The Mode of Challenging Denial of Access to Information under the FOI Act is by Application for Judicial Review, Says Court

In the High Court of Justice, Oyo State of Nigeria

In the Ibadan Judicial Division

Holden at Ibadan

Monday, the 28th of May, 2012

Before the Honourable Justice P. O. Ige, Court 11

Suit No. 1/778/2011

Between:

The Registered Trustees of the Socio-Economic                    – PLAINTIFF

Rights and Accountability Project (SERAP)

And

  1. The Governor of Oyo State
  2. The Attorney-General of Oyo State                            – DEFENDANTS

The Plaintiff in the action, the Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP), by its Originating Summons taken out on September 1, 2011, against the Defendants, sought for the determination of the following question: “Whether by the provision or section 4(a) of the Freedom of Information Act 2011, the defendant is under a legally binding obligation to provide the information requested by the Plaintiff.

The Plaintiff claimed against the Defendants as follows:

Gov. Ajimobi of Oyo State

Sen. Abiola Ajimobi, Governor of Oyo State

 

  1. A declaration that the provisions of the Freedom of Information Act, 2011 are binding on the 1st Defendant and the Oyo State Government.
  2. A declaration that by virtue of the provisions of Section 4(a) of the Freedom of Information Act, 2011, the 1st Defendant is under a binding legal obligation to provide the Plaintiff with up to date information on government/  relating to primary education in Oyo State including:
  3.    Detailed information on the total amount of the Universal Basic Education Commission (UBEC) intervention funds that have been accessed by Oyo State through the State Universal Basic Education Commission of Oyo State:
  4. The total amount of the counterpart fund Oyo State Government has provided in Oyo State since 2005 and a detailed and up to date information on the spending of the fund, and
  5. Details of projects on which the UBEC intervention and Counterpart Funds were spent and the exact amount of money expended on each of such projects since 2005 in Oyo State.
  6. AN ORDER directing the 1stDefendant to provide the Plaintiff with up to date information on government/public spending relating to primary educationin Oyo State including:
  7. Detailed information on the total amount of the Universal Basic Education  Commission (UBEC) intervention funds that have been accessed by Oyo State through the State Universal Basic Education Commission of Oyo State
  8. The total amount of the counterpart fund provided by Oyo State Government to the state Universal Basic Education Commission  program in Oyo State since 2005 and details and up to date information on the spending of the fund, and
  9. Details of projects on which the UBEC intervention and counterpart Funds were spent and the exact amount of money expended on each of such projects since 2005 in Oyo State.

The Originating Summons was accompanied by 5 paragraph Affidavit.

 Mr. Adetokunbo Mumuni, Executive Director, Socio-Economic Rights and Accountability Project (SERAP)

Mr. Adetokunbo Mumuni, Executive Director, Socio-Economic Rights and Accountability Project (SERAP)

Conditional Appearance was entered on behalf of the Defendants by O. A. Ladapo, Esq., Senior Legal Officer, on October 10, 2011.  On the same date, the Defendants through the Learned Senior Legal Officer, filed Notice of Preliminary Objection pursuant to Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria as amended. The said Notice of Preliminary Objection was accompanied with 4 paragraphs Affidavit in Support. They also filed what they titled “Affidavit in response to Originating Summons” It consists of 4 paragraphs.

O. A. Ladapo, State Legal Officer for the Defendants/Applicants, also filed a written address in support of the preliminary objection of the Defendants. It is dated and filed on October 18, 2011.

The Claimant, through its Executive Director, November 11, 2011, filed a counter-affidavit in opposition to the Notice of Preliminary Objection filed by Defendants. It has 11 paragraphs. On January 6, 2012 the Claimant’s Learned Counsel filed a written address in opposition to the Notice of Preliminary Objection.

A. O. Ladapo Esq., Senior Legal Officer, filed Reply on Points of Law to the Written Address of the claimant on February 23, 2012.

The Notice of Preliminary Objection filed by the defendants was heard on March 26, 2012 and counsel to the parties adopted their written addresses.

In the Notice of Preliminary Objection, counsel for all the Defendants objected to the hearing and determination of the suit on the ground that the court lacks the jurisdiction to entertain and determine the cause of the Claimant as constituted. The particulars are that the suit of the claimant was not commended by the proper originating process as provided for by Section 20 of the Freedom of Information Act, 2011.  The Defendant therefore prayed the Court for an order striking out the suit for the incompetence of its originating processes which robs the Court of its jurisdiction to hear and determine the Claimants cause.’

The Learned Senior Legal Officer for the Defendants stated that the Claimant instituted the action against the two Defendants on alleged violation of Section 4(a) of the Freedom Information Act, 2011 and that the Claimant initiated the suit by originating Summons. He informed the Court that the Defendants are challenging the court’s jurisdiction to hear and determine the matter on the ground that the Claimant did not commence the action as mandated by Section 20 of the Freedom of Information Act, 2011.

He therefore formulated two issues for determination, namely:

  1. Whether the claimant can successfully commence its action against an alleged breach of the Freedom of Information Act, 2011 by way of originating summons, when Section 20 of the freedom of Information Act specifically mandates that all actions pursuant to the Act shall be commended by way of Judicial Review.
  2. What is the consequence an action by way other than the originating process prescribed by law?

In his reply, the Learned Counsel to the Claimant, Solomon Edoh Esq., vehemently opposed the Preliminary Objection raised by the Defendants and raised an issue for determination namely:  Whether on a proper construction of Section 20 of the Freedom of Information Act, 2011, the Claimant’s action as constituted is improperly commenced.

Solomon Edoh Esq. is of the view that Section 20 of the Freedom Information Act,  2011 does not stipulate a particular mode or procedure for commencing an action by a person who has been denied access to information by a public institution. According to Learned Counsel to the Claimant, under Section 20, an aggrieved Applicant who has been denied access to information 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 Applicant access to the information sought.

His Lordship, Justice P.O. Ige noted that the Kernel of the 1st and 2ndDefendants/Applicants application is that he has no jurisdiction to entertain or adjudicate on the Claimant’s suit in that the Claimant, according to them, did not commence the action by the relevant originating process as prescribed by Section 20 of the Freedom of Information Act.

 Mr. Mohammed Bello Adoke (SAN) Minister of Justice and Attorney General of Nigeria

Mr. Mohammed Bello Adoke (SAN) Minister of Justice and Attorney General of Nigeria

He said “Jurisdiction is the life wire and is vital element in adjudicatory process of the court in administering justice to parties in litigation before it” adding that “It has also been stated that jurisdiction is the body and soul of every judicial proceeding and deliberation and without jurisdiction anything done in a matter will be null and void.”

He referred to the case of Alhaji M. Maigari Dingyadi & Anor. vs. INEC & Ors (2011) 4 SCM 87 at 114 per Adekeye, JSC who held thus:  “Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. Such authority of the court is controlled or circumscribed by the statute creating the court itself or it may even be circumscribed by a condition precedent created by legislation which must be fulfilled before the court can entertain the suit. All of the above touch on the legal authority of the court to adjudicate in the matter. Jurisdiction is fundamental and it is the centre pin the entire litigation hinges on. Madukolu vs. Nkemdilim (1972) 2 SCNLR Pg. 341/ Rossek vs. ACB Ltd. (1993) 8 NWLR (Pt 312) Pg. 382.”

His lordship said thus whereas in this case a Defendant conceives that he has a preliminary point of law capable of terminating in limine the life of a suit,  such a Defendant is entitled to file a Notice of Preliminary Objection in that behalf.

He said further that the Court in turn is under an obligation to examine and decide the Preliminary Objection, especially where it challenges the jurisdiction of the Court at the earliest opportunity.

His lordship again observed that “jurisdiction is the pillar of adjudication” and referred to Chief Yakubu Busani vs Okene Local Government & Anor (2008) 12 NWLR (PART 1102) at 699 H to 700 A- C per Niki Tobi J.S.C. who said: “A Preliminary Objection is raised where party fails to comply with the enabling law and or the rules of court. See Mohammed vs. Olawumi (1993) 4 NWLR (PART 288) 384; Oloriode vs Oyebi (1984) 1 SCNLR  390. The proper stage at which a defendant should raise a preliminary objection to the Plaintiff’s suit should be either at the inception or early stage of the proceedings. See Carlen (Nig.) Limited vs. University of Jos {1994) 1 NWLR (PART 323) 631. There are instances where it is permissible to raise a preliminary objection that can terminate a case at the threshold, the incompetence of which is where the competence of an action is called into question.  In a case where the competence of the action is in issue, the court not only has the authority but also the duty to determine the action in limine, as in this appeal, where lack of competence is established. This is because the incompetence of an    action robs on the jurisdiction of the court to hear it within the classification of the elements that make jurisdiction as expounded in Madukolu vs. Nkemdilim (1962) 2 SCNLR 341.”

He said further that the imperativeness and the need to deal instantaneously with matters concerning jurisdiction was copiously reiterated by Niki Tobi JSC in the case of Attorney-General of the Federation & Ors vs. Usman Abubakar & Ors. (2008) 16 NWLR (PART 1112)135 at 158 A- E. where he said: “There is no jurisdiction in law in a court saying that it has jurisdiction in all disputes. A court of law has jurisdiction to expound the limits of its jurisdiction; it has not jurisdiction to expand it. Jurisdiction is a matter of hard and rigid law and courts of law must comply strictly with their jurisdiction as spelt out in either the Constitution or a statute.  On no account should courts of law be hungry or have the gluttony for jurisdiction, to the extent that they arrogate to themselves jurisdiction where they have none. By such an injudicious conduct, the particular court does not only erode to the jurisdiction of other courts, but also erode to the legislative power of the Legislature. Both are illegal and courts of law established to do legality, cannot afford any illegality.  As jurisdiction is the pillar of every adjudication and its cynosure, courts of law must take it first before the merits of the matter.  They must not in any case, keep the issue of jurisdiction till late in the litigation or when the merits of the case are heard. This is because if the court holds that it has no jurisdiction that is the end of the matter. The suit will be struck out and the Plaintiff goes home in vanquish. Of course, the law allows him to return to the courts after repairing the jurisdictional blunder.”

His lordship said the sole issue for consideration on the Defendants/Applicants’ application is whether the action was on September 15, 2011 initiated or commenced in accordance with due process of law.

The entire submission and/or arguments of Learned Counsel to the Defendants/Applicants and Claimant/Respondent revolve around Section 20 of the Freedom of Information Act, 2011 which provides as follows: “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 of the thirty days fix or allow.”

He said it has long been settled that the Constitution or a statute must be construed literally giving the word in such Constitution or statue their ordinary grammatical meanings, adding that it is also the law that in ascertaining the true meanings of the provisions of the Constitution and statute, the Constitution or the statute being interpreted or construed must be read and construed as a whole.  He referred to Action Congress (AC) & Anor vs. INEC (2007) 12 NWLR (PART 1048) 222 at 259 B- D, where Katsina-Alu, J.S.C.later C.J.N. had this to say viz: “It is necessary to bear in mind that the Electoral Act 2006 is a subsidiary legislation which operates side by side with the 1999 Constitution. Both the Constitution and Electoral Act shall be read together in order to give effect and meaning to the rights and obligation of individuals. It is settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the context of the Constitution or statute as a whole. Therefore, in construing the provisions of a section of a statute the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted. See Buhari & Anor. vs. Obasanjo & Ors. (2005) 13 NWLR (PT. 941) 1 (219).  Butwhere the words of a statue are plain and unambiguous, no interpretation is required, the words must be given their natural and ordinary meaning.”

His lordship also referred to R.T. Hon. Rotimi Chibuike Amaechi vs. INEC & Ors. (2008) 5 NWLR (PART 1080) 227 at 314 H where Oguntade, J.S.C. said:  “It is settled law that the court in interpreting the provisions of a Statute or constitution must read together related provisions of the Constitution in order to discover the meaning of the provisions. The court ought not to interpret related provisions of a statute or Constitution in isolation and then destroy in the process the true meaning and effect of particular provisions: See Obayuwana vs. Governor, Bendel State (1982) 12 Sc 47 at 211; 1983 4 NCLR 96; and Awolowo vs. Shagari (1979) 6-9 SC 51 at Bendel State (1982) 12 SC47 at 211; 1983 4 NCLR 96; and Awolowo vs Shagari (1979) 6-9 SC 51 at …”

He said he had carefully gone through all the sections of the Freedom of Information Act 2011 and was of the solemn view that the words “may apply to the court for a review of the matter” could only mean that if the Applicant, that is the person who had applied for an information from a public officer or institution and was denied the necessary information, he can apply to the court vide an application for a Judicial Review of the decision of the public officer or public institution concerned for an order of mandamus to compel the public officer or public institution to provide the Applicant the information required if the Court considers it appropriate that the Applicant for the information is entitled to it.

 Justice Mariam Aloma Muktar, Chief Justice of Nigeria

Justice Mariam Aloma Muktar, Chief Justice of Nigeria

He held that the Applicant must approach the Court under Order 40 Rule3 of the High Court (Civil Procedure) Rules 2010 of Oyo State to seek the leave of Court to bring an application for an appropriate order against the recalcitrant public institution or public officer refusing to give the Applicant the information he requires.

He said the purpose of an application for leave is to enable the court assess whether the Applicant has sufficient interest, legal or equitable, in the information he seeks from the public officer  or  institution concerned  so as to ward off meddlesome interlopers and busybodies.  He referred to Order 40 Rules 1- 5(1) & (2) of the High Court Civil Procedure Rules 2010 which provide as follows:

APPLICATION FOR JUDICIAL REVIEW

(1)1.     An application for:

a)      an order of mandamus, prohibition or certiorari: or

b)      an injunction restraining a person from acting in any office in which he is not entitled to act shall be made by way of an application for judicial review in accordance with the provision of this order.

(2)        An application for a declaration or an injunction (not being an injunction in Rule (1) (b) of this Rule) may be made by way of an application for judicial review and the court may grant the declaration or injunction if it deems it just and convenient to grant it by way of judicial review, having regard to:

a)      The nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari:

b)      The nature of the persons and bodies against whom relief may be granted by way of such an order;

c)      All the circumstances of the case.

  1. On an application for judicial review any relief mentioned in Rule I may be claimed as an alternative or in addition to any other relief so mentioned if it arise out of, relates to or is connected with the same matter.
  2. (1) No application for judicial review shall be made unless the leave of the court has been obtained in accordance with this rule.

(2)  An application for leave shall be made ex-parte to the judge and shall be supported by:

a)      A statement setting out the name and description of the application, the reliefs sought and the grounds on which they are sought;

b)      an affidavit verifying the facts relied on; and

c)      a written address in support of application for leave.

(3) The judge hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise on such terms if any, as he deems fit.

(4)  The judge shall not grant leave unless he considers that the applicant has a sufficient interest in the matter to which the applicant relates.

(5)  Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(6) Where leave to apply for judicial review is granted then:

i.   if the relief sought is an order of prohibition of certiorari and the Judge so directs, the grant shall operate as a stay of the  proceedings to which the application relates until the determination of the application or until the judge otherwise orders;

ii. if any other relief is sought, the judge may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ;

iii. the judge may impose such terms as to cost and as to giving security as he deems fit.

4.  An application for judicial review shall be brought within 3 months of the date of occurrence of the subject of the application.

5.         (1)  When leave has been granted the application shall be made by motion or by originating summons.

(2) The notice of motion or summons shall be served on all persons directly affected and where it relates to any proceedings before a judge and the object of the application is either to compel the judge or an offer of the court to do any act in relation to the proceedings, or to quash them or any order made therein the notice or summons shall also be served on the clerk or Registrar of the Court and where any objection to the conduct of the judge is to be made, on the Judge”.

His lordship said in addition, the opening word “Any Applicant” and “may apply to the court for a review of the matter within thirty days” brings any matter concerning denial to access information within the penumbra of procedure in Judicial Review.

He said further that Section 21 of the Act also makes it clear that the action must be through Judicial Review because it says an application under Section 20 shall be heard and determined summarily.

According to him, Section 25 of the Act also enables the Court to make an order against any institution failing to disclose the information or part thereof to the Applicant where the Applicant is able to show or establish his entitlement to the information requested.

His lordship said that is the whole essence or import of Section 272(1) & (2) of the 1999 Constitution (as amended), which provides:

272(1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power duty, liability privilege, interest, obligationor claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

He also called in aid Section 6(6) (b) of the 1999 Constitution in support of the proposition that a cause of action is the question as to civil rights and obligations of the Plaintiffs founding the action to be determined by the Court in favour of one party against the other.

On the import of Section 272 (2) of 1999 Constitution, his lordship said he would call in aid the decision of the Supreme Court in the case of Hon. Ehioze Egharevba vs. Hon. Croby O. Eribo (2010) 9 SCM 121 at 13 C- E Per Adekeye, J S C who said: “Ordinarily, our laws by virtue of Section 272(2) of the 1999 Constitution, our High Courts have the power to review administrative determinations of inferior tribunals in that High Court has an inherent jurisdiction to control all inferior tribunals not in appellant capacity, but in a supervisory capacity. That control extends not only to seeing that it observes the law, but also that the inferior tribunal keeps within its jurisdiction.  The control is exercised by means of a power to quash any determination by the tribunal which on the face of it offends against the law.  This power is exercised in respect of administrative decisions of any inferior tribunals on the ground of illegality or procedural impropriety or irrationality. Okeahialani vs Nwamava (2003) NWLR (PART 835) Page 597.”

Therefore, his lordship said, on the position of the Constitution and authorities if an Applicant for application of prerogative writs can establish that all or any of the above facts and the provisions of the Constitution are breached or proved to have been violated upon the materials placed before the Court, the Court would exercise its discretion to quash the impugned proceedings and or decision.

But he said he was of “the firm view that the method or mode prescribed for challenging the refusal of a public institution or public office to supply information requested under the Freedom of Information Act 2011 is by application for Judicial Review.”

His lordship said further that it is trite law that where any proceedings are begun other than as provided by the rules such proceedings are incompetent and that a court is only competent when a case comes before it by due process of law and upon fulfillment of condition precedent to the exercise of jurisdiction.

He referred to Agip (Nigeria) Ltd vs. Agip Petrol International & Ors. (2010) 2 SCM 1 at 56 B- F, per Adekeye, J. S. C. who had this to say:  “The cross-appellant wrongly argued that the provisions of the Companies Proceedings Rule, particularly Rule 2(1) is merely directory and not mandatory. I disagreed with this view because of the word SHALL in the provision. The word shall in the ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. When the word shall is used in a statute it is not permissive, it is mandatory, it imports that a thing must be done. Nigerian LNG  Ltd vs. African Development Insurance  Co. Ltd.  (1005)  8  NWLR  PT. 416  pg. 677; Col. Kaliel (Rtd.) vs. Alhaji Aliero (1999) 4 NWLR  PT. 597 139.

His lordship said more important is that where a statute or Rule of court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent.

He noted that in the case of Obasanjo vs. Yusuf  (2004) 9 NWLR  PT. 877 pg 144 at page 221;  (2004) 5 SCM, 152, the court decided that:  “It is elementary law that a plaintiff in the commencement of an action must comply strictly with the provision of the enabling law. He cannot go outside the enabling law for redress.  In effect, to commence a suit by a writ of summons instead of Originating Summons as enacted in a status cannot be overlooked as a mere “irregularity by virtue of Rule18 of the Companies Procedure Rules 1992  as argued by the cross-appellant.”

His lordship therefore held that the action herein ought to have been commenced or initiated via Application for Judicial Review and not by Originating Summons as was done in the matter.

Consequently, he ruled that the action shall be struck out and accordingly struck it out for want of jurisdiction on the part of the Court to entertain or adjudicate over the action as it is incompetent.

He made no order as costs.

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