By Sylvester Udemezue
May I humbly appeal that you kindly make out time and first read my earlier opinion titled “Naira Redesign and Swap Hullabaloo: Why I Think the Supreme Court of Nigeria Lacks Original Jurisdiction” (10 February 2023; it to is online) to see that, as I submitted in that commentary, virtually all the issues arising from the current controversy over the Naira Redesign and Daily Cash Withdrawal Limit policies recently introduced in Nigeria by the Central Bank of Nigeria, as well as the deadline set for use or swap of old Naira, revolve around the Central Bank of Nigeria, considering the provisions of sections 17,18,19 and 20 of the Central Bank of Nigeria Act, 2007. Apart from that Section 1(3) of the Central Bank Act, 2007 provides that the Central Bank of Nigeria “is an independent body in the discharge of its functions”, Section 17 of the Act provides that “The Bank shall have the sole right of issuing currency notes and coins throughout Nigeria and neither the Federal Government nor any State Government, Local Government other person or authority shall issue currency notes, bank notes or coins or any documents or token payable to bearer on demand being document or token which are likely to pass as legal tender”; while Section 19(1) (b) provides that “The currency notes and coins issued by the Bank shall be of such forms and designs and bear such devices as shall be approved by the President on the recommendation of the Board”. Section 20(1) of the Act provides that “The currency notes issued by the Bank shall be the legal tender in Nigeria at their face value for the payment of any amount” while Section 20(3) of the provides that “….the Bank shall have power, if so directed 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 coins with respect to which a notice has been given under this subsection shall, on the expiration of the notice, cease to be the legal tender, but subject to section 22 of this Act, shall be redeemed by the Bank upon demand”. Meanwhile, Section 251(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 provides that “Notwithstanding anything to the 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 — 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…”.
In the article cited above, I have given five major reasons why I think the Supreme Court of Nigeria does not have original jurisdiction over the cases recently instituted at the Supreme Court by some states in Nigeria, challenging the Naira Redesign; the Daily Cash Withdrawal Limit and the deadline for swap of Old Naira Notes.
Although non-joinder is the least of the issues I discussed in the article refered to above, yet I respectfully am of the opinion that it may be considered befuddling that, without joining the Central Bank of Nigeria as a party, some States in Nigeria would file cases (at the Supreme Court of Nigeria) with the Attorney-General of the Federation as the Defendant, but challenging CBN’s Naira Redesign Policy, Daily Cash Withdrawal Limit policy, and the deadline set by the CBN for use of old Naira notes (N200, N500, and N1,000) in Nigeria. The major questions are: (a) would it be fair or possible for the Supreme Court in the absence of the CBN, to make any orders that could bind or affect the CBN? (b) And can the issues for determination in the cases be fairly, properly, conclusively and effectually resolved in the absence of the CBN?
Some learned colleagues have argued that setting a deadline for naira swap was done by the CBN on the directive of the President of the Federal Republic of Nigeria, and that accordingly, it was an act of the president, through the CBN “as an agent of the President”. Unfortunately, with due respect, these respected learned colleagues failed to address and appreciate the fact that section 20(3) of the CBN Act, 2007, by its express provisions, leaves no one in doubt that the POWER to set the said deadlines for currency swap or for use of old Naira notes is CBN’s power, and not Mr President’s power to exercise. Put differently, it is the Central Bank of Nigeria that has power to set, and to exercise the POWER to give notice setting a deadline for naira swap. The fact that the Central Bank, in giving the Notice of such a deadline, is required to take directives from Mr President, does not detract from the fact that the Notice was issued by the CBN in exercise of CBN’s powers. Thus if one agrees that the power is legally stated to be that of the CBN, then one is entitled to agree that the CBN in exercising a power that is LAWFULLY its own, cannot be validly classified as an “agent” of the President for this purpose, especially as section 1 of the CBN Act has emphasized that the CBN is an INDEPENDENT INSTITUTION, having an independent existence, with powers to sue or be sued in its own name, and not (as) an appendage of Mr President. See the words used by section 20(3) of the CBN Act: “….the [Central] Bank SHALL HAVE POWER, to call in any of its notes or coins… and any note or coins with respect to which a NOTICE has been given under this subsection shall, ON THE EXPIRATION OF THE NOTICE, cease to be the legal tender…”.
How then does anyone think that any lawsuit over the Naira Redesign, Daily Cash Withdrawal Limit, and the deadline for swap of Old Naira notes could be fairly effectually and conclusively resolved/determined with relevant orders made to bind or otherwise affect the CBN, in the absence of the CBN? I seriously doubt that.
And this brings us to consider whether the present scenario does not bear any similarities with what happened in the recent (Supreme Court) case of AKEREDOLU V. JEGEDE (SUPREME COURT APPEAL MO: SC/448/21). A fair summary of the relevant portion of the judgement in AKEREDOLU V JEGEDE has been offered as follows:
“The candidate of the Peoples Democratic Party (PDP) in the election, Eyitayo Jegede and his party had challenged the competence of Akeredolu’s nomination/sponsorship for the election by the APC, claiming that the letter conveying his nomination/sponsorship to the Independent National Electoral Commission (INEC) was incompetent, having been signed by Buni and others. They contended that by the provision of Section 183 of the Constitution and Article 17 (4) of the APC constitution, Buni acted unlawfully by being the Yobe Governor and serving as APC’s Chairman at the same time, and as such, the nomination/sponsorship letter he signed for the APC, notifying INEC of the candidacy of Akeredolu and Lucky Aiydatiwa (as governorship and deputy governorship candidates) was void. In his lead majority judgment, Justice Agim held that, since Jegede and the PDP made Buni the centre of their allegation of constitutional breaches, he ought to have been made a party in the case to enable him to defend himself in line with the doctrine of fair hearing. The appeal was based on the ground that Mai Mala Buni, the Chairman of the National Caretaker Committee of the party, that is, the second respondent (APC) was holding office as the Governor of Yobe State, contrary to the provision of Section 183 of the Constitution of the Federal Republic of Nigeria (1999). “All the issues raised, revolved around Mala Buni. But, Mala Buni, who is at the centre of the dispute was not made party to the petition. It is obvious that the determination of the said issues will affect him.. Therefore, the court below was right to have held that he was a necessary party to this suit. Failure to join him renders the determination of the matter impossible. To proceed to do so would have violated the fair trial of the case” [See: “Akeredolu vs Jegede: Details of Supreme Court split ruling that awards victory to APC”; 29 July 2021; Daily Post] .
Thus, in respect of non-joinder of Governor Mala Buni the Supreme Court held that arguments to the effect that Governor Mai Mala Buni as Governor of Yobe State had violated Section 183 of the Constitution of the Federal Republic of Nigeria, 1999 by holding the office of the acting National Chairman of the APC while at the same time holding office as the serving Governor of a State, was a serious issue having grave consequences for him and no doubt the political party, but that it would be unfair to try that particular issue and pass decisions thereon in the absence of the Governor without joining him as a party to the petition; that it was impossible to achieve a fair trial of such an issue without joining him as a party. [Please, download and read a CTC of the full judgement or the Supreme Court: “EYITAYO JEGEDE V INEC & 3 ORS.: Judgement Dismissing The Election Petition Filed Against Governor Rotimi Akeredolu SAN. [DOWNLOAD JUDGEMENT]”; TheNigeriaLawyer; August 05, 2021]
Finally, while restating the general rule that mere non-joinder of a necessary party is not fatal to the case (as the court could go ahead and determine the suit between the parties actually before it), the Supreme nevertheless drew attention to an important exception to the general rule, namely — when non joinder could be fatal. I reproduce the words of my Lord, Agim, JSC at pages 38-39 or the judgement:
“…the contention that Governor Mai Mala Buni as Governor of Yobe State has violated S. 183 of the Constitution by holding office of acting National Chairman of the 2nd respondent is a very serious one with grave consequences for him and no doubt for the 2nd respondent as well. The judicial determination of that issue here would involve the enforcement of the Constitution against him and would certainly affect him personally as I have shown above. It would be unfair to him to try that issue in his absence without joining him as a party to the petition. The fair trial of the such issue in his absence without joining him as a party is impossible. There is no need to stress the point that he is a necessary party to the case because the issue upon which the appellants have predicated their case, namely, the invalidity of Mai Mala Buni’s signature in exhibit P21 and the invalidity of the said exhibit itself cannot be fairly, effectually and conclusively determined without joining him as a party to the case. A necessary party is one whose right or interest would be affected by the determination of the the dispute and the dispute cannot be fairly, effectually and properly resolved in his absence. This restatement has been made by this court in several cases. See for example Green v. Green (1987) LPElR-1338(SC), Babayeju & Anor v Ashamu (1998) 7 SC (PT 1) 156, Panalpina World Transport Nig Ltd v J.B Olandeen International & Ors (2010) LPELR-2902(SC) and A-G of the Federation v A-G of Abia State & Ors (2001) 7 SC (Pt 1) 32. The exception to the rule that non joinder of a necessary party to an action may not vitiate the action is where the non joinder makes the fair and effectual trial of the case impossible. See Okoye & Ors v Nigerian Construction & Furniture Co Ltd & Ors (1991) 7 SC (Pt III) 33, Okonta v Phillips (2010) 18 NWLR (pt 1737) 37 (SC) and NURTW & Anor v RTEAN (2012) LPELR-7840(SC).”
The implication of the above pronouncement is, I submit, that although non-joinnder of a necessary party does not vitiate an action, an exception exists (to the rule) where the non joinder in a particular case would reasonably render the fair and effectual trial of the case impossible. In other words, non-joinder of a necessary party may be fatal where the non joinder makes the fair and effectual trial of the case impossible. It is accordingly my humble submission that the fair, effectual, proper and conclusive trial and resolution of the issues arising for determination in the lawsuits instituted against the Attorney-General of the Federation as the sole Defendant, at the Supreme Court of NIigeria by each of the Attorneys-General of Kaduna, Zamfara, Kogi, Kano, Ondo, Niger States, etc, over the Naira Redesign and Daily Cash Withdrawal Limit Policies recently introduced by the Central Bank of Nigeria (CBN) pursuant to CBN’s powers under section 19 of the CBN Act, 2007, as well as the deadline set by the CBN (pursuant to its powers under section 20(3) of the CBN Act) for swap or use of old N200, N500 and N1,000 notes in Nigeria, would be impossible in the absence of the CBN as a necessary party to the case, each of the cases being one that revolves virtually around the CBN while all the issues that may arise for determination in the suits would one way or another affect the CBN. This is one of the reasons it’s respectfully suggested that the case should never have been filed at the Supreme where it’s impossible to join CBN, a necessary party in whose absence it appears impossible to fairly, effectually, properly, and conclusively resolve the issues arising in the case for determination. In the final analysis, I am afraid this may turn out to be “Like Mai Mala Buni in the Akeredolu case, Like Central Bank of Nigeria in the Naira Redesign/Swap Hullaballoo”. Just as sauce for the goose is sauce for the gander, it’s a principal requirement of the doctrine of Stare Decisiis culminating in the principle of binding Judicial Precedent, that similar situations be treated similarly? Well, we watch and see how it turns out! May the rule of law prevail in the end. Amen!
Sylvester Udemezue (Udems)
(12 February 2023)