Lawyer drags AGF to Supreme Court over inoperative Foreign Judgment Reciprocal Enforcement Act

*Photo: Lateef Fagbemi SAN, Attorney General of the Federation *

A lawyer, Emmanuel Ekpenyong, has dragged the Attorney-General of the Federation (AGF) to Supreme Court over alleged failure to promulgate an order to bring Part 1 of the Foreign Judgment Reciprocal Enforcement Act, 1990 into operation since its enactment in 1960 to commence on Feb. 1, 1961.

Ekpenyong, in his notice of motion for leave to appeal dated and filed Feb.15 at the Supreme Court, listed the AGF as 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 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 leave to him to appeal against the decision of the Court of Appeal, among others.

It would be recalled that the Court of Appeal, Abuja had in an appeal number:: CA/A/132/2020, between Ekpenyong and AGF, dismissed the appeal on May 12, 2022.

It, thereafter, upheld the judgement of a Federal High Court (FHC), Abuja 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.

Ekpenyong of Fred-Young & Evans LP had, in the suit marked: FHC/ABJ/CS/755/2017 dated and filed on June 21, 2017, sued the AGF as sole defendant before retired Justice Anwuli Chikere of a FHC in Abuja.

In the originating summons, the lawyer 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 operation.

“Whether there is a mandatory legal duty on the defendant under Section 5 of the Foreign Judgment Reciprocal Act, CAP F35, Laws of the Federation, 1990 (the 1990 Act) to make rules to regulate the procedure for registration of foreign judgments in Nigeria,” among other questions.

Ekpenyong, therefore, 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.

“An order for mandamus compelling the defendant to exercise the mandatory legal 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,” etc.

The plaintiff 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 injuries and hardship as a result of the AGF’s failure to promulgate the order.

In addition, 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 that the promulgation of the order would make foreign businesses to do more businesses 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 though held that the plaintiff had locus standi to institute the suit contrary to the defendant’s submission, she agreed with the defence arguments on the discretionary power of AGF to promulgate the order only if he was satisfied that there were countries with reciprocal treatment of judgments with Nigeria based on Section 3(1) of the Act.

She consequently dismissed Ekpenyong’s suit.

Upon his two grounds of the proposed 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.

He 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.

“The grounds of appeal in the proposed notice of appeal contain cogent, recondite, substantial points of law.

“The applicant has an arguable appeal and the appeal is a public interest litigation which will greatly improve Nigeria’s economy and jurisprudence on the subject matter,” he said.

Ekpenyong said he filed an application for leave to appeal against the Court of Appeal’s judgment on July 29, 2022 within the statutory three months’ period but the Appeal Court did not hear or grant the application within the stipulated period.

He said: “The applicant did not file an application for leave to appeal against the judgment of the Court of Appeal at the registry of the Supreme Court soon after the expiration of the statutory three months’ period because he genuinely believed that the Court of Appeal must first hear the application for leave and reject the same before a fresh application can be filed before the Supreme Court.

No date has been given yet for hearing of Ekpenyong’s application at the Supreme Court.

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