Despite the unambiguous March 3, Supreme Court judgment ordering that the old N200, N500 and N1,000 notes should coexist with the new ones, President Muhammadu Buhari has failed to direct compliance. The President’s refusal not only threw Nigerians deeper into what many see as a politically-motivated hardship, it also affirmed the apex court’s view of Buhari as a violator of lawful orders and the rule of law. Lawyers tell ADEBISI ONANUGA what should be done.
It is 12 days today since the Supreme Court delivered its judgment in the case on the naira redesign policy brought by 16 state governments against the Federal Government.
The apex court ordered that the old N200, N500 and N1,000 notes should coexist with the new ones as legal tender and extended the period of the validity of the old notes to December 31, 2023.
A seven-member panel of the apex court, led by Justice John Okoro, said the procedure adopted by government in implementing its cashless/naira swap policy was wrong.
Justice Emmanuel Agim, who read the lead judgment, held that condition precedent was not met before President Muhammadu Buhari directed the Central Bank of Nigeria (CBN) Governor to distribute the new notes and withdraw the old ones.
Other members of the panel who were in agreement with the lead judgment are Justices Amina Augie, Mohammed Lawal Garba, Ibrahim Saulawa, Adamu Jauro, and Tijani Abubakar.
They held that the directive by President Buhari to the CBN governor to distribute new notes and withdraw old one was invalid because no reasonable notice was given to Nigerians as required under Section 20(3) of the CBN Act.
Justice Agim noted that rather than issuing a formal or public notice, what the CBN governor did was to simply issue a press statement, which he equated to the required three-month notice under Section 20(3) the CBN Act, adding that the press statement did not qualify as a reasonable notice envisaged under the CBN Act.
The justice added that Federal Government’s reliance on the said press release as the notice of its plan to distribute new naira notes and withdrawal of the old ones showed its disregard for the importance of giving reasonable notice as a valid foundation for the introduction of new naira notes and withdrawal of old ones.
He held that since the requirement that reasonable notice should be given was not met by the Federal Government, the directive given by the President to the CBN governor for the distribution of the new notes and withdrawal of the old ones was invalid.
Justice Agim expressed displeasure at government’s failure to obey the February 8th interim injunction ordering that the old notes should remain legal tender until the conclusion of the case.
He noted that rather than comply with the order, Buhari made a national broadcast on February 16 in which he varied the order made of the court and directed that only the old N200 notes should remain in circulation.
The judge held that had the Federal Government complied with due process and consulted widely before introducing such a policy with huge impact on the nation, the current disorderliness and pains being experienced by the citizens would have been avoided.
He said: “It is not in dispute that the President of Nigeria did not seek the advice of the National Council of State, the National Economic Council, the National Security Council, the Federal Executive Council and other stakeholders before directing the CBN governor to issue new naira notes and withdraw the existing ones.
“Before introducing such policy with far reaching effects on the constituent states of the federation, the President ought to consult widely with all stakeholders.”
He noted that even when the President realised belatedly the need to consult, he invited the CBN governor to brief the National Council of State on the policy, but still failed to heed the advice given by the council.
Drawing examples from Europe and other developed societies, Justice Agim said in most cases where new notes are introduced, they co-exist with the old notes for a minimum of one year.
He recalled that a hasty execution of the naira policy in India some years ago created major disruptions in the country’s socio-economic life as is being witnessed in Nigeria today.
Justice Agim faulted the cash withdrawal limit also contained in the policy and held that it was a violation of the right of the owners of such funds to their property, and therefore unlawful.
The court dismissed all the objections raised against the suit by the defendants – the Attorney General of the Federation (AGF), Attorney General of Bayelsa State and the Attorney General of Edo State.
The court held that as against the defendants’ contention that the suit ought to be filed at the Federal High Court, it was properly filed before the apex court because it bordered on dispute between some states and the Federal Government in regard to the President ‘s exercise of the Executive powers of the federation.
He also held that the plaintiffs had the locus standi (the legal right) to approach the court on the issue because the Federal Government’s economic policy has adversely affected their activities in the states and disrupted the socio-economic life of the people.
The judge also said that the CBN was not a necessary party in the case because it is an agency of the Federal Government, which was sued through the AGF.
Justice Agim held that the rule of law, on which our democratic governance is founded, does not give the President or any other person the discretion to vary a court order.
In addition, he said the disobedience of court order by the President in a democracy such as that of Nigeria was a sign of the failure the Constitution, a threat to democratic governance and a drift towards autocracy.
The beginning
Three states, Kaduna, Kogi and Zamfara had initially sued the Federal Government over the implementation of the naira policy following the hardship which the policy brought upon Nigerians.
On February 8, the applicant states obtained an interim order of the Supreme Court restraining the Federal Government from banning the use of the old N200, N500 and N1,000 currencies as legal tender pending the hearing and determination of their interlocutory application.
Justice John Okoro who issued the interim order fixed February 15, for hearing of the interlocutory applications
However, when the matter came up on February 15, nine other states had applied to be joined as interested parties. They include Lagos, Katsina, Cross River, Ogun, Ekiti, Ondo, Sokoto. While Bayelsa and Edo states sought to be joined as co-defendants alongside the Federal Government.
With more states seeking to be joinders in the suit, hearing was again adjourned till Wednesday February 22 and judgment in the matter subsequently fixed for Friday, March 3.
President’s national broadcast
In response to the interim order of the Supreme Court restraining the Federal Government from banning the use of the old N200, N500 and N1,000 as legal tender, President Buhari had on February 16 gave a nationwide broadcast in which he varied the orders of the apex court and directed that only the N200 should remain as legal tender till April 10.
The Presidential broadcast however, fell short of the expectations of Nigerians who had expected that the President would comply with the orders of the Supreme Court.
Judgment a relief to Nigerians?
As much as the March 3 judgment of the Supreme Court was a big relief to the country, it did not change the chaotic situation on the ground as the orders of the court were not complied with.
Many had expected the President to obey all the orders of the Supreme Court. There were also those expecting a repeat national broadcast from the President in which he was expected to assure Nigerians of his readiness to comply with all the terms listed by the apex court. But these anticipations were not to be as the lives and living conditions of most of Nigerians continued to deteriorate due to the scarcity of old and new naira notes.
Hardship everywhere
The scarcity of the naira, which has persisted since January, has also affected the living conditions and economic life of the people with many businesses nose-diving, particularly small businesses that survive on daily income. Worst hit by the cash crunch are hawkers, roadside and retail businesses.
Many banks shut their doors against customers as they had no new currencies to dispense. Customers who withdrew old notes from ATM machines couldn’t use them for transactions as market men and women, especially transporters, declined to accept same.
Kogi governor threatens residents with arrest, prosecution
All attempts to make the old notes acceptable in many states. The continued rejection of the old notes and its attendant chaos in the society forced Governor Yahaya Bello of Kogi State last week to threaten to arrest and prosecute those rejecting the old notes in the state. In a statement issued by his Commissioner for Information and Communications, Mr Kingsley Fanwo in Lokoja, the governor described as “unacceptable” and “demeaning” the continuous rejection of the old notes in spite of the orders of Supreme Court.
“This administration will not stand and watch some persons and businesses continue to reject the use of the old naira notes, even after the court judgment validating their use. To us, rejecting the old naira notes is a clear disobedience of the Supreme Court orders, which shall be vehemently resisted. Anyone who rejects the old naira notes should be reported to the security and government authorities for immediate arrest and prosecution”, he said.
Lagos, Anambra others urge residence to accept old notes
Many states have warned residents and businesses against rejecting the old N500 and No 1,000 notes.
Lagos and Anambra on Sunday said the old notes remained legal tender until December 31, urging banks and residents to continue accepting them.
Lagos State Governor, Babajide Sanwo-Olu, has ordered all Ministries, Departments, and Agencies, MDAs, as well as Courts in the state to commence acceptance of old N500 and N1,000 notes.
Sanwo-Olu also urged business owners, especially retailers, to accept the old N500 and N1,000 notes, to ease hardship sparked by the Naira redesign policy introduced by the Federal Government. Raising concerns over the policy’s impact on business and commercial activities, the Governor on Sunday said there was no reason to reject the old notes, going by the Supreme Court’s judgement delivered on March 3, 2023.
He, in a statement by the Commissioner for Information and Strategy, Gbenga Omotoso, assured Lagosians that all agencies in the state would not reject the currency whenever they aim to transact business with them.
The statement reads; “There is no reason to reject the old notes, going by the Supreme Court judgement delivered on March 3, 2023. The apex court declared that “no reasonable notice was given as required by Section 20(3) of the CBN Act,” noting that the public only became aware of the policy through press remarks, which cannot qualify as a notice to the public.
“The court maintained that the policy has impeded the functions of State governments, pointing out that the directive that stops the use of the old notes is illegal, unconstitutional, null and void.
“Governor Babajide Sanwo-Olu has, therefore, called on business owners, especially retailers, to accept the old N500 and N1,000 notes – in line with the Supreme Court judgement that the currency remains legal tender until December 31, 2023. It is illegal to reject the notes.
“All agencies of the Lagos State Government are advised not to reject payments made with the old currency by the public.
President, CBN mum
A day after the Supreme Court judgment, the President left for the 5th United Nations Conference on the Least Developed Countries (LCDs) in Doha, Qatar. The conference held from March 5 to 9, March, 2023.
Immediately after he returned home, the President left for Daura. Since then, nothing has been heard from him to give direction on what is to be done about the judgment.
What is Buhari, CBN doing?
Last Saturday, March 4, the Socio-Economic Rights and Accountability Project (SERAP) urged Buhari to disclose details of the measures his government is taking to immediately and effectively obey the Supreme Court decision.
In the letter dated March 4, 2023 and signed by SERAP deputy director Kolawole Oluwadare, the organisation said there was an overriding public interest in disclosing the details of the measures the government and the CBN were taking to effectively and satisfactorily obey the apex court’s decision.
It said the public should not be kept in the dark on the matter, saying widely publishing the implementation measures would also improve accountability of state officials and public confidence in the rule of law and Nigeria’s democracy.
SERAP urged Buhari “to publicly instruct the CBN to immediately and effectively implement the Supreme Court decision ordering an end to the cash withdrawal limits imposed by banks because such restrictions violate citizens’ right to freely use their property.”
History of disobedience to court orders
President Buhari has a reputation for cherry-picking court orders to obey. SERAP, which keeps a record of his disobedience, said from 2015 till date, the President has disobeyed many court orders and judgments.
Speaking while presenting the SERAP Law Report to the public at a media briefing held in collaboration with the MacArthur Foundation last year, human rights’ lawyer, Femi Falana (SAN) listed some of the judgments that the Buhari administration disobeyed.
Among them is the judgment by the ECOWAS Court of Justice in Abuja, which awarded N30million as compensation for the ill-treatment of journalist Agba Jalingo, who faced trumped-up and politically motivated charges of treason.
“The second judgment, by Justice Mohammed Idris, on 26 February, 2016 ordered the Federal Government to publish details on the spending of stolen funds recovered by successive governments since the return of democracy in 1999.
“The third judgment, by Justice Oguntoyinbo on November 26, 2019, ordered the Federal Government to challenge the legality of states’ pension laws permitting former governors now serving as ministers and members of the National Assembly to collect such pensions, and to recover pensions already collected by them.
“The fourth judgment, by Justice Mohammed Idris on May 28, 2018, ordered the Federal Government to prosecute senior lawmakers suspected of padding and stealing N481 billion from the 2016 budget; and to widely publish the report of investigations into the alleged padding of the 2016 budget.
“The fifth judgment, by Justice Obiozor, on July 4, 2019 ordered the Federal Government to publish the names of companies and contractors who collected public funds since 1999 but failed to execute any electricity projects.
“The sixth judgment, by the ECOWAS Court of Justice in Abuja, delivered on November 19, 2009, ordered the Nigerian authorities to provide free and quality education to all Nigerian children without discrimination”, among others.
Graveyard silence
Stakeholders are worried over the continued silence of the President to make a pronouncement on the judgment. Also worrisome was the refusal of the CBN Governor, Godwin Emefiele to comply with the March 3, 2023 orders.
Ten states set for contempt procedings against AGF, CBN Gov
Meanwhile, 10 states are set for contempt proceedings against the Federal Government and the Central Bank of Nigeria (CBN) over the issue.
The governments of Kaduna, Kogi, Zamfara, Ondo, Ekiti, Katsina, Ogun, Cross River, Lagos and Sokoto states last Friday served the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) the enrolled order of the Supreme Court on the extension of the validity of the old N200, N500 and N1,000 to Decemr 31st, 2023.
By the service, the order became automatically applicable to all agencies of the Federal Government, including the Central Bank of Nigeria (CBN).
Malami and Emefiele risk being committed for contempt if they refuse to comply with the order of the apex court.
The 10 states have activated the machinery to file contempt charges against Malami and Emefiele if they defy the order of the Supreme Court.
Lawyers reactions
Eminent constitutional and senior lawyers have not shifted in their position that Malami and Emefiele are to be held responsible for the quagmire in which the country found herself. They condemned the duo for their disrespect and disregard to the order of the apex court.
They include Prof, Itse Sagay (SAN), activist lawyer, Femi Falana (SAN), Chief Louis Alozie (SAN), Ebun-Olu Adegboruwa (SAN), Wahab Shittu (SAN) and Dr. Fassy Yusuf
Emefiele in contempt for not directing banks – Sagay
Prof Sagay, while speaking at a media parley in Lagos on the activities of the Presidential Advisory Committee Against Corruption (PACAC) last week said Emefiele is in contempt if he has not issued a directive to banks to pay and accept old N1,000 and N500 notes as ordered by the court,
Sagay emphasised that every Supreme Court order made on March 3, 2023 is binding on all, including the government, stressing that the old N200, N500 and N1,000 notes would remain legal tender until December 31 and co-exist with the new ones.
“The only thing is that nothing can be done if the President decides to disregard it because of his immunity; but he is bound by law.”
The Silk also argued that the CBN does not need anyone to give it instructions to obey a judgment because it is an agency of the Federal Government.
He added: “So, if the CBN has not yet directed banks to obey the Supreme Court decision, it means that Governor Godwin Emefiele is committing contempt of court and there could be consequences for that.
“We hear there is a level of obedience by some banks that are paying and accepting the old notes, so hopefully the level of compliance will increase.
“But, everybody is bound by the judgment, including the Attorney-General of the Federation. He is bound by the judgment.”
Malami, Emefiele encouraging disobediencef judgment, says Falana
Falana recalled that Chief Kanu Agabi (SAN), who led the Federal Government legal team at the Supreme Court, stated very clearly that his client would comply with the judgment.
“But when asked why the Federal Government had not obeyed the terms of the judgment, the AGF, Abubakar Malami (SAN) said that he was not in a position to advise the president on monetary matters. In other words, he would not advise the authorities to comply with the judgment.”
Falana, however, noted that some of the banks have been complying with the orders of the court, adding that “the CBN Governor, Mr. Godwin Emefiele has said that he did not authorise the banks to disburse old N500 and N1,000 notes. The banks did not need any authorisation as the judgment took immediate effect.
“The implication is that both Messrs Malami and Emefiele are brazenly encouraging utter disobedience of the judgment of the Supreme Court.
He requested President Buhari to call Malani and Emefiele to order without any further delay.
“Specifically, the President should direct all authorities and persons to comply with the judgment of apex court,” he added.
New naira scarcity illegal – Alozie
Alozie argued that by the provisions of the Money Laundering Act, the limit of cash an individual can withdraw across the counter is N5million. He said this statutory provision is binding on government, including the President and CBN.
He said it cannot be overridden by any other regulation by the CBN or the President.
“So the creation of artificial scarcity by the Federal Government and CBN is illegal,” Alozie said.
Supreme Court judgment binding on CBN, others
Alozie also contended that the judgment of courts including the Supreme Court is binding on the government and CBN and that they have no choice in the matter.
He added: “It is unfortunate that the authorities are ignoring the judgment of the Supreme Court. That is highly contemptuous.
“If we had a National Assembly alive to its duties, the President would have been impeached on account of this.
“The CBN Governor who has no immunity under the constitution would have been cited for contempt of court too.”
He regretted that the country “has been carrying on as if we are still under military rule.”
Alozie contended that the only way to resolve the quagmire was to pressurise the Federal Government to obey court judgments stressing that “there is no other way out of it. Judgments of courts take immediate effect. The delays in making the new cash available to Nigerian is worrisome and unfair.”
Why Buhari must obey Supreme Court
Activist-lawyer Ebun-Olu Adegboruwa said Buhari must ‘immediately’ ensure compliance with the judgment, adding that there is no room for further appeal against the judgment.
According to him, the judgment “delivered on the arbitrary and capricious redesigning of Naira notes is a courageous confirmation of the sanctity of the rule of law and due process, in a democracy.”
Judgment a soothing relief
“It is a soothing relief from the hardship that Nigerians have been subjected to over the past few weeks on account of this rather thoughtless policy.
“The court should always be the platform for the resolution of all disputes by all aggrieved persons.
“I salute the sagacity and courage of the justices of the Supreme Court for rising up to rescue Nigerians from the pangs of death, frustration and looming economic recession.
“As there is no room for further appeal against the judgment of the Supreme Court, I urge the President to immediately direct the Central Bank of Nigeria to comply fully with the judgment of the Supreme Court, as stated under section 287(1) of the Constitution and allow ALL the N200, N500 and N1000 old Naira notes to be circulating along with the Naira new notes till December 23, 2023.
“Across all our land today, there will be joy in many homes, businesses will bounce back and Nigerians will find cause to celebrate their freedom from all forms of dictatorship and arbitrariness.”
Law bigger than any person
Shittu, a prominent litigator and prosecutor regretted that so far, the body language of Mr President and the CBN Governor to the order of the Supreme Court is unfortunate and sad indeed.
According to him, “this is a democracy founded on the rule of law. No matter how big a person is, the law is bigger. The entire Governance architecture is built on respect for the rule of law. Rule of law is the foundation of constitutional democracy. Remove the rule of law, what we have left is anarchy and lawlessness. “
He also pointed out that where anarchy and lawlessness reign supreme, the law of the jungle takes over and in such circumstances, no one is safe including the Government and the Governed.
‘President, CBN Governor not above the law’
Shittu pointed out that the President and the CBN Governor are not above the law stressing, “no state can afford to treat its laws particularly the pronouncements of the highest court with levity.”
He said his expectation was that immediately the Supreme Court made the order, the President, the CBN and the Attorney general of the Federation would all direct immediate compliance.
“That is the path of sanity, that is the path of constitutionalism, that is the path of the rule of law. Failure to comply has grave implications. It is a clear demonstration of contempt for the rule of law.
“It also impacts negatively on foreign direct investment. Local businesses are worse hit as poverty and hunger dominate society. It also signposts the failure of the government to meet the expectations of the people .This is because security and welfare of the people remain the primary purpose of the government.”
‘Committal Proceedings must commence immediately’
He said committal proceedings should commence without further delay as the only way out..
“Against who? Of course the Attorney general of the federation and the CBN Government should face committal proceedings immediately. The president enjoys immunity by virtue of his office. But the first other two do not enjoy such immunity. No one is entitled to take the Nigerian people for granted”, he said.
‘Hold ‘cabal’ in the Presidency responsible’
Another leading litigator, Dr. Yusuf was of the view that there is a cabal in the presidency with the alleged complicity of the Attorney General of the Federation and Minister of Justice who are hell bent in causing chaos and anarchy in this country by preventing the apex court of the land to make a judgment in futility.
Government, that is, the President and the cabals in Aso Rock and the AGF should be held responsible if the situation should degenerate.
‘Initiate contempt proceedings’
Dr Yusuf advised: “What would happen is this. Those who brought the matter to the Supreme Court should ensure that the President and the Attorney General of the Federation, who were party in the suit, are properly served copies of the judgment. Thereafter, if they still fail to do the needful, contempt proceedings should be brought against them. The Judiciary, even though they are to be seen and not heard in the public, should be moved to protect the integrity of the judiciary by abstaining from listening to any government suit since they failed, refused and … therefore they have no business approaching the court for any remedy.
‘Task before NBA’
The Nigerian Bar Association (NBA) should take up the matter and condemned and in no small measure, the infraction of the federal government.
The CBN is saying it has not been served, that it is not a party to the suit. But according to the judgment of the Supreme Court, the CBN is an agent of the Federal Government and as a result must obey. But since the AGF has refused to implement the decision of the apex court, what can you expect the CBN to do? Everybody is in a dilemma. They give you old notes of N1,000 or N500 in the bank but you cannot tender it.
So, the AGF should be responsible and the Legal Disciplinary Committee should act on the matter.
