By Mark Orgu, News/Comments, February 10, 2023.
LAGOS-An elder statesman, Robert Clark, a Senior Advocate of Nigeria, (SAN) has shared his views on the Supreme Court order, restraining the Federal government and Central bank of Nigeria (CBN) of going ahead to end the old naira note policy on February 10; a suit instituted few days ago by Zamfara, Kogi and Kaduna states over the old naira note deadline, which CBN insists ends today, even as the Attorney-General of the Federation, Mr. Abubakar Malami, SAN , says, FG will obey the apex court order, while preliminary objections has been filed for the court to stroke out the case for lack of merit. Clark, an octogenarian who spoke on ARISE TV morning Show earlier today stated that the apex court will determine the suit while stressing that FG have no option than to obey the order till February 15:
“The federal government has no alternative than to accept, so the Attorney General General is doing the correct thing. However, I am really, really surprised that the Attorney General will now say they are challenging that decision of the Supreme Court because it was made out of jurisdiction. Out of jurisdiction on the basis that a party that is a necessary party which is Central Bank has not been joined in the suit. I am greatly disappointed with the attorney general’s view. The, Attorney-General is my son in whom I have great pride in. But on this occasion, he’s flatly wrong in all aspect of this matter. first. Joinder or misjoinder of of a necessary party; does that create jurisdictional matter to the court? No.”
“Secondly, the Constitution, which is Section 5 of the Constitution has vested all executive powers to the President. When you sue a principal in a case and you don’t bring in the Agent, what is your headache. The federal government is the principal character in monetary matters in Nigeria. The Central bank is only an agent of the federal government. The is law clear that once you sue the principal, you do not need to join an agent. Therefore, I believe that there is no merit in this preliminary objection. It will not be given any meritorious hearing more than the fact that you will be struck out”
Asked about the independence of the Central Bank in all of the matter, the learned lawyer hinted however, that the independence of the Central Bank does not mean, that under the law, It does not take instructions from anybody. The law is clear that. However, and how, be it, the central bank is independent of anybody. It is not independent of the law that creates it. And the law that creates it, says, it has to take directive from the president. So where is independence? Mr. President as the soul and only Person that can determine all executive matters, is monetary consideration, not an executive matter. So where is independence? The central bank only has independence in deciding to do all those functions that are created under the same law to be done by the Central Bank. Monetary matters are matters that have many faces. It has its policy, it has its operational, and it has all that proposes. So the policy matter has to be determined by Mr. President. Therefore, I don’t see where the Central bank will say on monetary matters, I, and only I can decide. No, no, no, no. That’s just stretching it too far.
Asked further about one of the things the counsels representing the Attorney General of the Federation, said, that, the order given by the Supreme Court lapses on February 15th, which is when the the next date that the court announced, does that automatically lapse and what be the implication for the injunction that was granted by the earlier court. The learned Lawyer said :
“You see, interim injunctions, whether from the Supreme Court or from the Court of Appeal and from the, you know, federal high courts or state high courts, are limited. And the number of days they can stand as the law. One thing you have to admit is that interim that is given exparte is one of the most illegal actions being taken by courts because they are not hearing the other side. And that’s, you know, by itself, the Constitution of Nigeria does not permit it. It says in a democracy, when there is a matter, both sides must be listened to. But however, interim orders given by nature are in court in legal. The law says is okay, we will clear this illegality by keeping it for only 15 days or 10 days, depending on the winds and currencies of the court. Therefore. the period when the court said I will listen to the merit of the matter. That genealogy, legalizes the legality of the of the other. And on the day it is been had, the interim order ceases to exist. Because the matter now has been had on merit by the court. Therefore, if the court start listening to it on the 15th as the Supreme Court says. There is no Illegality continue from that date because after the hearing, the Supreme Court will make another order Which is which would satisfy the Constitution and satisfy all litigants”.
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