By EBUN-OLU ADEGBORUWA, SAN

On February 8, 2023, the Supreme Court of Nigeria made an order directing that the old Naira notes of N200, N500 and N1000 should continue to circulate alongside the new Naira notes, pending the hearing and final determination of the Motion on Notice filed by three States before the Court. The case was then adjourned to February 15, 2023. In its reaction to the suit and the order made therein, the Federal Government of Nigeria, through the Honourable Attorney-General of the Federation, filed its processes in the suit and gave an undertaking to obey the order of the Supreme Court. In the meantime, the problems associated with the scarcity of the new Naira notes continued unabated. At the behest of the President, the Council of State met and gave an advice that if the new notes are not sufficiently available, then the old notes should continue to circulate concurrently with the new notes until such a time that the latter will circulate widely. When the Court case came up before the Supreme Court on February 15, 2023, the interim order previously made was validated and extended.

The following day on February 16, 2022, the nation woke up to listen to the President in his nation-wide broadcast on the crisis of the old and new Naira notes. The highpoint of the President’s broadcast is best captured in the now infamous declaration that the old N500 and N1000 notes have ceased to be legal tender and that the old N200 will remain legal tender till April 10, 2023. There are many absurdities in the President’s broadcast. The President himself acknowledged in that broadcast that the issue of whether or not the old Naira notes will remain legal tender is already pending before the Supreme Court and he is a party in that case through his Honourable Attorney-General. If that is the case (and indeed it is), then where lies the locus of the President to dabble into making proclamations on a matter pending before the Court? The President is not entitled to take the law into his own hands, by seeking to overreach whatever decision the Supreme Court may take on the matter, ultimately. Also, there is already a subsisting order made by the Supreme Court to preserve the status quo of the subject matter of the case before the Court. The President cannot disobey or circumvent that order, in whatever form at all.

The statement by the President that the old N500 and N1000 notes have ceased to be legal tender amounts to overruling the subsisting order of the Supreme Court, which he has no powers under the law to do. In every democratic setting such as obtains in Nigeria, there is the hallowed doctrine of separation of powers, by which the organs of government work separately and independently, without seeking to interfere with or undermine the statutory functions of the other organs. By virtue of section 6 (6) (b) of the 1999 Constitution, the judicial powers vested in the Courts extends to the determination of disputes between persons and persons, between persons and governments and between governments and governments. And once that dispute is submitted to the Court for adjudication, the parties lose the power to act or take any decision on the subject matter, otherwise we will be faced with a situation of complete anarchy and lawlessness. The reason for seeking to preserve the subject matter of a suit pending before any court is simply to avoid situations whereby the decision that may be reached by the Court on the case on the merit loses value or that the Court is made to face a situation of fait accompli or complete helplessness. In this instance, suppose the Supreme Court decides ultimately that in line with section 20 (3) of the Central Bank Act, the old Naira notes will continue to be legal tender? Meanwhile the President has by his broadcast declared them illegal. That creates confusion in the land, because people now have to decide who to obey between the Supreme Court and the President.

Under and by virtue of section 235 of the 1999 Constitution, “… no appeal shall lie to any other body or person from any determination of the Supreme Court.” In other words, the Supreme Court is the final authority in legal pronouncements in Nigeria. The Constitution is very careful in the selection of words to state no other “body” or “person” should seek to exercise authority over the Supreme Court, which is what the President has done through his broadcast in respect of a matter in which he is directly a party. Section 287(1) of the Constitution provides as follows:

Section 287(1) of the 1999 Constitution:

“(1) The decisions of the Supreme court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the supreme Court.”

Without doubt, the President, and indeed all persons exercising authority in Nigeria, including the Central Bank of Nigeria, are bound to obey and give effect to all decisions of all Courts in Nigeria. It is more so important in this case because it involves the highest Court in the land. In this case, the President cannot claim to seek to exercise any right of appeal against any decision of the Supreme Court as that has been outlawed by section 235 of the Constitution. This is why the broadcast of the President is sad for our democracy; it should not have been made at all, given the implications of the declarations stated therein. The President set himself in confrontation with the Supreme Court, by making a declaration that is contrary to that which had already been made by the Supreme Court. Since he already admitted that the matter is subjudice, the President should not have proceeded to vary the order of the Supreme Court. No one can choose or pick which portions of the order of a Court he will obey.

Under and by virtue of section 318 of the Constitution, ‘decision’ of the Court extends to “any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation”. So, whatever the Court has decided, sitting in its judicial capacity, becomes binding on all persons and authorities in Nigeria. The same section 318 states that authority includes government. The oath that was administered on the President is to defend and uphold the Constitution. In this regard, the President and indeed the executive should not give the impression that citizens can brazenly disregard lawful orders of any court, as that will only encourage anarchy and lawlessness.

The President not only reviewed the order of the Supreme Court but he actually overruled it, by setting a deadline of April 10, 2023 for the validity of the N200 old notes and declaring the N500 and N1000 notes as expired. No arm of government has the powers to do that which the President has done in his broadcast. And it portends very grave danger to our democratic experience, where such a bad precedent is set that the executive arm of government is at liberty to undermine the judiciary at will. The other point is that the President took an oath of office to defend and uphold the Constitution, from which he derives his powers as the head of the executive arm of government. That same Constitution enjoins the President to obey and give effect to all orders and decisions of the Supreme Court. And what is the issue at stake really? Nigerians were misled by the President and the Central Bank of Nigeria that if they surrendered their old notes to the banks, they will have access to the new notes in exchange, which has not been the case. The CBN cleverly deceived us into giving up our old notes when it had no plans to print enough new notes to go round.

This has now led to hardship for the people, wherein citizens are forced to sleep at ATM centres and stay in the banks for hours, just to collect their money. It has also affected business transactions and it has impacted upon the economy very negatively, where some workers now stay at home because they cannot access money to transport them from one location to another. We have experienced protests against the policy of the federal government, which has led to the death of many. Surely this cannot be the intention of the President. Section 14 (2) (b) of the Constitution prescribes that the primary purpose of government should be the security and welfare of the people. Thus, any policy of the government that leads to suffering, death, hardship and poverty, cannot be in the interest of the welfare of the people. Consequently, the President bears the onus to review the policy in such a way that it will benefit the people, ultimately. Furthermore, the President must inspire confidence in the institutions of democracy, in particular the judiciary. Once we get to the stage when citizens are free to decide which portion of the order of any court they will obey, then we are approaching the dangerous bend of a breakdown of law and order. If left unchecked, what the President has done is nothing less than executive rascality and brazen disregard for and contempt of the Supreme Court.

The President should reverse his directive and ask the CBN and all financial institutions to obey the subsisting order of the Supreme Court to continue to accept, use and transact business with the old N200, N500 and N1000 notes. It is gratifying that the case is coming up before the Supreme Court on February 22, 2023 when their Lordships will have the golden opportunity to assert their constitutional authority by reversing the directives contained in the broadcast of the President. Anything short of this will rob that Court of its legitimacy and authority. It will also render all other courts subordinate to the Supreme Court as mere talk shops whose orders and decisions will no longer be taken seriously by the citizens. Above all, it will leave the common man helpless and vulnerable.

•Ebun-Olu Adegboruwa, SAN, writes from Lekki Lagos.

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