Can the President by Executive Order, Vary a Supreme Court Decision? 

Introduction 

Since our return to democracy in 1999, the responsibility of our courts in adjudicating over disputes between citizens and the State has become a lot more common place, as with an increased  growth in government functions and activities. The responsibility of the Judiciary to protect citizens against unlawful acts of government, is an essential aspect of any democracy. In carrying out this responsibility, there is a need for the Judiciary to demonstrate that it is not only independent of government, but that it also won’t hesitate to ensure that there is strict compliance with its orders and judgements. Practical examples of the importance of judicial independence is when high-profile matters generating a great deal of media interest, come before the court. This may be the criminal trial of a person or persons accused of a shocking murder, the divorce of a celebrity, or challenges to the legality of (as we have witnessed recently) a government policy, such as the ongoing controversy at the Supreme Court centring on the Naira redesign policy currently being implemented by the Central Bank of Nigeria (CBN). In this 24-hour media age in which we now live, it stands to reason that our Judges hearing such cases will often be under intense scrutiny, with their decisions open to intense debate. Make no mistake, it is right that this is so, but it is equally important that decisions of court are not only made in accordance with the law, but that there is equally a determination to ensure that they are not only enforced but obeyed without any form of  interference.

AG Kaduna, Kogi & Zamfara v AG Federation SC/CN/162/2023  

In this suit which is now pending before the Supreme Court, the three States who were the initial Plaintiff/Applicants were granted an interim order temporarily halting any move by the Federal Government, the CBN and others, to phase out the old N200, N500 and N1,000 currency notes as from 10th February, 2023. 

The interim order was due to expire on 15th February, 2023, on the hearing of the arguments involving the Parties by way of a motion for interlocutory injunction. The CBN, despite the Supreme Court’s interim order, continued to make statements to the effect that it’s 10th of February, 2023 deadline remained sacrosanct. 

Upon the resumed hearing at the Supreme Court on the 15th of February last week, AU Mustapha, SAN, Counsel for the Plaintiff/Applicants mentioned that the Plaintiff/Applicants had filed an affidavit of non-compliance by the Defendant/Respondent with the interim order of court. The Plaintiff/Applicants’ Counsel insisted that it was a matter of executive lawlessness, and that it also touched upon constitutionality. The seven-man Panel of the Supreme Court led by Honourable John Okoro JSC, directed that the learned Silk AU Mustapha SAN should file a proper application, and put forward his complaints. The Court also asked whether Kanu Agabi, SAN who appeared for the Defendant/Respondent had taken note. The learned Counsel for the Plaintiff/Applicants then went on to ask without prejudice, that the interim order should be extended. The Supreme Court however, then pointed out that a formal extension was not necessary, because the order granted was to last until the hearing of the motion on notice which had not yet been heard, thereby intimating that an extension is automatic since as we know, an interim order of injunction lasts for a short period pending the hearing and determination of the motion on notice. AU Mustapha, SAN, was, in the circumstances, satisfied with the position of the Court. 

The Supreme Court therefore, affirmed the validity of the use of old 200, 500 and 1000 Naira notes, and maintained that the February 8th, 2023 hearing, which paused the implementation of the February 10th deadline ban on the use of old Naira notes, still subsists.

Nine other States applied to join the proceedings. The States are Katsina, Lagos, Cross River, Ogun, Ekiti, Ondo and Sokoto, bringing the new total number of Plaintiffs to 10. On the other hand, Edo and Bayelsa applied to be joined as Respondents.

The seven-man panel of the Supreme Court ordered them all to amend their processes, so that they can be heard in one consolidated suit at the next adjourned date of 22nd February, 2023. 

The President’s Intervention 

Following all this, in yet another remarkable twist, President Muhammadu Buhari speaking in a National broadcast on Thursday, 16th of February, 202,  exactly a day after the Supreme Court hearing, purported to vary the interim order of the Supreme Court by stating that the old N500 and N1,000 notes are no longer legal tender and that they can only be swapped at the CBN and other designated points. The President further stated that the old N200 notes will, however, remain legal tender until 10th of April, 2023 when they will cease to be valid. He stated  thus:

“To further ease the supply pressures, particularly to our citizens, I have given approval to the CBN that the old N200 bank notes be released back into circulation, and that it should also be allowed to circulate as legal tender with the new N200, N500, and N1000 banknotes for 60 days from February 10, 2023 to April 10, 2023, when the old N200 note ceases to be legal tender”. 

“In line with Section 20(3) of the CBN Act 2007, all existing old N1,000 and N500 notes, remain redeemable at the CBN and designated points.”

This Statement by the President is tantamount to what we call an Executive Order, and the question we need to ask ourselves, is whether an executive order of the President can vary or overrule a decision of the Supreme Court? The short answer is No; but, what he seems to have done is use an executive order to make the Supreme Court order or ruling become ineffective.  This is precisely what he has done, but, once again is this lawful? In a sense, the President and the Supreme Court are equals under the Constitution through the doctrine of separation of powers, but, unlike the President, the Supreme Court has no real enforcement powers. It relies on the Executive, to help enforce its orders. How then, can the Supreme Court enforce its interim order against the Federal Government? Not all executive orders are necessarily constitutional, just as not all laws passed by the National Assembly are necessarily constitutional; but, all executive orders can be made subject to judicial review, because every executive order must be grounded in a specific legal or constitutional authority. The President  cited Section 20(3) of the CBN Act to justify his legal authority, so this takes us back to where we first started started last week, in that the President’s intervention has not only undermined the Supreme Court’s interim order by rendering it ineffective, but it has equally touched upon the question of jurisdiction with regard to the present action as filed at the Supreme Court. 

Implications

It’s difficult to see what, if anything has been gained by the filing of this suit at first instance at the Supreme Court. Procedure seems to have taken precedence, over substance. The Supreme Court, in my view, should have heard this case as scheduled on the 15th of February, 2023. Those desirous of joining as Parties could still have done so, with an assurance that all necessary amended papers would be filed before any reserved ruling, which, in any case, wouldn’t have been immediate. 

Time was always of the essence in this suit, and adjourning to 22nd February, 2023, three days before the Presidential election defeats the purpose of the suit, at least from a political standpoint. Those who had different prayers, but nevertheless, wanted their suits consolidated should have filed their papers in Court, in anticipation of the Supreme Court eventually agreeing to their joinder. The Supreme Court does not always approve of this practice, but this was a special case necessitating a bit of urgency that merited an exception. It was worth a try. As matters stand, the suit still hasn’t been heard, either with regard to jurisdiction or on it merits. The issue of jurisdiction ought to have at least been taken immediately, even if the Supreme Court were to sit late into the night. Now that the President has used an executive order to whittle down the effect of the Supreme Court’s interim order, the country and its various States are confused as to what is the subsisting law! The Supreme Court should now assert its authority by denying the Federal Government a hearing in all Federal Courts in the country, until it purges itself of this contempt by obeying the Supreme Court’s interim order. 

The President’s intervention has also raised significant additional issues that will need to be addressed, in any prospective jurisdiction hearing at the Supreme Court. 

A close look at paragraph 30 of the affidavit in support of the suit as filed by the three original States to this suit, shows that their argument is predicated on the fact that the President’s  consent/directive is required for any currency change. That is not an ongoing requirement in my view. The consent/directive of the President, has already been granted. That’s why the initial extension to the currency swap was announced by the CBN on the 29th of January, 2023, and not through the Presidency. It is logical therefore, that the CBN ought to have been joined in any Court Proceeding, because it is a necessary party. 

It should also be noted that the reason for the consent/directive of the President under Section 20(3) of the CBN Act, is because the Nigerian Currency does not belong to the CBN who merely manage it. The currency belongs to the Federal Republic of Nigeria. It’s consent/ directive through the President must therefore, be sought and obtained, before any currency change. Other than that, the CBN is an autonomous body. The President’s intervention now seems to affect that argument, in that he is still intervening despite the fact that he has already granted his consent to the CBN. The Plaintiff/ Applicants will no doubt argue that this is justification for filing at the first instance at the Supreme Court, and they may indeed, be right; but, at the time of filing their action this was not necessarily the case. Should they amend their papers accordingly? With the Presidential election coming up on the 25th of this month, three days after the scheduled hearing, what is the point of doing so, at least from a political standpoint? None, if you ask me. 

Conclusion

The dignity, integrity and authority of the Courts, are the pillars that underpin our legal system and the rule of law. Any judicial system that does not uphold standards or maintain its integrity, cannot hold or retain public trust.  Disputes as to the legality of the acts of government are to be decided by Judges who are wholly independent of the Executive. Perhaps, we should remind ourselves of the locus classicus on this subject, which was best illustrated in Governor of Lagos State v Ojukwu (1986) 1 NWLR (Pt. 18) Page 622.  

The Court of Appeal had earlier granted an ex parte application of an interim injunction to stop the ejection of Chief Ojukwu, pending the determination of the motion on notice. While the case was still pending in Court, the Lagos State Government without an order of court forcibly ejected Chief Ojukwu from the property in dispute. On application to the Court of Appeal, the Court gave an order of mandatory injunction restoring Chief Ojukwu to his residence at No. 29 Queens Drive, Ikoyi, Lagos. The Lagos State Government and the Commissioner of Police, Lagos Command, without carrying out the order of the Court of Appeal to restore Chief Ojukwu into his house, sought an order staying the execution of the decision of the Court of Appeal, pending the determination of the appeal in the Supreme Court.

The Supreme Court held per Oputa J.S.C. (dismissing the application) thus:

“(i) It is a very serious matter for anyone to flout a positive order of a Court, and proceed to insult the Court further by seeking a remedy in a higher Court while still in contempt of the lower Court.

(ii) It is more serious contempt, when the act of flouting the order of the Court is by the

Executive.

(iii) Once the Court is seized of a matter, no party has a right to take the matter into his own hands.

(iv) To use force to effect an act, and while under the Marshall of that force, seek the court’s  equity, is an attempt to infuse timidity into Court, and operate a sabotage of the cherished rule of law.

(v) The government should be conducted within the framework of recognised rules and principles which restrict discretionary power.

(vi) Thwat disputes as to the legality of acts of government, are to be decided by Judges who are wholly independent of the Executive.

(vii) The Judiciary cannot shirk its sacred responsibility to the nation, to maintain the rule of law. It is both in the interest of the Government and all in Nigeria.”

Sadly, 37 years later what has changed? Absolutely nothing!