Freedom of Information Law Report – Vol 1.

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By mraadmin January 10, 2013 12:51

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

  1. Central Bank of Nigeria
  2. 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

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By mraadmin January 10, 2013 12:51
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