The Supreme Court of Nigeria as All-In-One: The Legislative, Executive and Judicial Court, All at The Same Time? -By Sylvester Udemezue
Please note that I submit and I am bound by the legal principle which says that a court decision remains binding until set aside, overruled or otherwise repealed. Hence, my opinion herein is without prejudice to my utmost respect and reverence for the Supreme Court of Nigeria and all its pronouncements. I, accordingly, urge that its judgment of 3 Match 2023 on Naira Redesign, be obeyed to the letter. This, said, please permit me to respectfully ask, Why do political parties still conduct primaries, if the Supreme Court has the power to name a candidate for political Parties? Why do we elect legislators if the Supreme Court can make, unmake, amend and repeal the laws of the land with ease? Why do we still elect Presidents and Governors if the Supreme Court can appoint a Governor for a State? Why do we still have the Central Bank of Nigeria (CBN) as the apex monetary regulator, and the CBN Act, if the Supreme Court is already the apex monetary policy regulator for Nigeria, introducing, approving or disproving Naira Redesign, determining what is or is not legal tender for Nigeria, and unilaterally fixing deadlines for Naira Swap? Since the Supreme Court can now comfortably combine the job of the Legislature and the Executive with that of the judiciary, why do we still have the Legislature and the Executive? Why not just collapse, abolish or dissolve all the other arms of government and leave the Supreme Court to be the all-in-one, all-powerful, all-knowing and all-seeing organ?
Check these out!
1️⃣. The Central Bank of Nigeria after undertaking, with the approval of Mr President, a redesign of the N200, N500, and N1,000 Naira notes, had then on or about 26 October 2022, announced through the print and electronic Media to all Nigerians, that 31 January 2023 was deadline for swap of old naira notes with the redesigned naira notes. This deadline was later shifted to 10 February 2023. However, on 3 March 2023, the Supreme Court of Nigeria, in the case of AG KADUNA & ors v AG Federation, held that the CBN did not give formal/appropriate notice of the deadline for naira swap, on account of which the Court said the notice of the deadline given by the CBN was void/illegal. Shockingly, however with due respect, the Supreme Court turned around and committed the exact same sin it had accused CBN of, by fixing a deadline (31 December 2023) for naira swap, without giving a “formal/appropriate notice”, whatever “formal notice” means. Section 20(3) of the CBN Act provides that the CBN “shall have power, if so directed by the President, after giving reasonable notice” thereof, to fix the deadline for Naira Swap. On 3 March 2023, the Supreme Court of Nigeria exercised for the CBN, this power to fix a deadline, and the supreme court did so without the President’s directive, contrary to the express provisions of the law. The question is, pursuant to which law did the Supreme Court act to set the deadline of currency swap for Nigeria? If what the Supreme Court said is that the CBN did not give formal/proper notice but a mere media Notice, why didn’t the Supreme Court direct the CBN to go and re-issue Notice in a “formal/appropriate way”, since the power to issue the Notice belongs, by law, to the CBN and not to the Supreme Court? Why would the fix the deadline for the CBN, which the law says only the CBN may fix? Well, the Supreme Court of Nigeria has set a deadline for currency swap for the Federal Republic of Nigeria. QED. All hail the Supreme Court!!!!!
2️⃣. The Supreme Court, on 3 March 2023 appeared to have said that the CBN and the President did not comply with the law in introducing the Naira Redesign policy, although the Supreme Court has hardly told us which law in particular the CBN and the president didn’t comply with; we wait for a CTC of the judgement to read and see specifically for ourselves. But, as the Supreme reportedly said in the open court on 3 March 2023, the NAIRA REDESIGN policy is illegal for “failure” of the CBN and the President to comply with the law in the process of introducing the policy. In law, ordinarily, when a thing it declared illegal and null, it means it is as if it never existed. Thus, nothing whatsoever can validly come out of any illegal or void act. This notwithstanding, and after declaring the CBN’s and the president’s action illegal, the Supreme Court still turned around and endorsed the same action of the CBN by saying let the redesigned N500, N200, and N1,000 remain in place as Legal Tender, but that they should operate concurrently with the Old N200, N500 and N1,000 till 31 December 2023. Waoh!!!!!!! In the case of LADOJA V INEC (2007) LPELR-1738(SC), the Supreme Court said that: _”when an act is declared null and void, the position is settled that from the angle of the law, the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed.”_ Explaining the meaning of “null and void”, in *EKANEM V. AG AND COMMISSIONER FOR JUSTICE AKWA IBOM STATE & ORS (2014) LPELR-24250(CA), the Court of Appeal said, (per OTISI, J.C.A (p. 22, paras. C-E) “In Adefulu v. Okulaja (1996) LPELR-90 (SC), (1995-1996) ALL NLR 318, the Supreme Court, per Ogundare, JSC quoted with approval the meaning of null and void defined in the American case of Zogby v. State 53 Misc 2d 740; 279 NYS 2d 665, 668 as follows: “‘Null and void’ means that which binds no one or is incapable of giving rise to any rights or obligations under any circumstances, or that which is of no effect.” Further, in NZOM & ANOR V. JINADU (1987) LPELR-2143(SC), THE Supreme Court said (Per KARIBI-WHYTE, J.S.C ( Pp. 44-45, paras. E-A): “It is now well settled that where an act is void, it is void and nothing can be added to it. It is expressed in the Latin ex nihilo nihil fit. Hence if the writ of summons against a non-juristic person is void, it admits of no additions or accretion of other persons. As Denning L.J. expressed it commenting on nullity succinctly in U.A.C. Ltd. v. Macfoy (1961) 3 ALL E.R at p.1172. “If an act is void then it is in law a nullity. It is not only bad, but incurably bad…And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
3️⃣. The Supreme reportedly said also that the Supreme Court has original jurisdiction to entertain ANY DISPUTE at all (which according to the court, includes ALL DISPUTES) between a State and the FG, irrespective of the subject matter. Okay. But, let us look at section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999, dealing with the original jurisdiction of the Surpreme Court: “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” And let us look also at the provisions of section 251(1)(r) of the same Constitution on exclusive jurisdiction of the Federal High Court: “Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and excise jurisdiction to the exclusion of any other Court in…any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”
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(1). The CBN is an agency of the Federal Government, says the Supreme Court. Okay, but Sections, 17, 18, 19 and 20 of the CBN Act gives the CBN (an AGENCY OF THE FEDERAL GOVERNMENT) the Power to REDESIGN the NAIRA on the directive of the President. Section 20 (3) of the CBN Act gives the CBN power to, by a notice, fix a deadline, with the approval of the President, for current swap.
(2). Even if we say that it’s the President of Nigeria or the Federal Government that did the Naira Redesign and fixed the deadline of 10 February 2023 for Naira Swap, please let’s take a look at section 251(1)(r); any lawsuit seeking DECLARATION OR INJUNCTION affecting the VALIDITY of any executive or administrative action or decision taken by the Federal Government or any of its agencies (including the CBN), must be filed at the Federal High Court, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONSTITUTION. This means that where a State in Nigeria, any individual or any group or whoever seeks to nullify or uphold the validity of any action or decision taken by the CBN or the President of Nigeria acting for the federal government, the ONLY court that has original jurisdiction is the Federal High Court, notwithstanding anything to the contrary in the constitution. Or, is this not that simple? Well, the all-in-one Supreme Court thinks otherwise! All hail!
◼️ But now, assuming there is agreed to be any inconsistency between section 232(1) of the Constitution and section 251(1)(r) of the same Constitution, how do we resolve it? There are two ready tools, I suggest, with due respect:
🅰️ The maxim of “generalia specialibus non derogant” is relevant (it means”things general do not derogate from things special”; a general provision in a statute must be applied subject to the provisions of a special/specific provision of the same statute on the same subject; the general provision must not derogate from a special or specific provision on the same subject). Section 232(1) gives GENERAL exclusive original jurisdiction to the Supreme Court over ANY DISPUTE (meaning ALL DISPUTES, I submit) between a State and the Federation or between two States. On the other hand, section 251(1)(r) SPECIFICALLY gives exclusive jurisdiction to the FEDERAL HIGH COURT in any lawsuit SPECIALLY OR SPECIFICALLY challenging the action or decision of the Federal Government or any of its agencies. Applying the maxim above, I submit that one could see that although the Supreme Court has original jurisdiction to hear ALL DISPUTES between a State and the Federation, where the “ANY DISPUTE” arises between a State and the Federal Government in respect of an ACTION or DECISION taken by the Federal Government or any of its agencies, such a dispute must go to the Federal High Court.
I don’t want to refer to section 251(1)(d) which SPECIFICALLY says cases on legal tender should go to the FHC.
🅱️. Further, the constitution itself has made it clear that any inconsistency between section 232 and section 251(1)(r) of the Constitution must be resolved in favour of the latter because section 251(1)(r) begins with “Notwithstanding anything to the contrary in this Constitution”. . Thus, where a State in Nigeria wants to challenge any action or decision of the Federal Government or any of its agencies, such a dispute must go to the original jurisdiction of the Federal High Court, and not to that of the Supreme Court of Nigeria, by virtue of section 251(1)(r) of the Constitution which is clearly stated to be superior to section 232 in case of conflict.
Anyway, the Supreme Court has now changed all this, holding that ALL LAWSUITS between a State and the Federal Government even including A LAWSUIT seeking declaration or injunction in respect of an ACTION or DECISION taken by the Federal Government or any of its agencies, can go to the Supreme Court. 😆😆😆. Okay na! But, permit me to say that I used to think that the Constitution is binding on all institutions, including the Supreme Court of Nigeria, by virtue of section 1(1) of the Constitution, which provides that “This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria”.Thomas Jefferson once described the Constitution as a “chain” binding every person and authority in that country. Or, such doesn’t apply to Nigeria? Or, is the Supreme Court excluded? Look at what the Supreme Court of Nigeria said in the case of Marwa v. Nyako (2012) LPELR-7837(SC) [per Adekeye, J.S.C (pp. 169-170, paras. B-F) & pp. 169-170, paras. B-F) to illustrate the concepto of the supremacy of the constitution:
“The Constitution is described as the grund norm and the fundamental law of the land. All other legislation in this country take their hierarchy from the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument which confers powers and also creates rights and limitations. It regulates the affairs of the nation state and defines the powers of the different components of government as well as regulating the relationship between the citizens and the state. … The provisions of the constitution take precedence over any law…. A-G Ondo State v. A-G Federation (2002) 1 NWLR (Pt.772) pg.222. A-G Abia State v. A-G Federation (2002) 6 NWLR (Pt.763) pg.204. Abacha v. Fawehinmi (2000) 4 SC (pt.11) pg.1. Balonwu v. Gov. Anambra State (2009) 18 NWLR (Pt.1172) pg.13.”
Also on this point, Udemezue and Anukanti wrote:
‘pending an amendment or repeal of the Constitution as it is, all and sundry are in duty bound to observe its provisions which remain binding on all powers and principalities within Nigeria, however highly or lowly placed. As advised by George Washington, the Constitution is the ultimate guide which we must never abandon.87 Said A.E. Samaan, “The U.S. didn’t achieve its liberty or prosperity by mistake. It was by design, and the architects were the Founding Fathers. Rights given by fad and fashion are just as easily taken away. Let no one mess with the Constitution. The Constitution matters.” Abraham Lincoln put it this way,88 “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”’ [Sylvester Udemezue and Vivien Anukanti, “The Convention-Constitution Standoff: Resolving the Most-Senior-Judge Conundrum in Appointment of Substantive Chief Judges for States in Nigeria” (2021) 3, Calabar Journal Of Public And International Law, (University Of Calabar) 237 <https://ssrn.com/abstract=3873567> or <http://dx.doi.org/10.2139/ssrn.3873567>].
The Last-Hope-of-the-common-Man Angle:
For the benefit of those who argue that the Supreme Court decision is a POLICY DECISION aimed to alleviate the suffering of the masses, wait a minute! Did I hear you well? *Are you saying that that the Federal High Court couldn’t have done justice to the case, TO ALLEVIATE THE SUFFERING OF THE MASSES? With respect, alluding to the Last-Hope-of-the-common-Man cliche to try to justify a gross breach of the Constitution by an institution expected to be in the vanguard of promoting the supremacy of the Constitution, is grandstanding and a diversionary beat-about-the-bush, leaving the relevant issues. Is there any order the Federal High Court couldn’t have made where it’s in the best interest of justice and in accordance with the law? Couldn’t the Federal High Court have set aside the NAIRA REDESIGN policy or the deadline set by the CBN, where it found the naira redesign policy or the procedure for its introduction to be oppressive or against the law? Even if the Federal High Court failed in the circumstances, to do the right thing according to law, the case would still go on appeal, first to the Court of Appeal, and later to the Supreme Court which would still have an apportunity to do the right thing! Why then did the Supreme Court assume original jurisdiction where it clearly has none, I ask with due respect? And having ASSUMED original jurisdiction, the SC now, reportedly, committed the same sin it accused the CBN of committing! And the Supreme Court also reportedly turned itself into the CBN of Nigeria by setting Monetary Policies and fixing deadlines for naira swap, which deadline section 20(3) of the CBN Act says may be fixed by only the CBN on the directive of Mr President? 😂😆😆
I have decided that henceforth, whenever anyone asks me, “What is the law in Nigeria?”, I will just answer thus: “Wait for the Supreme Court to tell us because the Supreme Court is now:
✔️the Legislature (making, amending and repealing laws, with impunity)
✔️The Executive (enforcing laws and making executive decisions, with impunity); and
✔️the Judiciary (interpreting laws, settling disputes and imposing punishments)
An all-powerful, all-knowing, and all-seeing, all-in-one Supreme Court of Nigeria, with absolute powers to make, amend, repeal, replace or outrightly disregard laws (no matter how clear); to interpret the law; and to enforce the law, all at the same time. With due respect, I hail oooooooo. But, what has happened to the essential characteristics of law or of a functioning legal system?
All appear now to have been swept aside, or under the carpet. Henceforth, one doesn’t know, won’t know and can’t know what the law is on anything, in Nigeria, until the Supreme Court speaks! Pease, just sit and wait for the Supreme Court of Nigeria to tell you what the law is, in all cases and in all circumstances:
💪Every Political party must wait for the Supreme Court to tell it who its own candidate for any election is. There may be no need for party primaries any more!
💪 After making law, the legislature must wait on the Supreme Court to tell us what the law actually is. Hence, one may ask, is there still any need to waste any time and resources undertaking the legislative process-stages of First Reading, Second Reading, Committee Stage, Report Stage, Third Reading and Executive Assent if the Supreme Court would at the end set aside the entire process and replace it with its own legislation or disregard outrightly? See PILLARS NIGERIA LIMITED v. WILLIAM KOJO DESBORDES (2021) 12 NWLR (Pt.1789) 122
💪 Indigenes of every state must wait on the Supreme Court to tell them who their governor is. There may be no need for any voting or elections if the person who came 4th on the ballot could be declared winner by the Supreme Court. See the judgement of the Supreme Court in SC/1462/2019: UZODINMA V. IHEDIOHA.
💪The CBN and the President must wait on the Supreme Court to tell us what monetary policy should be introduced, how and when. The powers under section 20(3) of the CBN Act can now comfortably and conveniently be exercised by the Supreme Court, even without the president’s directive. Yeah! See AG KADUNA and ors V. AG FEDERATION, decided on 3 March 2033.
💪 Nigerians could as well consider jettisoning the entire process of elections but to just wait on the Supreme Court to tell them who their President should be. Yes. Mr J.S. OKUTEPA SAN has suggested that Nigeria should jettison elections and resort to selection of leaders, since elections have failed; since Nigeria is incapable of organizing credible elections. [See: “Election challenges: SAN suggests new method for choosing Nigeria’s leaders”; 27 February 2023; The Guardian]. However, would there be any need to go by OKUTEPA’s suggestions or any suggestions at all, when we all know that the Supreme Court of Nigeria would have the power to deselect, un-select or re-select whoever is selected or elected in any given instance? So, why not, in all things, at all times, we just wait on the Supreme Court since we can’t be certain about what our law is until the Supreme Court, the ultimate lawmaker and law enforcer of the last resort, has spoken?
Welcome to the Supreme Court of Nigeria: the Legislative, Executive and Judicial Court. All hail!! Anyway, as the court pleases.
For my views on the NAIRA REDESIGN itself, please see:
(1). “Re: “Give Me 7 Days To Resolve Cash Crunch, President Muhammadu Buhari Begs Nigerians” [February 4, 2023; ThenigeriaLawyer]
(2). “CBN’s Naira Redesign, Daily Cash Withdrawal Limit and Swap Policies: Any benefit for Nigeria and Nigerians?” [FEBRUARY 19, 2023; LawAndSocietyMagazine]
(3 March 2023)