the crisis broke out, and come back on February 15 for the court to hear the matter.

Ozekhome stated, “The Supreme Court has not decided the matter. All it did was that in matters of extreme urgency, you can grant an interim order, even if it be ex parte to prevent the subject matter of the suit being truncated.”

But Ozekhome argued that other courts in the hierarchy of courts must “blow muted trumpets” when matters are being heard in the apex court.

He said during a programme monitored on Channels Television., “Notwithstanding the fact that a high court or Federal High Court had granted an order telling the CBN, ‘You can stop this naira swap policy on the 10th of February as you have decided to do,’ the Supreme Court today said, ‘Hello? Don’t do that’”

Asked by THISDAY to comment on the fact that since the CBN was not joined in the action by the three state governments, whether the judgement was binding on the apex bank, Ozekhome said, “If you look at the injunction granted by the Supreme Court, it says the federal government is hereby restrained through the CBN and other commercial banks from halting the further use of the N200, N500 and N1,000 notes after February 10,2023. So it (Supreme Court) makes it clear. So the argument doesn’t hold water because they included it very well.

“It says ‘an order of interim injunction restraining the federal government through the CBN or the commercial banks from suspending or determining or ending on February 10, 2023, the timeframe with which the now older version of the N200, N500 and N1,000 denomination of the naira might no longer be legal tender, pending the hearing and determination of their motion on notice for interlocutory injunction which is now adjourned to 15 February. So, they specifically mentioned the CBN.’

“Just to add that it is prejudicial at this stage to comment on the matter because it is still before the Supreme Court, but some of the issues that will definitely come up are whether in view of section 1, subsection 2 of the CBN Act which makes the CBN an independent and autonomous body, whether it can be said the CBN is part and parcel of the federal government.

“Another issue would be whether states suing the federal government through their attorneys general constitutes a dispute between states and the federation. In other words, whether the federal government, which operates through the president in section 5 of the constitution, can be equated to the Nigerian federation, which is sovereign under section 2, subsection 3 of the constitution.

“That is the federation which is sovereign and made up of 36 states and 774 local government areas of Nigeria. Is the federal government equal to the federation?

“The Supreme Court itself had held in 2017 in Attorney General of Lagos state Vs the federal government and also in 2014 in the Attorney General of Lagos state Vs the Federal Government and also in 1982 in Attorney General of the federation Vs the Attorney General of Bendel State that for a dispute to arise and for the Supreme Court to assume original jurisdiction under section 232, subsection 1, of the 1999 Constitution, it must be a dispute between the states and the federation, not versus the federal government and between states and states which involves the question of law.

“These are the issues that will come up when the legal fisticuffs start. But my advice is that since the court hearing the matter is a full constitutional court of seven justices, the Supreme Court should invite some senior constitutional lawyers as amicae curiae, that is as friends of the court, to come and discuss this issue.

“The Supreme Court, to me, should also reach out to the remaining 33 attorneys general of the federation to come in with their briefs because it’s a matter that is like the onshore/offshore oil suit of 2001, which was very contentious. It’s a serious constitutional matter that we are facing.”

On his part, Chief Okey Wali, a one-time Nigeria Bar Association (NBA) President said, “Everybody is bound by what the Supreme Court has done.”

Wali added that “the law is what the Supreme Court says it is”, the final court in the land, and “what they have done is to order parties to stay action until February 15.

“They have not said anything to warrant all this noise, they simply said everybody should come back and let’s hear you, but in the interim everybody stay action. That is a very reasonable thing to do”.

Another former NBA President, Mr. Paul Osoro, said the order the apex court gave was simply interim, “in order words, let us preserve the res so that we can hear the matter and make a proper pronouncement.”

He explained that the court took the decision because what the applicants asked for was in relation to whether the currency should be changed or not.

Usoro further explained that the Supreme Court could not hear the matter before the initial timeline of Friday, “so what we will want to do is please don’t change it on Friday, until we can hear that matter properly next week Wednesday and then we decide whether you have a case or you don’t have a case.”

According to the senior lawyer if the res (subject matter) is not preserved, there will be nothing to decide by the time the Supreme Court meets on February 15.

While also disagreeing that the Supreme Court, Mr. Ahmed Raji explained that what the Supreme Court did was “to say, look this matter has been submitted for judicial examination, therefore, both parties should not do anything that would overreach the likely judgement of the court.

“It simply said let the status quo be and don’t stop the circulation of the old notes.”

Raji, argued that Nigerians ought to commend the Supreme Court for attending to such national issue despite the “tight and heavy docket of the court.”

He said concerning the court, “We should commend them for even adjourning to next week to hear the matter and make a final pronouncement on the issue.

“The judiciary is performing its role by examining the legality of any executive action or act and that is why in law we have the Judicial Review of Executive or Administrative actions.

“This is a dispute between state and the federal government and the only court to look into that is the Supreme Court of Nigeria and the proper thing is to make a preservative order.

“They have not determined the merit of the matter, they only preserved the subject matter.”

Mr. John Baiyeshea doubted if the Supreme Court has jurisdiction to entertain the case in the first place because there was probably no direct dispute between the three states that approached the court and the federal government.

He said, “There is no doubt that the policy of the CBN in redesigning the naira, is a fiasco. So, the Supreme Court may just have acted to temporarily to stem the chaotic slide in the country.”

Like others, Baiyeshea noted that the order was temporary in nature, pointing out that courts (including the Supreme Court), rarely give interim orders based on ex parte application(s) as in this case.

Baiyeshea stated, “I believe that the federal government will raise the issue of jurisdiction when the substantive motion comes up for hearing. But whichever way the Supreme Court may decide the issue of jurisdiction, the interim order granted would have achieved its purpose.”

Mr. Liborous Oshoma, a lawyer and public affairs analyst, stated that the apex court had powers over any matter at all.  However, he noted that the Supreme Court had not taken arguments for and against the case.

“What the Supreme Court has done is that parties should hold on, pending when the matter is heard so that a state of helplessness is not foisted on the apex court.”

According to him, the case would become a mere academic exercise by the time the apex court would be hearing it on February 15, if the February 10 deadline for the expiration of old notes was not stopped.

Oshoma, however, noted that the governors who took the matter to court were being smart by not including the CBN as a party.

He also raised question as to whether the Attorney General could issue a directive to the CBN who is not a party in the matter.

He stated, “Although it can be argued that because it is directed at the federal government and the CBN reports to the presidency who represents the federal government, so by extension the CBN cannot do anything outside of what the court have said”.

Stressing that the Supreme Court had not dabbled into matters that were exclusive to the executive, he said the apex court could only do so if there was reason to believe that the executive did not follow due procedure in taking the action that gave rise to a dispute.

Oshoma said, “It is only when the procedure is not followed that the Supreme Court assumes jurisdiction, or whether the federal government and CBN in exercising powers vested on them by the CBN Act, followed procedure to ameliorate the suffering of the masses.”

However, a senior lawyer, Professor Konyinsola Ajayi, yesterday, said the CBN was free to carry on with the cash swap policy, despite the court ruling. He stated that the CBN, not being a party before the Supreme Court, hence the court was not expected to grant an order against a person not before it; not sued or not heard.

He said, “The CBN is free to carry on with its policy on currency redesign taken in accordance with the plenitude of its powers under both the CBN Act and Currency Control Act. It is fitting to note that just about six weeks ago (on 02/12/22) the SCN held in the case of Adedeji & ors. v CBN that CBN is independent by law and can’t be controlled by FGN.”

On whether the apex court ruling could create confusion, Ajayi said, “I do not see confusion in the decision of the Supreme Court of Nigeria. The Supreme Court, which in its wisdom stayed the hands of the litigants before it, only being the federal government, Kogi, Kaduna and Zamfara states.

“As you knowM the Supreme Court is our final court and has the final say amongst all courts, hence, we must not begin to see confusion because a high court had given an order against parties before.

“The Supreme Court is very careful not to assume original jurisdiction as it has done in this matter. The CBN is not a party and Supreme Court never allows a court to grant an order against a person not before it; not sued or not heard.

“In effect the CBN is free to carry on with its policy on currency taken in accordance with the plenitude of its powers under both the CBN Act and Currency Control Act.”

Tinubu, Wike Hail Ruling

The presidential candidate of APC hailed governors of the 36 states for what he described as standing on the side of the Nigerian people over the CBN cash swap deadline. Tinubu, in a statement issued by Director, Media and Publicity, APC Presidential Campaign Council (PCC), Bayo Onanuga, said the governors, especially the APC governors who instituted the suit against the CBN and federal government at the Supreme Court, acted well on behalf of the hapless Nigerians who had been made to bear the brunt of the naira redesign policy.

Tinubu was quoted as saying in the statement that the governors had saved the country from a needless political and economic crisis and misery, “which have clearly become the unintended consequences of the monetary policy of the apex bank.”

The former governor of Lagos State noted that the Supreme Court ruling coincided with the advisory of the International Monetary Fund (IMF) urging for the extension of the deadline for the swap of the old naira notes, going by the problems being experienced across the country in getting the new notes.

Tinubu Stated, “I want to salute the courage of our governors and most especially the Progressives Governors in APC who acted to save our country from avoidable and dangerous political crises and social unrest which the central bank policy on new naira notes has brought on our country.

“Our country was dangerously careering toward anarchy and political and economic shutdown.  But with the Supreme Court interim ruling our country has been pulled back from the precipice. We thank our Supreme Court Justices for ruling wisely on the side of the people who have been subjected to undue agony and pains since this policy was announced.”

Tinubu stressed that the federal government and relevant stakeholders could now sit down and work out a better framework on how to proceed with the new policy without causing any social and economic disruption and inconvenience to our people.

He noted that there were examples of other countries that had successfully and seamlessly changed their currencies to learn from.

Tinubu added, “Those countries give a long time, at least 12 months to effect the currency change. They do not engage in CBN-like Fire Brigade approach.

“We have seen how a good policy can be poorly implemented to cause unintended problems for the people who should be the beneficiaries. While lessons have been learnt, we must now move on as a country and people with a Renewed Hope for a better tomorrow.”

Tinubu pointed out that the sole aim of his decision to run for the position of the president of the country was to make life better and more abundant for the people, saying this is the ideal he would remain eternally committed to.

He called on the CBN to ensure that the Supreme Court ruling was effectively executed by taking all necessary steps to: (i) ensure sufficient availability of naira notes (whether old or new) and (ii) properly sensitising the public on the ruling and the consequent validity of old naira.

Wike also lauded the Supreme Court ruling, saying it saved the country’s democracy.

Wike made the commendation yesterday, during the State Peoples Democratic Party (PDP) campaign flag-off rally held in Abua, Abua/Odual Local Government Area of the state.

The governor stated, “I want to, on behalf of the Rivers State Government, commend the Nigerian Supreme Court for what they have done today (Wednesday) to save the masses of this country and to save democracy.

“Today, the Supreme Court has stopped the CBN from embarking on stopping the old Nigerian Naira notes from circulating.”

The Rivers State governor noted that the intervention of the Supreme Court was timely, stressing that there are elements who are hell bent on derailing the ongoing democratic process.

The governor also declared that the Rivers State government would join the three northern states in the suit, challenging what the CBN was doing, just as he commended the governments of Kogi, Kaduna and Zamfara for the steps taken so far.

Wike stated, “And let me commend my brother states like Kogi state, like Kaduna, like Zamfara state who took it upon themselves to go and challenge the federal government at the Supreme Court.

“I also want to say that the Rivers State government will join them in that suit to challenge what the CBN is doing. We will not support anything that will go against the masses, anything that makes the masses to suffer.”

 Wike reiterated that the survival of the country’s democracy rested, to a large extent, on critical agencies of government expected to live up to their statutory obligations.

He said, “I have said before, this democracy can only survive with the support of INEC, with the support of security agencies and with the support of the judiciary. With what happened today, the Supreme Court has shown that the hope of the common man lies on the judiciary.”

Deji Elumoye, Emmanuel Addeh, Alex Enumah, Ndubuisi Francis, Adedayo Akinwale, Emameh Gabriel in Abuja, Wale Igbintade in Lagos and Blessing Ibunge in Port Harcourt

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