Attorneys-General of Kaduna, Kogi and Zamfara v AG Federation –Sam Kargbo, SAN Sam Kargbo, SAN

The Essence of ‘Sub Judice’

I am old enough to know that this case is sub judice. Matters are considered to be sub judice (Latin for “under judge”), once they are before a court or Judge for determination. The proceedings of the case of the Attorneys-General of Kaduna, Kogi and Zamfara against the Attorney-General of the Federation became very active, and, therefore, sub judice the very moment the Supreme Court heard and determined the Ex-Parte Motion filed by those three Plaintiffs, and granted the interim reliefs they sought on 8 February, 2023.

May it, however, be noted that the principle of sub judice is not a gagging principle, and it does not seek to prevent or suppress the right of speech or the right of citizens to freely, and in public, comment on the subject of the suit. What it seeks to prevent, is a parallel public trial that undermines the integrity of the court and the respective rights of the parties. Remarks or views that seek to influence the proceedings or outcome of the proceedings, run afoul of the principle and constitute contempt of court.

Catch-22 

It is in that spirit, that I will be cautious and tentative in expressing my views on the matter. Many critics have already passed unfavourable verdicts on the case, principally for what, in the first place, they consider to be the failure of the Plaintiffs (the three Attorneys-General) to join the Central Bank of Nigeria (CBN) in the case. It is their view that the CBN is a necessary party, because the case cannot be fairly dealt with or properly resolved without the CBN being a party to it. If their view is correct, the Plaintiffs are faced with a catch-22. If they do not join the CBN, the case will be struck out. If they, however, join the CBN, the Supreme Court will hands-off the case and strike it out for want of jurisdiction.

I, for one, will always give a colleague who has taken his time to prepare an originating process the benefit of the doubt. If I were the Defendant’s counsel, I would always take my time to study his case as expressed in his pleadings. Many of the informed commentators who have published their views on the matter, did not give our colleagues the benefit of the doubt. They just offhandedly dismiss the case, and thereby, ignore the fact that the Apex Court does not brook academic or frivolous cases. It is not an overgenerous Father Christmas, but one that must have considered whether on the face of it, it is properly constituted and has merit.

In the first place, it is a truism that extrapolations from analogous cases are not entirely helpful, where a case in issue has its nuance and a remarkable point of departure. It is my unfinished thought that the case of the three Attorneys-General comes with its peculiar slant that is worth examining.  

Section 20 of the CBN Act

Thankfully, the overarching issue is narrow and revolves around the interpretation of Section 20 of the CBN Act, 2007. My good friend, the lead counsel in the matter, demonstrated the skills of a warrior. His language is calm, but decisive. What he harps on – and what I suspect that those who spat on his process ignore – is the fact that unlike all other powers of the CBN, the power to recall banknotes and coins is performed only upon the Directive of the President of the Federal Republic of Nigeria. In that power, the CBN is only an agent of a known principal. For emphasis, I will hereby reproduce Section 20(3) of the Act:

(3) Notwithstanding Sub-section (1) and (2) of this section, the Bank shall have power, if directed to do so 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 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 Section 22 of this Act, shall be redeemed by the Bank upon demand.

The power of the CBN to print banknotes and mint coins under Sections 18 and 19, is different from the power to act on the directive of Mr President on the withdrawal of old notes. That distinction is fundamentally relevant, to the cause of action of the three Attorneys-General.

Both Mr President and the Governor of CBN were relying on Section 20(3) of the CBN Act, when Mr President claimed the credit for the policy (to fight banditry and vote buying?), and when the CBN Governor flew to Daura to seek Mr President’s approval for the extension of the deadline.

The proposition that the withdrawal of the old Naira notes is Mr President’s baby, and he should, therefore, be held accountable may not be entirely nonsensical.

The Apex Court may have to determine whether the relationship between Mr President and the CBN as regards the withdrawal of the old notes, constitutes that of “agency”. In law, an agency can arise when a person called the agent acts on behalf of another called the principal, whereby the latter becomes answerable for the lawful acts of the former, carried out within the scope of his authority, as to affect the legal relations between the principal and a third party. If, and only if, the Apex Court finds that the CBN acted as an agent of Mr President, the question that will then arise is, if the failure to join the CBN is fatal to the case of the three Attorneys-General. It is the law that an agent acting on behalf of a known and disclosed principal, incurs no liability. This is because the act of the agent, is the act of the principal. The situation is as if it was the principal that did what the agent did, or omitted to do what the agent omitted to do. Simply put, he who does an act through another, is deemed in law to do it himself. In the same vein, a disclosed principal can be sued for the actions of his agent.

Another issue that may impact the question of whether or not the three Attorneys-General properly activated the original jurisdiction of the Supreme Court, is the distinction between the provisions Section 232 and Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 on matters that concern the Federation or the Federal Government of Nigeria and/or it arms or agencies. The subject-matters of the two sections are different. Section 232 speaks about a dispute between the States and the Federation or disputes between States. Under Section 232(1) & (2) of the Constitution, the exclusive original jurisdiction of the Supreme Court is restricted to 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. The original jurisdiction of the Supreme Court has also been extended by the National Assembly, but those expanded areas are not relevant to this discussion. Where, however, a dispute concerns the administration or management and control of the Federal Government or any of its agencies or the operation and interpretation of the Constitution, in so far as it affects the Federal Government or any of its agencies, the court that has original jurisdiction is the Federal High Court. The Federal High Court also has original jurisdiction over matters or actions 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.

In summary, the formidable preliminary hurdles the case of the three Attorneys-General will have to overcome are 1) to establish that Mr President is responsible for the policy of withdrawing the Naira Notes and Coins. 2) to establish that there is a dispute over the policy and that the dispute is between the aggrieved States and  Mr President. 3) To establish that Mr President can be said to represent or personify the Federation, that is to say, that what Mr President did is an exercise of the “Federal Might”.

Sam Kargbo, SAN