Nigeria: Federal High Court Holds That The Attorney-General Of Federation Of Nigeria Has A Discretionary Duty Under Section 3 (1) Of The Foreign Judgment Reciprocal Act, 1990 To Promulgate An Order To Bring The Act Into Operation


In Suit No. FHC/ABJ/CS/203/ 2017; Emmanuel Ekpenyong Esq. v Attorney General and Minister of Justice of the Federation, the Plaintiff upon obtaining leave of the Federal High Court ("the Court"), by an Originating Summons, urged the Court to compel the Attorney General and Minister of Justice of the Federation ("the Attorney General") to exercise the mandatory legal duty stipulated under Section 3 (1) and 9 of the Foreign Judgment Reciprocal Act, 1990 ("the Act") to promulgate an Order to bring Part 1 of the Act into operation. The Plaintiff also urged the Court to compel the Attorney General to make rules pursuant to Section 5 (2) of the Act in respect to registration and enforcement of foreign judgment in Nigeria and for the Reciprocal Enforcement of Judgment Rules, 1922 to cease to have effect in Nigeria.

Preliminary Objection

Attorney General's arguments

The Attorney General by a Notice of Preliminary Objection challenged the Plaintiff's suit on the grounds that the Plaintiff has no reasonable cause of action because he lacks the locus standi to prosecute the suit. The Attorney General contended that the Plaintiff has failed to show sufficient interest in the subject matter of the suit. He has not also shown special interest or actual threat or injury that he will suffer in the subject matter. He contended that it is not enough for the Plaintiff to say he has lost many businesses without evidence to back up his claim. He urged the Court to dismiss the Plaintiff's suit. 

Plaintiff's arguments

In response, the Plaintiff contended that though he is a member of a number of international networks, he has lost businesses of registration of foreign judgment in Nigeria because of the Attorney's General's failure to promulgate an Order to bring Part 1 of the Act into operation. He further contended that he has satisfied the legal requirement under Order 34 of the Rules of the Court by obtaining leave of Court.  He urged the Court to hold that he has locus standi in the subject matter and assume jurisdiction.

Court's Ruling

The Court found that to determine the locus standi of a party, it is the Statement of Claim that will be examined. The Court quoted excerpts of the Plaintiffs' Affidavit in Support of its Originating Summons where the Plaintiff deposed that he had received many telephone calls from lawyers on the network from both commonwealth and non-common wealth Countries on the possibility of registration of judgment delivered by the courts in their Countries, in Nigeria.

The Court found that the Plaintiff testified in his Affidavit that he will not be able to profit from his membership of the international network if the Attorney General does not promulgate the Order to bring Part 1 of the Act into operation; the failure of the Attorney General to promulgate the Order is against the Plaintiff's business interest and that the Plaintiff's personal interest has been adversely affected by the failure of the Attorney General to promulgate the Order and he is in continuous danger of losing more businesses. It is upon this premise that the Court held that the Plaintiff has locus standi and a reasonable cause of action to prosecute the suit.

Order to Compel the Attorney General to promulgate the Order to bring Part 1 of the Act in operation

Plaintiff's argument

The Plaintiff contended that there is a mandatory legal duty on the Attorney General to promulgate the Order to bring Part 1 of the Act into operation. He further contended that there are instances where the Court can interpret the word "may" to mean "shall" and that the interpretation of the duty on the Attorney General in Section 3 and 9 of the Act as directory will lead to great inconvenience and loss to Nigeria, Nigerians and the Plaintiff.

The Plaintiff again contended that the intention of the legislature for the Act to regulate registration of foreign judgment in Nigeria has been defeated because the Attorney General has not performed the duty stipulated to bring the Act into operation and the failure of the Attorney General to promulgate the Order is inimical to trade and commerce as the 1958 Ordinance currently in operation is too archaic to effectively regulate registration of foreign judgment in Nigeria.

The Plaintiff argued that by Section 5 (2) of the Act, the Attorney General knows the procedure which will give effect to the Order and by virtue of the Attorney General's office he is familiar with agreements made between her Majesty and foreign Countries and the agreement between Nigeria and foreign Countries. The Attorney General has a mandatory to make rules to give effect to the provisions of the Order for the smooth process of registration of foreign judgments in Nigeria. 

Attorney General's argument

The Attorney General contends that the clear words of Section 3 and 4 of the Act, makes his duty to be discretionary and not mandatory by virtue of the phrase "The Minister of Justice if he is satisfied". He contends that the literal meaning of the word "may" in Section 3 of the Act should be given to it.

Court's Ruling

The Court found that the word "if" as used in Section 3 of the Act is no doubt introducing a conditional clause that is a condition or supposition that in the event that a particular thing happens. The condition as used in the statute can only be fulfilled when the Minister is "satisfied". The Court again found that the Plaintiff has not placed before the Court any evidence to show that the Attorney General is satisfied. The Attorney General has not been shown to be satisfied enough to promulgate the Order to bring Part 1 of the Act into operation. This is a serious condition that must be fulfilled and the Court cannot compel the defendant to be satisfied when he is not yet satisfied. Whatever may be the reason for not being satisfied is within the prerogative of the Attorney General.

The Court found that a careful examination of the Act as a whole gives the Attorney General the discretion when the issue of registration of foreign judgment is brought up. The word "may" has been held in various cases to mean discretion. As much as it is desirable and lofty for the Attorney General to seriously look into the need to promulgate the Order to bring Part 1 of the Act into operation because of the benefit it will bring to Nigerians and possibly the Plaintiff, the Court is a Court of law and it cannot in discharging its duty circumvent the clear provision of a statute. It is upon this premise that the Court held that it cannot make an Order of mandamus against the Attorney General because of the inherent discretion given to him under Section 3 of the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions