A legal practitioner, Emmanuel Ekpenyong, has urged the Supreme Court to compel the Attorney-General of the Federation (AGF) and Minister of Justice, Prince Lateef Fagbemi, SAN, to promulgate the order on foreign judgments.
Ekpenyong dragged the AGF to the apex court after the Court of Appeal, Abuja Division, dismissed his appeal marked CA/A/132/2020, between him and the AGF, on May 12, 2022.
The Appeal Court upheld the judgment of the Federal High Court in Abuja, Justice Anwuli Chikere (now retired), which stated that the AGF has absolute discretionary powers under Section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act, CAP F35, Laws of the Federation of Nigeria, 1990, to promulgate an order to bring Part 1 of the Act into operation.
The Supreme Court had, on May 27, 2024, granted leave to Ekpenyong to appeal the judgment of the Court of Appeal, which dismissed his appeal against the AGF.
A five-member panel of the apex court, in a unanimous ruling delivered by Justice Adamu Jauro, granted the appellant’s prayer to seek redress.
Meanwhile, in the appellant’s brief marked SC/CR/92/2024, dated and filed on October 17, 2024, at the Supreme Court, the human rights and constitutional lawyer seeks to determine:
“Whether the administrative discretion granted to the AGF under Section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act, CAP F35, Laws of the Federation of Nigeria, 1990, to promulgate an order to bring Part I of the 1990 Act into operation is absolute and not subject to judicial review?”
“Whether it is trite for purposive rule of interpretation to be employed in the interpretation of ‘may’ and the entire provision of Section 3 (1) of the Foreign Judgments Reciprocal Enforcement Act, CAP F35, Laws of the Federation of Nigeria, 1990, to mean a mandatory legal duty on the AGF so as to arrive at the true intention of the legislature as at when it enacted the Act in 1960?”
The lawyer argued that the failure of a public officer to exercise an administrative discretion, which also places a statutory duty on him, constitutes an abuse of that discretion. He added that, “The courts are empowered to direct the public officer to exercise the discretion in a way he so elects to prevent the continuous abuse of the discretion.”
“The statutory duty conferred on the AGF to exercise his discretion under the provision cannot be abused willy-nilly for over 64 years since the Act was enacted, without judicial remedy,” he stated.
According to him, the court is empowered to go beyond the mere wording and literal interpretation of the provision of Section 3 (1) (a) of the 1990 Act, which confers administrative discretion on the AGF, to understand the intention for which the legislature made the provision and enacted the Act.
He contended that this can be achieved by ascertaining whether the condition precedent for the AGF to exercise the discretion exists in fact or in law. He urged the court to probe further into whether the reasons for the AGF’s failure to exercise the discretion more than 64 years after the Act was enacted are fair, just, in good faith, reasonable, and in the interest of peace, order, and good government.
The lawyer argued that, under Section 10 (1)-(3) of the Interpretation Act, CAP I23, Laws of the Federation of Nigeria, 2004, when an Act confers powers to a public officer to make a subsidiary instrument to bring an Act into operation, the public officer is expected to make the instrument before the date of commencement of the Act. He contended that the AGF ought to have promulgated the order after the Act was passed in 1960 but before the commencement date of February 1, 1961.
Ekpenyong further contended in the appeal that although it is a general principle of statutory interpretation that the use of “may” in a statute denotes discretionary or permissive action, in exceptional cases—such as in the interpretation of Section 3 (1) (a) of the 1990 Act—the use of “may” in the provision should be interpreted to mean directory, mandatory, imperative, or compulsory action.
“This is because the object of the discretion is to effectuate a legal right for Nigerian businesses, especially the right to life of Ekpenyong, whose main means of livelihood is handling cases on recognition and enforcement of foreign judgments in Nigeria.”
“There is no other way for Nigerian businesses and Ekpenyong to benefit from the 1990 Act except the AGF promulgates the Order to bring Part I of the Act into operation. This makes the discretion of the AGF under the provision a compulsory statutory duty on him and not just an action which is subject to his absolute discretion,” he said.
