Still on Registration of Foreign Judgments in Nigeria
In Suit No. FHC/ABJ/CS/203/2019; Emmanuel Ekpenyong Esq. v. Attorney General and Minister of Justice of the Federation, the Federal High Court, Abuja Judicial Division by a Judgment dated 10th June 2019, held that the Plaintiff (“Emmanuel”) has not placed before the Court, evidence to show that the Defendant (“the Attorney General”) ought to be satisfied to promulgate an Order to bring Part I of the Foreign Judgment Reciprocal Enforcement Act, 1990 (“the 1990 Act”) into operation pursuant to Section 3 (1) of the 1990 Act which provides that;
“The Minister of Justice if he is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to judgments given in superior courts for any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the superior courts in Nigeria, may by order, direct:
(a) That this Part of this Act shall extend to that foreign country; and
(b) That such courts of that foreign country as are specific in the order shall be deemed superior courts of that country for the purpose of this part of this Act..”
The Court further held that the phrase “the Minister of Justice if he is satisfied………..may by order direct…..” shows discretion on the part of the Attorney General. The Court found that though in some instances, the word “may” in a document may be interpreted to mean “shall”; the clear wordings of the 1990 Act suggests discretion on the part of the Attorney General on whether or not to promulgate the Order to bring Part I of the 1990 Act into operation.
By a Notice of Appeal dated 29th August 2019, Emmanuel appealed against the Judgment to the Court of Appeal, Abuja Judicial Division. Emmanuel contends that the provisions of Section 3 of the Reciprocal Enforcement of Judgment Ordinance, CAP. 175 1958 (“1958 the Ordinance”) and Section 9 of the United Kingdom’s Administration of Justice Act, 1920 codifies the substantial reciprocity treatment of Judgments of superior Courts of Nigeria on one hand and England, Ireland and the Court of Session in Scotland on the other hand. Section 9 of the 1990 Act codifies the substantial reciprocity treatment of Judgments of superior Courts in Nigeria and other commonwealth countries.
The legal standard of satisfaction required of the Attorney General by the phrase “The Minister of Justice if he is satisfied…” as used in Section 3 (1) of the 1990 Act ought not to be based on an indefinite, unhindered, incontestable and subjective discretion or prerogative of the Attorney General but ought to be based on a reasonable and objective premise of whether there are superior Courts of any foreign country with substantial reciprocity treatment of Judgments with Nigeria.
The common knowledge that superior Courts in England, Ireland, the Court of Session in Scotland and other commonwealth countries have substantial reciprocity treatment of Judgments with Nigerian superior Courts has fulfilled the objective legal standard for the Attorney General’s satisfaction and forms the legal basis upon which the Attorney General ought to have promulgated the Order to extend the application of Part I of the 1990 Act to the Judgments of superior Courts in England, Ireland, the Court of Session in Scotland and other commonwealth countries.
The failure of the Attorney General to promulgate the Order since 1990 when the Act was enacted has made Nigerian Courts to rely on the colonial and out dated 1958 Ordinance as well as its Rules of 1922 for registration of foreign judgments in Nigeria. This has made the process of registration of foreign Judgments in Nigeria to be uncertain and burdensome.
Emmanuel further contended that it is settled Nigerian law that “may” in a legal document may be construed as “shall” so that justice will not be a slave to grammar. Again, if interpreting “may” as used in a legal document as discretionary will result in serious general inconvenience to innocent persons of the public without furthering the object of the enactment; it shall be construed to be mandatory. Furthermore, the Court would interpret “may” as mandatory whenever it is used to impose a duty on a public functionary, the benefits which inures to a private citizen.
Since the failure of the Attorney General to promulgate the Order pursuant to Section 3 (1) of the Act to bring Part I of the Act into operation for the benefit of Nigerians has resulted in serious general inconvenience to innocent Nigerians, especially Emmanuel, without furthering the objectives of the Act, the justice of the case demands that the mischief rule of interpretation ought to be applied in the interpretation of “may” as used in the provision as “shall” so that justice will not be a slave to grammar.