Even If One Treats The CBN As An ‘Agency’ Of The Federal Government, The Supreme Court Still Lacks Original Jurisdiction To Entertain Lawsuits Over CBN’s Naira Redesign, Withdrawal And Swap Policies — A Reply To Femi Falana, SAN

By Sylvester Udemezue

Please, I beg my readers and all to make out time and read my first three works on the brouhaha over the Naira Redesign, Withdrawal Limit and swap policies of the CBN, and on whether the Supreme Court has original jurisdiction in a lawsuit filed in respect thereof: (1). “Re: “Give Me 7 Days To Resolve Cash Crunch, President Muhammadu Buhari Begs Nigerians” By Sylvester Udemezue (4 February 2023; TheNigeriaLawyer); (2). “THE NAIRA REDESIGN AND SWAP HULLABALOO: WHY I THINK THE SUPREME COURT OF NIGERIA LACKS ORIGINAL JURISDICTION” By Sylvester Udemezue (10 February 2023: NewsDeskNg); (3). “SUPREME COURT OF NIGERIA AND THE NAIRA SWAP BROUHAHA: WHEN NON-JOINDER IS FATAL” By Sylvester Udemezue (13 February 2023; BarristerNG).

Please, note that in the second work cited above, I had advised thus: “While we await the decision of the [Supreme] 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”. Thus, my current reply to Mr Femi FALANA SAN is strictly with respect to the learned silk’s argument on whether the Supreme Court has original jurisdiction over the Naira Redesign, Daily Cash Withdrawal Limit and swap policies recently introduced by the Central Bank of Nigeria (CBN).

In a piece titled “SC & CA say that CBN is not independent because it is an agency of FG” and published by BarristerNG on 14 February 2023, Mr Femi Falana SAN wrote as follows:
“In misleading the CBN Management, some lawyers have insisted that the apex bank is an independent institution and that it is not a party to the case of Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation pending at the Supreme Court. Interestingly, the Supreme Court ruled that the CBN is an agency of the Federal Government in the case of Obiuwvera v Central Bank of Nigeria where Rhodes-Vivour JSC held: ”This suit has to do with the administration or management and control of the Federal Government. The respondent is a Federal agency and the appellant is/was its employee. The termination of the appellant’s appointment is on administrative action by an agency of the Federal Government, the respondent.” In the same vein, in the case of Fayose v EFCC & Anor (2018) LPELR 46474(CA) the Court of Appeal dismissed the claim of that the CBN is an independent institution when Dongban-Mensem JCA (now PCA) held: “The independent status of the 2nd Respondent touted by the Appellant is a lame link. Section 1(3) of the Central Bank of Nigeria (Establishment) Act has not been shown to be independent of the legal guidance of the Hon. Attorney-General of the Federation who is the Chief Legal Officer of the Federal Republic of Nigeria. Nor was it demonstrated to the Court of trial that the independent status of the CBN takes it out of the supervisory management of the Hon. Ministry of Finance who is a Public Officer.”’

MY REPLY TO MR FALANA, SAN

Before I proceed to answer directly and specifically to Mr FALANA’s argument with a view to showing, with the greatest respect, that Mr FALANA SAN ‘s position is grossly erroneous being (as I see it) irrelevant to the essential issues that arise towards determining whether the Supreme Court possesses original jurisdiction in the present scenario, permit me to to start by respectfully submitting that Mr FALANA SAN has completely misunderstood the reasoning behind, and the actual dimensions of, Nigeria’s Central Bank’s status as an “independent body” pursuant to Section 1(3) of the CBN Act, 2007. There is no doubt that the head of the Central Bank of Nigeria (the Governor) is appointable by the President of the Federal Republic of Nigeria. Besides, certain decisions of the Central Bank are subject to the approval or directive of the President. However, by analogy, even the President of the Federal Republic of Nigeria, in the course of the performance of the functions of his office, is himself likewise under constant supervision of the National Assembly. Many decisions and actions of Mr President (as a condition precedent to their validity) are subject to the approval of the National Assembly or an arm of it. Does this detract from the fact that the President is the number one citizen of Nigeria, the overall head of the Federal Government and the wielder of the executive powers of the Federal Government of Nigeria? The CBN is an Independent Institution, but the independence of the CBN is not an absolute independence, just as the independence of the office of the President of the Federal Republic of Nigeria is not absolute. As observed by George Okorie, “In the CBN Act of 2007, the operational autonomy of the Bank is clearly expressed in line with international best practice. This has not only facilitated the achievement of its mandate but also instils stakeholder confidence”. The nature and scope of the independence of the CBN is specifically defined in section 1(3) of the CBN Act which provides: “In order to facilitate the achievement of its mandate under this Act and the Banks and other Financial Institutions Act, and in line with the objective of promoting stability and continuity in economic management, the [Central] Bank shall be an independent body in the discharge of its functions”. Accordingly, when it is said that the Central Bank is “independent” it is meant to say that as the monetary authority of the country with a mandate to formulate and implement monetary policies, the CBN is free from direct political or government interference in the conduct of its affairs. An example: the Central Bank possesses
a monopoly on issuance and printing of the national currency, which usually serves as the nation’s legal tender. Central Bank’s role includes taking measures to attain and ensure price stability and the maintenance of a safe, sound, and stable financial system. To this end, THREE DIMENSIONS of the Central Bank’s Independence are identified by Okorie : (A). Goal independence: In this type of independence, the central bank has the right to set its own policy goals i.e., inflation target, interest rates,
money supply and stable exchange rate. (B). Instruments independence: Instrument independence confers on the central bank the ability to freely choose appropriate instruments or adjust its existing policy tools in pursuit of the goals of monetary policy. The central bank has the independence to determine the best way of achieving its policy objectives, including the types of instruments to be used and the timing of their use. This is the most common form of central bank independence. (C). Operational independence: The central bank has the authority to run its operations (appointing staff, setting budgets, and so on.) without the overbearing oversight of the government. This type of independence helps to facilitate other forms of independence. See: “Understanding Monetary Policies No 13: Central Bank Independence” by George Okorie <https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.cbn.gov.ng/Out/2022/MPD/Series%252013.pdf&ved=2ahUKEwiNrcPuhpb9AhX1gf0HHbmHCgwQFnoECA4QAQ&usg=AOvVaw11DVNw1xUWo7g2ftc6HojQ>.

Having said this, I believe that if one reads my works Number 2 and 3 referred to above, one would not have any difficulty immediately disagreeing with Mr FALANA, SAN on whether the Supreme Court of Nigeria has original jurisdiction to hear a case over the Naira Redesign, Withdrawal Limit and swap policies of the CBN. It is respectfully submitted with more emphasis, that the court cases cited by Mr FALANA SAN (see above) are wholly irrelevant and therefore inapplicable to the present scenario/discussion. My reasons are as follows:

(1). The case of Obiuwvera v Central Bank of Nigeria referred to by Mr FALANA SAN, deals entirely with “the administration or management and control of the Federal Government”. This was made clear by the Court in the Case itself. Issues or proceedings relating to the administration or management and control of the Federal Government are provided for in section 251(1)(p) of the Constitution of the Federal Republic of Nigeria, 1999. The current scenario regarding the Naira Redesign, Daily Cash Withdrawal Limit, and swap policies of the CBN, are covered by section 251(1)(d) of the Constitution which leaves no one in doubt about which court has exclusive jurisdiction: “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, the legal provision applying to the present scenario is section 251(1)(d) and not section 251(1)(p) which was the subject of consideration in the case referred to by Mr FALANA SAN.

(2). Even if one decides to (although, with due respect, I do not at all) agree that the current scenario has anything to do with “administration or management and control of the Federal Government”, the question still remains that lawsuits over “administration or management and control of the Federal Government” are within the exclusive jurisdiction of the Federal High Court by virtue of section 251(1)(p) of the Constitution; the Supreme Court lacks original jurisdiction.

(3). It’s respectfully further submitted that apart from section 251(1)(d) of the Constitution which is the governing law in the present scenario, the other aspect of section 251(1) that could be said to apply is section 251(1)(r) which relates to “any action or proceedings 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”. Thus, if one agrees with me that the Naira Redesign, Daily Cash Withdrawal Limit, and swap policies are “executive or administrative” actions undertaken by the CBN but that (as FALANA SAN wants us to believe) those actions or policies were undertaken/introduced by the CBN AS AN AGENCY OF THE FEDERAL GOVERNMENT OF NIGERIA, then it could be suggested that Mr FALANA SAN would still be wrong in his suggestion that the Supreme Court of Nigeria has original jurisdiction in such matters. Contrary to what Mr FALANA SAN wants us to believe, the truth is that (with due respect to the learned silk), by virtue of section 251(1)(r) of the Constitution, the Federal High Court has EXCLUSIVE JURISDICTION over “actions or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision” by any agency of the Federal Government of Nigeria. Naira Redesign, Daily Cash Withdrawal Limit and swap policies are executive and administrative actions of the CBN taken pursuant to Sections 19 and 20 of the CBN Act,2007. In AG KANO V. AG FEDERATION (2007) 3 SC (PT 1), the Supreme Court held 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.”

(4). Assuming (for the purpose of argument) that the CBN should be treated as an “agency of the Federal Government”, it is still respectfully submitted that in respect of any action taken by the CBN in exercise of its powers under the CBN Act (example Naira Redesign and Daily Cash Withdrawal Limit, and swap policies), it’s wrong to for a State in Nigeria sue the AG Federation at the Supreme Court. Thus, in my opinion, the Supreme Court has no jurisdiction to hear such a matter. The decision of the Supreme court in AG KANO v. AG FEDERATION, leaves no one in doubt, and and has not been overruled. In the case (AG KANO V. AG FEDERATION (2007) 3 SC (PT 1),*Kano State had (through its Attorney-General) dragged *AG Federation to the Supreme Court over an action taken by the Inspector-General of Police. His lordship Mahmud Mohammed, JSC (as he then was), while dealing with the … provisions of Section 232(1) of the Constitution of the Federal Republic of Nigeria,1999 in the lead judgment, held 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 (Per Mohammed, JSC at 38) stated that “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”. The Supreme Court went further to explain (Per Mohammed, JSC at 38) 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’. 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).

If as the court has confirmed, the Supreme Court does not have jurisdiction to hear a lawsuit against the AG Federation over an action taken by the Police/IGP who is clearly an agent of the Federal Government and is not declared independent by any law, for any purpose at all, how can anyone validly argue that the Supreme Court could have original jurisdiction to hear a lawsuit against the AG Federation over the Naira Redesign, Withdrawal and swap policies which are actions/policies of the Central Bank of Nigeria (CBN), a body expressly declared independent by section 1(3) of the CBN Act. Imagine the Minister of Information who is not only apointable by the President, but could be dismissed at will by the President. Yet, in AG KANO V AG FEDERATION, the Supreme Court still said in respect of a lawsuit challenging an action taken by the Minister or Ministry of Information, the supreme court is not the appropriate forum for resolution at first instance. One then wonders how the SC could now be validly said to possess original jurisdiction in a lawsuit challenging an action taken by the CBN, an institution legally declared to be independent and whose head can’t be dismissed at will by the President.

(5). Besides, apart from the aforesaid, section 251(1) expressly states that actions relating to Naira as Nigeria’s Legal Tender must be filed at the Federal High Court.Is an action over Naira Redesign and Daily Cash Withdrawal Limit, and swap policies introduced by the CBN, not a lawsuit over the Legal Tender? If we agree it relates wholly to the Legal Tender, how can anyone validly argue that the Supreme Court could have original jurisdiction in such a matter?

(6). Further, the present case presents a clear exception to the general rule that non-joinder of a necessary party is not fatal. See my article referred to above: *”The Naira Redesign and Swap Brouhaha: When Non-joinder is Fatal” * Does it not sound strange that any lawyer could suggest that a lawsuit over CBN’s Naira Redesign and Daily Cash Withdrawal and swap policies (which relate wholly to the Legal Tender) could be effectually and conclusively resolved without joining the CBN as a party? 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 is clear 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 pursuant to the President’s directive in line with 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 the redesign of the legal tender by the CBN could be said to be right in commencing such a case at the Supreme Court. Now, if one agrees that failure to join the CBN is fatal, then one is entitled to agree that the Supreme Court in its original jurisdiction has no business with such a matter because one could not have lawfully joined the CBN in any lawsuit at the Supreme Court exercising its original jurisdiction.

Finally, Mr FALANA, SAN, has argued also that the CBN’s Naira Redesign, withdrawal limit and swap policies could never have become valid without the approval of the President of the Federal Republic of Nigeria. This argument appears to be beside the point, with due respect and my response to the learned silk’s argument is as follows:

First, by way of an apt analogy, the POWER TO APPOINT (say) a Justice of the Supreme Court belongs to the President of the Federal Republic of Nigeria. But we know that the appointment would not be valid unless it’s done on the recommendation of the NJC and is subsequently APPROVED by the Senate.

QUESTIONS ARISING:
(1). Does the fact that Senate plays the role of APPROVING the appointment (which is essential) make the Senate the APPOINTING AUTHORITY?
(2) Does the fact that NJC plays the role of recommending (which is essential) make NJC the APPOINTING AUTHORITY?
(3). Do we agree that Mr President remains the APPOINTING AUTHORITY notwithstanding that the respective complementary roles of the Senate and the NJC are essential conditions precedent for the validity of the appointment?
(4). Does Mr President (the legal custodian of the POWER OF APPOINTMENT) become an AGENT of either the Senate or of the NJC merely because the part played by each of the Senate and the NJC is a sinequanon in the process of such an appointment?

Please, let’s look at it this way:

As shown in section 19 of the CBN Act, the CBN has the power to redesign the Naira. But the law requires that after redesign, CBN must obtain the APPROVAL of the President. Similarly, the President of Nigeria has the power to appoint Supreme Court Justices. But the law requires that in doing the appointment, the President must get the APPROVAL of the Senate

Further Questions:
Why is it that one would in one breathe, agree that lawsuits in respect of APPOINTMENT of justices of the Supreme Court are properly filed at the Federal High Court (FHC) against Mr President (who is the APPOINTMENT AUTHORITY) and not against the the Senate (approving authority) to the exclusion of Mr President, but one would turn around in another breathe, in the case of action taken by the CBN with the approval of Mr President, to justify a suit filed against the approving authority which suit completely leaves out the REDESIGNING AUTHORITY? In my opinion, no matter the angle from which one looks at it, if the CBN is left out in such a lawsuit, how would one expect the court to make orders that would bind or otherwise affect the CBN? Section 19 (1) CBN Act did not assign to Mr President the job of redesigning the Naira; it’s to the CBN that is expressly assigned the job, which CBN has to do with the approval of Mr President. Second, section 20(3) CBN Act assigns to the CBN (and not to Mr President) the job of setting deadlines for old currency swap. However the CBN has to do this job (which is its) on the directive of Mr President. Accordingly, leaving out the CBN in any such suit clearly pertaining to or arising from the performance of CBN’s powers (to Redesign the Naira and to set deadline to phasing out of the old notes) appears, I submit with due respect, is legally unsupportable and logically unjustifiable.

Check these out: (a) Who did the Redesign? CBN. (b) Who is in the best position to answer all questions arising therefrom? The CBN. (c) Who set the 10 February 2023 deadline for Naira swap? The CBN. (d). Who is a the best position to explain everything surrounding the Naira Redesign, Withdrawal Limit, and swap carried out by the CBN, with the president’s approval/directive? The CBN
(e).The suits filed at the Supreme Court, by some States against the AG Federation, are complaining that the new naira notes are in short supply. Now, who is the right person and in the best position to respond to questions raised by the allegations made by the plaintiffs? The CBN (f). Can any meeting or proceeding to discuss issues or challenges arising from or pertaining to the Naira as the Legal Tender be fruitfully and conclusively carried out in the absence of the CBN? Capital no.

This was why, even the Nigerian Council of State had to invite the CBN to come to the Council’s meeting, to brief the Council about the Naira Redesign, Daily Cash Withdrawal Limit and swap policies of the CBN. (g) Would a meeting of Nigeria’s Council of State (having as its sole agenda-item, discussions about alleged challenges arising from recently introduced Naira Redesign and Daily Cash Withdrawal Limit policies of the CBN) be meaningful fruitful if the CBN had not attended? No. (h). How then would a court of law be able to conduct in the absence of the CBN, proceedings instituted to discuss only alleged challenges arising from Naira Redesign, Daily Cash Withdrawal Limit and swap policies introduced by the CBN? It’s yet to be seen.

In conclusion, it remains my humble submission that the Supreme Court lacks original jurisdiction to entertain any lawsuit filed at the Supreme Court by a State in the Federation against the AG Federation over CBN’s Naira Redesign, Withdrawal Limit and swap policies. The appropriate forum for such a suit is the Federal High Court and the most essential party to the case is the CBN. One may choose to join the President of the Federal Republic of Nigeria (if ones chooses to).

Respectfully,
Sylvester Udemezue (Udems).
08109024556.
mrudems@yahoo.com.
(14 February 2023)