EKPENYONG v. A.G AND MINISTER OF JUSTICE OF THE FEDERATION
(2022)LCN/16461(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, May 12, 2022
CA/A/132/2020
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
EMMANUEL EKPENYONG ESQ. APPELANT(S)
And
ATTORNEY GENERAL AND MINISTER OF JUSTICE OF THE FEDERATION RESPONDENT(S)
RATIO:
NO RESTRICTION SHOULD BE IMPOSED TO IMPEDE OR HAMSTRING THE FLEXIBILITY OR LATITUDE OF THE ATTORNEY GENERAL OF THE FEDERATION
This section of the Act gives the minister of justice the discretion to promulgate an order to bring the Act into operation. Havingsaid that, it is also very important to bear in mind that discretion in this context, is not the same as judicial discretion. In performing this function, no restriction should be imposed to impede or hamstring the flexibility or latitude of the Attorney General of the Federation, on whom the law vested the discretionary power or authority; See AKINYEMI V ODU’A INVESTMENT CO. LTD. (2012) 17 NWLR (PT. 1329) 209 AT 240; where the loose and popular meaning of the word ‘discretion’, as distinct from judicial discretion was held per TANKO MUHAMMAD, J.S.C., to be:
“Discretion; they say “knows no bound”: In its general usage, it is that freedom or power to decide what should be done in a particular situation. William C. Burton, in his “Burton’s Legal Thesaurus, (2007) 4th edition, MC Graw Hill, New York, assigned the general meaning of the word to include: “analysis, appraisal, assessment, choice, consideration, contemplation, decision, designation, determination, discrimination, distinction, election, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review,right of choice, sanction, selection, self-determination, suffrage etc.” MOHAMMED MUSTAPHA, J.C.A
THE DUTY OF THE COURT AS TO INTREPRETATION OF THE WORDS CONTAINED IN THE STATUTE
The SUPREME COURT IN ARAKA V. EGBUE (2003) 7 SC 75 said:-
“The duty of the Court is to interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the Court or the parties or one of the parties. Even where the provisions of the statute are hard in the sense that they will do some inconvenience to the parties, the Court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the Court to remove the chaff from the grain in the process of interpretation of statute to arrive at favorable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to traveling outside the statute on a voyage of discovery.” See also INTERNATIONAL STANDARD SECURITIES V UBN (2009) LPELR-8788- CA. MOHAMMED MUSTAPHA, J.C.A
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court delivered on the 10th of June, 2019, by Hon. Justice A. I. Chikere, wherein it was held that the use of the phrase ‘the minister of justice if he is satisfied’, in Section 3 (1) (a) of the Foreign Judgment Reciprocal Enforcement Act, Cap F35 Laws of The Federation of Nigeria, 1990, introduces a conditional clause that is hinged on the happening of an event, and also that the word ‘may’ shows discretion on the part of the Attorney General of the Federation before the promulgation of the order.
FACTS IN BRIEF:
The plaintiff/appellant commenced this suit seeking the following reliefs:
1. A Declaration that the Defendant has a mandatory legal duty stipulated in Section 3(1) of the Foreign Judgments Reciprocal Act, CAP F35, Laws of the Federation, 1990 (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 in the foreign countries for the purpose of applicability of part 1 of the 1990 Act.
2. A Declaration that the Defendant has a mandatory legal duty stipulated in Section 9(2) of the 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.
3. A Declaration that the Defendant has a mandatory legal duty stipulated in Section 5(2) of the 1990 Act, to make Rules in respect of registration and enforcement of foreign judgment in Nigeria and for the Reciprocal Enforcement of Judgments Rules, 1922 (the 1922 Rules) to cease to have effect in Nigeria.
4. AN ORDER of mandamus compelling the Defendant 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 Nigerian and deeming the Courts stipulated in the Order as superior Courts of foreign countries for the purpose of applicability of part 1 of the 1990 Act.
5. AN ORDER of mandamus compelling the Defendant to exercise the mandatory legal duty 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 Judgment Ordinance, 1958 (the 1958 Ordinance) to cease to have effect in Nigeria.
6. AN ORDER of mandamus compelling the Defendant to exercise the mandatory legal duty stipulated in Section 5 (2) of the 1990 Act, to make Rules in respect of registration and enforcement of foreign judgment in Nigeria and for the Reciprocal Enforcement of Judgments Rules, 1922 (the 1922 Rules) to cease to have effect in Nigeria. (See pages 97-98 of the Record of Appeal).
Dissatisfied, the Appellant now appealed to this Court by a notice of appeal filed on the 29th August, 2019 on the following grounds shorn of their respective particulars.
GROUNDS OF APPEAL
GROUND ONE:
The learned Judge misdirected himself and erred in law when he refused the reliefs sought by the Appellant on the ground that the Appellant has not placed before the Court, evidence to determine whether the Respondent is satisfied enough to promulgate the Order pursuant to Section 3 (1) of the Foreign Judgment Reciprocal Enforcement Act, 1990.
GROUND TWO:
The learned Judge misdirected himself and erred in law when he refused to grant the reliefs sought by the Appellant on the ground that the use of “May” in Section 3 (1) of the 1990 Act shows discretion on the part of the Respondent to promulgate the Order.
The record of appeal was compiled and transmitted on the 29th September, 2021; The following issues were formulated from the grounds of appeal in the brief filed on the 20th of May, 2020 but deemed properly filed on the 29th September, 2021 by Emanuel Ekpenyong Esq., of counsel, and adopted by Suleiman Jibril Esq., in the brief filed on the 26th of November, 2021, but deemed properly filed on the 2nd of December, 2021.
ISSUES FOR DETERMINATION:
(1) Whether in light of extant Nigeria legislation which acknowledge foreign countries with reciprocal treatment of judgments with Nigeria, the learned Judge was right to refuse to grant the reliefs sought on the grounds that since the provisions of Section 3 (1) of the 1990 Act is based on the personal satisfaction of the AGF upon the happening of an event, the AGF has a wide and limitless discretion on when to promulgate an Order to bring Part 1 of the 1990 Act into operation? ( Distilled from Ground One)
(2) Whether the Learned Judge was right to interpret the word “May” as used in Section 3 (1) (a) of the 1990 Act as directory and discretionary instead of mandatory and compulsory? (Distilled from Ground Two)
ISSUE ONE:
Whether in light of extant Nigeria legislation which acknowledge foreign countries with reciprocal treatment of judgments with Nigeria, the Learned Judge was right to refuse to grant the reliefs sought on the grounds that since the provisions of Section 3 (1) of the 1990 Act is based on the personal satisfaction of the AGF upon the happening of an event, the AGF has a wide and limitless discretion on when to promulgate an Order to bring Part 1 of the 1990 Act into operation?
It is submitted for the Appellant that the condition upon which the Attorney General of the Federation ought to be satisfied to promulgate an order to bring part 1 of the 1990 Act is provided in Section 3 (1) (a) of the Act; the import of the provision is that, if the AGF is satisfied that there are foreign countries who accord respect to judgments of superior Courts in Nigeria, then he would by order extend reciprocity of judgment to those foreign countries.
Learned counsel contends that the provisions of Section 3 (1) and (5) of the 1958 Ordinance and the Governors-General’s proclamations, pursuant to Section 5 of the 1958 Ordinance, give an affirmative answer to the question, whether there are foreign countries that respect judgments of superior Courts in Nigeria, to form the basis upon which the AGF will promulgate the order to extend reciprocity.
That Section 9 of the United Kingdom’s Administration of justice Act, 1920 codifies recognition and reciprocal treatment of judgments between superior Courts in commonwealth countries and that of England, Ireland and Scotland. Since Nigeria is part of Her majesty’s dominion, this without more has met the legal standard of satisfaction of the AGF as envisaged in Section 3(1) (a) of the 1990 Act; and that the event or condition upon which the AGF is to be satisfied to promulgate the order has long occurred.
It is further submitted that the standard of satisfaction envisaged under Section 3 (1) (a) of the 1990 Act is not a general, person a land subjective satisfaction of an ordinary Nigerian, which should be free from anxiety, doubt or uncertainty as the Federal High Court found in its judgment. Rather, the standard of satisfaction envisaged in this context is an objective legal standard of satisfaction of a public officer occupying a sensitive constitutional office of the Attorney General and minister of justice.
That Section 10 (3) of the Interpretation Act requires that upon passing, the public officer shall exercise such powers at any time, for the purpose of bringing the Act into operation; learned counsel referred the Court to IFEZUE V MBADUGHA & ANR (1984) NSCC 314 and SKYE BANK V IWU (2017) 16 NWLR part 1590 page 24,
Learned counsel contends that the true intention of the legislature was for the AGF to perform the mandatory duty to promulgate the order to bring the Act into operation before the commencement date of 1st February, 1961, so that the 1958 ordinance and the 1922 Rules will cease to have effect in Nigeria.
It is submitted in response that, Section 3 (1) of the Foreign Judgments Reciprocal Act, 1990 gives the minister of justice the discretion to promulgate the order to bring part 1 of the Act into operation, if he is satisfied; learned counsel referred the Court to SULEMAN V COP PLATEAU STATE (2008) NWLR part 1089 page 298 and NJC V DAKWANG (2019) 7 NWLR part 532 SC.
That it is only when the AGF is satisfied in his own judgment that reciprocity of treatment will be assured of Nigerian judgments in the foreign country; and that satisfaction of the AGF is not tied to any external factor or opinion but his own conscience.
That where the words of a statute are clear and unambiguous, it is the duty of the Court to give it its natural meaning without interference; UWAZURIKE V A.G. FEDERATION (2007) 8 NWLR part 1035 page 1; OKOYE V COP (2015) 17 NWLR part 276 SC and also KOLO V COP (2017) 9 NWLR part 1569 page 118 SC.
While referring to GROSVENOR CASINOS LTD V HALAOUI (2009) NWLR part 1147 page 309-347 learned counsel submits that the foreign judgments reciprocal Acts can only be promulgated by the AGF when he is satisfied, of the need to promulgate same; and that the intention of the legislature was for the minister to have unlimited discretion in the promulgation of the order.
That the Appellant’s submission that the Attorney General of the Federation ought to have made an order promulgating the 1990 Act before the commencement of the 1990 Act has no statutory backing.
RESOLUTION OF ISSUE ONE:
It is very important from the onset to have recourse to Section 3 (1) of the Foreign Judgments Reciprocal Act, 1990, in the resolution of this issue. For the avoidance of doubt it provides thus:
“The minister of justice if he is satisfied that, in the event of the benefit conferred by this part of this Act being extended to the judgment given in the superior Courts of 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 to that foreign country; and
b) That such Courts of that foreign country as are specific in the order shall be superior Courts of that country for the purpose of this part of this Act”.
This section of the Act gives the minister of justice the discretion to promulgate an order to bring the Act into operation. Having said that, it is also very important to bear in mind that discretion in this context, is not the same as judicial discretion. In performing this function, no restriction should be imposed to impede or hamstring the flexibility or latitude of the Attorney General of the Federation, on whom the law vested the discretionary power or authority; See AKINYEMI V ODU’A INVESTMENT CO. LTD. (2012) 17 NWLR (PT. 1329) 209 AT 240; where the loose and popular meaning of the word ‘discretion’, as distinct from judicial discretion was held per TANKO MUHAMMAD, J.S.C., to be:
“Discretion; they say “knows no bound”: In its general usage, it is that freedom or power to decide what should be done in a particular situation. William C. Burton, in his “Burton’s Legal Thesaurus, (2007) 4th edition, MC Graw Hill, New York, assigned the general meaning of the word to include: “analysis, appraisal, assessment, choice, consideration, contemplation, decision, designation, determination, discrimination, distinction, election, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review, right of choice, sanction, selection, self-determination, suffrage etc.”
In matters of administrative discretion, therefore, the person exercising the routine administrative or quasi-judicial function has the luxury and latitude to change his mind, as he please, from negative to positive, depending on the vagaries of the occasion; unlike statutory discretion which must be exercised judicially and judiciously.
As far as the power of the Attorney General is concerned with regard to the provisions of Section 3 (1) of the Foreign Judgments Reciprocal Act, 1990, the decision whether AGF promulgates or not is his, and his alone. It is straight forward, because the provision is unambiguous.
The above provision is, to my mind meant to complement and also emphasis the provisions of the Act; the provision is very clear and unambiguous, and ought ordinarily not to generate controversy, bearing in mind the mischief meant to be cured with the promulgation of the Act. The legislature should indeed be commended for this proactive and dynamic effort at improving the service effect the reciprocity Act will have on judicial decisions, and our nascent democratic process, when brought to life. Unfortunately, for now, this is the present status of the law until the AGF promulgates the order.
I have carefully looked at the Provisions of Section 3 (1) of the Foreign Judgments Reciprocal Act, 1990 and I am of the candid view that the wordings are simple and straightforward, and without straining any nerves or resorting to any techniques of interpretation, ought to be given its simple grammatical interpretation. The purport of that section is to give the Attorney General the power and authority to use his discretion, upon being satisfied of the need or necessity for the promulgation of the Order, to do so. In other words, his power, or decision to be ‘satisfied’, as to the need for the promulgation is his alone to exercise. He cannot be compelled by anyone who appears to think better. It is understandable and unfortunate that the Appellant claims to have lost a lot due to the failure or refusal of the various Attorneys General over the years to have refused to promulgate the order; that in the circumstances should be taken to mean only that they must have decided for now against the promulgation in the greater interest of the country. After all, it is their discretion to promulgate or not to, that is the latitude given to the Attorney General.
The fact that by virtue of Section 5 of the Foreign Judgments Reciprocal Ordinance 1958 and Governor General’s proclamations of 1958 Nigeria granted reciprocal treatment to judgments from superior Courts in England, Ireland, South Wales, Sierra Leone amounts to little or nothing in this case, because the ultimate question is whether or not the AGF was satisfied enough to do so in this case.
The Supreme Court summed it up when it held in GROSVENOR CASINOS LTD V HALAOUI (2009) NWLR part 1149 pages 309-347 when it held among other things that:
“taking into consideration that part I of the foreign judgments (reciprocal enforcement) Act, Cap 152 of the Law of the Federation, 1990 comprising Section 3, 4, 5, 6, 7, 8, 9 and 10 is to come into force only at the instance of the minister of justice by an order issued by him as specified in Section 3 of the Act… ”
The Supreme Court’s use of the operative words, “only at the instance of the minister of justice”, says it all. The intention of the legislature is that discretion on the part of the minister, to be satisfied, is sine qua non before promulgation of the order.
I am in agreement with learned counsel for the Respondent that, the Appellant misconstrued the provisions of Section 10(3) of the Interpretation Act, in contending that Attorney General ought to have promulgated the order before the passing of the Act. The section is also very clear and unambiguous; for the avoidance of doubt it provides:
“where an Act is not to come into force immediately on the passing of the Act and confers power to make subsidiary instrument, to give notice to prescribe forms to make an appointment or to do anything for the purpose of the Act, the power may be exercised at any time after the Act is passed so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of its commencement, so, however virtue of this subsection shall come into force before the commencement of the Act conferring power to make the instrument except in so far as may be necessary for bringing that Act into force.”
So, it is clear that it is after the Act is passed that the power to make subsidiary instrument for the purpose of the Act may be exercised, no instrument can come into force, in this respect, before the commencement of the Act conferring power. It is after the passing of the 1990 Act that the power to make an order of promulgation can be exercised.
It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellant.
ISSUE TWO:
Whether the Learned Judge was right to interpret the word “May” as used in Section 3 (1) (a) of the 1990 Act as directory and discretionary instead of mandatory and compulsory?
It is submitted for the Appellant that though the use of the word ‘may’ in a legislation connotes discretion, the Courts have in a number of occasions interpreted it to mean mandatory or compulsory; learned counsel referred the Court to MOKELU V FED COMM FOR WORKS & HOUSING (1976) NSCC 187; UDE V NWARA (1993) 2 NWLR part 278 page 661; ADESOLA V ABIDOYE (1999) 14 NWLR part 637 page 28; KAMBA V BAWA (2005) 4 NWLR part 914 page 43 and OKOMU PALM OIL CO. V TAJUDEEN(2015) ALL FWLR part 806 page 350.
That notwithstanding the use of the word may, in a provision, where the legislature states the conditions upon which a public officer would exercise a power, the officer is under compulsion to exercise that power once the condition precedent is satisfied.
It is contended that the duty of the AGF in Section 3 (1) (a) of the Act is mandatory despite the use of the word ‘may’, because the condition for interpreting ‘may’ as mandatory has arisen; especially in view of the fact that superior Courts in England, Ireland, Scotland, and other commonwealth countries accord reciprocal treatment of judgments with Nigeria.
That the intention of the legislature was for the 1990 Act to replace the 1958 Ordinance and 1922 Rules; upon passing the 1990 Act, the intention was for the AGF to immediately promulgate the order so that the Act will come into operation from 1st February, 1961.
That also the Federal High Court erred when it held that the duty conferred upon the AGF by Section 3 (1) is not mandatory but discretionary; especially as the provision confers a legal right on private persons to register and enforce their foreign judgments in Nigeria, as well as a constitutional, economic and business right on the Appellant to make a livelihood from registration of foreign judgments in Nigeria.
It is submitted in response that the word ‘may’ is merely discretionary and not mandatory; O.R.L V N.C.C (2007) WRN Vol. 18 page 87; NIG NAVY V LABINJO (2012) 17 NWLR part 56 SC; NATIONAL ASSEMBLY V C.C.I CO. LTD (2008) 5 NWLR part 1081 page 519 and ONOCHIE V ODOGWU (2006) 6 NWLR part 65 SC.
That where the words of a statute are clear and unambiguous they must be given their clear and natural meaning; GANA V SDP (2019) 11 NWLR part 1684 page 510 SC; this is more so, learned counsel contended, where no form of absurdity shall arise from the ordinary and plain interpretation of the word ‘may’.
RESOLUTION OF ISSUE TWO:
Most of the issues raised under this head have been dealt with under issue one; be that as it may, at the risk of prolixity it needs to be restated that Section 3 (1) of the Foreign Judgments Reciprocal Act, 1990 gives the Minister of Justice the discretion to promulgate an order to bring the Act into operation. Having said that, it is also very important to bear in mind that discretion in this context, is not the same as judicial discretion. Be that as it may, in performing this function, no restriction should be imposed to impede or hamstring the flexibility or latitude of the Attorney General of the Federation, on whom the law vested the discretionary power or authority; This section of the Act gives the minister of justice the discretion to promulgate an order to bring the Act into operation. Having said that, it is also very important to bear in mind that discretion in this context, is not the same as judicial discretion. In performing this function, no restriction should be imposed to impede or hamstring the flexibility or latitude of the Attorney General of the Federation, on whom the law vested the discretionary power or authority; See AKINYEMI V ODU’A INVESTMENT CO. LTD. (2012) 17 NWLR (PT. 1329) 209 AT 240; where the loose and popular meaning of the word ‘discretion’, as distinct from judicial discretion was held per TANKO MUHAMMAD, J.S.C., to be:
“Discretion; they say “knows no bound”: In its general usage, it is that freedom or power to decide what should be done in a particular situation. William C. Burton, in his “Burton’s Legal Thesaurus, (2007) 4th edition, MC Graw Hill, New York, assigned the general meaning of the word to include: “analysis, appraisal, assessment, choice, consideration, contemplation, decision, designation, determination, discrimination, distinction, election, free decision, free will, freedom of choice, liberty of choosing, liberty of judgment, license, option, optionality, permission, pick, power of choosing, review, right of choice, sanction, selection, self-determination, suffrage etc.”
, the person exercising the routine administrative or quasi-judicial function has the luxury and latitude to change his mind, as he please, from negative to positive depending on the vagaries of the occasion; unlike statutory discretion which must be exercised judicially and judiciously/rigidly.”
As far as the power of the Attorney General is concerned with regard to the provisions of Section 3 (1) of the Foreign Judgments Reciprocal Act, 1990, the decision whether AGF promulgates or not is his, and his alone. It is straightforward, because the provision is unambiguous.
On the interpretation of the word ‘may’, and the insistence by learned counsel for the Appellant that only his own version of the interpretation of the word suffices, I, with all due respect hold the contrary view that, the trial Court’s interpretation of the word, which implies discretion, is the correct interpretation in the circumstances of this case. The SUPREME COURT IN ARAKA V. EGBUE (2003) 7 SC 75 said:-
“The duty of the Court is to interpret the words contained in the statute and not to go outside the words in search of an interpretation which is convenient to the Court or the parties or one of the parties. Even where the provisions of the statute are hard in the sense that they will do some inconvenience to the parties, the Court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the Court to remove the chaff from the grain in the process of interpretation of statute to arrive at favorable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to traveling outside the statute on a voyage of discovery.” See also INTERNATIONAL STANDARD SECURITIES V UBN (2009) LPELR-8788- CA.
The contention that intention of the legislature was for the 1990 Act to replace the 1958 Ordinance and 1922 Rules, may not be far from the truth. Indeed, the word ‘may’ could be construed as ‘shall’ in appropriate circumstances, see NIG. NAVY V LABINJO supra, but the intention in this case is clearly only meant to come into effect, after the condition precedent is met, and the condition precedent in this case is for the AGF to be satisfied first, of the need to promulgate the order.
This Court cannot help but agree with learned counsel for the Respondent’s contention that after a careful reading of the provision, one is left in no doubt that the context in which the words “the minister of justice, if he is satisfied…” and “…may by order direct…” are used suggest discretion, whichever way one looks at it.
In trying to find out the intention behind the enactment, the first rule is to look at the words used, giving them their ordinary grammatical meaning. This is the literal rule of interpretation, and it does not allow a Court to apply the purposive rule of interpretation, because when the words used in the statute are clear unambiguous and precise, they should be given that meaning. In ALHAJI ATIKU ABUBAKAR, GCON VS ALHAJI UMARU MUSA YAR’ADUA & ORS (2008) 19 NWLR (PT. 1120) 1 it was held:
“I should say that the purposive rule of interpretation will not avail a Judge where the intention of the lawmaker is clear, precise and unequivocal, so much so that, a person can say “Yes this is what the lawmaker has in his mind.” The purposive rule does not allow the Judge to destroy the intention of the lawmaker, in the language of Lord Denning, “the Judge must not alter the material at which it is woven, but he can and should iron out the creases.” The rule does not apply, and I so hold.”
There is also no likelihood of any absurdity arising from the ordinary and plain interpretation of the word ‘may’ in this legislation; see SHERIFF V PDP (2017) 14 NWLR PART 212- CA.
It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellant.
Having resolved the two issues that call for determination in favour of the Respondent, against the Appellant, the appeal fails for lack of merit, and it is accordingly dismissed. Judgment of the trial Federal High Court, presided by Hon Justice A. I. Chikere, delivered on the 10th of June, 2019 is hereby affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Mohammed Mustapha, JCA gave me the benefit of reading in advance, the draft of judgment just delivered.
My learned brother had admirably and comprehensively considered the central issue that came up for determination in this appeal. My understanding is that, what the Court has been called upon, is to determine the nature of the power grantedthe Minister of Justice under Section 3(1) of the Foreign Judgments (Reciprocal) Act, 1990. That is, whether the power to be exercised under that provision of the Act is a mandatory one, such that the Minister can be compelled by way of mandamus to exercise the power; or it is one to be exercised at the discretion of the Minister and in which instance, mandamus will not lie. After a careful reflection on the provision of the Foreign Judgments (Reciprocal Act (supra), I am of the view that, the catchphrase there is; “if he is satisfied…” And where such phrases are used in a statute, they give discretion in the exercise of such power by the donee of such power. That is moreso, where the phrase is coupled with the use of the word “may” which atimes, when there are compelling reasons to do so, be construed to mean mandatoriness, is generally interpreted as connoting a permission or discretion.
In the instant case, the power is donated to the Minister of Justice as Public Officer. It should be noted that, the purpose of mandamus is to compel a corporation or person exercising a public duty, requiring it or him to do some particular thing specified in astatute pertaining to its or his office as a public official. However, where the duty imposed by statute leaves a discretion in the performance of such duty, mandamus will not issue to compel performance of that duty in a specific way. See Shitta-Bey v. Federal Civil Service Commission (1981) SC 140; Amasike v. Registrar-General, Corporate Affairs Commission & Anor. (2010) 13 NWLR (Pt. 1211) 337 and Associated Discount House Ltd. v. The Hon. Minister of the FCT & Anor. (2013) 8 NWLR (Pt. 1357) 493. In the instant case, the power donated to the Justice Minister by the statute under consideration is a discretionary one. Therefore, its exercise cannot be compelled by an Order of mandamus.
On that score, I agree with my learned brother that, the two issues raised for determination in this appeal, be resolved against the Appellant.
This appeal therefore, lacks merit and is accordingly dismissed. I abide by the consequential order made by learned brother.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: By the canons of interpretation of statutes, it is a cardinal principle that, where the ordinary and plain meaning of the words used are clear and unambiguous, effect must be given to those words in their natural and ordinary meaning or literal sense without resorting to any intrinsic or external aids.
In aliisverbis, in interpreting a statute, where the words used are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical meaning would permit unless where it would lead to absurdity. See ADETAYO vs. ADEMOLA (2010) 15 NWLR (PT 1215) 169 at 205, OKOTIE-EBOH vs. MANAGER (2004) LPELR (2502) 1 at 30 and NWOBIKE vs. FRN (2021) LPELR (56670) 1 at 25.
The words used in Section 3 (1) of the Foreign Judgments (Reciprocal Enforcement) Act are clear, plain and unambiguous; effect must therefore be given to the literal, ordinary and plain meaning of the words used, more so when doing so would not lead to any absurdity. The text of the said Section 3 (1) has been set out in the leading judgment. It provides that if the Minister of Justice is satisfied that certain things is the state of affairs, he MAY, by order given certain directions. The stipulation clearly gives the Minister a discretion on whether to give the directions, which is predicated on his satisfaction with the state of affairs. The word employed in the stipulation is MAY In MOKELU vs. FED. COMM. FOR WORKS &HOUSING (1976) LPELR (1904) 1 at 9-10, the apex Court (per Madarikan, JSC) stated:
“‘May’ is an enabling or permissive word. In that sense, it imposes or gives a discretion or enabling power. But where the object of the power is to effectuate a legal right, ‘may’ has been construed as compulsory or as imposing an obligatory duty…”
See also ORAKUL RESOURCES LTD vs. N.C.C. (2022) LPELR (56602) 1 at 35, BAKARE vs. A-G FEDERATION (1990) LPELR (707) 1 at 47-48 and EDEWOR vs. UWEGBA (1987) LPELR (1009) 1 at 45-46.
In the diacritical circumstances of the stipulations of the said Section 3 (1), being the exercise of the power or authority subject to the discretion of the Minister of Justice, the Minister cannot be compelled to exercise the power. It is therefore based on the foregoing and the sapient reasoning and conclusion in the leading judgment of my learned brother, Mohammed Mustapha, JCA, which I was privileged to read in draft, that I join in dismissing the appeal and on the same terms asset out in the lead judgment.
Appearances:
Appellant appears in person For Appellant(s)
Suleiman Jibril, with him, Hassan Ndahi For Respondent(s)
