A Legal Practitioner, Emmanuel Ekpenyong Esq., has urged the Supreme Court to compel the Attorney-General of the Federation (AGF), Mr Lateef Fagbemi, SAN, to promulgate the order on foreign judgments.
Ekpenyong dragged the AGF to the Supreme Court after the Court of Appeal, in appeal number: CA/A/132/2020, between Ekpenyong and AGF, dismissed the appeal on May 12, 2022.
The Appeal Court upheld the judgement of the Federal High Court (FHC), Abuja, delivered by retired Justice Anwuli Chikere, that the AGF has absolute discretionary powers under Section 3 (1) of the Act to promulgate an order to bring Part 1 of the Act into operation.
But the Supreme Court had on May 27, 2024, granted leave to Ekpenyong to appeal the judgement of the Appeal Court 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 by Mr Ekpenyong of the law firm of Fred-Young & Evans LP, the human right and constitutional lawyer raised two issues for determination.
These are, “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 is an abuse of the discretion.
“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.
“This is why Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (“the Constitution”) vests judicial powers on the courts in all matters, between persons, government and authority including the administrative discretion of the AGF under Section 3 (1) (a) of the 1990 Act.
“The statutory duty conferred on the AGF to exercise his discretion under the provision cannot be abused willy-nilly for over 64 (sixty-four) years since the Act was enacted, without judicial remedy,” he said.
According to him, the court is empowered to go beyond the mere wordings and literal interpretation of the provision of Section 3 (1) (a) of the 1990 Act which confers administrative discretion on the AGF, to know 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 whether the reasons for failure of the AGF to exercise the discretion more than 64 years after the Act was enacted is fair, just, in good faith, reasonable and in the interest of peace, order and good government.
He equally urged the court to ascertain whether the Act has met the purpose for which the legislature enacted it in 1960 in the first place to commence on 1st February 1961.
He argued that under Section 10 (1)-(3) of the Interpretation Act, CAP I23, Laws of the Federation of Nigeria, 2004, where 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 and contended that the AGF ought to have promulgated the order after the Act was passed in 1960 but before the commencement date on 1st February, 1961.
Ekpenyong further contended in the appeal that though it is the general principle of interpretation of statutes that the use of “may” in a statute mean discretionary or permissive action as the Court of Appeal opined, in exceptional cases like 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 to 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 to be a compulsory statutory duty on him and not just an action which is subject to his absolute discretion,” he said
He argued that Fagbemi has not given any justifiable reasons why he and preceding AGFs have not promulgated the order to bring Part I of the Act into operation, other than the defence that the AGF has unfettered and absolute discretion in the subject matter.
The lawyer prayed the Supreme Court for an order, setting aside the whole judgment of the Court of Appeal which was delivered on 12th May, 2022.
“An order compelling the AGF to promulgate the order further to Section 3 (1) of the Foreign Judgments Reciprocal Enforcement Act, CAP F35, Laws of the Federation of Nigeria, 1990 extending its applicability to commonwealth countries and other countries which the AGF may elect in order to bring Part I of the Act into operation.
“An order granting all the reliefs sought by EKPENYONG in the originating summons dated 21st June 2017.”
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