Inoperative Foreign Judgement Act: Supreme Court allows lawyer to challenge Appeal Court judgment

The Supreme Court has granted leave to a lawyer, Emmanuel Ekpenyong, to appeal against the May 12, 2022, judgement of the Court of Appeal, Abuja, which dismissed his appeal against the Attorney-General of the Federation (AGF) on the inoperative Foreign Judgement (Reciprocal Enforcement) Act, CAP F35, Laws of the Federation of Nigeria, 1990.

A five-member panel of the Apex Court, in a unanimous ruling delivered by Justice Adamu Jauro, granted the appellant’s prayers one to four.

While Ekpenyong is the appellant in the case marked SC/CV/92/2024, the AGF is the sole respondent.

Justice Jauro said the court was satisfied that the AGF was served with hearing notice on May 24, 2024, saying that “the application filed on February 15, 2024 is for the trinity prayers. There being no objection, it is hereby granted in terms of prayers 1 to 4.

“Extension of time to apply for leave to appeal against the judgement of the Court of Appeal delivered on May 12, 2022, in appeal No. CA/A/132/2020 in Emmanuel Ekpeyong Esq. vs. Attorney General of the Federation and Minister of Justice is also granted.

“Extension of time to appeal against the said decision is made to today, May 27, 2024. Leave to appeal against the concurrent findings is also granted.

“The applicant is to file the notice of appeal within 60 days from today,” the judge declared in the certified true copy of the ruling made available to newsmen on Wednesday in Abuja.

Ekpenyong has dragged the AGF to the Supreme Court over its alleged failure to promulgate an order to bring Part 1 of the Foreign Judgement (Reciprocal Enforcement) Act, 1990, into operation since its enactment in 1960 to commence on February 1, 1961.

The lawyer’s notice of appeal, marked SC/CR/92/2024, hinged on two grounds and sought four reliefs, including an order setting aside the whole judgement of the Court of Appeal, filed on July 2.

He also sought “an order compelling the respondent to promulgate an order further to Section 3 (1) of the Foreign Judgement (Reciprocal Enforcement) Act, CAP F35, Laws of the Federation of Nigeria, 1990, extending its applicability to commonwealth countries and to other countries in which the respondent may elect to bring Part I of the Act into operation.

“An order granting all the reliefs sought by the appellant in his originating summons dated 21st 21, 2017” as well as an order allowing his appeal.

In the first ground of his appeal, Ekpenyong submitted that “the Learned Justices of the appellate court erred in law when they held that the administrative discretion granted to the AGF under Section 3 (1) of the Foreign Judgements (Reciprocal Enforcement) Act, CAP F35, Laws of the Federation of Nigeria, 1990 (the 1990 Act) to promulgate an Order to bring Part I of the 1990 Act into operation is absolute and not subject to judicial review.”

In the second ground of appeal, Ekpenyong contended that “the Learned Justices of the Court of Appeal misdirected themselves when they applied the literal rule of interpretation to interpret the word ‘may’ as used in Section 3 (1) of the Act as discretionary rather than apply the purposeful rule of interpretation to interpret the word ‘may’ in the provision as mandatory so as to arrive at the true intention of the legislature as at when it enacted the Act in 1960.”

The Court of Appeal, Abuja Division, in an appeal marked CA/A/132/2020 between Ekpenyong and AGF, dismissed the appeal on May 12, 2022, and upheld the judgement of a Federal High Court, Abuja, delivered by retired Justice Anwuli Chikere that the AGF had absolute discretionary powers under Section 3(1) of the Act to promulgate an order to bring Part 1 of the Act into operation.

The constitutional and human rights lawyer had, in the suit marked FHC/ABJ/CS/755/2017 filed on June 21, 2017, sued the AGF as sole defendant before the trial court in Abuja.

In the originating summons, the lawyer urged the court to determine whether there is a mandatory legal duty on the AGF under Sections 3(1) and 9 of the Foreign Judgement Reciprocal Act, CAP F35, Law of the Federation, 1990 (the 1990 Act) to promulgate an order to bring Part 1 of the 1990 Act into operation.

Ekpenyong, therefore, sought an order of mandamus compelling the AGF “to exercise the mandatory legal duty stipulated” in the section of the law.

The plaintiff had averred that he was a member of international law networks like IR Global, Global Law Experts, Legal Finest, and International Credit Network, and that evidence had shown that he had sufficient interest in the subject matter, contrary to the AGF’s argument.

He stated that he had suffered some damage and hardship as a result of the AGF’s failure to promulgate the order and contended that he had lost business for the registration of foreign judgements in Nigeria because of the AGF’s failure to promulgate the order to bring Part 1 of the 1990 Act into operation.

Ekpenyong said the promulgation of the order would encourage foreign businesses to do more business with Nigerians and Nigerian companies because they would be able to recover monetary judgements in Nigeria.

“This will improve international trade and foreign investments. This will also boost the Nigerian economy and the right to livelihood of the plaintiff and Nigerians,” he had argued.

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