By Ebun-Olu Adegboruwa, SAN

On Friday March 3, 2023, the nation waited with bated breath for the Supreme Court, the crowning glory and head of Nigeria’s judicial system. The apex court is populated with leaders of the judiciary, starting from the Honourable the Chief Justice of the Federation, who also heads the National Judicial Council. It had been a long wait indeed, essentially because on February 8, 2023, the Supreme Court gave a lifeline to the suffering masses of our people when it issued an order for the old N200, N500 and N1000 notes to continue to circulate alongside the new notes.

But the federal government and the Central Bank of Nigeria would have none of it, insisting that the old N500 and N1000 notes were gone forever as they had ceased to be legal tender. In a national broadcast that challenged the independence of the judicial arm of government, the President as head of the executive countermanded the order of the Supreme Court by directing the CBN to issue out only the old N200 notes. Thus, it became clear to all that the executive arm was on a collision course with the judiciary, but most people supported the Naira redesign policy because of its positive impact to curtail vote buying and reduce the menace of corruption across the land.

Since 2015 when this administration was inaugurated, it has had a running battle with judges, lawyers and indeed the entire legal profession, premised mainly on the desire to arm twist the due process of law. In a manner reminiscent of the gestapo tactics of forceful annexation, law enforcement agents stormed the houses of judges in the middle of the night to capture serving judicial officers, who were all treated like common criminals. The head of the judiciary himself was booted out of office based upon an ex-parte order and the home of another senior judicial officer was invaded by faceless persons in an alleged sting operation. The message would then seem to be clear enough that the judiciary had no independence.

The Origin of the Judiciary

The Judiciary is established under section 6 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The Constitution proceeds to state the function of the judiciary as to “extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any questions as to the civil rights and obligations of that person.” In reality therefore, the judicial powers as conferred upon the courts relate to adjudication and determination of disputes.

This power is traceable to the period of creation, when the first man (Adam) was put to trial in the Garden of Eden. God drafted the charges, served them on him and took his defences thereto and thereafter judgment was passed. However, judicial power was properly codified when the father-in-law of Moses visited him and advised him to set up several courts for the resolution of all contentious issues, depending on their magnitude. Man has followed this pattern ever since, leading to the trial, condemnation and crucifixion of Jesus by the Jews.

The History of Nigerian Judiciary

The judiciary became more entrenched as part of the foundation of the creation of Nigeria, due to the Sir Henry Willink Commission of Inquiry report, detailing the means of addressing the fears expressed by the minority ethnic groups, post-independence. Assuredly, there will always be one dispute or the other, in any human endeavor or existence. With their over-bloated population and size, the majority ethnic groups could always boast of electoral victory to form the cabinet and also majority in the parliament, any day, through which they would continue to dominate the minority groups.

It was then resolved to establish a strong judicial system, capable of intervening in any dispute between persons and persons, persons and governments or indeed any other authority. This partly accounts for the reason why the judiciary was established as an independent and autonomous arm of government, to be strong enough to look anyone in the eye, to be strong enough to damn oppressive policies and strike down all manners of injustice. This worked well for some time, until the military emerged with absolute powers and decrees, through which the powers of the courts were circumscribed and at times suspended, outrightly.

But even under the military, the judiciary remained the only arm of government that could not be dissolved totally, unlike the parliament and the executive. No government has been so brutish and damning, as to outrightly sack the courts; we have never had it so bad and we pray not to ever have such malady, in our time. What we are witnessing currently portends a bad omen for our nation, if the decision of the apex court is to be treated with such levity as we are presently witnessing. It is now five clear days after the final judgment of the Supreme Court directing the circulation of all the old Naira notes but the federal government has pretended as if the judgment does not exist at all.

The Role of the Judiciary

What then is the problem with the judiciary? It insists on the rule of law, the rule of prescription, the rule of certainty, the rule of fairness and the rule of equity and equality. The judiciary abhors all forms of impunity, by which arbitrariness and unequal application of rules and regulations become the norm of human behavior. In this regard therefore, everyone in the judiciary is a potential threat to and target of the executive arm of government, represented by the President or Governor, Ministers or Commissioners, police officers, law enforcement agencies, public officers, civil servants, heads of government parastatals and other agencies.

They mostly would love to bend the rules, when their vested interests are at stake, which invariably sets them in confrontation with the judiciary. In 1986, the judiciary looked at the ugly face of impunity and thundered down against executive lawlessness in the famous case of Governor of Lagos State v Ojukwu. And the heavens did not fall. Later on in the case of Fawehinmi v Abacha, in the thick of military dictatorship, the Honourable Justice Dahiru Musdapher, (CJN) while then presiding at the Lagos Division of the Court of Appeal struck down the infamous Decree No. 2 of 1984, which was the instrument of detention of citizens.

In the life of this present administration, operatives of the Department of State Security stormed the Federal High Court in Abuja in a failed kidnap attempt of the presidential candidate of the African Action Congress, Comrade Omoyele Sowore, whilst still in disobedience of the order granting him bail. When the judge gave the DSS twenty-fours to release Sowore, the government knew at once that the game was over and Sowore was indeed released.

Membership of the Bench is a special calling, not meant for the ordinary human being, given to the usual emotions and fancies. The judge is meant to be a special breed, above board, sober, conservative, moderate in all things and without any flair for extravagance or such worldly cravings. The eyes of the judge are blind to status, position or extraneous factors and they seek to do justice to all manner of people without fear or favour. The judge is kept away from society and from open fraternity and affiliation, because some of their cases may end up in his court one day.

In return for these manifold deprivations, society accords him dignity, honour and reverence and calls him “My Lord”, being the next person to God in terms of power and authority. In addition, the State undertakes to pick up his bills and guarantee him a secured tenure of office and a worthy life of retirement, after the Bench.

But this has not been the case with the present administration, which has more than any other government before it undermined the independence and authority of the judiciary. No other time has the affront to the judiciary been so blatantly demonstrated than the present disobedience to the final judgment of the Supreme Court given on March 3, 2023 on the old Naira notes. The summary of the judgment goes as follows:

The Defendants ought not to be heard when they have refused to obey the orders of the Honourable Court. The disobedience of the orders of the Court is a sign of the failure of rule of law. This suit has merit and the following reliefs were granted in favour of the Plaintiffs:

1. The demonetisation policy 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 is 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. The old N200, N500 and N1000 versions of the Naira notes shall continue to be legal tender with the new Naira notes until 31st December, 2023.

The above decision says that there is failure of the rule of law and that the President acted illegally. That illegality has continued and is still continuing. It was reported that the federal government is considering applying to the Supreme Court to set aside its judgment. I hope this remains a report in the media and that the day will never come when the executive will be allowed to trample upon the Courts, hold judges to ransom and then turn around to rejoice in their humiliation.

Nigerians look up to the Courts for deliverance from the stronghold of impunity and lawlessness. We expect the Supreme Court and indeed all Courts in Nigeria to stand firm in defence of the judiciary. Let the judiciary wake up and assert its authority under the Constitution, the maxim being fiat justitia ruat caelum (let justice be done, though the heavens fall).

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