Freedom of Information Law Report (4)

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By mraadmin May 12, 2013 11:47

Public Institutions Have No Power under the Law to Keep Mute when an FOI Request is Made to Them, Says Judge

In the Federal High Court

Holden at Lagos, Nigeria

On Friday the 22nd Day of February, 2013

Before the Honourable Justice M.B. Idris, Judge

Suit No. FHC/L/CS/514/2012

Between:

Mr. Boniface Okezie                                                       – PLAINTIFF

And

  1. Attorney-General of the Federation
  2. The Economic and Financial Crimes Commission             – RESPONDENTS

Summary of the Facts

The Originating Summons dated May 15, 2012 and filed on the same day, passed a question for determination and stated the reliefs sought against the Defendants are as follows:

Issue for Determination

Whether having regard to the provisions of the Freedom of Information  Act, 2011 the Defendant is justified in withholding from (or failing to release to) the Plaintiff the information requested in the Plaintiff’s letter of January 26, 2012 or any part thereof.

Reliefs Sought

  1. AN ORDER that the 1st Defendant disclose to the Plaintiff  the following information:

a.         The list of criminal prosecutions being carried out by the Ministry of Justice through private lawyers.

b.         What is the total amount spent by the Ministry of Justice in the  course of the said prosecutions and what is the source of funding for such?

c.         How many private lawyers are currently being retained by the Ministry of Justice for the prosecution of crimes and what are the details of the fees to be paid and that have actually been paid to these lawyers on case by case basis.

d.         How much does the Ministry of Justice pay to its own legal officer (prosecutors)? How much did the Ministry of Justice spend in training and equipping its legal officers in the past one year?

e.         What is the reason for abandoning the legal officers in the Ministry of Justice in favour of private lawyers to prosecute offenders.

       2.         AN ORDER that the 2nd Defendant disclose to the Plaintiff the following:

a.         The list of criminal prosecutions being carried out by the Economic and Financial Crime Commission (EFCC) through private lawyers.

b.         The total amount spent by EFCC in the course of the said  prosecutions.

c.         The source of funding all these matters in court by the EFCC.

d.         How much is to be paid and how much has been paid for the prosecution of ex-bank chiefs and what is the source of the funding for such.

e.         How many lawyers are retained by EFCC in the prosecution of ex- bank chiefs and how much is to be paid and/or has been paid to each of them.

f.          How much does the EFCC pay its own legal officers (prosecutors), what is their number and what are the details of the positions and qualifications they hold.

g.         What is the reason for abandoning EFCC legal officers in favour of private lawyers for criminal prosecutions.

h.         How much has the EFCC spent in training and equipping its legal  officers in the past one year.

i.          What is the total sum paid to the firm of Olaniwun Ajayi LP in respect of the prosecution of Cecilia Ibru, former Managing Director of Ocean Bank Plc and how much of this sum was in the form of Commissions on the properties recovered from her.

 j.          The total case and value of properties recovered from Cecilia Ibru.

 k.         The whereabouts of the money and properties recovered.

I.           What part of this cash and properties has been returned to Oceanic Bank and/or its shareholders.

m.         What is the total amount spent by the Ministry of Justice in the course of the said prosecutions and what is the source of funding for such?

       3.         Such further or other relief/s as the court may deem fit to make in the circumstances of the suit.

 The application was supported by an affidavit and a written address. In the supporting affidavit, it was declared as follows:-

EFCC Chairman, Mr. Ibrahim Lamorde

AFFIDAVIT IN SUPPORT

I, TOCHUKWU UZOKWE male, Christian, Nigeria Citizen of Reinsurance House, 46 Marina Lagos State, do hereby make oath and states as follows:-

1.         That I am Counsel in the Chambers of Indemnity Partners and do have the authority of the chambers and the Plaintiff to depose to this affidavit.

2.         That on the instruction of the Plaintiff and on his behalf the chambers wrote to each of the Defendants a letter dated 26th January 2012 requesting the following information:-

I.          From the 1st Defendant

a.         The list of criminal prosecutions being carried out by the Ministry of Justice through private lawyers.

b.         What is the total amount spent by the Ministry of Justice in the course of the said prosecutions and what is the   source of funding for such?

c.         How many private lawyers are currently being retained by the Ministry of Justice for the prosecution of crimes and what are the details of the fees to be paid and what have actually been paid to these lawyers on case by case basis.

d.         How much does the Ministry of Justice pay to its own legal officers (prosecutors)?

e.         How much did the Ministry of Justice spend in training and equipping its legal officers in the past one year.

f.          What is the reason for abandoning the legal officers in the Ministry of Justice  in favour of private lawyers to prosecute offenders.

II.        From the 2nd Defendant

a.         The list of criminal prosecutions being carried out by the EFCC through private lawyers.

b.         The total amount spent by EFCC in the course of the said    prosecutions.

c.         The source of funding all these matters in court by the EFCC

d.         How much is to be paid and how much has been paid for the prosecution of ex-bank chiefs and what is the source of the funding for such.

e.         How many lawyers are retained by EFCC in the prosecution of ex- bank chiefs and how much is to be paid and/or has been paid to each of them.

f.          How much does the EFCC pay its own legal officers (prosecutors), what is be their number and what are the details of the positions and  qualification they hold.

g.         What is the reason for abandoning EFCC legal officers in favour of private lawyers for criminal prosecutions.

h.         How much has the EFCC spend in training and equipping its legal officers in the past one year.

i.          What is the total sum paid to the firm of Olaniwun Ajayi LP in rest of  the prosecution of Cecilia Ibru, former Managing Director of Oceanic   Bank Plc and how much of this sum was in the form of Commissions on the properties recovered from her.

j.          The total cash and value of properties recovered from Cecilia Ibru.

k.         The whereabouts of the money and properties recovered.

I.          What part of this cash and properties has been returned to Oceanic Bank/or its shareholders. What is the total amount spent by the Ministry of Justice in the course of the said prosecutions and what is the source of funding of such?

The judge observed that “A basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not on the person asking for it.  The person making the request does not usually have to give an explanation for their actions, but if the information is not disclosed a valid reason has to be given.”

3.         That both Defendants acknowledged receipt of their respective letters on February 3, 2012.  A copy of the letter to the 1st Defendant showing the acknowledgment receipt is attached and marked Exhibit 1 while a copy of the letter to the 2nd Defendant also showing the acknowledgement of receipt attached and marked Exhibit 2.

4.         That each of the Defendants is a public body, agency or institution of Government created by law.

5.         The information requested from each Defendant is within its custody.

6.         That of each Defendant has neglected, refused and/or failed to make available the requested information to the Plaintiff.

7.         That I make this affidavit in good faith believing same to be true and correct and in accordance with the oaths Law of Lagos State.

The 1st Defendant filed a Counter Affidavit and a written address in opposition. In the said counter affidavit, the following declarations were made:-

1st DEFENDANTS COUNTER AFFIDAVIT IN DEFENCE TO THE PLAINTIFF ORIGINATING SUMMONS DATED 15TH MAY 2013

I, Friday Atu, Male, Christian, Nigerian, Civil Servant of the Civil Litigation Department Ministry of Justice Abuja, do hereby make an oath and state as follows:

  1. That I am a litigation clerk in the Civil Litigation Department of Federal Ministry of Justice and by the virtue of my position I am conversant with the facts of this case.
  2. That I have the consent and authority of the Honourable Attorney General of  the Federation the (1st Defendant) to depose to this affidavit.
  3. That the facts deposed to herein are within my personal knowledge except as otherwise stated.
  4. That I have been informed by Mbam P.C. Esq, Counsel handling this matter in his office at the Federal Ministry of Justice on the 4th day of July 2012 during official hours 2pm to 3pm and I verily believe him as follows:

(i)         That the Plaintiff seeks access to information under the Freedom of Information Act 2011 relating to the following:

  1. The list of Criminal Prosecutions being carried out by the Ministry of Justice through private Lawyers.
  2. The total amount spent by the Ministry of Justice in the course of the said prosecutions and what is the source of funding for such.
  3. The number of private Lawyers currently being retained by the Ministry of Justice for the prosecution of crime and what are the details of the fees to be paid and that have actually been paid to these Lawyers on case by case basis.
  4. The amount the Ministry of Justice pay its own legal officers (Prosecutors)?  The amount the Ministry of Justice spends in training and equipping its legal officers in the past one year.
  5. The reason for abandoning the legal officers in the Ministry of   Justice in favour of private Lawyers to prosecute offenders.

(ii)        That the Ministry received the Plaintiff letter dated 26 January 2012.

(iii)       The 1st Defendant denies paragraph 6 of the Plaintiff’s Affidavit.

(iv)       That the request by the Plaintiff is being processed, and due to the classified nature of the request, the Ministry needs to collate the data relating to financial issues from the Finance Department and the other department handling training matters.

(v)        That the same will be forwarded to the Plaintiff on conclusion of the exercise.

That I depose to this affidavit solemnly and conscientiously believing same to be true, correct and in accordance with the Oath Act 2004.”

The judge said there was no doubt that the Freedom of Information Act is intended to act as a catalyst for change in the way public authorities approach and manage their records.

The 2nd Defendant did not file a Counter Affidavit in opposition, but filed a Notice of Preliminary Objection which was struck out on the 20th day of December 2012 for want of diligent prosecution.

At the hearing, Counsel for the Plaintiff and the 2nd Defendant addressed the Court.  Counsel for the Plaintiff relied on the processes filed and adopted his written address.

In the address it was argued that the Plaintiff had the right to request information from the Defendants under the Freedom of Information Act 2011 (FOI Act).  That the Defendants had neglected, refused and/or failed to release the information to the Plaintiff and had declined to give reasons.  The court was urged to uphold the Originating Summons and grant the mandatory orders requesting by the Plaintiff.

In the 1st Defendant’s written address, it was argued that the Defendant did not deliberately refuse to furnish the Plaintiff with the information he requested, but that the 1st Defendant was working on the request and would furnish the information.  The Court was urged to grant the 1st Defendant more time to be able to do collation of the information and to furnish same at the end of the exercise.

In the 2nd Defendant’s counsel oral submission, it was argued that the cause of action arose in Abuja, and that the head office of the EFCC was in Abuja, and that for this reason, this Court lacked territorial jurisdiction to entertain this action.

It was also argued that the Plaintiff had no locus standi to institute this action, that the nature of the information would infringe on state security, and the right of the lawyers in relation to client and solicitor relationship.

It was also contended that the letter to the 2nd Defendant was not certified and was therefore inadmissible.  That the action was statute barred under Section 20 of the Freedom of Information Act.

The judge stated that “unlike in criminal cases where the issue of jurisdiction or place for the institution of suits is determined territorially, it is not the same when an action is a civil action.  In civil suit, the provisions of the Rules of Court apply.  In the circumstances, the decision of the Court of Appeal in Ibori vs FRN (2009) 3 NWLR (PT. 1128) 283 is inapplicable to the facts and circumstances of this case.”

The Court was urged to dismiss the case, and reliance was placed on the following authorities: Ibori vs FRN (2009) 3 NWLR (PT. 1128) 283; The Obros Auto Link Ltd vs BIAE Co Ltd (2013) 2 NWLR (PT. 1338) 337; Gani vs IGP (2002) 7 NWLR (PT. 665) 481; Osahon vs IGP (2006) 2 SC (PT. 11) 1; Section 45 (1) of the Constitution of the Federal Republic of Nigeria, 1999; the Federal High Court (Civil Procedure) Rules; and the Freedom of Information Act.

In response, Counsel for the Plaintiff argued that the Court was functus officio in respect of whether or not the suit was statute barred having granted extension of time, and that the Defendant carried on substantial business in Lagos.

It was argued that the Applicant need not show interest to have locus standi, and that the letter attached to the affidavit was a private document and therefore admissible in evidence.

The Court was urged to grant the Plaintiff’s reliefs.

The learned trial judge, Justice M.B. Idris, said he had read the processes filed and carefully considered the submissions made in the written addresses filed.  He said the only issue that arises for determination is whether having regard to the provisions of the Freedom of Information Act 2011, the Defendant were justified in withholding from (or failing to release to) the Plaintiff the information requested in the Plaintiff’s letter of 26 January 2012, or any part thereof.

The judge noted that the 1st Defendant does not appear to me to be contesting the case on the merits and that the 1st Defendant appeared to be willing to provide the information requested for, but has pleaded for time to be able to collate the requested information and furnish same to the Plaintiff.

He said before delving into the jurisdictional issues raised by Counsel for the 2nd Defendant, he would trace the historical development of what the nation has as the Freedom of Information Act.

The judge noted that historically, freedom of information legislation comprised laws that guarantee access by the general public to data held by its government and that it established what is known as a “right to know” legal process by which requests may be made for government-held information, to be received freely or at minimal cost, having standard exceptions.

He said over 90 countries around the world have implemented some form of legislation guaranteeing the right of access to information with  Sweden’s Freedom of the Press Act 1766 being the oldest of such legislation in the world.

The judge observed that “A basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not on the person asking for it.  The person making the request does not usually have to give an explanation for their actions, but if the information is not disclosed a valid reason has to be given.”

He observed that “Under the FOI Act, any individual is able to make a request to a public institution for information.  An Applicant is entitled to be informed in writing as to whether the information is held and have the information communicated to them.  If any of the information is refused, the organisation must provide the Applicant with a Notice which clearly states the reasons why it is withholding the information that has been requested.”

He recalled that in Nigeria, the House of Representatives passed the bill on the 16th day of February, 2011 and the Senate on the 16th day of March 2011 while the harmonized version of the bill was signed into law by the President on the 28th day of May 2011.

The judge stated the highlights of the law as follows:

  • It guarantees the right of access to information held by public institutions, irrespective of the form in which it is kept and is applicable to private institutions where they utilize public funds, perform public functions or provide public services;
  • It requires all institutions to proactively disclose basic information about their structure and processes and mandates them to build the capacity of their staff to effectively implement and comply with the provisions of the Act;
  • It provides protection for whistleblowers;
  • It makes adequate provision for the information needs of illiterate and disabled Applicants;
  • It recognizes a range of legitimate exemptions and limitations to the public’s right to know, but it makes some of these exemptions subject to a public interest test that, in deserving cases, may override such exemptions;
  • It creates reporting obligations on compliance with the law for all institutions affected by it.  These reports are to be provided annually to the Federal Attorney General’s Office, which will in turn make them available to both the National Assembly and the public;
  • It requires the Federal Attorney-General to oversee the effective implementation of the Act and report on execution of this duty to Parliament annually.

The judge said there was no doubt that the Freedom of Information Act is intended to act as a catalyst for change in the way public authorities approach and manage their records.

 He observed that “Under the FOI Act, any individual is able to make a request to a public institution for information.  An Applicant is entitled to be informed in writing as to whether the information is held and have the information communicated to them.  If any of the information is refused, the organisation must provide the Applicant with a Notice which clearly states the reasons why it is withholding the information that has been requested.”

He noted that an Applicant will not able to get all the information he wants as the Act requires that there will be valid reasons why some kinds of information may be withheld, such as if the release would prejudice National Security or commercial interests.  He referred generally to Sections 1, 12, 14, 15, 16, 17, 19, 20 and 21 of the FOI Act.

The judge stated that public institutions are expected to have an information communicated to an Applicant promptly but not later than seven days after it has received a request and that where a request is refused, the public institution shall give notice to the Applicant and should state the exemption providing the basis for refusal within the FOI Act and why it applies to the information requested.  He added that this notice must also be communicated to the Applicant within seven days.

The judge also noted that there are two general categories of exemption under the FOI Act, namely the absolute exemptions which are those where there is no duty to consider the public interest; and the  qualified exemptions, which are those where, even though an exemption exists, an authority has a duty to consider whether disclosure is required in the public interest. 

The judge also noted that there are two general categories of exemption under the FOI Act, namely the absolute exemptions which are those where there is no duty to consider the public interest; and the  qualified exemptions, which are those where, even though an exemption exists, an authority has a duty to consider whether disclosure is required in the public interest.

Explaining further, he said “the public interest test requires an authority to determine whether the public interest in withholding the information outweighs the public interest in disclosing it by considering the circumstances of each particular case in the light of the potential exemption which might be claimed.”  He held that “the balance lies in favour of disclosure.”

On the issue of whether the Plaintiff has  locus Standi to institute the action, his Lordship noted that Locus standi devolves the right of a party to bring an action or to be heard in court, adding that “ Citizen derive locus standi from the Constitution, the statutes, customary law or voluntary arrangement in an organisation.” He cited Odeneye vs Efunuga (1990) 7 NWLR (PT. 164) 618.

He said: “Under the Freedom of Information Act, the Plaintiff is conferred with the right to institute this proceeding by the provision of Section 2 and 3 of the Act.  The Plaintiff needs not demonstrate any specific interest in the information being applied for.  The Plaintiff is entitled as a Citizen of this great country to institute this proceeding to compel the Defendants herein to comply with the provisions of the Freedom of Information Act.”

He held further that “Interestingly, a tax payer has locus standi to approach the Court to enforce the law and ensure that his tax money is utilized by the Government frugally or prudently.”  He cited Fawehinmi vs President, FRN (2007) 14 NWLR (PT. 1054) 275 and held that “the Plaintiff has the necessary standing to sue the Defendants herein.”

The judge noted that on the 20th day of December 2012, the Court granted to the Plaintiff extension of time within which to bring the action, and deemed the action already filed as being properly brought before the Court.

He said the Court exercised its powers under the Rules of Court and its inherent jurisdiction in so doing and that the action could therefore not be said to be statute barred.  See cited Kolawole vs Alberto (2002) FWLR (PT. 130) 176.

Explaining further, he said “the public interest test requires an authority to determine whether the public interest in withholding the information outweighs the public interest in disclosing it by considering the circumstances of each particular case in the light of the potential exemption which might be claimed.”

The judge observed that 2nd Defendant relied on the provision of Order 2 Rule 1 (9) to argue that the Court has no territorial jurisdiction to entertain this suit.  The judge quoted the provisions of Order 2 Rule 1 (9) provides as follows:-

Order 2 Rule 1:

“subject to the provisions of any law with respect to transfer of suits or to specific subject matter, the place for the trial of any suit or matter shall be provided in this order.”

Order 2 Rule 1 (9)

“All other suits shall be commenced and determined in the Judicial Division in which the Defendant resides or carries on substantial part of his business or in which the cause of action arose”

The judge stated that “unlike in criminal cases where the issue of jurisdiction or place for the institution of suits is determined territorially, it is not the same when an action is a civil action.  In civil suit, the provisions of the Rules of Court apply.  In the circumstances, the decision of the Court of Appeal in Ibori vs FRN (2009) 3 NWLR (PT. 1128) 283 is inapplicable to the facts and circumstances of this case.”

He held that the provision of Order 2 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 is not mandatory, but directory and cited Ogiegie vs Obiyan (1997) 10 NWLR (PT. 524) 179.

The judge said: “It is a known fact that the 2nd Defendant carries on substantial part of its business here in Lagos as is evident even from the address of Counsel for the Defendant who is its member staff.  It is trite that there is only one Federal High Court in Nigeria with different Judicial Division for the purpose of administrative convenience.”

Citing Section 249 of the 1999 Constitution, as amended, and Section 19 of the Federal High Court Act 1973, as amended, the judge held that the Federal High Court, Lagos Division, has jurisdiction to entertain the matter.

Mr. Mohammed Adoke, Attorney General of the Federation

He said territorially, the jurisdiction of the Federal High Court is nationwide and that it is not confined to the territory of any State in the Federation.  He referred to section 19 of the Federal High Court Act and section 250 of the 1999 Constitution.

The judge explained that historically, the Federal High Court was first established as the Federal Revenue Court by the Federal Revenue Court Decree 1973 (No. 13 of 1973) and came into existence on 13th  April, 1973.  He said the Court started with a President and four judges and that the establishment of the Court was in response to the need for a High Court with competence over Federal Revenue matters, as is customary with Federal System of Government.

He said: “Under the Freedom of Information Act, the Plaintiff is conferred with the right to institute this proceeding by the provision of Section 2 and 3 of the Act.  The Plaintiff needs not demonstrate any specific interest in the information being applied for.  The Plaintiff is entitled as a Citizen of this great country to institute this proceeding to compel the Defendants herein to comply with the provisions of the Freedom of Information Act.”

He noted that on 1st October, 1979 the Court was renamed Federal High Court by section 230(2) of the 1979 Constitution and that the Federal Revenue Court Decree was later adapted as the Federal High Court Act and retained in the body of Nigerian statutes as currently contained in the Laws of the Federation of Nigeria, 2004.

The judge said the scope of the Court’s jurisdiction was a subject matter of controversy from inception and that there were laudable attempts to resolve the issue judicially in landmark cases like Bronik Motors Ltd vs Pan Atlantic Shipping and Transport Agencies Ltd (1987) 1 NWLR (PART 49) 212.

He added that it however took the promulgation of the Federal High Court (Amendment) Decree No. 60 of 1991 to finally stem the tide over the issue as Section 2 of the Decree amended section 7 of the Federal High Court Act by expanding and making exclusive jurisdiction conferred on the Court under that section.  He said this provision later assumed constitutional importance when the Constitution (Suspension and Modification) Decree 1993 (No. 107 of 1993) incorporated the Amendment as part of the 1979 Constitution and that at present, the provision is contained in section 251 of the 1999 Constitution, adding that “The Federal High Court has exclusive original jurisdiction over the subject matter listed in that section.”

He said “In the face of the enormous jurisdiction vested in the Court, some writers argued that the Court manage the manpower issue, and they advocated the need to increase the number of personnel in the court and create more judicial divisions to allow the common man reasonable access to the Courts.”

The cited the opinion of the learned authors of the book Introduction to Civil Procedure (Third Edition), by Ernest Ojukwu and C.N. Ojukwu who wrote on pages 59 to 60 of the book as follows:-

“Without reviewing the substantive defects, it must be stated that the Federal High Court as presently constituted cannot manage manpower wise in the face of the enormous jurisdiction granted to it.  There are about thirty serving judges of the Court in very few judicial divisions; the result of this is that the few available Courts would definitely be overworked when the civil and criminal prosecutions are taken under the court’s wide jurisdiction.

The consequence of this over-crowding of cases will fall on the citizen.  It may also be difficult for litigants to seek a redress appropriately considering the present location of the Courts on zones basis.

Before the 1999 Constitution came into force many people called for the amelioration of this problem by the introduction of concurrent jurisdiction between the State High Courts and the Federal High Court on the matters specifically reserved for the Federal High Court.  Mohammed, J.C.A. in All V. C.B.N associated himself with this call when he said: “I entirely share the view of the learned Senior Counsel for the appellant that this amendment is likely to have adverse effects on the smooth administration of justice in the Country, while the amendment is likely to be oppressive on the part of some litigants, particularly the servants or employees of the Federal Government and its agencies, like the appellant in some States of the Federation that do not have a Federal High Court, it also most certainly would result in the increase of burden of the cost of litigation.  This is because it would compel those litigants in the State that do not have a Federal High Court to travel to other States that have such Courts in search of justice, no doubt at greater expense, thereby jeopardizing the much publicized government policy of taking justice nearer to the people.  Therefore, having regard to the undoubted presence of the Federal Government and its agencies in every State of the Federation and in some cases in the remotest part of such States, the need to have a second look at this amendment to section 230 of the 1979 Constitution by Decree No. 107 of 1993 with a view to conferring concurrent jurisdiction on the State High Courts and the Federal High Courts in matters specified therein cannot be over emphasized.’

Unfortunately, this call was not heeded and the 1999 Constitution went ahead to re-affirm the existing position under Decree 107 of 1993.

The judge stressed that “The Freedom of Information Act is meant to enhance and promote democracy, transparency, justice and development.  It is designed to change how government works, because we have all resolved that it will no longer be business as usual.  Therefore, all public institutions must ensure that they prepare themselves for the effective implementation of the Freedom of Information Act.”

Since constitutional amendment is very rigorous and one unlikely in the nearest future, there is, therefore the need to increase the number of personnel in the Federal High Court and create more judicial divisions.  For now it is suggested that at least two Judges be appointed to operate in each state of the Federation.  Only by allowing the common man reasonable access to the Courts shall we be fulfilling the tenets of justice.”

Justice Idris noted that judicial divisions of the Court were therefore created in several States of the Federation in order to allow everyone access to the Courts in aid of justice.  But he held that the creation of these divisions did not alter section 19 of the Federal High Court Act or section 250 of the Constitution.

He restated that “There exists only one Federal High Court in the Federal Republic of Nigeria.  For this reason, the Federal High Court holding in Lagos, Benin, or any other State within the Federation has a single jurisdiction.”

He stated that in the case of Chief Alhaji Moshood Kashimawo Olawale Abiola vs FRN (1995) 3 NWLR (PT. 382) 201, the Court held as follows:

“It is therefore not in dispute that the Federal High Court whose jurisdiction by virtue of section 19(1) Federal High Court Act extends throughout the Federation …”

Justice Idris said he had carefully perused exhibit 2 attached to the affidavit in support of the action, which is the acknowledged copy of the Plaintiff’s letter to the 2nd Defendant dated 26th January, 2012.

He stated that the document is a private document and needs no certification, and cited in support Sections 102, 103 and 104 of the Nigerian Evidence Act Cap E14 2011.

He said: “A document purporting to be a public document under the Act must strictly form or constitute the acts or records of Government, the Executive, Legislature and Judiciary, its agencies, parastatals, and or its officers in relation to their functions.  The document annexed to the affidavit in support cannot therefore be described as a public document.” He cited Bisichi Tin Co. Ltd vs. COP (1963) ALL NLR 476;  Anatogu vs Iweka II (1995) 8 NWLR (PT. 415) 547; Oneanwusi vs Okpukpara (1953) 14 WACA 311; and Ayeni vs Dada (1978) 3 SC 35.

The judge said that whether there exists a confidentiality agreement between the 2nd Defendant and third parties in respect of some information is an issue of fact and that the defence of client/lawyer relationship should have been put in affidavit form by the 2nd Defendan, adding that “The nature of the relationship should have been clearly stated in affidavit form to enable the Court decide whether the defence will avail the 2nd Defendant in the circumstances of this case.”

He said it is clear that the 2nd Defendant is entitled to protect records or information compiled for law enforcement purposes the release of which could reasonably be expected to interfere with law enforcement proceedings, or deprive a person of a right to fair trial or an impartial adjudication, or constitute an unwarranted invasion of the personal privacy of a third party, or disclose the identity of confidential sources, or disclose techniques and procedure for law enforcement investigations or prosecutions, or endanger the life or physical safety of an individual.

He said further that examples of information covered under the above include records pertaining to an open law enforcement investigation, information that could potentially contaminate a court proceeding, identifying information of individuals, associated with a law enforcement proceeding i.e. law enforcement officers names, witnesses names, identifying information of confidential informants, law enforcement manuals and watch lists, and identifying information of law enforcement officers.

 

Justice Idris said: “the judiciary has no choice but to enforce compliance with the Freedom of Information Act.  The Judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law.  What is done officially must be done in accordance with the law.  Obedience to the rule of law by all citizens but more particularly by those who publicly took oath of office to protect and preserve the Constitution is a desideratum to good governance and respect for the rule of law.  In a constitutional democratic society, like ours, this is meant to be the norm.”

The judge said the 2nd Defendant is also entitled to protect information that is properly classified in the interest of national security, adding that examples of these kind of information are information pertaining to actual potential or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems by either physical or computer based attack or other similar conduct that violates local laws, or threatens public health or safety.

The judge expressed the view that some of the information requested by the Plaintiff from the 2nd Defendant threaten the national security of the State.

But he said the 2nd Defendant had not shown that it is protecting trade secrets and ceremonial or financial information which could harm the competitive posture or business interests of a company, which information is not customarily released to the public entity from whom the information is obtained.

He said further that the 2nd Defendant had also not shown that it is protecting the integrity of the deliberative or policy- making processes within the agency by exempting from mandatory disclosure opinion, conclusions and recommendations included within inter-agency or intra-agency memoranda or letters.

The judge also noted that the 2nd Defendant had not also shown that it is trying to protect information that would constitute a clearly unwarranted invasion of personal privacy of individuals in the agency.

He said: “In short, the 2nd Defendant has failed to file a counter-affidavit to explain why it failed to supply the information requested for by the Plaintiff.  In the absence of a counter affidavit, averments in an affidavit in support are generally admissible.  In other words, unchallenged or uncontradicted averments in an affidavit are admissible in law and a Court of law is entitled to give weight and value to such averment.:   He cited in support NICN vs. Pieco LTD (1986) 1 NWLR (PT. 14) 1; Azeez vs State (1986) 2 NWLR (PT. 23) 541; and Egbuna vs Egbuna (1989) 2 NWLR (PT. 106) 773.

The judge stated that “I am of the view that on receipt of the Plaintiff’s request, the Defendants had the duty to respond to same.  If they do hold the information, they must supply it within seven days from receipt of the request.  Where a decision to withhold is taken, the Defendants must inform the Plaintiff of their reasons.  In respect of these reliefs, the Defendants kept mute.  Let me state that they have no such power under the law.”

The judge stressed that “The Freedom of Information Act is meant to enhance and promote democracy, transparency, justice and development.  It is designed to change how government works, because we have all resolved that it will no longer be business as usual.  Therefore, all public institutions must ensure that they prepare themselves for the effective implementation of the Freedom of Information Act.”

Justice Idris said: “the judiciary has no choice but to enforce compliance with the Freedom of Information Act.  The Judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law.  What is done officially must be done in accordance with the law.  Obedience to the rule of law by all citizens but more particularly by those who publicly took oath of office to protect and preserve the Constitution is a desideratum to good governance and respect for the rule of law.  In a constitutional democratic society, like ours, this is meant to be the norm.”

On the issue of fees paid by the defendants to their legal practitioners, the judge referred to his earlier decision in suit No. FHC/L/CS/494/2012, in relation to the request by the same Plaintiff to the Central Bank of Nigeria pertaining to information on details of external Solicitors that prosecuted banks executives including Mrs. Cecilia Ibru.

Justice Idris stressed that “This nation has in the Freedom of Information Act a law to make government accountable, to make governance easy, to make public records and information more freely available to the governed.”

He cited his earlier decision wherein he stated that: “Section 15 (1) (b) imposes an obligation on a public institution to deny an application for information whose disclosure could reasonably be expected to interfere with the contractual or other negotiations of a third party.  It is my view that “a third party” includes a legal practitioner in the context of his professional relationship with his client.  What could severely prejudice the function of parties to a contract “could reasonably be expected to interfere with the contractual or other negotiations” of the said parties.  It is the case of the Defendant that the application of the Plaintiff related to the contractual relationship and negotiations between the Defendant and legal practitioners and other professionals engaged by the Defendant for their services to the Defendant, and that the said information was specifically on the remuneration of the said legal practitioners and other professionals for their services to the Defendant and that if disclosed it would adversely interfere with the contracts and negotiations for services between the Defendant and those professionals.  It is also the case of the Defendant that it is a momentous condition of the services by those professionals to the Defendant that their remuneration shall never be disclosed to any third party. There is nothing in the Plaintiff’s affidavits, nothing exceptional that will persuade this Court to give way to the public interest in disclosing the amount of fees paid and to be paid to the two named firms of Lawyers i.e Olaniwun Ajayi LP of The Adunola, Plot L2 401 Close, Banana Island, Ikoyi, Lagos, and the Kola Awodein & Co. of 6th Floor, UBA House, 57 Marina, Lagos where a duty of confidentiality arises out of a professional relationship and where there are contractual obligations in favour of maintaining confidence, a court will be reluctant to order disclosure, especially as in this case where there is no hard evidence of misconduct or mismanagement of public funds on the part of the Defendant.  In view of all that I have said above, reliefs 1 (a), (b), (c) and (d) on the originating summons are hereby refused, and are dismissed.”

The judge said in view of the contractual nature of the relationship between these same law firms and the Central Bank of Nigeria in the above mentioned suit, in respect of the same prosecution, that is the prosecution of Cecilia Ibru, the former Managing Director of Oceanic Bank Plc, he did not intend to give way again to the public interest in directing the disclosure of the fees paid to the firm of Olaniwun Ajayi LP in the prosecution of Cecilia Ibru.

On the 1st Defendant’s claim that the Plaintiff’s request was being processed and that, the Ministry needs to collate the data relating to financial issues from the Finance Department and the other department handling training matters, the judge said by section 2 of the FOI Act, the Defendants shall ensure that they keep records and information about their activities, operations, and businesses and must ensure the proper organisation and maintenance of all information in their custody in a manner that will facilitate public access to such information.

He said further that the Defendants are expected to publish, disseminate and make readily available to members of the public, including the Plaintiff herein, through various means including print, electronic and online sources, and at their offices documents containing substantive rules of the institutions, statements and interpretation of policy which have been adopted by them, final planning policies, recommendations, and decisions, information relating to receipt or expenditure of public or other funds of the institution, and the names, salaries, titles and data of employment of all employees and officers of their institutions, amongst others.

He held that the action should succeed in part as the Plaintiff is no doubt entitled to some of the reliefs sought in the application.

The judge said “According to Samuel Johnson, ‘the law is the last result of human wisdom acting upon human experience for the benefit of the public.’  It is the principle of public policy to protect public interest.  The Court would never sanction what is injurious to the public welfare or against public good.  He cited Total Nig Plc vs Ajayi (2004) All FWLR (PT. 218) 887; and Okonkwo vs Okague (1994) 9 NWLR (368) 301.

“By the Freedom of Information Act, we as a nation have decided to govern and stir the ship of state together and collectively.  The application of the law is no doubt a sacred trust and the method of upholding the law is a corollary of the sanctity of the law that the Courts are willing and ready to ensure.  We all insist that ours shall be a government of laws, and not of men.”

Justice Idris stressed that “This nation has in the Freedom of Information Act a law to make government accountable, to make governance easy, to make public records and information more freely available to the governed.”

He recalled Abraham Lincoln’s idiom in 1854 that “no man is good enough to govern another man without the other’s consent”, adding:  “By the Freedom of Information Act, we as a nation have decided to govern and stir the ship of state together and collectively.  The application of the law is no doubt a sacred trust and the method of upholding the law is a corollary of the sanctity of the law that the Courts are willing and ready to ensure.  We all insist that ours shall be a government of laws, and not of men.”

The judge granted reliefs 1 (a), (b), (c), (d) and (e) as prayed.  He also granted reliefs 2 (a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (l) and (m) as prayed.  He however refused relief 2 (i).

The judge directed the Defendants to provide the said information to the Plaintiff within 72 hours of the making of the order.

T. Uzokwe, holding the brief of C. Nwachukwu, for the Plaintiff

M.W. Bawa for the 2nd Defendant.

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By mraadmin May 12, 2013 11:47
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