A legal practitioner, Emmanuel Ekpenyong, has petitioned the Supreme Court, asking it to compel the Attorney-General of the Federation (AGF) and Minister of Justice, Prince Lateef Fagbemi, SAN, to enact an order that would bring Part 1 of the Foreign Judgments (Reciprocal Enforcement) Act into operation. Ekpenyong took this action after the Court of Appeal, Abuja Division, dismissed his earlier appeal on May 12, 2022, upholding the decision of the Federal High Court, which granted the AGF discretionary powers over the matter.

Justice Anwuli Chikere (now retired) of the Federal High Court in Abuja had earlier ruled that the AGF has absolute discretion under Section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act, CAP F35, Laws of the Federation of Nigeria, 1990, to determine whether or not to promulgate the order. Dissatisfied with this outcome, Ekpenyong appealed to the Supreme Court, seeking redress.

On May 27, 2024, the Supreme Court granted Ekpenyong leave to appeal the judgment of the Court of Appeal, giving him the opportunity to argue his case. A five-member panel, led by Justice Adamu Jauro, ruled in Ekpenyong’s favor, allowing him to challenge the decision that has stalled the implementation of the Act for over six decades.

In his latest submission to the apex court, marked SC/CR/92/2024 and filed on October 17, 2024, Ekpenyong, a human rights and constitutional lawyer, raised key questions for the court to determine. He questioned whether the AGF’s discretion under Section 3 (1) of the Act is indeed absolute or subject to judicial review. He further asked if the use of the word “may” in the statute should be interpreted as granting the AGF a mandatory legal duty to implement the order, rather than as a mere option.

Ekpenyong argued that the AGF’s failure to exercise his discretion for more than 64 years amounts to an abuse of that discretion, emphasizing that it is within the courts’ power to direct public officers to act when they fail to do so. According to Ekpenyong, the AGF’s prolonged inaction has deprived Nigerian businesses, including his own law practice, of the benefits of the Act, which is designed to facilitate the recognition and enforcement of foreign judgments in Nigeria.

The lawyer contended that, while the word “may” typically denotes discretionary authority, the context of Section 3 (1) of the Act suggests that the AGF’s discretion should be viewed as a compulsory statutory duty. He noted that the primary objective of the discretion is to enforce legal rights for Nigerian businesses, particularly in cases involving foreign judgments.

Ekpenyong also referenced the Interpretation Act, CAP I23, Laws of the Federation of Nigeria, 2004, arguing that public officers are expected to enact the necessary subsidiary instruments before the commencement date of any law. In the case of the Foreign Judgments Act, the AGF was supposed to have promulgated the order before February 1, 1961, the date set for the Act’s commencement.

The lawyer emphasized that the failure to implement the Act has created significant obstacles for Nigerian businesses seeking to enforce foreign judgments. He argued that the delay in promulgation not only hampers businesses but also violates the intent of the legislature when it passed the Act in 1960.

Ekpenyong’s appeal further highlighted that neither Fagbemi nor his predecessors have provided justifiable reasons for the failure to exercise this discretion. He contended that Fagbemi’s defense—claiming that the AGF holds unfettered and absolute discretion over the matter—fails to consider the public interest and the need for legal certainty.

The lawyer is asking the Supreme Court to overturn the Court of Appeal’s decision and issue an order compelling the AGF to promulgate the necessary order under the Act. He also requested the court to extend the Act’s applicability to Commonwealth countries and other nations as the AGF may choose, in order to fulfill the provisions of Part 1 of the Foreign Judgments Act.

If successful, Ekpenyong’s case could set a precedent for judicial review of discretionary powers granted to public officers, particularly in cases where those powers have remained unexercised for extended periods. Additionally, it would pave the way for Nigerian businesses to enforce foreign judgments more easily, potentially boosting international commerce and legal cooperation.