The FOI Act Creates Legal Rights Without Corresponding Legal Duty – FOI Law Report

mraadmin
By mraadmin August 6, 2013 09:50

In the Federal High Court of Nigeria

In the Abuja Judicial Division

Holden at Abuja

On Wednesday, the 3rd Day of July, 2013

Before his Lordship, the Hon. Justice G. O. Kolawole, Judge

Suit No. FHCABJ/CS/402/2013

 Between:

In the Matter of Paradigm Initiative Nigeria– PLAINTIFF

And

Dr. Reuben Abati – RESPONDENT

 

On June 6, 2013, the court heard the oral submissions of the Applicant’s counsel, K. Nnajiaka, Esq. on a Motion Ex-parte dated June 5, 2013.

The Motion Ex-parte seeks “leave to apply” for “an Order of Mandamus compelling the Respondent to make available to the Applicant detailed information of the contract set out in the Statement setting out the Name and Description of the Applicant, the Reliefs sought and the Grounds on which they are sought”.

In the Statement filed pursuant to order 34 Rule 3(2) of the Federal High Court (Civil Procedure) Rules, 2009, the Applicant who describes itself as “a Nigerian Civil Society Organisation registered with the Corporate Affairs Commission” seeks two declaratory reliefs and an Order of Mandamus – as an ancillary order in furtherance of the substantive declaratory reliefs which are sought pursuant to the provisions of the Freedom of Information Act, 2011.

His Lordship, Justice G.O. Kolawole, noted that the Freedom of Information Act is a new legislation in Nigeria which, in his view, forms part of the government’s policy as a response to the yearnings of Nigerians and such groups as the Applicant to entrench transparency in public administration, and perhaps as a follow up to such other new legislation like the Public Procurement Act or the Fiscal Responsibility Act.

He said all of these are incidental to the practice of democratic governance to facilitate accountability in the spirit and letters of the provisions of Section 14(1) & (2) (a); (b) & (c) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

The Applicant’s Counsel drew the Court’s attention to the process filed and adopted the written address filed in its support.  In the written address, the Applicant’s Counsel referred to the provisions of Order 34 Rule 3(1) of the Federal High Court (Civil Procedure) Rules, 2009 and submitted that under the Freedom of Information Act, an applicant “needs not demonstrate any specific interest in the information being applied for”.

His Lordship noted that the Applicant’s Counsel was however silent on the status or position of the Respondent to make him amenable to an order of mandamus in the event that leave sought is granted.

He said in the light of the novel nature of the rights that the Freedom of Information Act has created in every citizen, notwithstanding the provision of Section 45(1) (a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, he adjourned the ruling so as to study the processes filed vis-à-vis the provisions of the Act “which is yet to garner sufficient judicial decisions on its provisions”.

His Lordship, Justice G.O. Kolawole, noted that the Freedom of Information Act is a new legislation in Nigeria which, in his view, forms part of the government’s policy as a response to the yearnings of Nigerians and such groups as the Applicant to entrench transparency in public administration, and perhaps as a follow up to such other new legislation like the Public Procurement Act or the Fiscal Responsibility Act. 

The judge noted that unless adequate statutory safe guards are embedded in the Freedom of Information Act, the underlying intention of the government when it enacted the Law may be undermined or subverted as irate individuals or busy bodies will abuse the rights which it has created with regard to information on public administration.

He said: “I should not be seen as an advocate for a restrictive or secretive process in public administration, but I do not think that there is any country in the world, where access to all forms of public records are thrown open even to an Applicant who is not required to show any specific interest in the information requested from a public body.”

The judge continued: “The United States of America, that prides itself as the leader of the ‘free world’ and the champion of ‘electoral democracy’ is currently engaged in a battle of wit with one of her citizens, one Mr. Edward Snowden who had without authority, leaked confidential NSA security information on surveillance the United States allegedly conducted on security issues of some of its allies, including European Union countries.  The point I am trying to make is that the responsibility to use the Act by Nigerians responsibly as an instrument to ensure transparency in governance should not be left so loose and at large without any form of checks and perhaps, balances.”

According to him, “The checks or safeguards may be legislative in nature or judicial in form as was the case in the provision of Order 34 Rule 3(4) of the Federal High Court (Civil Procedure) Rules, 2009 which requires an Applicant for any of the prerogative orders for judicial review to demonstrate that he has ‘sufficient interest in the subject matter to which the application for leave relates’”.

The judge noted that the “safety valve as a judicial instrument to prevent abuse of a resort to the provision of Order 34 of the Federal High Court (Civil Procedure) Rules, 2009 has been exempted from the operation of the Freedom of Information Act!”

He stressed that: “I believe in transparency with regard to the processes of governance, whether it is legislative, administrative or judicial.  But, it is my view, that it is also part of transparency that rights created by enactments such as the Freedom of Information Act, 2011 are themselves not abused by irate litigants or those one may describe as ‘busy bodies’”.

He said: “I really cannot see any logic in terms of correlative duties and of jural relations between an Act that creates and vests a right in a person on the one hand, and the same Act, on the other, states that such person does not have to demonstrate any specific interest in the information being applied for!  The Act has created legal rights without a corresponding legal duty.  This is to create a situation where scarce public resources, time and energy are permitted to be squandered in attending to a request for information which the person applying for it need not show that he needs if it he is excused by the Act from showing that he has any specific interest in the information being applied for.  It is time that the National Assembly undertakes a review of the Act so as to ensure that access to information is only made available to such Applicants who genuinely need it for specific purpose(s).” 

The judge noted that unless adequate statutory safe guards are embedded in the Freedom of Information Act, the underlying intention of the government when it enacted the Law may be undermined or subverted as irate individuals or busy bodies will abuse the rights which it has created with regard to information on public administration.  

The judge noted that reading through the processes filed, the Applicant merely stated in paragraph (iii) of the Statement filed that the Respondent is the “Special Adviser to the President on Media and Publicity” but did not state that the Respondent in that capacity was being sued as one who awarded the contract in issue.

He questioned whether it was sufficient that by his being a “Special Adviser” to the President on Media and Publicity, he was by any extant law involved in the award of the contact on which information, the particulars of which were stated in paragraph (iv) 1 (a) – (h) and 2(a) & (b) of the Statement is requested.

He also questioned whether it is the case that even as “an officer of the Federal Government in charge of information”, he was involved in the award of the alleged contract even though, on the face of the processes filed, he was sued eonomine as a “private citizen”

The judge said he was not aware of any legislation by which the “Office of a Special Adviser to the President on Media and Publicity” was created as to make “the Respondent as sued in the Motion Ex-parte to be seen as a public body, authority or officer who is prima facie amenable to prerogative orders of mandamus which are judicial instruments to enforce the performance of public duties.”

He explained that his reason for expressing this view is based on his “understanding of a community reading of the Act which is the fulcrum of the right being sought by the Applicant to enforce by way of an order of mandamus.”

According to him, “Reading through the Act, my view is that it is essentially enacted to create an enforceable rights against public institutions and bodies established by law and not against private individuals as citizens.  Who is Dr. Reuben Abati?  The initiating processes, except paragraph (iii) of the Statement filed, which enjoys similar status as a pleading in proceedings initiated by a Writ of Summons where Statement of Claim is filed, was silent on the capacity in which he was sued as a Respondent.”

The judge noted that the “safety valve as a judicial instrument to prevent abuse of a resort to the provision of Order 34 of the Federal High Court (Civil Procedure) Rules, 2009 has been exempted from the operation of the Freedom of Information Act!”

 He held that “it will be an injudicious exercise of  my discretion, pursuant to the provisions of Order 34 of the Federal High Court (Civil Procedure) Rule, 2009 to proceed by granting leave to the Applicant to apply for an order of mandamus against a Respondent who has not been sued or shown to be a public institution or authority, and even as an ‘officer of the Federal Government in charge of information’, that has not been shown to have awarded any contract and to be amenable to the issuance of prerogative writs of mandamus to compel the performance of a public duty after a refusal to do so has been established.”

The judge held further that “to do otherwise, is to authorize the Applicant to initiate a legal action against a presumably private citizen and to be required to make available to the Applicant, information on award of a contract that has not been shown to have been awarded by a public body, institution or authority.”

He said for these reasons, he was “unable to accede to the Applicant’s Motion Ex-parte” and accordingly refused it.

He therefore struck out the Motion.

K. Nnajiaka, Esq., holds brief for K. Amole, Esq. for the Applicant.

mraadmin
By mraadmin August 6, 2013 09:50
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