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Is the AGF’s Discretion to Promulgate an Order to Bring Part 1 of the Foreign Judgment Reciprocal Enforcement Act, 1990 Into Operation, Absolute?

Published: 03 Aug 2020

Upon Nigeria’s independence from colonial rule, the legislature passed a Foreign Judgment Reciprocal Enforcement Act (“the Act”) with a commencement date of 1st February 1961 (“the commencement date”). Section 3 of the Act provides that upon the satisfaction of the Minister of Justice and Attorney-General of the Federation (“the AGF”) that other Countries have reciprocal treatment of Judgments with Nigeria, the AGF may by an Order extend the provisions of Part I of the Act to the Judgments of those Countries.

It is upon the AGF’s promulgation of the Order that the Act will come into effect, and the colonial Reciprocal Enforcement of Judgments Ordinance, 1958 (“the 1958 Ordinance”) will cease to have effect on recognition and registration of foreign Judgments in Nigeria. Though the Act has consistently been in successive laws of the Federation of Nigeria, the Act is yet to come into effect till date because the AGF has not promulgated the Order to bring the Act into operation. 

This is the basis of Suit No. FHC/ABJ/CS/203/2017 between Emmanuel Ekpenyong Esq, a Legal Practitioner (“the Plaintiff”) and the AGF at the Federal High Court, Abuja Division. In the suit, the Plaintiff contended that the Court ought to interpret the use of the word “may” as used in Section 3 of the Act as imposing a mandatory duty on the AGF to promulgate the Order for the purpose of bringing the Act into operation for the benefits of private citizens especially the Plaintiff. 

In its Judgment, the Federal High Court held that the use of the phrase “The Minister of Justice if he is satisfied” in Section 3 of the Act introduces a conditional clause that is hinged on the happening of an event. The Court also held that the use of the word “may” as used in Section 3 of the Act shows discretion on the part of the AGF to be satisfied before promulgating the Order. 

In Appeal No. CA/A/132/2020, the Plaintiff appealed against the Judgment of the Federal High Court to the Court of Appeal, Abuja Division. In the appeal, the Plaintiff contends that the import of Section 3 of the Act is that the AGF will promulgate the Order only if he is satisfied that there are Countries with reciprocal treatment of Judgments with Nigeria. 

Since Section 3 and 5 of the 1958 Ordinance provides that the Judgments of England, Scotland, Ireland and other Commonwealth Countries are recognised in Nigeria by Nigerian Courts, there is reciprocal treatment of Judgments between Nigeria and those Countries. The conditions upon which the AGF ought to be satisfied to promulgate the Order has long occurred. 

Again, the Plaintiff contends that the standard of the AGF’s satisfaction envisaged under Section 3 of the Act is an objective legal standard of satisfaction of a public officer occupying a very sensitive and exalted constitutional office of the AGF. The AGF knows or ought to know that England, Scotland, Ireland and Commonwealth Countries have substantial treatment of Judgments with Nigeria. It is the AGF’s knowledge that these Countries have reciprocal treatment of Judgments with Nigeria that should form the basis of his satisfaction. 

Furthermore, the Plaintiff contends that by the provisions of Section 10 (3) of the Interpretation Act, where an Act confers powers to a public officer to enact a subsidiary legislation to bring an Act into operation, the officer ought to enact the subsidiary legislation before the commencement date of the Act. A look at the first page of the Act shows that its commencement date is 1st February 1961. Assuming but not conceding that the AGF has discretion on when to promulgate the Order, he ought to have exercised the discretion before 1st February 1961. 

In addition, the Plaintiff contends that where there are choices of interpretation of a provision, the Court will follow the interpretation that will give effect to provisions of the legislation. The Court will construct a provision to give effect to the provision rather than destroy it. The Plaintiff’s interpretation of Section 3 of the Act gives effect to the provision of Part I of the Act. Unlike the interpretation of the AGF which has failed to achieve the manifest purpose of the legislation and makes it a futility and a complete nullity. 

Besides, the historical circumstances of an Act will assist the Court in interpreting the provisions of an Act. The legislature after colonial rule deliberately sought to cure the hardship in the 1958 Ordinance. This is why the Act was enacted with its commencement date on 1st February 1961, soon after Nigeria’s political independence. The historical background of the Act shed light on the true intention of the legislation that the AGF was to promulgate the Order before the commencement date. 

Lastly, the Plaintiff contends that notwithstanding the use of the word “may” in Section 3 of the Act, since the legislature provided the conditions upon which the AGF would exercise his power to promulgate the Order, the AGF is under compulsion to exercise that power because the conditions for the exercise of the power has been fulfilled. The intention of the legislature was for the AGF to perform the obligatory duty in order to bring the Act into operation. 

Section 3 of the Act imposes a mandatory duty on the AGF because the provision confers a legal right on private persons to register and enforce their foreign judgments in Nigeria and the right to livelihood to the Plaintiff who is in the business of registering foreign Judgments in Nigeria.

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Emmanuel Ekpenyong FCIArb

Firm: Fred-Young & Evans
Country: Nigeria

Practice Area: Commercial Litigation

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