In
Suit No. FHC/ABJ/CS/203/2019; Emmanuel Ekpenyong Esq. v. Attorney General
and Minister of Justice of the Federation, the Federal High Court, Abuja
Judicial Division by a Judgment dated 10^th June 2019, held that the
Plaintiff (“Emmanuel”) has not
placed before the Court, evidence to show that the Defendant (“the Attorney General”) ought to be
satisfied to promulgate an Order to bring Part I of the Foreign Judgment
Reciprocal Enforcement Act, 1990 (“the 1990
Act”) into operation pursuant to Section
3 (1) of the 1990 Act which provides that;

“The
Minister of Justice if he is satisfied that, in the event of the benefits
conferred by this Part of this Act being extended to judgments given in superior
courts for any foreign country, substantial reciprocity of treatment will be
assured as respects the enforcement in that foreign country of judgments given
in the superior courts in Nigeria, may by order, direct:

(a) That
this Part of this Act shall extend to that foreign country; and

(b) That
such courts of that foreign country as are specific in the order shall be
deemed superior courts of that country for the purpose of this part of this
Act..”

The
Court further held that the phrase “the
Minister of Justice if he is satisfied………..may by order direct…..” shows
discretion on the part of the Attorney General. The Court found that though in
some instances, the word “may” in a
document may be interpreted to mean “shall”;
the clear wordings of the 1990 Act suggests discretion on the part of the
Attorney General on whether or not to promulgate the Order to bring Part I of
the 1990 Act into operation.

By
a Notice of Appeal dated 29^th August 2019, Emmanuel appealed against
the Judgment to the Court of Appeal, Abuja Judicial Division. Emmanuel contends
that the provisions of Section 3 of the
Reciprocal Enforcement of Judgment Ordinance, CAP. 175 1958 (“1958 the Ordinance”) and Section
9 of the United Kingdom’s Administration of Justice Act, 1920 codifies the
substantial reciprocity treatment of Judgments of superior Courts of Nigeria on
one hand and England, Ireland and the Court of Session in Scotland on the other
hand. Section 9 of the 1990 Act
codifies the substantial reciprocity treatment of Judgments of superior Courts
in Nigeria and other commonwealth countries. 

The
legal standard of satisfaction required of the Attorney General by the phrase “The Minister of Justice if he is satisfied…”
as used in Section 3 (1) of the 1990 Act
ought not to be based on an indefinite, unhindered, incontestable and
subjective discretion or prerogative of the Attorney General but ought to be
based on a reasonable and objective premise of whether there are superior
Courts of any foreign country with substantial reciprocity treatment of
Judgments with Nigeria.

The
common knowledge that superior Courts in England, Ireland, the Court of Session
in Scotland and other commonwealth countries have substantial reciprocity
treatment of Judgments with Nigerian superior Courts has fulfilled the
objective legal standard for the Attorney General’s satisfaction and forms the
legal basis upon which the Attorney General ought to have promulgated the Order
to extend the application of Part I of the 1990 Act to the Judgments of superior
Courts in England, Ireland, the Court of Session in Scotland and other
commonwealth countries.

The
failure of the Attorney General to promulgate the Order since 1990 when the Act
was enacted has made Nigerian Courts to rely on the colonial and out dated 1958
Ordinance as well as its Rules of 1922 for registration of foreign judgments in
Nigeria. This has made the process of registration of foreign Judgments in
Nigeria to be uncertain and burdensome.

Emmanuel
further contended that it is settled Nigerian law that “may” in a legal document may be construed as “shall” so that justice will not be a slave to grammar. Again, if
interpreting “may” as used in a legal document as discretionary will result in
serious general inconvenience to innocent persons of the public without
furthering the object of the enactment; it shall be construed to be mandatory.
Furthermore, the Court would interpret “may”
as mandatory whenever it is used to impose a duty on a public functionary, the
benefits which inures to a private citizen.

Since
the failure of the Attorney General to promulgate the Order pursuant to Section 3 (1) of the Act to bring Part
I of the Act into operation for the benefit of Nigerians has resulted in
serious general inconvenience to innocent Nigerians, especially Emmanuel,
without furthering the objectives of the Act, the justice of the case demands
that the mischief rule of interpretation ought to be applied in the
interpretation of “may” as used in
the provision as “shall” so that
justice will not be a slave to grammar.