Supreme Court: A Tale of Two Rulings

By Onikepo Braithwaite

Naira Redesign Policy: A Fiasco?

What exactly is going on in Nigeria? We seem to be reaching a total state of anarchy. And, isn’t it bizarre that the Government who has the constitutional duty to ensure that the people are safe, and is mandated to ”secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice”, is one of the major contributors to the chaotic state that we are in? See Sections 14(2)(b) & 16(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018) (the Constitution). This currency redesign policy seems to have snowballed into a fiasco, having a disastrous effect on our polity, as the people are frustrated and outraged because of their immense suffering caused by a lack of availability of the new currency in a country where millions of Nigerians depend on cash for their daily living, while giving an impossible deadline for the old currency to cease to be legal tender. Such a policy should be a gradual one, usually lasting for between six and twenty-four months, instead of the three months period that the CBN gave for the policy it introduced on October 26, 2022.

And, you would imagine that a Government that actually cares about its people, would step down what ordinarily should not be such a catastrophic policy, if not for its ‘shot gun’ bad timing; but, instead, the CBN has insisted that the unreasonable deadline should remain sacrosanct, despite the fact that, nationwide, the people do not have money to spend. The CBN Governor went further to inform the Council of State last Friday, that the Nigerian Mint doesn’t have the capacity to print more currency, because it is short of papers to print the new N500 & N1,000 notes, and they are on the waiting list of their foreign suppliers for the papers. Where then is the sense, in insisting on a policy that cannot be properly implemented, and is causing Nigerians so much anguish? Section 20(3) of the Central Bank of Nigeria Act 2007 (CBN Act) mentions ‘reasonable notice’ to be given for such a policy where currency will cease to be legal tender; I submit that three months notice is obviously not reasonable notice, as we can see from the amount of mayhem that this irrational deadline has caused nationwide, including pockets of violence.

Indian Example: Losses Outweigh Benefits

I read an article on a similar abrupt currency policy that the Indian Government introduced in 2016, which had some of the same goals as CBN’s – to mop up ‘black’ money, stamp out corruption, counterfeiting and so on, withdrawing Rs1,000 and Rs500 denominations over night.  Indians referred to this policy, as ‘Demonetisation’. It is obvious that for most of the politicians/parties who support CBN’s policy, they are not looking beyond their jubilation at the fact that such a policy may be a blow to chronic vote-buyers in the leading political parties, thereby possibly putting them in a better stead in the coming elections. But, if they were truly altruistic, they would look beyond their political ambitions to what majority of Nigerians are experiencing – pure pain, suffering and hardship. People who don’t even have enough money in the first place, now have to pay a premium to be able to purchase cash, that is, if they are even able to get!

According to Deepa Krishnan’s December 7, 2018 article in strategy + business a pwc publication on India’s 2016 policy: “There was no precedent, anywhere in the world, for a sudden economic shock of this scale….There was a rush at banks and ATMs to exchange old notes and withdraw new currency…..many people suffered, especially the poor…..and dozens of deaths resulting from the crisis were reported…..Two years later, the dust has settled, and it has become obvious that demonetisation was not the resounding success the government expected it to be….It would have been better to push those plans gradually, bearing in mind the needs of the weakest sections of society….At the end of two years, the benefits do not seem to have been worth the enormous financial losses and suffering”. As far as our own policy goes, these failures of the Indian policy are also plaguing ours.

Kudos to the Supreme Court So far, on the Currency Issue

Therefore, I give kudos to the Supreme Court for the ruling delivered by Honourable Justice John Inyang Okoro JSC, issuing an interim order restraining the Government from enforcing the February 10 deadline, pending the further hearing of the motion for interlocutory injunction tomorrow. If the Government and CBN don’t care about the people, in this case, for now, the Supreme Court has shown some concern by granting the Ex-Parte motion of Kaduna, Katsina and Zamfara State in the meantime.

As for the jurisdiction of the Supreme Court, Section 232(1) of the Constitution provides that the Apex Court has original jurisdiction, that is, being a court of first instance, inter alia, in any dispute between a State and the Federation. Federation is the central government/authority, in our case, the Federal Government headed by the President, and the AGF is the Chief Law Officer of the Federation. See Section 150(1) of the Constitution. Also see the case of AG Kano State v AGF 2007 6 N.W.L.R. Part 1029 Page 182-183. In this matter, I see no problem with the three State Governments, Kaduna, Kogi and Zamfara suing the Federation, the Federal Government represented by the AGF.

By virtue of Section 251(1)(d) of the Constitution, the suit could also have been instituted at the Federal High Court (Judicial Review would have been the ideal method to bring it by), instituted within three months that the policy was introduced. However, since the policy is not in itself a bad one, save for its implementation, and it’s only now, over three months later, that we are seeing it’s extremely negative effects on the people because of its ill-timing,  there may have been no reason to approach the Federal High Court initially (I suppose there can be an application for extension of time now). I was therefore, astounded to discover that some Political Parties had instituted an action on this same currency issue at the High Court of the FCT, which has absolutely no jurisdiction to hear the matter, and instead of the trial Judge to strike out the matter for lack of jurisdiction, he went ahead to issue an interim injunction restraining the CBN, President and the Banks from extending the February 10 deadline – an abuse of court process.

I submit that the order of the Supreme Court dated 8/2/23 in the AG Kaduna & 2 Ors v AGF currency case, is binding on the CBN who was not a party to the action; the CBN is indirectly bound. By virtue of the aforementioned Section 20(3) of the CBN Act which provides inter alia that “…. the Bank shall have power, if directed to do so by the President….”,  in the matter of calling in notes and coins and determining the date when same shall cease to be legal tender, by the order of the Supreme Court being binding on the President who directs the CBN in this matter, I submit that the said Apex Court’s interim order restrains that directive given by the President to the CBN, and the directive being the CBN’s authority to perform this particular function, thereby keeping it in abeyance until the February 15 adjournment date. Without the President’s directive which is the CBN’s authority to carry out this particular function, the CBN cannot enforce the February 10 deadline.

The Machina/Lawan Decision

In the case of the Machina/Lawan decision handed down by the Supreme Court recently, I align myself with the minority judgement/dissenting opinions.

Rule IV(1) of the Federal High Court (Pre-Election) Practice Directions 2022 provides that, every pre-election matter shall be commenced by way of Originating Summons, and being constrained by the Practice Directions so to do, this is how Counsel instituted Machina’s pre-election matter. The Federal High Court Registry wouldn’t have accepted Machina’s court process for his pre-election matter; and the Federal High Court would have rightfully declined jurisdiction in this case, had Machina’s case had been brought by any means other than by way of an Originating Summons, as provided by the Court’s Practice Directions.

We are aware that where there are disputes in a matter, Writ of Summons is the process normally used to commence such action, but the Federal High Court Practice Directions do not require this usual originating process for pre-election matters. I submit that Machina’s case bordered on questions as to the unlawfulness (illegality) of not recognising him as the winner of May 28 Primary and submitting his name to INEC (non-compliance with the Electoral Act 2022 (EA)). And, assuming but not conceding that there was a controversy arising from the provision of the Practice Directions and the normal rules of court, as to the type of originating process to be deployed, I submit that such controversy should have been resolved in Machina’s favour, and at best, been treated as an irregularity,  because firstly, Machina was constrained to use Originating Summons by virtue of the Practice Directions, and secondly, because of the glaring facts of his case. In Ikpeazu v Otti 2015 18 N.W.L.R. Part 1490 Page 47 at 71-72 per Oseji JCA (as he then was), the Intermediate Court stated succinctly that “In all election matters, the use of technicalities merely helps to shut issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too, must take a form devoid of legal technicalities that tend to leave the litigants more confused”. I submit that the  Supreme Court majority judgement in  Machina’s should have been decided on the merits of the case, rather than a perceived error in procedure. See the case of Jim Nwobodo  v Onoh 1984 1 S.C.N.L.R. 1 Page 195 per Uwais JSC (as he then was) where the Supreme Court stated thus: “It is the duty of the courts to hear them, without allowing technicalities to unduly fetter their jurisdiction”. 

Space constraints do not allow for me to go into the whole case, but there are some facts therein which are glaring:

1) The Primary for the Yobe North Senatorial District took place on May 28, 2022, duly monitored by INEC and Machina won; Lawan did not participate in this Primary as he was a Presidential aspirant as at that day;

2) That Section 30 of the EA provides inter alia that a candidate for an election shall be nominated in writing by registered voters in the constituency; it doesn’t envisage a candidate being nominated for more than one election. See Section 115(1)(d) of the EA; How could Lawan be a Presidential aspirant on June 8 and transform into a Senatorial candidate the very next day, June 9?;

3) The May 28 Yobe North Senatorial Primary was never cancelled, and what would have been the valid reason for the cancellation, if it had been?;

4) Section 33 of the Electoral Act 2022 (EA) provides for only two situations in which a party can change or substitute its candidate whose name has been submitted as the candidate being sponsored by the Party, having emerged from a valid primary – Death and Withdrawal. Though Machina’s name wasn’t submitted to INEC, he neither died, nor did he withdraw. What was the valid reason for any other primary? Because Senator Lawan failed to clinch the APC Presidential ticket, and had to have an elective position by all means? I submit that this reason doesn’t qualify as one of the reasons for change of candidates;

5) That Senator Lawan took part in the APC Presidential Primary which took place on June 8, 2022;

6) That the Senatorial primaries which Lawan purportedly participated in allegedly took place on June 9, 2022, the day after the Presidential Primary and 12 days after the May 28 Primary and based on the questionable June 9 Primary, Lawan’s name was unlawfully submitted to INEC instead of Machina’s;

7) That in the event that a Party is holding a Primary election (not as a result of Section 33 where 14 days notice is required) as in the  alleged June 9 Primary, Section 82(1) of the EA provides that INEC shall be given at least 21 days notice of such Primary, and from the three relevant dates, that is, May 28, June 8 & June 9, it is obvious that INEC was not given the requisite 21 days notice, because as of June 8, Lawan was still a Presidential aspirant, and if at all, no subsequent Yobe North Senatorial primary could lawfully and validly been held before June 30;

8) Consequently, Senator Ahmad Lawan could not have lawfully emerged as the APC Senatorial candidate for Yobe North.

Conclusion 

It is discouraging that with all the hullabaloo about the Electoral Act 2022 and electoral reform, they may not have the desired effect of improving Nigeria’s electoral process, as politicians are continuing with the old trajectory of electoral malpractice and political shenanigans, with even more gusto and aplomb. Going forward, how should pre-election matters be commenced? In pre-election matters, should Counsel engage in a fishing expedition, by applying to the court to order pleadings to be on the safe side, to forestall what happened in Machina’s case? Considering the fact that pre-election matters and election petitions seem to have come to stay in Nigeria’s legal jurisprudence, the judicial process must continually be fine-tuned until it becomes seamless. Rather unfortunately, there seems to be no remedy left open to Machina, as far as judicial process is concerned. See the dictum of Oputa JSC in Adegoke Motors Ltd & Anor v Adesanya & Anor 1989 3 N.W.L.R. Part 109 Page 250 at 274: “We are final not because we are infallible; rather, we are infallible because we are final”. However, also see the case of Iteogu v LPDC 2018 LPELR-43845(SC) on the instances in which the Apex Court has the discretion to set aside its own judgement.

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