FG, Banks Confiscated Private Asset Through Naira Swap | Text Of Judgement Delivered By S’Court

Text of judgement on currency redesign: SCC 162/2023

Justice Okoro led the panel of seven Justices. Delivered by Agim JSC.

Appearances: AU Mustapha plus others,

1. CBN Governor announced on the 26 September the approval of the President to replace certain denominations of Naira. The CBN also issued a circular in December to all DMB on limits of cash withdrawals. Another letter dated 21st December was issued by the CBN to revise the previous circular dated 6th December, 2022.
   On the 15th December, the new notes were not available as promised. For days running into weeks, several customers were stranded without access to their deposited funds.
2. The Plaintiffs noted that there were no consultation as required with NCS, NEC, the Cabinet etc. Thus, the suit was filed for the determination of the following questions: seven issues for determination. Reliefs sought include declarations on nine grounds. Additional Plaintiffs were joined by the order of this Court.
3. The 1st Defendant filed preliminary objections for the suit to be dismissed on 11 grounds. The 2nd Defendant also filed a notice of preliminary objections on 15 grounds.
4. An interim order was granted on the 8th of February. A motion on non compliance by the Defendants was filed on the 15th of February. The 5th Plaintiff filed a motion that the Defendants should be cited for contempt for non compliance.
5. Let me start by considering the issue of lack of jurisdiction as submitted in the preliminary objections. The Federal Government of Nigeria is an agent of the federation. The act of the President is an act on behalf of the federation. The federal government is not the sovereign as opposed to the federation. Sovereignty ultimately belongs to the people of Nigeria. Plaintiffs raised the cogent issue of their rights to be consulted. Thus, this is clearly a dispute between the Plaintiffs on the one hand and the Federal Government on the other hand. Let me thereafter consider the argument that not joining the CBN is fatal to the jurisdiction of this court. Clearly, the CBN was acting on the directive of the President as provided in the CBN Act. The President’s broadcast on the 16th of February also made it clear that the directive was approved by him…. I authorised the CBN to redesign the Naira currency.
   In any case, the CBN is an agency of the Federal Government; which means that the principal can be sued without joining the agent in accordance with settled law. Let me now consider the argument that the Plaintiffs had no locus standi to bring this suit. The right being asserted in this suit is the right to be consulted along with the right for their state not to be disrupted on economic and social issues. Let me also consider the arguments on Section 252 of CBN on pre-action notice. The said provision cannot be applied to the exclusion of S.232 – original jurisdiction granted to this Court by the Constitution. Clearly, where there is a conflict between any Constitutional provision and any other law, the former prevails. Thus, all the preliminary objections lack substance and are hereby dismissed.
6. I would now address the merit of the case. Clearly, the President did not consult the Governors as required. Even though there is no specific provision on the subject under consideration, there is a general duty imposed on the President in S.5 of the Constitution.
   Furthermore, there is no official public notice other than press remarks by the CBN. It is a mere press remark, rather than a formal public notice. Thus, the directive given by the President without the required notice is invalid. The extension granted by the President is also unreasonably short. The President in his broadcast on the 16th of February admitted that the policy was being implemented with hardship on the citizens. A policy of this magnitude should not be taken without consultation and must be in line with global best practices. The Indian experience is a case in point with lots of disruptions. I therefore hold that no reasonable notice was given and therefore declared the policy to be invalid. The imposition of a limit after collecting the old notes constitutes illegal appropriation of private property.
7. It is not in dispute that the President disobeyed the Interim Order as exemplified by the State broadcast. I therefore hold that the suit has merit and accordingly grant the declaration and reliefs sought.
   The President is under obligation to consult and ensure adequate infrastructural provisions are in place before the implementation.
   The old notes shall remain in circulation until the 31st December of 2023.
8. Concurrence by the PJ and all the other JSCs, thus being a unanimous decision.
9. Comments by Chief Kanu Agabi on behalf of the Attorney General. Commended the determination and intellect of the Justices. I pray that the peace that reigned in this Court will permeate throughout the nation. There is hope for our country if only because of your decision. AU extended gratitude on behalf of suffering Nigerians. AG Lagos concurred especially on the speedy conclusion of the case.