The Dividing Line Between Positive and Negative Judicial Activism

Introduction 

The primary limitation of judicial review in its wider context, lies within the concept of judicial activism. At the same time, it is becoming ever more apparent that when the courts over-reach without good intention, negative activism takes over. Within this concept of negative judicial activism lies all the limitations of judicial review, especially when it comes to evaluating those cases where this concept is not properly applied. The above observation is perhaps, best encapsulated in two decisions of the Supreme Court and one by the High Court of the Federal Capital Territory ( FCT) Abuja, all of which were handed down last week. 

I will now in turn proceed to analyse each of these three controversial judgements. 

SC/CBN/1689/2023: All Progressives Congress v Bashir Sheriff, Ahmad Lawan & INEC

In a split decision of 3:2 the Supreme Court declared Senate President, Ahmed Lawan, as the APC Senatorial candidate for Yobe North  Senatorial district in the forthcoming elections. 

In its judgement delivered on Monday the 6th of February, 2023, the Supreme Court allowed the appeal filed by the APC against Bashir Machina’s candidature;  three out of a five man Supreme Court panel decided that the suit at the trial court ought not to have been commenced by Originating Summons, since according to them, it contained allegations of fraud.

The lead judgement which was delivered by Hon. Chima Centus Nweze JSC, the majority decision faulted the approach of Bashir Machina in commencing the suit at the Federal High Court by Originating Summons, because oral evidence  could not possibly be led to prove allegations of fraud. In such situations, the Court pointed out there is always a need to call witnesses to prove these allegations of fraud.

  The Supreme Court also set aside the decision of the Appeal Court, Gombe Division, which affirmed the decision of the trial court declaring Machina the Senatorial Candidate for Yobe North Senatorial district, and instead, pronounced Senator Ahmed Lawan as the authentic APC Senatorial candidate for Yobe North. 

Evaluation and Analysis 

In my humble opinion, it is difficult not to fault the reasoning of the Supreme Court in this case. To begin with, this was an appeal in which the APC as a Party was arguing against itself, in that it never cancelled the initial Primaries. How absurd. Secondly, any passing reference to fraud as observed by the Supreme Court, is not enough to vitiate the Respondent/Plaintiff’s case, especially since the Originating Summons was predicated on more than just fraud. What’s the justification for throwing out an entire case, for merely making reference to the word fraud? The Prayers of the Respondent in the Originating Summons was centred more on  Unlawfulness, and the fact that INEC and the APC were acting contrary to the new Electoral Act 2022. Neither unlawfulness or Illegality, require you to necessarily give evidence. It’s sufficient to show that one acted contrary to relevant legislation, in this case the new Electoral Act 2022. To ignore this fundamental point, and hinge the Respondent/Plaintiff’s case on a passing reference to fraud, is perverse in the extreme. 

The Federal High Court has also issued a practice direction to the effect that all pre-election  cases brought to Court under the Electoral Act 2022, must be initiated by Originating Summons. This means that a Plaintiff will not be allowed to file his papers at the Court Registry, unless he complies with this Federal High Court Practice direction. This meant the Respondent had no other alternative or choice. Surely, the Supreme Court knew this fact. The Supreme Court also ought to know that the Federal High Court Rules and indeed, other High Court Civil Procedure Rules empower Judges to order Claimants to convert Originating Summons applications to a writ, whenever evidence needs to be adduced to prove facts that can’t be settled by affidavit evidence. In short, the onus is more on the Judge than the litigant. So, what really is the Supreme Court’s point? The Supreme Court should have ordinarily, discountenanced any passing reference to fraud since it wasn’t even included in Machina’s prayers before the various Courts. In any case, why visit the error of Counsel or Court as the case may be on the litigant, and leave him without a remedy due to no fault of his own? 

The Supreme Court must have equally deduced that the APC Presidential Primary which Senator Lawan participated in was on the 8th of June, 2022; yet, Senator Lawan is supposed to have won a new NWC APC Primary for Yobe North Senatorial district on the 9th of June, one day after the Presidential Primaries in which he was an active participant and candidate. How was this possible or lawful, since you can’t participate in two Primaries for two different positions at the same time under the Act? The Electoral Act 2022 clearly states under Section 82(1) that 21 days notice must be given to INEC before a Primary can be conducted. This can be reduced to 14 days under Section 33 of the Electoral Act 2022 in the event of death or withdrawal, neither of which seem to apply in this case. We also know, as we have already noted earlier, that the APC never officially communicated to anyone that it had cancelled its first Primary conducted on 28th May, 2022. These are the pertinent issues which have been proven through the facts, and makes it completely illogical to say the very least, for the Supreme Court to declare Senator Lawan as the authentic candidate of the Yobe North Senatorial district seat. This judgement take’s negative judicial activism, to a completely new level.

The Naira Redesign Matter: Case 1 & 2

Case 1: Political Parties v President, CBN & Ors at the FCT High Court

In a Motion Ex- Parte application before Hon Justice Eneojo Eneche, the Claimants were granted an Interim order restraining the Defendants from stopping, extending or interfering with the currency redesign and terminal date of 10th February, 2023, or from Issuing any directive contrary to the 10th of February, 2023 deadline amongst other orders. The interim order which was granted on 6th February, 2023 was valid for 7 days, and the Court adjourned the Suit till today for a hearing of all concerned Parties. 

Analysis

By virtue of Section 251 (1) of the 1999 Constitution, the FCT High Court Abuja clearly had no jurisdiction to grant the above interim order, neither do the political parties have locus standi to file this action at the FCT High Court. Since however, an order of court is binding until set aside, the Defendants have to comply with the order until it is possibly set aside or made the subject of an appeal. Once again, this is yet another example of negative judicial activism. 

Case 2: 3 AGs v AGF at the Supreme Court

In this suit as filed, the three States in question were granted an interim order temporarily halting any move by the Federal Government and Central Bank of Nigeria (CBN) to phase out the old N200, N500 and N1, 000 currency notes as from 10th February, 2023. 

The interim order is due to expire on 15th February, 2023, after which all arguments involving the Parties will be heard. Under Section 232(1) of the 1999 Constitution as amended, 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 or under Section 232(2) of the Constitution and by extension the Supreme Court Additional Jurisdiction Act 2002, between the National Assembly and the President; the National Assembly and any State House of Assembly, or the National Assembly and a State of the Federation. Original jurisdiction means the Supreme Court can entertain this suit at first instance. 

Analysis 

Kaduna, Zamfara and Kogi State Governments brought this suit, by invoking the original jurisdiction of the Supreme Court. The Supreme Court has granted them an interim order of injunction which expires on the 15th of February, 2023, when all arguments as to whether the Supreme Court has jurisdiction or not to hear this suit will be taken. The Central Bank is not a party to the proceedings, since if it were a party, it couldn’t be instituted at the Supreme Court. Instead, the suit would have ordinarily in such circumstances be instituted at the Federal High Court, because suits in which the original jurisdiction of the Supreme Court is invoked can only have State Governments, the Federal Government or the National Assembly as parties and no other. The moment you add any other party other than those specified, above the Supreme Court’s original jurisdiction cannot be utilised. 

This suit as filed raises two fundamental issues in my view. 

Firstly, is there any real dispute before the Supreme Court, if the CBN is not belng joined or made a Party?  Section 20(3) of the Central Bank of Nigeria (CBN ) Act 2007 states :

“(3) Notwithstanding subsections (1) and (2) of this section, the bank shall have power, if directed to do so by the President and after giving reasonable notice on that behalf, to call in any of its notes or coins on payment of the face value thereof and any note or coin with respect to which a notice has been given under this sub-section, shall, on the expiration of the notice, cease to be legal tender, but, subject to the Section 22 of this Act, shall be redeemed by the Bank upon demand”

There is an essential difference between the President’s consent or directive to the CBN under Section 20(3) of the CBN Act, and a dispute between the Federation and States that can invoke the original jurisdiction of the Supreme Court under Section 232 (1) of the Constitution. It can’t by any stretch of imagination be deemed to be the same thing. The Supreme Court Additional Jurisdiction Act 2002, makes reference to disputes between the President and the National Assembly. Neither the Constitution or the Supreme Court Additional Jurisdiction Act make reference to disputes between States and any agency of Government. Furthermore, the President’s directive to the CBN under Section 20(3) above, has already been granted. All the courts can now do under the circumstances, is to judicially review that directive or consent and assess and ensure that it wasn’t exercised illegally, irrationally or without following due process or procedures 

Secondly how can you enforce an order of court against the CBN, if it is not a Party? The CBN is autonomous, and no longer under the Ministry of Finance.  In 1997 the Federal Government of Nigeria enacted the CBN (Amendment Decree No. 3 and BOFID (Amended)] Decree No. 4  to remove completely the limited autonomy which the Bank enjoyed since 1991. The 1997 amendments brought the CBN back under the supervision of the Ministry of Finance, but the CBN (Amendment) Decree No. 37 of 1998 repealed the CBN (Amended) Decree No. 3 of 1997. This Decree once again provided a measure of operational autonomy to the CBN to carry out its traditional functions, and enhanced its versatility. It is therefore, not sufficient, in my view, to merely join the Attorney-General of the Federation in the present circumstances, in order to bind the CBN. 

The CBN has circulated an opinion viewed by many online, to the effect that it doesn’t think it is bound by the Supreme Court’s Interim order. Even if true, as I am more or less arguing, it would be a fundamental mistake to ignore the Supreme Court’s interim directives, in that, all court orders must be obeyed until set aside. All the Supreme Court would need to do if the CBN adopts such a recalcitrant stance, is to deny the Attorney-General a hearing until its order is complied with. This would instantly place the Attorney-General, the CBN Governor and the CBN itself in contempt of court, while the interim measures put in place by the Supreme Court would continue to be the official law in place.

Conclusion 

The real cause of all this judicial chaos, stems from the aversion of the Nigerian Lawyer to judicial review proceedings. We don’t quite understand or know how to utilise it. Neither do we appreciate its benefits. All our rules of court have judicial review embedded in them, but they are never really utilised. 

The Abuja High Court decision, was another issue that may have precipitated the Supreme Court’s positive judicial activism. The Parties that went to court had no locus standi, neither did the court have the jurisdiction to make the interim orders it did; so, this means an appeal would have to be lodged to keep the decision in abeyance. In short and in reality, there is was no time to do all this, hence, the Supreme Court’s timely intervention. 

In my opinion, this case as filed at the Supreme Court will almost certainly be thrown out  (I may yet be proven wrong ) at a full hearing of all Parties concerned, but they have at least bought us valuable time. The Lawyers should therefore, be preparing for their next move which ideally, should be an application for judicial review at the Federal High Court. If the application is made and a stay of proceedings also obtained, that may just bring this entire fiasco to a temporary halt, and buy us all the valuable time that ordinarily, any policy of currency change by the Government ought to have anticipated.