FILE PHOTO: A packet of U.S. five-dollar bills. REUTERS/Gary Cameron
Item 2(a) of Part III of the 2nd Schedule to the Constitution defines reference in that Schedule to incidental or supplementary matters as including references to offences
Before going further, it is pertinent to mention that, in ATT-GEN of Ogun State VS- AberuAgba (1985) NWLR pt.3. pg. 395, the Supreme Court held that the provisions of Item 60(a) of the 1979 Constitution (which are in pari materia with Item 62(a) of the 1999 Constitution) were words of limitation, not of emphasis. This means that any matter which was not stated therein was outside the trade and commerce remit of the National Assembly under Item 60 (a) of the Constitution. This view is further expressed in the canon of interpretation called expressio unius est exclusio alterius (the express mention of one thing in a statute implies the exclusion of others which otherwise might have been included).
Status of non- naira payments for goods and services in Nigeria
I believe that a holistic and objective analysis of the foregoing Constitutional and judicial authorities will point to the following irresistible conclusions:
The National Assembly can only control or regulate international or inter-state trade and commerce i.e; trade and commerce between Nigeria and other countries as well as trade across the borders of or between the 36 States of Nigeria;
It is obvious that the words or its equivalent mean other i.e foreign) currencies. That being the case, I humbly submit that to suggest, (as the EFCC Chair has clearly done) that it is illegal to make payments in Nigeria in foreign currencies is a fallacy which is bereft of constitutional, statutory and judicial support.
In this regards even through Section 15 of the Central Bank of Nigeria Act, 2007 provides, inter alia, that the unit of currency in Nigeria shall be the Naira, nevertheless I humbly submit that because the Money Laundering Act, 2022, is latter in time (by all of 15 years), its express recognition equivalent in Naira of the amounts stated therein as the thresholds for making cash transactions outside financial institutions, is tantamount to implied, if not express, modification or amendment of the aforesaid provisions of the CBN Act.
Yes, the Naira remains our official currency, but, to the extent that the Money Laundering Act recognises and validates transactions conducted in the Nairas equivalent, the only logical inference to be drawn is that the Naira no longer enjoys any monopoly which it once did, (which is doubtful – at least since the advent of money laundering legislation in Nigeria, in 1995). See FRN VS. OSAHON (2006)2 S.C. Part II pages 59 lines 30-35 and page 60, line 1-8, per Musdapher, JSC (as he then was) where he observed thus:the law is settled that when two statutes, though both are expressed in affirmative language are contrary in matter, the latter abrogates the former (leges posteriors priores contrarias abrogant). . . From this rule, it follows that if one statute enacts something in general terms and afterwards another statute is passed on the same subject which, although expressed in affirmative language, introduces special conditions and restrictions, the subsequent statute will usually be considered as repealing or amending by implication, the former (See Ellen Street Estates vs. Minister of Health (1934) 1.k.b. 590 @ 596)
In conclusion the multitude of economic and financial challenges which continue to confront us has compelled many a policy-maker and others in positions of power/authority to appear to be engaged in proferring solutions. Regrettably, some of them have succumbed to the temptation of grand-standing and empty posturing: they appear to confuse motion with movement.
I hope the EFCCs recent Dollar is illegal for payments in Nigeria declaration is not a manifestation of that malaise. Such transactions are perfectly normal as they are tacitly and implicitly recognised under the law. No law delegitimises them and it is settled that no one can be condemned under a non-existent law: see Section 36 (12) of the Constitution.
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