Governor Wike Has Nothing To Prove To The Opposition
A Legal Opinion On INEC’s Intervention In Adamawa REC’s Usurpative Return Of Madam Aisha Binani As Governor-Elect
There was a Punch Newspapers’ breaking news earlier on 17 April 2023, reporting that “APC Binani declared winner of Adamawa Governorship Election” According to the Punch, “The Independent National Electoral Commission, INEC, Sunday [17 April 2023] morning declared Senator Aishatu Dahiru Binani the winner of the Adamawa Governorship Election. The Resident Electoral Commissioner for the state, Barrister Hudu Yunusa just made the declaration following the supplementary election held Saturday”
However, shortly thereafter came another breaking news, to the effect that “INEC Voids Declaration Of Binani As Winner, Summons REC To Abuja”. Daily Trust Newspapers reported therein that “The Independent National Electoral Commission (INEC) was reported to have voided the declaration of Senator Aisha Dahiru, aka Binani, as winner of the Adamawa State Governorship Election”. A statement by Festus Okoye, INEC’S National Commissioner, Information and Voter Education reads, according to Daily Trust:
“The attention of the Commission has been drawn to a purported declaration of winner in the Adamawa Governorship Election by the Resident Electoral Commissioner (REC) even when the process has clearly not been concluded. The attention of the Commission has been drawn to a purported declaration of winner in the Adamawa Governorship election by the Resident Electoral Commissioner (REC) even when the process has clearly not been concluded. Consequently, the collation of results of the supplementary election is hereby suspended. The REC, Returning Officer and all involved are hereby invited to the Commission’s Headquarters in Abuja immediately”
As is typical of Nigeria, a controversy immediately ensued among lawyers and members of the public as to the propriety of the actions of the Adamawa REC and the later remedial action by the INEC, with traducers of INEC arguing that by virtue of Section 149 of the Electoral Act, 2022, the action of the REC was valid until set aside by a court of law. Section 149 provides:
“Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission in relation to any notice, form or document made or given or other things done by the official in pursuance of the provisions of the Constitution or of this Act, or any rules made there under remain valid, unless otherwise challenged and declared invalid by a competent court of law or tribunal”.
With due respect, it is hereby submitted that section 149 of the Electoral Act has no application or relevance to the legal anathema perpetrated in broad daylight by the Adamawa REC. Reasons:
First, only a Returning Officer could make a declaration and return. The Adamawa State Resident Electoral Commissioner, Yunusa Hudu Ari, is not the Returning Officer in the Adamawa Governorship Election and thus has no power to make a declaration and return in the election. The duly appointed Returning Officer for that election is Professor Mohammed Mele, Professor of English and Linguistics from the University of Maiduguri. Section 66 of the Electoral Act, 2022, which assigns the job of making a declaration and return exclusively to the Returning Officer for the affected election.
Where a statute prescribes that an act MUST be done in a particular way, that act can only be validly done in the prescribed manner. In SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC),* the Supreme Court said (Per KARIBI-WHYTE, J.S.C pp. 19-20, paras. F-C) that: It is well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory, such power can only be exercised within the limits prescribed by the statute See Bowaje v. Adediwura (1976) 6 S.C.143.” See also
Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; (1997) SCNJ 600 at 649 per Ogundare, JSC (of blessed memory)
See also section 64(7) of the Act, which says that where after a result as announced by a Collation Officer at any level is disputed, the Collation Officer has the right to cancel the earlier collation already made and re-collate and announce a new result following the mandatory RESULT DISPUTE RESOLUTION PROCEDURE set out in section 64 (6) of the Act. In the Adamawa case, the duly appointed state Collation Officer (ie, the Returning Officer), Professor Mohammed Mele, had not even announced any results at all. So , how does section 149 become relevant? No way!
Even after the Returning Officer, duly appointed, has already officially made a declaration in line with sections 64(7) or (8) or section 66 of the Act, the Act still donates power to the INEC to REVIEW THE DECLARATION AND RETURN. Unlike the Electoral Act 2010, the Electoral Act 2022 affords the INEC a discretionary power to review the election/results where the results are disputed after the declaration and return of a winner has been made by the Returning Officer. The proviso to section 65(1)(c) of the Electoral Act gives INEC the power to review the results after a winner has been declared. However, such a review (which may take the form of re-collation, cross-checking, verification of the results, or even outright cancellation or suspension and rescheduling or fresh elections) must be conducted within seven (7) days of the declaration and return. Section 65(1) of the Electoral Act 2022 provides that “(1) The decision of the returning officer shall be final on any question arising from or relating to (a) unmarked ballot paper; (b) rejected ballot paper ; and (c) declaration of scores of candidates and the return of a candidate: Provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election”. Where the result/election is disputed but INEC fails to conduct a review within the seven days, INEC would thereafter lose power to do anything about the declaration and return. All complaints thereafter are to be channelled to the Election Petition Tribunal. The Grounds For INEC-Review of Declaration and Return Already Made by A Returning Officer include (See the proviso to section 65(1)(c)):
(a) That the declaration and return was not made voluntarily;
(b) That the declaration and return was made contrary to the Electoral Act 2022;
(c) That the declaration and return was made contrary to the Regulations and Guidelines for
Conduct of Elections 2022; or
(d) That the declaration and return was made contrary to the Manual for the elections.
Thus, assuming without conceding that the Adamawa REC can usurp the powers of the duly appointed Returning Officer to make a declaration and return, the argument will still fall like a pack of cards in the face of the POWER given to the INEC by the proviso to section 65(1)(c) of the Electoral Act, to review a declared result. Note that if such a review is not conducted within the seven days of the return, INEC would lose power to do anything about the declaration and return.
If section 149 should be relevant anywhere or to any aspect of the Adamawa scenario, it is to the REVIEW action taken by the INEC pursuant to section 65 (1)(c) of the Act. Thus if anyone thinks there is any defect or error arising from the REVIEW action taken or REVIEW Notice given by INEC’S National Commissioner, Information & Voter Education (Festus Okoye) on behalf of and directly under the directive of INEC or its Chairman in pursuance of the provisions of the of this Act of the Regulations and Guidelines or Manual, remain valid, unless otherwise challenged and declared invalid by a competent court of law or tribunal. There is no law at all backing up or authorizing what the ADAMAWA REC; on the other hand, sections 64(6),(7) & (8), 66 and 65(1)(c) of the Electoral Act expressly authorizes INEC to review any result declared against law._ Therefore, it is respectfully submitted that, pursuant to section 149, INEC’s officially Release/Directive/Notice (as issued by the National Commissioner, Information & Voter Education) voiding the earlier usurpative and illegal declaration/return made by the Adamawa REC, stands unless and until “otherwise challenged and declared invalid by a competent court of law or tribunal”. This, it’s respectfully submitted, appears to be the only reasonable and way to make section 149 relevant to the scenario.
What the Adamawa REC did gives him out as an incorrigible recidivist who unfortunately happened to have found his way, perhaps surreptitiously into INEC appointment. But God has helped us to expose his nefarious activities against the rule of law, due process, the electoral Act, the Nigerian nation and all Nigerians. In some countries, he would have been lying dead by now, waiting for interment and already receiving the usual rest-in-peace wishes. But in civilized nations, he ought to have been arrested, arraigned in court, and already undergoing trial while awaiting his conviction and jail sentence.
There are many such criminals inside INEC and other public institutions in Nigeria. They got there by anything but not on merit and competence. Please, I humbly advise, fish them out, from top to bottom, and have them out of the system forthwith, that we may breathe some fresh air which is necessary for progress. Are we not fed up with the level of brigandage and insanity going on with leadership in a country that ought ordinarily to have joined the leaders of the world? Cruel leaders are replaced only to have new leaders’ turn cruel, leading to a debasement, desecration and corruption of our best institutions by the very worst among us.
Some have argued that power corrupts and absolute power corrupts absolutely, or that, as Pa Awolowo put it, power enslaves and absolute power enslaves absolutely. Dear Pa Awolowo, I don’t think that this applies in the Nigerian scenario; the apposite, and applicable declaration is found in William Gaddis’ Power doesn’t corrupt people, people corrupt power. So, by way of a solution, I have found through research that there are, indeed, many options to solving Nigeria’s problems. But I think that the one that would work faster in knocking the prevailing insanity out of the heads of some of our country’s leaders, was put forward by Leo Tolstoy, “Since [it’s now obvious that] corrupt people unite among themselves to constitute a force, then honest people must do the same.”
If we allow such an impunity to stand under the now rampant, criminal-mind-inspired go-to-court mantra, and pretending to rely on whole-inapplicable section 149 of the Act, then, in the next coming round of elections, a Polling Unit Officer could from the Polling Unit, or an INEC driver could from the comfort of his car, make a declaration and return for an entire State, and considering that each and both are “INEC officials”, we would accept it based on section 149 and then tell those who don’t like to go to court, and Senator Smart Adeyemi would come out to make the following declaration:
“THOSE UPSET ABOUT 2023 ELECTION OUTCOME SHOULD WAIT FOR 2027 – SENATOR SMART ADEYEMI” Hear Smart Adeyemi on 06 April 2023:
“I speak my mind at any point in time. And let me tell you the truth, I hold the view that this election was free to a large extent and better than the previous election. Those who feel bitter can just wait for the next election” [Channels TV].
But, then, the American concept of what goes round comes around, was there soon enough, somehow, for Senator Smart Adeyemi. See:
‘RESULTS WERE READY BEFORE ELECTION’ SMART ADEYEMI FAULTS KOGI APC GUBER PRIMARY. Hear the same Smart Adeyemi, of Kogi West, on 16 April 2023 (faulting the conduct of the APC governorship primaries in Kogi State on 14 April 2023):
“We witnessed a new phenomenon of electoral malpractices and embedded corruption in the electoral process of our country. I have heard of riggings of elections but I have not heard of the new phenomenon which we must do all we can to stop in this country. Results were prepared, even before the commencement of voting. This is the worst malpractice; the worst form of rigging and unprecedented in the history of Nigeria. The primary election in Kogi was just allocation of votes” [thecable.ng].
Now, can I hear someone saying, “Dear Distinguished Senator Smart Adeyemi, sir, why complain? Just wait until 2027” This is what happens when we condone brazen impunity and brigandage; they sooner than later pay us some visit. And he who has brought home ant-infested firewood should know that visits by lizards are just a matter of time; inescapable.
Accordingly, we had better come together to find a way to lawfully ditch these bitchly conducts of the bitches in public offices. Else, they would soon grow to consume all who promote and condone them. As e dey sweet us, e dey pain them is a two-way sword, waiting like a time bomb, with the assistance of Karma’s retributive justice, to strike.
Another way to end moral corruption and impunity is to work to create strong watchdog institutions and partnering or monitoring agencies. Hence, Rigoberta Menchú, a Nobel Prize laureate said: “Without strong watchdog institutions, impunity becomes the very foundation upon which systems of corruption are built. And if impunity is not demolished, all efforts to bring an end to corruption are in vain.”
On my part, I shall continue through Law discussions, to write and write, until we write this country out of its multifarious but self-imposed maladies. Like I said earlier, quoting Abraham Lincoln, in a commentary published under the heading, “Overcoming Security and other challenges: why Nigeria needs much more than “spiritual awareness” [01 October 2019; [courtroommail.com], “[Nigeria] will not be destroyed from the outside. If we falter and lose our freedom, it will be because we destroyed ourselves”.
“BREAKING: INEC SUSPENDS ADAMAWA REC FOR DECLARING APC’S BINANI WINNER” 4.30pm on 17 April 2023
[dailypost.ng]. INEC in a letter dated April 17, 2023 and signed by its Secretary, Rose Oriaran-Anthony has therefore directed its Administrative Secretary in the state to take charge of its affairs. Part of the letter reads; “I hereby convey the Commission’s decision that you (Barr. Hudu Yunusa Ari), Resident Electoral Commissioner, Adamawa State should stay away from the Commission’s office in Adamawa State immediately until further notice. The Administrative Secretary has been directed to take full charge of INEC, Adamawa State with immediate effect”.
Meanwhile, there is this rumour that the REC Mr Yunusa Hudu Ari, when summoned by INEC, had claimed that he had to make the declaration because the Returning Officer had “disappeared”. Issues Arising:
Mr Hudu, please which law says that where the Returning Officer “disappears” or is made to “disappear”, the State REC could step into his shoes?
By the way, had collation been concluded when you announced the declaration and return?
Well, there is no need for further elaboration; (permit my resort to pidgin English) if you think say you get sense pass everyone, the law get sense bigger pass yours because the proviso to section 65(1)(c) of the Electoral Act 2022 had anticipated such bitchly actions as yours. So, the declaration and return UNLAWFULLY made by a bitchly Adamawa REC has now been LAWFULLY REVIEWED by the INEC. Case closes.
First, I commend INEC for its timely intervention in the Adamawa scenario. A Law Teacher wrote, Ochem, PhD, “Since the electoral body discovered the mistake timeously and acted with dispatch, it was a decision in the right direction to avoid anarchy. Remember that when an act is void it is in law a nullity. It is not only bad but incurably bad. Per lord Denning”
Second, I thank God for the makers of the Electoral Act 2022, for their wisdom and foresight in having seen tomorrow that would eventually throw up Mr Yunusa Hudu Ari.
Third, I commend the innovativeness of the Electoral Act 2022. If not for the provisions of sections 64(6),(7)&(8) and 66 of the Electoral Act and the proviso to 65 (1)(c), which quickly came to citizen’s rescue, Adamawa State would have gone up in flames, by now.
Fourth, I thank the lawmakers in the National Assembly for the Electoral Act 2022; it’s a great piece of 21st-century-thinking and progress-minded legal document. Anyone who would take his time would calm down and read the Electoral Act 2022 with an open mind would agree that if that legislation could be honestly and religiously implemented by all stakeholders, the USA and the UK would be coming to Nigeria for Evening Lessons on on how to conduct credible, transparent elections and generally on election matters. Aristotle wrote “It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws”. [Aristotle, Politics 3.16]
I respectfully disagree with the insinuation in some quarters, that “The Electoral Act 2022 is a scam, a fraud”. I submit that it’s our warped implementation of the Act’s clear provisions that is fraught with fraudulent intentions. So, let’s stop blaming the law for our own deficiencies and mischief If we falter and fall, it’s entirely our own fault, not the fault of our laws. Even an imperfect law, if perfectly implemented, can yield perfect results.
My humble opinion though, respectfully submitted,
By: Sylvester Udemezue
Sylvester Udemezue (Udems).
Mobilising Citizens For Sustainable Democracy In Nigeria: The Power Of Editors
USA has also advanced drone technology with the capacity to go to war and shoot from self-driven drones and kill decisively without risking any human life in the field. Recently this technology was used to exterminate an Iranian General considered a huge security threat to the United States.
These discoveries underline the importance of education in National Development.
According to UNICEF, one in every five of the World’s out of school children is in Nigeria. Even though primary education is officially free and compulsory, about 10.5 million of Nigeria’s children aged 5 – 14 years are out of school.
In 1970 when the war ended and I gained admission into University of Ibadan to study economics, studying in a Nigerian University was such a pleasure. To begin with, my roommate then, Okey Ezeokeke and I lived in a two in one room apartment. The university laundered 8 clothes per week for us (trousers and shirts). In addition, two sets of bed sheets were laundered for us weekly. Our shower ran twenty four hours, our toilets flushed always. In each hall of residence we had a bar and buttery where you could have cold drinks and confectionaries at affordable prices directly from breweries and the university catering department. You were also allowed to entertain your guests at these air-conditioned lounges.
Each faculty had a library apart from the central university library. Every journal published in the world was available in our libraries within two weeks of publication. We had a university press which made publication of books by our lecturers easier and the books affordable. The university had a busy bookshop which sold text books, journals, magazines and novels. Accessibility to knowledge was guaranteed even without digital technology. Lecturers were encouraged to publish.
Because of their scholarly publications, they were demanded globally. Every year so many lecturers were engaged inprominent universities all over the world. Every year several lecturers served out their sabbatical and returned with new knowledge, new exposure, modern cars and a global and cosmopolitan saga. Many students developed ambitions to become lecturers. The first class graduates were retained as assistant lecturers to take us in tutorial classes. The tutorial classes explained the lectures, deepened our knowledge of the subject matter and took us through past question papers in order to widen our comprehension and prepare us for examinations. Suddenly all these have disappeared. Instead, handouts have taken over because they are sold for extra cash by lecturers even when they contain very little or represent copying or plagiarism!!
When you don’t buy them, class reps note you and report you to the lecturer and in some cases it is counted against you in the exams. Vice Chancellor after Vice Chancellor fight this menace but they persist because the bench mark has fallen, the incomes have fallen, the foreign lure no longer exists because our degrees have become worthless. Businessmen and Politicians as well as pretty female students get degrees without attending lectures!! If the source of knowledge is contaminated, like a contaminated water reservoir, can you get clean water? Once upon a time, a seating Governor was admitted as a student in one of our universities, he pretended to attend lectures inspite of his busy schedules, which made it impossible for him to attend all his lectures, but he was awarded a degree. Is such a degree respectable? Does this kind of practice recommend such a University as credible?
This brings me to the question of what form Nigeria will assume under a restructured arrangement and how its restructuring can be brought about. Two basic models have been canvassed for restructuring in Nigeria. A conservative model aimed at maintaining the status quo has been proposed to mean simply a shedding of some of the exclusive powers of the Federal Government, like issuing of mining licenses, permission for constructing of Federal roads and shedding of regulatory powers over investments in critical sectors of the economy like power and mineral resources. This model merely scratches the surface of the problem. It avoids the fundamental issue of devolution of powers.
The second model calls for a fundamental devolution of powers to the States as federating units and a lean Federal Government with exclusive powers for external defence, customs, immigration, foreign relations and a Federal legislature and judiciary to make and interpret laws in these exclusive areas.
This second model proposes states as the federating units with two different approaches. The first approach simply wants the States as the Federating units and a Federal Government with limited powers. It wants the states to control a percentage of revenue accruing from their areas and contribute an agreed percentage of such revenue to the federal government.
The second approach proposes the states as the federating units with a Region at each of the six geopolitical units whose constitution will be agreed to and adopted by the states in the geopolitical region. The regions will have the powers to merge existing states or create new ones. There will be regional and state legislatures and judiciary dealing with making and interpreting laws made in the respective political entities. This approach proposes a revenue sharing formulae of 15% to the Federal Government, 35% to the regional government and 50% to the State Governments.
To achieve a national consensus on this subject requires a national discussion. Regrettably, the ruling party, APC which promised restructuring in its manifesto after two years and four months in office appointed a committee to define what sort of restructuring it wants for Nigeria. The matter ended there. The Committee report after being adopted by its National Executive Committee was never implemented by the Government. To make matters worse, none of the other political parties have come up with any clear-cut route for achieving a consensus on this matter.
The National Assembly itself is a reflection of the deep ethnic divisions in the country and the Northern majority conferred on it by the military makes it highly unacceptable to Southern Nigeria. Recent resolutions made by it on devolution of powers have not helped the situation.
In the recent past, following massive disenchantment by our youths, self-determination groups have sprung up in Nigeria. The self-determination groups include IPOB, Boko Haram, MASSOB, YELICOM, Arewa Youths, Niger Delta Republic and Republic of the Middle Belt.
Of all these groups IPOB and Boko Haram have been designated as terrorist organizations by the Federal Government. This development in relation to IPOB is unfortunate. Boko Haram is an armed organisation which has attacked and occupied Nigerian territory hoisted its flag and appointed local authority governments
It has abducted and abused Nigerian women kidnapped and imprisoned many and killed over two hundred thousand people. It is still involved in guerilla warfare against Nigeria yet the Federal Government is negotiating with them. No member of Boko Haram captured by the military is under trial, as far as I know. Members of this Federal Government are on record for condemning the previous Government for brutal murder of Boko Haram members and condemning the retired Chief of Army Staff for zealous prosecution of the anti-terror campaign. Members of the sect who confess to a change of mind have been received along with their abducted female partners in the Presidency and rehabilitated even by recruitment into the army. Today, the country is threatened by a new rise of Islamic insurgents.
The declaration of IPOB as a terrorist organisation is in my view hurried, unfair, and not in conformity with the intendment of the law. Whereas I am not completely in agreement with some of the methods of IPOB like it’s inappropriate and divisive broadcast, the uncontested evidence given by the Attorney General of the Federation in an interlocutory action claiming that IPOB attempted and/or actually snatched guns from law enforcement agents are, if proven, merely criminal offences. They do not constitute enough evidence to meet international law definitions of a terrorist organization. Happily, the United States Embassy in Nigeria, sometimes ago, shared this conclusion and asserted that the United States Government does not recognize IPOB as a terrorist organization. This same unarmed IPOB that is being stigmatized by the Nigerian government had its members murdered in Asaba, Nkpor, Aba and Port Harcourt simply for having public demonstrations without the Federal Government ordering a judicial inquiry. Instead, after I called for one and Amnesty International provided evidence that 150 of them were killed, the Chief of Army Staff then, set up an inquiry composed of serving and retired army officers thus abandoning the rules of natural justice which prescribes that you cannot be a judge in your own court. The Nigerian Press should investigate these assertions and bring a peaceful resolution to this impasse.
The Igbos in Nigeria see the treatment of IPOB as unfair, discriminatory and overhanded. They see the move as an attempt to encourage a profiling of Igbos in the international security arena.
We know of other self-determination groups in Nigeria that are armed and have destroyed government and private sector installations and wells and have taken several Nigerians hostage that government prefers to negotiate with rather than label them as terrorist organizations.
Fulani Herdsmen otherwise called the Fulani militants have ravaged farms in Middle belt, South West, and South Eastern Nigerian killing several farmers in the process. In January 2016 they killed 500 farmers and their families in Agatu in Benue State. In Enugu State, they murdered more than 100 farmers in Ukpabi Nimbo in April 2016. Photographs depicting them with automatic rifles trend in the entire world media, yet not one of them is facing criminal charges, nor is Operation Python Dance being conducted in the areas where they ravage and kill, and the Federal Government describes them as criminals and treat them with levity notwithstanding their classification by the Global Terrorist Index as the fourth deadliest terrorist group in the world (see British Independence Newspaper, 18th November 2015). The London Guardian Newspaper of 12th July 2016 indicated that Fulani Herdsmen killed one thousand people in 2014. Today the numbers reached five hundred thousand. A medium security prison was invaded in Abuja and detained terrorists allowed to escape without any resistance from our security forces.
Apart from domestic security, our economy is bleeding due to several other reasons.
On 23rd October 2022, Nduka Orjinmo writing for BBC News, Abuja reported that “In Delta State, thieves built their own 4km (2.5miles) of long pipeline through the heavily guarded creeks to the Atlantic Ocean. These barges and vessels blatantly loaded the stolen oil from a 24 feet oil pipe visible from miles on the open waters. “Crude oil is Nigeria’s main export but production and revenue, has been dwindling for years because of thieves. Authorities say, “oil production fell from 2.5 million barrels per day in 2011 to just over 1 million in July 2022, according to the regulator (making it impossible for us to meet our OPEC production quota).
Authorities also say that more than $3.3bn dollars (£2.9bn) has been lost to crude oil theft since last year and at a time when other oil producers are having a petro dollars splurge, Nigeriacan’t even meet its OPEC production quota. And it is not that the country can afford to lose money to thieves as it is gripped by widespread poverty and heavily indebted.
Nigerian’s oil industry has a documented history of corruption, from an unending fuel subsidy scheme where no one actually knows how much is imported, to the shadowy allotment of oil exploration blocks. Chief Ekpemupolo known as Tompolo is the security contractor with the responsibility of unearthing this large scale crude oil theft. Commenting on the thieves, he said in Channels TV that”many of the security people are involved because there is no way you can load a vessel without settling (bribing) the security people in that region”.(3)
Carl Milton Bernstein, an American investigative Journalist and author while a young reporter for Washington Post teamed up with Bob woodward and both of them uncovered the crimes which led to the congressional investigation of Watergate scandal that ultimately led to the resignation of Richard Nixonas President of the United States of America. This is the power of Journalists or dare I say of editors. Why have the Nigerian editors been unable to unravel the massive robbery of our oil reserves or the subsidy looters?
Nigeria’s present problems are worse than Watergate scandal. We have a total collapse of confidence in our government. When a Federal Accountant Generalis facing charges of acting in cohort of other Federal Civil Servants, consultants and representatives of the Federal Government for stealing Government funds and the case is going through such a sluggish delay but Nnamdi Kanu’s acquittal can in a few days bereversed by the Federal Court of Appeal, it simply means that ridding our country of corruption is not a priority.
Dr. Nnamdi Azikiwe and Chief Anthony Enaharo as journalists stood their grounds in fighting colonial rule. A fight to defend our hallowed values and the soul of our nation is the greatest act of patriotism. Your pen is of inestimable value when you use it patriotically to salvage our value slide and the rudderless movement of our state vessel. The Nigerian editor has enormous power in exercising his freedom of expression as enshrined in our constitution.
You must set the agenda for this coming election. That agenda must require our candidates to speak up on their policies regarding:-
(i) Fighting corruption
(iii) Transiting our country from a consumption economy to a production economy.
(iv) Stopping the brain drain occasioned by the exodus of our best brains to more promising climes
(v) The overthrow of merit, prudent management and accountability in the public services
(vi) Our overblown and over financed legislatures
(vii) A scrutiny of our Judiciary which exposes corruption and several other negative tendencies that compromise justice
(viii) The incapacity of our armed forces, previously respected in international peace-keeping operations in the Congo, Liberia and lately Gambia but now appearing to be completely overcome by Boko Haram to the extent that our School Of Infantry can be easily invaded by terrorists not to talk of our farmlands in Katsina, Kaduna and several other states
(ix) You must interrogate the failure of the Nigerian Police Force leading to the ENDSARS riots.
(x) We must interrogate the Arab Spring and its aftermath in order to avert its occurrence here.
(xi) We must examine stories of nations like Israel and USA
(xii) We must thoroughly investigate the readiness of INEC to conduct a free and fair election. Will the servers breakdown again?
Nwodo, a former minister of information, and president general of Ohanaeze Ndigbo worldwide presented this paper during 2022 All Nigerian Editors Conference in Owerri, Imo State November 9-13.
Any leading Presidential candidate who doesn’t have well thought out policies on these issues is not fit to lead Nigeria.
We hear today of speculation regarding the health condition of our Presidential Aspirants. We have a President who has spent so many days out of his eight year tenure in foreign hospitals not to talk about the cost of treatment. This makes it a national imperative to investigate the health of Aspirants to that office.
Tobi Aworinde of the Punch Newspaper told us on August 1st, 2021 that our current President has spent a total of 201 days on foreign medical trips since his assumption of office seven years and seven months ago.(4) This figure will be updated when he returns from his present trip. In any other clime, the National Assembly would have amended the electoral laws to provide for independent medical examination for all Presidential Aspirants. It is not yet late for such an amendment to be made.
As editors, you are the authors of reforms on national values, ethics and conduct of aspirants and holders of public office. Your power is coterminous with the nature of your work. In a way you wield and sustain the conscience of the nation. You help, on the basis of your informed editorials to cultivate our values and standards for public office holders. I believe that if you conducted a careful inventory of properties of some past and present public office holders including civil servants and members of the judiciary, you would expose so much as to provoke an inquiry into how some of those assets were acquired.
To who much is given, much is expected. As editors in the public and private media you have a pivotal influence in the affairs of this country, you have the wherewithal to progressively reform our values. You can stop the disdain with which our children hold us, for destroying their collective patrimony and heritage by acts of omission or commission. You can help to rebuild their confidence in our country. Already they are in a rage which can consume us if we don’t act fast.
Remember Harold Macmillan’s words to the British in the wake of Nationalists movements in Africa. He said, on a visit to South Africa on February 3rd, 1960, in a speech to the South Africa Parliament, “We have seen the awakening of national consciousness in peoples who have for centuries lived in dependence upon some other powers… The wind of change is blowing through this continent and whether we like it or not, this growth of national consciousness is a political fact. We must accept it as a fact and our national policies must take account of it” (5)
I like to end this speech by quoting William Shakespeare, in Julius Caesar, where he said “There is a tide in the affairs of men, which taken at the flood leads to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries. On such a full sea are we now afloat. And we must take the current when it serves, or lose our ventures.”
Nigerian editors, arise and defend our country
Arise and interrogate our politicians and businessmen.
Arise and define our politics
Hesitate and be defined by history
I thank you for your kind attention.
JOHN NNIA NWODO
OWERRI, IMO STATE NOVEMBER 2022
The Naira Redesign , Swap Hullabaloo: Why I Think The Supreme Court Of Nigeria Lacks Original Jurisdiction
For the avoidance of doubts, this commentary is strictly a LEGAL OPINION having nothing whatsoever to do with the activities of Nigerian politicians and their supporters and acolytes even as the 2023 general elections are just a fortnight away from today. I have earlier offered my humble, disinterested opinion on the Naira Redesign and Daily Cash Withdrawal Limit policies of the Central Bank of Nigeria. See: “Re: “Give Me 7 Days To Resolve Cash Crunch, President Muhammadu Buhari Begs Nigerians” by Sylvester Udemezue (4 February 2024, ThenigeriaLawyer)
Issues relating to whether or not a court of law has jurisdiction are fundamental and lack of jurisdiction is fatal. See OTUKPO v. JOHN (2000) 8 NWLR (669) 507; BRONIK MOTORS v. WEMA BANK (1983)6 S.C. 158; see also OMOKHAFE v. Military Administrator (2005) 2 MJSC 173. In the Supreme Court case of MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 589, the Supreme Court provided the following guide for determining whether a court has jurisdiction. Hon Justice Vahe Bairamian (FJ) while delivering the lead judgment in that case stated as follows: “Put briefly, a court is competent when: (1) the court is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
Now, in October 2022, the Central Bank of Nigeria rolled out the Naira Redesign and Daily Cash Withdrawal Limit policies, announcing 31 January 2023 as the deadline for use of old Naira Notes (N1,000, N500, and N200 notes) in Nigeria. The deadline was however later extended to 10 February 2023. Meanwhile, Kaduna, Zamfara, and Kogi States filed a case at the Supreme Court of Nigeria, against the Attorney-General of the Federation, challenging the polices and asking the Supreme Court to restrain the federal government from enforcing the 10 February 2023 deadline on Naira swap. The Supreme Court has granted an ex parte order directing that the new naira notes and the old ones should continue to coexist until 15 February 2023 when the Motion on Notice in the case would be heard. My worry is, does the Supreme Court of Nigeria have jurisdiction in this matter? I respectfully answer the question in the negative, with due respect, for the following reasons:
The Naira Redesign and Daily Cash Withdrawal Limit policies are policies of the Central Bank of Nigeria. Only the Federal High Court has jurisdiction in disputes arising from or related to Central Bank policies and anything having to do with the Naira as the Legal Tender in Nigeria. *Section 251(1)(d)* Constitution of the Federal Republic of Nigeria, 1999 provides: “Notwithstanding anything to the 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 exercise jurisdiction to the exclusion of any other court in civil causes and matters — connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, *LEGAL TENDER* , bills of exchange, letters of credit, promissory notes and other fiscal measures…”. Thus, it is submitted that the proper court to have filed the case is the Federal High Court and not the Supreme Court. Besides, it’s submitted, the proper party to sue is the CBN and the proper court to file the case is the Federal High Court.
Section 232 (1)(a) of the Constitution, 1999, 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.” In line with this section, there must be a live dispute between the Federation and a State or between two States, before the original jurisdiction of the Supreme Court can be activated. It’s submitted that in the present scenario, there is no dispute between the Federation and any of Kaduna/Zamfara/Kogi States over the Naira Redesign and Daily Cash Withdrawal Limit policies. These policies are policies of the Central Bank; the Supreme Court in its original jurisdiction has no business with the case. And if any State in Nigeria has any problems with the deadline fixed by the CBN, the state is free to drag the CBN before the Federal High Court. After all, the CBN is not immune from Civil actions; section 1(2) of the CBN Act provides that the CBN may sue or be sued. In my opinion, one major problem is that it appears some people are used to confusing the term FEDERATION with FEDERAL GOVERNMENT or the office of the President. In AG KANO V. AG FEDERATION (2007) 3 SC (PT 1) the Supreme Court explained that ‘The word “Federation” in section 232 of the 1999 Constitution bears the same meaning as “Federal Republic of Nigeria” or “Federation of Nigeria”. The plaintiff’s claim did not accuse the Federation of Nigeria or the Federal Republic of Nigeria of taking any action against the Hisbah Law of Kano State or the operation of the Hisbah Corps in Kano State or of arresting and detaining commanders of the Hisbah Corps in Kano State. There was no dispute between Kano State in its status as a component unit of the Federation and the unit of the Federation itself’. Per Mohammed, JSC at 38
With due respect to the AG’s of Kaduna State, et al, the Attorney-General of the Federation is the proper Defendant or plaintiff only in suits against or by the Federation; a quarrel over the action of the CBN in respect of the LEGAL TENDER does not qualify as or translate to a *dispute between a state and the Federation* as provided for in *section 232(1) of the Constitution,* to justify the filing of the case at the Supreme Court. In the same A.G. Kano State v A.G. Federation (supra), the Attorney-General of Kano State had dragged the AG of the Federation to the Supreme Court over an action taken by the Inspector-General of Police, and Mahmud Mohammed, JSC (as he then was) held, while dealing with the … provisions of Section 232(1) in the lead judgment that: “Any complaints against the Government of the Federation or any person who exercises power or authority on its behalf like the Inspector-General of Police as asserted by the learned senior for the plaintiff in his address before this Court, are completely outside the jurisdiction of this Court.” Continuing, the apex court said: “The statement of claim disclosed a dispute between the Government of Kano State and its agencies and the Government of the Federation through the Inspector-General of Police and Minister of Information, exercising their power or authority on behalf of the government of the Federation. The venue for settlement of such disputes (i.e. against Inspector-General of Police and Minister of Information), was in the various courts of first instance whose jurisdictions were clearly outlined in the same 1999 Constitution – and not the Supreme Court”. Per Mohammed, JSC at 38.
Also, in the case of *BHS INTL LTD v. AG LAGOS & ORS* (2016) LPELR-40084, the Court discussed (set out) the Conditions that must exist before the ORIGINAL JURISDICTION of the Supreme Court can be invoked. The Court States:
“Section 232 (1) of the Constitution are concisely and precisely in the following terms: “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.” I must state that these provisions, in addition to being concise and precise, are plain, clear and unambiguous in words, context and purport. That is the verdict of the apex Court, per Onnoghen, JSC in the lead judgment in the case of A.G. Abia State v. A.G. Federation (supra) also reported in (2007) 2 SC, 146, when he stated that: “The provisions of Section 232(1) of the 1999 Constitution, which confers original jurisdiction on this Court, is very clear and unambiguous. It is clear from the above that for the original jurisdiction of this Court to be invoked in a civil action; (a) the action must be between the Federation and the State(s) or between States, and there must be a dispute between the Federation and a State or States; (b) the dispute must involve a question of law or fact or both; and (c) the dispute must pertain to the existence or extent of a legal right.” The erudity and proficient Lawlord did not stop there, but defined what a “dispute” is in the context of the provisions when he said: “It has been held by this Court vide Belgore, JSC (as he then was) in A.G. of the Federation v A.G. of Abia State (2001) 11 NWLR (PT.725) 689 at 737, inter alia, that the term dispute as used in Section 232(1) of the 1999 Constitution”…, involves acts of argument, controversy, debate, claims as to rights whether in law or facts, verying opinion, whether passive or violent of any disagreement that can lead to public anxiety or disquiet” Then in the case of A.G. Kano State v A.G. Federation (2007) 3 SC (PT 1) 59, Mahmud Mohammed, JSC (as he then was) had held, while dealing with the same provisions of Section 232(1) in the lead judgment that:”Any complaints against the Government of the Federation or any person who exercises power or authority on its behalf like the Inspector-General of Police as asserted by the learned senior for the plaintiff in his address before this Court, are completely outside the jurisdiction of this Court.”His lordship had expatiated the above position when he said; “However, quite contrary to the requirements of Sections 232(1) of the 1999 Constitution, the dispute disclosed in the plaintiff’s statement of claim is a dispute between the Government of Kano State and its agencies and the Government of the Federal and its agencies, particularly the police and the Federal Ministry of Information through the Inspector General of Police and the Minister of Information in their capacities as persons exercising power or authority on behalf of the Government of the Federation …. certainly if the plaintiff has any dispute with the Inspector General of Police and the Minister of Information for their respective roles in the various declarations they made on the Hisbah Laws, the operation of the Hisbah Corps and the arrest and detention of the officials of the Hisbah Corps, the propervenue for the settlement of such dispute does not lie in invoking the original jurisdiction of this Court. The venue for the settlement of such dispute lies elsewhere in various Courts of first instance whose original jurisdictions are clearly outlined in the same 1999 Constitution.” The clear principle laid down in the above authorities is that the original jurisdiction of the apex Court under Section 232(1) cannot be invoked over a dispute in respect of the acts or performance of the duties of the Federal Govt through or by its agencies, which are legal entities that can sue or be sued, since they are not the Federation or a State in the Federation.” Per MOHAMMED LAWAL GARBA, JCA (Pp 27 – 30 Paras B – D).
Another question is whether the ex parte order made by the Supreme Court of Nigeria is binding on the Central Bank of Nigeria or on any of the Commercial Banks in Nigeria in view of the fact that neither the Central Bank nor the Commercial Banks are a party to the case at the Supreme Court?
It is a settled principle of law that an order of court binds only parties to the case before the court. It’s a principle of joinder of parties. Thus, if a person is not joined that person is deemed to not be a party to the case and is therefore not bound by any order made in the case or the outcome of the case. See *BABATOLA V ALADEJANA (2001) 6 SC 124. Section 1(3) or the Central Bank Act, 2007 provides that the Central Bank of Nigeria _”is an independent body in the discharge of its functions”. Further,
Section 17 of the CBN Act provides that “The Bank shall have the sole right of issuing currency notes and coins throughout Nigeria and neither the Federal Government nor any State Government, Local Government other person or authority shall issue currency notes, bank notes or coins or any documents or token payable to bearer on demand being document or token which are likely to pass as legal tender”. Section 19(1) (b) provides that “The currency notes and coins issued by the Bank shall be of such forms and designs and bear such devices as shall be approved by the President on the recommendation of the Board”. Section 20(1) of the CBN Act provides that “The currency notes issued by the Bank shall be the legal tender in Nigeria at their face value for the payment of any amount”. Section 20(3) of the CBN Act provides that “….the bank shall have power, if so directed 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 coins with respect to which a notice has been given under this subsection shall, on the expiration of the notice, cease to be the legal tender, but subject to section 22 of this Act, shall be redeemed by the Bank upon demand”. From the above it appears that the CBN has the responsibility and power to issue a legal tender for Nigeria and to redesign any denomination of the legal tender. Also, fixing of deadline for cessation of validity of the old Naira notes are issues falling within the sole powers of the CBN under the President’s directive pursuant to Sections 19(1)(b) and 20(3) of the CBN Act. Accordingly, I am surprised that anyone who has a complaint or grievance in respect of either the redesign of the legal tender by the CBN could commence such a case at the Supreme Court. Section 25(1)(d) of the Constitution doesn’t mince words that every dispute arising from or related to the Legal Tender, including naira redesign and phasing out, must be commenced at the Federal High Court. Besides, the CBN is a necessary party to such a suit. Further, the declaration of the Supreme Court in AG KANO V AG FEDERATION (supra) leaves no one in doubt: the Hon AGF has no business whatsoever with the suit. And to this end, two major suggestions are made:
While the CBN is a necessary party to the suit, actions cannot be commenced or maintained against the CBN at the Supreme Court of Nigeria in its original jurisdiction. Perhaps, this is why the Plaintiffs carefully avoided joining the CBN, an essential party to the suit. But then in leaving the CBN out, the Plaintiffs still fell into a grave error of dragging to the supreme court, a suit legally suitable for only the Federal High Court. In AG Kano v AG FEDERATION (supra), the Supreme Court clarified that “The relief claimed by the plaintiff was against the Inspector-General of Police who was not subject to the original jurisdiction of the Supreme Court. The jurisdiction of that Court could not be invoked in the absence of a justiciable dispute between the parties and where the defendant was not the Federal Republic of Nigeria”. Per Mohammed, JSC at 38. A combined reading of sections 17 to 20 of the CBN Act appears to suggest that the job of Naira Redesign, and fixing a deadline when old Naira notes would cease to be legal tender, is the business of the CBN, even if the deadline is fixed BY THE CBN under a directive of the President of the Federal Republic of Nigeria. CBN is accordingly a necessary party to any dispute arising from any such issues.
Aside from the CBN which is an essential party to the suit, the only other person who may be properly joined to the suit is the President of the Federal Republic of Nigeria, considering his role as set out in section 20(3) of the CBN Act (supra). Luckily, the office of the president is a Corporation Sole capable of suing and being sued in its official capacity in a Court of law, subject to section 308 of the Constitution. Section 308(2) provides: “The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party”.
There appears to be no provision in any extant law in Nigeria authorising or permitting any State in Nigeria to commence any action against the President of the Federal Republic of Nigeria at the Supreme Court. Actions against the office of the president may only be commenced at the Supreme Court by the National Assembly of the Federal Republic of Nigeria by virtue of section 1 of the Supreme Court (Additional Original Jurisdiction) Act, 2002, made pursuant to the Constitution, which creates three additional instances in which an action may be commenced at the Supreme Court in its original jurisdiction: (i) dispute between the National Assembly and the President of the Federal Republic of Nigeria; (ii) dispute between the National Assembly and a State; and (iii) dispute between the National Assembly and a State House of Assembly in Nigeria. In view of the aforesaid, the only forum at which an action may be maintained against the President of Nigeria in his official capacity is at the Federal High Court, the NICN or a State High Court, dependent on the circumstances. Thus, with regard to the present scenario, if Kaduna State et al have any grievance against Mr President in respect of his role in CBN’s redesignation or swap of the legal tender (the naira), the proper forum is the Federal High Court and not the Supreme Court. Interestingly, in their bid to institute the case at the Supreme Court, the plaintiffs (Kaduna, Zamfara and Kogi States) carefully excluded the President and instead went for the Hon AGF. Unfortunately for them, while a state is entitled to invoke the original jurisdiction of the Supreme Court against the AGF, there is a mandatory condition precedent to a State dragging the Hon AGF before the Supreme Court: there must be a live dispute between the affected State and the Federation. In my opinion, if any dispute or grievance exists at all in the present scenario, it is an alleged grievance by Kaduna, Zamfara and Kogi States against the CBN in respect of the latter’s Redesign of the legal tender (pursuant to Section 19(1)(b) CBN Act) or in respect of the CBN fixing of a deadline (February 10, 2023) beyond which the old Naira notes would cease to be legal tender (pursuant to Section 20(3) CBN Act).
It appears that from whatever standpoint one looks at this matter, one would hardly deny that the current scenario revolves around Naira as Nigeria’s legal tender; thus any dispute arising therefrom is fitting but only for the Federal High Court pursuant to Section 251(1)(d) of the Constitution. Happily, Kaduna, Zamfara and Kogi States have the opportunity of validly maintaining an action against the principal actor in this scenario (the Central Bank of Nigeria), and (even if the Plaintiffs decide to join him) the President of the Federal Republic of Nigeria, at the Federal High Court, for purposes of ventilating their grievances, whatever their grievances are. In other words, it’s not as if the Plaintiffs in this scenario were/are legally hamstrung or otherwise frustrated regarding finding the appropriate forum for ventilating their grievances. It is just that, as it appears, they chose to avoid the Federal High Court which is the court with exclusive original jurisdiction by virtue of section 251(1)(d) of the Constitution, and also completely left out the CBN which is the principal actor in this scenario looking at sections 17, 18, 19 and 20 of the CBN Act.
One more interesting thing to note, especially with respect to the present scenario is that the plaintiffs appear to have completely also forgotten that section 251(1) of the Constitution is superior to any and all other provisions of the Constitution of the Federal Republic of Nigeria even in the case of conflict (save where the constitution itself otherwise expressly provides). Section 251(1)(d) of the Constitution begins with the expression _*”Notwithstanding anything to the contrary in this Constitution….”*_ thus asserting its superiority over all other sections of the Constitution in respect of any dispute regarding or arising from anything revolving around the Naira as Nigeria’s legal tender. Finally, the plaintiffs completely forgot the legal implications of failure to join the necessary parties to a civil action such as this one.
Now, a respected learned friend has suggested that “… federal government is giving directives every now and then on this naira issue. With that, it cannot be limited to s. 251 alone anymore. The three states are in order for maintaining an action against the conduit or remote behind Emefiele”. My humble response to this view is that the Inspector-General of Police, the Chief of Defence Staff, the Chief Of Army Staff, the Chief of Naval Staff, the Nigerian Immigration, the Civil Defense Corps, the NYSC and countless other institutions are Federal agencies and institutions who/which from time to time, in the course of performance of their constitutional/lawful duties and responsibilities, also take “directives’ from the President. In 2017, the Nigerian Army on the directives of the President of the Federal Republic of Nigeria launched Operation Python Dance in Southeast Nigeria; Operation Crocodile Smiles in South-south and Southwest. Recently, the Nigerian Military launched “Exercise Still Water” in Lagos pursuant to which the soldiers have been raiding notorious spots in Lagos with a view to routing out hoodlums and other social miscreants. See: *”Army Arrests 116 Suspects In Ongoing Lagos Operation”* (Daily Post; 31 January 2023). Now, is my learned friend saying that, say with respect to the last example (Exercise Still Water), if Lagos State feels aggrieved by the action taken by any of the military (in arresting these suspected miscreants) pursuant to Operating Exercise Still Water, the Lagos State, instead of dragging the Nigerian Military before the Federal High Court, would be legally right to sue the Attorney-General at the Supreme Court over the activities of the Nigerian Military during Exercise Still Water? In view of the supreme court decision in AG KANO V AG FEDERATION (supra), would the Nigerian Supreme Court have jurisdiction in such a matter? If we agree that the Nigerian Supreme Court wouldn’t have jurisdiction thereon, how does my learned friend think that the apex court could have jurisdiction over a dispute arising from actions of the CBN pursuant to its powers under the CBN Act, simply because the law says CBN should act under the President’s directive in some cases? Recall the facts of AG KANO V AG FEDERATION (supra): *Kano State Attorney-General had dragged the Federation (through the Hon AGF) to the Supreme Court over Kano State’s displeasure with an action taken by the Inspector-General of Police in Kano State Hisbah Corps and the Supreme held it had NO ORIGINAL jurisdiction in the matter.* Now, if as rightly held by the Supreme Court, a State cannot sue the AGF/the Federation at the Supreme Court over the actions of the NIGERIAN military or Police (even if these institutions in taking such actions, acted on the President’s directive), how would anyone suggest that a State could sue the Federation (through the Hon AGF) at the Supreme Court in respect of an action taken by the CBN, an institution expressly declared by the CBN Act to be an independent institution? And who tells my learned friend that the jurisdiction the Supreme Court lacks in this case could be donated to it by Kaduna State et al pretending to sue the Federation (through the Attorney-General of the Federation) over a matter in which the Hon AGF is not legally a proper party? And finally, to think of the present scenario which revolves wholly around the legal tender in respect of which section 251(1) (d) has expressly said that only the Federal High Court could have jurisdiction to the exclusion of all other courts in Nigeria, two important questions immediately arise here:)
(A). Can a State in Nigeria maintain a civil action against the CBN at the Federal High Court over the Naira Redesign, Daily Cash Withdrawal Limit or in respect of the deadline set by the CBN for old Naira notes to cease to be legal tender? Answer is yes. See s. 251(1)(d).
(B). Can a State maintain a civil action at the Federal High Court against the President of Nigeria in his official capacity over the deadline set by the CBN pursuant to the President’s directive in line with section 20(2) of the CBN Act? Answer is yes, from all I’ve explained with relevant legal authorities, above.
One then wonders why the plaintiffs proceeded to a court without jurisdiction as against the Court that has jurisdiction and which even affords the plaintiffs the opportunity of joining all necessary parties [(1) the CBN, and probably (2) the President] so that the matter and all issues surrounding it could be exhaustively and justly determined with finality? This is a question for the plaintiffs to answer.
Without prejudice to whatever their Lordships of the Supreme Court may choose to decide in the present case, (because their decision is supreme/final), I respectfully submit, based on the above provisions, explanations and the reasons I have given, that the Supreme Court of Nigeria does not have ORIGINAL jurisdiction to hear or entertain the suits filed at the Supreme Court by Kaduna, Zamfara, Kogi and any other State or States over the Naira Redesign and Daily Cash Withdrawal Limit policies recently announced by the CBN or in respect of the deadline of 10 February set by the Central Bank of Nigeria pursuant to Section 20(3) of the CBN Act, 2007 for old Naira notes to cease to be legal tender in Nigeria. It’s respectfully further submitted that except where otherwise expressly stated in the Constitution, section 251(1)(d) (which confers exclusive jurisdiction on the Federal High Court in all and any matters relating to the Naira as the Legal Tender of Nigeria) is superior to all other sections of the Constitution, including section 232 which provides for the original jurisdiction of the Supreme Court, although there appears to be no conflict between section 251(1)(d) and section 232 of the Constitution.
Well, for the avoidance of doubts, I repeat that mine is a mere opinion, respectfully and disinterestedly offered, without prejudice to the wisdom of the Supreme Court of Nigeria, which has the final say in this matter. The Supreme Court is a court of law, possessing appellate, original and supervisory jurisdictions. It has also been described as a court of policy. I respect their Lordships; and we are bound by their decisions. The ball is now in their lordships’ court, to do justice to this scenario case, according to law. I hope and pray that the apex Court would live up to the reasonable expectations of all right-thinking members of the watching public. While we await the decision of the Court on this matter, it is important to respectfully urge all parties and stakeholders, including the CBN, to endeavour to respect the rule of law and due process by conducting themselves responsibly and honorably pending the decision of the Supreme Court one way or the other. To this end, I humbly recall the following cases and declarations:
(1) In WHYTE V KWANDE (APPEAL NO.CA/PH/161/99), a judgment delivered on January 4, 2007 by the Court of Appeal, Port-Harcourt division, His Lordship, IBRAHIM MOHAMMED MUSA SAULAWA, JCA said: “I should have thought that fairness, even handedness and above all respect for rule of law would characterize the behaviour and standards of such men who found themselves in public offices”
(2). In AMAECHI V. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227, the Supreme Court of Nigeria (per PIUS OLAYIWOLA ADEREMI, JSC) in clear terms voiced its anger against lawlessness of any kind:
“The decision to substitute Celestine Omehia for Rotimi Chibuike Amaechi by the 3rd Respondent (P.D.P) during the period of pending gubernatorial election represents a display of very grave display of political rascality and an irresponsible and wanton disrespect for rule of law. No responsible person or group of persons who parade themselves as having respect for rule of law and due process, can be credited with such a dastardly act. The 1st Respondent, by acceding to the request of the 3rd Respondent for the substitution, has painted a picture of itself as a spineless body whose pre-occupation is dissemination of injustice. It (1st Respondent) has forgotten or it has thrown into the winds the position carved for it by the Constitution of the land -An unbiased umpire. Finally, on this point, I wish to say that in all countries of the world which operate under the rule of law, politics are always adapted to the laws of the land and not the laws to politics. Let our political operators allow this time-honoured principle to sink well into their heads and hearts.”
(3). In MILITARY GOVERNOR OF LAGOS STATE VS. OJUKWU (2001) FWLR (Part 50) 1779 at 1802 & 1799, the Supreme court stressed that “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which profess loudly to follow the rule of law, there is no room for the rule of self help by force to operate.”
May God help Nigeria!
Udemezue, is a Lagos based Legal Practitioner j
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