Legalpedia Citation: (2023-03) Legalpedia 69474 (SC)

In the Supreme Court of Nigeria

Holden at Abuja

Fri Mar 3, 2023

Suit Number: SC.CV/162/2023

CORAM

JOHN INYANG OKORO JUSTICE SUPREME COURT

AMINA ADAMU AUGIE JUSTICE SUPREME COURT

MOHAMMED LAWAL GARBA JUSTICE SUPREME COURT

IBRAHIM MOHAMMED MUSA SAULAWA JUSTICE SUPREME COURT

ADAMU JAURO JUSTICE SUPREME COURT

TIJJANI ABUBAKAR JUSTICE SUPREME COURT

EMMANUEL AKOMAYE AGIM JUSTICE SUPREME COURT

PARTIES

ATTORNEY GENERAL OF KADUNA STATE

2. ATTORNEY GENERAL OF KOGI STATE
3. ATTORNEY GENERAL OF ZAMFARA STATE
4. ATTORNEY GENERAL OF ONDO STATE
5. ATTORNEY GENERAL OF EKITI STATE
6. ATTORNEY GENERAL OF KATSINA STATE
7. ATTORNEY GENERAL OF OGUN STATE
8. ATTORNEY GENERAL OF CROSS RIVER STATE
9. ATTORNEY GENERAL OF LAGOS STATE
10. ATTORNEY GENERAL OF SOKOTO STATE

APPELLANTS

ATTORNEY GENERAL OF THE FEDERATION

2. ATTORNEY GENERAL OF EDO STATE
3. ATTORNEY GENERAL OF BAYELSA STATE

RESPONDENTS

AREA(S) OF LAW

CIVIL LAW AND PROCEDURE, PRACTICE AND PROCEDURE, BANKING LAW, CONSTITUTIONAL LAW, CORPORATE LAW AND PRACTICE, AGENCY

SUMMARY OF FACTS

The Governor of the Central Bank of Nigeria by Press Remarks On 26-10-2022, announced that the President of the Federal Republic of Nigeria has given the Central Bank of Nigeria the approval to redesign, produce, release and circulate new series of bank notes at N200, N500 and N1000 levels and to call in or withdraw from circulation existing bank notes of the same levels stating that the new currency would begin circulation from 15-12-2022 after its launch by the President, that the new and existing currencies shall remain legal tender and circulate together until 31-1-23 when they shall cease to be legal tender. In line with this, the Central Bank of Nigeria wrote a letter dated 6-12-2022 headed “Naira Redesign Policy – Revised Cash Withdrawal Limit” to all Deposit Money Banks (DMBS), other Financial Institutions (Payment Service Banks (PSBS), Primary Mortgage Banks (PMBS) and Microfinance Bank (MFBS) giving directives. A subsequent letter dated 21-12-2022 headed “Re: Naira Redesign Policy – Revised Cash Withdrawal Limits” was written to the same addressees reviewing the directives in the previous Letter.

By 15th December, 2022, the new naira notes were not available none of the banks country-wide had received enough new bank notes from the Central Bank of Nigeria to pay their customers the prescribed maximum amount of withdrawable cash. This caused huge economic hardships for the state structures, companies and private individuals alike.

The plaintiffs took their grievances to court and Upon the 1st to 3rd Plaintiff’s application by motion ex parte, the supreme court made an interim order of injunction that the existing 200, 500 and 1000 Naira notes remain legal tender side by side the new and redesigned naira notes pending the determination of their application by motion on notice for interlocutory injunction.

The first Defendants refused to comply with the interim order. The President in part compliance through a broadcast revealed that the old 200 Naira note would be a valid legal tender for 60 more days from February 10^th 2023 while the old 500 and 1000 naira notes remained redeemable at the banks. A motion was brought to set this Presidential directive aside and it was countered by the defendants.

HELD

Majority of reliefs (1-4, 6-8) granted

ISSUES

Ø  Jurisdiction of the Supreme Court to entertain the plaintiffs’ suits

Ø  The alleged disobedience of the 8-2-2023 interim order of this Court and

Ø  The merit of the suits.

RATIONES DECIDENDI

THE GOVERNMENT OF NIGERIA – THE GOVERNMENT OF NIGERIA IS AN AGENT OF THE FEDERATION OF NIGERIA – THE FEDERATION IS INHERENTLY SOVEREIGN

The directive by the President by virtue of his office as such President and head of Government of the Federation is in exercise of the executive powers of the Federation vested on him or her by virtue of S.5(1) of the 1999 Constitution which provides that:

“5(1). Subject to the provisions of this Constitution, the executive powers of the Federation –

(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President or Ministers of the Government of the Federation or other officers in the public service of the Federation; and

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.”

The Government of Nigeria is therefore an agent of the Federation of Nigeria as it exercises the executive powers of the Federation on behalf of the Federation or Federal Republic of Nigeria for its benefit and wellbeing. In A.G Federation V A.G Abia State (2001) LPELR-24862(SC) this Court stated that the Federal Government of Nigeria represents all the constituent States of the Federation and exercises the powers of the Federation as trustee for and on behalf of the Federation. This Court restated in A-G Lagos State v. A-G Federation (2014) 9 NWLR (Pt. 1412) 217 at 280, that the Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria, whereas the Federal and State Governments in contradistinction are donees of the power and authority of the people.

Being an agent of the Federation, the act of the President as head of Government of Nigeria is therefore the act of the Federation. It is an established principle of hallowed antiquity that quit facit per alium facit per se (one who acts by another acts himself).

So much heavy weather is made about the distinction between the Federation and the Government of Nigeria that exercises its executive powers. That distinction no doubt has constitutional basis. But since the Government of the Federation exercises the executive powers of the Federation, there is, legally and practically speaking, hardly a dividing line between the acts of the Government of the Federation and the acts of the Federation. The distinction does not exist to the extent of turning the Government of the Federation into a sovereign that can act without regard to the Federation. The Government of the Federation is not a sovereign. It is a creation of the Constitution for the purpose of exercising the executive powers of the Federation. The Federation is inherently the sovereign and its sovereignty is further established by S.2 (1) and (2) of the 1999 Constitution which provides that-

(1) Nigeria shall be one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.

(2) Nigeria shall be a Federation consisting of States and the Federal Capital Territory, Abuja.

​The sovereignty enjoyed by the Federation is owned by the several individual persons constituting the people of the Federation of Nigeria who own the lands that together form the territory of Nigeria. S. 14(2) of the 1999 Constitution acknowledges this ownership by declaring that-

(a) Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.

(b) The security and welfare of the people shall be the primary purpose of government; and

(c) The participation by the people in their government shall be ensured in accordance with the provisions of this constitution.…

This is clearly a dispute between the Federating units and Federation and other federating units over the exercise of the executive powers of the Federation by the President without regard to the Constituents of the Federation. The dispute is between the plaintiff States on one hand and the Government of the Federation and two other States on the other hand.

It is a dispute within the original jurisdiction of this Court vested on it by S.232 (1) of the 1999 Constitution which provides that-

The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.” – Per E. A. Agim, JSC

INTRODUCTION OF NEW NOTES OR WITHDRAWAL OF OLD ONES – INTRODUCTION OF NEW NOTES OR WITHDRAWAL OF OLD NOTES ARE CARRIED OUT WHEN DIRECTED BY THE PRESIDENT

The Central Bank of Nigeria was carrying out the directive of the President in keeping with S.20(3) of the C.B.N. Act 2007 which provides that “Notwithstanding Subsections (1) and (2) of this Section, the Bank shall have power, if directed to do so by the President and after giving reasonable notice in that behalf, to call in any of its notes or coins on payment of the face value thereof and any note or coin with respect to which a notice has been given under this sub-section, shall, on the expiration of the notice, cease to be legal tender, but, subject to Section 22 of this Act, shall be redeemed by the Bank upon demand.”

​It is glaring from this provision that the Central Bank of Nigeria or its Governor has no power to introduce new naira notes into circulation or withdraw existing ones, if there is no directive of the President of Nigeria to do so. – Per E. A. Agim, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2.  Central Bank of Nigeria Act 2007
3. Bank and Other Financial Institutions Act, 2020
4. Public Officer’s Protection Act, CAP P41, LFN 2004

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