On March 3, 2023, the Supreme Court released its much-anticipated rulings in the case of AG Kaduna, Kogi & Zamfara State v AG Federation & Ors SC/CN/162/2003. Press statements were immediately issued by some eminent senior lawyers calling on the Federal Government of Nigeria (FGN) and the Central Bank of Nigeria (CBN) to obey the judgement. But curiously enough, the Federal Government and CBN has so far remained silent, which has elicited accusations of disobedience to the Supreme Court final judgement by some eminent lawyers.
It is therefore necessary to examine the publicly released judgement since we do not currently have a published law report version to determine what the judgement really entails.
A brief summary of the reliefs granted by the Supreme Court as gleaned from the media in that case are as follows:
1. A declaration that the demonetisation policy of the Federal Government is inconsistent with the CBN Act.
2. A declaration that the President cannot make a unilateral policy without carrying the Plaintiffs along.
3. In issuing the policy, the President was under an obligation to carry the National Council of States along.
4. The policy has impeded the functions of State governments.
5. The directive of the President is illegal.
6. Old versions of Naira notes shall continue to be legal tender with the new Naira notes, until 23rd December, 2023.
In other words, except for the declaratory judgements in paragraphs 1 and 2, rulings number 3-4 found that the necessary procedure for making executive policy was not followed and that the policy impeded the functions of State governments. Further, the directive of the President was declared illegal and, the court suo moto extended the executive policy that it ruled defective, unconstitutional and unlawful. The Supreme Court ruling is self-contradictory in that after holding that the demonetization policy was contrary to the extant provisions of the constitution, and the Central Bank of Nigeria Act and did not go through the National Council of State on one hand, the apex court proceeded to extend the lifespan of the same unlawful and unconstitutional policy on the other hand. Perhaps a classic admission that there is no way to unscramble a scrambled egg. It is, however, noteworthy that the National Council of State is not the appropriate body conferred with the constitutional task of advising the President on economic affairs of the Federation in the 1999 Constitution but the National Economic Council in Chapter VIII Schedule III.
There was no order issued against any person or entity by the court.
It is settled law that a declaratory judgment differs from other judgments because it does not provide for any enforcement or order a party to take any action or pay damages. Essentially, it states the court’s authoritative opinion regarding the exact nature of the legal matter and whether the parties would be entitled to relief without actually requiring the parties to do anything. Generally, declaratory judgement action permits a party to seek a court judgement that defines the parties’ rights before an injury occurs. It is an advisory opinion.
Declaratory judgement, in law, is a judicial judgment intended to fix or elucidate litigants’ rights that were previously uncertain or doubtful. A declaratory judgment is binding but is distinguished from other judgments or court opinions in that it lacks an executory process.
It simply declares or defines rights to be observed or wrongs to be eschewed by a plaintiff, a defendant, or both, or expresses the court’s determination of a contested question of law, without ordering that anything be done. See Encyclopaedia Britannica.
In light of the foregoing, the propriety of the allegations that the Attorney General of the Federation, the President and CBN is disobeying a non-existent order is puzzling.
In any case, since the policy was ruled unconstitutional, doesn’t it follow that any attempt to implement it without first curing the defects would also be unconstitutional? The judgement obviously created a legal conundrum since it did not identify the constitutional authority from where the Supreme Court receive the executive policymaking powers it exercised in the case, in disregard of the doctrine of separation of powers.
Chuma Uwechia Esq, a New York based Attorney is admitted to both the United States Supreme Court and the Nigerian Supreme Court. He is the author of two Nigerian law books.
