Many States in Nigeria were gradually drooping into a state of anarchy as banks all over the country were being besieged by desperate customers due to the extreme shortage in the circulation of the new currency and the expiration of the old currency. Several bank ATM machines around the country were vandalized by angry mobs that could not gain access to their funds and could only vent their frustrations on the machines. The rejection of the old naira notes by the various commercial banks in Nigeria had also taken effect on the 10th of February 2023, despite the pending interim order of the Supreme Court. It was therefore no surprise when the Special Adviser to the President, Media & Publicity, Femi Adesina announced that President Muhammadu Buhari will make a national broadcast on Thursday, 16th February 2023 at 7 am to address the lingering issues bedeviling the country. It had become highly imperative in the face of growing agitations for the President to address/rescue the Nigerian situation before it gets out of hand. However, the broadcast of Mr. President has come with mixed feelings as it has thrown up several legal issues as to the correctness or otherwise of the position taken by the President in his morning broadcast. Here is a brief chronology of events that occurred with respect to the currency redesign that cumulated in the president’s broadcast of 16th February 2023.
- The Central Bank of Nigeria (CBN) had in October 2023 redesigned N200, N500, and N1000 notes and had set a deadline of 31st January 2023 for the use of old naira notes. However, after intense pressure, the CBN extended the deadline to 10th February 2023. Some Governors had met with President Buhari over the naira redesign, saying it was causing hardship. The President had told them to give him seven days to take action and resolve the issue.
- On the 8th of February 2023, the Supreme Court of Nigeria granted an interim injunction, ordering the Federal Government through any of its privies, particularly the Central Bank of Nigeria (CBN) not to end the use of old naira notes, although the Central Bank of Nigeria in itself was not a party to the suit as instituted by three northern states of Kogi, Kaduna and Zamfara States. The order by the Supreme Court canceled the CBN’s 10th February deadline to end the validity of the old versions of the banknotes. The suit was adjourned to the 15th of February 2023 for the hearing of the interlocutory motion.
- On the 8th of February 2023, in reaction to the injunction of the Supreme Court, the Governor of the CBN, Godwin Emefiele, said that there was no need for the deadline to be shifted. Technically, the statement by Governor Emefiele overruled the interim order of the Supreme Court. This further sparked confusion as banks, petrol stations, malls, and many others rejected the old notes while Nigerians spent hours in queues in the process of getting the scarce new notes.
- On the 15th of February 2023, when the suit came up for hearing at the Supreme Court, several applications were pending for joinder and a preliminary objection by the Attorney General of the Federation challenging the jurisdiction of the court to hear and determine the suit. The various applications led to the adjournment of the suit to a further date. The Supreme Court ordered the parties to amend their processes in line with the new parties joined. The Counsel to the Plaintiff at the Supreme Court had orally brought to the attention of the court that its order had been flouted by the CBN. In a unanimous ruling by a seven-member panel, led by Justice John Okoro, it held that the “interim injunction” will subsist “pending the hearing and determination of the Plaintiffs/Applicants’ motion on notice for interlocutory injunction.”
- On the 16th of February 2023, the President delivered a broadcast stating amongst several other issues that “In line with Section 20(3) of the CBN Act 2007, all existing old N1000 and N500 notes remain redeemable at the CBN and designated points”.He further stated that “To further ease the supply pressures, particularly to our citizens, I have given approval to the CBN that the old N200 bank notes be released back into circulation and that it should also be allowed to circulate as legal tender with the new N200, N500, and N1000 banknotes for 60 days from February 10, 2023, to April 10, 2023, when the old N200 notes ceases to be legal tender.”
Issues of law
It is of note that the President had told the Governors who came to visit him to give him a few days within which to decide on the lingering issues, the Governors however still rushed to the Supreme Court to get an interim order restraining the President through his privies (the CBN) from ending the use of old naira notes. The President still operating within the time he had given to the Governors, without minding the interim order of the Supreme Court went ahead to deliver a position contrary to the standing order of the Supreme Court. This I must state most respectfully is a terrible gaffe on the side of the President and all members of his inner circle who were privy to the broadcast of the President before its delivery.
You cannot sideline or undermine the standing orders of the most superior court of the land. It is more like desecrating or committing sacrilege against the exalted position of the court. It is an affront to the sacredness and sanctity of the Supreme Court.
Supremacy of the Constitution and the Supreme Court
The Supreme Court is the highest court of the land and the highest decision-making body in the land as conferred on it by the Constitution of the Federal Republic of Nigeria. The decision of the Supreme Court is final. Section 235 of the Constitution provides that no appeal shall lie to any other body or person from any determination of the Supreme Court. The Supreme Court had ordered that in the interim, the old notes should remain legal tender. This order remains extant until discharged or set aside. However, the President has in contrast to the interim order restricted the use of old notes to the N200 denomination only.
The Order of Court Must be Obeyed
There have been a series of arguments as to whether the President only exercised his constitutional powers as granted to him by the Constitution to the exclusion of any other arm of government. Well, whether the President was acting within his powers or not, there is already a subsisting order of a court, (whether obtained rightly or wrongly or even fraudulently), that has prohibited the decision to end the use of the old naira note. The correctness or legitimacy of the order of the Supreme Court will be left for the court to decide, but the point is that there is a subsisting order of the court, which MUST be obeyed until discharged or set aside. In A.D.H LTD V AMALGAMATED TRUSTEES LTD. (2007) ALL FWLR (PT. 392) 1781 AT 1842 (SC), the Supreme Court had held that “courts do not make orders in vain and they are meant to be obeyed…” Also in OKOYE V A.G ANAMBRA STATE (2002) FWLR (PT. 94) 198 at 205, the court held that any act of disobedience or disrespect directed at the Court which lowers its integrity, amounts to contempt and same must be discouraged. The President had no business giving any order in respect of the validation or otherwise of any of the currency. Having made this decision, what else is left for the Supreme Court to do? Has the suit at the Supreme Court not been overtaken? I hope the Supreme Court can make a pronouncement or take a position that reinstates its supremacy.
The decision of the President might be necessitated/justified on the grounds that there was an urgency that needed his quick intervention which could not wait till a final decision is made at the Supreme Court in the face of numerous applications for joinder and preliminary objections. There is no guarantee of having a final decision from the Supreme Court within a reasonable time in the face of growing anarchy in the system. Furthermore, the decision of Mr. President might have been borne out of the intention to forestall the monetization of upcoming general elections in Nigeria by substantially reducing the physical funds in circulation which is good and healthy for our democracy, particularly at this time. As a matter of fact, no substantive decision can be made by the Supreme Court before the incoming general elections. However, the method of execution strongly undermines the powers of the judiciary that has taken steps to intervene in the unfolding situation in Nigeria. As much as the decision of Mr. President to stand by his constitutional powers is commendable, the right approach to the action has not been properly engaged. A broadcast delivered by the President that overturns a standing order of the Supreme Court has in itself become an appellate decision of the President. As it stands, the broadcast of the Mr. President might be voided by the Supreme Court. We however hope that whatever decision is taken by the Supreme Court, it would be in the overall interest of the Nigerian economy and the future of Nigerian democracy.
Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice based in Abuja, FCT. A prolific writer, public affairs analyst, and commentator on national issues. email@example.com.