By Ebun-Olu Adegboruwa
On February 8, 2023, the Supreme Court of Nigeria made an order directing that the old Naira notes of N200, N500 and N1000 should continue to circulate alongside the new Naira notes, pending the hearing and final determination of the Motion on Notice filed by three States before the Court.
The case was then adjourned to February 15, 2023. In its reaction to the suit and the order made therein, the Federal Government of Nigeria, through the Honourable Attorney-General of the Federation, filed its processes in the suit and gave an undertaking to obey the order of the Supreme Court. In the meantime, the problems associated with the scarcity of the new Naira notes continued unabated.
At the behest of the President, the Council of State met and gave an advice that if the new notes are not sufficiently available, then the old notes should continue to circulate concurrently with the new notes until such a time that the latter will circulate widely.
When the Court case came up before the Supreme Court on February 15, 2023, the interim order previously made was validated and extended.
The following day on February 16, 2022, the nation woke up to listen to the President in his nation-wide broadcast on the crisis of the old and new Naira notes. The highpoint of the President’s broadcast is best captured in the now infamous declaration that the old N500 and N1000 notes have ceased to be legal tender and that the old N200 will remain legal tender till April 10, 2023. There are many absurdities in the President’s broadcast. The President himself acknowledged in that broadcast that the issue of whether or not the old Naira notes will remain legal tender is already pending before the Supreme Court and he is a party in that case through his Honourable Attorney-General. If that is the case (and indeed it is), then where lies the locus of the President to dabble into making proclamations on a matter pending before the Court? The President is not entitled to take the law into his own hands, by seeking to overreach whatever decision the Supreme Court may take on the matter, ultimately. Also, there is already a subsisting order made by the Supreme Court to preserve the status quo of the subject matter of the case before the Court. The President cannot disobey or circumvent that order, in whatever form at all.
The statement by the President that the old N500 and N1000 notes have ceased to be legal tender amounts to overruling the subsisting order of the Supreme Court, which he has no powers under the law to do. In every democratic setting such as obtains in Nigeria, there is the hallowed doctrine of separation of powers, by which the organs of government work separately and independently, without seeking to interfere with or undermine the statutory functions of the other organs.
By virtue of section 6 (6) (b) of the 1999 Constitution, the judicial powers vested in the Courts extends to the determination of disputes between persons and persons, between persons and governments and between governments and governments. And once that dispute is submitted to the Court for adjudication, the parties lose the power to act or take any decision on the subject matter, otherwise we will be faced with a situation of complete anarchy and lawlessness. The reason for seeking to preserve the subject matter of a suit pending before any court is simply to avoid situations whereby the decision that may be reached by the Court on the case on the merit loses value or that the Court is made to face a situation of fait accompli or complete helplessness.
In this instance, suppose the Supreme Court decides ultimately that in line with section 20 (3) of the Central Bank Act, the old Naira notes will continue to be legal tender? Meanwhile the President has by his broadcast declared them illegal. That creates confusion in the land, because people now have to decide who to obey between the Supreme Court and the President.
Under and by virtue of section 235 of the 1999 Constitution, “… no appeal shall lie to any other body or person from any determination of the Supreme Court.” In other words, the Supreme Court is the final authority in legal pronouncements in Nigeria. The Constitution is very careful in the selection of words to state no other “body” or “person” should seek to exercise authority over the Supreme Court, which is what the President has done through his broadcast in respect of a matter in which he is directly a party. Section 287(1) of the Constitution provides as follows:
Section 287(1) of the 1999 Constitution:
“(1) The decisions of the Supreme court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the supreme Court.”
Without doubt, the President, and indeed all persons exercising authority in Nigeria, including the Central Bank of Nigeria, are bound to obey and give effect to all decisions of all Courts in Nigeria. It is more so important in this case because it involves the highest Court in the land. In this case, the President cannot claim to seek to exercise any right of appeal against any decision of the Supreme Court as that has been outlawed by section 235 of the Constitution.
This is why the broadcast of the President is sad for our democracy; it should not have been made at all, given the implications of the declarations stated therein. The President set himself in confrontation with the Supreme Court, by making a declaration that is contrary to that which had already been made by the Supreme Court. Since he already admitted that the matter is subjudice, the President should not have proceeded to vary the order of the Supreme Court. No one can choose or pick which portions of the order of a Court he will obey.
Under and by virtue of section 318 of the Constitution, ‘decision’ of the Court extends to “any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation”. So, whatever the Court has decided, sitting in its judicial capacity, becomes binding on all persons and authorities in Nigeria. The same section 318 states that authority includes government. The oath that was administered on the President is to defend and uphold the Constitution. In this regard, the President and indeed the executive should not give the impression that citizens can brazenly disregard lawful orders of any court, as that will only encourage anarchy and lawlessness.
The President not only reviewed the order of the Supreme Court but he actually overruled it, by setting a deadline of April 10, 2023 for the validity of the N200 old notes and declaring the N500 and N1000 notes as expired. No arm of government has the powers to do that which the President has done in his broadcast. And it portends very grave danger to our democratic experience, where such a bad precedent is set that the executive arm of government is at liberty to undermine the judiciary at will.
The other point is that the President took an oath of office to defend and uphold the Constitution, from which he derives his powers as the head of the executive arm of government. That same Constitution enjoins the President to obey and give effect to all orders and decisions of the Supreme Court. And what is the issue at stake really? Nigerians were misled by the President and the Central Bank of Nigeria that if they surrendered their old notes to the banks, they will have access to the new notes in exchange, which has not been the case. The CBN cleverly deceived us into giving up our old notes when it had no plans to print enough new notes to go round.
This has now led to hardship for the people, wherein citizens are forced to sleep at ATM centres and stay in the banks for hours, just to collect their money. It has also affected business transactions and it has impacted upon the economy very negatively, where some workers now stay at home because they cannot access money to transport them from one location to another.
We have experienced protests against the policy of the federal government, which has led to the death of many. Surely this cannot be the intention of the President. Section 14 (2) (b) of the Constitution prescribes that the primary purpose of government should be the security and welfare of the people. Thus, any policy of the government that leads to suffering, death, hardship and poverty, cannot be in the interest of the welfare of the people. Consequently, the President bears the onus to review the policy in such a way that it will benefit the people, ultimately.
Furthermore, the President must inspire confidence in the institutions of democracy, in particular the judiciary. Once we get to the stage when citizens are free to decide which portion of the order of any court they will obey, then we are approaching the dangerous bend of a breakdown of law and order. If left unchecked, what the President has done is nothing less than executive rascality and brazen disregard for and contempt of the Supreme Court.
The President should reverse his directive and ask the CBN and all financial institutions to obey the subsisting order of the Supreme Court to continue to accept, use and transact business with the old N200, N500 and N1000 notes. It is gratifying that the case came up before the Supreme Court on February 22, 2023 when it was adjourned to March 3, 2023, when their Lordships will have the golden opportunity to assert their constitutional authority by reversing the directives contained in the broadcast of the President. Anything short of this will rob that Court of its legitimacy and authority. It will also render all other courts subordinate to the Supreme Court as mere talk shops whose orders and decisions will no longer be taken seriously by the citizens. Above all, it will leave the common man helpless and vulnerable.
The place of arbitration in agreements
(Being the concluding part of Ebun-Olu Adegboruwa’s series on ‘Agreements in property acquisition and development’, last published in this column on February 14, 2023)
The term ‘arbitration’ has been defined by the authors of Black’s Law Dictionary, Eight Edition as a method of dispute resolution involving one or more neutral third parties who are agreed to by the disputing parties, and whose decision is binding. An arbitration agreement is an agreement by which two or more parties agree that present or future disputes shall be resolved by arbitration. An arbitration clause is often included as part of the terms of a broader contract.
When parties, by their contractual agreement, provide for a resort to arbitration first and only after failure of agreement on arbitral award, can a party pursue a cause of action in court without first exhausting option of arbitration? This has greatly agitated legal minds, including the courts. In this regard, time starts running, for purpose of limitation, from the date of the award.
This is not to say that the parties by their agreement could oust the Court’s jurisdiction; far from it. It only postpones resort to litigation before the court in order to exhaust option for arbitration. After all, it is the mutual agreement of the parties to first explore the option of arbitration. In these types of cases, the clause to stay access to the court commonly referred to as “Scott v. Avery Clause” defers the application of statute of limitation to the date of arbitral award. In the absence of such a clause the time starts to run, for the purpose of limitation statute, from the date of the breach of contract.
This is based on common sense of respecting the intention of the parties as contained in the contract signed by them. See the dictum of SALIHU MODIBBO ALFA BELGORE, JSC in CITY ENGINEERING (NIG) LTD v. FHA (1997) LPELR-868(SC) (pp. 41 – 42 Paras F – B).
It must be mentioned however, that the incorporation of an arbitration clause in an agreement does not Ipso facto mean that the suit filed consequent to the terms of the agreement must be referred to arbitration in all cases. The clause simply put, is meant to provide for a platform for the parties to settle any dispute that may arise from the terms of the agreement, if they so wish. See Kwara State Govt. & Ors. V. Guthrie (Nig) Ltd (2022) LPELR – 57678 (SC).
Conclusion:
As diverse as real estate transactions may be, so are the legal instruments for securing or consummating such transactions. Real estate transactions could be evidenced by contract of sale, deed of assignment or lease or sublease or tenancy agreement, or other suitable deeds or agreements, upon which a real estate lawyer will render useful legal advice after taking into consideration the peculiarities of the transaction and the governing law.
Whatever agreement a lawyer or party adopts for a real estate transaction, certain clauses are essential not only to protect the investment and avoid losses in case of defect in title or other defects that are prevalent in real estate transactions, but also to protect the parties from liabilities that may arise from improper consideration of all the relevant issues. Whatever the parties insert in their agreement will be construed when any dispute arises and nobody will be allowed to import into the agreement what is not contained in it. Some of the essential clauses are: provisions relating to capacity of the parties, consideration for the real property, provision for service charge, Land Use Charge, taxes and dues, indemnity clause, specific covenants to set out in real estate transaction agreements. The implication of this is that where the parties fail to provide such express covenants, the law shall imply same into the agreement.
- Adegboruwa is a Senior Advocate of Nigeria (SAN)
The Guardian
