Freedom of Information Law Report – Vol 2.

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By mraadmin February 11, 2013 13:31

A Public Institution Cannot Validly Rely on Other Grounds outside the Reasons Stated in a Denial Notice to an Applicant for Information

In the Federal High Court of Nigeria

In the Abuja Judicial Division

Holden in Abuja

On Monday, the 25th Day of June, 2012

Before the Hon. Justice Balkisu Bello Aliyu (Judge)

Suit No: FHC/ABJ./CS/805/2011

In the Matter of Judicial Review under the Freedom of Information Act, 2011.

Between:

Legal Defence & Assistant Project (Gte) LTD.      –  Applicant

And

1.     Clerk of the National Assembly of Nigeria    – Respondent

The Ruling  is in respect of a motion on notice dated November 28, 2011.  In the motion on notice, the Applicant, Legal Defence & Assistant Project (Gte) sought extension of time within which it will file an application for the review of the denial of information it requested from the Respondent, Clerk of the National Assembly of Nigeria.

In the court’s ruling delivered on March 8, 2012, time was extended within which the Applicant may file its originating motion.

The originating motion already filed on September 20, 2011 was deemed duly filed, pursuant to Section 20 of the Freedom of Information Act, 2011.

In the originating motion, the Applicant sought for two orders against the Respondent, the clerk of the National Assembly of Nigeria, namely:

  • “A DECLARATION that the Respondent’s deemed the denial of the information requested by the Applicant in its letter dated July 6, 2011 to the Respondent, on details of the salaries, emoluments and allowances paid to all Honourable Members and Distinguished Senators, both of the 6th Assembly, from June 2007 to May 2011 is an infraction of Section 1(1) of the Freedom of Information Act, 2011 and of the Applicant’s rights to such information under the said section.
  • An order  of court compelling the Respondent to disclose to the Applicant within 14 days of the order the detailed information as requested by the Applicant in its letter of July 6, 2011 to the Respondent.

The counsel to the Applicant, Mr. Chino Edmund Obiagwu, relied on the following grounds for seeking the above reliefs:

  • The Applicant has the right to the information it requested from the Respondent in its letter of July 6, 2011 (attached to the affidavit in support of the Motion as Exhibit B) by virtue of section 1(1) of the Freedom of Information Act, 2011.
  • The Respondent is deemed to have denied the application for information, having failed to respond to the Applicant’s request after the number of days stipulated under Section 4 of the Act.
  • The information sought by the Applicant from the Respondent does not fall within any of the exemptions provided under the Act.
  • The Honourable Court has the jurisdiction to order the Respondent to disclose the requested information under section 25 of the Act.

The application was supported by an affidavit and a written address of counsel to the Applicant. In support of the motion was a 10-paragraph affidavit sworn to by Chigozie Eburuo, the litigation officer in the law firm of Obiagwu & Obiagwu, the law firm representing the Applicant in the suit.

In the affidavit, the deponent said the Applicant is a registered non-governmental, non-profit organisation with over 15,000 registered members.  The objectives of the Applicant include good governance, public accountability and the rule of law in Nigeria.

As part of its work, the Applicant made an application to the Respondent dated July 6, 2011 by which it requested information on details of salaries, emolument, and allowances paid to the Honourable Members of Representatives and Distinguished Senators, both of the 6th Assembly, from June 2007 to May, 2011.

The respondent did not respond to this request even though it was delivered by courier on July 6, 2011.

The counsel to the Applicant, Mr. Chino Edmond Obiagwu, filed an address which he adopted as his arguments and submissions in support of the application.  In that address, he submitted two issues for determination as follows:

  • Whether the Respondent’s deemed  denial of the information requested by the Applicant in its letter of July 6, 2011 to the Respondent is authorized under the Freedom of Information Act, 2011;
  • If issues (1) above is decided in favor of the Plaintiff, whether having refused to provide the requested information, this Honourable Court can order the Respondent to do so.

The counsel to the Clerk of the National Assembly, Mr. J. J. Usman, entered a conditional appearance and filed a counter affidavit in opposition to the originating motion. The Respondent’s counsel gave notice of his intention to raise a preliminary objection to the competence of the application at its hearing, saying that the suit is “incurably incompetent” on four grounds, namely that:

  • The mode of commencement of the suit is alien to the Federal High Court (Civil Procedure) Rules, 2009.
  • The suit is statute barred,
  • The Honourable Court lacks the Jurisdiction to hear and entertain the suit, and
  • The suit ought to be dismissed or struck out.

In his address in support of the grounds of objection, Mr. Usman, counsel for the Respondent formulated two issues for determination as follows:

  • Whether the suit as constituted is competent.
  • Whether the suit is statute barred.

He placed reliance on several cases including C.C.B (Nig.) Vs. A.G. Anambra State (1992)10 SCNJ 137 at 163; and Okparanta Vs. Elechi (2007) All FWLR (pt. 358) to support his submissions.

In arguing issue two which he formulated for determination Mr.Usman said that the suit is statute barred in view of Section 21 of the Freedom of Information Act, 2011. The Section provides that where an applicant for information has been denied access to that information by a public institution, he may apply to the court for the review of that refusal within 30 days after the denial or deemed denial. He submitted that the suit was filed by the applicant outside the 30 days of the denial or deemed denial of the information it requested from the respondent. He argued that this was a contravention of the provisions if Section 21 of the Freedom of Information Act, 2011 aforesaid.  Mr. Usman said the complaint of the respondent is that the Applicant has failed to seek for and obtain leave of court before filing this application for judicial review, which is in contravention of Order 34 of this court’s Rules of Civil Procedure.

  The objectives of the Applicant include good governance, public accountability and the rule of law in Nigeria. As part of its work, the Applicant made an application to the Respondent dated July 6, 2011 by which it requested information on details of salaries, emolument, and allowances paid to the Honourable Members of Representatives and Distinguished Senators, both of the 6th Assembly, from June 2007 to May, 2011.

The applicant’s reply to the objection raised by the Respondent as stated above was filed on January 31, 2012. In his reply to the objection and argument of the Respondent’s mode of commencement of this suit, Mr.Chino Edmund Obiagwu quoted the provisions of Order 3 Rule 1 of the Federal High Court (Civil Procedures) Rules, 2009, and submitted that the mode of commencement of this action is not alien to the Rules of this court. He also relied on Section 20 of the Freedom of Information Act, 2011, pursuant to which the suit was brought, and argued that  Section 20 does not specify the mode for commencement of an action under the Act. He submitted that an action for judicial review is usually commenced by way of originating motion.

In responding to the ground of objection that this suit is statute barred, Mr. Obiagwu submitted that actions commenced under the Freedom of Information Act, 2011 such as this one, are not subject to rules under the limitation of action. So the cases cited by the Respondent are not applicable to this suit, because Section 20 of the Act has provided for extension of time to an applicant who failed to apply to the Court within the 30 days mentioned.

He argued that the word “or” used in Section 20 of the Act is disjunctive in order to accommodate an applicant who failed to apply within the 30 days of the denial of the information requested. Mr. Obiagwu also responded to submissions of Mr. Usman on the issue of leave for judicial review, and submitted that the suit was not filed pursuant to the rules of the court and that the Order is therefore not applicable.

The Respondent’s counsel gave notice of his intention to raise a preliminary objection to the competence of the application at its hearing, saying that the suit is “incurably incompetent”

Justice Aliyu started off by determining the objection of the Respondent to the competence of the suit, and whether or not the objection of the Respondent has any merit.

In examining the originating motion filed by the Applicant, he noted that the suit was  “brought Pursuant to Sections 1(1) & (3), 2 (6), 7(4), 20 and 25(1) of the Freedom of Information Act, 2011; Order 3 of the Federal High Court (Civil Procedure)Rules, and inherent Jurisdiction of this Honourable Court.”

Justice Aliyu pointed out that the counsel to the applicant cannot claim in his address that the application was not brought under the Rules of Procedure of the court, saying that this is particularly so when the counsel in his preliminary objection stated that,” Apart from the fact that the above section of the law does not specifically provide for the mode of commencement of action under the Freedom of Information Act,  supra, we submit that the action for judicial review are usually commence(sic) by way of originating motion, which is a conventional mode of commencement of action in our courts.”

The judge said the application was also brought pursuant to Section 20 of the Freedom of Information Act, quoting the provisions of the Act, “Any applicant who has been denied access to information, or a part thereof, may apply to the court for a review of the matter within 30 days after the public institution denies or is deemed to have denied the application, or within such further time as the court may either before or after the expiration date fix or allow.”

Justice Aliyu agreed with the interpretation of Mr.Obiagwu in his address where he said that this Section allows two categories of applicants. The first one is he who applied within the 30 day of the denial or deemed denial of the information and the second category, is the Applicant who failed to apply within the 30 days.

Justice Aliyu said the last phrase “ or within such further time as the court may either before or after expiration of the thirty days fix or allow,” to his mind is intended by the law makers to exclude the rules of procedure of the court regarding ordinary procedure for judicial review, which is the general rule.

Regarding the objection to the competence of the application on the grounds that it is statute barred, Justice Aliyu pointed out that the court had already extended time within which the Applicant may file the motion in the ruling delivered on March 8, 2012 and that the ruling was on a motion filed by the Applicant seeking extension of time to apply for the review of the denial of information pursuant to Section 20 of the Act under consideration.  The judge therefore also dismissed the ground of objection.

He said “this is in accordance with the principle of interpretation that where a special provision is made to govern a particular subject matter, it is excluded from the operation of any general provision,” adding that this is represented in the Latin maxim, “generalia specialibus non derogant.” The judge cited the cases of A.G. Fed. Vs Abubakar (2007) 10 NWLR (pt. 1040) 1 at 148 paragraph H; and Ehuwa vs. Ondo State INEC (2007) All FWLR (pt. 351) 1415 at 1430 to 1431 G-B.

He therefore ruled that although the Applicant brought the motion pursuant to Order 3 of the Federal High Court Rules, those rules are not applicable.

The judge said further that the intention of the legislature to take the application for the review of the denial of information made pursuant to the Act outside the Rules of court is manifested in section 21 of the Act which provides that: “An application made under Section 20 shall be heard and determined summarily.”

Quoting Black’s Law Dictionary, Ninth Edition at page 1324, he said summary proceedings are defined as “A nonjury proceedings that settles a controversy or disposes of a case in a relatively prompt and simple manner.”

He said further that the authors of the Dictionary quoted A. H. Manchester’s “Modern Legal History of England and Wales, 1750 – 1950” who said “Summary proceedings are such as directed by Act of Parliament, there was no jury, and the person accused was acquitted or sentenced only by such person as statute had appointed for his judge ….”

The judge therefore held that hearing of a matter summarily means disposing of that matter as simply as possible without the usual procedure being followed.

Thus, he said, by providing that the application for the review of the denial of information under Section 20 of the Freedom of Information Act shall be determined “summarily” the law maker intends that such applications should be heard and determined promptly and in a simple manner.

The judge said: ” the mode adopted by the Applicant in this case by filing an originating motion on notice is the procedure contemplated by the Section 21 of the Freedom of Information Act quoted above and I so hold. The application is therefore competent and this court has the Jurisdiction to determine it. The objection of the Respondent on this ground is thus lacking in merit and it is dismissed”.

Stating that the answers to these two questions must be found in the affidavit of the Respondent in support of his grounds for denial of the information that the Applicant requested, he said “The Respondent did not state the relevance. We cannot speculate,” adding that what is relevant to the application is that the objection of the Respondent to this suit on the ground of jurisdiction has been heard and dismissed earlier in his ruling.

Regarding the objection to the competence of the application on the grounds that it is statute barred, Justice Aliyu pointed out that the court had already extended time within which the Applicant may file the motion in the ruling delivered on March 8, 2012 and that the ruling was on a motion filed by the Applicant seeking extension of time to apply for the review of the denial of information pursuant to Section 20 of the Act under consideration.  The judge therefore also dismissed the ground of objection.

The judge therefore proceeded to determine the merit of the application.

He noted that in his response to the Application, the Respondent filed a counter affidavit dated November 2, 2011, deposed to by Alih M. Hassan, the Principal Legal Assistant in the Department of Legal Services of the Respondent.

The deponent stated that on receipt of the Applicant’s letter of request, he had promptly replied and informed the applicant that the information he requested is now a subject of two suits filed by the Nigerian Bar Association and Mr. Femi Falana.

The judge said: “There is a subpoena issued to the Respondent by this court to produce the details of all salaries, emolument and allowances paid to all members of the Respondent’s 6th Assembly from 2007-2010. The Respondent had not complied because his counsel filed a notice of objection to the jurisdiction of this court to hear those suits. The second reason for the denial of the requested information by the Respondent is that the information sought by the Applicant is the type of information that the Respondent is not permitted to disclose by the Freedom of Information Act. The Respondent stated that the information requested by the Applicant is the type exempted by the Act.

He noted that attached to the counter affidavit were documents marked as Exhibits A, B, C and D. Exhibit A, he said, is the reply of the Respondent to the Applicant’s letter of request, adding that by the reply, dated July 11, 2011, the Respondent denied the information requested by the Applicant on two grounds, namely: that the requested information is subject to litigation in court, and that the information is among the information exempted by section 14 of the Act.

The judge said Exhibit “B”  are copies of the originating summons, affidavit in support and address filed in Suit No. FHC/ABJ/CS/599/10, between the Incorporated Trustees of the Nigerian Bar Association as the Plaintiffs, and the President of the Senate, the Speaker of the House of Representatives, the National Assembly and the Hon. Attorney-General of the Federation as the Defendants.

According to the judge, by the suit, the Incorporated Trustees of the Nigerian Bar Association, as the Plaintiff, sought for the determination of three legal questions regarding the alteration of the 1999 Constitution of Nigeria by the Defendants under Sections 9 and 58 of the same Constitution.  Upon the determination of the three questions, the plaintiff sought for five declarations on the legality of the constitutional alteration by the 1st to 4th Defendants without the assent of the President.

The judge said Exhibit “C” is the subpoena issued to the Clerk of the National Assembly to produce before the Court “details of quarterly constituency allowances, including bank payments advice, pay slips and other documents in respect of such allowances paid to all the members of the National Assembly since 2007 till date.”

He said further than Exhibit “D” attached to the counter affidavit of the Respondent in the case is the notice of objection filed by it and the National Assembly to the suit No. 599/10 challenging the locus standi of the Plaintiff to institute that suit.

The judge noted that in a further affidavit dated January 24, 2012, sworn to by Adah Phillips, a lawyer in the law firm representing the Respondent in the instant case, another originating summons filed in the court was attached as Exhibit “FOI1” and that this is to replace Exhibit “B” attached to the counter affidavit of Alih M. Hassan.

The judge said the attached Exhibit “FOI1” is predicated on the salaries and allowances of the members of Nigeria’s Senate and House of Representatives and that it was on this suit that the subpoena (Exhibit “D”) was issued.  He said further that the originating summons (Exhibit “FOI1”) challenges the legality/constitutionality of the “constituency allowances of N45million to members of the senate and N27.5million for each member of the House of Representatives.”

The judge noted that in his alternative submissions in the event that his preliminary objection failed, Mr. Usman submitted a single issue for determination, namely:  “Whether from the facts of this case and the relevant law, the applicant is entitled to the reliefs sought in the originating motion.”

The judge observed that while conceding that the Applicant has the right under Sections 1 and 2 of the Act to request for information from the Respondent, he contended that the right is not a blanket one.

According to the counsel to the Respondent, the right of information is limited by sections 12 and 14 of the same Act.

The judge said the Applicant filed a reply to the counter affidavit of the Respondent and that the reply affidavit, dated January 31, 2012, was sworn to by Okorie Godswill, a legal practitioner in the law firm of the counsel to the Applicant.  The deponent said the Applicant did not receive the notification of refusal to its request, Exhibit “A” which the Respondent attached to his counter affidavit, adding that the information the Applicant requested is not the same with the subject matter of the suit in Exhibits “B” and “C”, attached to the Respondent’s counter affidavit. The deponent also stated that the information sought by the Applicant is not exempted by the Act and its disclosure is in line with the public interest.

The judge said: “In his final reply on points of law, filed on 31st January, 2012, counsel to the Applicant, Mr. Obiagwu submitted rightly in my view that the Respondent having stated the reasons for the denial of information to the Applicant in their Exhibit “A”, cannot validly rely on other grounds outside that stated in his reply.”

The judge said he had reviewed the affidavit evidence and the counsel’s addresses for and against the application for the review of the denial of information requested by the Applicant from the Respondent, and noted that “the Freedom of Information Act, 2011 is a new law enacted by the National Assembly and it came into force barely a year ago, i.e. on 28th May, 2011.”

On the issue that the information requested by the Applicant is personal information, which is exempted under Section 14 of the Act, the judge noted that the information requested by the Applicant relates to salaries, allowances and emoluments paid to the elected members of the 6th National Assembly, and that the Applicant did not request personal information relating to the Honourable Members, but simply asked what was paid them while they were in service from public funds.

He said “But the cases under the Act appeared simple, in the sense that a request is made to the public institution and when denied then the courts will examine the grounds of denial to find if they are justified.  Once the Applicant has shown that he made a request for information under the Act, and his right to access such information is established in Section (1) of the Act, then the onus in this circumstance is on the denying authority to show that it is justified by the Act to deny the information requested.”

The judge said his position in so holding is strengthened by Section 30(2) of the Act.

He noted that the issue for him to determine is whether the grounds relied upon for the denial of the Applicant’s request for the details of the salaries, emolument and allowances paid to all Honourable Members of the House of Representatives and Distinguished Senators, both of the 6th Assembly, from June 2007 to May 2011, are justified under the Act.

Observing that the Respondent relied on two grounds for denying the applicant access to the information requested, the first ground being that the two cases are pending in respect of these records, and it will be “prejudicial” to these cases if the Applicant’s request is granted, Justice Aliyu asked: “what interest of the Respondent will be prejudiced by the release of the information and how is that relevant to these proceedings?”

Stating that the answers to these two questions must be found in the affidavit of the Respondent in support of his grounds for denial of the information that the Applicant requested, he said “The Respondent did not state the relevance. We cannot speculate,” adding that what is relevant to the application is that the objection of the Respondent to this suit on the ground of jurisdiction has been heard and dismissed earlier in his ruling.

He said: “It is important to note that information from public institutions on records is to be issued by way of certification by officer who has custody of them.  Public records are for the public and cannot be issued in their original form.  This is to compliment the provisions of the Evidence Act regarding issuance of public documents upon application.”

He referred to Section 30(1) of the Freedom of Information Act where it is stated that the Act is intended to compliment procedures for issuance of public records and information, saying “So it is not the original record by copies of same that is required to be issued on request.”

The judge said he had not seen the relevance of the two cases quoted by the Respondent as the ground for denying the Applicant the certified copies of the information requested and declared that the ground was not justified by the Act.

On the issue that the information requested by the Applicant is personal information, which is exempted under Section 14 of the Act, the judge noted that the information requested by the Applicant relates to salaries, allowances and emoluments paid to the elected members of the 6th National Assembly, and that the Applicant did not request personal information relating to the Honourable Members, but simply asked what was paid them while they were in service from public funds.

Quoting Section 14(3) of the Act, which states that “Where disclosure of any information referred to in this section would be in the public interest, and if the public interest of such information clearly outweighs the protection of the privacy of the individual to whom such information relates, the public institution to whom the request for disclosure is made shall disclose such information subject to Section 14(2) of the Act,” Justice Aliyu then said the “provisions are as clear as the colour purple and hardly needs any interpretation.”

He ruled that the information requested is not among those exempted in section 14(1) of the Act, noting that even personal information protected by the subsection can still be disclosed in the circumstance stated in section 14(2) as follows:

(2) “A public institution shall disclose any information that contains personal information if-

a) The individual to whom it relates consents to the disclosure; or

b) The information is publicly available.”

Quoting Section 14(3) of the Act, which states that “Where disclosure of any information referred to in this section would be in the public interest, and if the public interest of such information clearly outweighs the protection of the privacy of the individual to whom such information relates, the public institution to whom the request for disclosure is made shall disclose such information subject to Section 14(2) of the Act,” Justice Aliyu then said the “provisions are as clear as the colour purple and hardly needs any interpretation.”

He said: “The Act clearly places the public interest above all else including the personal interest of the individuals.  Where the interest of the public is in conflict with the individual interest, in deserving cases, the collective interest must be held paramount.”

He stated the information requested by the Applicant in the suit is not exempted under the Act and that the Respondent is not justified by the Act to deny it to the Applicant.

The judge granted both reliefs sought by the Applicant and ordered  the Respondent to disclose to the Applicant within 14 days from the date of the ruling detailed information on the salaries, emoluments and allowances paid to all Honourable Members of House of Representatives and Distinguished Senators of the 6th Assembly, from June 2007 to May 2011.

APPEARANCES:

C. OBIAGWU ESQ., with C.N.  OBANI ESQ., FOR THE APPLICANT.

J.J USMAN ESQ ., with A.O.PHILLIPS ESQ., FOR THE RESPONDENT

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By mraadmin February 11, 2013 13:31
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