Nigeria: Federal High Court Holds That The Attorney-General Of Federation Of Nigeria Has A Discretionary Duty Under Section 3 (1) Of The Foreign Judgment Reciprocal Act, 1990 To Promulgate An Order To Bring The Act Into Operation

Last Updated: 21 June 2019
Article by Fred-Young & Evans LP

Introduction

In Suit No. FHC/ABJ/CS/203/ 2017; Emmanuel Ekpenyong Esq. v Attorney General and Minister of Justice of the Federation, the Plaintiff upon obtaining leave of the Federal High Court ("the Court"), by an Originating Summons, urged the Court to compel the Attorney General and Minister of Justice of the Federation ("the Attorney General") to exercise the mandatory legal duty stipulated under Section 3 (1) and 9 of the Foreign Judgment Reciprocal Act, 1990 ("the Act") to promulgate an Order to bring Part 1 of the Act into operation. The Plaintiff also urged the Court to compel the Attorney General to make rules pursuant to Section 5 (2) of the Act in respect to registration and enforcement of foreign judgment in Nigeria and for the Reciprocal Enforcement of Judgment Rules, 1922 to cease to have effect in Nigeria.

Preliminary Objection

Attorney General's arguments

The Attorney General by a Notice of Preliminary Objection challenged the Plaintiff's suit on the grounds that the Plaintiff has no reasonable cause of action because he lacks the locus standi to prosecute the suit. The Attorney General contended that the Plaintiff has failed to show sufficient interest in the subject matter of the suit. He has not also shown special interest or actual threat or injury that he will suffer in the subject matter. He contended that it is not enough for the Plaintiff to say he has lost many businesses without evidence to back up his claim. He urged the Court to dismiss the Plaintiff's suit. 

Plaintiff's arguments

In response, the Plaintiff contended that though he is a member of a number of international networks, he has lost businesses of registration of foreign judgment in Nigeria because of the Attorney's General's failure to promulgate an Order to bring Part 1 of the Act into operation. He further contended that he has satisfied the legal requirement under Order 34 of the Rules of the Court by obtaining leave of Court.  He urged the Court to hold that he has locus standi in the subject matter and assume jurisdiction.

Court's Ruling

The Court found that to determine the locus standi of a party, it is the Statement of Claim that will be examined. The Court quoted excerpts of the Plaintiffs' Affidavit in Support of its Originating Summons where the Plaintiff deposed that he had received many telephone calls from lawyers on the network from both commonwealth and non-common wealth Countries on the possibility of registration of judgment delivered by the courts in their Countries, in Nigeria.

The Court found that the Plaintiff testified in his Affidavit that he will not be able to profit from his membership of the international network if the Attorney General does not promulgate the Order to bring Part 1 of the Act into operation; the failure of the Attorney General to promulgate the Order is against the Plaintiff's business interest and that the Plaintiff's personal interest has been adversely affected by the failure of the Attorney General to promulgate the Order and he is in continuous danger of losing more businesses. It is upon this premise that the Court held that the Plaintiff has locus standi and a reasonable cause of action to prosecute the suit.

Order to Compel the Attorney General to promulgate the Order to bring Part 1 of the Act in operation

Plaintiff's argument

The Plaintiff contended that there is a mandatory legal duty on the Attorney General to promulgate the Order to bring Part 1 of the Act into operation. He further contended that there are instances where the Court can interpret the word "may" to mean "shall" and that the interpretation of the duty on the Attorney General in Section 3 and 9 of the Act as directory will lead to great inconvenience and loss to Nigeria, Nigerians and the Plaintiff.

The Plaintiff again contended that the intention of the legislature for the Act to regulate registration of foreign judgment in Nigeria has been defeated because the Attorney General has not performed the duty stipulated to bring the Act into operation and the failure of the Attorney General to promulgate the Order is inimical to trade and commerce as the 1958 Ordinance currently in operation is too archaic to effectively regulate registration of foreign judgment in Nigeria.

The Plaintiff argued that by Section 5 (2) of the Act, the Attorney General knows the procedure which will give effect to the Order and by virtue of the Attorney General's office he is familiar with agreements made between her Majesty and foreign Countries and the agreement between Nigeria and foreign Countries. The Attorney General has a mandatory to make rules to give effect to the provisions of the Order for the smooth process of registration of foreign judgments in Nigeria. 

Attorney General's argument

The Attorney General contends that the clear words of Section 3 and 4 of the Act, makes his duty to be discretionary and not mandatory by virtue of the phrase "The Minister of Justice if he is satisfied". He contends that the literal meaning of the word "may" in Section 3 of the Act should be given to it.

Court's Ruling

The Court found that the word "if" as used in Section 3 of the Act is no doubt introducing a conditional clause that is a condition or supposition that in the event that a particular thing happens. The condition as used in the statute can only be fulfilled when the Minister is "satisfied". The Court again found that the Plaintiff has not placed before the Court any evidence to show that the Attorney General is satisfied. The Attorney General has not been shown to be satisfied enough to promulgate the Order to bring Part 1 of the Act into operation. This is a serious condition that must be fulfilled and the Court cannot compel the defendant to be satisfied when he is not yet satisfied. Whatever may be the reason for not being satisfied is within the prerogative of the Attorney General.

The Court found that a careful examination of the Act as a whole gives the Attorney General the discretion when the issue of registration of foreign judgment is brought up. The word "may" has been held in various cases to mean discretion. As much as it is desirable and lofty for the Attorney General to seriously look into the need to promulgate the Order to bring Part 1 of the Act into operation because of the benefit it will bring to Nigerians and possibly the Plaintiff, the Court is a Court of law and it cannot in discharging its duty circumvent the clear provision of a statute. It is upon this premise that the Court held that it cannot make an Order of mandamus against the Attorney General because of the inherent discretion given to him under Section 3 of the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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