An Abuja-based lawyer, Emmanuel Ekpenyong, has dragged the Attorney-General of the Federation (AGF) and Minister of Justice, Lateef Fagbemi (SAN) to Supreme Court for failing to promulgate an order to bring Part 1 of the Foreign Judgment Reciprocal Enforcement Act, 1990 into operation since its enactment.
Ekpenyong, in his motion for leave to appeal, filed on February 15, 2024 at the Supreme Court, listed the AGF as the sole respondent.
In the motion marked: SC/CR/92/2024, the lawyer sought five orders, including an order extending time for him to seek leave to appeal against the decision of the Court of Appeal, Abuja Division delivered on May 12, 2022 in appeal number: CA/A/132/2020 between him and the AGF.
He also sought an order of the court granting him leave to appeal against the decision of the Abuja Division of the Court of Appeal, among others.
It would be recalled that the Court of Appeal dismissed the appeal filed by Ekpenyong on May 12, 2022, and upheld the judgement of a Federal High Court, Abuja which held that the AGF has absolute discretionary powers under Section 3 (1) of the Act to promulgate an Order to bring Part 1 of the Act into operation.
Ekpenyong had, in the suit marked: FHC/ABJ/CS/755/2017 filed on June 21, 2017 with the AGF as sole defendant before retired Justice Anwuli Chikere of a Federal High Court, Abuja urged the court to determine whether there is a mandatory legal duty on the AGF under Section 3(1) and 9 of the Foreign Judgment Reciprocal Act, CAP F35, Law of the Federation, 1990 (the 1990 Act) to promulgate an order to bring Part 1 of 1990 Act into oper
Whether there is a mandatory legal duty on the defendant under the Act to make rules to regulate the procedure for registration of foreign judgments in Nigeria, among other questions.
Ekpenyong sought an order of mandamus compelling the AGF, “to exercise the mandatory legal duty stipulated in Section 3(1) of the 1990 Act to promulgate an order extending the applicability of part 1 of the 1990 Act to judgments of superior courts of foreign countries with substantial reciprocity treatment with Nigeria and deeming the courts stipulated in the order as superior courts in the foreign countries for the purpose of applicability of Part 1 of the 1990 Act”.
He also sought an order for mandamus compelling the defendant to exercise the mandatory legal requirements stipulated in Section 9(2) of the 1990 Act to promulgate an order to bring Part 1 of the 1990 Act into operation and for the Reciprocal Enforcement of Judgments Ordinance, 1958 (the 1958 Ordinance) to cease to have effect in Nigeria.
The plaintiff averred that he was a member of International Law Networks and that evidence had shown that he had sufficient interest in the subject matter contrary to the AGF’s argument, adding that, he had suffered some injuries and hardship as a result of the AGF’s failure to promulgate the order.
He contended that he had lost business for registration of foreign judgments 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 make foreign businesses to do more business with Nigerians and Nigerian companies because they would be able to recover monetary judgments 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 said.
Justice Chikere, in her judgment, held that the plaintiff had locus standi (legal right) to institute the suit contrary to the defendant’s submission.
The judge, however, agreed with the argument of the defendant that based on Section 3(1) of the Foreign Judgment Reciprocal Act,1990, the AGF had discretionary power to promulgate the order only if he was satisfied that there were countries with reciprocal treatment of judgments with Nigeria and consequently dismissed Ekpenyong’s suit.
In his appeal to the Supreme Court, Ekpenyong said he is desirous of appealing against the concurrent findings in the judgment of both the trial court and Court of Appeal on questions of mixed law and facts.
According to him, the AGF’s discretion under Section 3 (1) of the 1990 Act is not absolute but subject to judicial review of the courts under Section 6 (6) (b) of the 1999 Constitution (as amended) in order to prevent an abuse of the discretion under the Act.
He further stated that the courts ought to give a purposive interpretation of Section 3 (1) of the Act and not a literal interpretation which, he argued, has led to absurdity.
The lawyer contends that he has shown that his proposed appeal is an exceptional circumstance and urged the apex court to grant him leave to appeal against the concurrent findings of both the trial court and Court of Appeal on the issue.
No date has been given yet for the hearing of Ekpenyong’s application at the Supreme Court. (Tribune)