A lawyer, Emmanuel Ekpenyong, has disagreed with the submission of the Attorney-General of the Federation and Minister of Justice, Lateef Fagbemi (SAN), that the discretion granted to him under the law to promulgate an order to bring Part 1 of the Foreign Judgments (Reciprocal Enforcement) Act into operation is absolute and not subject to judicial review.
He argued that under Nigerian law, courts have jurisdiction to bring any person, authority, or office to the right path by compelling the same to properly exercise a statutory power or discretion.
The legal practitioner stated this in his reply on points of law dated and filed on March 5 at the Supreme Court in response to the AGF’s Respondent’s Brief of Argument in the appeal marked: SC/CR/92/2024.
The process was made available to newsmen on Tuesday in Abuja.
The AGF had, in his Respondent’s Brief of Argument filed on February 11 by Suleiman Jibril in the Civil Appeals Department, the Federal Ministry of Justice prayed the apex court to dismiss the appeal and affirm the concurrent decision of the two lower courts.
Jibril urged the court to determine whether the administrative discretion granted to the AGF under Section 3 (1) of the Foreign Judgments Reciprocal Enforcement Act, CAP F35, Laws of the Federation of Nigeria, 1990 to promulgate an Order to bring Part 1 of the 1990 Act into operation is absolute and not subject to judicial review.
He also urged the Supreme Court to determine whether it is trite for purposive rule of interpretation to be employed in the interpretation of the word “may” and the entire provision of Section 3 (1) of the law to mean mandatory legal duty on the AGF so as to arrive at the true intention of the legislature as at when it enacted the Act in 1960.
He said: “My lords, it is our strong contention that the learned justices of the court below were right when they reached the conclusion that the discretion granted to the AGF under Section 3 (1) of the Foreign Judgments Reciprocal Enforcement Act, CAP F35, Laws of the Federation of Nigeria, 1990 to promulgate an Order to bring Part 1 of the Act into operation is absolute and not subject to judicial review.”
In his reply on points of law, Ekpenyong, of Fred-Young & Evans LP, prayed the apex court to discountenance the AGF’s argument.
The human right and constitutional lawyer prayed the Supreme Court to determine whether the AGF has absolute discretion on whether to make an order to bring Part I of the Foreign Judgments (Reciprocal Enforcement) Act into operation.
He said: “We submit respectfully that no person, authority or office under Nigeria’s constitutional democracy has absolute statutory powers or absolute statutory discretion to act as he or she pleases without the judicial control of the courts under Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
“The courts have jurisdiction to determine whether statutory powers or statutory discretion were properly exercised and if not properly exercised, to bring the person, authority or office to the right path by compelling him or her to properly exercise the statutory power or discretion.”
The lawyer disagreed with the AGF on his submission that no power, including the court, can subject his discretion to judicial review under their inherent supervisory powers.
He added: “The crux of the error of the Respondent (AGF) in this case is that he believes he has absolute discretion on whether to promulgate the Order to bring Part I of the Foreign Judgment (Reciprocal Enforcement) Act (‘the 1990 Act’) into operation.”
According to Ekpenyong, this assertion is a relic of the dark days of military regime in Nigeria when the military government had dictatorial and absolute powers to determine whether or not to promulgate a decree.
“This is not so in a constitutional democracy where the discretion is even provided by statute,” he argued.
Citing a previous case by the apex court in Oloyede against the state, he said the court held that “the power conferred in the courts by Section 6 (6) (a) of the Constitution is broad but not unlimited.
“Section 6 (6) (a) of the Constitution enables superior courts to exercise inherent supervisory jurisdiction over inferior courts. Power, which is necessary for the smooth administration of justice.”
The lawyer insisted that the AGF does not have absolute discretion on whether to make an Order to bring Part I of the Foreign Judgments (Reciprocal Enforcement) Act into operation.
Ekpeyong said: “The statutory discretion conferred on the Respondent under Section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act is a public statutory duty which is different from mere discretion that may be exercised by the Respondent whenever he likes.
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“The phrase ‘if he is satisfied’ used in Section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act does not confer unlimited discretion on the Respondent which is not subject to judicial control and review.
“The court will avoid literal interpretation of Section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act if it leads to absurdity.
“The intention of the parliament in enacting the Foreign Judgments (Reciprocal Enforcement) Act in 1960 was for Nigeria to have a legislation on recognition of foreign judgments in post-colonial Nigeria.
“We urge this Honorable court to give effect to the intention of the parliament when it enacted the Act.”
Meanwhile, no date has been fixed for hearing
Ekpenyong had dragged the AGF to the Supreme Court after the Court of Appeal, in appeal number: CA/A/132/2020, between Ekpenyong and AGF, dismissed the appeal on May 12, 2022.
The Appeal Court upheld the judgment of the Federal High Court, Abuja, delivered by retired Justice Anwuli Chikere, 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.
But the Supreme Court had on May 27, 2024 granted leave to Ekpenyong to appeal the judgement of the Appeal Court, which dismissed his appeal against the AGF.
A five-member panel of the apex court, in a unanimous ruling delivered by Justice Adamu Jauro, granted the appellant’s prayer for leave of the apex court to seek redress against the Court of Appeal’s judgment.
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