LANRE ADEWOLE writes on the legal battle over naira swap deadline.
The Supreme Court of Nigeria will today resume hearing in the suit brought by three states, against the federal government over the controversial currency swap policy of the Central Bank of Nigeria.
A seven-man panel of the apex court, last week Wednesday, granted an interim injunction as requested by the suing states of Kogi, Kaduna and Zamfara, “restraining the federal government through the Central Bank of Nigeria (CBN) or the commercial banks from suspending or determining or ending on 10 February, the time frame with which the now-older version of the 200, 500 and 1000 denominations of the naira may no,longer be legal tender, pending the hearing and determination of their motion on notice for interlocutory injunction.”
The court is sitting as a court of first instance on the matter.
While the Federal Government was blocked from participating in the hearing of the exparte application filed at the Supreme Court on 3 February and heard five days later, the resumed hearing today is expected to feature the objection of the central authority as the main issue in the proceedings.
The respondent, Mr. Abubakar Malami, SAN, amid alleged move by the CBN to ignore the interim order because it was not joined as a party, had promised that the order, despite the reservation of the federal government, would be obeyed.
He also disclosed that his preliminary objection would be challenging the jurisdiction of the apex court to hear the suit, without CBN as a necessary party.
He said, “An interim order was granted by the Supreme Court and that order was to lapse on Wednesday (February 15) and incidentally, that was the day the court fixed for hearing of the motion.
“With the position in mind, we have taken steps to file our objection challenging the jurisdiction of the court to entertain the matter. Jurisdiction on the ground that when you talk of monetary policy, Central Bank is an indispensable and necessary party in the matter.”
As the ultimate appellate court, Supreme Court can only act as a court of first instance in disputes involving federal and state governments. Once an agent of the federal government is involved as a party, such matters are constitutionally meant for the federal high court, as the court of first instance.
Fireworks
Today’s hearing is expected to generate a lot of fireworks, considering the intention of the Attorney General to have the interim injunction lifted. He is however expected to run into a headwind, considering the posture of the CBN, regarding the order on the 10 February deadline.
The apex bank, since the order was issued, has postured in defiance, with a leaked internal legal opinion suggesting that the bank, alongside its operations, was not captured in the interim order and therefore, not bound by it.
Less than 24 hours to the proceedings, the governor of the bank, Mr. Godwin Emefiele on Tuesday, took a stand on the order, saying it had not affected the initial deadline set by the bank.
This position effectively translates to the apex court order not being obeyed.
Emiefiele, in Abuja, during a meeting with members of the diplomatic corps, said the 10 February deadline to phase out the old N1,000, N500, and N200 notes remained unchanged.
He acknowledged the inconveniences caused by the naira redesign policy, including hoarding and elevated agitation, but urged Nigerians, particularly those in positions of authority, not to overstate it, to avoid spreading fear. The CBN boss also maintained that the benefits are significant and will eventually lead to a cashless policy while acknowledging that the transition to using the new naira notes may be difficult.
Falana reacts
Leading rights lawyer, Mr. Femi Falana, SAN, wanted the apex court to take judicial notice of the position of the apex bank when hearing commences today.
If a party disobeys an order of a court, the usual practice is for the opposing side to demand that the disobeying party isn’t heard by the court, except and until it complies with the subsisting order.
Supreme Court has also been at the forefront of renewed campaign to have governments at all levels, comply with orders of courts, though the current administration of President Muhammadu Buhari, has a record of not complying with court orders, especially those against it.
Falana is however insisting that regardless of the misgivings of the federal authorities, once the Supreme Court has spoken, there must be compliance.
In an interview with Channels Television on Tuesday, Falana said CBN has a responsibility to direct commercial banks to comply with the order of the court.
He said, “In a country where the rule of law operates, once the supreme court has determined a matter or given an order, it is expected that all and sundry, everybody, will comply with the order, In this instance, the government was not really ready to comply with the order.
“A statement was credited to the central bank that said since it was not a party to the case, it is not going to comply with the order. I thought that could only happen in a Banana Republic. Because you would have expected the central bank to have issued a statement that following the order of the supreme court, all actions are ceased until the 15th of February.
“I think the plaintiffs will have to take it up in the court.”
He added that the CBN and its governor cannot refuse to obey the court order on the excuse that it was not a party in the suit, noting that “when the court in Abuja granted an order that Godwin Emefiele should not be arrested, he wasn’t a party to the case. When he ran to use some proxies to file an action against the central bank board in Delta state, preventing the bank from moving against him for participating in politics, he wasn’t a party. So people can also choose to pick which orders of the court to obey.”
He also believed that the CBN had been inciting the public against commercial banks despite not disbursing sufficient cash.
“Unfortunately, the Central Bank appears to have incited the public against the banks because people now troop to the banks. Let the public know how much you have released to each bank so that we can also ask them ‘can you justify what you did with the money’. But if you run the country on the basis of secrecy, you leave people guessing and making allegations and counter-allegations. The policy is supposed to be a good strategy to curb vote buying, but it was not well thought-out. There was no committee to learn from what happened to Nigeria in 1984 when the Buhari military junta changed the colour of the naira and gave Nigeria only two weeks. At that time, the population was 81 million. Many people died and even committed suicide because they couldn’t get their money.”
Precedents
Activist and legal practitioner, Inibehe Effiong in a social media post had taken the side of the apex bank, saying that it ought to be a party in the suit filed by the three governors for the interim order to be binding on it. Alluding to decided cases, he reasoned that adding the bank to the suit, would automatically scale it down to the federal high court.
A group which Falana chairs, Alliance for Surviving Covid 19 and Beyond (ASCAB) however disagreed.
In a statement issued the day after the order was issued, the group, said, “we have just read a report that the Authorities of the Central Bank of Nigeria have decided not to comply with the ex parte order issued by the Supreme Court of Nigeria in respect of the avoidable currency swap crisis. The reason adduced for the contemptuous disregard for the rule of law is that the Central Bank of Nigeria is not a party to the case of Attorney-General of Kaduna State & 2 Ors. v. Attorney-General of the Federation (Suit No: SC/CV/162/2023) pending at the Supreme Court.
“It is pertinent to remind the Management of the Central Bank of the case of Nkwo Augustine Eddiego v. Board of Central Bank of Nigeria (Suit No: HCIK/38/2022), where the Delta State High Court granted an ex parte order which restrained the defendants from preventing the Governor of the Central Bank of Nigeria from seeking political offices pending the hearing and determination of the motion on notice in the case. Even though Mr. Emefiele was not a party to the suit he took advantage of the ex parte order to join the APC to contest the presidential primary of the APC before he was stopped by President Buhari.
“Similarly, in the case of Incorporated Trustees of the Forum for Accountability and Good Leadership v. Attorney-General of the Federation & Ors. (Suit No: FCT/HC/GAR/CV/41/2022) the High Court of the Federal Capital Territory granted an injunction restraining the State Security Services from arresting, investigating and prosecuting Mr. Emefiele for terrorism financing. Although he was not a party to the suit Mr. Emefiele has not been arrested by the State Security Services on the basis of the court order.
“Therefore, it is height of arrogance of power for Mr. Emefiele to treat the ex parte of the Supreme Court with provocative contempt. In view of the looming anarchy in the country we are compelled to draw the attention of the Central Bank Management to the case of Attorney-General of Lagos State v. Attorney-General of the Federation (2005) 2 WRN 1 at 109 where Tobi JSC of blessed memory cautioned all authorities and persons in Nigeria thus:
‘In a society where the rule of law prevails, self-help is not available to the executive or any arm of government. In view of the fact that such a conduct could breed anarchy and totalitarianism, and since anarchy and totalitarianism are antitheses to democracy, courts operating the rule of law, the life-blood of democracy, are under a constitutional duty to stand against such action. The courts are available to accommodate all sorts of grievances that are justiciable in law and section 6 of the Constitution gives the courts power to adjudicate on matters between two or more competing parties. In our democracy all the governments of this country as well as organizations and individuals must kowtow to the due process of the law and this they can vindicate by resorting to the courts for redress in the event of any grievance.’
“It is public knowledge that the federal government has filed a preliminary objection challenging the jurisdiction of the Supreme Court to hear and determine the case of the Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation (supra). In the interim, the Federal Government of Nigeria and its agencies including the Central Bank of Nigeria, are bound by the valid and subsisting ex parte order of the Supreme Court of Nigeria until it is set aside by the same court. The alternative is to compound the ongoing anarchy and chaos in the land.”
