Naira Redesign and Its Enigma: A Constitutional Conundrum Yet to be Uhuru

NAIRA REDESIGN AND ITS ENIGMA: A CONSTITUTIONAL CONUNDRUM YET TO BE UHURU

BY: MBANG CONFIDENCE, ESQ.

20/02/2023

(PART 1)

INTRODUCTION

The recent trends has revealed how fragile our constitutional democracy is, it has indeed kuto the position of Prof Ben Nwabueze, SAN[1], when he posited that, Africa’s democracy only moved a little away from dictatorship…, and that “a sixth revolution, namely a social and ethical revolutions is needed to try to resolve the continents lingering and vexed problem of governance in this colonially- created modern state system.” What is happening is a constitutional conundrum, and constitutional issues should not be taken with a pinch of salt, rather issues like this should be dealt with according to law in order to save the socio-economic and political stability of the Nation. Therefore, I will be careful not to conduct a trial, because this matter is sub-judice. As we watch the proceedings before the Supreme Court of the land, it should be borne in mind that there has been an interplay between the three arms of government, and this has raised constitutional questions that seeks for answers amid the 2023 General Elections.

For purposes of appreciation, it must be established that Nigeria operates a Constitutional Democracy, wherein the three (3) arm of government are specifically created and saddled with duties, responsibilities, rights, powers, privileges and limitations. Sections 4, 5, and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (amended), provides for the Legislature, Executive and Judiciary. ” I am yet to come across a section of the Constitution that gives any arm superior powers”.The primary duty of the legislature is to make law, the executive implements, while the judiciary interprets. It would interest you to know that each arm enjoys inherent powers pursuance to those express and implied in the Constitution, Acts, laws, rules, regulations and guidelines provided thereto. Nigeria operates a federal system if government where all the tiers of government have their rights, powers and privileges constitutionally spelt out. We are inclined with the doctrine of separation of power propounded by Baron de Montesquieu, and the rule of law popularized by A.V Dicey.

THE POLICY

On the 26th of October, 2022, Central Bank of Nigeria announcement which may fancifully be described as an “ungodly jumble”[2], the announcement was that there would be a redesign of the 200, 500 and 1,000 notes, this is three (3) out of eight (8) currency in circulation as legal tender since 1984. It should be noted that this announcement was made pursuance to the powers in sections 3(1) of the Central Bank Act. At first it seem like a joke, we saw several fake designs on media, Nigerians were given 100 days to deposit their old Naira notes, making the deadline to be on the 31st January, 2023. The CBN Governor, Mr Godwin Emefiele stated that the policy was to reduce money counterfeiting, terrorism financing, vote buying amongst others, however the implementation of this policy has been a bane, resulting to untold harrdship, sufferings, fights amongst others.

When the the Minister of Finance, Mrs Zainab Ahmed, raised alarm about the policy, Mr Godwin Emefiele quickly responded that President Buhari already gave his approval pursuance to section 19 of CBN Act. The deadline was later shifted to 10th February, 2023, and a further 7 days extension after a meeting with the APC Governors to resolve the crisis that emanated therefrom. The intervention of the President is in line with Section 20(3) of the Central Bank Act which provides that “Notwithstanding Sub-sections (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.”

It should be noted that at this juncture, the policy has affected the peace and security of the people[3], as we have seen Nigerians go mad, fight and even perished[4] in banks, ATM stands and other places. It is pathetic and appalling that a mere redesign of notes have caused so much amid the 2023 General Elections.

There have been many rumours about the rationale behind this policy[5], however all are speculations and tantamount to hearsay for now.

THE ISSUE OF JURISDICTION OF THE SUPREME COURT

This trend and the sudden effects on Nigerians led to the Governors of Kaduna, Kogi and Zamfara instituting an action (which has described as not bad by some APC chieftain)[6], through their Attorneys-General in the Supreme Court, praying for an ex parte order to render the deadline invalid. The Supreme Court as a court of law and court of public policy granted the order and pronounced the deadline invalid, until the suit is being heard. That ruling meant that every action or inaction taken by the government be returned back to status quo ante bellum[7], till a decision is being reached.

Since the Apex court of the land assumed Jurisdiction on the matter, there have been many comments, which has transmogrify to a Constitutional issue, begging for answers from many a scholar, jurist, political analyst, legal Practitioners and even the ordinary taxi driver and okpa seller. However, while some legal practitioners expressed dissenting views on the assumption of Jurisdiction by the supreme court over this matter, citing plethora of authorities[8], I am inclined, satisfied and held bound by the views of Prof. Mike Ozekhome, SAN[9]the learned scholar and rights activist was pungent when he noted that, ” Notwithstanding the fact that a high court or Federal High Court had granted an order telling the CBN, ‘You can stop this naira swap policy on the 10th of February as you have decided to do,’ the Supreme Court today said, ‘Hello? Don’t do that!”. Again, Femi Falana, SAN was deliberate when he distinguished two important cases touching on the Jurisdiction of the supreme court. He said,[10]” Not a few lawyers have questioned the jurisdiction of the Supreme Court to hear and determine the case of the Attorney-General of Kaduna State & 2 Ors v Attorney-General of the Federation (SC. 2023) on the ground that there is no dispute between the Federal Government and the Plaintiffs. As far as they are concerned the dispute is between the Plaintiffs and the Central Bank of Nigeria. The lawyers have referred to the case of Attorney-General of Lagos State v Attorney-General of the Federation (2014) 9 NWLR (Pt. 1412) 217 which pertained to the operation of the Federal Inland Revenue Service (FIRS) against an agency of Lagos State Government which the Federal Government contended accrued to it. With respect, the case of the Attorney-General of Lagos State v Attorney-General of the Federation (supra) is completely irrelevant to the facts of this case. In that case, the President was not involved in the operations of the statutory functions of the FIRS. But in this case, the President approved the issuance of the redesigned Naira notes. He also approved the deadline for depositing the old currency notes as well as the restriction of cash withdrawal to facilitate the demonetisation of the 2023 general elections. It is therefore grossly misleading to contend that the Plaintiffs have no axe to grind with the Federal Government in spite of the involvement of the President in the authorisation and implementation of the redesign of the new Naira notes.

The learned SAN continued thus, “It is curious to note that lawyers have not cited the case of Attorney-General of Lagos State v Attorney-General of the Federation (2005) 2 WRN 1 which pertained to the directive of President Olusegun Obasanjo to the Minister of Finance to seize the statutory allocations of the Lagos State local government councils over the creation of additional 57 local governments. Even though it was found that the establishment of local government councils was inchoate the Supreme Court declared the seizure of the fund belonging to the local government councils illegal and unconstitutional”. I believe the issue of Jurisdiction should have been laid to rest by now, considering the fact even the Chairman of the Body of Benchers, Prof. Wole Olanipekun, SAN[11] while hailing the policy and faulting the implementation, has admonition that, “it is sacrilegious to comment fancifully on a matter before the court of law”. Therefore, the issue of Jurisdiction should die a natural death.

On the order hand, there arguments that the Supreme Court could intervene as a Court of public policy, but while I agree, the court must alongside act as a Court of law and Justice and not only public policy. On public policy, a renown jurist, Hon. Justice Kayode Eso, JSC (as he then was), in SONNAR (NIGERIA) LTD & ANOR. V. PARTENREEDRI M. S. NORDWIND OWNERS OF THE SHIP M. V. NORDWIND & ANOR. (1987) LPELR-SC.38/1986 has this to say,”…it is dangerous for a court to base its decision mainly on public policy, which indeed would be another means of avoiding the rules, law and procedure which govern a matter. Public policy is usually equated with public good. To ask a Court to decide only as a result of public policy or public good, goes beyond the measure of liberalism in the application of the law or even viewing a matter from the socio-economic context of law. Who is to determine what constitutes public policy? To rely on public policy or public good simpliciter, is to give room to uncertainty in the law. It is a way “to beg the question”. While it is for the law to find some point of reference, which is more universal than its internal question, one would still ask the question which Lord Radcliffe once asked in a paper titled, “The Lawyer and His Times” and the question is- “Can an enlightened conception of public policy provide what we want, a scale of measurement?” He answered the question and he said- “We cannot run the risk of finding the archetypal image of the judge confused in men’s minds with the very different image of the legislator.” For while a judge is expected to remain objective, impartial, experienced and full of erudition, these attributes cannot be found in one who seeks total sanctuary for his decision, in public policy. I am not saying that the question of public policy should be wholly excluded. No it should not. For even then, it is against public policy to produce uncertainty in the law: What I am saying is that public policy is not to be relied upon wholly to fathom a decision. Surely, public policy is an unruly horse and judges are not such masters of equestrial ability to take on such experience for, as was said in Um Poh Chao v. Camden and others (1979) 2 All E.R. 910 at 914. – ‘”The judge, however wise, creative, and imaginative he may be, is cabin’d, cribb’d, confined, bound in, not as Macbeth, to his ‘saucy doubts and fears’ but by evidence and arguments of the litigants” Per ESO, JSC (Pp. 27-28, paras. E-G)

THE EXPARTE ORDER

When the Supreme Court assumed Jurisdiction, at that point, it was judiciously seized of the matter; the Court went further to issue an interim order to preserve the res and adjourned the matter to the 15th of February, 2023 for hearing. Of course, we all saw how the polity heated, tables shaken and positions taken by lawyers, political analyst and politicians. This pronouncement has resulted to apathy in the ruling party; the suit being filed by a seating Governor who is perceived to be a strong Ally of the President.

THE PRESIDENT BROADCAST

We woke up in the early hours of Wednesday, the 15th day of February, 2023, to listen to a broadcast by the President Muhammadu Buhari, GCFR, addressing the Nation on the state of affairs. What broke the camel’s back, and ushered a Constitutional crisis is paragraph 15, 16 and 17 of the address. For purposes of certainty, it is proposed to replicate same here;

I similarly consulted widely with representatives of the State Governors as well as the Council of State. Above all, as an administration that respects the rule of law, I have also noted that the subject matter is before the courts of our land and some pronouncements have been made.
To further ease the supply pressures particularly to our citizens, I have given approval to the CBN that the old N200 bank notes be released back into circulation and that it should also be allowed to circulate as legal tender with the new N200, N500, and N1000 banknotes for 60 days from February 10, 2023 to April 10 2023 when the old N200 notes ceases to be legal tender.
In line with Section 20(3) of the CBN Act 2007, all existing old N1000 and N500 notes remain redeemable at the CBN and designated points[12].

This broadcast sparked robust and aggressive reactions by Constitutional lawyers, political analyst and commentators. Up till this moment it has has raisde dust in the polity, for you instance, Prof. Mike Ozekhome, SAN,[13] noted thus, “Buhari’s broadcast to the Nation therefore literally overruled the Supreme Court of the land, in a way and manner only a military tyrant could ever contemplate. Buhari’s action is a reminder of the apocryphal saying of autocratic and despotic Emperor Louis XIV, who, on 13th April, 1655, stood in front of Parliament and imperiously declared, “L’Etat C’est Moi (I am the State)”. This was to underline the fact that he and he alone, had absolute power over his Nation. His father had abdicated the throne due to mass protests. Louis XIV himself met the same fate. His reign over France and Navarre was short lived. It only lasted for 20 minutes, after which he too abdicated the throne.

The learned Prof., continued thus,”Buhari’s imperious order was a frontal call to chaos, anarchy and national upheaval. It was a direct assault on the authority of the Supreme Court, the highest court of the land; and also the head of the entire Judiciary, the 3rd arm of government under the doctrine of separation of powers, most ably popularized in 1748 by Baron de Montesque, a great French Philosopher”. The very learned professor cited the decision of the Apex Court in ROSSEK V. ACB LTD (1993) 8 NWLR (Pt. 312) 382 at 434 re-stating the law to the effect that:“A judgment remains binding until it is set aside by a competent Court… To hold otherwise is to clothe a party against whom a judgment has been obtained with the discretion to decide, in his wisdom that the judgment is invalid and not binding on him. This to my mind, is an invitation to anarchy. I do not understand the law to be so.” – per Ogundare, JSC[14]

Adegboruwa, SAN[15] was firm when he said,”“The broadcast of the president is sad for our democracy. Since he already admitted that the matter is subjudice, the President should not have proceeded to vary the order of the Supreme Court.

“The president and indeed the executive should not give the impression that citizens can brazenly disregard lawful orders of any court, as that will only encourage anarchy and lawlessness.

“It amounts to executive rascality and brazen disregard and contempt of the Supreme Court, for the President to separate the denomination of the old notes for legality. It is not open to the President to choose which portion of the order of the Supreme Court that will be obeyed.

“The President should reverse his directive and add the N500 and N1000 old notes, failing which the Supreme Court should overrule the directive of the President in on February 22 when the case comes up.”

This has been the case since the draconian broadcast was made by the President, although many commentators has expressed their views that the President could not just seat back and watch things go worst, however, he could not have went ahead to vary the decision of the supreme court of Nigeria after stating that his administration has abided by the rule of law. It is so funny how Nigerians have been so destabilized mentally, emotionally and otherwise[16]. One of the most powerful and outspoken Governor, no other a person than, Nyesom Wike[17], (POS Africa), was fearless when he said the flouting of the supreme court order by the President was leading to anrchy.

To me, it is an affront on the Constitutional powers of the supreme court, it violates sections 235 and 287 of the Constitution of the Federal Republic of Nigeria, 1999( as amended). The decision of the supreme court, whether interim or final ought to be obeyed, and same enjoys territorial implementation across the federation. Why then would an Executive President who holds and exercise his power jealousy, tend to pollute the sacrosanctity of the Constitution?, Do This brought mockery to the judiciary, both national and international, sometimes o feel something is wrong with the black skin, how long are going to seem like babies in the practice of Democracy?[18] Haba!

JOINDER, CONSOLIDATION OF SUIT AND THE PRESENT STATE OF AFFAIRS

It should be recalled that the supreme court on the 15th of February, 2023 further adjourned the matter to the 22nd of February, 2023 for hearing. Before and after then, some states through their Attorney General filed a motion for joinder.[19] Some of those states are Edo, Bayelsa, Kano, Ogun, Ekiti, Ondo, Rivers and Sokoto.

The Governor of Kaduna State, Mallam Nazir El-Rufai[20]was captured saying the old legal tenders are still legal in Kaduna, and that after Tinunbu wins, he would reverse the old currency. Some Governors have ordered the arrest of persons rejecting the old Naira notes. For instance, Governor Matawalle[21] of Zamfara State, issued an order for arrest of any person that rejected the old notes. This trend has since been followed by other Governors, and has spiked grave war in the All Progressive Congress. Some commentators has since accused the APC presidential aspirants that lost the primaries due to the fact that there was no true internal democracy before during the exercise.

Meanwhile, the Chairman of the Independent National Electoral Commission (INEC)[22]raised alarm that the Commission is in lack of cash to proceed with the elections, this has resulted to many comments, most saying the timing was wrong, and the policy was indeed targeted at a person (s).

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AFTER THE PRESIDENTS BROADCAST

Recall that the President address the nation on Thursday, the 16th of February, 2023, the states that sued the Federal Government, reacted promptly by filing a motion on notice pursuance to sections 6(6)(b), 232(1) and 287(1) of the 1999 Constitution at the supreme court on Friday, the 17th day of February, 2023, at about 5pm, praying for an order seeing aside the directives of the President to use 200 notes only, when the matter is pending the court.

As we await to hear the supreme court on Wednesday, 22nd February, 2023, I align myself with the call[23] for Amicus curiae (friends of the Court), to write briefs and address the Supreme Court on the best options and way forward for Nigerians, however, the Supreme Court should not play soft with the broadcast of Mr. President trying to overrule her interim order. The supreme should bite.

The hoarding of cash by bank officials[24] have caused so much hardship to Nigerians leading to protest across the states, some fighting, some killed at the process. It is indeed pitiable and appalling.[25]It is regrettable to reiterate that Mr. Godwin Emefiele, the CBN Governor has since cried the lack of resources for printing of new notes.[26]

SETTLEMENT OUT OF COURT

The Governor of Kaduna state, made a public disclosure of the fact that the Federal Government bided for settlement out of court, but same was rejected, he said, “The terms they proposed were to allow only the old N200 note to remain legal tender and be circulated by the CBN till 10 April 2023.” When a reporter[27]was asked whether any meeting was held, he said none, rather senior officials of the FG reached some governors, including Malam Nasir El-Rufai, on phone to initiate discussions on a possible out of court settlement. The terms they proposed were to allow only the old N200 note to remain legal tender and be circulated by the CBN till 10 April 2023. They claimed that the CBN had already destroyed the old N500 and N1000 notes that had been deposited, but that those persons who still held the old notes could redeem them up to 10 April 2023.

THE PERCIEVED PLOT FOR INTERIM GOVERNMENT

The Governor of Kaduna state seem to be at the centre of all the events happening around the Naira Redesign/swap issue, he made another statement targeted at a plan by some group of persons in Aso Rock (whom he refused to call cabal), planning to ensure the candidate of the ruling party loses, and then pave way for an interim government in Nigeria. According to him,[28] “It turned out that some of the wildest stories of conspiracy to derail the transition at best for APC to lose, preferably for the whole system to result in no election leading to an interim arrangement began to rear their heads,”. This is the wildest imagination that Nigerians can ever think of, but who knows tomorrow?.

Interestingly, the Presidency on the other hand have since refitted that allegation, and warning El-Rufai, Ganduje and other propagandist to stop making a joke of interim government. In response, Mr Garba Shehu, the Presidential spokesman has this to say,[29]” ”The talk of interim government and truncation of democracy is way off the mark. Those who peddle it stand to gain nothing- nothing at all -but the creation of panic and the incitement of the public against the federal government. ”It is another dangerous dimension by people who are afraid that they may lose their elections. ”Everybody is aware that there is a lot of pressure on everyone-all of us- the party, its elected officials, its candidates and law enforcement agencies following the way the currency swap has gone but the way to go is not to panic.”

COMPARATIVE ANALYSIS

While I submit that the policy of President Muhammadu Buhari, is plausible, the timing and implementation is nothing to write home about. The time because this policy ought to have been introduced and implemented long ago, or last year, while the implementation does not meets best global practices and standards.

For instance, the Bank of England announced the change of the U.K currency[30] last year, after the demise of Queen Elizabeth, but slated the enforcement to be in the mid of 2024. There has been no upheaval or wahala, and since the implementation is still far, the Agencies would have enough time to put all modalities together for a successful currency transition. I don’t want to talk about the Renmimbi used in China, or the advent of Euro adopted by eleven (11) states on the lst of January, 1999. Again, The Russian Ruble which had been used since the 14th Century is the second-oldest currency in the world, next only to the British Sterling. Following the dissolution and fall of the Soviet Union in 1991, the Soviet Ruble remained the currency of the Russian Federation until 1992, when in 1993; a new set of coins was issued with a new set of banknotes in the name of the Bank of Russia. There was no wahala, what then is the problem with the Naira redesign, abi them cause us? Haba!

RECOMMENDATIONS

I have listened and seen the woes of Nigerians, the wahala and brouhaha this sufferings has caused, up to; the extent that Nigerians have dabbled into selling of properties to get cash, bank officials hoarding cash in favour of the elites, POS operators declaring themselves the most important persons in the society, Nigerians now trying to be their brother’s keeper (I got a free ride to my junction because of these wahala), my opinion which may not be welcomed is simple and somewhat in line with that of the Council of State[31]. My takes are;

If the CBN cannot print adequate cash to be in circulation, then the new and old Naira notes should co-exist till the old notes are exhausted. There should be a time frame for co-existence and swapping.
CBN and Banks to strengthen collaboration in the swapping and distribution of cash.
An independent ad-hoc agency should be formed to monitor the processes and penalty prescribed for defaulters.
Federal Government to mobilize resources to ensure realization of this strategy.
Security and Financial Agencies be put on notice to prevent the old story of money laundering, currency counterfeiting amongst others.
Financial Technology be improved and sensitized to all and sundry.
National re-orientation of the unity, peace and unity of the country.
Internal democracy within the party system strengthens and reemphasized.

CONCLUSION

The Naira redesign has been hailed to be a good policy, but the timing and implementation has caused so much sufferings and negative changes to Nigerians, however, we are already into it, and we must forge a way forward. We must ensure we uphold the rule of law being the pillar of our Constitutional Democracy, we must ensure we continue to co-exist and occupy our place of pride in the comity of nations, we resist all urge to be destroyed by the interest of the few, Nigeria is one great country with potentials, but she have suffered from leadership problems. Do we need a 6th revolution as I have borrowed in the introduction of this piece?, or should it be an ideological revolution as conceived by my humble self?

Thanks for going through this post; Naira Redesign and Its Enigma: A Constitutional Conundrum Yet to be Uhuru.

[1]Ben Nwabueze, The Story of Africa’s Chequered Journey To Constitutional Democracy, (Safari Books LTD, Ibadan) 2018, at p. xxviii.

[2]Borrowing the words of Prof. C. O Ndifon, KSm, in his scholastic discourse on the recieved English laws.

[3]Section 14(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (amended).

[4]Story of the man who collapse in a bank and died.

[5]https://businessday.ng/politics/article/fuel-crisis-naira-redesign-ploy-to-discredit-me-tinubu/

[6] https://punchng.com/nothing-wrong-with-el-rufai-matawalle-dragging-fg-to-court-says-apc/?amp#aoh=16767985277797&amp_ct=1676798533017&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s

[7]A Latin phrase meaning “the situation as it existed before the war”. The term was originally used in treaties to refer to the withdrawal of enemy troops and the restoration of prewar leadership.

[8]CBN v. AMCOM (2017) JELR 34311 (CA)

[9] https://www.channelstv.com/2023/02/08/supreme-court-yet-to-take-decision-on-naira-swap-policy-says-ozekhome/

[10] https://thenigerialawyer.com/unquestionable-jurisdiction-of-supreme-court-to-hear-currency-case/

[11] https://thenigerialawyer.com/naira-redesign-good-idea-with-faulty-implementation-benchers-chair-olanipekun-san/

[12] https://www.premiumtimesng.com/news/top-news/582309-naira-scarcity-full-text-of-buharis-speech-to-nigerians.html

[13] https://www.channelstv.com/2023/02/17/buhari-cannot-overrule-the-supreme-court-says-ozekhome/

[14] Seealso State v. Solomon (2020)LPELR-55598(SC).

[15] https://barristerng.com/president-buharis-broadcast-is-contempt-of-court-adegboruwa-san/

[16]A Nigerian was taking his bath, and heard the trumpet for the 7 0′ Clock broadcast, he quickly ran out of the bathroom thinking it was a coup d’ etat. When he was asked why, he said considering the state of affairs, nothing is left for the nation.

[17] https://thenigerialawyer.com/new-naira-flouting-supreme-court-a-call-for-anarchy-wike/

[18]I have my reservations about Democracy

[19] https://thenigerialawyer.com/nine-states-join-suit-on-naira-swap-crisis/

[20] https://www.premiumtimesng.com/news/top-news/580650-dont-stop-using-your-old-naira-notes-tinubu-will-reverse-policy-if-elected-el-rufai.html

[21] https://dailytrust.com/breaking-matawalle-orders-arrest-of-those-rejecting-old-naira-notes/

[22] https://www.vanguardngr.com/2023/02/we-dont-have-any-cash-in-10-days-to-elections-inec/

[23] https://punchng.com/new-naira-buhari-cannot-overrule-supreme-court-order-ozekhome/

[24] https://saharareporters.com/2023/01/11/how-nigerias-commercial-banks-are-hoarding-new-naira-notes-political-campaigns-secretly

[25] https://leadership.ng/cash-crunch-3-killed-as-protests-erupt-in-8-states-fct/

[26] https://thenigerialawyer.com/limited-capacity-to-print-enough-naira-notes-is-responsible-for-cash-scarcity-cbn-gov-emefiele/

[27] https://www.premiumtimesng.com/news/top-news/582257-naira-redesign-why-we-rejected-buharis-out-of-court-settlement-el-rufai.html

[28] https://www.premiumtimesng.com/news/581550-581550.html

[29] https://dailynigerian.com/stop-joking-interim-govt/

[30] https://www.theguardian.com/business/2022/sep/15/race-to-exchange-paper-banknotes-as-deadline-looms

[31] https://businessday.ng/news/article/council-of-state-wants-old-new-naira-notes-to-coexist/