Central Bank Governor’s salary not personal information under FOI Act, Says Federal High Court
In the Federal High Court of Nigeria
In the Abuja Judicial Division
Holden in Abuja
On Thursday, the 5th Day of July, 2012
Before the Hon. Justice Balkisu Bello Aliyu (Judge)
Suit No: FHC/ABJ./CS/1016/2011
In the Matter of Judicial Review Under the Freedom of Information Act, 2011
Between:
Uzoegwu F.O.C. Esq. – Applicant
And
- Central Bank of Nigeria
- Attorney-General of the Federation – Respondents
The judgment is in respect of an Originating Summons, dated 14th December, but filed on the 16th of December 2011 by Uzoegwu F.O.C., Esq. by which he sought the determination of two legal questions, namely:
- Whether by the provisions of Section 2, 5, and 21 of the Freedom of Information Act, 2011, the Applicant is entitled to be furnished with the information in the custody of the Central Bank of Nigeria (CBN).
- Whether the CBN is authorized to deny access to Mr. Uzoegwu of information in its custody under the provisions of the FOI Act.
Upon the determination of these questions, Mr. Uzoegwu sought the following:
- A Declaration that the CBN’s refusal to furnish him with the information in its custody is wrongful.
- An Order compelling the CBN and the Attorney-General of the Federation (AGF) to comply with the provisions of the FOI Act and furnish him with the information applied for.
The Originating Summons was supported by an affidavit dated December 16, 2011 which Mr. Uzoegwu swore to himself. Mr. Uzoegwu described himself as a legal practitioner and a citizen of Nigeria. He said that on November 9, 2011, he wrote a letter to the CBN and applied for information pursuant to the Freedom of Information Act 2011, asking to be informed of the amount payable to the Governor, Deputy Governor and Directors of the CBN as monthly salary.
But the CBN neither replied nor furnished him with the information. The letter, dated November 9, 2011, was addressed to the Director of Finance of the CBN. The Director of Finance acknowledged receipt of the letter with his stamp on November 11, 201.
Counsel argued that the offices of the Governor, Deputy Governors and Directors
of the CBN, being sensitive offices, the disclosure of their salaries and allowances
“could cause or spark violence due to wrong interpretation and could endanger
lives and properties of the said officials.”
In his address attached to the Originating Summons, Mr. Uzoegwu, who appeared for himself, being a legal practitioner, quoted the provisions of sections 2, 5, 6, 7 and 8 of the FOI Act and submitted that by section 8(4) of the Act, the CBN is deemed to have denied the information requested. Thus by the provisions of Section 21 of the Act, he can apply to the court for the review of the refusal. He urged the Court to grant the reliefs sought in the Summons.
The CBN and AGF were served with the summons, and the CBN filed a counter affidavit to the affidavit of the Applicant. The CBN’s counter affidavit was dated March 2, 2012 and sworn to by Okpetu Samson, the Litigation Secretary in the law firm of Messrs. K. T. Turaki & Co., solicitors to the CBN.
He deposed to this affidavit from the information he derived from the Director of Legal Services Department of the CBN. The CBN’s reasons for refusal to supply the information were stated in paragraphs 3 (b) to (j), namely that the information is personal information which was communicated to them upon their appointments.
The CBN’s counsel, Mr. Abdulaziz Ibrahim, filed an address along with the counter affidavit . In the address, counsel submitted that there is nothing in sections 2, 5 and 21 of the Act quoted by the Applicant in his address that entitles him to compel the CBN to furnish him with the information relating to the salaries of the Governor of the CBN, Deputy Governors and Directors.
According to Mr. Abdulaziz, these sections of the Act relied upon by Mr. Uzoegwu merely prescribe the general rights of the Plaintiff to have access to available information and procedures for procuring the same.
He said the CBN’s counter-affidavit had shown that the information sought by Mr. Uzoegwu is official and personal information and contained in the personal files of the Governor, Deputy Governors and Directors maintained by the CBN. He argued that the information is protected by section 15(1) read together with section 13(3)· of the Act and section 37 of the 1999 Constitution of Nigeria (as amended)
Observing that it was contended by the Counsel of the CBN that the list of exempted
personal information in Section 14 is not exhaustive because of the word “include” is
used by the Legislature, Justice Aliyu said “I must say I am not carried along this
argument for the simple reason that the salaries and allowances of officers are such
intrinsic part of their public employment or appointment that if the legislature
intended to exempt them as personal information to the officers,
they will have stated so clearly.”
He submitted that the items enumerated by section 15(1) of the Act are not exhaustive because of the use of the word “include” in the section.
According to Mr. Abdulaziz, the subsection does not exclude other situations or instances which are not expressly mentioned in the section. He urged the Court to read as a whole the Freedom of Information Act and if that is done, the Court will have no difficulty in coming to the conclusion that the information sought by the Plaintiff is exempted from disclosure under the Act.
Counsel relied on the cases of Nyame vs. FRN (2010) All FWLR (pt. 527) 618; Ekpo vs. Calabar LGC. (1993) 3 NWLR (pt. 281) 324, among others to support his submissions.
The AGF filed his counter affidavit dated May 7, 2012 in opposition to the Originating Summons. The facts relied upon by the AGF are same as relied upon by the CBN in its affidavit.
In his address attached to the counter affidavit on behalf of the AGF, Mr. H. Z. Mohammed submitted a single issue for determination, namely: Whether the CBN’s refusal to provide the information sought for by the Plaintiff is wrong and whether the Court can compel the CBN to furnish the information, the same having been exempted under Section 14(1)(b) of the FOI Act, 2011.
In his argument in support of this issue, Mr. Mohammed relied on section 14(1)(b) to state that the information Mr. Uzoegwu requested from the CBN is personal information and therefore exempted from disclosure.
He said the refusal of the CBN to disclose the information that Mr. Uzoegwu requested regarding the salaries paid to the Governor, Deputy Governors and Directors of the CBN was not wrong in view of section 12(1) (a) of the Act.
He also relied on section 12(3) which provides that a public institution may deny information that could reasonably be expected to facilitate the commission of an offence.
Counsel argued that the offices of the Governor, Deputy Governors and Directors of the CBN, being sensitive offices, the disclosure of their salaries and allowances “could cause or spark violence due to wrong interpretation and could endanger the lives and properties of the said officials.”
Mr. Mohammed urged the Court not to interpret Sections 2, 5, and 21 of the Act relied upon by the Plaintiff in isolation, but that the entire Act should be read as a whole to achieve the purpose it is meant to achieve. He relied on the same cases as did the counsel to the CBN in his address summarized above.
He held that “Having not specifically exempted the salaries and allowances of
public officers in respect of their employment as such from disclosure,
the Legislature did not intend that such information is personal information.”
Mr. Uzoegwu filed a reply on points of law to the address of the counsel to the CBN. His reply was dated March 28, 2012. In the reply, Mr. Uzoegwu relied on the definition of personal information exempted from disclosure as defined by the Act to mean “any official information held about an identifiable person, but does not include information that bears on the public duties of public employees and officials”
He submitted upon this definition that the information he requested is in respect of the offices of the Governor, Deputy Governors and Directors of the CBN and not to them as identifiable persons.
In reply to the CBN’s claim that the disclosure of the salary and allowances of the officers requested may facilitate the commission of an offence, Mr. Uzoegwu said this is a mere presumption because there is no substantial ground to believe that such disclosure would render them susceptible to attack or facilitate the commission of a crime.
Finally, Mr. Uzoegwu relied on the provisions of section 3(3)(j) and (4) of the Act which provides that public institution shall publish and ensure the wide dissemination of the information relating to documents containing names, salaries, titles and dates of employment of all employees and officers of the institution.
He urged the Court to discountenance the argument of the CBN and grant the reliefs sought by him.
Justice Aliyu noted that the facts are simple and not contested at all and that the suit is simply the interpretation and the application of the provisions of the FOI Act, 2011. He said it had been stated in a plethora of superior judicial authorities and indeed recently by the Supreme Court that, it is settled law that the object of interpreting a statute or the constitution is to discover the intention of the Legislature, which intention is usually deduced from the language used in the statute. He cited the case of Abubakar vs. INEC (2012) 49 NSCQR 788 at 821G-H.
Justice Aliyu said from the affidavits of the CBN,the reason for the denial of the information to the plaintiff is based on section 15(1) of the Act. This is contained in the issue for determination submitted by the CBN’s counsel in his address. The CBN said that section 15(1) when read together with section 13(3) of the Act will show that the denial of information plaintiff requested is justified.
But Justice Aliyu pointed out that Section 13 of the Act has no subsection at all and that that section provides for the training of officials on the right of information. He said it provides that “Every government or public institution must ensure the provision of appropriate training for its officials on the public’s right to access to information or records held by the government or public institutions, as provided for in this Act.
Justice Aliyu said “Perhaps the reason why the Legislature did not exempt
salaries and allowances from disclosure is because such salaries and allowance
are paid from the public funds through budget allocations.
It is not logical to say that the payments of public officers from
the public funds for their services to the public is personal information.
It should not be and the Act under consideration did not exempt the information
from disclosure and I so hold.”
Saying that “This is the only provisions under section 13 of the Act,” Justice Aliyu added: “I don’t know from where the counsel of the 1st Defendant, Mr. Abdulaziz Ibrahim found the provisions of Section 13 (3) of the Freedom of Information Act, 2011″ which he quoted at page 3 paragraph 3.8 of his address. In fact, even the section 15 (1)(ii) of the Act which counsel quoted on the same page does not exist. Section 15 of the Act has subsections (1) (a) to (c) and then sub sections (2) to (4).”
Quoting the provisions of the Act, Justice Aliyu noted that Section 15 (1) of the Act, which the CBN relied upon, deals with information relating to trade and commercial secrets, including contracts which may be entered into by public nstitutions, including the CBN.
Justice Aliyu said the salaries of the Governor of the CBN and the Deputy Governors and Directors of the Bank “cannot, by any stretch of imagination, be trade secrets contemplated by the section 15(1) quoted above.”
He said, however, from paragraphs 3 (a) to (j) of the counter-affidavit filed on behalf of the CBN, the denial of the information the Plaintiff requested from the CBN is on the basis that the information is personal information communicated to them upon their employment.
Quoting the relevant portions, Paragraphs 3 (a) to (j), of the counter affidavit of Okpetu Samson, which he swore to on behalf of the CBN, Justice Aliyu said from the averments, particularly paragraph 3(c) and (d), the claim of the CBNis that the salaries and allowances of the officers are personal information which has been exempted from disclosure by the Act.
Justice Aliyu observed that it is Section 14 of the Act that provides for exemption of personal information of officers of public institutions and quotes the provisions of the Section.
He noted that there is no mention of salaries or allowances of officers of public institution in the list of items that are exempted as personal information.
Observing that it was contended by the Counsel of the CBN that the list of exempted personal information in Section 14 is not exhaustive because the word “include” is used by the Legislature, Justice Aliyu said “I must say I am not carried along by this argument for the simple reason that the salaries and allowances of officers are such intrinsic part of their public employment or appointment that if the legislature intended to exempt them as personal information to the officers, they will have stated so clearly.”
Justice Aliyu said by the provision, “the Legislature clearly intended that the public
interest is placed above all else including the personal interest of the individual.
Where the interest of the public is in clash with the individual interest, in
deserving cases, the collective interest must be held paramount.”
Justice Aliyu said: “So intrinsic are the salaries and allowances of officers of public institutions to their employment that there is a statutory body set to determine such salaries and allowances. This is the National Salaries, Income and Wages Commission established by the National Salaries, Income and Wages Commission Act, CAP. N72 Laws of Federation of Nigeria, 2004.”
He held that “Having not specifically exempted the salaries and allowances of public officers in respect of their employment as such from disclosure, the Legislature did not intend that such information is personal information.”
Restating that one of the cardinal principles of interpretation of statutes is to discover the intention of the Legislature from the words used in that statute, and read the statute as a whole so as not to defeat its intent, Justice Aliyu stressed that “The intention of Legislature in promulgating the Freedom of Information Act, 2011, as stated on its title, is to make public records and information freely available.”
Justice Aliyu said by the provision, “the Legislature clearly intended that the public
interest is placed above all else including the personal interest of the individual.
Where the interest of the public is in clash with the individual interest,
in deserving cases, the collective interest must be held paramount.”
He noted that the first section of the Act established the right of access to public information in the custody of public officials, adding that “Another very important basic principle of interpretation of statutes is that the Legislature will not be presumed to have given a right in one section and then take away the same right in another.” He cited the case of A. G. Federation vs. Abubakar (2007) 10 NWLR (pt. 1041) 1 at 93, in aid.
Justice Aliyu said “Perhaps the reason why the Legislature did not exempt the salaries and allowances from disclosure is because such salaries and allowances are paid from the public funds through budget allocations. It is not logical to say that the payments of public officers from the public funds for their services to the public is personal information. It should not be and the Act under consideration did not exempt the information from disclosure and I so hold.
On the claim by the Defendants that the disclosure of the information about the salaries and allowances of the Governor, Deputy Governors and Directors of the CBN will facilitate the commission of an offence and expose the officers to harm and injury, Justice Aliyu said there was nothing shown by the CBN to support the contention.
Justice Aliyu noted that “Every public official of public institutions as defined in the Act receives remuneration in form of monthly salaries and allowances, otherwise it will be forced or compulsory labour in contravention of Section 34 (1) (c) of the Nigeria’s Constitution, 1999 as amended. In that circumstance, the argument that disclosure of the salary of public officials will expose them to criminal attack is rather at large. I have to agree with the plaintiff that this claim is not substantiated by the defendant. It is discountenanced.”
He went further to state that “It must be noted that even personal information protected by section 14 can still be disclosed in the circumstances stated in section 14(2).
Justice Aliyu said by the provision, “the Legislature clearly intended that the public interest is placed above all else including the personal interest of the individuals. Where the interest of the public is in clash with the individual interest, in deserving cases, the collective interest must be held paramount.”
He said: “As judges, our primary duty is to interpret the law as it is intended and
we have no jurisdiction to go in search of an interpretation which is convenient to
the parties or one party. That will mean re-writing the statute to suit one party or
another which is not our duty.”
He said: “As judges, our primary duty is to interpret the law as it is intended and we have no jurisdiction to go in search of an interpretation which is convenient to the parties or one party. That will mean re-writing the statute to suit one party or another which is not our duty.” He cited in support the cases of Araka vs. Egbue (2003) 7 S.C. 75 at 85 lines 15-40 and lnakoju vs. Adeleke (2007) All FWLR (pt. 353) 3 at 93 para F.
Justice Aliyu therefore held that the CBN’s denial of the information requested by Mr. Uzoegwu on the monthly salaries and allowances of the Governor, Deputy Governors and the Directors of CBN is not justified by the Freedom of Information Act.
He ordered the CBN, pursuant to section 25(1)(c) of the FOI Act, to furnish Mr. Uzoegwu with the information regarding the monthly salaries of the Governor, the Deputy Governors and the Directors of the CBN within 14 days, subject only to payment of fees for the certification of records of the information if necessary.
BALKISU BELLO ALIYU
JUDGE
APPEARANCES:
Uzoegwu F.O. Esq, Appearing as Plaintiff
A. I. Abbas Esq, for the First Defendant
Mrs. Adepejo Balogun-Etti, for the Second Defendant
