Naira Swap: Supreme Court Should have Asked Buhari to Pay for Damages – Expert

Naira Swap: Supreme Court Should have Asked Buhari to Pay for Damages – Expert

1. The currency redesign and swap policy of the CBN has been invalidated by the Supreme Court with hard words for Buhari but the old notes are still not available. How should the S’Court decision be implemented?

-The unanimous Judgment of the full panel of the Supreme Court on the currency redesign and swap policy of the CBN to me, fits the coined words by Williams Shakespeare in The Merchant of Venice, which alludes to the Biblical character Daniel, who was well known for having excellent faculties of judgment.

Our Supreme Court in the matter under reference has been a Daniel come to judgment and I think we must celebrate and salute their courage, resolution and dedication to national call.

Their decision is unimpeachable, as it defines the Supreme Court in its exalted peculiar position as a law interpreter, “law maker” and policy maker. The Supreme Court makes and shapes policy when it is called upon to interpret certain provisions of the Constitution. This is because the route which a court takes when interpreting the provisions of our sacred and organic constitution is different from the route it takes when it is interpreting a mere statute. The Supreme Court explained this role in the case of Marwa v Nyako (2012) 6 NWLR (Part 1296) 199 when it held thus:
“When interpreting the Constitution, the court must bear in mind that it is dealing with an instrument which controls and regulates the powers and functions of government, controls the rights and obligations of the citizen and controls the peace and order of the society upon which the Constitution is supposed to operate”

In the just concluded matter, the facts of the matter fortified Supreme Court’s  jurisdiction and they rightly assumed same, from the first sentences of the judgment, it is clear that the CBN acted under the directives of the President and the President is the right party before the court and not the president’s agent, the CBN.

As noted in your question, the words used for the President, though may seem hard or harsh, but they’re certainly appropriate for such an errant party. Whereas I would have love to see the court ordering for a certain amount of fines to be paid to every Nigerians for the hardship experience due to such reckless,  thoughtless and unconstitutional directives of the President.

Finally, we need to be sincere since the decision patently pass the characteristic of a good judgment it’s decision would be implemented by default and without much ado.

2. The Feb 25 presidential election has come and gone. But what remains controversial apart from the election results is the arguable 25% votes in FCT requirement. What is your view on this as a constitutional lawyer?

-The provisions of Section 134(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly sub-paragraph (b) thereof have generated so much fuss and controversy in the past few days, especially after the conclusion and announcement of the winner of the recently concluded presidential elections.

Basically, there are two opposing sides in the arguments the above section has spawned: those who argue that for a candidate to be declared winner, he must get 25% of the votes cast in FCT (asides meeting other Constitutional criteria) and those who contend that a candidate need not poll 25% of the votes cast in FCT to be declared winner, so far as he meets other Constitutional requirements.

For the sake of clarity, Section 134(2) provides that:

(2) A candidate for an election to the office of the President shall be deemed to have been duly elected where, there being more than two candidates for the election –

(a) he has the highest number of votes cast at the election; and

(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.

Even though the Federal Capital Territory, Abuja (FCT) is not a State properly so called, the Constitution has clothed it with the toga of a State. In other words, the FCT is treated like a State, and all the powers of a governor in a State is vested in the minister of the FCT. While the Houses of Assembly of the 36 States of the Federation legislate for each State respectively, the National Assembly makes laws for the FCT. Furthermore, while the States have their respective LGAs, the FCT has Area Councils.

Pursuant to the above, Section 299 of the Constitution expressly provides that the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation. Section 299 of the Constitution has received the judicial imprimatur of the full panel of the Supreme Court in FAWEHINMI & ORS v. BABANGIDA & ORS (2003) LPELR-1255 (SC).

Hence, each time the Draftsman intends to refer to the 36 States and FCT in the Constitution, it says “all the States in the Federation and the Federal Capital Territory, Abuja (FCT)”, bearing in mind that the FCT has also been clothed with the toga of a State.

Having made the above clarification,  the “and” as used by the Draftsman between “all the States of the Federation” and “the Federal Capital Territory, Abuja” in sub-paragraph (b) of Section 134(2) of the Constitution cannot be interpreted to mean that what applies to other States is inapplicable to FCT. Rather, it means that the FCT is on the same pedestal as the States of the Federation, even though it’s not a State properly so called.

So, the intention of the Draftsman as regards Section 134(2)(b) of the Constitution is that, the candidate, in addition to having the highest number of votes cast at the election, must also poll not less than one quarter (25%) of the votes cast at the election in each of at least two-thirds of all the States in the Federation (36 States) and the FCT (a State kind of), thereby making it 25% of votes cast in at least 2/3 of 37 States. 2/3 of 37 is 24.6.

Drawing from the reasoning of the erudite jurist, Otutu Andrews Obaseki, JSC (of blessed memory), in the landmark decision of the full panel of the Supreme Court in AWOLOWO v. SHAGARI & ORS (1979) LPELR-653(SC), there’s nothing like 24.6 States, for a State is a geographical setting incapable of being divided.

Borrowing a leaf from the revered jurist, the construction that two-thirds of 37 States in the Federation (FCT inclusive) is 24.6 States may be correct in the abstract but in relation to the Constitution, it is impracticable. Where there are two possible meanings conveyed by the words of a statute or the Constitution, it is the most reasonable one that should be adopted. Where the other meaning leads to absurdity or evinces internal contradiction, that meaning should be dropped for the first as the legislature never intends to be absurd or contradictory.

The word ‘each’ in the sub-section (2)(b) of Section 134 qualifies a whole State and not a fraction of a State and to interpret it otherwise is to overlook the disharmony between the word “each” and the fraction “two thirds”. Two-thirds of thirty-seven (37), to avoid any disharmony, gives 25.

As a way of covering the base, the second school of thought contend that for a candidate to be declared winner, he must score 25% in the FCT (asides meeting other Constitutional requirements). If one agrees with this view, then it logically follows that if a candidate wins the entire 36 states of the Federation and polls the majority number of votes cast, if he fails to get 25% in FCT, then he cannot be declared winner. This cannot be the intendment of the Draftsmen, as the FCT cannot hold the entire nation to ransom.

So, once a candidate severally polls at least 25% of votes cast in at least 25 states, whether inclusive of FCT or not, he’s won the election so long he also has the majority of the votes cast all over the Federation.

3. The President of the NBA has given INEC 78-80% pass mark in the last presidential poll but some lawyers are wondering if the NBA was actually speaking for the bar. How do you react to this?

-The Nigeria Bar Association (NBA), as an assemblage of lawyers, has its elected members that makes decisions on its behalf, presently led by the President, Y. C Maikyau, SAN.

In relation to your question, the context in which the statement is given needs to be interrogated as it is to this effect that the statements of the president speak volumes as to the position of the professional body as a whole.

Before the General Elections, the NBA constituted an election monitoring committee to report their findings on the conduct of the elections back to the body.

However, several unverified reports from certain quarters have it that the President has not signed off on the report of the committee.

So, it is uncertain whether the president was voicing out his own personal opinion or expressing the content of report of the election monitoring committee when he gave INEC 78-80% pass mark in the last presidential poll. If it is the latter, then it can be said that the president spoke for the bar because he only relayed the report of what the committee found.

However, if it is the former, the president is entitled to its opinion which can sometimes project the view of the body. Nonetheless, each and every member of the bar has the right to their own opinion. And because of this right, members of the bar can have dissenting opinions on the conduct of the elections?

4. The judgment of the Supreme Court on Lawan v Machina appears to be unpopular given the facts of the case. But some lawyers are of the view that cases are not decided based on facts alone but also law. What is your perspective on this?

As a lawyer, it is regrettable to say that most of the negative comments targeted at the Supreme Court’s decision under reference are misconceived, particularly from the perspective of the law.

The Supreme Court only delivered judgement based on the case presented before them. And it is a sound judgement.

The concept of justice is not about a crying baby who runs to his sweet mother. Unlike the empathetic mother, the Supreme Court has the obligation to decide any matter based on its peculiarities.

To say in public, like some have been doing, that the judgement is ridiculous is contemptuous. A better appreciation of our justice system will reveal that what the Court considers is cold facts and not emotions.

If anyone should be blamed for the controversy this decision has generated, it is the political party, APC.

The whole world is aware that Ahmed Lawan participated in the APC presidential primaries. And pursuant to section 115(d) of the Electoral Act, a candidate cannot be nominated in two elections. So, it was the party that decided to forward Ahmed Lawan’s name to INEC. Ironically, Ahmed Lawan as the Senate president and other law makers created the Electoral Act, 2022.

Bashir Machina, feeling cheated, was within his right to recover his mandate. However, the facts of the case remains that the grouse of Bashir Machina deals with fraud and should have been instituted by way of Writ of Summons and not Originating Summons like Bashir Machina did.

Although the Federal High Court practice direction says that Pre-election matters be instituted by way of Originating Summons, the Supreme Court has held in a plethora of authorities that the Rules of Court supersedes a practice direction. And by the rules of Court, an allegation of fraud should be brought by way of Writ of Summons.

So, what the Supreme Court did regarding Machina’s case was to simply follow the law.