By Sam Kargbo, SAN

I am old enough to know that the case is sub judice. Matters are considered to be sub judice (Latin for ‘under judge ‘) once they are before a court or judge for determination. The proceedings of the case of the Attorneys-General of Kaduna, Kogi and Zamfara against the Attorney General of the Federation became very active and therefore sub judice the very moment the Supreme Court heard and determined the Ex parte Motion filed by those three Plaintiffs and granted the interim reliefs they sought on 8 February 2023.

May it however be noted that the principle of sub judice is not a gagging principle and it does not seek to prevent or suppress the right of speech or the right of citizens to freely and in public comment on the subject of the suit. What it seeks to prevent is a parallel public trial that undermines the integrity of the court and the respective rights of the parties. Remarks or views that seek to influence the proceedings or outcome of the proceedings run afoul of the principle and constitute contempt of court.

It is in that spirit that I will be cautious and tentative in expressing my views on the matter. Many critics have already passed unfavourable verdicts on the case, principally for what, in the first place, they consider to be the failure of the Plaintiffs (the three AGS) to join the Central Bank of Nigeria in the case. It is their view that the CBN is a necessary party because the case cannot be fairly dealt with or properly resolved without the CBN being a party to it. If their view is correct, the Plaintiffs are faced with a catch-22. If they do not join the CBN, the case will be struck out. If they however join the CBN, the Supreme Court will hands-off the case and strike it out for want of jurisdiction.

I for one will always give a colleague who has taken his time to prepare an originating process the benefit of the doubt. If I were the defendant’s counsel, I will always take my time to study his case as expressed in his pleadings. Many of the informed commentators who have published their views on the matter did not give our colleagues the benefit of the doubt. They just offhandedly dismiss the case and thereby ignore the fact that the apex does not brook academic or frivolous cases. It is not an over-generous father-Christmas but one that must have considered whether on the face of it, it is properly constituted and has merit.

In the first place, it is a truism that extrapolations from analogous cases are not entirely helpful where a case in issue has its nuance and a remarkable point of departure. It is my unfinished thought that the Case of the three AGs comes with its peculiar slant that is worth examining.

Thankfully, the overarching issue is narrow and revolves around the interpretation of section 20 of the CBN Act, 2007. My good friend, the lead counsel in the matter demonstrated the skills of a warrior. His language is calm but decisive. What he harps on and what I suspect that those who spat on his process ignore is the fact unlike all other powers of the CBN, the power to recall banknotes and coins is performed only upon the DIRECTIVE of Mr President. In that power, the CBN is only an agent of a known principal. For emphasis, I will hereby reproduce section 20(3) of the Act:
(3) Notwithstanding Sub-section (1) and (2)of this section, the Bank shall have power, if directed to do so by the President and after giving reasonable notice in that behalf, to call in any of its notes or coins on payment of the face value thereof and any note or coin with respect to which a notice has been given under this Sub-section, shall on the expiration of the notice, cease to be legal tender, but, subject to section 22 of this Act, shall be redeemed by the Bank upon demand. (Emphasis supplied).

The power of the CBN to print notes and mint coins under sections 18 and 19 is different from the power to act on the directive of Mr President on the withdrawal of old notes. That distinction is fundamentally relevant to the cause of action of the three AGs.

Both Mr President and the Governor of CBN were relying on section 20(3) of the CBN Act, when Mr President claimed the credit for the policy (to fight banditry and vote buying?) and when the Bank Governor flew to Daura to seek Mr President’s approval for the extension of the deadline.

The proposition that the withdrawal of the old Naira notes is Mr President’s baby and he should therefore be held accountable may not be entirely nonsensical.
The apex court may have to determine whether the relationship between Mr President and the CBN as regards the withdrawal of the old notes constitutes that of “agency”. In law, an agency can arise when a person called the agent acts on behalf of another called the principal whereby the latter becomes answerable for the lawful acts of the former, carried out within the scope of his authority, as to affect the legal relations between the principal and a third party. If and only the apex court finds that the CBN acted as an agent of Mr President, the question that will then arise is of the failure to join the CBN is fatal to the case of the three AGs. It is the law that an agent acting on behalf of a known and disclosed principal incurs no liability. This is because the act of the agent is the act of the principal. The situation is as if it was the principal that did what the agent did or omitted to do what the agent omitted to do. Simply put, he who does an act through another is deemed in law to do it himself. In the same vein, a disclosed principal can be sued for the actions of his agent.

It is therefore my take, that it is not enough to breeze into the apex court and demand that it hands off the matter for want of jurisdiction. Strong arguments must be proffered to dissuade the apex court from looking at the merit of the case of the AGs as their case may not be entirely worthless.

CAVEAT: Nothing here is meant to be taken as the law. These are general views that may be moderated or displaced by the facts and issues considered by the apex as relevant.

©Sam Kargbo, SAN 9/2/23