Emmanuel Ekpenyong’s lawyer has urged the Supreme Court to compel AGF Lateef Fagbemi to promulgate the order on foreign judgments.
Mr Ekpenyong dragged the AGF to the Supreme Court after the Court of Appeal, in appeal number CA/A/132/2020, between Mr Ekpenyong and the Nigerian attorney general, dismissed the appeal on May 12, 2022.
The appellate court upheld the judgment of the Abuja Division of the Federal High Court, 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 Mr Ekpenyong to appeal the appellate court’s judgment, 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 at the Supreme Court by Mr Ekpenyong of the law firm of Fred-Young & Evans LP, the human rights and constitutional lawyer raised two issues for determination: “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?
The other is “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 administrative discretion, which also places a statutory duty on him, is an abuse of 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 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 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 urged the court to ascertain whether the act met the purpose for which the legislature enacted it in 1960 in the first place to commence on February 1, 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.
He contended that the AGF ought to have promulgated the order after the act was passed in 1960 but before the commencement date on February 1, 1961.
Mr 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 means 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 Ekpeyong, 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.