By Ikeazor Akaraiwe, SAN
1: Let me weigh in, in layman’s language, so that all members of this platform, lawyers or not, may understand and follow: It is an interim order, to last until February 15, when the substantive arguments will be heard.
2: As provided by the Constitution, the Supreme Court does not have original jurisdiction to hear cases unless they are brought by
A. State Govt (s) against other State Govt (s); or
B. State Govts against the FG as in this case or vice versa; or
C. Between the National Assembly and the President;
D. Between the National Assembly and any State House of Assembly, or
E. the National Assembly and a State of the Federation.
3: Original jurisdiction means for the Supreme Court to hear the suit as if it is a court of first instance (that is, as if the Supreme Court were a high court). This is permitted in the Constitution.
4. Kaduna and Kogi State governments brought this suit, thus invoking the original jurisdiction of the apex court. The court granted them an interim order of injunction as we are all aware. INTERIM ORDER of INJUNCTION means that the order we last for a specific period, in this case until the 15th February.
5: However, on the 15th of this month, it is my guess that arguments on whether the Supreme Court has jurisdiction or not to hear this suit in its original jurisdiction (as if it is a court of first instance) are likely to be taken before delving into the substantive issues.
6: I do not have the full facts so I would not know whether the Supreme Court will accept or decline jurisdiction. The full facts are before the court and not before me.
7: But there has been much contention over whether the order made is binding or not on the Central Bank, not being a party to the proceedings. Many lawyers, notably Femi Falana SAN, JS Okutepa SAN and others have made useful contributions in this regard.
8: I lean towards the argument of CBN not having been made a party but there is considerable merit in the argument that Central Bank, being an agency of the Federal Government is bound by the court order, which has the Attorney -General of the Federation as a party.
9: It seems to me as if the strategy of the State Governments who brought this suit in not making Central Bank a party was to avoid the suit commencing at the Federal High Court because suits in which the original jurisdiction of the Supreme Court is invoked can only have the parties envisaged by the Constitution as stated in paragraph two of this note.
10: It has been my respectful view that any order against the FG is not enforceable on the Central Bank because the Central Bank Act gives the apex bank complete independence.
11: The president cannot even remove the Governor of the Bank. Only the National Assembly can upon the recommendation of the President. Remember Sanusi Lamido? Jonathan could not remove him.
12: So, my view is that an order directed against the FG cannot be enforced against the Central Bank if Central Bank is not a party to the suit. And if you make Central Bank a party as in the instant case, the Supreme Court loses jurisdiction. And if you do not make the Central Bank a party as the plaintiffs have deliberately done (so as to invoke the court’s original jurisdiction), any order made by the Supreme Court would be in futility as the apex bank is not bound to obey.
13: But of course, the Central Bank may obey an order made against the FG in which it was not a party, given the synergistic and symbiotic relationship between departments and agencies of the same government. But a strong-willed Central Bank governor may not obey.
I think it will be more of synergy than command, if that department was not made a party to the suit.
14: Paraphrasing JS Okutepa SAN, in the case of A.G Lagos State v AG Federation (2014) 9 NWLR (Pt. 1412) 217 which was a dispute relating to the operation of an agency of the Federal Government, the Federal Inland Revenue Service (FIRS), against an agency of Lagos State Government, which the FG contended accrued to it, the SC held that its original jurisdiction cannot be so egregiously invoked when the dispute is not between the Federation as an entity against a State or between a State against another or others or the National Assembly and the President; the National Assembly and any State House of Assembly, and the National Assembly and a State of the Federation.
Thank you.
