Author: Fred-Young & Evans LP
In Appeal No: CA/A/132/2020; Emmanuel Ekpenyong Esq. V. Attorney General and Minister of Justice of the Federation, the Appellant appealed against the Judgment of the Federal High Court, Abuja, per A. I. Chikere J. which held that the Attorney General of the Federation (“the AGF”) has a discretion on whether to promulgate an Order further to Section 3 (1) of the Foreign Judgment Reciprocal Enforcement Act, CAP F35, LFN, 2004 (“the Act”) to bring Part I of the Act into operation and that he cannot be compelled to promulgate the Order.
At the Court of Appeal, on the 1st issue for determination, the Appellant contended that since Section 3 (1) and (5) of the Reciprocal Enforcement of Judgment Ordinance, 1958 (“the 1958 Ordinance”) and Section 9 of the United Kingdom’s Administration of Justice Act provides that commonwealth countries has reciprocal treatment of Judgments with Nigeria, the condition upon which the AGF ought to be satisfied to promulgate the Order to bring Part I of the Act into operation has since occurred.
The Appellant further contended that the standard of satisfaction envisaged under Section 3 (1) of the Act is not a general, personal and subjective satisfaction of an ordinary Nigerian that should be free from anxiety, doubt or uncertainty but an objective legal standard of satisfaction of a public officer occupying a sensitive constitutional office of the Attorney General and Minister of Justice of the Federation.
The Appellant argued that Section 10 (3) of the Interpretation Act requires that upon enactment of an Act, the AGF ought to have promulgated the Order to bring the Act into effect before 1st February 1961, the commencement date of the Act so that the 1958 Ordinance and the Reciprocal Enforcement of Judgment Rules, 1922 (“the 1922 Rules”) can cease to have effect in Nigeria.
On the 2nd issue for determination, the Appellant contended that though the word “may” used in Section 3 (1) of the Act connotes discretion of the AGF, the Court should interpret it to mean mandatory or compulsory because the condition precedent upon which the AGF will exercise the discretion has since been met. The fact that superior courts in commonwealth countries accord reciprocal treatment of Judgments with Nigeria is the condition precedent which has since been satisfied.
Furthermore, since the provision of Section 3 (1) confers a legal right on private persons to register and enforce their foreign judgments in Nigeria and presents private persons including the Appellant with a means of exercising his constitutional, economic and business right to make a livelihood from registration of foreign judgments, the Court should interpret the use of “may” in Section 3 (1) of the Act as compulsory and not discretionary.
In response to the 1st issue for determination, the AGF contended that Section 3 (1) of the Act gives him wide discretion to promulgate the Order to bring Part I of the Act into operation. It is only when he is satisfied in his own judgment that reciprocity of treatment will be given to Nigerian Judgments that he will promulgate the Order devoid of any external factor or opinion.
The AGF further contended that where the words of a statute are clear and unambiguous, it is the duty of the Court to give it its natural meaning without interference. In response to the 2nd issue for determination, the AGF held that the use of the word “may” in Section 3 (1) of the Act is merely discretionary and not mandatory. The AGF reiterated that where the words of a statute are unambiguous, they must be given their clear and natural meaning and no form of absurdity should arise from the ordinary and plain interpretation of the word “may” in Section 3 (1) of the Act.
The Court of Appeal delivered Judgment on the appeal on 12th May 2022. In its lead Judgment, the Court of Appeal, per Mohammed Mustapha JCA in resolving the 1st issue found that the discretion in Section 3 (1) of the Act is different from judicial discretion. In exercising his discretion under the provision, no restriction should be imposed to impede or hamstring the flexibility or latitude of the AGF. Since the AGF has administrative discretion, he has the luxury and latitude to change his mind as he please from negative to positive, depending on the vagaries of the occasion unlike statutory discretion which must be exercised judicially and judiciously.
The Court further found that the provision of Section 3 (1) of the Act ought to be given its simple grammatical interpretation. The power or decision to be satisfied to promulgate the Order is that of the AGF alone. He cannot be compelled by anyone who appears to think better. It is understandable and unfortunate that successive AGFs have refused to promulgate the Order and that should be taken to mean that they have decided for now against the promulgation of the Order in the greater interest of the country.
The Court agreed with the AGF that under Section 10 (3) of the Interpretation Act it is upon enacting an Act that a subsidiary instrument for the purpose of the Act may be made. This means no instrument can come into force before the commencement of an Act conferring power on a public officer to make a subsidiary legislation. The Court held that it is after the enactment of the Act that the power of the AGF to make an Order of promulgation can be exercised. The Court resolved the 1st issue against the Appellant and in favour of the AGF.
In resolving the 2nd issue, the Court upheld the trial’s Court’s interpretation of the word “may” in Section 3 (1) of the Act which implies discretion. Though the Court agreed that the legislature enacted the Act to replace the 1958 Ordinance and 1922 Rules, the Court cannot in this circumstance interpret the word “may” in the provision as “shall” because the literal rule of interpretation does not allow a Court to apply a purposive rule of interpretation where the words used in the statute are clear and unambiguous. The Court again resolved the 2nd issue against the Appellant and in favour of the AGF.
Having resolved both issues for determination against the Appellant and in favour of the AGF, the appeal was accordingly dismissed and the Judgement of the Federal High Court was unanimously affirmed.
